Weatherred v. State
985 S.W.2d 234
Tex. App.
1999
Check Treatment

*2 WALKER, C.J., Before BURGESS and STOVER, JJ. REMAND

OPINION ON WALKER, Chief Justice.

On this court reversed Cap and remanded conviction for ital Murder based trial court error in denying appellant’s request to introduce sci regarding eyewitness entific evidence relia State, bility. See Weatherred 1998). (Tex.App. Both the — Beaumont Attorney Prosecuting State and the State petitions filed for review with Court Appeals. granted Criminal Court decision, petitions, vacated our and remanded of our case to us reconsideration holding. See Weatherred v. (Tex.Crim.App.1998). S.W.2d 323 We were “eyewitness” level of the confidence by the to reconsider our hold directed Court wholly strangers unre- concerning appellant’s expert identification of accuracy identification recently of such de lated Court’s very stranger for a is viewed 970 S.W.2d 549 cided case of Nenno period of time. also direct short (Tex.Crim.App.1998). conten ed us to address State’s at 130-31. *3 ruling trial court’s was correct

tion that the remand, are to reconsid- On we instructed upon 403.1 based We evidence our examination of the scientific opinion only those confine this to therefore must of the Nenno case. We issue any not revisit two issues. We will puzzled the Court’s admit that we are in our findings holdings contained other engage in this as directive to original opinion on submission. Nenno, entirely are holding in unless we opinion we it, scrutiny In our misreading appears to lessen leading Texas cases on the Kelly noted that examining for the scientific evidence admissibility expert of reliability. take and We factors of relevance (Tex. 568 Kelly were 824 S.W.2d following language in Nen- this cue from Crim.App.1992), and Jordan no: (Tex.Crim.App.1996). Weath- S.W.2d 550 study addressing of aside fields When erred, at 120. also noted 963 S.W.2d We sciences, the social hard such as from the discuss, rely heavily upon, the cases primarily that are based sciences or fields Supreme case of Dau United States training opposed as upon experience and Inc., Pharmaceuticals, bert v. Merrell Dow method, Kelly’s requirement the scientific 579, 113 2786, 125 L.Ed.2d 509 U.S. S.Ct. rigor reliability applies with less of but (1993). heavily Kel Relying ourselves on speak of the To than to the hard sciences. Jordan, rigor ly engaged we in a rather “technique” in validity “theory” or of a proffered by of the evidence ous examination roughly may accurate these fields be appellant’s expert, Dr. Kenneth Deffenbach appropriate misleading. The somewhat er, in said evi order to determine whether (1) field of questions are: whether sufficiently reliable and relevant. dence was (2) one, whether expertise legitimate is a Id. at 122-131. expert’s testimo- subject matter of (3) field, and ny scope of that is within the Dr. Deffenbacher’s testimo- first found testimony properly expert’s whether upon ny “relevant” based the Court’s to be principles upon utilizes relies and/or Regarding holding Id. at 121. in Jordan. questions ai-e field. These involved Kelly “reliability” prong, we noted that appropriately tailored transla- merely ah to be met specifically set out three criteria to areas outside tion of the test factors” and mentioned seven “non-exclusive And, methods hard science hard science. affect a trial court’s determination that could poten- validation, assessing the as such reliability. Id. at 121-22. We concluded theory subjecting a of error or tial rate testimony and the that Dr. Deffenbacher’s review, inappropriate may often be peer eye- dealing with scientific material written exper- fields of testing reliability provided: witness the hard sciences. tise outside adequate of the scientific theo- validation added). (emphasis at 561 experiments dis- question. ries remand, the State does valid and its brief in the articles involved cussed Nenno’s existence. with techniques. mask its frustration acceptable generally scientific from the brief taken Typical is this comment for Dr. Def- provided a reliable basis This quote from bias, immediately follows the opinion photo more which fenbacher’s three-part test: “As setting “eye- out not, Nenno results inaccurate often than below, modified three-factor identification, opinion shown even and for his witness” Rule of Evidence Evidence Rule of Criminal 1. Former trial, is identical to in effect at the time of apply test is difficult to and fails to address affirmative. Dr. Deffenbacher’s journal definitely the crux of the Rule 702 issue: Will this were within his articles jury?” contrary, assist the Lastly, On scope psychology. Dr. of the field imposing Nenno as see much easier descriptions experi- Deffenbaeher’s inquiry in to reach order the ultimate issue of conducted, personally as the ments he as well reliability. experiments details of various described journals by appellant, tendered scientific In the instant it cannot seri be widely accepted prin- relied and utilized ously contested the scientific evidence ciples psychology and the behavioral sci- involved “soft science” as that term is used general. ences See Astonishingly, in Nenno. the State takes S.W.2d at 122-30. As did the Court Nen- issue with this observation in their initial no, we too find that the sub-point they aver: “Dr. Deffenbach presented through er’s science tendered Deffenbacher was reli- hard *4 Jordan, able, relevant, clearly based on controlled studies and so as to be admis- may apply Nenno to this case. If indeed under Rule 702. It was therefore error sible apply, Jordan does then the has essen State for the trial court to have denied tially “pleaded themselves out of court” be request Dr. to call Deffenbacher as a witness cause, above, applied as noted Jordan and for the defense. Our harm remains opinion in original our on submission unchanged opinion from that set out our finding feel, reversible trial court error. We original submission. See Id. at 131-33. apparently Ap as did the now turn to the Rule 403 issue. In its peals, that type Nenno addresses the of sci us, opinion remanding the case back to the discipline, entific purposes, for Rule 702 in Appeals the Court Criminal framed issue volved the instant case. as follows: applying ques In the three Nenno Specifically, parties the contend tions, again reproduce we feel no need to Appeals failed to claim that address its testimony extensive from Dr. Deffenbacher expert the trial court’s exclusion of the variety or the of scientific articles which dis upheld witness’ could be experiments study eye cussed done in the probative value of the was reliability. question, witness The first substantially outweighed by prejudicial its expertise legitimate whether the field of is a effect. If Tex.R.Crim.Evid. 403. the trial one, virtually by answered facts court’s decision to exclude evidence is cor- expert Nenno case itself. theory any applicable rect on of law question “Supervisory Special Agent was a including Rule it will be sus- the Behavioral unit Science of the FBI.” tained. Smith v. Nenno, 970 at 552. The Court ulti (Tex.Cr.App.1995). mately expert’s found the Weatherred, 975 S.W.2d at 323. Rule 403 sufficiently established under relevant, “Although may provides: 702.2 Id. at 562. As was noted probative be excluded if its value is substan- opinion in our tially by outweighed danger of unfair psycholo Deffenbacher was chairman of the issues, prejudice, confusion of the or mislead- gy department University of Nebraska jury, or considerations of undue position and had Omaha held that since delay, presentation or needless of cumulative 963 S.W.2d at 122. We attempt any evidence.” We address problem finding have no that the area of implications fully possible. Rule 403 as science, psychology partic behavioral ular, outset, legitimate expertise. strongly is a field of we must take At following second can also be answered in the issue with the observation con- 2. Former Rule of Criminal Evidence a understand the evidence or to determine issue, fact in trial, qualified expert by was in effect at the time of is identical to a witness as an knowl- skill, edge, experience, training, Rule of Evidence 702. Rule of Evidence 702 education or scientific, technical, provides: spe- may testify opinion "If or other thereto in the form of an knowledge cialized will assist the trier of fact to otherwise." seriously supplemental appellate ultimate issue was not contested tained in the State’s opponent; had other brief: that State convincing the ulti- evidence to establish primary disputed this ease extraneous mis- mate issue to which the was not the identification of relevant; probative conduct was perpetrator. Appellant [N.R.] as the nev- not, evidence was value of misconduct positively Appellant. [24 identified SF either alone or in combination with other placed Ap- identification 1701] [B.M.]’s Ms. evidence, particularly compelling; that the pellant neighborhood, in the but not at the of such a nature misconduct was [24 1676] scene of the crime. SF any jury disregard it for instruction to respect to the the sole With all due likely proffered purpose its would not identity contested issue the case was the Accordingly, efficacious. when the been An exami- perpetrator of the murder. or more such relevant record reveals one hotly nation of the record shows that it was a reasonably conducing criteria to a risk example, the defense contested issue. For probative of the tendered evi- value eyewitness testimony plac- provided its own substantially outweighed by dence is unfair ing appellant airport miles from the Lubbock prejudice, then an court should prosecution at the time witnesses same irration- conclude that the trial court acted they appellant only at testified observed it, ally failing thus to exclude plane heading Dal- airport, but on a abused its discretion. quite equiv- las. While N.R.’s near ocal as to her identification Id. at 392-93. *5 crime, pointed as we out in the scene “rele- now turn to an prior opinion B.M. could not be shaken in our in vant criteria” the instant case based being certainty appellant of the her absolute guidelines Montgomery. set out in As the driveway person she observed her on the us, particularly we examine the record before Weatherred, morning the murder. 963 in the of the excluded scientific evi- context accept at 121. We therefore cannot S.W.2d following question, dence in the “relevant identity, suggestion that as elicit- the State’s appear: criteria” otherwise, eyewitnesses not ed from or was 1) issue, identity, very the ultimate was “primary disputed issue” the instant the by parties; seriously contested case. 2) pro- appellant had other evidence that it Any applicability of Rule 403 jury indicating duced for the question, scientific evidence testimony perpetrator, but was not the gen purposes, place must take the review “convincing” did apparently not eral context of the need for such identity seriously call into the i.e., proponent, probativeness. See its its eye- main from the State’s two State, Montgomery v. 810 392 S.W.2d witnesses, B.M.; N.R. and rehearing). (Tex.Crim.App.1990)(opinion on 3) probative value of the excluded sci- measure a trial court’s Appellate courts must particularly indeed entific evidence was ruling against the “relevant criteria” novel, the rather compelling as it included to which a Rule 403 decision is be made. validated, theory that experimentally analy Montgomery set out our The Court eyewitness level of identifi- the confidence as follows: sis of Rule 403 issues strangers wholly unrelated to cation of is Therefore, we hold that where relevant accuracy of such identification criteria, objectively possible, viewed as very short stranger is viewed for a danger that the lead to the conclusion 131; time, See substantially outweighed prejudice unfair 4) was not proffered evi- the excluded scientific evidence probative value of the startling spectacular nature dence, of such a or appellate court should declare jury, if limiting that a instruction to failing to ex- that the trial court erred practical no legally applicable, could have gleaned from it. Relevant criteria clude alia, include, that the effect. the authorities inter

239 requirement in- of reliabili It is clear from the relevant criteria Court reaffirmed ty previously out in probative in the case that the it set volved instant (Tex.Crim.App.1992), value of the excluded scientific evidence 824 S.W.2d 568 applied greatly any prejudicial requirement would be exceeded effect to the but stated Nenno, rigor.” against appellant. also with “less 970 S.W.2d at 561. State’s case This is rigorous test regard true with to the other Rule 403 In of Nenno and the less therein, issues,” majori grounds out I now concur with the such as “confusion of the set expert testimony “misleading jury,” delay,” ty opinion and conclude the “undue presentation and reliable. I likewise “needless of cumulative evi- was both relevant agreement majority’s conclu dence.” As the Court-in Nenno observed am in with the reply objection probative to a Rule 403 to the State’s sion that more expert: prejudicial. majority correct behavioral science “As for than The claim, concluding Rule 403 trial court erred in exclud above discussion shows merely testimony. Lanning’s did not du- Dr. Deffenbacher’s plicate jury’s knowledge Lanning 44.2(b) Appel Rule of the Texas Rules of possessed superior knowledge concerning the governs late Procedure the assessment sexually behavior of offenders who victimized harm after error is found criminal cases. children.” S.W.2d at 562. provides “any er [non-constitutional] It our Dr. Deffenbacher’s indi- ror, defect, irregularity, or variance that does “superior knowledge” concerning cated his rights be disre affect substantial must eyewitnesses exposed lack garded.” Appeals has bias,” “photo concerning the lack of a right indicated that substantial is affect “[a] eyewitness relation between confidence and ed when the error had a substantial and accuracy regard stranger with injurious determining effect or influence in par- identification. As his work in these two jury’s King verdict.” ticular areas of behavioral science mirrored (Tex.Crim.App.1997) (citing presented surrounding the facts that were States, 750, 776, Kotteakos v. United 328 U.S. N.R.’s and B.M.’s ultimate identification of (1946)). S.Ct. 90 L.Ed. 1557 *6 appellant, Dr. Deffenbacher’s evidence was initial whether the before us then is particularly probative. relevant and We find excluding expert testimony af error deny- the trial court abused its discretion in rights. appellant’s fected substantial oth ing appellant’s request present Dr. Def- words, would Deffenbacher’s testimo fenbacher and his scientific evidence. We ny injurious have had a substantial and effect again appellant’s point sustain third of error. determining jury’s or influence verdict. judgment The trial court is reversed See Salinas v. 963 S.W.2d and the cause remanded to said court for a Christi), (Tex.App. Corpus vacated on other — new trial on the merits. (Tex.Crim.App. grounds, 980 1998). AND

REVERSED REMANDED. majority in-depth analysis has done an STOVER, Justice, dissenting. record, However, respect. of this which I Having majority opinion viewing placing dissented to the after the entire record and ease, record, of this I the error in context of that I submission now conclude, my position majority, appellant’s reconsider of the Texas unlike the Appeal’s opinion rights in Nenno were not affected. The substantial (Tex.Crim.App. unreliability 1998). opinion, recognized jury through appel- emphasized In that before the eyewitnesses applicability of 702 to the lant’s cross examination of through stringent introduction of other “soft sciences” and set out less themselves Since the test for admission of such evidence. The defense evidence.1 photo- Through photo- Appellant 1. of the crime. introduced into evidence the scene graphs, sought graphs vantage point appellant’s to illustrate taken at the from which the counsel N.R., angle young girl, point from that the distance and the would viewed already jury, before the albeit expert testimony, I do believe rights affected the trial

substantial were error. Dr. Deffenbacher’s

court’s effect, very slight

would have had no

effect, Consequently, the tri- on the verdict. and, pursuant

al court’s error was harmless Tex.R.App. 44.2(b), disregard- P. should be overruled.

ed. Point of error three should be WILLIAMS, Appellant,

Joe Nathan Texas, Appellee. STATE

No. 09-97-497CR. Texas, Appeals of

Court of

Beaumont.

Jan. 14, 1998.

Submitted Dec. 20, 1999.

Decided Jan. *7 Simonsen, Conroe, appellant.

Stephen Atty., Ki- McDougal, Gail Michael A. Dist. Conroe, McConnell, Atty., Asst. Dist. kawa for state. BURGESS, C.J., WALKER,

Before STOVER, JJ. appellant unreliable. alleged perpetrator made N.R.'s identification

which N.R. saw