NO. 01-13-00931- CR IN THE COURT OF APPEALS FOR THE FIRST JUDICIAL DISTRICT OF TEXAS

AT HOUSTON

MELISSA DROMGOOLE § APPELLANT § VS. § § THE STATE OF TEXAS § APPELLEE

___________________________________________________________________

APPEAL FROM CAUSE NO. 1840727 IN THE COUNTY COURT AT LAW NO. 1 OF HARRIS COUNTY, TEXAS

___________________________________________________________________

APPELLANT’S REPLY BRIEF

___________________________________________________________________

NORMAN J. SILVERMAN Texas Bar No. 00792207 917 Franklin, 4 th Floor Houston, Texas 77002 (713) 526-1515 (713) 526-1798 (FAX) lawyernorm@msn.com ATTORNEY FOR APPELLANT ACCEPTED 01-13-00931-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 1/3/2015 11:04:00 AM CHRISTOPHER PRINE

CLERK2 Contents Table of Contents

................................ ................................ ................................ ....... 2 List of Authorities

................................ ................................ ................................ ...... 3 Reply Regarding Iss ue One

................................ ................................ ........................ 6 Reply Regarding Issue Three

................................ ................................ ................... 10
A. The error was preserved

................................ ................................ ........ 10
B. Appellant’s proposed construction does not lead to absurd results; the analysis in Beeman is no long valid.

................................ .............. 13 Reply Regarding Issue Four

................................ ................................ ..................... 17
A. Standard of Review

................................ ................................ ............... 17
B. Applicable Law

................................ ................................ ...................... 18 C. The State failed to establish by clear and convincing evidence that the blood serum analysis was reliable because the method was not properly validated.

................................ ................................ ... 20
D

. The error affected Appellant’s substantial rights.

................................ . 35 Prayer

................................ ................................ ................................ ....................... 37 Certificate of Service

................................ ................................ ................................ 38 Certificate of Co mpliance

................................ ................................ ........................ 383 

### List of Authorities Cases: Beeman v. State, 86 S.W.3d 613 (Tex. Crim. App. 2002)

............................... passim Bolieu v. State , 779 S.W.2d 489 (Tex.App.

- Austin 1989, no pet.)

......................... 20
Burrow v. Arce , 997 S.W.2d 229 (Tex. 1999)

................................ ........................ 27 Coble v. State , 330 S.W.3d 253 (T ex. Crim. App. 2010)

................................ . passim Combs v. State , 6 S.W.3d 319 (Tex. App.

- Houston [14th Dist.] 1999, no pet.)

................................ ............... 20 Daubert v. Merrell Dow Pharms ., 509 U.S. 579 , 113 S.Ct . 2786, 125 L.Ed.2d 469 (1993)

............................ 17, 21 E.I. du Pont de Nemours & Co., Inc. v. Robinson , 923 S.W.2d 549 (Tex. 1995)

................................ ................................ ............ 34 Ford v. State , 305 S.W. 3d 530 (Tex.Crim.App.2009)

................................ ............ 12
Garcia v. State , 829 S.W.2d 796 (Tex. Crim. App. 1992)

................................ ...... 15 Jackson v. State , 17 S.W.3d 664 (Tex. Crim. App. 2000)

................................ ...... 17 Johnson v. State , 967 S.W.2 d 410 (Tex. Crim. App. 1998)

................................ .... 36
Jones v. State , 716 S.W.2d 142 (Tex. App.

- Austin 1986, pet. ref'd)

...................... 20 Kelly v. State , 824 S.W.2d 568 (Tex. Crim. App. 1992)

................................ ... 19, 20 King v. State , 953 S.W.2d 266 (Tex. Crim. App. 1997 )

................................ ......... 36 Lankston v. State , 827 S.W.2d 907 (Tex. Crim. App. 1992)

................................ .. 13 Martinez v. State , 17 S.W.3d 677 (Tex. Crim. App. 2000)

................................ ..... 364

Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706 (Tex. 1997)

..................... 21 Montgomery v. State , 810 S.W.2d 372 (Tex. Crim. App. 1991)

............................. 17 Moore v. Ashland Chemical, In c ., 151 F.3d 269 (5th Cir.1998)

............................. 24 Prystash v. State , 3 S.W.3d 522 (Tex. Crim. App. 1999)

................................ ....... 17 Roberts v. State, 940 S.W.2d 655 (Tex. Crim. App. 1996)

................................ ..... 15 State v. Daugherty , 931 S. W.2d 268 (Tex. Crim. App. 1996)

............................... 16 State v. Johnson , 939 S.W.2d 586 ( Tex. Cr im

. App. 1996 )

................................ .... 16 State v. Johnston , 336 S.W.3d 649 (Tex. Crim. App. 2011)

................................ . 6, 7 State v. Villarreal , No. PD

– 0306

– 14,

––– S.W.3d

–––– , 2014 WL 6734178 (Tex. Crim. App. Nov. 26, 2014)

................................ .. 14, 16 United States v. Bynum , 3 F.3d 769 (4th Ci r. 1993)

................................ ............... 20 Vela v. State , 209 S.W.3d 128 (Tex. Crim. App. 2006)

................................ .......... 17 Webb v. State , 36 S.W.3d 164 (Tex. App.

- Houston [14th Dist.] 2000, pet. ref'd)

................................ ............ 36 Wright v. State , 853 S.W.2d 154 (Tex. App.

- Corpus Christi 1993, pet. ref'd)

....... 20
Statutes, Codes and Constitutional Provisions : T EX
. R. A PP
. P. 9.4

................................ ................................ ................................ .. 38
T EX
. R. A PP
. P. 33.1

................................ ................................ ................................ . 12
T EX
. R. A PP
. P. 44.2

................................ ................................ ................................ . 365

T EX
. C ODE C RIM
. P ROC
. A NN
. art . 38.22 (West 2005)

................................ ............ 17
T EX
. C ODE C RIM
. P ROC
. A NN
. art. 38.23 (West 2005)

................................ ...... 16, 17
T EX
. R. E VID . 702

................................ ................................ ................................ ..... 17
T EX
. R

. E VID . 705

................................ ................................ ................................ .... 18
T EX
. T RANSP
. C ODE § 724.012

................................ ................................ .......... passim
T EX
. T RANSP
. C ODE § 724.013

................................ ................................ .......... passim6



### To the Honorable Justices of the Court of Appeals: Reply Regarding Issue One The State asserts that Appellant failed to meet her burden with regard to her claim t hat a blood test was unreasonable due to her medical condition, syncope. The State asserts that the law requires a defendant to explain to the police prior to the blood draw why the disclosed condition would render a blood test unreasonable (State’s Brief at 8

- 11) . This argument doe s not defeat her claim for four reasons. First, this is not the standard set out in State v. Johnston , 336 S.W.3d 649, 659 (Tex. Crim. App. 2011) , which requir es only evidence in the record verifying a medical condition which r enders a blood draw traumatic, painful, or risky . T he Court of Criminal Appeals set out the standard for disclosure as follows:

Implicit within Schmerber is that each suspect bears the burden of showing that a venipuncture blood draw is not a reasonable me ans to obtain a blood alcohol level assessment as to him or her, individually. And in the absence of any record evidence showing that a venipuncture blood draw would not be reasonable in a particular case due to a verifiable medical condition, we will pres ume that the choice to administer such a test is reasonable. A DWI suspect, naturally familiar with his or her own medical history, is in the best position to identify and disclose any peculiar medical condition that could result in risk, trauma, or more t han de minimus pain if a blood draw were to be performed. Id. at 660 (footnotes omitted). Nowhere in the Johnston opinion does the Court7

require a defendant to fully explain to the police prior to the blood draw why a disclosed condition makes a blood d raw traumatic, painful , or risky. T he standard requires the defendant, in order to overcome the presumption of reasonableness, to establish record evidence verifying that the defendan t has a medical condition th at renders a blood draw traumatic, painful, o r risky. Appellant met this burden. Second, even if the trial court found that Appellant did not fully explain the specific risk concerning blood drawing to the police, what she disclosed about her condition was enough to put the police on notice that a b lood draw should not be done without further investigation into her condition. The undisputed facts show that Appellant told Officer Nunn that she suffered from syncope, that it involved low blood pressure and fainting, and that she was suffering from an e pisode of her condition at the police station that caused her to be unable to get out of the patrol car for ten to fifteen minutes (SX4; 2RR65; 5RR81, 164; 9RR32, 79). These disclosures were sufficient to inform the police that a blood draw might result in complications, particularly in light of the fact that she was too ill to stand shortly before the blood draw. The Court in Johnston expressly entrusted law enforcement officials with the duty to be “deliberate and conscientious when choosing the type
of t est to administ er to obtain a suspect’ s blood alcohol level.” 336 S.W.3d at 660. When presented with a suspect who has identified a condition involving low blood8

pressure and fainting, and who claims to a suffering from an episode while in custody, a consc ientious officer would investigate the condition by further questioning the suspect about the condition, or by consulting a reference or medical professional, before subjecting the suspect to a forced invasive procedure. Placing an onerous burden on a susp ect who is likely nervous, possibly incapacitated by a medical condition, possibly intoxicated, and facing the coercive circumstances of being confronted by the police with a court order for a forcible blood draw , to present a full explan ation of how a par ticular medical condition may present complications i n a blood draw or to request specific accommodations , is unreasonable . This is especially the case where the police have already ignored or discounted the suspect’s claims of illness and accused her of b eing uncooperative

. Third, the evidence in this ca se shows that Officer Nunn did not believe Appellant when she disclosed her condition , so further explanation would have been futile. The State acknowledges that Officer Nunn did not believe Appellant wh en she claimed to be unable to exit the patrol car because of her syn c ope (State’s Brief at 10

- 11; 2 RR 67

- 68, 72, 73). Nunn also testified that it was his practice to disregard reported medical conditions as mere “excuses” and that he was wholly unaware of any conditions that could present complications in a blood draw (2RR28, 67, 76

- 77). Nunn continued to maintain at the suppression hearing that9

Appellant was simply being uncooperative when she told numerous officers that she was ill and unable to exit the patrol car (2RR73). Nunn was clearly unreceptive to Appellant’s attempts to apprise him of her condition, and there are apparently no police procedures in place for documenting or verifying reported medical conditions. For these reasons, placing a more on erous burden on Appellant and similarly situated defendants would serve no purpose. Finally, allowing a defendant to demonstra te how a medical condition creates the risk of pain or traum a after the blood draw does not put the State in any worse position . Regardless of whether the defendant meets her burden before the blood draw or later in a hearing, the outcome is the same

– no blood test evidence for the State. In the absence of clear language in Johnston imposing a deadline for meeting the burden to o vercome the presumption of reasonableness, this Court should n ot impose an arbitrary deadline

. The Court should find that Appellant’s disclosures to the police, in conjunction with the supporting expert testimony at the suppression hearing, were sufficien t to fulfill her burden under Johnston.10 Reply Regarding Issue Three A. The error was preserved. The State asserts that Appellant failed to preserve her claim that sections
724.012

- 724.013 of the Transportation Code do not authorize a nonconsensual blo od draw absent the aggravating circumstances listed in section 724.012 (b). The State asserts that Appellant failed to preserve the error because her motion did not mention section 724.013. Appellant sufficiently preserved her claim by referencing section 724.012. As asserted in Appellant’s motion (CR84) , section 724.012(a) states that “o n e or more specimens of a person’ s breath or blood may be taken if the person is
arrested and at the request of a peace officer having reasonabl e grounds to believe the p erson” has committed driving while intoxication or driving under the influence of alcohol by minor

. T EX
. T RANSP
. C ODE § 724.012 (a) (emphasis added). S ection 724.012(b) sets out the only circumstances when police may “require” the taking of a specimen in t

he event that “the person refuses the officer’s request to submit to the taking of a sample” :

A peace officer shall require the taking of a specimen of the p erson ’ s breath or blood under any of the following circumstances if the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft and the person refuses the officer’ s request to submit to the11 taking of a specimen voluntarily : T EX
. T RANSP
. C ODE § 724.012 (b) (emphasis added). The s ubsection then lists certain aggravating circumstances, fully laid out in the motion, in which a nonconsensual blood draw is permitted (CR84): the intoxication offense caused an accident resulting in death or serious bodily injury (724.012(b)(1)); the offe nse occurred with a child passenger in the vehicle (724.012(b)(2)); or the arrestee has been previously convicted or placed on community supervision for certain intoxication offenses under Chapter 49 of the Penal Code (724.012(b)(3))

. As asserted in the mo tion , a first

- offense DWI is “ consp icuously missing” from the exclusive list of circumstances in which police “shall require” a specimen after a refusal (CR85). The language chosen by the legislature in subsection (a)

– that a specimen “may be taken . . . at the request of a peace officer”

-- indicates that the suspect must agree to the request. In contrast, subsection (b) states that the officer “shall require” the taking of a specimen even if “ the person refuses the officer’s request ” in the limited enume rated circumstances. Section 724.013, while not cited in the motion, is redundant of the content of section 724.012 because it simply states the converse: “ E xcept as provided by Section 724.012(b), a specimen may not be taken if a person refuses to subm it to the taking of a specimen designated by a peace officer. ” Section 724.012 (b) already12

establishes the exclusive list of circumstances in which the police may “ require ” a suspect to submit to a nonconsensual test. Section 724.013 merely reemphasizes th at, except for the enumerated circumstances, a nonconsensual specimen may not be taken. Appellant’s motion also asserted that t he Court of Criminal Appeals misconstrued § 724.012 as providing an expanded ability to seize blood notwithstanding the existenc e of a warrant in Beeman v. State , 86 S.W.3d 613 (Tex. Crim. App. 2002) , and argued that section 724.012 limits the availability of nonconsensual blood seizures pursuant to warrant to those circumstances listed
in the statute (CR85

- 86)

. These arguments wer e sufficient to inform the trial court of the basis of her motion.
T o preserve error, a complaint must be “made to the trial court by a timely request, objection, or motion that ... state[s] the grounds for the ruling that the complaining party sought fro m the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.” T EX
. R. A PP
. P. 33.1(a)(1)(A). Regarding its specificity, the objection must simply be clear enough to provide the judge and the opposing party an opportunity to address and, if necessary, correct the purported error. Ford v. State , 305 S.W.3d 530, 533 (Tex.Crim.App.2009). “Straightforward communication in13

plain English will always suffice.” Lankston v. State , 827 S.W.2d 907 (Tex. Crim. App. 1992). “The standards of procedural default ... are not to be implemented by splitting hairs in the appellate courts. As regards specificity, all a party has to do to avoid the forfeiture of a complaint on appeal is t o let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.” Id . at 909. The motion clearly as serted that section 724.012(b) sets out an exclusive list of the circumstances in which police may require a nonconsensual test. Because section 724.013 simply restates the content of section 724.012, the motion adequately preserved the error.
B. Appel lant’s proposed construction does not lead to absurd results; the analysis in Beeman is no long valid. Regarding the merits of Issue Three, the State asserts that Appell ant’s proposed construction is absurd because it results in “ giving certain DWI su spects more protection than other criminal suspects,” an interpretation rejected by the Court of Criminal Appeals in Beeman v. State, 86 S.W.3d 613, 616 (Tex. Crim. App. 2002)

. Appellant asserts that the entire analysis in Beeman interpreting the implied consent scheme has been called into doubt. The Beeman Court ’s rejection of14

Appellant’s proposed interpretation was expressly premised on its finding that the purpose of section 724.012 (b) is to provide for warrantless nonconsensual blood draws : The implied consent l aw does just that

— it implies a suspect’ s consent to a search in certain instances. This is important when there is no search warrant, since it is another method of conducting a constitutionally valid search. . . . The implied c onsent law expands on the Sta te’ s search capabilities by providing a fra mework for drawing DWI suspects’ blood in the absence of a search warrant. It gives officers an additional weapon in their investigative arsenal, enabling them to draw blood in certain limited circumstances even w ithout a search warrant. Id. at 615

- 616. The Court has since invalidated its interpretation. Implied consent that has been withdrawn or revoked is not a substitute for the voluntary consent requi red by the Fourth Amendment. State v. Villarreal , No. PD

– 03 06

– 14,

––– S.W.3d

–––– , 2014 WL 6734178 at *11 (Tex. Crim. App. Nov. 26, 2014). “[T] he provisions in the Transportation Code do not, taken by themselves, form a constitutionally valid alternative to the Fourth Amendment war rant requirement.” Id

. at *20. Because a critical assumption in the Beeman Court’s analysis has been invalidated, its interpretation of the scheme as a whole is no longer reliable. Sections 724.012

– 724.013 clearly provide for different handling of certain DWI15

cases where aggravating c ircumstances are present, as opposed to first

- offense, non

aggravated DWI cases. The Beeman Court assumed that this different handling allowed warrantless nonconsensual blood testing in aggravated cases , and thus found it “absurd” to suggest that the schem e would limit the ability of an investigating officer to obtain a search warrant in non

- aggravated cases

. Now that the Court acknowledges that a warrant (or exigent circumstances) is always required for nonconsensual testing, it is not absurd to conclude t hat the scheme serves to delineate circumstances in which a nonconsensual blood draw is permitted

. It seems unlikely that the legislature enacted sections 724.012

– 724. 013 to simply define w hen police have the discretion , as opposed to a mandato ry duty , to seek a warrant , as suggested by the State (State’s Brief at 36)

. The word “warrant” does not even appear in those sections. The fact that section 724.013 is titled

“ Prohibition on Taking Specimen if Person Refuses; Exception ” does not suggest
t hat the legislature intended to reserve an unrestricted right to seek a warrant. Established rules of statutory construction generally require that, where an express exception exists in a statute, the statute must apply in all cases not excepted. Roberts v . State , 940 S.W.2d 655, 659 (Tex. Cr im

. App. 1996) ; Garcia v. State , 82916

S.W.2d 796, 800 (Tex. Crim. App. 1992). The legislature created one exception to its “prohibition”

– the enumerated circumstances in section 724.012 (b). In fact, i n Villarreal the Court acknowledged that Beeman was circumscribed in part, but noted that “[t] he holding in Beeman , that an officer may obtain a search warrant even where implied consent statutes would authorize an involuntary blood draw, remains good law. ” Id. at *20 & n .15. Notably, the Court did not reaffirm the analysis in Beeman o n the issue of whether an officer may obtain a warrant even where implied consent statutes would not authorize an involuntary blood draw, as in the instant case. Furthermore, there is nothi ng absurd in interpreting a Texas statute so as to provid e more protection than the federal constitution , parti cularly in the area of the acquisition of evidence in criminal investigations

. The Court of Criminal Appeals found that “ there is nothing logical ly absurd ” in Article 38.23 of the Texas Code of Criminal Procedure, despite that fact that it expands beyond the reach of the Fourth Amendment by providing prot ection against unlawful searches by private citizens. State v. Johnson , 939 S.W.2d 586 , 588 (Te x. Cr im

. App. 1996 )

. Texas is the only jurisdiction in the country to afford this protection. Likewise, Texas is the only state in which the legislature has provided more protection to criminal defendants by rejecting the inevitable discovery exception to the exclusionary rule. State v.17

Daugherty , 931 S. W.2d 268, 269

- 70 (Tex. Crim. App. 1996). Texas statutes provide more protection than the federal constitution provides by permitting both judge and jury to pass upon the admissibility of evidence when a cla im is made that it was obtained “in violation of the law.” T EX
. C ODE C RIM
. P ROC
. A NN
. arts. 38.22, 38.23 (West 2005). And the Texas legislature has enacted more stringent rules on the admissibility of confessions than those imposed by the federal constitut ion. T EX
. C ODE C RIM
. P ROC
. A NN
. arts. 38.22 (West 2005). In a state where the legisl ature has demonstrated a commitment to provide greater privacy rights for criminal suspects, there can be no argument that doing so is absurd.



### Reply Regarding Issue Four : The State asserts that Appellant has inadequately briefed this issue by failing to include record citations. Records citations for the facts relevant to this issue were provided in the statement of facts section titled “ Evidence Concerning the Reliabili ty of the Blood Specimen Analysis ,” but to further assist the Court, th is section of the brief is reproduced below, supplemented with records citations. A. Standard of Review An appellate court reviewing a trial court’ s ruling on the admissibility of evidence m

ust utilize an abuse of discretion standard of review. Prystash v. State , 3 S.W.3d 522, 527 (Tex. Crim. App. 1999). T he appellate court must uphold the trial18

court’ s ruling if it was within the zone of reasonable disagreement. Montgomery v.
State , 810 S.W. 2d 372, 391 (Tex. Crim. App. 1991). B. Applicable Law Before admitting expert testimony under Texas Rule of E vidence rule 702, the trial court should determine that the expert is qualified, the opinion is reliable, and the evidence is relevant. See T EX .R. E VID . 702; Vela v. State , 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); Jackson v. State , 17 S.W.3d 664, 670 (Tex. Crim. App. 2000)

. The trial court must be satisfied that three conditions are met before admitting expert testimony: (1) the witness's knowled ge, skill, experience, training, or education must qualify him as an expert on a particular subject matter; (2) the subject matter that forms the basis of a witness's testimony must be based on a valid scientific theory and on a valid technique that has be en properly applied on the occasion in question; and (3) the expert testimony will assist the factfinder in deciding the case. Vela , 209 S.W.3d at 131, 133. If the underlying facts or data do not provide a sufficient basis for the expert’ s opinion, the opi nion is inadmissible.
T EX .R. E VID . 705(c); Vela , 209 S.W.3d at 131

– 35.
In Daubert v. Merrell Dow Pharms ., 509 U.S. 579, 589

- 90, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the United States Supreme Court held that when the subject of the expert’ s testimony is “scientific knowledge,” the basis of his19

testimony must be grounded in the accepted methods and procedures of science. The Texas Court of Criminal Appeals adopted several procedural and substantive limitations upon the admission of expert scientific testi mony to ensure that unreliable expert testimony is excluded from the jury's consideration. Coble v.
State , 330 S.W.3d 253, 273 (Tex. Crim. App. 2010); Kelly v. State , 824 S.W.2d 568, 572

– 73 (Tex. Crim. App. 1992). Before scient ific evidence may be admitted , the trial court must conduct a hearing outside the presence of the jury to determine whether the proponent has established its reliability. Jackson , 17 S.W.3d at 670

. In order for scientific evidence to be reliable, “(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.” Vela , 209 S.W.3d at 133 (quoting Kelly , 824 S.W.2d at 573 ). The trial court's essential gatekeeping role is to ensure that evidence that is unreliable because it lacks a basis in sound scientific me thodology is not admitted. Id. For expert testimony to be admissible under this rule, the party offering scientific ex pert testimony must demonstrate b y clear and convincing evidence that this testimony is sufficiently reliable and relevant to assist the factfinder in reaching accurate results. Kelly , 824 S.W.2d at 572.
In Kelly , the Court of Criminal Appeals set out the following list of20

nonexclusive factors tha t a trial court can consider in determining scientific reliability: (1) the extent to which the underlying theory and technique are accepted as valid by the relevant scientific community; (2) the qualifications of the testifying expert; (3) the existence o f literature supporting or rejecting the underlying scientific theory and technique; (4) the potential error rate; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and tec hnique can be explained to the court; and (7) the experience and skill of the person who applied the technique in this case. Kelly , 824 S.W.2d at 573; Coble , 330 S.W.3d at 273 n. 40.

C. The State failed to establish by clear and convincing evidence that the blood serum analysis was reliable because the method was not properly validated. Texas and federal courts have found the gas chromatography test to be a generally reliable method for identifying compounds, and it has been generally accepted in the scientific community. See Combs v. State , 6 S.W.3d 319, 322 (Tex. App.

- Houston [14th Dist.] 1999, no pet.); Jones v. State , 716 S.W.2d 142, 147 (Tex. App.

- Austin 1986, pet. ref'd); Wright v. State , 853 S.W.2d 154, 155 (Tex. App.

- Corpus Christi 1993, pet. r ef'd); United States v. Bynum , 3 F.3d 769, 772 (4th Cir. 1993); Bolieu v. State , 779 S.W.2d 489, 490 (Tex.App.

- Austin 1989, no pet.)

. Appellant does not challenge the underlying science of gas chromatography

. The21

issue in this case is whether testimony reg arding blood serum analysis is sufficiently reliable where the validation study supporting the method was conducted under different parameters.
In Daubert , the United States Supreme Court held that “ i n order to qu alify as ‘scientific knowledge,’ an inferen ce or assertion must be derived by the scientific method.” 509 U.S. 579, 589

- 90, 113 S.Ct. 2786

. “Proposed testimony must be supported by appropriate validation.” Id., 509 U.S. at 590

. Expert testimony is unreliable if it is based on unreliable data, or if the expert draws conclusions from his underlying data “based on flawed methodology.” Merrell Dow Pharms., Inc. v.
Havner , 953 S.W.2d 706, 714 (Tex. 1997). The following facts are not in dispute. The internal ope rating standards of the
HPD Cr ime L ab and th e standards of its accrediting agency require a method to be properly validated before the method is used for analysis of forensic evidence (6RR129; 7RR14; 19

- 20, 61)

. A validation study was conduct ed several months prior to the analysis of Appellant’s spe cimen (7RR14) . The validation study was necessary after the crime lab replaced the capillary columns of the headspace chromatograph (7RR108

- 109, 140; 8RR159

- 160) . T he purpose of a validation study i s to demonstrate that a particular instrument at specific parameters will produce scientifically reliable results (7RR172

- 73)

. Accordingly, p arameters may22

be manipulated while a method is being developed but should remain fixed during the validation study (8RR172

- 173). HPD Criminalist Laura Mayor, who conducted t he validation study and the analysis of Appellant’s specimen, acknowledged that the bulk of the study, comprising all of the critical components of the study, was conducted with the vial
oven set at 60 degrees Celsius (6RR131; 7RR26

- 37, 57

- 59; DX20). This parameter was changed to 70 degrees on the fourth and final day of the study, where it remained for subsequent forensic casework , including the analysis of Appellant’s sample (DX20; DX21; 6RR131; 7RR26

- 37, 58)

. The validation report stated that the study w as con ducted at the 70

- degree setting, even though t he portions of the study conducted at 60 degrees were not subsequently repeated after the change to 70 degrees (DX20; DX21)

. Defense expert Amanda Culbertson testified that industry standards do not allo w changing parameters without revalidation; accordingly, the method was not validated and the results were not valid or reliable (7RR158, 166, 176

- 177) . At issue is whether the State nevertheless established by clear and convincing evidence that revalidati on was not necessary and that the method used to analyze Appellant’s specimen was reliable

. This issue will be analyzed in light of the Kelly factors relevant to this inquiry

.23

(1) The extent to which the underlying theory and technique are accepted as vali d by the relevant scientific community.
T he science underlying headspace gas chromatography is generally accepted as valid in the scientific community . But the State failed to establis h any general acceptance of the the practice of analyzing forensic evid ence while deviating from validated parameters. N one of the State’s experts were able to identify any study, reference , or authority that sanctioned deviating from validated parameters in forensic analysis (7RR91; 8RR129

- 130) ; in fact, both Mayor and Arnol d testified that parameters should remain fixed during method validation and all forensic analysis conducted pursuant to that method (6RR148

- 49; 8RR172

- 73)

. None of the State’s experts were able to identify any accepted or established criteria, standards, or principles governing whether a change in parameters necessitates revalidation. For example, the State presented no evidence of any general acceptance of Arnold’s opinion that revalidation is not necessary in the absence of empirical data indicating tha t a parameter change impacted the instrument’s performance. Moreover, the State’s experts each relied solely upon the results produced by the instrument from analysis performed after and independent of the validation study as demonstrating the reliability and accuracy of the instrument at the 70

- degree setting. Neither Mayor nor Arnold presented any evidence indicating general24

acceptance of the practice of relying on post

- validation analysis of controls and calibrators, in lieu of a proper validation, to d emonstrate the reliability of an instrument or method. “[T] he party seeking to have the district court admit expert testimony m ust demonstrate that the expert ’ s findings and conclusions are based on the scientific method, and, therefore, are reliable. ” Mo ore v. Ashland Chemical, Inc ., 151 F.3d 269, 276 (5th Cir.1998)

. “ This requires some objective, independent validation of the expert ’ s methodology. The expert ’ s assurances that he has utilized generally accepted scientific methodology is insufficient.” Id. In the field of gas chromatography, the scientific method requires a properly conducted, fully documented validation study , as set forth in the internal operating standards of the HPD Crime Lab and the standards of its accrediting agency (7RR20

- 21; 8RR158

- 59) . But the State presented only the experts’ assurances that the deviation from the validated parameters did not affect the reliability of the forensic analysis. Lab Assistant Director Arnold testified that method deviation required documentation and su pervisor clearance, but also testified that an analyst has discretion to determine whether a particular deviation required clearance and documentation (8RR149) . Criminal ist Mayor testified that she “must have had permission ” to change the parameter (7RR53) , but there was no evidence that the change had been25

documented (7RR145

- 146) . The State failed to demonstrate that anything other than standardless discretion governed the lab’s practice of deviating from reported validation parameters. “[U] nder the regime of Daubert a district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist.” Coble v. State , 330 S.W.3d 253, 277 (Tex. Crim. Ap p. 2010), quoting Rosen v. Ciba

– Geigy Corp ., 78 F.3d 316, 318 (7th Cir. 1996). Because the State’s experts failed to identify any source demonstrating general acceptance of or any governing criteria for deviation from validated parameters, their opinions a mount to unscientific speculation and do not meet the clear and convincing standard of reliability

. There was no evidence showing any general acceptance of the practice of changing parameters without revalidation so as to contradict the defense expert’s testimony that this practice violated industry standard.

(2 ) T he existence of literature supporting or rejecting the underlying scientific theory and technique . None of the State’s expert witnesses id entified any books, articles, or journals tha t shed any light on the propriety of changing parameters without revalidation . No objective source material was identified that would authorize deviations from validated parameters in casework analysis . No objective source26

material was identified that would estab lish criteria for determining whether a parameter change required revalidation . No objective source material was identified that would authoriz e the use of calibrators and controls, in lieu of proper validation, to demonstrate the instrument’s reliability

. The State presented no evidence of any literature supporting Arnold’s opinion that revalidation is not necessary in the absence of empirical data indicating that a parameter change impacted the instrument’s performance. According to the HPD Quality Assura nce Manual, all technical procedures must be properly validated (8RR158

- 59) ; deviations from methods must be justified and documented (8RR149) ; and use of non

- standard methods must be approved by a supervisor (8RR149) . Yet Mayor could not recall the circum stances of the temperature change , and neither Mayor nor Arnold could identify documentation showing justification or supervisor approval for the change (7RR53)

. Thus, the lab’s practices departed from the standards described in the one and only published resource brought to the court’s attention with regard to method deviation.

(3) The qualifications of the testifying experts. Criminalist Mayor earned a bachelor’s degree in forensic chemistry and a master’s degree forensic science, and had two years’ expe rience analyzing blood samples in the HPD Crime Lab (6RR73

- 74)

. But the evidence showed that the27

questionable validation study was the first she had conducted (7RR21) , and her testimony demonstrated many gaps in her knowledge of the subject matter. Mayor

a dmitted that she did not know whether the lab’s accrediting agency permitted any deviation from validated parameters in analyzing forensic evidence (7RR90) ; whether there were any studies or theories permitting deviation from validated parameters (7RR91; 8 RR129

- 30) ; and whether every volatile would respond similarly to an increase in temperature (7RR74)

. Assistant Director Arnold’s educational background was not specific to forensic science but included bachelor’s degrees in biology, biochemistry, and
medi cal technology (7RR105)

. Arnold had almost 20 years’ experience working in crime laboratories and served as an auditor for a laboratory accrediting board. 1 Despite these qualifications and credentials, Arnold was unable to identify any independent objecti ve source material establishing stan dards or criteria for evaluating whether a parameter change required revalidation. “Although expert opinion testimony often provides valuable evidence in a case, ‘it is the basis of the witness’ s opinion, and not the wit ness ’ s qualifications or his bare opinions alone, that can settle an issue as a matter of law; a claim will not stand or fall on the mere ipse dixi t of a credentialed witness.’” Burrow v. Arce , 997 S.W.2d 229, 235 (Tex.

1 8RR138

- 140.28

1999). Arnold’s assurances that the deviation did not affect th e reliability of the analysis are mere ipse dixit, unsupported by any objective, independent basis. (4 ) T he potential error rate . None of the State’s expert witnesses was able to identify or quantify the effect of a 60

- to

- 70

- de gree vial oven temperature change on the instrument’s performance. Mayor acknowledged that the increase in temperature increased the instrument’s sensitivity, resulting in nearly double area counts for volatiles (7RR66

- 70) , but she did not know if every vo latile would respond similarly to a tem perature increase (7RR74) . Mayor admitt ed that the temperature change could affect the instrument’s performance with regard to the limit of detection (7RR95)

. Arnold testified that, based simply upon his experience, he would not expect the temperature change to have any impact on analytical results (8RR147)

. But this opinion was not substantiated by any reference or independent, objective source, and did not rise to the level of estab lishing a demonstrable error rate. (5 ) T he availability of other experts to t est and evaluate the technique. The State presented no evidence that other experts were available to evaluate the practice challenged here, conducting forensic analy sis at a 70

- degree vial oven temperature whe n the essential components of the validation study were conducted
at a 60

- degree setting . It would seem that t his practice cannot be adequately tested29

and evaluated b y other experts because a validation study is specific to a particular instrument. The Sta te’s experts acknowledged that each headspace gas
chr omatograph performs differently and that the purpose of a validation study i s to demonstrate that a particular instrument performs reliably at specific parameters (7RR13, 110 ) . Accordingly, access to the specific instrument is necessary to reliably test and evaluate the practice of deviating from certain parameters. Moreover, Arnold testified that the use of fixed parameters is necessary so that other sci entists can replicate scientific work (8RR173)

. T his principle , a cornerstone of the scientific method, is wholly incompatible with the la b’s practices of reporting certain fixed parameters in validation study documentation when different parameters were used for the critica l parts of the study, and allo wing analysts standardless discretion to deviate from validated parameters in conducting forensic analysis.

(6) T he clarity with which the underlying scientific theory and technique can be explained to the court . The testimony of State’s experts was rife with contradiction regarding the propriety of changing parameter s without revalidation. Both experts acknowledged that the standards of the lab and its accrediting agency required all forensic analysis to be conducted in accordance with validated

m ethods (7RR20

- 21; 8RR158

- 59)

. Mayor testified that no test results may be30

reported without a validated method in place (6RR129; 7RR14, 19

- 20, 61) . Mayor testified that the use of calibrators and controls in conjunction with forensic analysis was not a subs titute for proper method validation (7RR62) . Yet both Mayor and Arnold relied solely on the instrument’s r esults from runs conducted subsequent to and independent of the validation study to demonstrate the instrument’s reliability
at the un validated 70

- deg ree setting. The evidence showed that the critical components of the validation study

– linearity, precision, limit of detection, and limit of quantification

-- were conducted at the 60

- degree setting (7RR57

- 59) . Only on the fourth and final day of the st udy was the temperature changed to 70 degrees (6RR131; 7RR26

- 37, 58, DX20) . The only portion of the study c onducted at 70 degrees was a non - essential component recently added to the validation template to demonstrate that the presence of other volatiles wo uld not interfere with the quantification of ethanol (7RR58, 115

- 16)

. Mayor and Arnold testified that linearity is established by running a calibration curve, and that linearity must be established before any other validation criteria may be studied (7RR 26

- 29; 114 ) . But no calibrators were run on the fourth day of the study at the 70

- degree setti ng (8RR92) , and no study components were conducted
at 70 degrees to demonstrate precision, limit of detection, or limit of quantification (7RR57

- 59)

. The State pres ented no evidence showing proper validation of the31

method at 70 degrees. Accordingly, the State’s experts were forced to resort to a n ad hoc review of the results produced by the instrument during subsequent forensic casework to assess whether the paramet er change had impacted the instrument’s performance. Arnold testified that the method “has proven itself in the course of the year that it was in place.” 2 Defense expert Amanda Culbertson explained the fallacy of this notion : validation is a condition pre cedent to ex pressing the results of any control or sample; o therwise, there would be no need for validation studies (7RR156, 168)

. Neither Mayor nor Arnold provided a coherent explanation of the purpose of a validation study if the reliability of the inst r ument can be demonstrat ed solely through the use of calibrators and controls in conjunction with forensic analysis. Both Arnold and Mayor agreed that parameters may be manipulated during method development but should remain fixed for the duration of the validation study (6RR148

- 49; 8RR158

- 59)

. Accordingly, the first page of the validation report identified the specific parameters purported to have be en validated by the study (DX20)

. Arnold’s opinion that r eliability may be assumed in the absence of empiri cal evidence of any impact caused by the deviation (7RR135; 150) is irreconcilable with the industry’s requirement that reliability must be affirmatively

2 8RR150.32

demonstrated at fixed parameters by a validation study

. Mayor testified that volatiles would respond proportionately to a temperature increase, but later testified that she did not know whether every volatile would respond similarly to an increase in temperature (7RR59

- 60, 68

- 69, 74)

. Neither Mayor nor Arnold explained with sufficient clarity why a spe cific vial oven temperature was included among the fixed parameters in the study report
if the temperature setting was irrelevant to the instrument’s p erformance and identical results could be obtained at a range of temperatures. Arnold acknowledg ed that a 10

- degree vial oven temperature change would constitute an “ analytical change, ” and also testified that an y analytical change would require revalidation (7RR145

- 46) . Yet Arnold testified that revalidation was not necessary in the absence of empir ical data showing that the deviation impacted analytical results (7RR135, 150)

. Neither Arnold nor Mayor sufficiently explained the distinction between a

“ significant ” or “substantial” parameter change that would necessitate revalidation , versus an insig nificant change that would not. Neither offered any criteria governing an analyst’s discretion to deviate from validated parameters. Neither offered any standards governing whether a deviation required supervisor approval and documentation.33

In sum, the t estimony of the State’s witnesses p rovided few, if any, definitive

answers regarding the practice of deviating from validated parameters . The only substance that may be distilled from the oblique testimony of the State’s expert s is that a proper validation study is required , except when it is not; a validation study
must be conducted at fixed parameters but some times parameters may be changed; the use of calibrators and controls in conjunction with forensic analysis is not a substitute for proper validation , except when it is; and a parameter change requir es justification and documentation , except when it does not. This vacillation and self

contra di ction cannot supply clear and convincing evidence that a scientific technique is sound. A n intelligible explana tion, at the very least, is required where a crime lab is found to have made a false or inaccurate entry in its method validation documentation in conjunction with an apparent deviation from its own internal operating procedures and the standards of its ac crediting agency. The lab employees’ assurances that the forensic analysis wa s nevertheless reliable are nothing more than ipse dixit. I t might seem like common sense that method parameters may be changed as long as there is no evidence of any impact, bu t common sense is no substitute for the scientific method in hard science fields such as analytical chemistry. An expert’ s assurances that he has utilized generally accepted scientific methodology are insufficient in the absence of objective,34

independent v alidation o f the expert’ s methodology. “Scientific evidence which is not grounded ‘in the methods and procedures of science’ is no more than ‘subjective bel ief or unsupported speculation.’” Coble, at 280, quoting E.I. du Pont de Nemours & Co., Inc. v. Robi nson , 923 S.W.2d 549, 557 (Tex. 1995)

. In Coble, the Court of Criminal Appeals evaluated the reliability of the testimony of a forensic psychiatrist , Dr. Coons, on the issue of future dangerousness in a capital murder trial. The Court found that the Dr. Coons was a genuine forensic psychiatrist with ample qualifications, but that his methods were not supported by any objective source such as books, journals, or articles. 330 S.W. 3d at 277. Without any independen t validation of his methods, Dr. Coons’ tes timony was mere ipse dixit. Id. His reliance upon common

- sense factors in his analysis was no substitute for showing that the method was generally accepted and empirically validated by other scientists. Id. The Court concluded that Dr. Coons’ testimony did not meet the clear and convincing standard for reliability, even under the more flexible standards for “soft sciences,” and that the trial court abused its discretion in admitting it. The same deficiencies are present here. None of the State’s experts id entified any independent, objective source supporting their assurances that the parameter deviation did not require revalidation. This deficiency alone renders their testimony35

unreliable. But there are other problems as well. The experts offered no satisfy ing explanation for errors/ inaccuracies in the validation documentation. The experts failed to identify any standards governing an analyst’s discretion to deviate from validated methods. This standardless discretion is no dif ferent from the “idiosyncratic” method employed by Dr. Coons in Coble. 330 S.W. 3d at 277. If this type of unsupported methodology is inadequate in soft sciences, it certainly has no place in hard science fields such as forensic chemistry. More importan tly, the expert s ’ reliance on no n - validated results to demonstrat e the instrument’s reliability is wholly irreconcilable with the principle that a validated method is a condition precedent to expressing results of any kind. If the testimony is this case is sufficiently reliable, then the industry

- standard requirements of validation and maintaining validation documentation are nothing but mere formalities which may be disregarded as long as a lab employee testifies that a method “has prove n itself” by virtue of casework analysis. Accordi ngly, t he State failed to demonstrate by clear and convincing evidence the reliability of the technique applied as required for a hard science , particularly one dependent upon the proper functioning of complex instruments

. The trial court a

bused its discre tion in admitting the expert testimony concerning that blood specimen analysis.36 D . The error affected Appellant’s substantial rights.
T he harm standard for non

- constitutional error i s found in Texas Rule of Appellate Procedure 44.2(b)

. Martinez v. State , 17 S.W.3d 677, 692 (Tex. Crim. App. 2000). A substantial right is affected, requiring reversal pursuant to Rule 44.2(b), when the error had a substantial and injurious effect or influence on the jury’ s verdict. King v. State , 953 S.W.2d 266, 271 (Tex. Cr im. App. 1997). If the error had no influence or only a slight influence on the verdict, it is harmless. Johnson v. State , 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). If it is unclear whether th e error affected the outcome, the court should treat it as har mful. Webb v.
State , 36 S.W.3d 164, 182 (Tex. App.

- Houston [14th Dist.] 2000, pet. ref'd). The blood specimen analysis testimony likely had a substantial effect on the jury’s verdict. The jury was instructed on the per se theory of intoxication based on

a lcohol concentration of 0.08 or more (CR115)

. During deliberations, the jury specifically requested the “chomatographs” as well as the video of the blood draw. 3 Additionally, t he other evidence of intoxication, Appellant’s performance on the field sobriety tests, was called into question in light of Appellant’s chronic medical condition, syncope. The evidence is undisputed that Appellant reported suffering from an episode of this condition while in police custody, shortly after she had

3 CR119.37

performed the sobriet y tests, to the extent that she was unable to move or stand up (2RR65; 5RR81, 164; 9RR32, 79) . Appellant’s physician testified that Appellant’s lack of balance depicted on the scene video resembled a syncope episode because her balance suffered after a cha nge of position and improved after time to equilibrate (2RR122)

. In light of the plausible innocent explanation for Appellant’s performance on the sobriety tests, the expert testimony that Appe llant’s BAC was substantially above the legal limit had more th an a slight influence on the verdict, and Appellant’s conviction must be reversed.
PRAYER Appellant respectfully req uests that the Court reverse her conviction and remand for a new trial

. Respectfully submitted ,
/s/ NORMAN J. SILVERMAN Texas Bar N o. 00792207 917 Franklin, 4 th Floor Houston, Texas 77002 (713) 526
- 1515 (71 3) 526
- 1798 (FAX) lawyernorm@msn.com ATTORNEY FOR APPELLANT38 CERTIFICATE OF SERVICE

T his docume nt has been electronically served on the following parties contemporaneously and in conjun ction with e

- filing on January 5, 2015

. CARLY DESSAUER Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 755

- 5826 dessauer_carly@dao.hctx.net curry_alan@dao.hctx.net

________________________________ _________________________________ /s/ N orman J. Silverman

CERTIFICATE OF COMPLIANCE This document has been prepare d with Microsoft Word 2010 , and the sections covered by Texas Rule of Appellate Procedure 9.4(i)(1) co ntain 6,989 words according to the program’s word

- count function.

/ s/ Norman J. Silverma n