WILLIAM THOMAS LEONARD, Appellant v. THE STATE OF TEXAS (Concurring)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0551-10
WILLIAM THOMAS LEONARD, Appellant

v.

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
TARRANT COUNTY
Hervey, J., filed a concurring opinion in which Keller, P.J., and Keasler, J., joined.

CONCURRING OPINION

I join the Court's opinion, but I write separately to comment that the dissent disregards a key part of our holding in Hernandez v. State, 116 S.W.3d 26 (Tex. Crim. App. 2003). In Hernandez, we emphasized that appellate courts may not be "independent scientific sleuths to ferret out the appropriate scientific materials." Id. at 31. The trial court is the proper venue for the presentation of scientific articles and learned treatises. Id. at 30. After all, "[t]he trial court hearing is the main event for Daubert/Kelly gatekeeping hearings; it is not a try-out on the road to an appellate scientific seminar." Id.

Although the dissent cites to Hernandez, it does precisely that which we prohibited by relying on Professor Faigman's Modern Scientific Evidence and the National Research Council's The Polygraph and Lie Detection, materials not presented to the trial court. "An appellate court that consults scientific literature on its own initiative thrusts itself into the position of a fact finder-a position appellate courts traditionally do not occupy and for which they are ill-suited." Hernandez, 116 S.W.3d at 32 (Keller, P.J., concurring).

With these comments, I join the Court's opinion.

Hervey, J.

Filed: March 7, 2012

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