IN THE COURT OF CRIMINAL APPEALS
OF TEXAS



NO. 2053-01

 

ARTURO CHAVEZ HERNANDEZ, Appellant

v.


THE STATE OF TEXAS


ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
KLEBERG COUNTY

Johnson, J., filed a concurring opinion.

O P I N I O N



We live in a time of great expansion in the world of technology. Diagnostic machines can detect and identify more kinds and increasingly smaller amounts of chemicals. In the context of criminal justice, if the chemical in question is a controlled substance, some defendant somewhere will challenge the validity of the theory and of the process used by the machine. With this case, we move toward a process of our own for the evaluation of such challenges.

It is foreseeable, perhaps even inevitable, that one trial court will hear evidence on a new process and find it reliable and another trial court will hear the same or similar evidence and rule that the process is not reliable. When that situation arises, it will fall to the appellate courts to make a ruling that applies to all trial courts. This has long been the case; the law must be uniform for all citizens in all the courts of this state.

When that time comes, the approach described in Judge Keasler's dissent is the appropriate one. Because the law must be uniformly applied, the decision must lie with the appellate courts. Because they must make a decision, if the record does not offer sufficient data to determine whether the new process is reliable, the courts must be free to consult other sources. What if Judge A hears the testimony of Expert Z and finds the process reliable, and then Judge B hears the testimony of Expert Z and finds the process unreliable? The findings cannot both be true. It is up to the appellate courts to make the choice.

Ruling that our appellate courts are restricted to consulting the opinions of other appellate courts from other states does not really address the issue or solve the problem. If those other courts have not reviewed the literature, either in the record or on their own, de novo, they have ruled in ignorance, and to follow their conclusions would be folly. If those other courts have reviewed the literature in their effects to discern the truth, then we are relying on decisions made after reviewing the literature de novo, while forbidding the courts of this state to do that same review.

It seems far more wise to allow the appellate court, the body charged with maintaining uniformity of law, to address the issue of reliability directly. The appellate courts must be free to consult their own sources and test the strength and weakness of the evidence presented at trial. Most judges (indeed, most lawyers) have little scientific training. It is difficult to evaluate data in an area in which one is not knowledgeable; we should not hamper judges' efforts to educate themselves in their search for truth. Once the decision on reliability has been made, then, as with breath-alcohol testing and many other new processes, the question of whether the theory and process were properly applied will fall to the discretion of the trial court.

Our decision today begins the development of our own process for evaluation of scientific reliability; the first step is to create a record at trial that provides to an appellate court sufficient information on which to base a decision on reliability.

I join the opinion of the Court.



Johnson, J.



Filed: June 4, 2003

En Banc

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