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No. 01-13-00931-CR

 

MELISSA DROMGOOLE, § IN THE COURT OF APPEALS FOR 

 Appellant § 

 § 

v. § THE FIRST DISTRICT OF TEXAS 

 § 

THE STATE OF TEXAS, § 

 Appellee § HOUSTON, TEXAS 

 

 

APPELLANT’S AMENDED MOTION FOR REHEARING 

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: 

 APPELLANT, MELISSA DROMGOOLE, by and through the 

undersigned counsel, submits this amended motion for rehearing pursuant to Texas 

Rules of Appellate Procedure 49.1 and 49.6, and requests that the Court reconsider 

its opinion of June 4, 2015, for the reasons set out below. 

I. The Opinion Misstates Facts Relevant to Issue One 

 In Issue One, Appellant claims that the blood draw was unreasonable under 

the Fourth Amendment because Appellant disclosed to the arresting officer that she 

had a medical condition, syncope, which put the officer on notice that a blood draw 

could present medical complications. The Court’s opinion acknowledges that 

Appellant explained to Officer Nunn that, with her syncope, her “blood pressure 

drops and then [she] faints.” (Slip Op. at 18). But the Court rejected the claim 

ACCEPTED

01-13-00931-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

7/13/2015 12:11:55 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 7/13/2015 12:11:55 PM CHRISTOPHER A. PRINE Clerk
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because Appellant’s doctor testified that Appellant does not have low blood 

pressure; thus, the Court held that “a warning of low blood pressure would not have 

conveyed appropriate information to prevent an unreasonable blood draw.” (Slip 

Op. at 19). 

This is a misstatement or gross oversimplification of the facts. As set out in 

Appellant’s Brief, Dr. Joseph Varon, who diagnosed Appellant’s syncope several 

years prior to the DWI arrest, testified that syncope is the medical term given to 

fainting and is often caused by temporary low blood pressure during a change of 

body position. 9RR91-93; Appellant’s Brief at 7-8.

When asked to explain the relationship between blood pressure and syncope, 

Dr. Varon testified that those prone to syncope “tend to have a low blood pressure 

at some point in time,” usually, when “you change positions abruptly.” 9RR92-93. 

Dr. Varon explained that in vasovagal syncope a change of position causes a change 

in blood pressure. 2RR89. Varon further explained that in healthy people the body 

responds to low blood pressure with a compensatory increase in heart rate, but this 

compensatory reaction does not function properly for Appellant. 2RR111. When the

heart does not “pump enough blood fast enough to the rest of your body”, syncope 

results. 2RR120. Accordingly, the Court’s opinion misstates and oversimplifies the 

facts in finding that Appellant’s syncope “does not affect her blood pressure.” (Slip 
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op. at 19). 

Moreover, Appellant did not merely provide a “warning of low blood 

pressure” to Officer Nunn, as stated in the opinion. (Slip Op. at 19). Appellant told 

Officer Nunn: “I just have syncope, which is when my blood pressure drops and 

then I faint.” SX4 (2:50:30-40). She disclosed the appropriate medical term for her 

condition and further explained that the fainting occurs when her blood pressure 

“drops.” Her explanation is consistent with Dr. Varon’s testimony explaining the 

relationship between blood pressure and syncope. Requiring a more detailed 

explanation of the relationship between blood pressure and syncope places an 

unreasonable burden on a citizen in this context, as does subjecting Appellant’s 

choice of words to this level of scrutiny. 

This Court’s opinion also misstates the facts in rejecting Appellant’s 

assertion that Officer Nunn had a duty to report Appellant’s disclosed medical 

condition to the blood draw nurse. The Court found that, even assuming such a duty 

exists, “there is no evidence in the record that the term syncope should have alerted 

a reasonable person authorized to perform a blood draw about any increased 

medical risk in performing a blood draw.” (Slip Op. at 21). 

As stated in Appellant’s Brief (at 10-11), Dr. Varon testified that it is not 

reasonable to perform a blood draw on a person prone to syncope or low blood 
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pressure in the standard sitting position; the patient should be lying flat. 2RR102, 

116-117. Dr. Varon also testified that blood pressure should be measured in 

conjunction with a blood draw for a patient prone to syncope or low blood pressure. 

2RR117-119. There was no evidence contrary to Dr. Varon’s testimony on this 

issue. Accordingly, the record establishes that both the term syncope and a report of 

low blood pressure should have alerted a person authorized to draw blood to a risk 

of complications.

Appellant requests that the Court reconsider its disposition of Issue One in 

light of these undisputed facts.

II. The Reynolds Test is Inapplicable in the Context of Blood Analysis.

In Issue Four, Appellant asserts that the blood test evidence was unreliable 

under Texas Rule of Evidence 702 and the non-exclusive multi-factor analysis 

described in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). The Court 

held that this was not the appropriate standard and instead applied the modified 

standard announced in Reynolds v. State, 204 S.W.3d 386, 390 (Tex. Crim. App. 

2006), namely, whether the technique was properly applied in accordance with the 

rules of DPS. (Slip Op. at 28-29). Appellant asserts that the Reynolds test is not 

applicable in this context for the following reasons.

Reynolds involved a challenge to the admissibility of the analysis of a breath 
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test. The Court of Criminal Appeals rejected the appellant’s contention that, 

consistent with Kelly, the proponent of evidence of the results of a breath alcohol 

testing apparatus must show that the operator of the apparatus has a ready grasp of 

the sort of information he was required to know in order to become certified as an 

operator in the first place. Id. at 390. The Court held that in the context of breath 

test results, the Legislature has already determined that the underlying science is 

valid, and that the technique applying it is valid as long as it is administered by 

individuals certified by, and using methods approved by the rules of, DPS. Id. The 

Court cited as authority § 724.064 of the Transportation Code, which states that 

evidence of alcohol concentration shown by a breath, blood, or urine test is 

admissible in a prosecution under Chapter 49 of the Penal Code. Id., n. 26. But the 

Court also cited two cases involving the legislative determination of reliability for 

intoxilyzer testing, id., and expressly limited its modified standard to Kelly hearings 

“at which the results of a breath test are challenged.” Id. at 390-91.

Moreover, while there is a comprehensive set of DPS rules regarding breath 

testing, there is no equivalent regulatory scheme for blood testing. For example, the 

Transportation Code provides that a “breath specimen taken at the request or order 

of a peace officer must be taken and analyzed under rules of the department”; and 

“[t]he department may . . . adopt rules approving satisfactory analytical methods; 
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and . . . ascertain the qualifications of an individual to perform the analysis.” TEX.

TRANSP. CODE ANN. § 724.016(a) (Vernon 2011). Title 37, Chapter 19 of the Texas 

Administrative Code, titled “Breath Alcohol Testing Regulations,” provides that all 

Texas agencies must perform their breath tests under an approved breath test 

program. See 37 TEX. ADMIN. CODE § 19.4(a), (b)(3), (f)(6). The chapter provides 

detailed rules for instrument certification, testing techniques and methods, operator 

certification, Technical Supervisor certification, and approval of instruction 

courses. See 37 TEX. ADMIN. CODE § 19.2 et seq. 

The only DPS regulation pertaining to blood alcohol analysis is a general 

requirement that a crime lab performing such analysis for use in a criminal 

proceeding be accredited by DPS, which is accomplished by providing DPS with 

documentation showing that the lab is accredited by one of several recognized 

accrediting bodies. See TEX. GOV’T CODE § 411.0205; TEX. CODE CRIM. PROC. art. 

38.35; 37; TEX. ADMIN. CODE § 28.141 et seq. Thus, under the modified Reynolds

test, the only way blood analysis could be conducted in violation of DPS rules is if 

the lab performing the analysis was not properly accredited. This standard is not 

adequate to determine the reliability of the analysis of a particular specimen. 

Accordingly, the Reynolds test is not an appropriate substitute for the 

standard Kelly analysis in the context of a reliability challenge to blood alcohol 
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testing. Appellant requests that the Court reconsider Issue Four in light of the multifactor analysis from Kelly, as argued in Appellant’s Brief.

III. The Deviation from Validated Parameters Violated DPS Rules

The opinion states that the “burden of establishing that the technique was 

properly applied in accordance with the rules of DPS includes considering 

challenges to the performance of tests designed to ensure scientific equipment is 

functioning properly prior to the use of the equipment.” (Slip. Op. at 35). The 

opinion does not cite or mention any particular DPS rule in conjunction with this 

analysis. The Court appears to conclude that DPS rules implicitly encompass the 

standards of the recognized accrediting body of the lab. As noted above, a crime lab 

analyzing evidence for use in a criminal case must be accredited by DPS, and to 

obtain DPS accreditation a lab must first be accredited by a recognized accrediting 

body. Accordingly, the standards of the recognized accrediting body could be 

understood as creating a baseline for compliance with DPS rules. If the modified 

Reynolds test is applicable, and if DPS rules are presumptively coextensive with the 

standards of the recognized accrediting body, Appellant asserts that the record 

establishes that the blood analysis was conducted in violation of DPS rules. 

When asked whether DPS rules allow deviation from validated methods, 

HPD Crime Lab Director Irma Rios testified, “What the Department of Public 
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Safety does is they recognize the accrediting bodies and we have to be accredited 

by those bodies and there are certain standards we have to follow.” 7RR196. 

All four experts (Irma Rios, Laura Mayor, Will Arnold, and Amanda Culbertson)

testified that the standards of the accrediting agency, the American Society of 

Crime Lab Directors/Laboratory Accreditation Board (ASCLD/LAB), require case 

work to be conducted in accordance with the validated method established for an 

instrument. 6RR129; 7RR13-14, 19-20, 24; 61; 92; 134; 155; 188; 191-92; 196-97; 

8RR159. Mayor, Culbertson, and Rios testified that the use of controls and 

standards is not a substitute for proper validation. 7RR62; 156; 189; 191; 201-02. 

None of the State’s experts provided evidence demonstrating that ASCLD/LAB

standards permitted forensic analysis to be conducted while deviating from 

validated parameters, either generally or specifically with respect to changes in the 

vial oven temperature. 7RR90; 8RR136; 8RR188-89. While the State’s experts 

opined that the deviation in this case did not render the analysis of Appellant’s 

specimen unreliable, there was no evidence that the practice of conducting forensic 

analysis using non-validated parameters complied with ASCLD/LAB standards.

Assuming DPS rules are coextensive with the standards of the recognized 

accrediting body, the record demonstrates that the deviation from the validated 

method in this case violated DPS rules. Whether the challenged evidence was 
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otherwise reliable, notwithstanding the violation, is not at issue; “the only 

determination for a trial court to make in the Kelly hearing is ‘whether the technique 

was properly applied in accordance with the rules of DPS on the particular occasion 

in question.’ ” (Slip. Op. at 29, citing Reynolds, 204 S.W.3d at 390); see also

Schultz v. State, 457 S.W.3d 94, 104 & n.4 (Tex. App.—Houston [1st Dist.] 2014, 

no pet.) (declining to address issue of whether any deviation from DPS rules results 

in a per se determination of unreliability). Pursuant to the Reynolds analysis, Issue 

Four should be sustained. 

Alternatively, if violation of DPS rules does not result in a per se 

determination of unreliability, Appellant asserts that the question of whether the 

violation resulted in unreliability should be analyzed in light of the non-exclusive 

Kelly factors. Id., 104 & n. 4 (declining to address issue of whether the particular 

deviation required a determination of unreliability). 

IV. The Burden of Proving Reliability 

Remains on the Proponent of Scientific Evidence

Appellant asserts that the Court erred in holding that if the State demonstrates 

that the testing equipment was functioning properly, the burden then shifts to the 

defendant “to establish that the evidence was otherwise unreliable,” pursuant to 

Pham v. State, 175 S.W.3d 767, 773 (Tex. Crim. App. 2005). (Slip Op. at 29-30).

In Pham the Court held that a defendant moving to suppress evidence 
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pursuant article 38.23 of the Texas Code of Criminal Procedure has the burden to 

demonstrate a causal connection between the law violation and the acquisition of 

the evidence. Id. at 773. In so doing, the Court cited two cases, both of which dealt 

with the burden of proof in a motion to suppress challenging an illegal search or 

seizure. Id., citing Mattei v. State, 455 S.W.2d 761, 766 (Tex. Crim. App. 1970); 

Russell v. State, 171 S.W.2d 7, 9 (Tex. Crim. App. 1986). There is no indication in 

Pham that the Court intended to change or shift the burden of proof in a reliability 

challenge pursuant to Texas Rule of Evidence 702. In fact, the Court of Criminal 

Appeals recently clarified that in this context “[o]nce the party opposing the 

evidence objects ... the proponent bears the burden of demonstrating its 

admissibility.” State v. Esparza, 413 S.W.3d 81, 86 (Tex. Crim. App. 2013); 

quoting E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.

1995); see also Sexton v. State, 93 S .W.3d 96, 100 (Tex. Crim. App. 2002) (“[t]he 

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”); Kelly, 824 S.W.2d 568, 573 (Tex.

Crim. App. 1992).

No other court of appeals has applied Pham to shift the burden in the context 

of a reliability challenge under Rule 702. Appellant respectfully requests that the 
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Court reconsider its disposition of Issue Four with the burden of proof remaining on 

the State, as the proponent of the scientific evidence, to demonstrate by clear and 

convincing evidence that the blood alcohol analysis was sufficiently reliable. 

Specifically, Appellant asserts that the Court misplaced the burden in requiring 

defense expert testimony that would “disprove as a matter of law Arnold’s 

testimony that the ratio of alcohol to n-Propanol would remain constant after 

increasing the temperature of the vial oven.” (Slip op. at 36). Instead, the proper 

analysis is, as argued in Appellant’s Brief, whether the State met its burden of 

demonstrating clear and convincing evidence of reliability by providing some 

objective, independent validation of the expert’s methodology beyond the expert’s 

mere assurances or bare opinions. See, e.g., Moore v. Ashland Chemical, Inc., 151 

F.3d 269, 276 (5th Cir.1998); Coble v. State, 330 S.W.3d 253, 277 (Tex. Crim. 

App. 2010); Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999). 

V. The Court’s Reliance on Henry’s Law is Misplaced.

In resolving Issue Four, the Court relied on Henry’s Law, as described by the 

State’s experts, as definitive proof that a change in the vial oven temperature would 

not affect the reliability of the instrument used to test Appellant’s blood specimen. 

The Court noted that, according to Henry’s Law, in a closed environment (such as 

the sealed vial) with a constant temperature, the volume of volatile compounds 
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(such as alcohol and n-Propanol) in a liquid will be proportional to the 

concentration of those compounds in the liquid. The Court found that, in light of 

Henry’s Law, the ratio of alcohol to n-Propanol would remain constant after 

increasing the temperature of the vial oven. (Slip Op. at 32-36). This analysis, 

however, dodges the critical issue: whether the State sufficiently demonstrated that 

this particular instrument was reliable at certain settings. 

Scientific principles such as Henry’s Law are dependent on certain variables.

As noted by the Court, “Henry’s Law is based on a fixed, constant temperature.”

Accordingly, one of the purposes of conducting a validation study on a particular 

instrument at designated parameters is to affirmatively demonstrate that the 

instrument is capable of maintaining a fixed, constant temperature at those settings.

In a perfect world in which all machines always functioned perfectly, Henry’s Law 

would play out predictably. But because performance varies from one instrument to 

another, a validation study is required to prove that the machine performs 

adequately at the defined parameters.

The Court found that “[n]othing in Culbertson’s testimony disproved as a 

matter of law Arnold’s testimony that the ratio of alcohol to n-Propanol would 

remain constant after increasing the temperatu,re of the vial oven.” (Slip Op. at 36). 

But the issue is not the validity of Henry’s Law, but rather whether the State 
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demonstrated that the instrument itself was reliable. This is not merely “a resolution 

of conflicting evidence between experts” (Slip Op. at 36), because any opinion 

regarding the accuracy of the instrument would be pure speculation in the absence 

of a validation study at designated parameters.

Appellant requests that the Court reconsider its resolution of Issue Four, with 

recognition of the fact that the application of Henry’s Law presupposes a properly 

functioning instrument. Accordingly, Henry’s Law has no relevance to the issue of 

whether the State demonstrated reliability.
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WHEREFORE, PREMISES CONSIDERED, Appellant respectfully 

requests that the Court grant rehearing.

Respectfully submitted,

/s/ Norman J. Silverman

Norman J. Silverman

T.B.C. No. 00792207

917 Franklin, 4th Floor

Houston, Texas 77002

(713) 526-1515

(713) 526-1798 (FAX)

Attorney for Appellant
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CERTIFICATE OF SERVICE

This document has been served on the following parties electronically 

through the electronic filing manager contemporaneously and in conjunction with efiling on July 13, 2015. 

Carly Dessauer

dessauer_carly@dao.hctx.net

Alan Curry

curry_alan@dao.hctx.net

/s/ Norman J. Silverman

CERTIFICATE OF COMPLIANCE

This document has been prepared with Microsoft Word 2010, and the 

sections covered by Texas Rule of Appellate Procedure 9.4 (i) (1) contain 2,763

words according to the program’s word-count function.

/s/ Norman J. Silverman