COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00444-CR

Stephanie Lynn Bekendam

v.

The State of Texas

§

§

§

§

§

§

From the 30th District Court

of Wichita County (50,166-A)

March 21, 2013

Opinion by Justice Meier

Dissent by Justice Walker

(en banc) (p)

JUDGMENT

This court has considered the record on appeal in this case and holds that 

there was no error in the trial court’s judgment. It is ordered that the judgment of 

the trial court is affirmed.

SECOND DISTRICT COURT OF APPEALS

By_________________________________

 Justice Bill Meier
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00444-CR

STEPHANIE LYNN BEKENDAM APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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OPINION

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I. INTRODUCTION

Appellant Stephanie Lynn Bekendam appeals her conviction for driving 

while intoxicated, felony repetition.1 In one issue, Bekendam contends that the 

trial court erred by allowing the State’s expert to testify to trace levels of cocaine 

that the expert found when analyzing a sample of Bekendam’s blood. We will 

affirm.

 

1See Tex. Penal Code Ann. § 49.09(b) (West Supp. 2012).
2

II. BACKGROUND

The underlying facts of this case are largely undisputed. The record 

demonstrates that on February 28, 2008, a witness saw Bekendam driving 

erratically, colliding her SUV into parked vehicles, and jumping curbs. Bekendam 

eventually ran a red light and struck another vehicle, injuring its driver and 

passenger. Emergency medics took Bekendam, the driver of the other vehicle, 

and its passenger to the hospital. While at the hospital, because an EMT and an 

attending nurse reported that Bekendam’s breath smelled of alcohol, the police 

procured a sample of Bekendam’s blood.

After the blood was tested and determined to contain no alcohol, the State 

ordered the blood tested for any controlled substances or dangerous drugs. 

Bekendam does not contest that she operated a motor vehicle in a public place, 

nor does she contest that she had previously been convicted of two prior charges 

of driving while intoxicated (DWI). The dispute in this case is whether the trial 

court erred by allowing the State’s expert witness to testify to having found trace 

levels of cocaine in Bekendam’s blood that, according to the State’s expert, 

demonstrates that Bekendam had cocaine in her system both at the time of the 

blood draw and at the time she ran the red light. Prior to expert testimony at trial, 

the trial court conducted a Daubert/Kelly hearing2outside the presence of the jury 

 

2See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 

S. Ct. 2786 (1993); Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).
3

to determine whether it would allow the expert to testify to what she had found 

when analyzing Bekendam’s blood.

At the hearing, Renee Hawkins, the State’s expert witness who analyzed 

Bekendam’s blood sample, testified that she is a forensic scientist with the Texas 

Department of Public Safety Crime Laboratory’s toxicology section. She testified 

that she is trained in the analysis of biological specimens for alcohol and drugs. 

She is a member of the Southwestern Association of Toxicologists and of the 

International Association of Chemical Testing. Hawkins explained to the trial 

court that the department has a procedure in which it first tests blood samples for 

several classes of drugs and then, if any of those classes of drugs are detected 

and per department policy, a second, additional, confirmation test is conducted to 

confirm the type of drug and the amount of that drug contained in the sample. 

Hawkins said that both of these tests are generally accepted within the scientific 

community and that the results of these tests had been admitted in evidence by

courts throughout Texas and the United States. Hawkins testified that she tested 

Bekendam’s blood sample. According to Hawkins, Bekendam’s blood tested 

positive for cocaine3using the first test, “enzyme-multiplied immunoassay

 

3

The use of the terms “benzoylecgonine,” “the class of cocaine and 

cocaine metabolites,” and “cocaine” are routinely described in caselaw, and by 

the expert testimony found in those cases, as interchangeable terms when 

discussing EMIT test results for the drug cocaine. See, e.g., Matter of Gordon v. 

Brown, 84 N.Y.2d 574, 577, 644 N.E.2d 1305, 1306 (N.Y. 1994). Indeed, in 

Somers, both the court of appeals and the court of criminal appeals refer to the 

results of EMIT as a positive test result for cocaine. Somers v. State, 333 

S.W.3d 747, 753 (Tex. App.—Waco 2010) (“As previously discussed, the EMIT 
4

technique,” otherwise known as “EMIT.”

4

 Hawkins said that she confirmed the 

results using “the Gas Chromatograph/Mass Spectrometer or [GCMS].” 

According to Hawkins, under GCMS, Bekendam’s blood contained traces of both 

cocaine and a metabolite, benzoylecgonine, which can only enter the 

bloodstream via the consumption of cocaine. After explaining cocaine’s half-life 

 

test was positive for cocaine, but the confirmation [GCMS] test was negative.”),

overruled on other grounds by 368 S.W.3d 528, 530 (Tex. Crim. App. 2012) 

(“The [EMIT] results were positive for both cocaine and amphetamines.”). This 

language is used by both courts despite their discussions that what is actually 

being detected using EMIT is cocaine’s metabolite, benzoylecgonine. Somers, 

333 S.W.3d at 751 (“The [EMIT] test was positive for benzoylecgonine, called 

cocaine and its metabolites class.”); see also Somers, 368 S.W.3d at 532 (“EMIT 

actually tests for the existence of benzoylecgonine, not cocaine.”). But neither 

court is being “contrary” to the record in that case. Unlike some classes of drugs 

that EMIT screens for, cocaine is in a class of its own. Somers, 368 S.W.3d at 

531 (“the [EMIT] results indicated a possible positive for benzoylecgonine, or 

‘cocaine and its metabolites’”). For illustration, EMIT also screens for a class of 

“amphetamines,” but a positive result in this class does not necessarily indicate 

the specific drug ingested. See Martin v. State, 214 Ga. App. 614, 617, 448 

S.E.2d 471, 474 (Ga. Ct. App.—1994), cert. denied, (1995) (explaining that after 

EMIT results indicated the presence of an “amphetamine-like substance,” 

additional testing using GCMS confirmed the presence of methamphetamine). 

But a positive result under EMIT in the cocaine and cocaine metabolite class 

reveals the drug ingested, cocaine. See Somers, 368 S.W.3d at 532 (“[The 

expert] then agreed that EMIT is a reliable presumptive test to determine whether 

cocaine has been ingested.”). This is so because as Hawkins testified in this 

case, “Benzoylecgonine only comes from cocaine.” In Somers, Hawkins was 

also an expert witness. Id. Throughout Somers, when characterizing Hawkins’s

testimony regarding EMIT in general, the court of criminal appeals routinely 

refers to the results of EMIT as a positive test for cocaine. Id. When it comes to 

cocaine, the limitation in EMIT is not its inability to detect the drug ingested by 

the host; an “EMIT test alone [will] not indicate how or when an individual 

ingested cocaine, how much was taken, or whether the individual was a habitual 

user.” Id. at 532–33. But as we know from Somers, “the results of a [GCMS] test 

would not indicate these facts either.” Id.

4See Stedman’s Medical Dictionary 631 (28th ed. 2006).
5

and the level of benzoylecgonine found in Bekendam’s blood sample, Hawkins 

testified that there may have been significant amounts of cocaine in Bekendam’s 

blood at the time she ran the red light and collided with the other vehicle.

Hawkins testified that she did not include cocaine as a drug detected in 

Bekendam’s blood on her toxicology report because the results under the GCMS 

test were “under the .05 [reportable] cutoff point, .05 is our limit for cocaine.” 

When asked directly why she would testify that Bekendam’s blood contained 

cocaine when her report did not state as such, Hawkins said, “I saw the cocaine, 

yes, so I did see the trace levels [of cocaine]. [But] [i]t was below my reportable 

cutoff.” At the conclusion of the hearing, the trial court found that Hawkins’s 

testimony “is reliable and relevant. The defense objection is overruled. It will be 

permitted before the jury.”

At trial and in the presence of the jury, Hawkins testified that she detected 

trace levels of cocaine and cocaine metabolite in Bekendam’s blood sample. 

Specifically to the cocaine detected by use of the GCMS test, Hawkins testified 

that she saw trace amounts of cocaine in Bekendam’s blood that were “below my 

reportable limit that I’m allowed to report.” Hawkins said that the amount of 

metabolite she detected in Bekendam’s blood was “one of the larger amounts 

that I have reported of [b]enzoylecgonine[,] so it’s consistent with a large amount 

of cocaine use or a habitual use of cocaine.” When asked whether Bekendam 

had cocaine in her system at the time she ran the red light, Hawkins testified, 

“Since I saw cocaine in the sample at trace amounts [at the time the tests were 
6

conducted], based on the short half-life of cocaine and the fact that it degrades in 

the blood tube, [Bekendam’s cocaine blood level] . . . may have been significantly 

higher at the time” Bekendam ran the red light. Hawkins said that it was her 

opinion that at the time Bekendam ran the red light, Bekendam would have had 

cocaine in her bloodstream.

The jury returned a verdict of guilty and set Bekendam’s punishment at 

twenty years’ confinement and a $10,000 fine. The trial court entered judgment 

accordingly. This appeal followed.

III. DISCUSSION

In her sole issue, Bekendam argues that the trial court erred by allowing 

Hawkins to testify (1) that a trace amount of cocaine was present in Bekendam’s 

blood at the time of the blood draw and (2) that cocaine would have been in her 

bloodstream at the time she was operating her SUV when it collided with the 

other vehicle.

Bekendam’s argument is that Hawkins failed to follow the “standards and 

procedures” of the Texas Department of Public Safety (DPS) when she testified 

to the amounts of cocaine present in Bekendam’s blood at both of these times. 

Bekendam’s argument is predicated on the notion that because DPS requires a 

two-step procedure by its forensic scientists when screening blood samples for 

drugs, and that under this procedure the department as a policy does not include 

in its lab reports any positive test result whenever the second step to that 

procedure does not indicate a threshold level of certain drugs, Hawkins’s 
7

testimony was “inherently unreliable and therefore irrelevant” when she testified 

that she did in fact find trace amounts of cocaine in Bekendam’s blood sample

using both tests. So, Bekendam argues, even though there were trace amounts 

of cocaine in her system at the testified-to times, Hawkins should not have been 

allowed to testify to the matter because she should have been bound by the 

department’s policies for reporting the presence of cocaine.

We review the trial court’s decision on the qualifications of an expert or the 

reliability of her testimony for an abuse of discretion. See Hernandez v. State, 53 

S.W.3d 742, 750 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). A trial court 

abuses its discretion when its decision lies outside the zone of reasonable 

disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). An 

expert may testify on scientific, technical, or other specialized subjects if the 

testimony would assist the factfinder in understanding the evidence or 

determining a fact issue. See Tex. R. Evid. 702. The trial court may exclude 

scientific testimony or evidence that is not reliable. See Hernandez, 127 S.W.3d 

at 218.

To be considered reliable, evidence derived from a scientific theory must 

satisfy three criteria: (a) the underlying scientific theory must be valid; (b) the 

technique applying the theory must be valid; and (c) the technique must have 

been properly applied on the occasion in question. Kelly, 824 S.W.2d at 573; 

see also Hartman v. State, 946 S.W.2d 60, 62–63 (Tex. Crim. App. 1997) 
8

(applying Kelly standard to all scientific evidence, whether novel or not, that is 

offered under Tex. R. Evid. 702).

It is the third criterion, whether the scientific technique in question has 

been properly applied, that Bekendam attacks. Bekendam sets forth the 

proposition that the failure to follow DPS’s policy regarding testing blood samples 

for illicit drugs is the equivalent of failing to properly apply the scientific technique 

on the occasion in question.5 But the equating of the department’s policy with 

any given scientific technique is erroneous. Indeed, within the department’s 

policy for drug screening, two specific scientific techniques are utilized. First, as 

Hawkins testified, the department utilizes EMIT to determine whether a class of 

drugs exists in a given sample. If the EMIT test is positive for a class of drugs, 

including cocaine, then the sample is tested under another scientific technique; 

namely, the GCMS test. Therefore, contrary to the manner in which Bekendam 

would have us approach our analysis, we must determine whether the trial court 

 

5

The converse of Bekendam’s position is correct pertaining to breath tests. 

That is, in a hearing regarding reliability of scientific evidence in a DWI 

prosecution at which the results of a breath test are challenged, all the trial court 

need do to satisfy its “gate-keeping” function is to determine whether the 

technique was properly applied in accordance with DPS rules on the particular 

occasion in question. Bolen v. State, 321 S.W.3d 819, 826–27 (Tex. App.—

Amarillo 2010, pet. ref’d). This is so because the Legislature has already 

determined that the underlying science is valid and that the technique applying it 

is valid so long as it is administered by individuals certified by and using testing 

techniques approved by the DPS. Bolen, 321 S.W.3d at 826. But this rule does 

not remove the trial court’s gate-keeping function on expert testimony regarding 

techniques not administered in accordance with DPS policy. Nor does this rule 

dictate that techniques not administered in accordance with DPS policy are 

per se unreliable.
9

abused its discretion by allowing Hawkins to testify to the results that she

ascertained by using the EMIT and GCMS tests. Hernandez v. State, 116 

S.W.3d 26, 27–29 (Tex. Crim. App. 2003).

In this case, the underlying scientific theory and techniques are not only 

accepted as valid by the relevant scientific community, they also have been 

accepted by a number of trial courts and reviewing courts as reliable. Id. As 

Presiding Judge Keller discussed in her concurring opinion in Hernandez, the 

“EMIT system has been overwhelmingly accepted as reliable. The reliability of 

[the EMIT] test [as a screen for broad categories of drugs] has been litigated 

extensively before fact-finders, with the parties being able to offer live testimony 

and to conduct cross-examination.” Hernandez, 116 S.W.3d at 42 (Keller, P.J., 

concurring) (citing Jones v. United States, 548 A.2d 35, 44–46 (D.C. 1988)); see 

also Spence v. Farrier, 807 F.2d 753, 756 (8th Cir. 1986) (citing cases and 

discussing general acceptance of EMIT test results as relevant evidence). 

Following Judge Keller’s concurrence in Hernandez, the court of criminal appeals 

recently held that “the reliability of even a single, unconfirmed EMIT test has 

been sufficiently established that it meets the first two Kelly prongs.” Somers v. 

State, 368 S.W.3d 528, 545 (Tex. Crim. App. 2012). And much like the facts of 

this case, the Somers court found it significant that the confirming GCMS test 

“did in fact show traces of cocaine . . . but at a level below the minimum required 

by DPS protocol to be reported as positive.” Id. at 544.
10

Similar to EMIT, GCMS has for some time been considered the “Golden 

Rule” in the field of toxicology to verify or confirm the results of an EMIT test. 

Bolieu v. State, 779 S.W.2d 489, 490 (Tex. App.—Austin 1989, no writ); see also 

Combs v. State, 6 S.W.3d 319, 322 (Tex. App.—Houston [14th Dist.] 1999, no 

pet.) (“Texas and Federal courts have found the gas chromatography test to be a 

reliable method for identifying compounds, and it has been generally accept[ed] 

in the scientific community.”).

Here, the trial court conducted a hearing where the expert testified to her 

qualifications; to the utilization of both the screening and the confirmation tests 

she utilized; that these tests are generally accepted in the scientific community; 

and that testimony concerning these tests has been admitted in courts “across 

the State of Texas and the United States.” Given the general acceptance of 

these tests within both the scientific and judicial communities, we cannot say that 

the trial court’s decision to allow the expert witness to testify to her findings was 

outside the zone of reasonable disagreement. Casey, 215 S.W.3d at 879. It was 

certainly within the trial court’s discretion to determine that the State’s expert 

testimony regarding her analysis of Bekendam’s blood sample would assist the 

factfinder in understanding the evidence or in determining the question of 

whether Bekendam had cocaine in her system while she operated her SUV 

during the time of the incident. See Tex. R. Evid. 702.

We conclude and hold that the trial court’s determination to allow the 

State’s expert to testify to the level of cocaine found in Bekendam’s blood 
11

sample—both at the time of the blood draw and at the time of the incident—falls 

within the zone of reasonable disagreement, even though Hawkins identified 

trace levels of cocaine and cocaine metabolite that were below minimums set by

DPS’s policy. We overrule Bekendam’s sole issue.

IV. CONCLUSION

Having overruled Bekendam’s sole issue on appeal, we affirm the trial 

court’s judgment.

BILL MEIER

JUSTICE

PANEL: EN BANC

WALKER, J., filed a dissenting opinion in which DAUPHINOT and GARDNER, 

JJ., join.

PUBLISH

DELIVERED: March 21, 2013
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00444-CR

STEPHANIE LYNN BEKENDAM APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

----------

DISSENTING OPINION

----------

I would hold that the trial court abused its discretion by allowing the State’s 

expert witness, Renee Hawkins––a forensic scientist with the Texas Department 

of Public Safety (DPS) Crime Laboratory, to testify that she “saw” trace amounts 

of cocaine in the Gas Chromatograph/Mass Spectrometer (GCMS) test results of 

blood drawn from Appellant Stephanie Lynn Bekendam in an amount that fell 

below the level that is reportable under DPS standards.
2

Hawkins’s written report of her findings from the GCMS testing on 

Appellant’s blood, attached to this dissenting opinion as Appendix A, does not 

mention or identify any trace amount of cocaine in Appellant’s blood. It states, in 

pertinent part,

Results of Analysis and Interpretation

Blood Drugs: Benzoylecgonine (a cocaine metabolite) (1.4 

milligrams per liter) 

At the gatekeeping hearing, however, Hawkins testified that the GCMS results 

showed not only the cocaine metabolite Benzoylecgonine in Appellant’s blood—

in accordance with her written report—but also trace amounts of cocaine in 

Appellant’s blood.1 Hawkins testified, in part, that after conducting the initial 

EMIT screening test, she conducted a confirmatory GCMS test: 

Q. Okay. Now, did you also see any trace amounts of 

cocaine in the sample when you tested it?

. . . .

A. I did see traces of cocaine in the sample, yes.

 

1Contrary to the Majority Opinion’s assertion, Hawkins never testified that 

the EMIT detection test showed cocaine in Appellant’s blood. She repeatedly 

testified that the EMIT detection test screened for six classes of drugs, one of 

those classes being cocaine and/or its metabolites. Blood triggering a positive 

test in one of the EMIT screening classes must be further tested by the GCMS to 

determine “which type of analyte [sic], which type of drug, and how much of that 

drug.” Thus, while it is undisputed that Appellant’s blood triggered a positive 

response on the EMIT test in the cocaine and/or cocaine metabolites class, this 

positive result did not show whether the test was positive because of the 

presence of cocaine metabolite only or because of the presence of cocaine and 

cocaine metabolite, nor did it quantify the amount of cocaine and/or cocaine 

metabolite that triggered the positive response.
3

. . . .

Q. And is it true that in about four hours most of the cocaine 

in [] someone’s system could be metabolized?

A. It can be, yes.

Q. And would it be possible, if you assume a wreck that 

occurs at 5:30 in the afternoon and a blood draw isn’t taken until 

nearly 7:00 p.m., an hour and a half later, and in that blood draw you 

see the results that you saw in this case, and you saw trace amounts 

of cocaine, for there to be cocaine in the bloodstream of the driver at 

the time of the driving?

A. Yes. Considering -- considering the half-life of cocaine, 

there may have been significant amounts of cocaine in the blood 

sample an hour and a half earlier. 

. . . .

Q. Now, what exactly is a GCMS? . . . .

A. We perform an extraction from the blood to extract the 

drugs of interest out of the blood. And then the first part of the 

instrument separates the compounds of interest or the drugs of 

interest, and then the second part of the instrument identifies them 

almost like a fingerprint for that drug.

. . . .

Q. After you’ve done the extraction and you put the sample in 

the GCMS, at that time is that when you get the test results that’s the 

basis of your report?

A. Yes.

Q. Or is something -- is there another step?

A. Well, we perform the data analysis.

Q. What is the data analysis?
4

A. The instrument will give me the data for all my controls and 

my samples. I will do the dialysis on my controls, have that peer 

reviewed by another coworker, and then I will analyze each case 

sample individually and provide a result and write my report.

Q. So there’s like a computer screen that tells you what’s in 

the sample?

A. There is software for us to look at that separation and that 

fingerprint that I was speaking of.

Q. And is that where you saw the cocaine metabolite?

A. Yes.

Q. It shows up as a certain bar graph or something on the 

computer?

A. It does. It shows the peak separation so I can see the drug 

itself separated, and then it will show the spectrum or what I was 

referring to that’s similar to a fingerprint. And then it -- the software 

will be used with our calibration to create a concentration.

Q. Now, when you said you saw cocaine or trace of cocaine, 

it was under the .1 milligrams per liter?

A. It was under the .05 is our cutoff point. .05 is our limit for 

cocaine.

. . . . 

Q. So based on your test report, are you able to testify with 

any kind of reasonable medical certainty that the driver from whom 

the sample was drawn was impaired at the time of the accident?

A. I can only say that cocaine may impair an individual 

person.

. . . . 

Q. And that impairment could depend on a number of factors. 

Correct?
5

A. Yes.

Q. Number of factors that you don’t know specifically about 

this Defendant?

A. Correct.

Q. You don’t know . . . whether Stephanie last used drugs 

one hour before the accident, one day before the accident, three 

days before the accident?

A. If I had only seen Benzoylecgonine, I may not have known 

that. But since I saw trace levels of cocaine, I know that it was not 

long before the time of incident, the time of blood draw, excuse me.

Q. But trace levels of cocaine don’t show up in your testing.

A. I saw the cocaine, yes, so I did see the trace levels. It was 

below my reportable cutoff.

Hawkins later testified in front of the jury, in part, as follows:

Q. And what were the results of your testing on this 

Defendant’s blood?

. . . .

A. My results were 1.4 milligrams per liter of Benzoylecgonine 

which is a cocaine metabolite.

Q. [] All right. And did your testing also -- did you see any 

trace amounts of cocaine in the blood that were beneath the 

reportable levels?

. . . .

A. I did see trace amounts of cocaine, but it was below my 

reportable limit that I’m allowed to report.

Q. [] Explain to the jury what your reportable limit is.

A. .05 is our lowest calibrator so anything less than half of 

that I can’t even say that I saw cocaine.
6

Q. All right. Now, explain to the jury what Benzoylecgonine 

is.

A. It’s a metabolite of cocaine. Cocaine breaks down -- in 

order to use a drug, your body will break something down or 

eliminate it and then it metabolizes.

. . . .

Q. All right. Does -- Benzoylecgonine, that’s what is 

considered an inactive metabolite; is that correct?

A. It is. It is not active on your central nervous system like 

cocaine is.

Q. So cocaine would be a substance that would or could 

impair your central nervous system, but the metabolite would not; is 

that correct?

A. Correct.

Q. All right. Does Benzoylecgonine stay in the system longer 

than cocaine?

A. It does.

. . . .

Q. And does the fact that you saw trace amounts of cocaine 

in the Defendant’s blood sample, what’s the significance of that?

A. The fact that I saw cocaine in the sample and the fact that 

it metabolizes very quickly means that it may have been significantly 

higher at the time of the incident.

Q. Does that also mean that the use of the cocaine was 

closer in time to the time of driving versus being a couple of days 

beforehand?

A. Yes.
7

Scientific evidence has the ability to mislead a jury that is not properly 

equipped to judge the probative force of the evidence. Layton v. State, 280 

S.W.3d 235, 241 (Tex. Crim. App. 2009). The trial court is responsible for

determining whether the scientific evidence offered is sufficiently reliable, as well 

as relevant, to help the jury in reaching accurate results. Id. The proponent of 

scientific evidence bears the burden of proving to the trial court, by clear and 

convincing evidence, that the evidence is sufficiently relevant and reliable to 

assist the jury in determining a fact in issue. Id. Evidence derived from a 

scientific theory must meet three criteria in order to be reliable in any given case: 

“‘(a) the underlying scientific theory must be valid; (b) the technique applying the 

theory must be valid; and ([c]) the technique must have been properly applied on 

the occasion in question.’” Id. (quoting Kelly v. State, 824 S.W.2d 568, 573 (Tex. 

Crim. App. 1992)).

Here, as the majority points out, Appellant’s argument centers around the 

third criteria—proper application of the scientific technique on the occasion in 

question. The majority espouses that “equating of the department’s policy with 

any given scientific technique is erroneous” and then addresses the EMIT and 

GCMS testing techniques. Maj. Op. @ 8. Thus, the majority distinguishes the 

failure to follow the DPS policy—which prohibits reporting amounts of cocaine 

below 0.05mg/L in GCMS testing—from the failure to properly apply the GCMS 

testing technique at the time of testing. But I see no distinction. Hawkins 

properly followed DPS standards in her written report and did not report that the 
8

GCMS results showed any cocaine in Appellant’s blood. Hawkins explained that 

the DPS prohibited her from reporting that GCMS test results showed cocaine in 

Appellant’s blood because “.05 is our lowest calibrator.” Nonetheless at trial, 

Hawkins was allowed to testify that the GCMS results showed unreportable trace 

amounts of cocaine in Appellant’s blood that were below .05 mg/L and that 

because cocaine, not just cocaine metabolite, was in Appellant’s blood, this 

proved Appellant used cocaine not long before the blood draw.

If GCMS analysis shows a trace amount of cocaine that is unreportable in 

a written report by a forensic scientist with the DPS Crime Laboratory per DPS 

policy because the amount of cocaine is under the lowest calibrated level, how 

can that amount of cocaine be reportable in verbal testimony at trial by a forensic 

scientist with the DPS Crime Laboratory when it is still under the lowest 

calibrated level? If a trace amount of cocaine is too unreliable to be included in a 

written report, why is it reliable if presented orally? Hawkins’s testimony about 

the trace amount of cocaine was unreliable because it showed that, per DPS 

policy, application of the technique––GCMS testing––excluded reporting trace 

amounts of cocaine that fell below the lowest calibrated level of .05 mg/L. And 

the State presented no other evidence or testimony that GCMS test results of 

trace amounts of cocaine below the DPS’s reportable limits are reliable. 
9

Hawkins’s testimony about the trace amounts of cocaine found in Appellant’s 

blood should have been excluded.2

I would hold that the trial court abused its discretion by allowing Hawkins to 

testify that the GCMS testing showed trace amounts of cocaine in Appellant’s 

blood that were below the .05 mg/L reportable cut-off set by DPS policy and 

would conduct a harm analysis. See Hernandez v. State, 116 S.W.3d 26, 30 

(Tex. Crim. App. 2003); Kelly, 824 S.W.2d at 573. Because the majority does 

not, I respectfully dissent.

SUE WALKER

JUSTICE

PUBLISH

DELIVERED: March 21, 2013

 

2

The majority opinion notes the court of criminal appeals’ recent opinion of 

Somers v. State, 368 S.W.3d 528 (Tex. Crim. App. 2012). See Maj. Op. @ 9. In 

Somers, the court of criminal appeals held that the results of EMIT testing are 

reliable scientific evidence and are admissible with or without confirmation by 

GCMS testing. Id. at 545. Neither the reliability nor the admissibility of the EMIT 

test is at issue here. Hawkins testified without objection to the results of the 

EMIT test on Appellant’s blood; Appellant’s blood triggered a positive response 

on the EMIT screening test in the cocaine and/or cocaine metabolites class. The 

issue here is the reliability of Hawkins’s testimony that the GCMS test showed a 

trace amount of cocaine in Appellant’s blood below .05mg/L that was not 

included in her report of the GCMS analysis of Appellant’s blood because it was 

below the DPS’s reportable GCMS cut-off. Thus, Somers does not dictate the 

outcome here.
APPENDIX A