Kelly test in Texas

2024In two issues, Carr appeals and complains (1) the prosecutor gave the jury an improper definition of “beyond a reasonable doubt” when selecting the jury; and (2) the trial court admitted field sobriety tests into evidence that were inconsistent with the required Kelly standard. 1 See Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim.

2024Specifically, Appellant argues that the GSR evidence obtained violated the Kelly requirement that “the technique must have been properly applied on the occasion in question.” Kelly, 824 S.W.2d at 573 .

2015We agree with the State that a challenge to an inadvertent variance in the technique of performing a blood test requires determining whether the existing technique was properly applied, not whether a new technique has been invented and satisfies the Kelly factors. “[T]he third Kelly prong— whether the technique was properly applied on the occasion in question — must necessarily be decided on a case-by-case basis.” Somers v. State, 368 S.W.3d 528 , 537 n. 27 (Tex.Crim.App.2012) (citing Hartman v. State, 946 S.W.2d 60, 64 (Tex. Crim.App.1997)).

2015We agree with the State that a challenge to an inadvertent variance in the technique of performing a blood test requires determining whether the existing technique was properly applied, not whether a new technique has been invented and satisfies the Kelly factors. “[T]he third Kelly prong— whether the technique was properly applied on the occasion in question — must necessarily be decided on a case-by-case basis.” Somers v. State, 368 S.W.3d 528 , 537 n. 27 (Tex.Crim.App.2012) (citing Hartman v. State, 946 S.W.2d 60, 64 (Tex. Crim.App.1997)).

2019Hernandez, 116 S.W.3d at 29 . 51 notice of this fact, 53 as the Waco Court noted, judicial notice only satisfies the first two elements of the Kelly test; the State must still establish that “the technique [was] properly applied on the occasion in question.” Vela, 209 S.W.3d at 133–34 (quoting Kelly, 824 S.W.2d at 573 ); Holmes, 135 S.W.3d at 195 (“[W]e take judicial notice of the validity of blood spatter analysis and hold that the State was not required . . . to produce evidence on the first two criteria of Kelly.”).

2019Hernandez, 116 S.W.3d at 29 . 51 notice of this fact, 53 as the Waco Court noted, judicial notice only satisfies the first two elements of the Kelly test; the State must still establish that “the technique [was] properly applied on the occasion in question.” Vela, 209 S.W.3d at 133–34 (quoting Kelly, 824 S.W.2d at 573 ); Holmes, 135 S.W.3d at 195 (“[W]e take judicial notice of the validity of blood spatter analysis and hold that the State was not required . . . to produce evidence on the first two criteria of Kelly.”).

2019Defense counsel also obtained a running objection to Trooper Vance’s testimony. 51 I assume that this testimony involves a “hard science” that is governed by the Kelly standard for admissibility of expert testimony rather than a “soft science” governed by the standard enunciated in Nenno v. State, 970 S.W.2d 549 (Tex. Crim.

2019Defense counsel also obtained a running objection to Trooper Vance’s testimony. 51 I assume that this testimony involves a “hard science” that is governed by the Kelly standard for admissibility of expert testimony rather than a “soft science” governed by the standard enunciated in Nenno v. State, 970 S.W.2d 549 (Tex. Crim.

2005The Court of Criminal Appeals later stated that the Kelly standard is virtually identical to the standard in Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579 (1993).

2005The Court of Criminal Appeals later stated that the Kelly standard is virtually identical to the standard in Daubert v. Merrell Dow Pharmaceuticals , 509 U.S. 579 (1993).

2003Later, the Texas Court of Criminal Appeals held that its Kelly inquiry was substantially identical to the Daubert inquiry, Jordan v. State , 928 S.W.2d 550, 554 (Tex. Crim.

2003Later, the Texas Court of Criminal Appeals held that its Kelly inquiry was substantially identical to the Daubert inquiry, Jordan v. State, 928 S.W.2d 550, 554 (Tex. Crim.

2009When faced with this issue, the Court of Criminal Appeals quickly recognized that the Kelly factors used to prove reliability could “become cumbersome under certain circumstances.” State v. Medrano, 127 S.W.3d 781, 785 (Tex.Crim.App.2004) (discussing Nenno and the Kelly factors).

2009When faced with this issue, the Court of Criminal Appeals quickly recognized that the Kelly factors used to prove reliability could “become cumbersome under certain circumstances.” State v. Medrano, 127 S.W.3d 781, 785 (Tex.Crim.App.2004) (discussing Nenno and the Kelly factors).

2007In Nenno the Court of Criminal Appeals suggested that the Kelly framework applies to the soft sciences but with “less rigor” than to the hard sciences. 2 Nenno, 970 S.W.2d at 561 ; Roberts v. State, 220 S.W.3d 521, 530 (Tex.Crim.App., 2007)(not yet released for publication).

2007In Nenno the Court of Criminal Appeals suggested that the Kelly framework applies to the soft sciences but with “less rigor” than to the hard sciences. 2 Nenno, 970 S.W.2d at 561 ; Roberts v. State, 220 S.W.3d 521, 530 (Tex.Crim.App., 2007)(not yet released for publication).

2025Although he points us to the Kelly factors—the test for reliability when an expert’s testimony is based on hard science—Ortiz agrees that the “[e]xpert testimony in the field of psychology is a ‘soft science.’” 25 rigorous standard than hard science expert testimony” and applying Nenno analysis to expert testimony based on specialized knowledge of law enforcement, not scientific knowledge); Coble v. State, 330 S.W.3d 253, 274 (Tex. Crim.

2025Although he points us to the Kelly factors—the test for reliability when an expert’s testimony is based on hard science—Ortiz agrees that the “[e]xpert testimony in the field of psychology is a ‘soft science.’” 25 rigorous standard than hard science expert testimony” and applying Nenno analysis to expert testimony based on specialized knowledge of law enforcement, not scientific knowledge); Coble v. State, 330 S.W.3d 253, 274 (Tex. Crim.

2009However, soon after Kelly , the Texas Court of Criminal Appeals in Nenno v. State was faced with the issue of whether the expert testimony of a special agent in the Behavioral Science Unit of the FBI, who specialized in studying the sexual victimization of children and who planned to testify about the defendant’s future dangerousness, should be subject to the Kelly factors. 970 S.W.2d 549, 560 (Tex.Crim.App.1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999).

2009However, soon after Kelly , the Texas Court of Criminal Appeals in Nenno v. State was faced with the issue of whether the expert testimony of a special agent in the Behavioral Science Unit of the FBI, who specialized in studying the sexual victimization of children and who planned to testify about the defendant’s future dangerousness, should be subject to the Kelly factors. 970 S.W.2d 549, 560 (Tex.Crim.App.1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999).

2020See Emerson, 880 S.W.2d at 769 (concluding, under the third prong of the Kelly analysis, that the HGN test was admissible because it was administered in accordance with the NHSTA manual); see also, e.g., Smothers v. State, No. 2-03- 00056-CR, 2004 WL 1597652 , at *2 (Tex. App.—Fort Worth July 15, 2004, no pet.) (not designated for publication) (concluding that trial court erred in admitting HGN test results where officer acknowledged that she failed to properly administer the test).

2020See Emerson, 880 S.W.2d at 769 (concluding, under the third prong of the Kelly analysis, that the HGN test was admissible because it was administered in accordance with the NHSTA manual); see also, e.g., Smothers v. State, No. 2-03- 00056-CR, 2004 WL 1597652 , at *2 (Tex. App.—Fort Worth July 15, 2004, no pet.) (not designated for publication) (concluding that trial court erred in admitting HGN test results where officer acknowledged that she failed to properly administer the test).

2002Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Insurance Co. of N. Am. v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ).

2002Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Insurance Co. of N. Am. v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.-Houston [1st Dist.] 1990, no writ).

2002Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Insurance Co. of N. Am. v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ).

2002Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989); Insurance Co. of N. Am. v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.-Houston [1st Dist.] 1990, no writ).

2019Judge Walker's concurring opinion cites Wooten v. State , 267 S.W.3d 289 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd), and Pena v. State , 155 S.W.3d 238 (Tex. App.-El Paso 2004, no pet.), as support for applying the Kelly test here.

2019Judge Walker's concurring opinion cites Wooten v. State , 267 S.W.3d 289 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd), and Pena v. State , 155 S.W.3d 238 (Tex. App.-El Paso 2004, no pet.), as support for applying the Kelly test here.

2003Relying on this and the court of criminal appeals’ ruling in Kelly , the El Paso Court of Appeals concluded that “although radar is a familiar concept, it is based on a scientific theory and therefore subject to proof of reliability and relevance under Kelly.” Ochoa v. State, 994 S.W.2d 283, 284 (Tex.App.—El Paso 1999, no pet.).

2003Relying on this and the court of criminal appeals’ ruling in Kelly , the El Paso Court of Appeals concluded that “although radar is a familiar concept, it is based on a scientific theory and therefore subject to proof of reliability and relevance under Kelly.” Ochoa v. State, 994 S.W.2d 283, 284 (Tex.App.—El Paso 1999, no pet.).

2015In Reynolds, the Court of Criminal Appeals held the determination of reliability for a breath test is modified from the standard Kelly analysis. 204 S.W.3d at 390 . “[T]he 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 [the Texas Department of Public Safety].” Id.

2015In Reynolds, the Court of Criminal Appeals held the determination of reliability for a breath test is modified from the standard Kelly analysis. 204 S.W.3d at 390 . “[T]he 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 [the Texas Department of Public Safety].” Id.

2021In Fowler, decided the year before Nenno, the Waco court held that Kelly applied to the soft sciences. 958 S.W.2d at 863–64 (“We believe that if at least some of the Kelly factors cannot be satisfied, then the testimony should be excluded.”).

2021In Fowler, decided the year before Nenno, the Waco court held that Kelly applied to the soft sciences. 958 S.W.2d at 863–64 (“We believe that if at least some of the Kelly factors cannot be satisfied, then the testimony should be excluded.”).

2015We agree with the State that a challenge to an inadvertent variance in the technique of performing a blood test requires determining whether the existing technique was properly applied, not whether a new technique has been invented and satisfies the Kelly factors. “[T]he third Kelly prong—whether the technique was properly applied on the occasion in question—must necessarily be decided on a case-by-case basis.” Somers v. State, 368 S.W.3d 528 , 537 n.27 (Tex. Crim.

2015We agree with the State that a challenge to an inadvertent variance in the technique of performing a blood test requires determining whether the existing technique was properly applied, not whether a new technique has been invented and satisfies the Kelly factors. “[T]he third Kelly prong—whether the technique was properly applied on the occasion in question—must necessarily be decided on a case-by-case basis.” Somers v. State, 368 S.W.3d 528 , 537 n.27 (Tex. Crim.

2019Hernandez, 116 S.W.3d at 29 . 51 notice of this fact, 53 as the Waco Court noted, judicial notice only satisfies the first two elements of the Kelly test; the State must still establish that “the technique [was] properly applied on the occasion in question.” Vela, 209 S.W.3d at 133–34 (quoting Kelly, 824 S.W.2d at 573 ); Holmes, 135 S.W.3d at 195 (“[W]e take judicial notice of the validity of blood spatter analysis and hold that the State was not required . . . to produce evidence on the first two criteria of Kelly.”).

2019Hernandez, 116 S.W.3d at 29 . 51 notice of this fact, 53 as the Waco Court noted, judicial notice only satisfies the first two elements of the Kelly test; the State must still establish that “the technique [was] properly applied on the occasion in question.” Vela, 209 S.W.3d at 133–34 (quoting Kelly, 824 S.W.2d at 573 ); Holmes, 135 S.W.3d at 195 (“[W]e take judicial notice of the validity of blood spatter analysis and hold that the State was not required . . . to produce evidence on the first two criteria of Kelly.”).

2019Accordingly, Crum specifically objected that the State failed to prove the third element of the Kelly test: that “the technique [was] properly applied on the occasion in question.” Vela v. State, 209 S.W.3d 128 , 133–34 (Tex. 2006) (quoting Kelly, 824 S.W.2d at 573 ).

2019Accordingly, Crum specifically objected that the State failed to prove the third element of the Kelly test: that “the technique [was] properly applied on the occasion in question.” Vela v. State, 209 S.W.3d 128 , 133–34 (Tex. 2006) (quoting Kelly, 824 S.W.2d at 573 ).

2018“The reliability inquiry is . . . a flexible one.” Vela, 209 S.W.3d at 134 ; see Wolfe, 509 S.W.3d at 336 (explaining that the Kelly factors are a nonexclusive list of factors to consider).

2018“The reliability inquiry is . . . a flexible one.” Vela, 209 S.W.3d at 134 ; see Wolfe, 509 S.W.3d at 336 (explaining that the Kelly factors are a nonexclusive list of factors to consider).

2019Judge Walker's concurring opinion cites Wooten v. State , 267 S.W.3d 289 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd), and Pena v. State , 155 S.W.3d 238 (Tex. App.-El Paso 2004, no pet.), as support for applying the Kelly test here.

2019Judge Walker's concurring opinion cites Wooten v. State , 267 S.W.3d 289 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd), and Pena v. State , 155 S.W.3d 238 (Tex. App.-El Paso 2004, no pet.), as support for applying the Kelly test here.