Smith v. State

BAIRD, Judge,

concurring to the refusal of appellant’s petition for discretionary review.

Appellant was convicted of possession of a controlled substance and sentenced to thirty years confinement. The Court of Appeals affirmed. Smith v. State, 874 S.W.2d 720 (Tex.App.—Houston [1st Dist.] 1994). In his petition for discretionary review appellant contends the tests conducted by the State to determine or identify a controlled substance, and the results from those tests, were insufficient to support the jury’s verdict.¹

A majority of the Court has chosen to refuse appellant’s petition. Although I have serious questions concerning the correctness of the Court of Appeal’s opinion, I do not believe the instant record is itself sufficient to address the issues raised in appellant’s petition. Resolution of these issues will require the Court to take judicial notice of a body of scientific evidence that is not before the Court, a practice I believe should be saved for only the most extraordinary situations. Emerson v. State, 880 S.W.2d 759, 772 (Tex.Cr.App.1994) (Baird, J., dissenting). Therefore, I join the majority in refusing this petition but emphasize our statements in Sheffield v. State, 650 S.W.2d 813, 814 (Tex.Cr.App.1983):

To prevent any misunderstanding, we take this opportunity to emphasize that the summary refusal of a petition for discretionary review by this Court is of no prece-dential value. This is true where the petition is refused without opinion, as is the usual practice, as well as where the petition is refused with a brief opinion disavowing the reasoning employed by the Court of Appeals, as in the instant case. The Bench and Bar of the State should not assume that the summary refusal of a petition for discretionary review lends any additional authority to the opinion of the Court of Appeals.

Id. See also, Hill v. State, 690 S.W.2d 900, 901 (Tex.Cr.App.1985); May v. State, 660 S.W.2d 888, 890 n. 1 (Tex.App.1983); O’Brien v. State, 658 S.W.2d 267 (Tex.App.1983); and, Campbell v. State, 647 S.W.2d 660 (Tex.Cr.App.1983).

With these comments, I concur in the majority’s refusal of appellant’s petition for discretionary review.

1 . Appellant’s ground for review states:

Is the evidence sufficient to sustain a conviction for possession of a controlled substance when the State does not have a valid scientific test identifying the controlled substance and therefore relies on a field test conducted by a non-expert.