Pena v. State

*248ANN CRAWFORD McCLURE, J„

Concurring.

The record shows that Appellant waived his complaint about the AIMS device and the measurements derived from it. Therefore, I disagree with the majority’s conclusion that the trial court abused its discretion by admitting this particularly testimony. Alternatively, I would find that the State is not required to prove the scientific principles pertaining to the AIMS device in order for an expert to rely on measurements taken with the device. While I agree with the majority’s holding that the State failed to carry its burden under Kelly with respect to Cisneros’ expert opinion as to the pre-impact speed of Appellant’s vehicle, I write separately to discuss the effect of Hernandez v. State, 116 S.W.3d 26 (Tex.Crim.App.2003) on an appellate court’s review of this issue. Because the majority opinion ultimately concludes that the errors in admitting the expert testimony is harmless, I concur.

Cisneros utilized two formulas in estimating the speed at which Appellant’s car was traveling at the time of impact: the skid speed formula and the linear momentum in-line collision formula. These formulas are used not only by the Texas Department of Public Safety but also internationally by other law enforcement agencies and they were taught to Cisneros at the accident investigation and accident reconstruction courses he attended as part of his training. Pursuant to his training, Cisneros gathered data relevant to the following formula components:

1. weight of the vehicles;
2. the coefficient of friction or drag factor; and
3. the post-impact distances of the vehicles.

Cisneros obtained the weight of the vehicles involved in the accident from the Department of Motor Vehicles. The drag factor pertains to the friction of the roadway and Cisneros obtained this figure by utilizing a drag sled to find a coefficient of friction for the particular road involved in the accident. For the third factor, Cisne-ros utilized the AIMS device to measure the distances traveled by the two vehicles after impact. A diagram prepared by Cisneros (State’s Exhibit 10) shows that Appellant’s vehicle traveled 413 feet from the point of impact to its résting place. There were no pre-impact skid marks because Appellant’s vehicle did not skid prior to striking the complainants’ car. Consequently, Cisneros utilized the skid speed formula to determine only a post-impact speed for each vehicle involved in the accident.

As explained by Cisneros, the skid speed formula- involves multiplying distance by a constant of thirty by the square root of the roadway drag factor. Cisneros determined that the complainants’ Honda went from 0 miles per hour to a post-impact speed of 28 miles per hour. Cisneros was not asked to state the post-impact speed he determined for the Corvette but he included the figure in a written expert’s report filed in the case.1 With the post-impact speeds determined by the skid speed formula, Cisneros then applied the weights of the vehicles in the linear momentum in-line collision formula in order to obtain the speed of the initial impacting vehicle. Based on this formula, Cisneros estimated that Appellant’s Corvette was traveling 104 miles per hour at the point of impact. Cisneros explained the components of the skid speed formula but was not asked to explain the linear momentum in-line collision formula.

*249 Waiver of Complaint About Measurements

The majority has failed to consider that Appellant waived any complaint about Cisneros’ use of the AIMS device to obtain the measurements used in the speed calculation formulas because Appellant did not object to State’s Exhibit 10, which is a diagram of the collision including measurements taken at the scene with the AIMS device. It is well established that a party must make a timely and specific objection in order to preserve his complaints for appellate review. See Tex.R.App.P. 33.1. Further, a party must object every time inadmissible evidence is offered or the complaint is waived. See Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991); Gillum v. State, 888 S.W.2d 281, 285 (Tex.App.-El Paso 1994, pet. ref'd). In the presence of the jury, the State elicited testimony from Cisneros showing that he had training in accident reconstruction and had previously testified as an expert on that topic. Cisneros then identified State’s Exhibit 10 as a diagram of the accident which he prepared on the night of the accident. Cisneros explained that he used the Accident Investigation Measuring System (AIMS), which he described as a surveying device, and a software program to prepare State’s Exhibit 10. The State then offered State’s Exhibit 10 and Appellant’s counsel stated that he had no objection to it. State’s Exhibit 10 depicts the point of impact and post-impact locations of the vehicles, their direction of travel, the location of various skid marks, and measurements of those skid marks taken by Cisneros using AIMS. The exhibit reflects that Appellant’s Corvette traveled 413 feet from the point of impact with the complainants’ Honda. By failing to object to the initial testimony about the AIMS device and State’s Exhibit 10, Appellant waived any subsequent complaint he might have had about the measurements taken by Cisneros with the assistance of the AIMS device.

Scientific Validity of AIMS

Even if Appellant did not waive his complaint about the measurements and the AIMS device, the majority opinion errs by holding that the State was obligated to establish that Cisneros understands the inner-workings of this surveying device. Cisneros was offered as an expert in accident reconstruction, not as an expert in AIMS equipment. Consequently, there was no necessity for the State to prove that he understood exactly how laser measuring devices and surveying equipment work. As aptly noted by appellate counsel for the State, the AIMS device is essentially a high-tech tape measure and Cisneros used the device to measure the distance between two points. I find no requirement in Rule 703 or elsewhere that an expert witness be able to explain the scientific principles involved in every piece of equipment used by the expert to gather data. To illustrate this point, an expert who relies on photographs as part of the foundation for his opinion regarding the cause of an accident need not explain precisely how a camera works in order to rely on the data supplied by the photographs. Likewise, an expert witness who utilizes a calculator in performing calculations is not required to relate to the jury the scientific principles involved in an electronic calculator before his expert testimony is permitted. Cisneros sufficiently explained that the AIMS device, using a laser, measured the distance Appellant’s car traveled from the point of impact to its resting place and he utilized that measurement in the skid speed formula. For these reasons, I would find that the trial court did not abuse its discretion in admitting Cisneros’ testimony about the measurements taken at the scene of the accident.

*250 Reliability of the Speed Calculation Formulas

While I would find much of Cisneros’ testimony admissible, the State failed to offer sufficient evidence proving the reliability of the two formulas utilized by Cisneros to estimate speed. A party seeking to introduce evidence of a scientific principle need not always present expert testimony, treatises, or other scientific material to satisfy the Kelly test. Hernandez, 116 S.W.3d at 28-9. It is only at the dawn of judicial consideration of a particular type of forensic scientific evidence that trial courts must conduct full-blown “ga-tekeeping” hearings under Kelly. Id. at 29. Once a scientific principle is generally accepted in the pertinent professional community and has been accepted in a sufficient number of trial courts through adversarial Daubert/Kelly2 hearings, courts subsequently considering the issue may take judicial notice of the scientific validity (or invalidity) of that scientific theory based upon the process, materials, and evidence produced in the prior hearings. Id. at 29; see Weatherred v. State, 15 S.W.3d 540, 542 n. 4 (Tex.Crim.App. 2000)(“once a particular type of scientific evidence is well established as reliable, a court may take judicial notice of that fact, thereby relieving the proponent of the burden of producing evidence on that question”). In other words, trial courts are not required to reinvent the scientific wheel in every trial. Hernandez, 116 S.W.3d at 29. The Court of Criminal Appeals has recently emphasized, however, that some trial courts must conduct an adversarial gatekeeping hearing to determine the reliability of the given scientific theory and its methodology before other trial courts may take judicial notice of that determination. Id. Although appellate courts may likewise take judicial notice of other appellate opinions concerning a specific scientific theory or methodology in evaluating a trial court’s Daubert/Kelly ga-tekeeping decision, judicial notice on appeal cannot serve as the sole source of support for a bare trial court record concerning scientific reliability. Hernandez, 116 S.W.3d at 31-2.

Although the trial court held a Dau-bert/Kelly hearing in the instant case, the State did not offer any evidence of the theories underlying the formulas utilized by Cisneros. Further, the State did not show that the issue of the formulas’ reliability has been litigated previously nor did it ask the trial court to take judicial notice of the reliability of the scientific theory and methodology based upon prior hearings or prior appellate decisions. See Hernandez, 116 S.W.3d at 30 and n. 7. There is evidence that Cisneros has previously qualified as an expert and testified regarding accident reconstruction and perhaps even speed estimation, but the fact that a trial court has allowed some type of scientific testimony by a particular witness previously does not mean that the witness’s testimony is, ipso facto, scientifically reliable. Hernandez, 116 S.W.3d at 30.

The trial court’s decision to admit this evidence is understandable as expert testimony regarding accident reconstruction and speed estimation has been previously admitted in Texas civil and criminal cases. See e.g., Chavers v. State, 991 S.W.2d 457, 460-61 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd); Trailways, Inc. v. Clark, 794 S.W.2d 479, 483 (Tex.App.-Corpus Christi 1990, writ denied); Rogers v. Gonzales, 654 S.W.2d 509, 512 (Tex.App.-Corpus Christi 1983, writ ref'd n.r.e.); Bates v. *251Barclay, 484 S.W.2d 955, 957-59 (Tex.Civ.App.-Beaumont 1972, writ ref'd n.r.e.); Adams v. Smith, 479 S.W.2d 390, 395 (Tex.Civ.App.-Amarillo 1972, no writ); Beynon v. Cutberth, 390 S.W.2d 352, 355-56 (Tex.Civ.App.-Eastland 1965, no writ). With the exception of Chavers, these decisions pre-date Daubert and Kelly, and there is no determination in any of the cases that the formulas used to calculate speed are scientifically reliable. Although Chavers employs the proper criteria under Kelly, the decision is distinguishable because the expert witness based his calculations on yaw marks rather than the two formulas used by Cisneros. Therefore, taking judicial notice of Chavers is of no benefit in the instant case.

In Thomson v. Rook, a United States District Court conducted a Daubert hearing to determine the admissibility of an accident reconstruction expert’s opinion regarding speed, distance traveled by vehicles, and the point of impact of the collision. Thomson v. Rook, 255 F.Supp.2d 584, 584-87 (E.D.Tex.2001). That court determined that the articles, books, and other experts in the accident reconstruction field validated the methodology used by the expert witness for calculating speed, distance traveled by the vehicles, and the point of impact. Id. at 586. In a footnote, the court noted that the expert witness calculated speed using a “standard physics equation employed by automobile accident reconstruction experts and a coefficient of friction derived from J. Stannard Baker’s book, Traffic Investigation Manual.” Id. at 586 n. 5. The witness calculated speed and distance traveled by one of the vehicles using a standard rate of acceleration from a standard start as reported by the Baker book. Id. The district court admitted the witness’s expert opinion on these topics but excluded the witness’s opinion about the driver’s braking time because the plaintiffs had not produced evidence or articles or books, or other experts that validate the methodology used by the expert witness. Id. at 587. It is impossible to determine whether Cisneros used some of the same formulas as the witness in Thomson, and therefore, taking judicial notice of this decision would not benefit the State.

I have been unable to find any Texas appellate decisions at the state or federal level holding that the skid speed formula and linear momentum formulas utilized by Cisneros are reliable.

A cursory review of appellate decisions from other jurisdictions indicates that this type of expert testimony has been often admitted into evidence in other states. See e.g., State v. Russo, 38 Conn.Supp. 426, 450 A.2d 857, 866-67 (1982)(holding that an expert in Connecticut may testify as to the speed of a motor vehicle based on skid marks and other factors because the formulas used to calculate speed are based on well-recognized principles of physics that have gained general acceptance in the field of accident reconstruction); Bryant v. Buerman, 739 So.2d 710, 712-13 (Fla.Dist.Ct.App.1999)(holding that opinion of an accident reconstruction expert witness regarding the speed of a vehicle at the time of an accident is admissible in personal injury action arising out of collision, so long as the expert’s testimony is helpful to the jury). See also Jerre E. Box, Annotation, Opinion Testimony as to Speed of Motor Vehicle Based on Skid Marks and Other Facts, 29 A.L.R.3d §§ 248-77 (1970 & Supp.1996)(discussing numerous decisions admitting and excluding this type of evidence). As is the case with the Texas decisions discussed above, many of the out-of-state decisions pre-date Daubert and Kelly, and of those cases decided since Daubert and Kelly, the opinions do not discuss reliability of the same formulas used by Cisneros. Further, none *252of these decisions indicates that the formulas utilized by Cisneros have become so widely accepted or persuasively proven that future courts may take judicial notice of their reliability. See Hernandez, 116 S.W.3d at 29 n. 6. The Connecticut Supreme Court stated in Russo that using the coefficient of friction to estimate speed is a well recognized principle that has gained general acceptance in the field of accident reconstruction. Russo, 450 A.2d at 866. While Cisneros utilized the coefficient of friction in the skid speed formula to determine post-impact speed, he used a different formula to obtain pre-impact speed and that is the object of Appellant’s complaint on appeal. Moreover, the Court of Criminal Appeals cautioned in Hernandez about reliance on judicial opinions from non-Texas jurisdictions because many other jurisdictions utilize the “preponderance of the evidence” standard rather than the “clear and convincing” evidence standard required in Texas. Hernandez, 116 S.W.3d at 31 n. 13.

In the absence of any evidence showing the reliability of the speed calculation formulas utilized by Cisneros, the trial court erred in admitting Cisneros’ conclusion that Appellant’s vehicle was traveling 104 miles per hour at the point of impact. However, I would also find the error harmless as stated in the majority opinion. With these additional comments and observations, I concur in the judgment affirming the trial court’s judgment.

. Cisneros' written report was not admitted into evidence.

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