*1 RODGERS, Appellant Keith Warren Texas. STATE of
No. PD-0645-05. Appeals
Court Criminal Texas.
3,May
Henry Whitley, Special Assistant Crimi- Quitman, nal Attorney, District Matthew Paul, Austin, Attorney, State’s for State. OPINION J., COCHRAN, opinion delivered the Court, MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, and HOLCOMB, JJ., joined.
In this case we hold motion to an expert strike witness’s based qualifications, his lack of which is made testified, after the witness has can serve as a renewed to the trial court’s ruling quali- earlier the witness was circumstances, fied. an appellate these court reviews the trial court’s upon all of the evidence before the court at Although the time of the motion to strike. language we disavow some of the appeals’s opinion, we affirm ultimate that the conclusion State’s testify under Rule 702 of the Texas Rules of Evidence.1 I. trial,
At
the State’s
showed that
ran over his wife
van,
injured
placed
with his
and then
her
body
be run
on railroad track to
over
examiner,
A latent-print
a train.
A.J.
Jumper,
was called
ap
comparisons
about his
of the soles
pellant’s
imprints
shoes and tire
from his
impressions
van
made from a shoe
with
rail
print and tire tracks found near the
Jump
road tracks.
tested Mr.
objected
er’s
on voir dire and
that he was not an
either tire or
The trial court over
objection,
testi
ruled that
and Mr.
comparisons
revealed common
fied
Appellant con
Volberding, Tyler,
Appel-
or similar characteristics.
James W.
Jumper’s qualifica-
challenge
lant.
tinued to
2005).
Rodgers
App.-Texarkana
issue,
qual-
a fact in
a witness
during
tions
his cross-examination and ul-
determine
skill,
expert by knowledge,
ified
timately
a motion to
the shoe-
strike
experience, training,
education
testimony.2 The trial
imprint-comparison
form of an
thereto
court denied that motion. The
con-
*3
or
appellant of murder
sentenced
otherwise.5
victed
$10,000
imprisonment
him to life
a
Thus,
testimony
admitting expert
before
fine.
under
trial court must be
Rule
the
(1)
three
are met:
satisfied that
conditions
appeal,
On
claimed
the
expert by
an
rea-
qualifies
the witness
as
trial court erred in
Mr.
allowing
skill, experience,
of
knowledge,
son
his
relied,
part,
He
in
expert.
on
(2)
education;
mat-
subject
the
training, or
developed
he
during
evidence
his extensive
testimony
appropriate
of
an
ter
the
is
appeals
The
cross-examination.
court of
(3) admitting
testimony;
evidence,
expert
declined
consider
howev-
actually
the
will
assist
expert
er,
developed
because it was
“after
deciding
in
the fact-finder
the case.6
already expressed
opinions
before
that,
jury.”3
It held
on
A trial court need not exclude
at
time of
original ruling,
expert testimony
because the sub
simply
trial
had not
abused its discre-
ject
comprehension
within the
of
matter is
in
permitting
tion
as
jury.7
If
witness
some
average
has
expert
shoe-print compari-
tire and
special knowledge or
into
insight
additional
sons.4
helpful,
the field that would be
then
fact
under
expert can assist the trier of
II.
stand
to determine a fact
the evidence or
Rule 702 of the Texas
of
Rules
expert “may
An
add precision
issue.
states,
Evidence
ability
of the trier of fact
depth
technical,
scientific,
subjects
If
special-
other
to reach
conclusions about
knowledge
experience.”8
ized
will
the trier of
lie well
Be
assist
within common
education,
fact to
possible spectrum
understand the evidence or to cause the
of
2. Appellant
explicitly
objec
Rodgers,
did not
renew his
3.
skill, wide, training a degree expertise. Testimony is so trial court that “a great has in determining discretion wheth- given profile occurred one time 2.578 possesses qualifica- (2.578 er a witness sufficient zeroes), sextillion a followed tions to assist the larger number than the number of known specific topic in a particular case.9 (estimated stars in the universe at one sextillion)”11 requires higher a much de- Appellate courts consider sev gree expertise of scientific than eral criteria in assessing whether a trial “that the defendant’s tennis shoe could clearly court has abused its discretion bloody have made the shoe print found on First, expert’s qualifications. on an piece paper apart- in the victim’s expertise complex? is the field of *4 third, ment.” And how central is the education, degree of training, experi or expertise area of to the resolution of the ence that a witness should have before he dispositive lawsuit? The more is the can qualify expert directly as an is related issues, disputed important more to the complexity of the field about which expert’s qualifications are. If DNA is the proposes testify.10 he to If the expert only thing tying the defendant jury’s evidence is close to the common crime, reliability expertise of the understanding, qualifications the witness’s give opin- the witness’s to important are less than when the evidence if eyewitnesses ion are more crucial than is jury’s experience. well outside the own a confession also connect the defen- example, For profiling DNA is scientifical dant to the crime.13 ly complex; latent-print comparison (whether shoes) tires, of fingerprints, or Second, event, In any appellate
not. how conclusive the ex pert’s opinion? The more ruling light conclusive the must review the trial court’s expert’s opinion, important the more is his of what was before that court at the time State, 701, apartment 9. See Joiner v. 825 S.W.2d 708 with the sole of the defendant's State, (Tex.Crim.App.1992); permitted Steve v. 614 tennis shoe. The witness was 137, (Tex.Crim.App.1981). testify 139 For over defendant’s foundation reason, appellate rarely courts disturb the that defendant’s shoe could have made the trial court’s determination that a wit- impression paper.... In this case the qualified ness is or is not pattern, found a similar tread similar State, 18, expert. Wyatt size, v. 23 S.W.3d 27 shoe and twelve similar individual or ("The (Tex.Crim.App.2000) question of wheth- manufacturing defects. No dissimilarities expert possesses er a witness offered as an were found. We find no abuse of trial court required qualifications largely rests in the tri- admitting expert opinion.”). discretion in al court's discretion. Absent a clear abuse of discretion, the trial court’s decision to Everett, F.Supp. United v. States 972 13. Cf. admit or exclude will not be dis- 1313, (D.Nev.1997) (police 1319-20 officer turbed”). testify Drug Recognition protocol probabilities Evaluation and to the Heise, 148, (Tex. 10. Broders v. 924 S.W.2d person drugs is under the influence of 1996); 113 S.W.3d 831-34 Perez upon protocol, but could not (Tex. ref'd). App.-Austin pet. fact; opinion that his was an established not ing that courts should consider to what use 11. Wilson v. opinion may put; "If the J., (Johnson, Crim.App.2006) concurring). testimony, proffered conclusion is issue, going dispositive to and of the ultimate Oliver, (Iowa merely 12. State v. 341 N.W.2d that is one use. If it is used to find ("A 1983) compared bloody probable require a criminalist cause” to arrest and a toxi exam, use”). print piece paper cological found on a in the victim’s "that is another graduated from had never was made.14 on tire college, never written articles
III. days work only a few of class prints, had case, present the State estab- matching of shoe and specific to the lished, examination, direct be- imprints, only had testified twice print is a latent examiner for the tire-print regarding fore County Dallas Southwestern Institute of asked, your job finger- most of “Is When (SWIFS). qualifica- His Forensic Sciences answered, “That’s prints?” Mr. print tions latent examiner the bulk of it.” training physical included: objected con- Appellant then at a bench County section Dallas Sheriffs Of- that Mr. agreed ference. He fice; apprenticeship with a certified fingerprint-identification ar- expert, but examiner; and courses classes not a or tire- gued that he was shoe- matching imprints of shoe and tire at the imprint expert. Appellant identification County Dallas Sheriffs Office pointed relative lack Texas; University of North shoe and tire in the experience, training, education training imprint class with a FBI former *5 and com- tire-imprint area of shoe- expert; training and a imprint tire class at parison.15 an FBI conference. if asked appel- When he was “able then to take After trial court overruled a, just print objections, not a tire fingerprints but lant’s testified be- print and his comparisons make between fore about appel- an item from a crime scene Asked if a match and some there was between item you imprint other or known item that lant’s found at the later shoe and located,” scene, Mr. Jumper replied that could. testified: “I can’t ex- he He also stated that he had testified I can’t ... as a clude this shoe and state “[o]ver in imprint. 150 times” courts. fact that made It Appellant Texas this shoe that design then took Mr. voir dire has characteristics Jumper on “to test similar and ” the, qualifications you his 702.” can the photograph.... under That voir see revealed, among things, “say ap- dire if that other that Asked he could sure” * "My 14. Weatherred v. not qualified is he’s under (Tex.Crim.App.2000). Kelly. He meet Daubert or doesn’t qualifications by any If level of standard. Among appellant’s arguments objec- and testing going that he’s scientific following: familiar, well, tions were maybe he’s he’s * express taking on a tire an Honor, “Your I would like to come and matching to an tire or individual challenge qualifications. his I didn't neces tires, any even I don’t see how a class sarily want to juiy. do that in front of the I way grand days total of class- any questions have my don’t other Dau- training any subject period room would challenge.’’ bert * expert any anyone make an when that time paper, good you "On he but looks when qualifications leaves work which al- details, all look actual it's about fin though years respectful are two limited to gerprints just and that’s what I discovered supervisor training through a ... on qualifications he because listed all of job training. already he’s He’s testified pretty together.” much loads it * twice, only only only he's made two him testified ”[I]t when I heard list his reports.” qualifications might I realized there * get "He to 702. He doesn't meet issue and looked at his resume and it’s didn’t weak.” of 702 or 703.” rather pellant’s they tires the tracks found at the shoe and can do visual examination scene, sir, I say he answered “No can’t purpose they for whatever deem.” The only that those are the tires that could trial court that motion and stated denied you have made those tracks.... I can tell that similarity physical that there is a in the fingerprint the same could be said about I shape design pointed out....” identification. that The Court believes then cross-examined Mr. go someone trained how to about day. for half a The cross-exami- factors, identifying, finding these while by nation up was broken several bench jurors it is visual presumably have lengthy conferences and voir dire examina- that eyes see the same manner that jury’s
tions
presence
outside the
because
see,
training
can
objected to
the State
the relevance of vari-
experience
knowing
what
beneficial
questioning,
ous lines of
such as that de-
compare it.
to look for and how to
signed
expose
lack of
size, width,
expertise
identify
sum,
appellant made two distinct re-
reading
radius of
tire
tire side-
relief;
quests for
the first was the series of
previewing appellant’s pro-
wall.16 After
objections
appellant’s initial “voir
after
cross-examination,
posed
the trial court al-
Jumper’s] qualifications
dire to test [Mr.
lowed
to show that Mr.
702,”
under
and the second was his motion
pick
“wouldn’t know how to
a tire off the
Jumper’s shoe-comparison
to strike Mr.
shelf to sell it if he
in the
business
Jumper’s compari-
because Mr.
store,”
selling
in a
or “identify
tires
visual,”
“just
any
something
son was
make,
manufacturer and the size of the
juror could do himself.17
Appellant eventually
shoes.”
moved to
*6
appeal, appellant argued
On
that
Jumper’s
Mr.
shoe-comparison
strike
testi-
trial court
its discretion in
just
Any juror
had abused
because
visual.
“[i]t’s
tread, they
qualifying
Jumper
expert18
can look at shoe
can look at the
as an
and
Appellant justified
his cross-examination
not an
in either tire or shoe identifica-
by stating that
tion.
*
man has come into this courtroom
"[T]his
18. Among appellant's
were the fol
assertions
quali
and declared himself to
abe Daubert
lowing:
fied
in
can
tire identification. He
no
*
identify
I
Jumper
every
required by
more
a tire than
can....
I’m
"Mr. AJ.
fails
test
Daubert,
identifying
qualification."
Kelly
his lack of
...”
Robinson
*
expert.
Jumper
college.”
*[H]e’s not an
He doesn’t need to
"Mr.
never attended
*
ignorance
stagger-
"His
of tires and shoes is
be on here under 703. If the
can look
print,
they
ing.”
at that tire and look at that
then
*
Jumper
testimony
"Here
a
what Mr. A.J.
did
don’t need his
and he doesn’t
list of
(listing
things)
anything unique
us
not know about tires”
have
and he can't tell
*
nothing
“He
about shoes.”
how
knew
to reference
tire.”
*
*
is,
"Respectfully,
Jumper
close to
get
comes
question
"...
is he
to
being
Jump
a fraud.
It is obvious how Mr.
question.”
that
*
got
job.
salary
Tired of modest
er
doesn’t have the
neces-
"[H]e
Department,
Sheriff's
he sold himself to
sary
identify
a tire.”
by assuring
SWIFS
that he would be able to
explained
supra,
generate
only by billing
17. As
in note
we conclude
at
a
fees not
out
judge
prosecutor
fingerprint expert,
the trial
both un-
...
avail
that
but also
as an
going
expert.
appellant's
print
print
motion to strike as
No
derstood
able shoe
any
Jumper's qualifications
up
to make
line
some old tires or
to Mr.
bothered to
questions.
type
imprint comparison
him a few
That
because he was
shoes
ask
testimony devel-
based on
therefore,
largely
his testi-
the admission of
that
Fa-
this cross-examination.
addressing
oped during
process.
due
mony violated
contentions, however,
is that
claim that
tal to his
appellant’s
allowing
after
discretion
came
abused its
appeals
testify,
opinions
the court of
before
expressed
already
that, after the trial court overruled
noted
jury.19
testi-
appellant’s
held,
on the evi-
“Based
The court then
fying
expert,
court at the time
the trial
dence before
its direct exam-
continued with
the State
no
qualifications,
Jumper’s
eliciting opinions
Jumper,
ination of
shown.”20
has been
of discretion
abuse
him,
objection, that
from
without further
due-
The court also stated
at
prints photographed
and tire
the shoe
(based
alleged defi-
on the
process claim
impressions
from
the scene and the
elic-
Jumper’s qualifications
in Mr.
ciencies
had similar
Rodgers’ shoes and tires
cross-examination)
inade-
during
ited
a
designs.
After
characteristics
quately briefed.21
trial, Rodgers
recess of the
weekend
appellant
agree with
We
lengthy
and detailed cross-
conducted
“limiting
was mistaken
appeals
court of
much of it out-
Jumper,
examination of
questions
analysis
of its
to those
scope
during
presence
jury,
side the
initially” and
“exclud
asked
strong challenge
Rodgers
developed during subse
ing
general knowledge of tires
It
is clear
“Daubert,
cross-examination.”22
quent
Rodgers’
shoes.
Robin-
”
that the trial court understood
Kelly
appeal
issues on
are
son
courtroom,
the United States Consti
Clause of
he would enter a
make serious
Process
case,
thereby
degree felony
Rodgers was
claims in a first
murder
tution and
his time seems almost criminal.”
any
and bill
au
Rodgers
provide
does not
harmed.
Appellant
in his
devotes considerable time
process
thority
argument on how his due
widths,
codes,
such
brief to issues
as tire
argument centers
rights
His
were violated.
sizes,
they
and whether
are radial
tires or
Jumper's
alleged
deficiencies
bias-ply
apparently
tires.
confus-
during
qualifications elicited
cross-exami
(i.e.,
ing expertise
in tire
identification
argues and cites cases address
nation. He
*7
imprint
by a 2005
'this tire track
was made
Daubert/Kelly line of
ing Rule 702 and the
Goodyear
19’
radial tire with a code number
cases,
authority
argument
no
or
but offers
'P215R78-15')
print comparison
with tire
of
(i.e.,
a due
why
purported error amounts to
such
specific
'although
what
I have no idea
point of
process
We find this
violation.
model,
track,
brand,
or size of tire made this
inadequately
and decline
error
briefed
many
by
prints
the tire
made
that tire share
38.1(h);
TEX. R. APP. P.
address it. See
to the tire
characteristics with and are similar
(Tex.
Vuong
830 S.W.2d
tire’).
by
prints
the defendant's
made
.1992).
App
Crim.
attempt
identify
Jumper did not
the
of
grant review of the court
Id. We did not
made the
type or
of tire or shoe that
brand
and there-
appeals’s conclusion on this issue
testimony
muddy ground;
imprints on the
his
opinion
question.
express
on that
fore
no
comparing the latent shoe and
was limited to
by
imprints
imprints
with
left
tire
at the scene
brief,
forthrightly admits
State
22. In its
the
appellant's shoes and tires.
of
responsible for the court
that it
be
Rodgers,
training, defendant, or placing education under Rule 702. of the shoes as tracks, a repetition His motion to strike was shoe in the or who has detailed original objection, renewal of his peculiarities ground the tracks on the upon alleged shoes, additional deficiencies devel- or correspond which with the with oped during cross-examination. This is proven or admitted tracks of the akin to a situation in a suppression defendant, that in of these cases either issue, in a litigated pretrial suppression may give or instances the witness hearing, re-litigated is at trial. In that similarity as to situation, appellate court that reviews tracks.26 ruling just not court’s considers And, early days as the of the Model suppress the evidence from the motion to T, we said much the same about hearing, but the relevant trial tracks: well.23 appellant There was evidence that Nevertheless, automobile; we need not remand that the tire on owned an appeals this case to the court of to re- was smooth and on the other a side reaching review the record before fore found on Diamond tread. There were gone type conclusion.24 This from the ground a short distance admissible, in long by has been Texas and made scene of the homicide tracks elsewhere, by lay either or witn with a smooth tire on one automobile ago, esses.25 Decades we noted tire on side and a Diamond tread print comparison testimony generally other. There evidence that on the admissible: night place the homicide took same recognized driving his car. unbroken line of decisions of this
[T]he state, Diamond tread imprint every other state with which familiar, tire on the mud near the scene of the we are hold ... that a witness introduced preserved homicide was who has made measurements tracks, evidence, cast of the tire plaster and the foot or shoe of the defen- identifying purpose the accused as the 23. Rachal v. ("in Crim.App.1996) determining guilty party, correspondence whether evidence of the sup tracks, [suppression] decision trial court's or those of of the accused's shoes record, ported by generally we consider horse, the scene of to tracks found near only suppression evidence adduced Davis, admissible”); R.P. Annota- the crime is hearing was based on because tion, tracks, Admissibility to tire evidence as la rather than introduced WL at *22 23 A.L.R.2d .However, general inappli ter... rule is 2003) ("In August prosecu- (1952 Updated — *8 where, case, suppression cable as in this intentionally commit- tions for various crimes by consensually re-litigated issue has been ted that tire marks sim- evidence merits”) (citations parties during trial on the on car were observed ilar to those defendant’s omitted). has been held admis- at the scene of the crime connecting purpose of defendant sible for the State, 571, 24. McDonald v. 179 S.W.3d 580 crime”). with the J., (Cochran, (Tex.Crim.App.2005) concur- ring). 370, State, v. S.W.2d 373 333 26. Martinez omitted); (Tex.Crim.App.1960) (quotations Annotation, LeFevre, Footprints 25. E. as evi- State, 865, 868 dence, 856, 9282, see also Luster v. 85 S.W.3d WL at *2 35 A.L.R.2d 1954 2002, (shoe- ("It pet.ref’d) 2005) (Tex.App.-Eastland, (1954 Updated July seem would — evidence). proposition print comparison generally accepted that for to be
533
conclusions. The
also
and Mr.
based his
appellant’s
on
car was
proof introduced that
the tread on his
for
by
on Mr.
exhibits relied
car
impression
and the
mud were
were admitted into
physical comparisons
shape.
fact
identical
in size and
jury
to the
and
available
evidence
were
that
it
that
the track
possible
was
deliberations;
jury
during its
could
homicide,
prior
have been made
It could
comparisons.
make its own
also
might
by
or that
it
have been made
credibility
weight and
determine the
other than that of appellant,
automobile
testimony and the
give
would,
circumstances,
relate
under
individuals with shoes
likelihood that other
weight
testimony,
of the
but
might
and tires similar to
have
rejec-
legal ground
would not
be
prints
by
made the
found
the railroad
tion.27
of
tracks.
was an abundance
other
There
The reason this kind of
pointing
appellant
per-
evidence
liberally
is that
of tire
allowed
field
wife.31 Under the
son who murdered his
comparisons
particularly
is not
shoe
circumstances,
agree
we
with
court of
opinions
the witness’s
are not
complex,28
not
appeals that
trial court did
abuse
consequently,
they are
conclusive,29
concluding
Jump-
its discretion in
that
generally
pivotal
not
to the resolution of
testify
sufficiently qualified
er was
as an
the case.30
expert
on
and tire
case,
In
descriptions
this
heard
of the physical comparisons upon
appeals.
which We affirm the court of
629,
home,
State,
Haley
27.
84 Tex.Crim.
was
at the home of the mother
209 S.W.
found
675,
Schleeter,
(1919);
676
see also Wilson v.
appellant,
where he
of
Willard
59,
(tire-
circumstance,
(Tex.Crim.App.1993)
S.W.2d
though
62-63
slight,
lived. It
awas
evidence).
tread-impression comparison
tending
with the
connect
com-
mission
offense.
Jeter,
(La.
28. See State v.
PRICE, J., concurring opinion. filed
PRICE, J., concurring opinion.
I that the court of agree with the Court admissibility
appeals erred testimony in with- this case considering
out motion to
strike and the evidence he adduced
cross-examination, for the reasons However, gives in its rath- opinion.
Court question
er than address that ultimate do,
admissibility, goes on to I Court the cause to the court of
would remand
appeals to resolve that issue in the first See, e.g.,
instance. Lee v. (“In (Tex.Crim.App.1990) discretionary capacity
our review we re- appeals.”)
view ‘decisions’ of the courts of
That court should be the first to address appellant’s argument,
the merits of the all of
taking into consideration the relevant determined
evidence as Court. not remand the
Because Court does
cause, I concur. GILLENWATERS,
David Carrol of Texas. STATE
No. PD-1443-05. Appeals Texas.
Court of Criminal
Sept.