potential rate error in Texas

2024Id. at 713 . 12 Those factors are: “(1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique.” Robinson, 923 S.W.2d at 557 (internal citations omitted). 34 The nature of toxic ex

2023Augmenting the above standards, our decision in Robinson identified six non-exclusive factors courts may consider in determining whether expert testimony is reliable: 1. the extent to which the theory has been or can be tested; 2. the extent to which the technique relies upon the subjective interpretation of the expert; 3. whether the theory has been subjected to peer review and/or publication; 4. the technique’s potential rate of error; 11 5. whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and 6. the non-judicial uses which

2015State, 824 S.W.2d 568,573 . 12 Other non-exclusive factors that could affect a trial court's determination of reliability include: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with

2014Suggested factors in the trial court’s determination of reliability include: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the experts testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique

2025Cell phone mapping has been recognized as a soft science and a “relatively simple task of mapping the general location[.]” Alyea v. State, No. 14-19-00498- CR, 2021 WL 5117972 , at *3 (Tex. App.—Houston [14th Dist.] Nov. 4, 2021, pet. ref’d) (mem. op., not designated for publication) (citing Thompson, 425 S.W.3d at 489 ); Robinson v. State, 368 S.W.3d 588, 601 (Tex. App.—Austin 2012, pet. ref’d)); see also; Hollins, 2024 WL 4982504 , at *17. “[H]ard science methods of validation, such as assessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for

2013For example, in Nenno , the court of criminal appeals explained that the “hard science methods of validation, such as assessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside the hard sciences.” 970 S.W.2d at 561 .

2023These factors include, but are not limited to: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert []; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and 31 later noted that these factors “cannot always be used with other kinds of expert testimony.” See Gammill v. Jack Williams Chevrolet, Inc., 972

2021Gammill, 972 S.W.2d at 727 ; see also Ledesma, 242 S.W.3d at 39 ; Cooper Tire & 9 The Robinson factors include: “(1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique.” Robins

2024Id. at 713 . 12 Those factors are: “(1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique.” Robinson, 923 S.W.2d at 557 (internal citations omitted). 34 The nature of toxic ex

2015Six nonexclusive factors are used in determining whether scientific testimony is reliable: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and putlication; (4) the technique's potential rate of error; (5) whether the irnderlying theory or technique has been generally accepted as valid by the relevant scientihc community; and (6) the non-judicial uses that have been made of the theory or technique. 8 () Gross v. Burt, 149 S,W.3d at

2025Coble, 330 S.W.3d at 272 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 589–90 (1993)). 26 In determining whether scientific evidence is reliable, courts look at a variety of factors, which can include the following: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of

2015Id. 1190 Id. 1191 Id. at 556 . 1192 Id. at 553 . 1193 Id. at 557 (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 (1993)). 1194 Id. (including factors such as ″(1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert … ; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judic

2021Gammill, 972 S.W.2d at 727 ; see also Ledesma, 242 S.W.3d at 39 ; Cooper Tire & 9 The Robinson factors include: “(1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique.” Robins

2015Co. v. Lerma, 143 S.W.3d 172, 176-78 (Tex. App. - San Antonio 2004, pet. denied) (holding in wrongful death claim that physician’s causation opinion was unreliable when physician admitted he knew of no scientific literature indicating a person could get tetanus more than twenty-one days after being injured and did not exclude other plausible causes of injury). 1371 Brown & Rondon, supra note 35, at 691 n.183. 1372 See Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 802 (Tex. 2006) (″The technique’s potential rate of error is unknown because no testing of Grogan’s wax contamination theory h

2005Kelly , 824 S.W.2d at 573 . [3] The A hard @ and A soft @ sciences were distinguished in Weatherred v. State , 15 S.W.3d 540 , 542 n.5 (Tex. Crim.

2003Id. at 561 ; see also Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.

2014Evid. 803(18); Robinson, 923 S.W.2d at 556 . 33 Camacho, 298 S.W.3d at 638 (citations omitted). 28 (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique.

2013These factors include, but are not limited to: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert . . . ; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique. 33 Camacho, 298 S.W.3d at 638 (citations omitted). 28 We emphasize

2011See Nenno, 970 S.W.2d at 561 & n. 9; see, e.g., Winston, *714 78 S.W.3d at 527-29 (involving some peer review via approval of techniques by other experts and evidence of dogs’ success in identification).

2011Id.; see Winston, 78 S.W.3d at 526 n. 2. 6 .

2022Somers, 368 S.W.3d at 536 .

2021Somers, 368 S.W.3d at 536 .

2001Kelly, 824 S.W.2d at 573 ; Forte v. State, 935 S.W.2d 172, 176 (Tex.App.-Fort Worth 1996, pet. ref'd).

2001Kelly, 824 S.W.2d at 573 ; Forte v. State, 935 S.W.2d 172, 176 (Tex.App.—Fort Worth 1996, pet. ref'd).

2015Kelly, 824 S.W.2d at 573 ; see Jessop, 368 S.W.3d at 671 .

2015Kelly, 824 S.W.2d at 573 ; see Jessop, 368 S.W.3d at 671 .

2011See Hernandez , 116 S.W.3d at 29 ("Once a scientific principle is generally accepted in the pertinent professional community and has been accepted in a sufficient number of trial courts through adversarial Daubert / Kelly hearings, subsequent courts may take judicial notice of the scientific validity of that scientific theory based upon the process, materials, and evidence produced in those prior hearings.") 28.

2011See Hernandez, 116 S.W.3d at 29 ("Once a scientific principle is generally accepted in the pertinent professional community and has been accepted in a sufficient number of trial courts through adversarial Daubert/Kelly hearings, subsequent courts may take judicial notice of the scientific validity of that scientific theory based upon the process, materials, and evidence produced in those prior hearings.”) .

2005Robinson, 923 S.W.2d at 557 ; see Volkswagen of Am., Inc. v. Ramirez, No. 02-0557, 2004 WL 3019227, at *4 (Tex. 2004).

2005Robinson , 923 S.W.2d at 557 ; see Volkswagen of Am., Inc. v. Ramirez , No. 02-0557, 2004 WL 3019227, at *4 (Tex. 2004).

2012Id. (citations omitted).

2005Jordan v. State , 928 S.W.2d 550 , 554 n.6 (Tex. Crim.

2016Id. (citing Robinson, 923 S.W.2d at 557 ). 8 building lease and operating expense reports.  Jones conducted industry research on the cellular phone business through IBISWorld, which is a database that reflects detailed operations of the cellular phone business.  Jones reviewed various interest rates at the time of the assignment; looked at national, regional, and local economy information from the Federal Reserve Bank; and reviewed a national guide to obtain the value of cellular phone businesses.  Based on the scope of his review and interviews of all four partners, Jones believed he had s

2015See id. at 235, n. 2 .

2015No claim to original U.S. Government Works. 7 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (2006) 50 Tex. Sup. Ct. J. 80 8 Elwell's testimony on design defect, as opposed to his testimony on causation, was not excluded.

2007Mack Trucks, 206 S.W.3d at 579 . 8 In Robinson, the supreme court listed six nonexclusive factors a trial court may consider in making the threshold determination of admissibility: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-ju

2025Coble, 330 S.W.3d at 272 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 , 589–90 (1993)). 26 In determining whether scientific evidence is reliable, courts look at a variety of factors, which can include the following: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of

2020Kelly, 824 S.W.2d at 573 . 47 Under both Daubert/Kelly and Nenno, “reliability should be evaluated by reference to the standards applicable to the particular professional field in question.” Coble v. State, 330 S.W.3d 253, 274 (Tex. Crim.

2023Sexton, 93 S.W.3d at 100 .

2022Sexton v. State, 93 S.W.3d 96, 100 (Tex. Crim.

2018Id. at 274 .

2015Evid. 702 advisory committee’s note. 1749 Gammill, 972 S.W.2d at 726 . 1750 See, e.g., Escamilla v. State, 334 S.W.3d 263, 269 (Tex. App. - San Antonio 2010, pet. ref’d) (holding that opinion of expert with extensive experience conducting sexual assault examinations was not reliable because expert stated that her opinion was ″based on [her] training,″ conferences she attended, ″[her] readings and stuff,″ and ″research and the peer reviews,″ and because expert could not identify specific articles or studies, did not establish that her technique was generally accepted in the medical community, i

2010Id. (em phasis in original). 27 applied)).

2010Id. (em phasis in original). 27 case.” Winston v. State, 78 S.W.3d 522, 526 (Tex. App.–Houston [14th Dist.] 2002, pet. ref’d) (citing Brooks v. People, 975 P.2d 1105, 1106 (Colo. 1999) (holding that canine scent-tracking evidence does not constitute evidence subject to Daubert scientific validation factors but that conventional Rule 702 and Rule 403 analysis should be applied)).