Leonard, William Thomas

Opinion

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

H ERVEY, J., filed a concurring opinion in which K ELLER, P.J., and K EASLER, 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. Leonard concur - 2

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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