Arturo Chavez Hernandez AKA Arturo Chevez Hernandez v. State

NUMBER 13-00-684-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ___________________________________________________________________ ARTURO CHAVEZ HERNANDEZ, A/K/A ARTURO CHEVEZ HERNANDEZ , Appellant, v. THE STATE OF TEXAS , Appellee. ___________________________________________________________________ On appeal from the 105th District Court of Kleberg County, Texas. ____________________________________________________________________ O P I N I O N Before Chief Justice Valdez and Justices Hinojosa, and Kennedy(1) Opinion by Justice Kennedy Originally, appellant pleaded guilty to possession of marijuana. Based upon a plea bargain, he was placed on community supervision for ten years. Subsequently, the court revoked his community supervision and sentenced him to ten years' confinement. Appellant appealed his revocation and was released from confinement pending appeal on a $25,000 appeal bond. The State instituted the action which is the basis for this appeal alleging violation of one of the conditions of his appeal bond, to-wit, unlawful use of marijuana. This is an accelerated appeal(2) from the order of the trial court which revoked appellant's appeal bond. The evidence heard by the trial court, upon which it based its decision to revoke the bond, was laboratory results from several urinalysis tests which confirmed the presence of marijuana in appellant's system. Appellant challenged the test results at the hearing on the motion to revoke on the grounds that the State failed to make a Rule 702(3) showing that the evidence is trustworthy. He alleges that the trial court abused its discretion in holding that the evidence supports a finding that appellant violated the conditions of his bail. Rule 702 states: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. The State's witness in this case testified to the results of tests on several urine samples of appellant, each of which indicated the presence of marijuana in the sample. The witness testified that he had been trained to operate the machine used to run the test.(4) He further testified that he did not know the principle or methodology of the machine and did not know how to translate or analyze samples entered into the machine. In answer to questions he further stated that he has a resource for independent verification of the tests run, but that this was not done with respect to the samples in this case. This person was the only witness called by the state to testify to the presence of marijuana in appellant's system. In support of his position, appellant cites two Texas cases. The first of these is Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), which held: In other words, before novel scientific evidence may be admitted under Rule 702, the proponent must persuade the trial court, by clear and convincing evidence, that the evidence is reliable and therefore relevant. Kelly, 824 S.W.2d at 573. The second and later case, Stevens v. State, 900 S.W.2d 348 (Tex. App. --Texarkana 1995, pet. ref'd), following remand, 951 S.W.2d 802 (Tex. App.--Texarkana 1997, no pet.) supports the holding in Kelly, by holding: The evidence showed that the operator had been trained to operate the machine by the manufacturer and that he assumed that the machine, if operated properly, was able to detect a controlled substance in a urine sample. Counsel complained about this testimony at the time it was offered on the basis that a proper predicate had not been laid for its admission. The officer admitted a complete lack of knowledge about the principles upon which the machine operated. Tex. R. Crim. Evid. 702 states that a witness may testify about scientific, technical, or other specialized matters if he is qualified as an expert by knowledge, skill, experience, training, or education. The witness did not qualify on any of these grounds. He admitted in his testimony that he knew nothing more than how to operate the machine, and he presented no evidence to establish the reliability of the tests. Thus, the officer's testimony concerning the test was improperly admitted. Stevens, 900 S.W.2d at 352. This was substantially the testimony of the State's only witness in the case before us. Stevens was affirmed, however, by virtue of the fact that one of the samples tested was independently tested by another witness who, after stating his qualifications, was not challenged by appellant. In this connection, the court held that evidence of one alleged violation of the terms of probation was sufficient to support the ruling of the trial court, citing Anderson v. State, 621 S.W.2d 805 (Tex. Crim. App. 1981) and other authority. Based upon the authority hereinbefore cited, we hold that the trial court in this case abused his discretion in revoking appellant's bail bond. We reverse this decision of the trial court and order the bail bond reinstated. NOAH KENNEDY Retired Justice Do not publish . Tex. R. App. P. 47.3(b). Opinion delivered and filed this the 8th day of March, 2001. 1. Retired Justice Noah Kennedy assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998). 2. Pursuant to Rule 31 of the Texas Rules of Appellate Procedure. 3. Tex. R. Evid., Rule 702 (Vernon Special Pamphlet 2000). 4. The "machine" is identified only as an "ADx."