Full opinion text
OPINION REX D. DAVIS, Chief Justice. A jury recommended that Kaltina Spencer’s parental rights be terminated with respect to her three-year-old son J.B. The court rendered judgment in accordance with the verdict. Spencer presents fifteen issues in this appeal. In the first, Spencer contends that the court erred by requiring her to proceed to trial with less than forty-five days’ notice as required by Rule of Civil Procedure 245. Because this issue is dispositive, we will address only those of her remaining issues which we are required to or which are likely to arise on retrial. BACKGROUND J.B. was born on February 11, 1999. At the time, Spencer had a pending state jail felony theft charge. She was placed on community supervision for this offense on June 10. The court ordered her to serve 120 days in a state jail as a condition of her community supervision and had her immediately taken in custody. Spencer left J.B. in the care of his uncle. The uncle contacted the Child Protective Services Division of the Department of Protective and Regulatory Services (“CPS”) the next day and asked the agency to take custody of J.B. A CPS investigator contacted Spencer at the McLennan County Jail regarding any alternate placements. Spencer could provide no alternatives for placement, so CPS initiated custody proceedings. Spencer remained incarcerated until October 12. During her incarceration, she wrote two letters to the trial judge. In the second, she asked for a bench warrant so she could appear for an upcoming hearing. After her release, Spencer apparently remained in contact with the CPS caseworker assigned to J.B.’s case. Permanency progress reports filed by CPS in November 1999 and March 2000 reflect communications between Spencer and the caseworker. Spencer wrote the judge another letter on April 4 asking that J.B. be returned to her custody and expressing her willingness “to do what ever the court ask me to do to make this possible.” CPS filed an amended petition on April 18 seeking termination of the parental rights of Spencer and J.B.’s father. The court signed an interlocutory no-answer default judgment on June 8 terminating Spencer’s parental rights. The court signed a separate order on that date extending the statutory dismissal date to December 16. See Tex. Fam.Code. Ann. § 263.401(b) (Vernon Supp.2002). Spencer filed a motion to set aside the default judgment on September 7. Spencer alleged that the default judgment was improper because her letters to the judge constituted answers and she was not given notice of the trial setting. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87, 108 S.Ct. 896, 900, 99 L.Ed.2d 75, 82 (1988); Lopez v. Lopez, 757 S.W.2d 721, 728 (Tex.1988) (per curiam). The court granted Spencer’s motion for new trial on September 12. In the meantime, the court sent notice of trial on September 8. The notice informed the parties that the case was set for “final hearing” on October 28. CPS sent a follow-up notice on September 21 clarifying that the case would be heard on October 24. Spencer filed a motion for continuance on September 26 asking for additional time to prepare for trial because: (1) she did not receive the forty-five days’ notice required by Rule of Civil Procedure 245; and (2) her counsel needed additional time to organize the “approximately 1,000 pages” of documents provided by CPS on September 21 and to conduct appropriate discovery. The court heard Spencer’s continuance motion on September 29 and “grant[ed] the continuance until October 31st.” Spencer filed a second continuance motion on October 19, contending that the notice given by the court on September 29 of the October 31 setting still did not provide the forty-five days’ notice required by Rule 245. The court heard this motion on October 24 and denied it. Spencer noticed depositions for three of CPS’s witnesses on October 25. CPS filed a motion to quash these deposition notices the next day. The court heard this motion on October 27. At the hearing, Spencer made a third continuance motion again urging Rule 245 as the basis for the continuance. The court granted CPS’s motion to quash and denied Spencer’s third continuance motion that same day. The parties proceeded to trial as scheduled on October 31. The jury returned its verdict on November 9. The court signed the decree on November 17. NO EVIDENCE Spencer claims in her second issue that the record contains no evidence or factually insufficient evidence to support a finding that she knowingly placed or allowed J.B. to remain in dangerous conditions or surroundings. When we decide a “no evidence” point, we consider only the evidence and inferences which tend to support the contested issue and disregard all evidence and inferences to the contrary. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). We will sustain a no evidence point if: (a) there is a complete absence of evidence of a vital fact; (b) we are barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. Id. (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L.Rev. 361, 362-63 (I960)). “More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (quoting Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.1994)). We apply this standard of review in termination cases, which require proof by clear and convincing evidence, even though this standard was developed in preponderance-of-the-evidence cases. See In re A.P., 42 S.W.3d 248, 256 (Tex.App.-Waco 2001, no pet.); Justice Bill Vance, The Clear and Convincing Evidence Standard in Texas: A Critique, 48 BayloR L.Rev. 391, 413 (1996). When J.B. was three months’ old, part of the roof of the house in which Spencer and he were living collapsed in a rainstorm. They “immediately moved out.” They lived for a period of time in a local motel. An acquaintance of Spencer’s testified that her motel room was “filthy.” She would not have allowed her own children to live “in something like that.” According to this witness’s testimony, Spencer and J.B. lived in the motel room for a period of time, though she could not say how long. The evidence regarding the condition of Spencer’s motel room constitutes some probative evidence that Spencer knowingly allowed J.B. to remain in dangerous conditions or surroundings. Thus, we conclude that the no-evidence portion of Spencer’s second issue is without merit. In view of our disposition of the no-evidence portion of Spencer’s second issue, we need not address the no-evidence portions of her third and fourth issues. In view of our disposition of Spencer’s notice issue, we need not address those portions of her second, third and fourth issues which challenge the factual sufficiency of the evidence to support the verdict. NOTICE OF TRIAL SETTING Spencer argues in her first issue that reversal is required because she did not receive the notice required by Rule 245. We agree. Rule 245 provides in pertinent part: The Court may set contested cases on written request of any party, or on the court’s own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties. Non-contested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time. Tex.R. Civ. P. 245. Rule 245 requires that a party to a contested case receive “notice of not less than forty-five days” for a first trial setting. See id. The district clerk notified the parties on September 8 that the case was set for trial on October 23. The clerk sent this notice by facsimile machine and by certified mail, return receipt requested. This added three days to the forty-five provided by Rule 245. Id. 21a; Lewis v. Blake, 876 S.W.2d 314, 316 (Tex.1994) (per curiam). Thus, the trial could not have commenced before October 26. For this reason, the September 8 notice did not provide adequate notice of trial under Rule 245. CPS sent a letter to the attorneys in the ease on September 21 notifying them that the trial would begin on October 24. Although the record does not indicate the manner in which this letter was served on counsel, the letter itself is dated only thirty-three days before the trial setting. Thus, it did not satisfy Rule 245. The court heard Spencer’s first motion for continuance on September 29. Apparently the court agreed that its initial notice did not satisfy Rule 245, because it granted Spencer’s continuance motion in part. The court rescheduled Spencer’s trial for October 31. Thus, the court gave Spencer thirty-two days’ notice of the October 31 trial setting. This did not satisfy Rule 245. Spencer’s second and third continuance motions objected that the court’s September 29 notice still did not satisfy Rule 245. CPS responded that under the combined notices Spencer had more than forty-five days notice (from September 8 to October 31) that her case would go to trial. The court apparently accepted this reasoning and denied Spencer’s second and third continuance motions. Rule 245 requires a minimum of forty-five days’ notice of the trial “setting.” Id. 245. Notice that a case is going to trial does not equate to notice of when the case is going to trial. None of the notices in this case provided the required notice. See Bell Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139, 140-41 (Tex.App.-Texarkana 1993, writ denied). Accordingly, the court abused its discretion by denying Spencer’s continuance requests. We now decide whether this error requires reversal. Several courts have reversed for violation of Rule 245 without reference to harm. See, e.g., Platt v. Platt, 991 S.W.2d 481, 484 (Tex.App.-Tyler 1999, no pet.); In re Estate of Crenshaw, 982 S.W.2d 568, 571 (Tex.App.-Amarillo 1998, no pet.); Carson v. Hagaman, 824 S.W.2d 267, 269-70 (Tex.App.-Eastland 1992, no writ). The courts seem to have done so because of a perception that providing less notice than required by Rule 245 constitutes a due process violation or because compliance with the rule is “mandatory.” See Platt, 991 S.W.2d at 483; Crenshaw, 982 S.W.2d at 571; Carson, 824 S.W.2d at 269-70. At least one court has conducted a harm analysis before reversing for violation of Rule 245. See Bell Helicopter Textron, 863 S.W.2d at 141. Due process requires that a party receive “reasonable notice” of trial. See Peralta, 485 U.S. at 84, 108 S.Ct. at 899, 99 L.Ed.2d at 81; In re Marriage of Parker, 20 S.W.3d 812, 818 (Tex.App.-Texarkana 2000, no pet.). “Rule 245 provides a notice requirement that goes beyond the requirements of due process.” Parker, 20 S.W.3d at 818. We agree with this reasoning and conclude that the fact that a party has received less than the forty-five days’ notice required by Rule 245 does not, standing alone,- constitute a due process violation. Id. at 818-19. To obtain reversal on the basis of trial error, a party must establish that the error was “harmful.” See Tex.R.App. P. 44.1(a); Texas Dep't of Human Servs. v. White, 817 S.W.2d 62, 63 (Tex.1991); Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex.App.-Houston [1st Dist.] 1996), aff'd, 972 S.W.2d 35 (Tex.1998). A trial error requires reversal (i.e., is “harmful”) if it: (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals. Tex.R.App. P. 44.1(a); White, 817 S.W.2d at 63. Spencer’s attorneys made their first appearance in her behalf on September 7 when they filed the motion for new trial. CPS provided counsel with a copy of “the Department’s file” on September 21. According to Spencer’s counsel, “The file contains approximately 1000 pages, completely out of order, which must be organized, categorized and reviewed prior to even being able to depose witnesses.” CPS did not dispute this characterization in the hearing on Spencer’s first continuance motion. Spencer’s counsel served discovery requests on CPS on September 23. The court heard Spencer’s first continuance motion on September 29. Spencer’s counsel informed the court in this hearing that he would like to depose some of CPS’s witnesses after reviewing CPS’s discovery responses. He noted that there would not be adequate time to accomplish this with the October 24 setting. CPS’s counsel responded: [A]s the court is probably aware, it’s my practice to give the respondent’s attorney the entire record in exchange for them agreeing not to serve me with discovery. Ms. Maughan was insisting that she get the record immediately, so I just told CPS to give her the record as soon as possible. To answer this discovery, I’m going to just look through the record to answer it. I’m going to get the same disorganized record that they have got. They can look through the record and answer that as well as I can — probably even better — because I don’t even have the record yet and I’m probably not going to request it for another two weeks. I’m going to have to go through that same record and try to prepare for the case. As noted above, the court partially granted Spencer’s continuance, moving the trial setting one week to October 31. CPS responded to Spencer’s initial discovery requests on October 24. The next day, Spencer noticed three CPS witnesses for depositions on October 30, the day before trial. CPS filed a motion to quash these deposition notices on October 26 on the basis that the depositions were set less than thirty days before trial. See Tex.R. Crv. P. 190.3(b)(1)(A). The court heard CPS’s motion to quash and Spencer’s third continuance motion the next day. The court granted CPS’s motion to quash and denied Spencer’s continuance motion, and the parties proceeded to trial four days later. Spencer argues that she was harmed by the court’s error because she did not have sufficient opportunity to conduct the depositions she felt necessary to present her case. CPS responds that the court could have quashed Spencer’s deposition notices even if it had given her additional notice of trial because the depositions still would have been set less than thirty days before trial. We note, however, that the court has discretion not to quash a deposition set less than thirty days before trial. See Tex.R. Civ. P. 190.4(a) (court may set its own discovery control plan “tailored to the circumstances of the specific suit”), 190.5 (“court may modify a discovery control plan at any time”), 191.1 (except where expressly prohibited, discovery rules “may be modified in any suit ... by court order for good cause”). Rule of Appellate Procedure 44.1(a)(2) provides that an error in a civil case will require reversal if it “probably prevented the appellant from properly presenting the case to the court of appeals.” Tex.R.App. P. 44.1(a)(2). We have previously held that a trial court’s improper refusal to permit the defendants in a class-certification case to present evidence “plainly prevented Defendants from presenting their case to us.” See Monsanto Co. v. Davis, 25 S.W.3d 773, 786 (Tex.App.-Waco 2000, pet. dism’d w.o.j.). We likewise hold that the court’s failure to provide the notice required by Rule 245 “plainly prevented [Spencer] from presenting [her] case to us” because it prevented her from developing evidence important to her case. Id. Accordingly, we conclude that Spencer’s first issue is meritorious. Even though this error requires reversal, we will also address two other issues likely to arise on the retrial of this cause. See Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex.1997); Indemnity Ins. Co. of N. Am. v. Williams, 129 Tex. 51, 53, 99 S.W.2d 905, 906 (1937); Boone v. LeGalley, 29 S.W.3d 614, 616 (Tex.App.-Waco 2000, no pet.). EVIDENCE FROM PRIOR REMOVAL Spencer’s fourteenth issue challenges the court’s admission of testimony and photographs regarding the condition of her home several years before J.B. was born. She contends that this evidence is irrelevant and unfairly prejudicial. CPS responds that the evidence was admissible to rebut Spencer’s testimony and that of a former CPS caseworker. The decision to admit or exclude evidence rests within the sound discretion of the trial court. See Texas Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex.2000); In re J.O.C., 47 S.W.3d 108, 112 (Tex.App.-Waco 2001, no pet.). A trial court abuses this discretion when it rules on the admissibility of the evidence in an arbitrary or unreasonable manner or without reference to guiding rules or principles. See J.O.C., 47 S.W.3d at 112 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)); accord City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex.1995). We note that the condition of Spencer’s home several years before J.B.’s birth has no relevance to the issue of whether she knowingly placed or allowed J.B. to remain in dangerous conditions or surroundings. See In re D.T., 34 S.W.3d 625, 632-33 (Tex.App.-Fort Worth 2000, pet. denied) (“the environment of the child must be examined to determine if that is a source of endangerment to the child”); In re B.B., 971 S.W.2d 160, 169 (Tex.App.-Beaumont 1998, pet. denied) (no evidence to support termination on this basis when there was “no evidence in the record of the conditions or surroundings P.B. was in for th[e] few days [he was in his mother’s custody before removal]”); see also Ybarra v. Texas Dep’t of Human Servs., 869 S.W.2d 574, 577 (Tex.App.-Corpus Christi 1993, no writ) (“The relevant time frame to determine whether there is clear and convincing evidence of endangerment is before the ehild[ is] removed.”). “Rebuttal evidence is evidence given to disprove facts given in evidence by an adverse party.” Apresa v. Montfort Ins. Co., 932 S.W.2d 246, 251 (Tex.App.-El Paso 1996, no writ) (emphasis omitted) (quoting Valley Indus., Inc. v. Cook, 767 S.W.2d 458, 462 (Tex.App.-Dallas 1988, writ denied)); accord In re Bledsoe, 41 S.W.3d 807, 813 (Tex.App.-Fort Worth 2001, orig. proceeding). “Rebuttal testimony can be introduced only after the parties have closed the evidence offered in chief. They must then limit their rebuttal to those issues which were placed in conflict by the adverse party’s evidence during the case in chief.” Greenstein, Logan & Co. v. Burgess Mktg., Inc., 744 S.W.2d 170, 179 (Tex.App.-Waco 1987, writ denied) (citation omitted). CPS called Spencer as its first witness. Spencer testified under questioning by counsel for CPS that CPS removed her four children from another relationship in March 1995 because her home was “filthy nasty” and “not suitable for children to live in.” Counsel for CPS pressed Spencer regarding the conditions of the home: Q: Now, you had disabled the smoke detector in that house; is that correct? A: No, I did not. Q: You weren’t using it to — you hadn’t taken out the battery and used it to burn incense with? A: No, I did not. Q: Had anyone done that? A: No. Q: So the smoke detector was working fine at that time? A: To my knowledge, it was. CPS called Jennifer Tustin during its case-in-chief to testify about the agency’s prior involvement with Spencer’s children. CPS assigned Tustin to Spencer’s case in October 1997 for “family reunification.” Tustin testified that, during the first three months of Tustin’s involvement, Spencer was doing well in her efforts to comply with the service plan established by CPS. According to Tustin: Things appeared to disintegrate probably about approximately three months into my case with Kaltina. She had done really well at the beginning. She was passing her inspections, keeping her house clean, she had gotten a job, you know, things were going along well, and then all of a sudden it just, boom, it went bad and just rapidly disintegrated. Tustin described Spencer’s apartment during the first few months of her involvement in the case as follows: Almost always it was clean or when I would show up, she was in the process of cleaning it. I remember specifically her cleaning behind the stove and doing a lot of things that even I didn’t do at home, and I was very impressed with that. Tustin concluded her testimony on direct examination by stating that she never saw anything that would be hazardous to the children on any of her home visits. During its rebuttal case, CPS presented the testimony of a Waco police sergeant who was dispatched to Spencer’s apartment in March 1995. She found Spencer’s children alone in the apartment. The sergeant described the apartment as “very filthy.” CPS presented seventeen photographs of the apartment which the court admitted over Spencer’s objections. Sixteen of the photographs depict various rooms in the apartment. One depicts a smoke detector with the cover removed and incense inserted, presumably for burning. After the police sergeant, CPS called caseworker Staci Love who was assigned to Spencer’s case in October 1996. Love made a home visit that month and found it to be extremely filthy. The court admitted four photographs taken by Love during the October 1996 visit. Love testified on cross-examination that she noticed a constable serving Spencer with an eviction notice one day when she was driving by Spencer’s apartment after the case had been transferred to Tustin and the family reunification unit. She “stopped to see, since [she] had prior history, what was going on.” She testified that the house was “in total disarray” on that occasion as well. The testimony and photographs offered through the police sergeant and caseworker Love do not qualify as rebuttal evidence because CPS offered them to rebut evidence presented during its own case-in-chief. See Valley Indus., 767 S.W.2d at 462. Moreover, only a single photograph offered through the police sergeant actually rebuts Spencer’s testimony (namely, that her smoke detector had not been altered to burn incense), and none of the photographs or testimony rebuts Tustin’s testimony (namely, that Spencer kept a clean apartment from October 1997 to early 1998). Accordingly, we conclude that the court abused its discretion by admitting this evidence. Thus, Spencer’s fourteenth issue is meritorious. EXPERT TESTIMONY Spencer’s fifteenth issue challenges the expert testimony of Dr. James Shinder offered by CPS on the issues of Spencer’s parenting abilities and whether termination of her parental rights would be in J.B.’s best interest. Specifically, Spencer contends that CPS failed to demonstrate that a parenting assessment Dr. Shinder conducted and from which he drew his conclusions is based on a reliable methodology. Pertinent Authorities Rule of Evidence 702 governs the admissibility of expert testimony. See Tex.R. Evid. 702; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718 (Tex.1998); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 554 (Tex.1995). Once the opposing party objects to proffered expert testimony, the proponent of the witness’s testimony bears the burden of demonstrating its admissibility. See Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex.2002); Robinson, 923 S.W.2d at 557. To be admissible, the proponent must demonstrate: (1) that the expert is qualified; and (2) that the expert’s testimony is relevant and reliable. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); Robinson, 923 S.W.2d at 556; see also Kraft, 77 S.W.3d at 807. These are threshold issues which the trial court determines under Rule of Evidence 104(a) before admitting the testimony. See Tex.R. Evid. 104(a); Gammill, 972 S.W.2d at 718; Robinson, 923 S.W.2d at 556. In this regard, the trial court acts as a “gatekeeper.” See Gammill, 972 S.W.2d at 726; Tarrant Reg’l Water Dist. v. Gragg, 43 S.W.3d 609, 618 (Tex.App.-Waco 2001, pet. granted); see also Judge Harvey Brown, Eight Gates for Expert Witnesses, 36 Hous. L.Rev. 743, 744 (1999). We review the court’s determination under an abuse-of-discretion standard. See Kraft, 77 S.W.3d at 807; Helena Chem. Co., 47 S.W.3d at 499; Rob inson, 923 S.W.2d at 558. We examine the record as a whole when we review a preliminary determination under Rule 104(a). See St. Paul Med. Ctr. v. Cecil, 842 S.W.2d 808, 815 (Tex.App.-Dallas 1992, no writ) (citing Moore v. Polish Power, Inc., 720 S.W.2d 183, 192 (Tex.App.-Dallas 1986, writ ref'd n.r.e.)). The Supreme Court has identified a nonexclusive list of factors which can be considered in assessing reliability: (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. See Gammill, 972 S.W.2d at 720 (citing Robinson, 923 S.W.2d at 557); see also Dauberb v. Merrell Dow Pharms., Inc., 509 U.S. 579, 593-95, 113 S.Ct. 2786, 2796-98, 125 L.Ed.2d 469, 482-84 (1993). By its terms, Rule 702 applies to testimony based on “scientific, technical, or other specialized knowledge.” Tex.R. Evid. 702. Various classifications have arisen concerning the types of testimony governed by the rule. Some cases have distinguished between “scientific” and “non-scientific” expert testimony. See, e.g., Gammill, 972 S.W.2d at 724; Nenno v. State, 970 S.W.2d 549, 560 (Tex.Crim.App.1998). Some decisions have used the language of the rule itself by referring to some experts as possessing “specialized knowledge.” See, e.g., Kraft, 77 S.W.3d at 807 (quoting Tex.R. Evid. 702). In Nenno, the Court of Criminal Appeals divided “scientific” expertise into two subcategories: “hard” sciences and “soft” sciences. See Nenno, 970 S.W.2d at 560. In Gammill, the Supreme Court noted a potential difference between expert testimony based on methodology and that based on experience. See Gammill, 972 S.W.2d at 722-27. The Court cited the oft-quoted “beekeeper” analogy to illustrate the distinction between methodological and experiential expert testimony: [I]f one wanted to explain to a jury how a bumblebee is able to fly, an aeronautical engineer might be a helpful witness. Since flight principles have some universality, the expert could apply general principles to the case of the bumblebee. Conceivably, even if he had never seen a bumblebee, he still would be qualified to testify, as long as he was familiar with its component parts. On the other hand, if one wanted to prove that bumblebees always take off into the wind, a beekeeper with no scientific training at all would be an acceptable expert witness if a proper foundation were laid for his conclusions. The foundation would not relate to his formal training, but to his firsthand observations. In other words, the beekeeper does not know any more about flight principles than the jurors, but he has seen a lot more bumblebees than they have. Gammill, 972 S.W.2d at 724-25 (quoting Berry v. City of Detroit, 25 F.3d 1342, 1349-50 (6th Cir.1994)). Nevertheless, the Court made clear that expert testimony cannot always be neatly categorized. That said, it is equally clear that the considerations listed in Daubert and in Robinson for assessing the reliability of scientific evidence cannot always be used with other kinds of expert testimony. To borrow the Berry court’s analogy, a beekeeper need not have published his findings that bees take off into the wind in a journal for peer review, or made an elaborate test of his hypotheses. Observations of enough bees in various circumstances to show a pattern would be enough to support his opinion. But there must be some basis for the opinion offered to show its reliability. Experience alone may provide a sufficient basis for an expert’s testimony in some cases, but it cannot do so in every case. A more experienced expert may offer unreliable opinions, and a lesser experienced expert’s opinions may have solid footing. The court in discharging its duty as gatekeeper must determine how the reliability of particular testimony is to be assessed. Gammill, 972 S.W.2d at 726. More recently the Court noted: In Robinson, we identified six nonexclusive factors to determine whether an expert’s testimony is reliable and thus admissible. But in Gammill we recognized that the Robinson factors may not apply to certain testimony. In those instances, there still must be some basis for the opinion offered to show its reliability, and, ultimately, the trial court must determine how to assess reliability. Helena Chem. Co., 47 S.W.3d at 499 (citations omitted). From these authorities we conclude that a court should attempt first to apply the Robinson factors to proffered expert testimony. Perhaps only a few of the factors will be useful in a particular case. In other cases, none of the factors will be helpful. In either case, the trial court must exercise its discretion to identify and employ other factors as necessary to assess the reliability of the proffered testimony. See Helena Chem. Co., 47 S.W.3d at 499; Gammill, 972 S.W.2d at 726; Robinson, 923 S.W.2d at 557. The reliability of Dr. Shinder’s testimony is at issue here. For purposes of Rule 702, reliability includes three components: (1) foundational reliability; (2) methodological reliability; and (3) “con-neetive” reliability. See Brown, 36 Hous. L.Rev. at 747-49 (citing Gammill, 972 S.W.2d at 726-28; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.1997); Robinson, 923 S.W.2d at 555-56); see also Helena Chem. Co., 47 S.W.3d at 499. Spencer specifically challenges the reliability of Dr. Shinder’s methodology. The Testimony at Issue Dr. Shinder is a psychologist with nearly thirty years’ experience. He received a masters degree in public health in 1979. His masters research focused on the issues of “abuse and neglect.” He holds memberships with the American Psychological Association, the Texas Psychological Association, and several other unidentified professional groups. His practice focuses “almost exclusively [on] the areas of abuse and neglect and various forensic or criminal or criminally-oriented behaviors.” Dr. Shinder conducted a “parenting assessment” of Spencer almost a year before trial. In his own words, his testimony at trial related “primarily or ... exclusively in [his] involvement in providing the parenting assessment” and “to [his] observations and conclusions regarding her parenting capabilities.” Dr. Shinder described his methodology as follows: Very briefly, a parenting assessment involves a complete review of all existing records and then questioning of the individual in two areas. You’re looking at the extent of their knowledge about parenting, as well as what action they have taken in regard to areas where they have knowledge of problems with their own children. During a hearing outside the presence of the jury, Dr. Shinder provided the following testimony regarding his methodology: Q: How often have you used this approach in the past? A: It’s frequently used. I did one as recently as last night in the office. It’s a very commonly pursued type of an evaluation. Q: Does this approach generally require a subjective or objective interpretation? A: It’s clearly objective. You’re attempting to determine the extent of someone’s knowledge. “Are you aware of this information or not,” and then you ask them, in fact, have they acted upon that in various ways. Q: Do you feel another person in your field using your same approach would have gotten fairly similar results to what you received? A: Yes. Q: Is your approach or theory generally accepted by the community, the scientific community within which you belong? A: To the best of my knowledge, yes. Q: Do you know by what groups or organizations it is generally accepted or relied upon? A: That’s a difficult question. Groups or organizations. It’s a standard format that’s utilized throughout the field in all areas. Some of the questions that I use I’ve obtained through a questionnaire that was put out by the American Academy of Pediatrics. There is one area where I use a limited number of questions which I don’t know the name of the national group, but it’s a dietary management or dietician’s group or whatever. I think the major areas of questioning are accepted by most national groups. Q: Do you know how long this has been accepted? A: Again some [of] the questions I’m sure have many, many years of acceptance because basically as long as we’ve accepted the need to refrigerate foods or the need to provide children with immunizations, things of that nature. The record does not contain a copy of the questionnaire Dr. Shinder used to conduct Spencer’s parenting assessment. However, his testimony indicates that he asked questions which touched upon the following topics: goals for the children’s future; personal acknowledgment of past child-rearing mistakes; ability to meet the needs of the children; extent of support from relatives and others in child-rearing; “parental insight”; “parental energy”; child-rearing practices; ability to handle crises; interpersonal relations with her children; and food preparation awareness. Dr. Shinder relied on the parenting assessment and Spencer’s “extensive range of personality] problems as well as historical data” to conclude that termination of her parental rights would be in J.B.’s best interest. Analysis We will examine the methodological reliability of Dr. Shinder’s testimony first in light of the Robinson factors. If these factors do not enlighten ns in this inquiry, we will then look to other appropriate factors. 1.Extent to Which the Theory Has Been or Can Be Tested According to Dr. Shinder’s testimony, his parenting assessment has never been tested by an independent organization. [T]here are some things that are such obvious realities that they don’t need to be peer reviewed or further researched. The sun will rise tomorrow morning. We don’t need to peer review it and research it. It’s just a reality. A parenting assessment is almost that concrete when you start asking questions about the care of children. Thus, this factor may not apply to the parenting assessment. 2.Extent to Which the Technique Relies upon the Subjective Interpretation of the Expert Dr. Shinder described his parenting assessment as objective in nature. “It’s clearly objective. You’re attempting to determine the extent of someone’s knowledge.” I wouldn’t consider it to be subjective because of the realities of parenting. I will present the information to the average — or the jury. The average juror has dealt with just about every similar consideration in raising their own children. I don’t think it’s subjective. I think it’s objective. Now, there are things that are realities that have to be addressed. Although Dr. Shinder describes the assessment as “clearly objective,” his reluctance to make a copy of the questionnaire available for independent review makes his assessment subjective in practice. 3.Whether the Theory Has Been Subjected to Peer Review and/or Publication Dr. Shinder testified that he acquired some of the questions used in his parenting assessment from a brochure published by the American Academy of Pediatrics. Some of the questions came from an unidentified national dietetic organization. He consulted at least twice with a local pediatrician when he initially developed the parenting assessment. Since that time, he has not sought peer review. According to Dr. Shinder, “To publish would be suicidal because you folks [attorneys] would read every publication and you would use every statement I make against me on the stand, so I can’t publish until I retire.” Dr. Shinder named the Academy of American Pediatricians and an unidentified national dietetic organization as sources for many of the questions used in his parenting assessment. However, he did not produce the brochure purportedly published by the pediatrician’s organization and he could not even name the dietetic organization. His failure to do so and his reluctance to publish his questionnaire weighs against the reliability of his methodology. See Minnesota Mining & Mfg. Co. v. Atterbury, 978 S.W.2d 183, 200 (Tex.App.-Texarkana 1998, pet. denied) (“this Court cannot do th[e] required task if an expert does not cite to and explain precisely the studies that he relies upon”); America W. Airlines, Inc. v. Tope, 935 S.W.2d 908, 919 (Tex.App.-El Paso 1996, no writ) (“Peer review of [expert]’s method was limited, and she offered no examples of publication of her work”); see also Green v. State, 55 S.W.3d 633, 640 (Tex.App.Tyler 2001, pet. ref'd) (“Though [expert] testified that there had been books and articles published in the field, he did not name any book, article, or publication of any type”). 4.The Technique’s Potential Rate of Error Dr. Shinder proffered no testimony regarding the potential rate of error which might occur from the use of his parenting assessment. He did testify that “another person in [his] field using [his] same approach would have gotten fairly similar results.” Again, Dr. Shinder’s failure to cite any particular studies or reports supporting this assertion weighs against the reliability of his methodology. Id. 5.Whether the Underlying Theory or Technique Has Been Generally Accepted as Valid by The Relevant Scientific Community Dr. Shinder testified that “to the best of [his] knowledge” his approach is generally accepted by the scientific community to which he belongs. He could not identify any groups or organizations by which his approach is generally accepted. “That’s a difficult question. Groups or organizations. It’s a standard format that’s utilized throughout the field in all areas.” In a similar vein, Dr. Shinder stated that “[t]here are a number of texts that have been written specific ... to th[e] topic” of “scientific[ ] confirmfation] that it’s in the best interest of a child to have that child’s parental rights terminated [sic].” He did not name any of these scientific texts however. As with the preceding two factors, Dr. Shinder’s inability to produce any specific texts or publications supporting his contention that his parenting assessment is generally accepted in the scientific community weighs against the reliability of his methodology. Id. 6.Non-judicial Uses Which Have Been Made of the Theory or Technique Dr. Shinder’s testimony suggests that he employs his parenting assessment almost exclusively in courtroom settings. “I think [the assessment questions have] been analyzed in court many times.... [I]f one chooses to do the type of work I do, you’re in court a great deal.” Our research discloses at least six reported cases since 1997 in which CPS offered Dr. Shinder’s testimony in a termination case. The fact that Dr. Shinder employs his parenting assessment almost exclusively in connection with judicial proceedings weighs against the reliability of his methodology. Summary Regarding the Robinson factors, CPS proffered only the testimony of Dr. Shin-der to establish the reliability of his methodology. Dr. Shinder offered no specific, independent sources to support the reliability of his methodology. See Kraft, 77 S.W.3d at 808 (“Gholson’s ‘bald assurance’ that he was using the widely accepted approach was not sufficient to demonstrate that his opinion was reliable.”); Gammill, 972 S.W.2d at 727 (“The district court was not required, in Joiner’s words, to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.”) (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 519, 139 L.Ed.2d 508, 519 (1997)); Robinson, 923 S.W.2d at 559 (expert’s “self-serving statements that his methodology was generally accepted and reasonably relied upon by other experts in the field are not sufficient to establish the reliability of the technique”). Accordingly, we conclude that the court abused its discretion by admitting Dr. Shinder’s testimony. Thus, Spencer’s fifteenth issue is meritorious. We need not address the remainder of Spencer’s issues. STATUTORY DISMISSAL DATE Sections 263.401 and 263.403 of the Family Code provide that a suit in which CPS has been awarded temporary custody must be dismissed no later than eighteen months after the court’s initial order appointing CPS as temporary managing conservator unless the children are returned to their parent or a final order is rendered. See Tex. Fam.Code. Ann. §§ 263.401, 263.403 (Vernon Supp.2002). That time period expired in this case on December 18, 2000. Thus, any retrial of this cause will necessarily occur beyond the statutorily-mandated dismissal date. The Family Code does not speak to this situation. In 2001, the Legislature added section 263.405 which provides specific timetables and guidelines for an appeal in this type of case. See id. § 263.405 (Vernon Supp.2002). However, section 263.405 is silent regarding any post-appeal timetables. Therefore, we will set a dismissal date to guide the parties on remand. See Tex.R.App. P. 43.6. It could be argued that the issue of an appropriate post-appeal dismissal date will not be ripe for our review until such time as the trial court dismisses this cause under section 263.401 or renders an “untimely” final order. However, waiting until such time creates a very real potential that J.B. will become the subject of at least two future appellate proceedings: one addressing the propriety of the court acting beyond the statutory dismissal date; see, e.g., In re Ruiz, 16 S.W.3d 921 (Tex.App.-Waco 2000, orig. proceeding [mand. denied]); and a second addressing the merits of the suit. This would run counter to the very purpose of section 263.401 which is “to carry out the recommendation of the Governor’s Committee [to Promote Adoption] that parental rights be terminated or families reunified within twelve months.” Ruiz, 16 S.W.3d at 926 (quoting In re Bishop, 8 S.W.3d 412, 417 (Tex.App.-Waco 1999, orig. proceeding [mand. denied] )). Accordingly, we set the new dismissal date at 180 days after the issuance of our mandate in this cause. The trial court may not extend this deadline. “If the [trial] court ... does not render a final order or dismiss the suit on or before the required date for dismissal ..., the court shall dismiss the suit.” Tex. Fam.Code. Ann. § 263.401(c). We reverse the judgment and remand this cause to the trial court for further proceedings consistent with this opinion. Justice TOM GRAY dissenting. . The decree is a final, appealable judgment because the court previously signed an interlocutory decree terminating the parental rights of J.B.’s father on September 22 and the final decree contains a standard Mother Hubbard clause. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203-04 (Tex.2001). . Although we will reverse this case because of the notice issue, we must first address Spencer’s issues which would afford her the greatest relief. See Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex.1999) (per curiam); Monsanto Co. v. Davis, 25 S.W.3d 773, 780 (Tex.App.-Waco 2000, pet. dism'd w.o.j.). . Spencer contends in her third and fourth issues respectively that the record contains no evidence or factually insufficient evidence to support the jury’s findings that she (1) engaged in conduct or knowingly placed J.B. with persons who engaged in conduct which endangered his physical or emotional well-being and (2) failed to comply with the court's temporary orders. See Tex. Fam.Code. Ann. § 161.001 (1)(E), (O) (Vernon Supp.2002). . Such evidence likewise has no relevance to the issues of whether Spencer engaged in conduct or knowingly placed J.B. with persons who engaged in conduct which endangered him and whether Spencer violated the court’s temporary orders. . The trial court granted Spencer a running objection as to testimony regarding "anything that occurred prior to [J.B.'s] birth.” . Tustin was assigned to Spencer's case until October 1998 when CPS closed its case. By that time, the children were in their father’s custody. .At the beginning of the police sergeant's testimony, Spencer re-urged her objection to testimony regarding events occurring before J.B.'s birth. The trial court confirmed that her running objection continued. . Love’s testimony that Spencer's apartment was “in total disarray” on her later visit is consistent with Tustin’s testimony that things "rapidly disintegrated” for Spencer in early 1998. . Spencer states her fifteenth issue broadly enough to include the testimony of two other expert witnesses as well. However, her brief focuses almost exclusively on Dr. Shinder’s testimony. Accordingly, we discuss only Dr. Shinder’s testimony in connection with this issue. . See, e.g., JCPenney Life Ins. Co. v. Baker, 33 S.W.3d 417, 427 (Tex.App.-Fort Worth 2000, no pet.); Honeycutt v. KMart Corp., 1 S.W.3d 239, 243-44 (Tex.App.-Corpus Christi 1999), rev'd, 24 S.W.3d 357 (Tex.2000) (per curiam); Richard T. Stillwell, Monitoring the Opinions of Biochemists and Beekeepers: The Application of Daubert & Robinson to Engineering Witnesses in Texas, 51 Baylor L.Rev. 95, 96 n. 6 (1999). .In fact, the Court recognized when it decided Robinson that the factors it enunciated therein could not be rigidly applied in every case: We emphasize that the factors mentioned above are non-exclusive. Trial courts may consider other factors which are helpful to determining the reliability of the scientific evidence. The factors a trial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable will differ with each particular case. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995). . “If the foundational data underlying opinion testimony are unreliable, an expert will not be permitted to base an opinion on that data because any opinion drawn from that data is likewise unreliable.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex.1997); accord Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); see also Judge Harvey Brown, Eight Gates for Expert Witnesses, 36 Hous. L.Rev. 743, 811-875 (1999). . "[A]n expert’s testimony is unreliable even when the underlying data are sound if the expert draws conclusions from that data based on flawed methodology.” Havner, 953 S.W.2d at 714; accord Helena Chem. Co., 47 S.W.3d at 499; see also Brown, 36 Hous. L.Rev. at 778-804. . "The district court [i]s not required ... ‘to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.’ " Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex.1998) (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 519, 139 L.Ed.2d 508, 519 (1997)); see also Brown, 36 Hous. L.Rev. at 804-11. The phrase "ipse dixit" literally means "he himself said it.” Black's Law Dictionary 743 (5th ed.1979). When used as in Gammill, the phrase refers to "a bare assertion resting on the authority of an individual." Id.; see, e.g., Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 808 (Tex.2002) ("Gholson's ‘bald assurance' that he was using the widely accepted approach was not sufficient to demonstrate that his opinion was reliable.”). . "I asked specifically, 'What are you working on? What do you see each of the children doing in the future? How are you helping them with personal interests?’ ” . “That’s a specific area of questioning, ‘What's your greatest regrets about how you raised your oldest child or your second child ?’ ’’ . Dr. Shinder’s assessment focused on the children’s physical, emotional, medical and spiritual needs. His inquiry appears to have focused on Spencer's ability to recognize, assess, and address these needs. Some of the specific questions cited include: “How many hours of sleep does a child need at night?”; “Have you had that condition evaluated by a physician or audiologist....” . "If you were unable to take care of your children for a period of time, who would assist you? How much support do you have from your mother, your father, et cetera? ” . "I questioned her regarding routines and things of this nature, setting of limits, expectations. ...” . "Tell me about a recent situation when you dealt with-had an emergency with your children. Tell me how you dealt with it.” . This area of the assessment appears to have focused on the "quality time” Spencer spent with each of her children and her ability to listen to and communicate with them. . “Does mayonnaise spoil if it's not refrigerated?” . Dr. Shinder described Spencer’s "personality problems” in this manner: To quickly summarize, she’s a person who appears to have very poor coping skills. At times she's very unrealistic. Some are grandiose. There is a history as well as some recent involvement with criminal behaviors, and there was some problems presented within the parenting assessment that would further lead one to question her capacity to be an effective parent. . See In re B.L.D., 56 S.W.3d 203, 213 (Tex.App.-Waco 2001, pet. granted); In re J.O.C., 47 S.W.3d 108, 114-16 (Tex.App.-Waco 2001, no pet.); In re A.M.C., 2 S.W.3d 707, 713-14 (Tex.App.-Waco 1999, no pet.); Spangler v. Texas Dep’t of Protective & Regulatory Servs., 962 S.W.2d 253, 258-59 (Tex.App.-Waco 1998, no pet.); In re D.L.N., 958 S.W.2d 934, 939 (Tex.App.-Waco 1997, pet. denied); Lucas v. Texas Dep’t of Protective & Regulatory Servs., 949 S.W.2d 500, 503 (Tex.App.-Waco 1997, pet. denied). . As we observed in Bishop, the Governor’s Committee was especially concerned with children languishing in foster care for extended periods of time with no clearly defined permanency plans. See In re Bishop, 8 S.W.3d 412, 416 (Tex.App.-Waco 1999, orig. proceeding [mand. denied]).
TOM GRAY, Justice, dissenting. The majority has decided three issues of significance to the parties in this case and granted relief beyond that requested. Of the three issues decided, only two have general applicability to the jurisprudence of this State. Those two issues are: 1) the interpretation of Rule 245 of the Texas Rules of Civil Procedure; and 2) the admission of expert testimony under Rule 702 of the Texas Rules of Evidence. The issue regarding Rule 245 is the dispositive issue upon which the case is reversed and will probably affect only a small number of cases in the future. But the issue regarding the admission of expert testimony is far more important to the jurisprudence of the State because it will affect virtually all cases involving the admission of expert testimony, particularly those cases that involve expert testimony based on experience and training rather than testimony based on applying the scientific method. For this reason I will not address the issues in the same order they are addressed in the majority opinion, rather I will address them in the order of their importance. The third issue of significance to the parties relates to the admission of evidence peculiar to this case so I will only address it briefly. I will then comment upon two other issues: the relief granted by the majority beyond that requested by the parties, and the majority’s failure to apply its own dispositive precedent regarding broad form submission of special issues in termination-of-parent-child-relationship cases, rather than avoiding a controversial interpretation of Rule 245. EXPERT TESTIMONY The majority has chosen to address the admission of expert testimony from Dr. Shinder because the issue will likely occur on remand. Not only will this issue likely occur on remand in this case, the issue is pertinent to every case in which expert testimony is admitted. Unlike most evi-dentiary issues, the admission of expert testimony has been the subject of much debate in judicial opinions and legal publications. Considering that it is an eviden-tiary issue, the admission of expert testimony has been the subject of an inordinate number of United States Supreme Court, Texas Supreme Court, and Texas Court of Criminal Appeals opinions in recent years. Hundreds of lower courts have also addressed the issue. When this mass volume of cases is reviewed, three generally accepted concepts emerge. First, Rule 702 regarding the admission of expert testimony applies to all scientific evidence, technical evidence, or evidence regarding areas of specialized knowledge sought to be introduced before the fact finder. Second, because the issue is related to the admission of evidence, the trial court is given broad discretion in determining admission of expert testimony. Third, the trial court, upon a proper objection by the opponent, must determine, as a preliminary matter, the reliability of the expert testimony tendered for admission. But the courts have not been able to reach a consensus on three concepts at issue in this case: (1) How is the tendered expert testimony to be tested for reliability? (a) Is the test, and thus the proof, different for “hard” sciences versus “soft” sciences? (b) Is the type or method of proof required different for “novel” versus established fields or applications?; (2) How much discretion does the trial court have to select the method to be used for testing the reliability of the tendered expert testimony?; and (3) What is the appellate court’s standard of review for the trial court’s selection of a method to test the reliability of the tendered expert testimony? HOW TO TEST RELIABILITY? Many of the cases regarding admission of expert testimony have involved what test the trial court should use to determine the admissibility of expert testimony. It is the majority’s selection of the test for admissibility with which I have my principle disagreement. The natural place to start regarding the test for admissibility of expert testimony is with the language of the Rule. Rule 702 provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Tex.R. Evid. 702. The Texas Supreme Court, in Helena, characterized the test of admissibility of expert testimony as a two part test. Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001). The Court stated: “A two-part test governs whether expert testimony is admissible; (1) the expert must be qualified; and (2) the testimony must be relevant and be based on a reliable foundation ... [t]he trial court makes the initial determination about whether the expert and the proffered testimony meet these requirements.” Id. (Internal citations omitted). Thus, Helena breaks the rule into two discreet parts: (1) qualification of the expert; and (2) the relevance and reliability of the evidence. The second part of the test can be divided into at least two parts: (1) the reliability of the evidence; and (2) the relevance of the evidence. Earlier, in Robinson, the Court characterized the rule as containing three requirements. The Court stated: “Rule 702 contains three requirements for the admission of expert testimony: (1) the witness must be qualified; and (2) the proposed testimony must be ‘scientific ... knowledge’; and (3) the testimony must ‘assist the trier of fact to understand the evidence or to determine a fact in issue.’ ” E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995). The Court effectively divided the third requirement of the Rule into two parts by stating: “In order to constitute scientific knowledge which will assist the trier of fact, the proposed testimony must be relevant and reliable.” Id. Thus, the Court made the same distinction' in Robinson regarding the “third” requirement of the Rule which it later expressly made the “second” part of the test described in Helena; that the expert testimony must be both reliable and relevant. Obviously the Supreme Court in Helena did not eliminate from the Rule the requirement expressed in Robinson that the testimony must be “scientific ... knowledge” to be considered for admission under Rule 702. Thus, a full description of the hurdles that a proponent must overcome to get expert evidence before the fact finder could be summarized as follows: 1. The witness must be qualified as an expert to testify about the subject by knowledge, skill, experience, training, or education; 2. The testimony must relate to scientific, technical, or other specialized knowledge; 3. The testimony must be reliable; and 4. The testimony must be relevant, in essence it must assist the trier of fact to understand the evidence or to determine a fact in issue. I note that relevance in this context, under Rule 702, may actually be broader than under Rule 401 because it is not limited to evidence "... having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Evid. 401. Rule 702 also allows the admission of evidence that does nothing more than assist the fact finder to understand other evidence. At the very least, we know that “relevance” under Rule 702 incorporates traditional relevancy analysis under Rules 401 and 402. E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995); see Tex.R. Evid. 401, 402, 702. But it is the third element, the reliability of the tendered expert testimony, that has generated the real debate and is the focus of this dissenting opinion. In particular, how is the trial court, standing at the gate between the world outside the courtroom and the record of evidence upon which the fact finder can properly base its decision, to determine the reliability of expert testimony? In Robinson, the Texas Supreme Court gave us a non-exclusive list of six factors by which a trial court is to review the reliability of scientific evidence. Robinson, 923 S.W.2d 549 (Tex.1995). Later, in Nenno, the Texas Court of Criminal Appeals gave us a framework by which to test the reliability of “fields of study aside from the hard sciences, such as social sciences or fields that are based primarily upon experience and training as opposed to the scientific method.” Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App.1998). Then, in Gammill, the Texas Supreme Court noted that the considerations listed in Daubert and Robinson for assessing the reliability of scientific evidence cannot always be used with other types of expert testimony. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 722-28 (Tex.1998); see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex.1995). In its determination of what test to use, the majority correctly observes that “the Supreme Court noted a potential difference between expert testimony based on methodology and that based on experience.” Majority opinion at page 17, citing Gammill, 972 S.W.2d at 722-27. And Gammill teaches us that when the Robinson factors do not fit the particular expert testimony, the trial court must still determine the reliability of these other types of expert testimony, those not based on scientific meth