State of Texas v. Robinson, Paul David

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-1206-10 THE STATE OF TEXAS v. PAUL DAVID ROBINSON, Appellant

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE TENTH COURT OF APPEALS

FREESTONE COUNTY P RICE, J., filed a dissenting opinion.

DISSENTING OPINION

In her concurring opinion, Judge Cochran asserts that “at trial, the State will be required to offer evidence that the blood was drawn by a qualified person [presumably, as mandated by Section 724.17(a) of the Transportation Code1 ] before evidence of the blood,

Robinson — 2 the blood test, and the blood results are admissible.”2 Although she cites no authority for this proposition, I believe it to be a correct statement of the law. But, given that the law requires the State to bear the burden of proving that Section 724.017(a) was satisfied as an evidentiary threshold at trial, I fail to see what sense it makes to assign the burden of proof differently when a defendant first broaches the issue in a pre-trial motion to suppress rather than waiting until trial to insist that the State be held to its evidentiary predicate.

We have observed that Section 724.064 of the Transportation Code constitutes a legislative determination “that breath test results should be admissible in DWI prosecutions without the necessity of establishing the scientific basis for [and hence, the reliability of] such tests under Daubert and Kelly[.]”3 In Reynolds v. State,4 also in the breath-test context, we have held that, notwithstanding Section 724.064’s blanket determination that the science behind various forms of BAC analysis is reliable, the State must prove as a predicate fact to the introduction of intoxilyzer evidence that the intoxilyzer operator was properly certified

Robinson — 3 under Section 724.016(a) of the Transportation Code.5 Presumably the same principles that undergird our holding in Reynolds with respect to breath test results would hold true for blood test results as well. That being the case, while Section 724.064 of the Transportation Code may obviate any general threshold judicial inquiry into the scientific reliability of blood alcohol testing, it does not excuse the State, as proponent of such evidence, from making a predicate showing that the person who extracted the blood to be tested was statutorily qualified to do so under Section 724.017(a).

The appellant in Reynolds made an issue of whether the evidentiary predicate could be met in the context of a pre-trial hearing. That is what the appellant did here. I do not understand why, just because he challenges the admissibility of the State’s BAC evidence in the context of a motion to suppress, the appellant should suddenly be made to shoulder what we would otherwise agree should be the State’s burden of proof.

I respectfully dissent.

FILED: March 16, 2011 PUBLISH