15 S.W.3d 540 (Tex.Crim.App. 2000), 291-99, Weatherred v. State

Docket Nº:291-99.
Citation:15 S.W.3d 540
Party Name:Jon David WEATHERRED, Appellant, v. The STATE of Texas.
Case Date:March 29, 2000
Court:Court of Appeals of Texas, Court of Criminal Appeals of Texas

Page 540

15 S.W.3d 540 (Tex.Crim.App. 2000)

Jon David WEATHERRED, Appellant,


The STATE of Texas.

No. 291-99.

Court of Criminal Appeals of Texas.

March 29, 2000

Daniel W. Hurley, Lubbock, for appellant.

Betty Marshall, Asst. St. Atty., Matthew Paul, State's Atty., Austin, for State.

Page 541


MANSFIELD, J., delivered the opinion of the Court, in which McCORMICK, P.J., and KELLER, HOLLAND, and KEASLER, JJ., joined.

The question presented is whether the Ninth Court of Appeals erred in holding that the trial court abused its discretion in excluding expert testimony on the reliability of eyewitness identifications. We hold that the Court of Appeals did err.

The Relevant Facts 1

A Montgomery County grand jury indicted appellant, Jon David Weatherred, for the capital murder of William Ralph Strawn in The Woodlands in 1988. See Tex. Pen.Code § 19.03(a)(2). At trial, the State's case relied in part on the testimony of two eyewitnesses who identified appellant as being near the scene of the crime at or about the time of the crime. In rebuttal to those eyewitnesses, appellant offered the testimony of Dr. Kenneth Deffenbacher, a psychologist who claimed to be an expert on the reliability (or unreliability) of eyewitness identifications. 2

The trial court held a hearing, outside the presence of the jury, on the admissibility of Deffenbacher's testimony under Texas Rule of Evidence 702. 3 At that hearing, Deffenbacher testified, in relevant part, that (1) he had a doctoral degree in psychology and was chairman of the department of psychology at the University of Nebraska at Omaha; (2) he had done extensive research in the field of human visual perception and memory; (3) he had written "about 35 articles, ten or twelve chapters in edited books, and a textbook" on human visual perception and memory; (4) he and other psychologists had identified, through generally-accepted experimental research, numerous "variables" affecting the reliability of eyewitness identifications; and (5) three of those variables--"photo bias," the "forgetting of a stranger's face," and the lack of a relationship between eyewitness confidence and eyewitness accuracy--were applicable to the eyewitness identifications in the instant case.

At the conclusion of the hearing, the trial court ruled Deffenbacher's testimony inadmissible. The trial court gave no explanation for its ruling. Five days later, appellant asked, and was allowed, to supplement his offer of proof with photocopies of Deffenbacher's curriculum vitae and five published articles, some by Deffenbacher and some by others, that reviewed current psychological research on the reliability of eyewitness identifications. Appellant did not, however, ask the trial court to reconsider its earlier ruling. The jury subsequently found appellant guilty as charged in the indictment. Punishment was assessed at imprisonment for life.

On direct appeal, appellant brought six points of error. In one of the points, he argued that the trial court erred in refusing to let Deffenbacher testify before the jury. The State maintained, in response, that the trial court did not abuse its discretion

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in excluding Deffenbacher's testimony because "[a]ppellant failed to ... timely present sufficient evidence" of the scientific reliability of that testimony. The Ninth Court of Appeals accepted appellant's argument and rejected the State's after "finding," apparently as a matter of law, that Deffenbacher's testimony was both relevant and reliable. The court then reversed the judgment of the trial court and remanded the case for a new trial. Weatherred v. State, 985 S.W.2d 234 (Tex.App.--Beaumont 1999). We granted the State Prosecuting Attorney's petition for discretionary review to determine whether the...

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