concurring.
The majority opinion sustains Appellant’s argument that a portion of an expert witness’s testimony constituted inadmissible hearsay where he directly testified as to the contents of a written report of the chemist who actually tested the contraband submitted to the lab. I concur with this conclusion but write separately to state my disagreement with the majority’s interpretation of Martinez and Aguilar.
John Janczak, a drug analyst employed by the Texas Department of Public Safety Crime Lab in El Paso, qualified as an expert witness in the field of drug analysis. The following exchange occurred between the prosecutor and Janczak:
The State: Mr. Janczak, what does that report indicate as to the weight of the cocaine submitted for analysis?
Defense: I’m going to object at this time. It’s asking the witness to testify off a police report that is hearsay, sir, under Cole.[1]
The Court: Overruled.
Defense: Thank you, sir.
Mr. Janczak: 2.08 grams.
The State: And what does that report indicate as to the exact composition of that material?
Defense: Sir, at this time we need to once again object to it as being inadmissible hearsay, and this is opinion testimony as to Mr. Janczak. He didn’t actually do any of the testing. How does he know a typographical error was not done when that sheet was prepared, sir?
The Court: Overruled.
Defense: Thank you, sir.
Mr. Janczak: It contains cocaine.
Mr. Janczak was not asked to state his expert opinion regarding the nature of the substance or its weight; rather, he was directly asked what the laboratory report stated. Thus, his testimony amounts to an out-of-court statement offered for the truth of the matter asserted and falls outside of Aguilar or Martinez. While I concur with the majority opinion’s holding, *316I do not entirely agree with its interpretation of Martinez and Aguilar.
In Martinez, the expert witness utilized a written lab report to form his expert opinion that the substance was .34 grams of cocaine. Martinez, 22 S.W.3d at 507. The Court of Criminal Appeals, relying on its decision in Aguilar, held that the present opinion of a testifying witness does not constitute hearsay because it is not, and can never be, a statement “other than one made by the declarant while testifying at the trial.” Martinez, 22 S.W.3d at 508, citing Aguilar, 887 S.W.2d at 29 (quoting former TEX.R.CRIM.EVID. 801(d)). Despite the plain holding of Martinez and Aguilar that the hearsay rule is not implicated by an expert witness testifying to his present opinion, the majority opinion makes a puzzling reference to “the Aguilar exception to the hearsay rule.... ” Majority opinion at 314. The Court' of Criminal Appeals took issue with a similar statement in Martinez:
In its opinion reversing Martinez’s conviction, the court of appeals found that ‘the State necessarily failed to establish its right to rely on the hearsay exception carved out by Aguilar.[2] But [the expert witness] testified as to his present expert opinion, so his testimony was not hearsay at all. There was no need to consider whether it fell within an exception to the hearsay rule.
Martinez, 22 S.W.3d at 508. [Emphasis added].
Not only is it erroneous to refer to the “Aguilar exception to the hearsay rule” when the hearsay rule was not implicated in either case, it is misleading to the bench and bar. With these comments, I concur with the majority opinion.
. Appellant apparently based his objection on Cole v. State, 839 S.W.2d 798 (Tex.Crim.App.1990).
. Martinez v. State, 993 S.W.2d 751, 759 (Tex.App.-El Paso 1999), reversed, 22 S.W.3d 504 (Tex.Crim.App.2000).