reliability requirement in Texas

2026Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004) (“when a reliability challenge requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis”); In re Commitment of Ausbie, No. 14-18- 00167-CV, 2021 WL 1972407 , at *7 (Tex. App.—Houston [14th Dist.] May 18, 2021, pet. denied) (mem. op.) (“[Appellant] did not object in the trial court to [the State’s expert witnesses]’s expert testimony specifically challenging the reliability of their foundation

2025Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004) (explaining that “when a reliability challenge requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis”).

2026The reliability standard for soft science expert testimony set forth in Nenno is distinct from the standard for hard science expert testimony set forth in Kelly v. State because expert testimony involving soft sciences and fields is “based primarily upon experience and training as opposed to scientific methods.” Id. (distinguishing Kelly, 824 S.W.2d 568, 573 (Tex. Crim.

2019The reliability factors are: “(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.” Vela, 209 S.W.3d at 133–34 (quoting Kelly, 824 S.W.2d at 573 ).

2018The reliability analysis does not require the court to determine the correctness of an expert’s conclusions but “whether the analysis used to reach those conclusions is reliable.” Zwahr, 88 S.W.3d at 629 .

2007The reliability requirement under Rule 702 focuses on the basis of the expert’s opinion — “the principles, research, and methodology underlying an expert’s conclusions.” Zwahr, 88 S.W.3d at 629 (citing Robinson, 923 S.W.2d at 557 ).

2014The Supreme Court of the United States, the Texas Court of Criminal Appeals, and the Supreme Court of Texas have all recognized that scientific evidence can be excluded under a prejudice versus probative value balancing and that such analysis is distinct from the reliability test. 3 See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993); Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995); see also State v. Mechler, 153 S.W.3d 435, 437 (Tex.Crim.App.2005) (applying Rule

2012Nenno v. State, 970 S.W.2d 549, 560 (Tex.Crim.App. 1998). [10] M.P.A. briefed this issue under E.I. du Pont de Nemours and Co. v. Robinson, which controls the reliability inquiry in civil cases. 923 S.W.2d 549, 552-58 (Tex. 1995).

2014The Supreme Court of the United States, the Texas Court of Criminal Appeals, and the Supreme Court of Texas have all recognized that scientific evidence can be excluded under a prejudice versus probative value balancing and that such analysis is distinct from the reliability test. 3 See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993); Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995); see also State v. Mechler, 153 S.W.3d 435, 437 (Tex.Crim.App.2005) (applying Rule

2012M.P.A. briefed this issue under E.I. du Pont de Nemours and Co. v. Robinson, which controls the reliability inquiry in civil cases. 923 S.W.2d 549, 552-58 (Tex.1995).

2024As for the motion to strike, “[a]dmission of expert testimony that does not meet the reliability requirement is an abuse of discretion.” Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006).

2023As for the motion to strike, “[a]dmission of expert testimony that does not meet the reliability requirement is an abuse of discretion.” Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006).

2018“The reliability requirement focuses on the principles, research, and methodology underlying an expert’s conclusions.” Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 254 (Tex. 2004); Williams v. Crawford, No. 03-16-00696-CV, 2018 Tex. App. LEXIS 1641 , at *8 (Tex. App.—Austin Mar. 2, 2018 n. pet. h.) (mem. op.).

2018Kerr–McGee Corp. v. Helton, 133 S.W.3d 245 , 251–52 (Tex. 2004) (abrogated on other grounds by Coastal Transport Co. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004)); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998).3 Accordingly, appellant’s complaint was preserved. 3 If a reliability challenge is restricted to the face of the record—i.e., that it is allegedly speculative or conclusory on its face—a party may still challenge the legal sufficiency of the evidence in the absence of any objection to its admissibility.

2015Evid. 702. 843 In re Commitment of Bohannan, 388 S.W.3d 296, 306 (Tex. 2012); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (observing that in some cases, the reliability inquiry will focus upon the expert’s experience); Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 905 (Tex. 2004) (″In some situations, the witness’s skill and experience alone may provide a sufficient basis for the expert’s opinion.″). 844 Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998). 845 Fed.

2015“In reviewing the reliability of expert testimony, the court is not to determine whether the expert's conclusions are correct; rather, the court should determine only whether the analysis used to reach those conclusions is reliable.” Helton, 133 S.W.3d at 254 (citing Gammill, 972 S.W.2d at 728 ). [16] When a reliability challenge requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis.

2001Accordingly, it is upon the reliability inquiry that trial courts can weed out testimony pertaining to so-called "junk science." Id.

2001Accordingly, it is upon the reliability inquiry that trial courts can weed out testimony pertaining to so-called “junk science.” Id.

2015App. 1992); see Tillman, 354 S.W.3d at 435 (“The focus of the reliability analysis is to determine whether the evidence has its basis in sound scientific methodology such that testimony about ‘junk science’ is weeded out.”).

2015The focus of the reliability analysis is to determine “whether the evidence has its basis in sound scientific methodology such that testimony about junk 37 science is weeded out.” Tillman, 354 S.W.3d at 435 (internal quotes omitted).

1999Although scientific extrapolation evidence, if offered, may be subject to a reliability analysis, see Hartman, 946 S.W.2d at 62-63 , such evidence is not required to establish the breath test’s reliability.

1998We cannot legitimately exclude certain expertise from the reliability requirement merely because some critics feel “the criteria used to evaluate scientific testimony cannot be properly applied to fields of expertise which are not based on the scientific method.” Nations, 944 S.W.2d at 800 ; see Hartman v. State, 946 S.W.2d 60, 63 (Tex.Crim.App.1997) (Rule 702 applies to all scientific evidence, not just “novel” scientific evidence).

2008See Smith , 131 S.W.3d at 932 (holding that the requirement to conduct a reliability hearing was not invoked because appellant failed to request a hearing); Cates v. State , 72 S.W.3d 681, 699 (Tex. App. C Tyler 2001, pet. ref = d) (failure to request an article 38.072 hearing waives error on appeal); see also Diaz v. State , 125 S.W.3d 739, 743 (Tex. App. C Houston [1st Dist.] 2003, pet. ref = d) (holding that appellant failed to preserve error because he did not object to the trial court = s denial of that hearing). [2] There is a split among some courts of appeals as to whether a general he

2008See Smith , 131 S.W.3d at 932 (holding that the requirement to conduct a reliability hearing was not invoked because appellant failed to request a hearing); Cates v. State , 72 S.W.3d 681, 699 (Tex. App. C Tyler 2001, pet. ref = d) (failure to request an article 38.072 hearing waives error on appeal); see also Diaz v. State , 125 S.W.3d 739, 743 (Tex. App. C Houston [1st Dist.] 2003, pet. ref = d) (holding that appellant failed to preserve error because he did not object to the trial court = s denial of that hearing). [2] There is a split among some courts of appeals as to whether a general he

2024Gant largely challenges the methodology Dr. Turner followed in forming his opinion, asserting that “Dr. Turner’s opinion was not based on statistical evidence scientifically supporting his recidivism prediction” and that “Dr. Turner’s opinion is –8– not based on data that supports his conclusions.” “[W]hen a reliability challenge requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis.” Pollock, 284 S.W.3d at 817 (quoting Coastal Transp.,

2023“An objection is required to give the proponent a fair opportunity to cure any deficit and thus prevent trial by ambush.” Pollock, 284 S.W.3d at 817 . “[W]hen a reliability challenge requires the [trial] court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis.” Coastal Transp.

2015This Court recently reaffirmed the reliability standard for epidemiological studies used to prove causation: to be legally sufficient causation evidence, epidemiological studies must show a statistically-significant doubling of the risk at Reply Brief on the Merits Page 1 a 95% confidence interval.1 See Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332 (Tex. 2014); Merck & Co. v. Garza, 347 S.W.3d 256, 262 (Tex. 2011); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711-12 (Tex. 1997).

2011In a no-evidence review, an appellate court considers “whether the evidence at trial would enable reasonable and fair-minded [jurors] to reach the verdict.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). “[A] no-evidence review encompasses the entire record, including contrary evidence tending to show the expert opinion is incompetent or unreliable.” Whirlpool, 298 S.W.3d at 638 (citing City of Keller, 168 S.W.3d at 814 ). 5 “Admission of expert testimony that does not meet the reliability requirement is an abuse of discretion.” Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 8

2004His argument is based upon statements in Guadalupe-Blanco River Authority v. Kraft , 77 S.W.3d 805 (Tex. 2002), that a valuation fails to meet the reliability requirement of expert testimony if it is based upon a "bald assurance" that the witness used comparable sales or sales that were not truly comparable and a court should independently evaluate the underlying data in determining if the opinion itself is reliable.

2004His argument is based upon statements in Guadalupe-Blanco River Authority v. Kraft , 77 S.W.3d 805 (Tex. 2002), that a valuation fails to meet the reliability requirement of expert testimony if it is based upon a "bald assurance" that the witness used comparable sales or sales that were not truly comparable and a court should independently evaluate the underlying data in determining if the opinion itself is reliable.

2024App. 1990) (“Even though the trial court submitted no written findings that the statement is reliable, . . . the trial court’s ruling at the hearing outside the presence of the jury implied that it found the nurse’s testimony to be reliable, thereby complying with [Article 38.072, Section 2(b)(2)].”); Gabriel v. State, 973 S.W.2d 715, 718 (Tex. App.—Waco 1998, no pet.) (holding that trial court implicitly found outcry 6 “[T]he testimony of a child victim alone is sufficient to support a conviction for indecency with a child.” Garner v. State, No. 02-15-00171-CR, 2016 WL 4247970 , at *3 (Tex. A

2009“After conducting a reliability hearing a trial judge is not required to enter written findings regarding the reliability of an outcry, but the judge may impliedly find the testimony reliable by overruling a defendant’s objections to the evidence and holding that the testimony is admissible.” Gabriel v. State, 973 S.W.2d 715, 718 (Tex. App.–Waco 1998, no pet.) (citing Villalon v. State, 791 S.W.2d 130, 136 (Tex. Crim.

2009“After conducting a reliability hearing a trial judge is not required to enter written findings regarding the reliability of an outcry, but the judge may impliedly find the testimony reliable by overruling a defendant’s objections to the evidence and holding that the testimony is admissible.” Gabriel v. State, 973 S.W.2d 715, 718 (Tex. App.–Waco 1998, no pet.) (citing Villalon v. State, 791 S.W.2d 130, 136 (Tex. Crim.

2009"After conducting a reliability hearing a trial judge is not required to enter written findings regarding the reliability of an outcry, but the judge may impliedly find the testimony reliable by overruling a defendant's objections to the evidence and holding that the testimony is admissible." Gabriel v. State , 973 S.W.2d 715, 718 (Tex. App.-Waco 1998, no pet.) (citing Villalon v. State , 791 S.W.2d 130, 136 (Tex. Crim.

2015Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994) (″Any step that renders the analysis unreliable … renders the expert’s testimony inadmissible.″). 244 Amorgianos, 303 F.3d at 267 ; see also Knight, 482 F.3d at 355 (″The reliability analysis applies to all aspects of an expert’s testimony: the methodology, the facts underlying the expert’s opinion, the link between the facts and the conclusion, et alia.″ (quoting Heller, 167 F.3d at 155 )). 245 2 Goode, Wellborn & Sharlot, supra note 114, § 702.6, at 55-57. 246 United States v. Valencia, 600 F.3d 389, 424 (5th Cir. 2010) (quoting Kumho Tire Co.

2015Evid. 702. 843 In re Commitment of Bohannan, 388 S.W.3d 296, 306 (Tex. 2012); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (observing that in some cases, the reliability inquiry will focus upon the expert’s experience); Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 905 (Tex. 2004) (″In some situations, the witness’s skill and experience alone may provide a sufficient basis for the expert’s opinion.″). 844 Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998). 845 Fed.

2015Rev. 1 , *199 Despite its identification of these factors, the Supreme Court stressed that the inquiry envisioned by Rule 702 is a ″flexible″ one. 1184 On remand, the Ninth Circuit added another factor for assessing reliability: whether the technique was derived through independent research or was developed for litigation purposes. 1185 The Ninth Circuit noted the expert’s bald assurances that the opinions are based on sound scientific techniques was insufficient; the expert had to offer some objective, independent validation of that methodology. 1186 The Texas Supreme Court followed the lead

2014The Supreme Court of the United States, the Texas Court of Criminal Appeals, and the Supreme Court of Texas have all recognized that scientific evidence can be excluded under a prejudice versus probative value balancing and that such analysis is distinct from the reliability test. 3 See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 595 , 113 S.Ct. 2786 , 125 L.Ed.2d 469 (1993); Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995); see also State v. Mechler, 153 S.W.3d 435, 437 (Tex.Crim.App.2005) (applying Rule

2024An expert’s “validation, expertly performed and subject to cross- examination, ought to suffice for judicial purposes.” Id. 19 In Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338 (Tex. 2015), the Supreme Court of Texas stated, [In a reliability analysis,] an expert is allowed to consult such material in coming to their opinions.

2021“If an appraiser utilizes improper methodology or misapplies established rules and principles, the resulting testimony is unreliable and must be excluded.” Enbridge Pipelines, 386 S.W.3d at 262 ; see also Gharda, 464 S.W.3d at 347–48 (“Admission of expert testimony that does not meet the reliability requirement is an abuse of discretion.” (quoting Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006))).

2018Kerr–McGee Corp. v. Helton, 133 S.W.3d 245 , 251–52 (Tex. 2004) (abrogated on other grounds by Coastal Transport Co. v. Crown Central Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004)); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998).3 Accordingly, appellant’s complaint was preserved. 3 If a reliability challenge is restricted to the face of the record—i.e., that it is allegedly speculative or conclusory on its face—a party may still challenge the legal sufficiency of the evidence in the absence of any objection to its admissibility.

2016Examination of the expert’s underlying methodology, technique, or foundational data as part of a reliability challenge is “a task for the trial court in its role as gatekeeper, and [is] not an analysis that should be undertaken for the first time on appeal.” Coastal Transp., 136 S.W.3d at 233 (explaining prior holding in Maritime Overseas, 971 S.W.2d at 412 ).

2015In its 2009 decision in Whirlpool, the Texas Supreme Court held that an expert’s failure to offer ″an explanation of why″ testing of the expert’s opinion was not performed may, along with the absence of other Daubert factors, rendered that opinion conclusory. 1646 The plaintiffs brought a wrongful death action against the clothes dryer manufacturer after a house fire. 1647 An electrical engineer testified that the dryer was defectively designed because it allowed accumulated lint to be drawn into the heater where it ignited. 1648 The Court stated that the reliability inquiry includes a rigorou

2011In a no-evidence review, an appellate court considers “whether the evidence at trial would enable reasonable and fair-minded [jurors] to reach the verdict.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). “[A] no-evidence review encompasses the entire record, including contrary evidence tending to show the expert opinion is incompetent or unreliable.” Whirlpool, 298 S.W.3d at 638 (citing City of Keller, 168 S.W.3d at 814 ). 5 “Admission of expert testimony that does not meet the reliability requirement is an abuse of discretion.” Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 8

2005The decision in White v. Illinois, 502 U.S. 346 , 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992), treating the hearsay exception for spontaneous declarations as a "firmly rooted” one for the purpose of applying the reliability test of Roberts [ 448 U.S. 56, 66 , 100 S.Ct. 2531 (1980)] gave leeway to prosecutors and courts to try cases by introducing statements made in 911 calls and to responding officers (as evidence of the truth of the matter asserted), even if the declarant did not testify. 6 .

2005The decision in White v. Illinois, 502 U.S. 346 , 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992), treating the hearsay exception for spontaneous declarations as a "firmly rooted” one for the purpose of applying the reliability test of Roberts [ 448 U.S. 56, 66 , 100 S.Ct. 2531 (1980)] gave leeway to prosecutors and courts to try cases by introducing statements made in 911 calls and to responding officers (as evidence of the truth of the matter asserted), even if the declarant did not testify. 6 .

2023Id. at 640–41; accord Citizen v. State, No. 13-14-00379-CR, 2015 Tex. App. LEXIS 1203 , at *21 (Tex. App.—Corpus Christi Feb. 5, 2015, no pet.) (mem. op., not designated for publication) (stating that a “complaint regarding the failure to hold a reliability hearing under article 38.072 is forfeited if it is not raised at trial and if there is no objection to the outcry testimony”).

2015See Citizen v. State, No. 13-14-00379-CR, 2015 WL 513367 , at *7 (Tex. App.—Corpus Christi Feb. 5, 2015, no pet.) (mem. op., not designated for publication) ("A complaint regarding the failure to hold a reliability hearing under article 38.072 is forfeited if it is not raised at trial and if there is no objection to the outcry testimony."); Williams v. State, No. 02-10-00118-CR, 2011 WL 1601290 , at *6 (Tex. App.—Fort Worth Apr. 28, 2011, pet. refd) (mem. op., not designated for publication) ("[A] complaint regarding the lack of a reliability hearing under article 38.072 is forfeited if it is

2016See Neil v. Biggers, 409 U.S. 188, 198 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972) (stating that admission of evidence from show-up identification ■ should not be excluded without additional evidence of unnecessary suggestiveness). 3 Whether Fraustro’s on-the-scene identification of appellant meets the reliability standard of Neil is not an issue we must resolve in addressing appellant’s sufficiency challenge. 4 In reviewing the sufficiency of the evidence, we consider all evidence in the record, whether it was admissible or inadmissible.

2016See Neil v. Biggers, 409 U.S. 188, 198 , 93 S.Ct. 375 , 34 L.Ed.2d 401 (1972) (stating that admission of evidence from show-up identification ■ should not be excluded without additional evidence of unnecessary suggestiveness). 3 Whether Fraustro’s on-the-scene identification of appellant meets the reliability standard of Neil is not an issue we must resolve in addressing appellant’s sufficiency challenge. 4 In reviewing the sufficiency of the evidence, we consider all evidence in the record, whether it was admissible or inadmissible.

2019The reliability factors are: “(a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.” Vela, 209 S.W.3d at 133–34 (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).

2005The decision in White v. Illinois, 502 U.S. 346 , 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992), treating the hearsay exception for spontaneous declarations as a "firmly rooted” one for the purpose of applying the reliability test of Roberts [ 448 U.S. 56, 66 , 100 S.Ct. 2531 (1980)] gave leeway to prosecutors and courts to try cases by introducing statements made in 911 calls and to responding officers (as evidence of the truth of the matter asserted), even if the declarant did not testify. 6 .

2005The decision in White v. Illinois, 502 U.S. 346 , 112 S.Ct. 736 , 116 L.Ed.2d 848 (1992), treating the hearsay exception for spontaneous declarations as a "firmly rooted” one for the purpose of applying the reliability test of Roberts [ 448 U.S. 56, 66 , 100 S.Ct. 2531 (1980)] gave leeway to prosecutors and courts to try cases by introducing statements made in 911 calls and to responding officers (as evidence of the truth of the matter asserted), even if the declarant did not testify. 6 .