Ex parte Ramey

• Citation: 382 S.W.3d 396
• Decision Date: 07 November 2012
• Docket Number: No. AP–76533.,AP–76533.
• Parties: Ex parte Ker'Sean Olajuwa RAMEY, Applicant.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

382 S.W.3d 396

Ex parte Ker'Sean Olajuwa RAMEY, Applicant.

No. AP–76533.

Court of Criminal Appeals of Texas.

Nov. 7, 2012.

Richard W. Rogers, Corpus Christi, for Appellant.

Jim Vollers, Asst. District Atty., Lisa C. McMinn, State's Attorney, Austin, for State.

KELLER, P.J., delivered the opinion of the Court in which PRICE, KEASLER, HERVEY, COCHRAN and ALCALÁ, JJ. joined.

This is an application for a writ of habeas corpus forwarded to this Court pursuant to Article 11.071 of the Texas Code of Criminal Procedure. Allegation twenty-one of the application complains, in part, about the admission of testimony from Dr. Richard Coons concerning whether applicant would pose a future danger to society. While the application was pending, we issued our opinion in Coble v. State,¹ where we found that Dr. Coons's testimony was inadmissible under Texas Rule of Evidence 702. ² We filed and set this application to further consider applicant's twenty-first allegation and sought briefing from the parties.

Applicant claims that Dr. Coons's testimony was inadmissible under Texas Rule of Evidence 702 under our holding in Coble, and he contends that this testimony violated the heightened reliability requirement of the Eighth Amendment. He argues that this case differs from Coble with respect to the harm analysis ³ because Dr. Coons expressed more certainty in his testimony in the instant case and because the defense did not present any effective rebuttal.

Analysis

Habeas corpus is available only for jurisdictional defects and violations of constitutional or fundamental rights; a claim alleging the violation of a rule of evidence is not cognizable on habeas corpus.⁴Coble was a direct appeal case, and its holding was based upon a rule of evidence. Consequently, the holding in Coble does not give rise to a claim that is cognizable on habeas corpus.

As for applicant's contention that the admission of Dr. Coons's testimony violated the heightened reliability requirement of the Eighth Amendment, we rejected that same contention in Coble, where we said that the United States Supreme Court had rejected such a claim in Barefoot v. Estelle,⁵ and that “we are required to follow binding precedent from that court on federal constitutional issues.” ⁶ Applicant's allegation with respect Dr. Coons's testimony does not raise a cognizable claim on habeas corpus.⁷ Concluding, after review, that none of applicant's other claims have merit, we deny relief.

MEYERS, J., filed a dissenting opinion.

WOMACK and JOHNSON, JJ., concurred.

MEYERS, J., filed a dissenting opinion.

The majority states that Applicant's allegation regarding the unreliability of Dr. Coons's expert testimony does not raise a cognizable claim on habeas corpus. Normally, the majority would be correct, but in this case, I disagree. If the majority would have taken the time to research the record, it would have discovered that Applicant's claim was raised but not addressed by this Court on direct appeal. Therefore, the majority's entire analysis is based on a false premise. When addressing Dr. Coons's expert testimony in the direct appeal opinion, this Court stated that Applicant was arguing that Dr. Coons was not qualified to testify as an expert witness on future dangerousness. The Court determined that Dr. Coons was qualified as an expert and explained:

The evidence was that Dr. Coons held both a law degree and a medical degree, served in the United States Army Medical Corps, and was a consultant for the Brook Army Medical Center. He was certified by the Board of Psychiatry and Neurology, trained in neurology and psychiatry, and had been in private practice since 1975. Dr. Coons had evaluated approximately 8,000 people for competency to stand trial, and had consulted on 150 capital cases for either the prosecution or the defense.

In evaluating the appellant for the special issue on future dangerousness, Dr. Coons examined “twenty pounds of printed material and quite a number of CDs regarding statements” as well as offense reports, pictures, and educational records. While he did not personally interview the appellant, the Rules do not require an expert to complete interviews in order to make such determinations. ¹

While this information is true and Dr. Coons is qualified as an expert, this was not Applicant's argument at the Daubert/Kelly hearing or before this Court on direct appeal. Applicant's argument in his appellate brief (although sometimes inartfully worded) focused on the methodology of Dr. Coons's testimony, not his qualifications:

... during the Daubert hearing, the State failed to show that Dr. Coons was qualified to give an opinion as to the future dangerousness of the Defendant. A witness is not qualified to give an opinion as to future dangerousness under Tex.R. Evid. 702 just because he has a degree and is licensed to practice medicine and/or psychiatry. See Holloway v. State, 613 S.W.2d 497, 500 (Tex.Crim.App.1981). An expert's prediction of future dangerousness is inadmissible if “there is no evidence of technical or scientific support for it.” Id., at 501.

For Dr. Coons' testimony, the following requirements must be met: (1) the expert's testimony must be based on sufficient facts or data, (2) the expert's testimony must be the product of reliable principles and methods, and (3) the expert must apply the principles and methods reliably to the facts of the case. See [ E.I. du Pont de Nemours & Co. v.] Robinson, 923 S.W.2d [549] at 556–557 [ (Tex.1995) ];Kelly, 824 S.W.2d at 571–572;Tex.R. Evid. 702. None of Dr. Coons' testimony, during the Daubert hearing and trial on the merits, came close to meeting the above referenced standards. (38 C.R.R. 26–36, 65–84.) Dr. Coons presented no empirical data and/or scientific principles upon which to support his opinions and conclusions. In short, Dr. Coons' testimony was based solely on supposition and a series of hypotheticals artfully supplied by the State.²

Applicant contended that the trial court erred in admitting the testimony of Dr. Coons regarding Applicant's potential for future dangerousness and preserved this error at the trial level for review on direct appeal. However, although this argument is substantially similar to the appellant's argument in Coble, this Court did not address it on direct appeal. The majority alleges that the issue of reliability was not preserved at trial. This is incorrect. Most of the questions during the Daubert/Kelly hearing focused on Dr. Coons's methodology. While the judge's pronouncement at the conclusion of the hearing only addressed Dr. Coons's qualifications, it is clear that Applicant argued methodology beginning with his motion and throughout the hearing. Applicant is not required to correct the judge's deficiency in ruling on qualifications only. Nevertheless, even if it had not been preserved at trial, the fact that it wasn't preserved should have been addressed in the direct appeal opinion. Instead this Court completely avoided the issue. In effect, this claim has not been raised and rejected on direct appeal and the failure of this Court to properly address the argument on direct appeal violated Applicant's due process rights. We made a mistake, and now we have the opportunity and obligation to correct it.³ This is how I would have analyzed Applicant's cognizable claim in light of Coble.

Arguments of the Parties

Applicant contends that the methodology used by Dr. Coons to assess future dangerousness in this case is indistinguishable from the methodology that was found to be unreliable in Coble. Applicant argues that when considered post-Coble, it was error to admit Dr. Coons's testimony. Applicant further contends that this error denied his right to a fair sentencing trial and affected his substantial rights under Texas Rule of Appellate Procedure 44.2(b). Applicant asserts that the constitutional claims involved in this case distinguish it from Coble because they affect the reliability of the jury's factual determination of the future-dangerousness special issue. More specifically, Applicant argues that the heightened reliability standard for death-penalty cases created by the Eighth Amendment applies to expert testimony and the admission of Dr. Coons's testimony violated his due process rights. Applicant requests a new sentencing hearing.

The State responds that there was no violation of Applicant's due process or Eighth Amendment rights because there is no constitutional bar to a psychiatrist's prediction of future dangerousness. The State further argues that there is no heightened reliability standard for evidence in death-penalty cases. The State refers to our decision in Nenno v. State⁴ and posits that the reliability of Dr. Coons's testimony should be assessed with less rigor than that required for hard-science methods of validation. The State also asserts that the admission of Dr. Coons's testimony was harmless and made no material impact on the jury's determination of the future dangerousness of Applicant.

Legal Principles

The legal framework surrounding expert psychiatric or psychological testimony with regard to the future-dangerousness special issue was established by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals.⁵ The admissibility of expert testimony lies within the discretion of the trial court and is subject to an abuse of discretion standard of review.⁶ Such testimony is governed by Texas Rule of Evidence 702, which places limits on the admissibility of scientific evidence to ensure that it is both relevant and reliable.⁷

In Daubert, the Supreme Court held that, in order for expert testimony to be reliable, the expert must have derived his or her conclusions from the scientific method.⁸ The Court provided illustrative examples of factors to be considered when determining acceptable scientific methods: (1) whether the theory or technique is refutable, testable, and falsifiable; (2) whether the findings have been...