78 S.W.3d 522 (Tex.App. - Houston [14 Dist.] 2002) 2002), 14-00-00987, Winston v. State

Docket Nº:14-00-00987-CR.
Citation:78 S.W.3d 522
Party Name:Marcus Omar WINSTON, Appellant, v. The STATE of Texas, Appellee.
Case Date:March 28, 2002
Court:Court of Appeals of Texas
 
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Page 522

78 S.W.3d 522 (Tex.App. —Houston [14 Dist.] 2002) 2002)

Marcus Omar WINSTON, Appellant,

v.

The STATE of Texas, Appellee.

No. 14-00-00987-CR.

Court of Appeals of Texas, Fourteenth District, Houston

March 28, 2002

Rehearing Overruled June 6, 2002.

Page 523

[Copyrighted Material Omitted]

Page 524

Cary Marshall Faden, Sugarland, for appellants.

John Harrity, III, Richmond, for appellees.

Panel consists of Justices YATES, EDELMAN, and WITTIG [*].

OPINION

LESLIE BROCK YATES, Justice.

A jury convicted appellant, Marcus Omar Winston, of burglary of a habitation and assessed punishment at six years' confinement and a $2,000 fine. In two points of error, appellant challenges the trial court's (1) denial of a motion under Texas Rule of Evidence 702 to exclude evidence of a scent lineup and (2) denial of appellant's motion for directed verdict based upon the scent lineup evidence. We affirm.

Background and Procedural History

On May 18, 1999, the complainant's son called to tell her their home had been burglarized. When she got home, she noticed that the patio door had been shattered and that her son's Sony Playstation and Nintendo 64 were missing. Police investigated but were unable to lift a fingerprint. However, two days later, another residence two blocks away on Kearny Street was burglarized, and several items were disturbed. Deputy Pikett of the Fort Bend County Sheriff's Department brought his bloodhound, Quincy, to track a scent from the scene. Quincy trailed a scent from the second house to appellant's front door. Appellant was questioned about both burglaries. Deputy Pikett then obtained the location of the earlier burglary and drove Quincy to the complainant's house. Deputy Pikett testified that he gave Quincy a sample of the scent from the second house and Quincy located that same scent at the complainant's house, trailing it back to appellant's front door. Detectives later discovered a receipt with appellant's signature showing he pawned a Sony Playstation and a Nintendo 64 on the same day that the complainant's were reported missing. These pawned items were recovered and identified by the complainant's son as his property. Appellant was arrested and charged with burglary of the complainant's house.

In the presence of his attorney, appellant gave police a scent sample. Deputy Pikett then had Quincy and another bloodhound, Columbo, each compare the scent obtained from the Kearney Street dwelling to a "scent lineup" of five gauze pads, one of which contained appellant's scent sample. Over appellant's objection, Deputy Pikett testified that both bloodhounds "alerted" to the gauze pad containing appellant's scent. Deputy Pikett testified that he interpreted the dogs' actions as indicating a match between the scent obtained from the second house and appellant's scent.

The trial court denied appellant's pre-trial motion to exclude the testimony regarding "the dog sniff." Appellant challenged

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the qualifications of Deputy Pikett as an expert as well as the admissibility of his testimony regarding "the dog sniff test" based on Texas Rule of Evidence 702. After presentation of Deputy Pikett's testimony at trial and after the State rested, appellant moved for directed verdict on the same grounds. The trial court denied this motion. The jury found appellant guilty of burglary of a habitation and assessed punishment at six years' confinement as well as a $2,000 fine. This appeal followed.

Standard of Review

Since both of appellant's points of error deal with the admissibility of scent-lineup evidence under Texas Rule of Evidence 702, 1 we will combine these points of error in determining whether the trial court abused its discretion in admitting this evidence.

We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000); see also Kelly v. State, 824 S.W.2d 568, 574 (Tex.Crim.App.1992). In determining the admissibility of evidence, the trial court is the sole judge of the weight and credibility of the evidence presented at the suppression hearing. Weatherred, 15 S.W.3d at 542. We will reverse only if the trial court's decision falls outside "the zone of reasonable disagreement." Id.

Analysis

Appellant claims that the trial court abused its discretion in allowing Deputy Pikett to offer testimony regarding the scent lineup. We must decide whether the court...

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