Weatherred v. State

• Citation: 985 S.W.2d 234
• Decision Date: 12 May 1999
• Docket Number: No. 09-95-225,09-95-225
• Parties: Jon David WEATHERRED, Appellant, v. The STATE of Texas, Appellee. CR
• Court: Court of Appeals of Texas

Page 234

985 S.W.2d 234

Jon David WEATHERRED, Appellant, v. The STATE of Texas, Appellee.

No. 09-95-225 CR

Court of Appeals of Texas,

Beaumont.

Submitted Dec. 7, 1998.

Decided Jan. 20, 1999.

Discretionary Review Refused May 12, 1999.

Discretionary Review Granted May 12, 1999.

Daniel W. Hurley, Lubbock, for appellant.

Michael A. McDougal, Dist. Atty., Gail Kikawa McConnell, Asst. Dist. Atty., Conroe, for state.

Before WALKER, C.J., BURGESS and STOVER, JJ.

OPINION ON REMAND

WALKER, Chief Justice.

On original submission, this court reversed and remanded appellant's conviction for Capital Murder based upon trial court error in denying appellant's request to introduce scientific evidence regarding eyewitness reliability. See Weatherred v. State, 963 S.W.2d 115 (Tex.App.--Beaumont 1998). Both the State and the State Prosecuting Attorney filed petitions for review with the Court of Criminal Appeals. The Court granted both petitions, vacated our decision, and remanded the case to us for reconsideration of our holding. See Weatherred v. State, 975 S.W.2d 323 (Tex.Crim.App.1998). We were directed by the Court to reconsider our holding concerning appellant's expert testimony evidence in light of the Court's recently decided case of Nenno v. State, 970 S.W.2d 549 (Tex.Crim.App.1998). The Court also directed us to address the State's appellate contention that the trial court's ruling was correct based upon TEX.R. EVID. 403. ¹ We will therefore confine this opinion to only those two issues. We will not revisit any of the other findings or holdings contained in our opinion on original submission.

In our opinion on original submission, we noted that the leading Texas cases on the issue of the admissibility of expert testimony were Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App.1992), and Jordan v. State, 928 S.W.2d 550 (Tex.Crim.App.1996). Weatherred, 963 S.W.2d at 120. We also noted that both cases discuss, and rely heavily upon, the United States Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Id. Relying heavily ourselves on Kelly and Jordan, we engaged in a rather rigorous examination of the evidence proffered by appellant's expert, Dr. Kenneth Deffenbacher, in order to determine whether said evidence was sufficiently reliable and relevant. Id. at 122-131.

We first found Dr. Deffenbacher's testimony to be "relevant" based upon the Court's holding in Jordan. Id. at 121. Regarding the "reliability" prong, we noted that Kelly specifically set out three criteria to be met and mentioned seven "non-exclusive factors" that could affect a trial court's determination of reliability. Id. at 121-22. We concluded that Dr. Deffenbacher's testimony and the written scientific material dealing with eyewitness reliability provided:

adequate validation of the scientific theories in question. The experiments discussed in the articles involved valid and generally acceptable scientific techniques. This provided a reliable basis for Dr. Deffenbacher's opinion that photo bias, more often than not, results in inaccurate "eyewitness" identification, and for his opinion that the confidence level of "eyewitness" identification of strangers is wholly unrelated to the accuracy of such identification when the stranger is viewed for a very short period of time.

Id. at 130-31.

On remand, we are instructed to reconsider our examination of the scientific evidence issue in light of the Nenno case. We must admit that we are puzzled by the Court's directive to engage in this analysis as the holding in Nenno, unless we are entirely misreading it, appears to lessen the scrutiny in examining scientific evidence for the Kelly factors of relevance and reliability. We take this cue from the following language in Nenno:

When addressing fields of study aside from the hard sciences, such as the social sciences or fields that are based primarily upon experience and training as opposed to the scientific method, Kelly 's requirement of reliability applies but with less rigor than to the hard sciences. To speak of the validity of a "theory" or "technique" in these fields may be roughly accurate but somewhat misleading. The appropriate questions are: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert's testimony is within the scope of that field, and (3) whether the expert's testimony properly relies upon and/or utilizes the principles involved in the field. These questions are merely an appropriately tailored translation of the Kelly test to areas outside of hard science. And, hard science methods of validation, such as assessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside the hard sciences.

Nenno, 970 S.W.2d at 561 (emphasis added). In its brief on remand, the State does not mask its frustration with Nenno 's existence. Typical is this comment taken from the brief which immediately follows the quote from Nenno setting out the three-part test: "As shown below, even this modified three-factor test is difficult to apply and fails to address the crux of the Rule 702 issue: Will this testimony assist the jury?" On the contrary, we see Nenno as imposing a much easier inquiry in order to reach the ultimate issue of reliability.

In the instant case, it cannot be seriously contested that the scientific evidence involved is "soft science" as that term is used in Nenno. Astonishingly, the State takes issue with this observation in their initial sub-point when they aver: "Dr. Deffenbacher's testimony was presented as hard science based on controlled studies and Jordan, not Nenno may apply to this case. If indeed Jordan does apply, then the State has essentially "pleaded themselves out of court" because, as noted above, we applied Jordan and Kelly in our opinion on original submission in finding reversible trial court error. We feel, as did apparently the Court of Criminal Appeals, that Nenno addresses the type of scientific discipline, for Rule 702 purposes, involved in the instant case.

In applying the three Nenno questions, we feel no need to again reproduce the extensive testimony from Dr. Deffenbacher or the variety of scientific articles which discussed experiments done in the study of eyewitness reliability. The first question, whether the field of expertise is a legitimate one, is virtually answered by the facts of the Nenno case itself. In Nenno, the expert in question was a "Supervisory Special Agent in the Behavioral Science unit of the FBI." Nenno, 970 S.W.2d at 552. The Court ultimately found the reliability of the expert's testimony was sufficiently established under TEX.R. EVID. 702. ² Id. at 562. As was noted in our opinion on original submission, Dr. Deffenbacher was chairman of the psychology department of the University of Nebraska at Omaha and had held that position since 1980. Weatherred, 963 S.W.2d at 122. We have no problem finding that the area of behavioral science, and psychology in particular, is a legitimate field of expertise. The second question can also be answered in the affirmative. Dr. Deffenbacher's testimony and journal articles were definitely within his scope of the field of psychology. Lastly, Dr. Deffenbacher's descriptions of the experiments he personally conducted, as well as the details of various experiments described in the scientific journals tendered by appellant, relied upon and utilized widely accepted principles of psychology and the behavioral sciences in general. See Weatherred, 963 S.W.2d at 122-30. As did the Court in Nenno, we too find that the evidence in question tendered through Dr. Deffenbacher was reliable, and clearly relevant, so as to be admissible under Rule 702. It was therefore error for the trial court to have denied appellant's request to call Dr. Deffenbacher as a witness for the defense. Our harm analysis remains unchanged from that set out in our opinion on original submission. See Id. at 131-33.

We now turn to the Rule 403 issue. In its opinion remanding the case back to us, the Court of Criminal Appeals framed the issue as follows:

Specifically, the parties contend the Court of Appeals failed to address its claim that the trial court's exclusion of the expert witness' testimony could be upheld because the probative value of the testimony was substantially outweighed by its prejudicial effect. Tex.R.Crim.Evid. 403. If the trial court's decision to exclude evidence is correct on any theory of law applicable to the case, including Rule 403, it will be sustained. Smith v. State, 898 S.W.2d 838, 843 (Tex.Cr.App.1995).

Weatherred, 975 S.W.2d at 323. Rule 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." We will attempt to address any Rule 403 implications as fully as possible.

At the outset, we must strongly take issue with the following observation contained in the State's supplemental appellate brief:

The primary disputed issue in this case was not the eyewitness identification of Appellant as the perpetrator. [N.R.] never positively identified Appellant. [24 SF 1701] Ms. [B.M.]'s identification placed Appellant in the neighborhood, but not at the scene of the crime. [24 SF 1676]

With all due respect to the State, the sole contested issue in the case was the identity of the perpetrator of the murder. An examination of the record shows that it was a hotly contested issue. For example, the defense provided its own eyewitness testimony placing appellant miles from the Lubbock airport at the same time when prosecution witnesses testified they observed appellant not only at the airport, but on a plane heading for Dallas. While N.R.'s...