ACCEPTED
01-13-00931-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
7/13/2015 12:11:55 PM
CHRISTOPHER PRINE
CLERK
No. 01-13-00931-CR
FILED IN
1st COURT OF APPEALS
MELISSA DROMGOOLE, § IN THE COURT OF APPEALS
HOUSTON, FOR
TEXAS
Appellant § 7/13/2015 12:11:55 PM
§ CHRISTOPHER A. PRINE
v. § Clerk
THE FIRST DISTRICT OF TEXAS
§
THE STATE OF TEXAS, §
Appellee § HOUSTON, TEXAS
APPELLANT’S AMENDED MOTION FOR REHEARING
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
APPELLANT, MELISSA DROMGOOLE, by and through the
undersigned counsel, submits this amended motion for rehearing pursuant to Texas
Rules of Appellate Procedure 49.1 and 49.6, and requests that the Court reconsider
its opinion of June 4, 2015, for the reasons set out below.
I. The Opinion Misstates Facts Relevant to Issue One
In Issue One, Appellant claims that the blood draw was unreasonable under
the Fourth Amendment because Appellant disclosed to the arresting officer that she
had a medical condition, syncope, which put the officer on notice that a blood draw
could present medical complications. The Court’s opinion acknowledges that
Appellant explained to Officer Nunn that, with her syncope, her “blood pressure
drops and then [she] faints.” (Slip Op. at 18). But the Court rejected the claim
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because Appellant’s doctor testified that Appellant does not have low blood
pressure; thus, the Court held that “a warning of low blood pressure would not have
conveyed appropriate information to prevent an unreasonable blood draw.” (Slip
Op. at 19).
This is a misstatement or gross oversimplification of the facts. As set out in
Appellant’s Brief, Dr. Joseph Varon, who diagnosed Appellant’s syncope several
years prior to the DWI arrest, testified that syncope is the medical term given to
fainting and is often caused by temporary low blood pressure during a change of
body position. 9RR91-93; Appellant’s Brief at 7-8.
When asked to explain the relationship between blood pressure and syncope,
Dr. Varon testified that those prone to syncope “tend to have a low blood pressure
at some point in time,” usually, when “you change positions abruptly.” 9RR92-93.
Dr. Varon explained that in vasovagal syncope a change of position causes a change
in blood pressure. 2RR89. Varon further explained that in healthy people the body
responds to low blood pressure with a compensatory increase in heart rate, but this
compensatory reaction does not function properly for Appellant. 2RR111. When the
heart does not “pump enough blood fast enough to the rest of your body”, syncope
results. 2RR120. Accordingly, the Court’s opinion misstates and oversimplifies the
facts in finding that Appellant’s syncope “does not affect her blood pressure.” (Slip
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op. at 19).
Moreover, Appellant did not merely provide a “warning of low blood
pressure” to Officer Nunn, as stated in the opinion. (Slip Op. at 19). Appellant told
Officer Nunn: “I just have syncope, which is when my blood pressure drops and
then I faint.” SX4 (2:50:30-40). She disclosed the appropriate medical term for her
condition and further explained that the fainting occurs when her blood pressure
“drops.” Her explanation is consistent with Dr. Varon’s testimony explaining the
relationship between blood pressure and syncope. Requiring a more detailed
explanation of the relationship between blood pressure and syncope places an
unreasonable burden on a citizen in this context, as does subjecting Appellant’s
choice of words to this level of scrutiny.
This Court’s opinion also misstates the facts in rejecting Appellant’s
assertion that Officer Nunn had a duty to report Appellant’s disclosed medical
condition to the blood draw nurse. The Court found that, even assuming such a duty
exists, “there is no evidence in the record that the term syncope should have alerted
a reasonable person authorized to perform a blood draw about any increased
medical risk in performing a blood draw.” (Slip Op. at 21).
As stated in Appellant’s Brief (at 10-11), Dr. Varon testified that it is not
reasonable to perform a blood draw on a person prone to syncope or low blood
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pressure in the standard sitting position; the patient should be lying flat. 2RR102,
116-117. Dr. Varon also testified that blood pressure should be measured in
conjunction with a blood draw for a patient prone to syncope or low blood pressure.
2RR117-119. There was no evidence contrary to Dr. Varon’s testimony on this
issue. Accordingly, the record establishes that both the term syncope and a report of
low blood pressure should have alerted a person authorized to draw blood to a risk
of complications.
Appellant requests that the Court reconsider its disposition of Issue One in
light of these undisputed facts.
II. The Reynolds Test is Inapplicable in the Context of Blood Analysis.
In Issue Four, Appellant asserts that the blood test evidence was unreliable
under Texas Rule of Evidence 702 and the non-exclusive multi-factor analysis
described in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). The Court
held that this was not the appropriate standard and instead applied the modified
standard announced in Reynolds v. State, 204 S.W.3d 386, 390 (Tex. Crim. App.
2006), namely, whether the technique was properly applied in accordance with the
rules of DPS. (Slip Op. at 28-29). Appellant asserts that the Reynolds test is not
applicable in this context for the following reasons.
Reynolds involved a challenge to the admissibility of the analysis of a breath
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test. The Court of Criminal Appeals rejected the appellant’s contention that,
consistent with Kelly, the proponent of evidence of the results of a breath alcohol
testing apparatus must show that the operator of the apparatus has a ready grasp of
the sort of information he was required to know in order to become certified as an
operator in the first place. Id. at 390. The Court held that in the context of breath
test results, the Legislature has already determined that the underlying science is
valid, and that the technique applying it is valid as long as it is administered by
individuals certified by, and using methods approved by the rules of, DPS. Id. The
Court cited as authority § 724.064 of the Transportation Code, which states that
evidence of alcohol concentration shown by a breath, blood, or urine test is
admissible in a prosecution under Chapter 49 of the Penal Code. Id., n. 26. But the
Court also cited two cases involving the legislative determination of reliability for
intoxilyzer testing, id., and expressly limited its modified standard to Kelly hearings
“at which the results of a breath test are challenged.” Id. at 390-91.
Moreover, while there is a comprehensive set of DPS rules regarding breath
testing, there is no equivalent regulatory scheme for blood testing. For example, the
Transportation Code provides that a “breath specimen taken at the request or order
of a peace officer must be taken and analyzed under rules of the department”; and
“[t]he department may . . . adopt rules approving satisfactory analytical methods;
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and . . . ascertain the qualifications of an individual to perform the analysis.” TEX.
TRANSP. CODE ANN. § 724.016(a) (Vernon 2011). Title 37, Chapter 19 of the Texas
Administrative Code, titled “Breath Alcohol Testing Regulations,” provides that all
Texas agencies must perform their breath tests under an approved breath test
program. See 37 TEX. ADMIN. CODE § 19.4(a), (b)(3), (f)(6). The chapter provides
detailed rules for instrument certification, testing techniques and methods, operator
certification, Technical Supervisor certification, and approval of instruction
courses. See 37 TEX. ADMIN. CODE § 19.2 et seq.
The only DPS regulation pertaining to blood alcohol analysis is a general
requirement that a crime lab performing such analysis for use in a criminal
proceeding be accredited by DPS, which is accomplished by providing DPS with
documentation showing that the lab is accredited by one of several recognized
accrediting bodies. See TEX. GOV’T CODE § 411.0205; TEX. CODE CRIM. PROC. art.
38.35; 37; TEX. ADMIN. CODE § 28.141 et seq. Thus, under the modified Reynolds
test, the only way blood analysis could be conducted in violation of DPS rules is if
the lab performing the analysis was not properly accredited. This standard is not
adequate to determine the reliability of the analysis of a particular specimen.
Accordingly, the Reynolds test is not an appropriate substitute for the
standard Kelly analysis in the context of a reliability challenge to blood alcohol
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testing. Appellant requests that the Court reconsider Issue Four in light of the multi-
factor analysis from Kelly, as argued in Appellant’s Brief.
III. The Deviation from Validated Parameters Violated DPS Rules
The opinion states that the “burden of establishing that the technique was
properly applied in accordance with the rules of DPS includes considering
challenges to the performance of tests designed to ensure scientific equipment is
functioning properly prior to the use of the equipment.” (Slip. Op. at 35). The
opinion does not cite or mention any particular DPS rule in conjunction with this
analysis. The Court appears to conclude that DPS rules implicitly encompass the
standards of the recognized accrediting body of the lab. As noted above, a crime lab
analyzing evidence for use in a criminal case must be accredited by DPS, and to
obtain DPS accreditation a lab must first be accredited by a recognized accrediting
body. Accordingly, the standards of the recognized accrediting body could be
understood as creating a baseline for compliance with DPS rules. If the modified
Reynolds test is applicable, and if DPS rules are presumptively coextensive with the
standards of the recognized accrediting body, Appellant asserts that the record
establishes that the blood analysis was conducted in violation of DPS rules.
When asked whether DPS rules allow deviation from validated methods,
HPD Crime Lab Director Irma Rios testified, “What the Department of Public
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Safety does is they recognize the accrediting bodies and we have to be accredited
by those bodies and there are certain standards we have to follow.” 7RR196.
All four experts (Irma Rios, Laura Mayor, Will Arnold, and Amanda Culbertson)
testified that the standards of the accrediting agency, the American Society of
Crime Lab Directors/Laboratory Accreditation Board (ASCLD/LAB), require case
work to be conducted in accordance with the validated method established for an
instrument. 6RR129; 7RR13-14, 19-20, 24; 61; 92; 134; 155; 188; 191-92; 196-97;
8RR159. Mayor, Culbertson, and Rios testified that the use of controls and
standards is not a substitute for proper validation. 7RR62; 156; 189; 191; 201-02.
None of the State’s experts provided evidence demonstrating that ASCLD/LAB
standards permitted forensic analysis to be conducted while deviating from
validated parameters, either generally or specifically with respect to changes in the
vial oven temperature. 7RR90; 8RR136; 8RR188-89. While the State’s experts
opined that the deviation in this case did not render the analysis of Appellant’s
specimen unreliable, there was no evidence that the practice of conducting forensic
analysis using non-validated parameters complied with ASCLD/LAB standards.
Assuming DPS rules are coextensive with the standards of the recognized
accrediting body, the record demonstrates that the deviation from the validated
method in this case violated DPS rules. Whether the challenged evidence was
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otherwise reliable, notwithstanding the violation, is not at issue; “the only
determination for a trial court to make in the Kelly hearing is ‘whether the technique
was properly applied in accordance with the rules of DPS on the particular occasion
in question.’ ” (Slip. Op. at 29, citing Reynolds, 204 S.W.3d at 390); see also
Schultz v. State, 457 S.W.3d 94, 104 & n.4 (Tex. App.—Houston [1st Dist.] 2014,
no pet.) (declining to address issue of whether any deviation from DPS rules results
in a per se determination of unreliability). Pursuant to the Reynolds analysis, Issue
Four should be sustained.
Alternatively, if violation of DPS rules does not result in a per se
determination of unreliability, Appellant asserts that the question of whether the
violation resulted in unreliability should be analyzed in light of the non-exclusive
Kelly factors. Id., 104 & n. 4 (declining to address issue of whether the particular
deviation required a determination of unreliability).
IV. The Burden of Proving Reliability
Remains on the Proponent of Scientific Evidence
Appellant asserts that the Court erred in holding that if the State demonstrates
that the testing equipment was functioning properly, the burden then shifts to the
defendant “to establish that the evidence was otherwise unreliable,” pursuant to
Pham v. State, 175 S.W.3d 767, 773 (Tex. Crim. App. 2005). (Slip Op. at 29-30).
In Pham the Court held that a defendant moving to suppress evidence
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pursuant article 38.23 of the Texas Code of Criminal Procedure has the burden to
demonstrate a causal connection between the law violation and the acquisition of
the evidence. Id. at 773. In so doing, the Court cited two cases, both of which dealt
with the burden of proof in a motion to suppress challenging an illegal search or
seizure. Id., citing Mattei v. State, 455 S.W.2d 761, 766 (Tex. Crim. App. 1970);
Russell v. State, 171 S.W.2d 7, 9 (Tex. Crim. App. 1986). There is no indication in
Pham that the Court intended to change or shift the burden of proof in a reliability
challenge pursuant to Texas Rule of Evidence 702. In fact, the Court of Criminal
Appeals recently clarified that in this context “[o]nce the party opposing the
evidence objects ... the proponent bears the burden of demonstrating its
admissibility.” State v. Esparza, 413 S.W.3d 81, 86 (Tex. Crim. App. 2013);
quoting E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.
1995); see also Sexton v. State, 93 S .W.3d 96, 100 (Tex. Crim. App. 2002) (“[t]he
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”); Kelly, 824 S.W.2d 568, 573 (Tex.
Crim. App. 1992).
No other court of appeals has applied Pham to shift the burden in the context
of a reliability challenge under Rule 702. Appellant respectfully requests that the
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Court reconsider its disposition of Issue Four with the burden of proof remaining on
the State, as the proponent of the scientific evidence, to demonstrate by clear and
convincing evidence that the blood alcohol analysis was sufficiently reliable.
Specifically, Appellant asserts that the Court misplaced the burden in requiring
defense expert testimony that would “disprove as a matter of law Arnold’s
testimony that the ratio of alcohol to n-Propanol would remain constant after
increasing the temperature of the vial oven.” (Slip op. at 36). Instead, the proper
analysis is, as argued in Appellant’s Brief, whether the State met its burden of
demonstrating clear and convincing evidence of reliability by providing some
objective, independent validation of the expert’s methodology beyond the expert’s
mere assurances or bare opinions. See, e.g., Moore v. Ashland Chemical, Inc., 151
F.3d 269, 276 (5th Cir.1998); Coble v. State, 330 S.W.3d 253, 277 (Tex. Crim.
App. 2010); Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999).
V. The Court’s Reliance on Henry’s Law is Misplaced.
In resolving Issue Four, the Court relied on Henry’s Law, as described by the
State’s experts, as definitive proof that a change in the vial oven temperature would
not affect the reliability of the instrument used to test Appellant’s blood specimen.
The Court noted that, according to Henry’s Law, in a closed environment (such as
the sealed vial) with a constant temperature, the volume of volatile compounds
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(such as alcohol and n-Propanol) in a liquid will be proportional to the
concentration of those compounds in the liquid. The Court found that, in light of
Henry’s Law, the ratio of alcohol to n-Propanol would remain constant after
increasing the temperature of the vial oven. (Slip Op. at 32-36). This analysis,
however, dodges the critical issue: whether the State sufficiently demonstrated that
this particular instrument was reliable at certain settings.
Scientific principles such as Henry’s Law are dependent on certain variables.
As noted by the Court, “Henry’s Law is based on a fixed, constant temperature.”
Accordingly, one of the purposes of conducting a validation study on a particular
instrument at designated parameters is to affirmatively demonstrate that the
instrument is capable of maintaining a fixed, constant temperature at those settings.
In a perfect world in which all machines always functioned perfectly, Henry’s Law
would play out predictably. But because performance varies from one instrument to
another, a validation study is required to prove that the machine performs
adequately at the defined parameters.
The Court found that “[n]othing in Culbertson’s testimony disproved as a
matter of law Arnold’s testimony that the ratio of alcohol to n-Propanol would
remain constant after increasing the temperatu,re of the vial oven.” (Slip Op. at 36).
But the issue is not the validity of Henry’s Law, but rather whether the State
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demonstrated that the instrument itself was reliable. This is not merely “a resolution
of conflicting evidence between experts” (Slip Op. at 36), because any opinion
regarding the accuracy of the instrument would be pure speculation in the absence
of a validation study at designated parameters.
Appellant requests that the Court reconsider its resolution of Issue Four, with
recognition of the fact that the application of Henry’s Law presupposes a properly
functioning instrument. Accordingly, Henry’s Law has no relevance to the issue of
whether the State demonstrated reliability.
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WHEREFORE, PREMISES CONSIDERED, Appellant respectfully
requests that the Court grant rehearing.
Respectfully submitted,
/s/ Norman J. Silverman
Norman J. Silverman
T.B.C. No. 00792207
917 Franklin, 4th Floor
Houston, Texas 77002
(713) 526-1515
(713) 526-1798 (FAX)
Attorney for Appellant
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CERTIFICATE OF SERVICE
This document has been served on the following parties electronically
through the electronic filing manager contemporaneously and in conjunction with e-
filing on July 13, 2015.
Carly Dessauer
dessauer_carly@dao.hctx.net
Alan Curry
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 2,763
words according to the program’s word-count function.
/s/ Norman J. Silverman
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