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Criminal Law No. 2053-01, 6/4/2003. FACTS: The appellant pleaded guilty to possession of marijuana and the trial court placed him on probation for 10 years. Almost a full 10 years later, the state filed a motion to revoke his probation alleging, inter alia, that appellant failed to avoid the use of controlled substances and had tested positive for marijuana on Jan. 28, 1999. At the revocation hearing, Alonzo Perez, a laboratory technician, testified that he tested the appellant’s urine for the presence of drugs using a machine called an “ADx analyzer.” The test results were positive. Perez testified that he had worked as a urinalysis lab technician for two and a half years. He explained that he had 32 hours of specialized training on the ADx analyzer and about two and a half weeks of extensive on-the-job training. When asked how many urinalysis tests he had performed, he replied, “I couldn’t say. It’s just so many.” Mr. Perez testified that he had learned that the machine was 95 to 96 percent accurate, but he conceded that he did not know the technical aspects of the machine’s operation. At the close of evidence, the appellant re-urged his Rule 702 objections to Perez’s testimony and to the lab report. He argued that Perez “did not know anything about the scientific theory underlying the test, whether the scientific theory was valid, whether any techniques used in applying the theory [were] valid, whether or not the technique was properly applied in this case.” The trial court, however, ruled that the evidence was reliable and noted that Perez had testified on this subject in other cases. The Corpus Christi Court of Appeals held that Perez’s testimony and the lab report were inadmissible because the state failed to satisfy the scientific reliability requirements set out in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). HOLDING: Affirmed. The fact that a trial court has allowed some type of scientific testimony by a particular witness before (perhaps without objection) does not mean that the witness’ testimony is, ipso facto, scientifically reliable in this case. Nor does the fact that the trial court has allowed this witness to testify to these procedures before explain how or why the ADx machine is a scientifically reliable one for determining the presence of a controlled substance. It may well be scientifically reliable, but the trial court’s statement that he has allowed this testimony before does not make it so. Perhaps the trial judge had previously conducted numerous Daubert/Kelly gatekeeping hearings on precisely this issue and had repeatedly found it scientifically reliable. If he had, then either the state or the trial judge should put that on the record along with materials from those previous hearings. There is no other evidence or material in this trial record, however, that would support any finding of the scientific reliability of the ADx analyzer. Thus, the Corpus Christi Court of Appeals did not err. It found that the trial court abused its discretion in admitting the results of “an ADX analyzer” without any showing of its scientific reliability or any reliance upon other scientific materials or judicial opinions which had found “an ADx analyzer” a reliable methodology for determining whether a person does or does not have marijuana in his body. In his brief to this court, the state prosecuting attorney presents a plethora of cites to scientific articles and learned treatises, as well as to some cases from other jurisdictions concerning this general area of scientific endeavor. The trial court should have been given this material, and appellant should have been allowed an opportunity to cross-examine any witnesses who sponsored it. The state had the burden of proof at trial (or, as in this case, at the probation revocation hearing) to show, by clear and convincing evidence, that the ADx analyzer is a reliable method of determining the presence of marijuana in a person’s body. It failed to offer any testimony, any scientific material or any published judicial opinions from which the trial court might take judicial notice of its scientific reliability. It cannot now rely upon the appellate courts to become independent scientific sleuths to ferret out the appropriate scientific materials which could support the trial court’s decision to allow the ADx technician’s testimony. Thus, the court of appeals was confronted with a trial record which did not support the scientific reliability of the ADx machine. It cannot be faulted for concluding that, based upon the record before it, the state had failed to show the machine’s reliability. Although appellate courts may take judicial notice of other appellate opinions concerning a specific scientific theory or methodology in evaluating a trial judge’s Daubert/Kelly “gatekeeping” decision, judicial notice on appeal cannot serve as the sole source of support for a bare trial court record concerning scientific reliability. OPINION: Per curiam. CONCURRENCE: Johnson, J. “It is foreseeable, perhaps even inevitable, that one trial court will hear evidence on a new process and find it reliable and another trial court will hear the same or similar evidence and rule that the process is not reliable. When that situation arises, it will fall to the appellate courts to make a ruling that applies to all trial courts. This has long been the case; the law must be uniform for all citizens in all the courts of this state.” CONCURRENCE: Keller, P.J. “The central question in this case is whether, and to what extent, an appellate court may consider matters not in the record when reviewing a trial court’s decision to admit or exclude scientific evidence. The answer is that the appellate court should consider only material that is in the record and matters that may be judicially noticed. The reliability of a scientific theory or technique should be judicially noticed under the following circumstances: 1. when it is a matter of common knowledge, 2. when widely available court decisions show that reliability has been litigated elsewhere in fact-finding forums to a degree sufficient for the appellate court to conclude that reliability is well-established, and 3. when a prior determination of reliability has been made by an appellate court whose pronouncements are binding in the jurisdiction. As will be discussed below, appellate courts should never conduct their own independent research of the scientific literature.” DISSENT: Keasler, J.; Hervey, J., joins. “I would adopt a bifurcated standard of review on appeal. I think appellate courts should review the reliability of the scientific theory or technique de novo, and review the application of that science in the particular case for an abuse of discretion. I would remand to the Court of Appeals to give the appellate court an opportunity to apply this standard of review.”

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