Jаmes Andrew FAIROW, Appellant, v. The STATE of Texas, Appellee.
No. 508-96
Court of Criminal Appeals of Texas, En Banc.
April 30, 1997.
943 S.W.2d 895
Appellant has died, however, and the State has moved that the appeal be permanently abated. Under our precedents, the death of an appellant during the pendency of his appeal deprives this Court and the court of appeals of jurisdiction. Rheinlander v. State, 918 S.W.2d 527, 528 (Tex.Cr.App.1996). Accordingly, the motion to abate is granted, both the District Attorney‘s and the State Prosecuting Attorney‘s petitions for discretionary review are dismissed, and the Eastland Court of Appeals is directed to permanently abate the appeal of this cause.
Dennis Yates, Allen C. Isbell, Houston, for appellant.
William J. Delmore, III, Asst. Dist. Atty., Houston, Matthew Paul, State‘s Atty., Austin, for State.
Before the court en banc.
KELLER, Judge.
A jury convicted appellant of capital murder (murder in the course of a robbery) and the trial court sentenced him to life imprisonment pursuant to
I.
Appellant and three co-conspirators—Deryk Middleton, Gary Mosby and Andre Mos
At trial, co-defendant Middleton testified for the State as an accomplice witness. On cross-examination of Middleton, appellant attempted to introduce into evidence an exculpatory statement that Mosby uttered shortly after the shooting. Middleton was going to testify that Mosby said “something” like “I didn‘t try to kill him.” The State requested a hearing on its previously filed motion in limine seeking to prevent appellant from eliciting the statement in front of the jury unless he could first establish it as an exception to the hearsay rule.
In an attempt to lay a predicate for the proposition that the statement was admissible, defense counsel repeatedly asked Middleton whether he thought that Mosby intentionally shot Young:
Q: From the actions that you saw Gary Mosby take—jumping over the bar, pointing the gun at Mr. Joe Young—did you formulate in your mind an opinion as to whether or not Mr. Mosby shot Joe Young on purpose?
THE STATE: Objection.
THE COURT: Sustained.
Q: Did you see Gary Mosby shoot Joe Young?
A: Yes.
Q: Did he accidentally (shoot) Joe Young?
THE STATE: Object to that; calling for an opinion from this witness.
THE COURT: Sustained.2
On appeal and in his petition for discretionary review to this Court, appellant asserts that the trial judge improperly excluded evidence of Middleton‘s opinion regarding whether Mosby intentionally caused the death of Jоseph Young.3 Appellant contends that Middleton‘s opinion was admissible under Rule 701,4 which allows witnesses to give opinion or inference testimony provided that the opinion is rationally based on the perception of the witness and helpful to a clear understanding of the witness‘s testimony or the determination of a fact in issue. In affirming appellant‘s conviction, the Court of Appeals rejected his contention and held that a “speculative opinion, such as what someone else is thinking at a specific time, does not help the jury.” Fairow, at 361.5 Today, we are called upon to determine whether a lay
II.
When conducting a Rule 701 evaluation,6 the trial court must decide (1) whether the opinion is rationally based on perceptions of the witness and (2) whether it is helpful to a clear understanding of the witness‘s testimony or to determination of a fact in issue. See Rule 701. The initial requirement that an opinion be rationally based on the perceptions of the witness is itself composed of two parts. First, the witness must establish personal knowledge of the events from which his opinion is drawn and, second, the opinion drawn must be rationally based on that knowledge. See Wendorf, Schlueter & Barton, Texas Rules of Evidence Manual, § VII, p. 5, (4th ed.1995).
A.
The perception requirement of Rule 701 is consistent with the personal knowledge requirement of Rule 602.7 It requires the proponent оf lay-opinion testimony to establish that the witness has personal knowledge of the events upon which his opinion is based. Personal knowledge will often come directly from the witness‘s senses. See e.g. Smith v. State, 683 S.W.2d 393, 404 (Tex.Crim.App.1984) (police officer may give non-expert opinion regarding physical facts he has observed); Doyle v. State, 875 S.W.2d 21 (Tex.App.-Tyler 1994, no pet.) (prison guard allowed to give opinion testimony under Rule 701 based on “what he saw“); State v. Welton, 774 S.W.2d 341, 343 (Tex.App.--Austin, pet.ref‘d) (police officer permitted to give non-expert opinion regarding intoxication based in part on smelling the odor of alcohol); Lape v. State, 893 S.W.2d 949 (Tex.App. Houston [14th] 1994) (abuse of discretion occurred when lay-witness not permitted to give an opinion on how sound traveled in her home) (all emphases added). It may, however, come from experience. See e.g. Austin v. State, 794 S.W.2d 408, 410-11 (Tex.App.--Austin 1990, pet. ref‘d) (police officer permitted to testify that, based on his personal experience, it was his opinion that “Swedish deep muscle rub” was a code for prostitution); Williams v. State, 826 S.W.2d 783, 785 (Tex.App.-Houston [14th] 1992, pet. ref‘d) (using past experience, a police officer was permitted to testify, as either a lay-witness or an expert, that he interpreted the defendant‘s actions to be a drug transaction); Reece v. State, 878 S.W.2d 320, 325 (Tex.App.-Houston [1st] 1994, no pet.) (based on training and experience, a police officer mаy testify under Rule 701 that a defendant‘s actions are consistent with someone selling cocaine). If the proponent of the opinion cannot establish personal knowledge, the trial court should exclude the testimony. See e.g. Bigby v. State, 892 S.W.2d 864, 889 (Tex.Crim.App.1994) (holding that a lay witness may not testify as to his opinion on appellant‘s sanity when that opinion was based on the observation of others); McMillan v. State, 754 S.W.2d 422, 425 (Tex.App.-Eastland 1988, pet. ref‘d) (holding that a lay-witness opinion based on hearsay was inadmissible).
An opinion will satisfy the personal knowledge requirement if it is an interpretation of the witness‘s objective perception of events (i.e. his own senses or experience). Doyle v. State, 875 S.W.2d 21 (Tex.App.-Tyler 1994, no pet.), illuminates the distinction between personal knowledge of another‘s mental state and personal knowledge of perceived events. In Doyle, two prison guards personally observed a prisoner strike another guard. They testified, over objection, that the blows were intentional. Id. at 22. The Court of Appeals held that a prison guard, trying to explain what he saw, could, under Rule 701, give an opinion regarding whether the blow was “intentional or accidental.” Doyle at 23. We agree. The prison guards in Doyle did not have personal knowledge of the mental state with which the defendant struck their colleague. They did, however, witness the attack and thus were qualified to give an opinion based on their perception of the event. So, while a witness cannot possess personal knowledge of another‘s mental state, he may possess personal knowledge of facts from which an opinion regarding mental state may be drawn. The jury is then free to give as much or as little weight to the opinion as it sees fit. Therefore, we conclude that once the proponent of the opinion establishes personal knowledge of the facts underlying the opinion, he has satisfied the perception requirement of Rule 701. This is so even if the opinion concerns culpable mental state. See
Once the perception requirement is satisfied, the trial court must determine if
B.
The second requirement for admissibility under rule 701 is that the opinion be helpful to the trier of fact to either understand the witness‘s testimony or to determine a fact in issue.
Another important factor in determining helpfulness will likely be the ability or inability of the witness to convey the events from which his opinion is drawn. For example, an opinion may not be helpful from a witness who is able to articulate his perceptions in great detail (thus increasing the likelihood that the jury could formulate its own opinion). See Cooper v. State, 23 Tex. 331, 342-343 (1859) (holding that no opinion is needed “for what any fool can plainly see“); See also e.g. Roberts v. State, 743 S.W.2d 708, 711 (Tex.App.-Houston [14th] 1987, pet. ref.) (holding that an officer‘s lay opinion about whether the police were harassing the defendant was unnecessary and inadmissible when the jury had the information before it and was able to draw its own inferences). If the events are diffiсult or impossible to describe, however, an opinion is likely to be helpful. Texas courts before and after promulgation of Rule 701 have approvingly referred to such opinion testimony as a “short-hand rendition” of the facts. See Jackson v. State, 822 S.W.2d 18, 29 (Tex.Crim.App.1990) (allowing a police officer to testify that a defendant gave his confession voluntarily because it “was no more than a short rendition of the facts.“); See also May v. State, 618 S.W.2d 333, 341 (Tex.Crim. App.1981) (a pre-Rules case allowing a police officer to give an opinion concerning an accused‘s mental attitude because it was “merely a shorthand rendition of the facts“); Wilson v. State, 854 S.W.2d 270, 276 (Tex. App.-Amarillo 1993, pet. ref.) (allowing officer‘s testimony regarding what a conversation “bоiled down to” as a shorthand rendition of what the conversation was about).
These considerations are not exclusive. Countless other factors may contribute to the trial court‘s decision regarding helpfulness and, ultimately, the helpfulness of an opinion will be determined by the facts of the case. See Goode at p. 9-10.
Whether an opinion meets the fundamental requirements of Rule 701 is within the sound discretion of the trial court and its decision regarding admissibility should be overturned only if it abuses its discretion. Joiner v. State, 825 S.W.2d 701, 708 (Tex.Crim.App.1992), cert. denied, 509 U.S. 925, 113 S.Ct. 3044, 125 L.Ed.2d 729 (1993); See Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App.1990).12 Further, if there is evidence in the record supporting the trial court‘s decision to admit or exclude an opinion under Rule 701, there is no abuse and the appellate court must dеfer to that decision. See Carroll v. State, 916 S.W.2d 494, 503 (Tex.Crim.App.1996); Meek v. State, 790 S.W.2d 618, 620 (Tex.Crim.App.1990). With the foregoing in mind we turn to the facts of the case sub judice to determine whether the Court of Appeals erred in upholding the trial court‘s exclusion of lay-witness opinion testimony.
In the present case, Middleton testified that he witnessed the entire fight, that appellant repeatedly struck the victim and that, as Young fell from a blow to the head, “... (Mosby) took the .38 from (Mosley) and ... shot the man (Young) in the chest while he (Young) was falling on the ground.” This testimony would support the trial court‘s exclusion of Middleton‘s opinion on several grounds. First, it supports the contention that the jury was in a position to form its own opinion, thus rendering Middleton‘s opinion not helpful. See e.g. Steve v. State, 614 S.W.2d 137, 139 (Tex.Crim.App.1981) (a pre-Rules case holding thаt because (1) the jury was in possession of the same facts upon which a proffered opinion was based, (2) the jury could fully understand the matter and (3) the jury could draw the proper inferences and conclusions, the witness‘s opinion testimony was unnecessary and inadmissible). Alternatively, the trial court would have been acting within its discretion in determining that what Middleton testified to seeing was not consistent with an unintentional act and thus not rationally based. See e.g. U.S. v. Cox, 633 F.2d at 876.
Additionally, our review of the record reveals that Middleton was never given the legal definition of “intentional.” This fact would support the trial court‘s exclusion of Middleton‘s opinion on the basis that the opinion was confusing or misleading and thus not helpful within the meaning of Rule 701.
Finally, because the hearing‘s purpose was to determine admissibility of Mosby‘s statement that he “didn‘t try to kill” Young, there is at least some support for exclusion on the basis that the opinion was based not on perceived events but on what turned out to be inadmissible hearsay. See e.g., McMillan v. State, 754 S.W.2d at 425 (holding that the owner of a stolen diamond could not testify that her diamond weighed one carat because her testimony was based solely on hearsay and not upon her own personal observation); See also e.g. Nichols v. Seale, 493 S.W.2d 589, 594 (Tex.Civ.App.—Dallas 1973) rev‘d on other grounds, sub nom Seale v. Nichols, 505 S.W.2d 251 (Tex.1974) (“... an inference by a lay witness must be based on data he has personally observed, not on hearsay or speculation“). Because evidence in the record supports excluding Middleton‘s opinion under Rule 701, the trial court did not abuse its discretion in doing so. Carroll v. State, 916 S.W.2d at 503; Meek v. State, 790 S.W.2d at 620. Consequently, the Court of Appeals did not err in upholding the trial court‘s exclusion of the testimony. The judgment of the Court of Appeals is AFFIRMED.
BAIRD, Judge, concurring.
I agree the testimony proffered by appellant was properly excluded. However, for
We granted review to determine whether
I.
Gary Mosby, Deryk Middleton, Andre Mosley and appellant entered a nightclub to rob its patrons. Appellant vaulted the bаr and was physically confronted by the victim. During this confrontation, appellant attempted to shoot the victim but the gun would not fire. Mosby provided appellant with a second gun which appellant used to strike the victim. Mosby obtained a third gun and fatally shot the victim.
The State called Middleton as a witness. Out of the jury‘s presence, appellant sought to question Middleton concerning Mosby‘s intent.1 The trial judge excluded the testimony. Appellant was convicted of capital murder and sentenced to confinement for life.
The Court of Appeals affirmed, holding:
... Middleton could not properly testify whether Mosby, at the time [of the shooting], had the culpable mental state necessary to convict appellant of capital murder, whiсh requires an intentional killing, rather than felony murder, which does not.
Fairow v. State, 920 S.W.2d 357, 360 (Tex.App.—Houston [1st Dist.] 1996).2
II.
To ensure only reliable evidence goes before the fact finder, witnesses must be competent.
Lack of Personal Knowledge A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.3
To fulfill the personal knowledge requirement the witness must “have actually observed the fact” about which he will testify. Fed.R.Evid. 602 advisory committee‘s notes. Personal knowledge is required because testimony without personal knowledge is pure speculation and conjecture. Obviously, such testimony lacks probative value and should be excluded.
III.
The personal knowledge requirement of Rule 602 applies to opinion testimony of lay
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.4
As we held in Bigby, the “perception of the witness” portion of the rule incorporates the personal knowledge requirement of Rule 602. Bigby, 892 S.W.2d at 889. See also, H. Wendorf and D. Schlueter, Texas Rules of Evidence Manual, at VI-3 (4th ed.1995). Therefore, lay witness opinion testimony is limited to first-hand knowledge or observation. Fed.R.Evid. 701 advisory committee‘s notes; see also, Ethicon, Inc. v. Martinez, 835 S.W.2d 826, 831 (Tex.App.—Austin 1992); and, Goode, Wellborn and Sharlot, 2 Texas Practice § 701.2, at 4 (1993).
In Arnold v. State, 853 S.W.2d 543, 547 (Tex.Cr.App.1993), the defendants attempted to admit testimony from lay witnesses as to whether the defendants acted “willfully.” The trial judge refused to admit the testimony and we affirmed. Quoting Ray‘s Texas Law of Evidence, § 1428, we stated:
In general our courts permit a witness to testify as to his own intention or other state of mind where the same is material * * * On the other hand decisions purporting to apply the opinion rule, uniformly exclude the testimony of a witness as to another person‘s state of mind. It is said that since one person cannot possibly know another‘s state of mind, his testimony is necessarily based on conjecture. This argument really invokеs the rule requiring the witness to have personal knowledge of the matter about which he is to testify.
See also, Winegarner v. State, 505 S.W.2d 303, 305 (Tex.Cr.App.1974); and, Lehman v. Corpus Christi Nat. Bank, 668 S.W.2d 687, 689 (Tex.1984).
Therefore, consistent with our holdings in Bigby and Arnold, the Court of Appeals correctly held the trial judge in the instant case did not err in excluding the testimony of Middleton concerning the culpable mental state of Mosby.5
In addition to the lack of personal knowledge, lay witness opinion testimony concerning a third person‘s culpable mental state is inadmissible because it does not satisfy Rule 701‘s requirement that the testimony be helpful to a clear understanding of the witness’ testimony or in determining a fact in issue. In Holloway v. State, 613 S.W.2d 497, 500 (Tex.Cr.App.1981), we held:
... Clearly, there is nothing to be gained by permitting a witness to proffer an opinion on a subject when any other person in the courtrоom, any member of the jury, could form an opinion on the issue equally readily and with the same degree of logic as the witness.
Id., 613 S.W.2d at 500-501. A jury is as capable of determining the culpable mental state of the third person as the testifying witness. There is no need for an opinion for what “any fool can plainly see.” Cooper v. State, 23 Tex. 331, 342-343 (1859); see also, Salem v. United States Lines Co., 370 U.S. 31, 36-37, 82 S.Ct. 1119, 1123, 8 L.Ed.2d 313 (1962).
IV.
For the foregoing reasons, I would reaffirm Bigby, supra, and Arnold, supra, and adopt a bright line rule that lay witness opinion testimony concerning a third person‘s culpable mental state is not admissible. Because the majority does not, I join only the judgment of the court.
OVERSTREET, J., joins this opinion.
MEYERS, Judge, concurring.
The resolution of the issue presented in this case turns largely upon the interpretation of the “personal knowledge” requirement. Under the common law rule, as reiterated by this Court in Arnold v. State, 853 S.W.2d 543, 547 (Tex.Crim.App.1993), the testimony of a witness as to another‘s mental state was inadmissible on the ground that one can never possess personal knowledge of another‘s mental state. The majority departs from this rule, concluding that the personal knowledge requirement simply goes to the facts upon which the lay witness opinion is based—not to the subject of the opinion itself. The majority holds that while a lay witness cannot testify that he knows “the actual subjective mental state” of another person, he can state his opinion of the mental state of another person, based upon his “personal knowledge of the facts underlying the opinion.” This holding is consistent with a plain language reading of the rules, the way we interpreted those rules in Bigby v. State, 892 S.W.2d 864 (Tex.Crim.App.1994), and with a common sense understanding of the term “opinion.” Arnold should be disavowed.
Rule of Criminal Evidence 701, Opinion Testimony by Lay Witness, provides:
If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferеnces which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or determination of a fact in issue.
In Bigby, we interpreted Rule 701 as incorporating the personal knowledge requirement of Criminal Rule of Evidence 602:
By requiring the [lay witness opinion] testimony to be based on the “perception of the witness,” the rule presumes the underlying facts were observed or experienced by the witness. This portion of the rule incorporates the personal knowledge requirement of Criminal Rule 602.
892 S.W.2d at 889 (emphasis added). Rule 701 permits an opinion based on the perception of the witness. Bigby further explained that this component went to the personal knowledge of the witness such that the facts “underlying” the opinion were personally obsеrved or experienced by the witness. So, as the majority correctly concludes, personal knowledge just means that the witness must have personally observed or experienced the facts giving rise to his opinion about the mental state of another, not that he has to have personal knowledge of the other‘s mental state.
Arnold reasons that an opinion about another‘s mental state should not be permitted because it is based on conjecture and can never be known for certain. This reasoning is at odds with what an “opinion” is. An opinion is one‘s view of something that cannot be known for certain, based on facts that can be known. Webster defines “opinion” as “a view, judgment, or appraisal formed in the mind about a particular matter.” Webster‘s
Evidence of what the witness thinks, believes, or infers in regard to facts in dispute, as distinguished from his personal knowledge of the facts themselves.
An opinion is simply the beliefs of the witness or inferences he has drawn; for this reason, it is important to ensure that the opinion is based upon identifiable facts within the personal knowledge of the witness.1
The majority says its holding is “in accord” with Arnold because “we agree that one cannot possess personal knowledge of another‘s mental state.” Majority op. at 899 n. 10. But that does not approach the crux of the holding in Arnold. In Arnold, thе defendants were convicted of disruptive activity on a university campus (participation in a “sit-in“). The State was required to prove the defendants “willfully” engaged in the prohibited conduct. The trial court ruled inadmissible testimony from several witnesses who were not present at the scene of the sit-in. This Court explained the nature of the excluded testimony:
The excluded testimony would have described various events involving apartheid that had occurred on the University of Texas campus, and the relationship of these events to state, national, and international events that transpired before this sit-in. The testimony was also offered to give the jury “greater insight” into each appellants’ mental state immediately prior to and at the time of the incident in question.
Arnold, 853 S.W.2d at 546 (emphasis added). The defendants complained on appeal the excluded evidence was relevant to whether they “willfully” committed the alleged offense. The Court of Appeals upheld the exclusion of the evidence, stating, “these witnesses could not have testified as to each appellant‘s state of mind—each appellant‘s testimony was necessary for that.” We agreed with the Court of Appeals, quoting as follows from Ray‘s Texas Law of Evidence:
“In general our courts permit a witness to testify as to his own intention or other state of mind where the same is material. * * * On the other hand decisions purporting to apply the opinion rule, unifоrmly exclude the testimony of a witness as to another person‘s state of mind. It is said that since one person cannot possibly know another‘s state of mind, his testimony is necessarily based on conjecture. This argument really invokes the rule requiring the witness to have personal knowledge of the matter about which he is to testify.”
Id. at 547. From the Court‘s own recitation of the facts, the witnesses in Arnold were simply offering testimony about “events” that would bear on or give insight into each appellant‘s state of mind. Therefore, Arnold stands for the proposition that a lay witness cannot even testify to events that give insight to another person‘s mental state, or give opinion testimony that even bears on mental state. Today the Court holds that a lay witness can give his opinion as to another‘s mental state if the opinion is “an interpretation of the witness‘s objective perception of events.” Arnold cannot be reconciled with the holding of the majority and ought to be disavowed. The majority‘s declaration that the two opinions are consistent does not make them so, and leads to confusion as to the state of the law.
With these comments, I concur in the judgment of the Court.
MANSFIELD, J., joins.