dissenting.
I would hold that the trial court abused its discretion by allowing the State’s expert witness, Renee Hawkins — a forensic scientist with the Texas Department of Public Safety (DPS) Crime Laboratory, to testify that she “saw” trace amounts of cocaine in the Gas Chromatograph/Mass Spectrometer (GCMS) test results of blood drawn from Appellant Stephanie Lynn Bekendam in an amount that fell below the level that is reportable under DPS standards.
Hawkins’s written report of her findings from the GCMS testing on Appellant’s blood, attached to this dissenting opinion as Appendix A, does not mention or identify any trace amount of cocaine in Appellant’s blood. It states, in pertinent part,
Results of Analysis and Interpretation
Blood Drugs: Benzoylecgonine (a cocaine metabolite) (1.4 milligrams per liter)
At the gatekeeping hearing, however, Hawkins testified that the GCMS results showed not only the cocaine metabolite Benzoylecgonine in Appellant’s blood — in accordance with her written report — but also trace amounts of cocaine in Appellant’s blood.6 Hawkins testified, in part, that after conducting the initial EMIT screening test, she conducted a confirmatory GCMS test:
Q. Okay. Now, did you also see any trace amounts of cocaine in the sample when you tested it?
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A. I did see traces of cocaine in the sample, yes.
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Q. And is it true that in about four hours most of the cocaine in [] someone’s system could be metabolized?
A. It can be, yes.
Q. And would it be possible, if you assume a wreck that occurs at 5:80 in the afternoon and a blood draw isn’t taken until nearly 7:00 p.m., an hour and *365a half later, and in that blood draw you see the results that you saw in this case, and you saw trace amounts of cocaine, for there to be cocaine in the bloodstream of the driver at the time of the driving?
A. Yes. Considering — considering the half-life of cocaine, there may have been significant amounts of cocaine in the blood sample an hour and a half earlier.
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Q. Now, what exactly is a GCMS?....
A. We perform an extraction from the blood to extract the drugs of interest out of the blood. And then the first part of the instrument separates the compounds of interest or the drugs of interest, and then the second part of the instrument identifies them almost like a fingerprint for that drug.
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Q. After you’ve done the extraction and you put the sample in the GCMS, at that time is that when you get the test results that’s the basis of your report?
A. Yes.
Q. Or is something — is there another step?
A. Well, we perform the data analysis.
Q. What is the data analysis?
A. The instrument will give me the data for all my controls and my samples. I will do the dialysis on my controls, have that peer reviewed by another coworker, and then I will analyze each case sample individually and provide a result and write my report.
Q. So there’s like a computer screen that tells you what’s in the sample?
A. There is software for us to look at that separation and that fingerprint that I was speaking of.
Q. And is that where you saw the cocaine metabolite?
A. Yes.
Q. It shows up as a certain bar graph or something on the computer?
A. It does. It shows the peak separation so I can see the drug itself separated, and then it will show the spectrum or what I was referring to that’s similar to a fingerprint. And then it— the software will be used with our calibration to create a concentration.
Q. Now, when you said you saw cocaine or trace of cocaine, it was under the .1 milligrams per liter?
A. It was under the .05 is our cutoff point. .05 is our limit for cocaine.
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Q. So based on your test report, are you able to testify with any kind of reasonable medical certainty that the driver from whom the sample was drawn was impaired at the time of the accident?
A. I can only say that cocaine may impair an individual person.
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Q. And that impairment could depend on a number of factors. Correct?
A. Yes.
Q. Number of factors that you don’t know specifically about this Defendant?
A. Correct.
Q. You don’t know ... whether Stephanie last used drugs one hour before the accident, one day before the accident, three days before the accident?
A. If I had only seen Benzoyleego-nine, I may not have known that. But since I saw trace levels of cocaine, I know that it was not long before the time of incident, the time of blood draw, excuse me.
*366Q. But trace levels of cocaine don’t show up in your testing.
A. I saw the cocaine, yes, so I did see the trace levels. It was below my reportable cutoff.
Hawkins later testified in front of the jury, in part, as follows:
Q. And what were the results of your testing on this Defendant’s blood?
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A. My results were 1.4 milligrams per liter of Benzoylecgonine which is a cocaine metabolite.
Q. [ ] All right. And did your testing also — did you see any trace amounts of cocaine in the blood that were beneath the reportable levels?
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A. I did see trace amounts of cocaine, but it was below my reportable limit that I’m allowed to report.
Q. [ ] Explain to the jury what your reportable limit is.
A. .05 is our lowest calibrator so anything less than half of that I can’t even say that I saw cocaine.
Q. All right. Now, explain to the jury what Benzoylecgonine is.
A. It’s a metabolite of cocaine. Cocaine breaks down — in order to use a drug, your body will break something down or eliminate it and then it metabolizes.
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Q. All right. Does — Benzoylecgo-nine, that’s what is considered an inactive metabolite; is that correct?
A. It is. It is not active on your central nervous system like cocaine is.
Q. So cocaine would be a substance that would or could impair your central nervous system, but the metabolite would not; is that correct?
A. Correct.
Q. All right. Does Benzoylecgonine stay in the system longer than cocaine?
A. It does.
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Q. And does the fact that you saw trace amounts of cocaine in the Defendant’s blood sample, what’s the significance of that?
A. The fact that I saw cocaine in the sample and the fact that it metabolizes very quickly means that it may have been significantly higher at the time of the incident.
Q. Does that also mean that the use of the cocaine was closer in time to the time of driving versus being a couple of days beforehand?
A. Yes.
Scientific evidence has the ability to mislead a jury that is not properly equipped to judge the probative force of the evidence. Layton v. State, 280 S.W.3d 235, 241 (Tex. Crim.App.2009). The trial court is responsible for determining whether the scientific evidence offered is sufficiently reliable, as well as relevant, to help the jury in reaching accurate results. Id. The proponent of scientific evidence bears the burden of proving to the trial court, by clear and convincing evidence, that the evidence is sufficiently relevant and reliable to assist the jury in determining a fact in issue. Id. Evidence derived from a scientific theory must meet three criteria in order to be reliable in any given case: “ ‘(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.’ ” Id. (quoting Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992)).
Here, as the majority points out, Appellant’s argument centers around the third criteria — proper application of the scientific technique on the occasion in question. *367The majority espouses that “equating of the department’s policy with any given scientific technique is erroneous” and then addresses the EMIT and GCMS testing techniques. Maj. Op. at 362-63. Thus, the majority distinguishes the failure to follow the DPS policy — which prohibits reporting amounts of cocaine below 0.05 mg/L in GCMS testing — from the failure to properly apply the GCMS testing technique at the time of testing. But I see no distinction. Hawkins properly followed DPS standards in her written report and did not report that the GCMS results showed any cocaine in Appellant’s blood. Hawkins explained that the DPS prohibited her from reporting that GCMS test results showed cocaine in Appellant’s blood because “.05 is our lowest calibrator.” Nonetheless at trial, Hawkins was allowed to testify that the GCMS results showed un-reportable trace amounts of cocaine in Appellant’s blood that were below .05 mg/L and that because cocaine, not just cocaine metabolite, was in Appellant’s blood, this proved Appellant used cocaine not long before the blood draw.
If GCMS analysis shows a trace amount of cocaine that is unreportable in a written report by a forensic scientist with the DPS Crime Laboratory per DPS policy because the amount of cocaine is under the lowest calibrated level, how can that amount of cocaine be reportable in verbal testimony at trial by a forensic scientist with the DPS Crime Laboratory when it is still under the lowest calibrated level? If a trace amount of cocaine is too unreliable to be included in a written report, why is it rehable if presented orally? Hawkins’s testimony about the trace amount of cocaine was unreliable because it showed that, per DPS policy, application of the technique — GCMS testing — excluded reporting trace amounts of cocaine that fell below the lowest calibrated level of .05 mg/L. And the State presented no other evidence or testimony that GCMS test results of trace amounts of cocaine below the DPS’s reportable limits are reliable. Hawkins’s testimony about the trace amounts of cocaine found in Appellant’s blood should have been excluded.7
I would hold that the trial court abused its discretion by allowing Hawkins to testify that the GCMS testing showed trace amounts of cocaine in Appellant’s blood that were below the .05 mg/L reportable cut-off set by DPS policy and would conduct a harm analysis. See Hernandez v. State, 116 S.W.3d 26, 30 (Tex.Crim.App. 2003); Kelly, 824 S.W.2d at 573. Because the majority does not, I respectfully dissent.
DAUPHINOT and GARDNER, JJ, join.
APPENDIX A
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. Contrary to the Majority Opinion's assertion, Hawkins never testified that the EMIT detection test showed cocaine in Appellant’s blood. She repeatedly testified that the EMIT detection test screened for six classes of drugs, one of those classes being cocaine and/or its metabolites. Blood triggering a positive test in one of the EMIT screening classes must be further tested by the GCMS to determine "which type of analyte [sic], which type of drug, and how much of that drug.” Thus, while it is' undisputed that Appellant’s blood triggered a positive response on the EMIT test in the cocaine and/or cocaine metabolites class, this positive result did not show whether the test was positive because of the presence of cocaine metabolite only or because of the presence of cocaine and cocaine metabolite, nor did it quantify the amount of cocaine and/or cocaine metabolite that triggered the positive response.
. The majority opinion notes the court of criminal appeals’ recent opinion of Somers v. State, 368 S.W.3d 528 (Tex.Crim.App.2012). See Maj. Op. at 363. In Somers, the court of criminal appeals held that the results of EMIT testing are reliable scientific evidence and are admissible with or without confirmation by GCMS testing. Id. at 545. Neither the reliability nor the admissibility of the EMIT test is at issue here. Hawkins testified without objection to the results of the EMIT test on Appellant’s blood; Appellant’s blood triggered a positive response on the EMIT screening test in the cocaine and/or cocaine metabolites class. The issue here is the reliability of Hawkins’s testimony that the GCMS test showed a trace amount of cocaine in Appellant's blood below .05 mg/L that was not included in her report of the GCMS analysis of Appellant’s blood because it was below the DPS’s reportable GCMS cut-off. Thus, Somers does not dictate the outcome here.