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, 4th 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

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 1/5/2015 8:00:00 AM CHRISTOPHER A. PRINE Clerk
2

Contents 

Table of Contents.......................................................................................................2

List of Authorities ......................................................................................................3

Reply Regarding Issue 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 Compliance ........................................................................................38
3

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 (Tex. 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.2d 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) .....................................36
4

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, Inc., 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. Crim. 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 Cir. 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:

TEX. R. APP. P. 9.4 ..................................................................................................38

TEX. R. APP. P. 33.1 .................................................................................................12

TEX. R. APP. P. 44.2 .................................................................................................36
5

TEX. CODE CRIM. PROC. ANN. art. 38.22 (West 2005) ............................................17

TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005) ......................................16, 17

TEX. R. EVID. 702.....................................................................................................17

TEX. R. EVID. 705 ....................................................................................................18

TEX. TRANSP. CODE § 724.012..........................................................................passim

TEX. TRANSP. CODE § 724.013..........................................................................passim
6

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 that 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 does 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 requires only evidence in the record verifying a 

medical condition which renders a blood draw traumatic, painful, or risky. The 

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 means 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 presume 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 than de minimus pain if a 

blood draw were to be performed. 

Id. at 660 (footnotes omitted). Nowhere in the Johnston opinion does the Court 
7

require a defendant to fully explain to the police prior to the blood draw why a 

disclosed condition makes a blood draw traumatic, painful, or risky. The standard 

requires the defendant, in order to overcome the presumption of reasonableness, to 

establish record evidence verifying that the defendant has a medical condition that 

renders a blood draw traumatic, painful, or 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 blood 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 episode 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 test to administer 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 blood 
8

pressure and fainting, and who claims to a suffering from an episode while in 

custody, a conscientious 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 suspect 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 explanation of how a particular medical condition may present

complications in 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 being uncooperative. 

Third, the evidence in this case 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 

when she claimed to be unable to exit the patrol car because of her syncope (State’s 

Brief at 10-11; 2 RR67-68, 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 that 
9

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 onerous burden on Appellant and 

similarly situated defendants would serve no purpose. 

Finally, allowing a defendant to demonstrate how a medical condition creates 

the risk of pain or trauma 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 overcome the presumption of reasonableness, this Court should not 

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 

sufficient 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 

blood 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 “one 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 reasonable grounds to believe 

the person” has committed driving while intoxication or driving under the influence 

of alcohol by minor. TEX. TRANSP. CODE § 724.012 (a) (emphasis added). Section 

724.012(b) sets out the only circumstances when police may “require” the taking of 

a specimen in the 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 person’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 the 
11

taking of a specimen voluntarily:

TEX. TRANSP. CODE § 724.012 (b) (emphasis added). The subsection 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 offense 

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 motion, a first-offense DWI is “conspicuously 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 enumerated 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: “Except as provided by 

Section 724.012(b), a specimen may not be taken if a person refuses to submit to 

the taking of a specimen designated by a peace officer.” Section 724.012 (b) already
12

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

that, except for the enumerated circumstances, a nonconsensual specimen may not 

be taken.

Appellant’s motion also asserted that the Court of Criminal Appeals 

misconstrued § 724.012 as providing an expanded ability to seize blood 

notwithstanding the existence 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 were sufficient to inform the trial court 

of the basis of her motion.

To 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 from the trial court with sufficient specificity to make the 

trial court aware of the complaint, unless the specific grounds were apparent from 

the context.” TEX. R. APP. 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 in 
13

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 to 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 asserted 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. Appellant’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 Appellant’s 

proposed construction is absurd because it results in “giving certain DWI suspects 

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 of 
14

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 law 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 consent law expands on the 

State’s search capabilities by providing a framework 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 without 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 

required by the Fourth Amendment. State v. Villarreal, No. PD–0306–14, –––

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 warrant 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 DWI 
15

cases where aggravating circumstances are present, as opposed to first-offense, nonaggravated 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 scheme 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 that 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 when police have the discretion, as opposed to a mandatory 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 

that 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. Crim. App. 1996); Garcia v. State, 829 
16

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, in 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 on 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 nothing absurd in interpreting a Texas statute so as to 

provide more protection than the federal constitution, particularly in the area of the 

acquisition of evidence in criminal investigations. The Court of Criminal Appeals 

found that “there is nothing logically 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 protection against unlawful searches by private citizens. 

State v. Johnson, 939 S.W.2d 586, 588 (Tex. Crim. 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 claim is made that 

it was obtained “in violation of the law.” TEX. CODE CRIM. PROC. ANN. 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 constitution. TEX.

CODE CRIM. PROC. ANN. arts. 38.22 (West 2005). In a state where the legislature 

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 

Reliability of the Blood Specimen Analysis,” but to further assist the Court, this 

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 must utilize an abuse of discretion standard of review. Prystash v. State, 3 

S.W.3d 522, 527 (Tex. Crim. App. 1999). The appellate court must uphold the trial 
18

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 Evidence rule 702, 

the trial court should determine that the expert is qualified, the opinion is reliable, 

and the evidence is relevant. See TEX.R. EVID. 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 knowledge, 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 been 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 opinion is inadmissible.

TEX.R. EVID. 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 his 
19

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 testimony 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 scientific 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 methodology is not admitted. Id. For expert testimony to be admissible 

under this rule, the party offering scientific expert testimony must demonstrate by 

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 of 
20

nonexclusive factors that 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 of 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 technique 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. ref'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. The 
21

issue in this case is whether testimony regarding 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 “in order to qualify as 

‘scientific knowledge,’ an inference 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 operating standards of the 

HPD Crime Lab and the 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 conducted several months 

prior to the analysis of Appellant’s specimen (7RR14). The validation study was 

necessary after the crime lab replaced the capillary columns of the headspace 

chromatograph (7RR108-109, 140; 8RR159-160). The purpose of a validation 

study is to demonstrate that a particular instrument at specific parameters will 

produce scientifically reliable results (7RR172-73). Accordingly, parameters may 
22

be manipulated while a method is being developed but should remain fixed during 

the validation study (8RR172-173).

HPD Criminalist Laura Mayor, who conducted the 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 was conducted at the 70-degree setting, even though the 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 

allow 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 revalidation 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 valid by the relevant scientific community.

The science underlying headspace gas chromatography is generally accepted 

as valid in the scientific community. But the State failed to establish any general 

acceptance of the the practice of analyzing forensic evidence while deviating from 

validated parameters. None 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 Arnold 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 that 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 general 
24

acceptance of the practice of relying on post-validation analysis of controls and 

calibrators, in lieu of a proper validation, to demonstrate the reliability of an 

instrument or method. 

“[T]he party seeking to have the district court admit expert testimony must 

demonstrate that the expert’s findings and conclusions are based on the scientific 

method, and, therefore, are reliable.” Moore 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 supervisor clearance, but also testified that an analyst has discretion to 

determine whether a particular deviation required clearance and documentation

(8RR149). Criminalist Mayor testified that she “must have had permission” to 

change the parameter (7RR53), but there was no evidence that the change had been 
25

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. App. 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 amount 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) The existence of literature supporting or rejecting 

the underlying scientific theory and technique.

None of the State’s expert witnesses identified any books, articles, or 

journals that 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 source 
26

material was identified that would establish criteria for determining whether a 

parameter change required revalidation. No objective source material was identified 

that would authorize 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 Assurance 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 circumstances 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’ experience analyzing blood 

samples in the HPD Crime Lab (6RR73-74). But the evidence showed that the 
27

questionable validation study was the first she had conducted (7RR21), and her 

testimony demonstrated many gaps in her knowledge of the subject matter. Mayor 

admitted 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; 8RR129-30); 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 

medical 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 objective source material establishing standards 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 witness’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 dixit 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 the reliability of the 

analysis are mere ipse dixit, unsupported by any objective, independent basis.

(4) The potential error rate.

None of the State’s expert witnesses was able to identify or quantify the 

effect of a 60-to-70-degree 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 volatile would respond similarly to a temperature 

increase (7RR74). Mayor admitted 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 establishing a demonstrable error rate.

(5) The availability of other experts to test and evaluate the technique.

The State presented no evidence that other experts were available to evaluate 

the practice challenged here, conducting forensic analysis at a 70-degree vial oven 

temperature when the essential components of the validation study were conducted 

at a 60-degree setting. It would seem that this practice cannot be adequately tested 
29

and evaluated by other experts because a validation study is specific to a particular 

instrument. The State’s experts acknowledged that each headspace gas 

chromatograph performs differently and that the purpose of a validation study is 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 scientists can replicate scientific work (8RR173). This principle, a 

cornerstone of the scientific method, is wholly incompatible with the lab’s practices 

of reporting certain fixed parameters in validation study documentation when 

different parameters were used for the critical parts of the study, and allowing

analysts standardless discretion to deviate from validated parameters in conducting 

forensic analysis. 

(6) The 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 parameters 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 

methods (7RR20-21; 8RR158-59). Mayor testified that no test results may be 
30

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 substitute for proper method validation (7RR62). Yet both Mayor and 

Arnold relied solely on the instrument’s results from runs conducted subsequent to

and independent of the validation study to demonstrate the instrument’s reliability 

at the unvalidated 70-degree 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 study 

was the temperature changed to 70 degrees (6RR131; 7RR26-37, 58, DX20). The 

only portion of the study conducted at 70 degrees was a non-essential component 

recently added to the validation template to demonstrate that the presence of other 

volatiles would 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 (7RR26-29; 114). But no calibrators were run on the fourth day of the 

study at the 70-degree setting (8RR92), and no study components were conducted

at 70 degrees to demonstrate precision, limit of detection, or limit of quantification

(7RR57-59). The State presented no evidence showing proper validation of the 
31

method at 70 degrees.

Accordingly, the State’s experts were forced to resort to an ad hoc review of 

the results produced by the instrument during subsequent forensic casework to 

assess whether the parameter 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 precedent to expressing the results of any control 

or sample; otherwise, 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 instrument can be demonstrated 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 been validated by the study

(DX20). Arnold’s opinion that reliability may be assumed in the absence of 

empirical 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 specific 

vial oven temperature was included among the fixed parameters in the study report 

if the temperature setting was irrelevant to the instrument’s performance and 

identical results could be obtained at a range of temperatures. 

Arnold acknowledged that a 10-degree vial oven temperature change would 

constitute an “analytical change,” and also testified that any analytical change 

would require revalidation (7RR145-46). Yet Arnold testified that revalidation was 

not necessary in the absence of empirical 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 insignificant 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 testimony of the State’s witnesses provided 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 experts is

that a proper validation study is required, except when it is not; a validation study 

must be conducted at fixed parameters but sometimes 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 requires

justification and documentation, except when it does not. This vacillation and selfcontradiction cannot supply clear and convincing evidence that a scientific 

technique is sound. An intelligible explanation, 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 accrediting agency. 

The lab employees’ assurances that the forensic analysis was nevertheless 

reliable are nothing more than ipse dixit. It might seem like common sense that 

method parameters may be changed as long as there is no evidence of any impact, 

but 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 validation of the expert’s methodology. “Scientific evidence which is 

not grounded ‘in the methods and procedures of science’ is no more than 

‘subjective belief or unsupported speculation.’” Coble, at 280, quoting E.I. du Pont 

de Nemours & Co., Inc. v. Robinson, 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 independent validation of his methods, Dr. Coons’ testimony 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 identified 

any independent, objective source supporting their assurances that the parameter 

deviation did not require revalidation. This deficiency alone renders their testimony 
35

unreliable. But there are other problems as well. The experts offered no satisfying 

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 different 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 importantly, the experts’ reliance on non-validated results to 

demonstrate 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 proven itself” by virtue of casework analysis.

Accordingly, the 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 abused its discretion in admitting the expert testimony concerning 

that blood specimen analysis. 
36

D. The error affected Appellant’s substantial rights.

The harm standard for non-constitutional error is 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. Crim. 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 the error affected the outcome, the court should treat it as harmful. 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 

alcohol 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, the 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 sobriety 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 change 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 Appellant’s BAC was 

substantially above the legal limit had more than a slight influence on the verdict, 

and Appellant’s conviction must be reversed. 

PRAYER

Appellant respectfully requests that the Court reverse her conviction and 

remand for a new trial.

Respectfully submitted,

/s/ NORMAN J. SILVERMAN 

Texas Bar No. 00792207 

917 Franklin, 4th Floor 

Houston, Texas 77002 

(713) 526-1515 

(713) 526-1798 (FAX)

lawyernorm@msn.com

ATTORNEY FOR APPELLANT
38

CERTIFICATE OF SERVICE

This document has been electronically served on the following parties

contemporaneously and in conjunction 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/ 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 6,989

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

/s/ Norman J. Silverman