Fairow v. State

• Decision Date: 30 April 1997
• Docket Number: No. 508-96,508-96
• Citation: 943 S.W.2d 895
• Parties: James Andrew FAIROW, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 895

943 S.W.2d 895

James Andrew FAIROW, Appellant, v. The STATE of Texas, Appellee.

No. 508-96

Court of Criminal Appeals of Texas,

En Banc.

April 30, 1997.

Dennis Yates, Allen C. Isbell, Houston, for appellant.

William J. Delmore, III, Asst. Dist. Atty., Houston, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY ARY REVIEW

KELLER, Judge.

A jury convicted appellant of capital murder (murder in the course of a robbery) and the trial court sentenced him to life imprisonment pursuant to Article 37.071 of the Texas Code of Criminal Procedure. The Court of Appeals affirmed the conviction. Fairow v. State, 920 S.W.2d 357 (Tex.App.--Houston [1st Dist.] 1996). We granted appellant's petition to review the Court of Appeals' holding that Rule 701 of the Texas Rules of Criminal Evidence ¹ does not allow a lay witness to express his opinion as to the culpable mental state with which an act was committed. We will affirm.

I.

Appellant and three co-conspirators--Deryk Middleton, Gary Mosby and Andre Mosley- --entered a neighborhood bar and robbed its patrons at gunpoint. Appellant attempted to take money from the cash register but the bar's owner, Joseph Young, physically prevented him from doing so. Appellant and Young began fighting. During the course of the fight, appellant twice tried to shoot Young but the gun malfunctioned. As an alternative method of subduing Young, appellant used his firearm to strike Young in the head. Mosby shot Young as he fell from the second of appellant's blows. The jury was instructed on the law of parties and it convicted appellant of capital murder.

At trial, co-defendant Middleton testified for the State as an accomplice witness. On cross-examination of Middleton, appellant attempted to introduce into evidence an exculpatory statement that Mosby uttered shortly after the shooting. Middleton was going to testify that Mosby said "something" like "I didn't try to kill him." The State requested a hearing on its previously filed motion in limine seeking to prevent appellant from eliciting the statement in front of the jury unless he could first establish it as an exception to the hearsay rule.

In an attempt to lay a predicate for the proposition that the statement was admissible, defense counsel repeatedly asked Middleton whether he thought that Mosby intentionally shot Young:

Q: From the actions that you saw Gary Mosby take-- jumping over the bar, pointing the gun at Mr. Joe Young-- did you formulate in your mind an opinion as to whether or not Mr. Mosby shot Joe Young on purpose?

THE STATE: Objection.

THE COURT: Sustained.

Q: Did you see Gary Mosby shoot Joe Young?

A: Yes.

Q: Did he accidentally (shoot) Joe Young?

THE STATE: Object to that; calling for an opinion from this witness.

THE COURT: Sustained. ²

On appeal and in his petition for discretionary review to this Court, appellant asserts that the trial judge improperly excluded evidence of Middleton's opinion regarding whether Mosby intentionally caused the death of Joseph Young. ³ Appellant contends that Middleton's opinion was admissible under Rule 701, ⁴ which allows witnesses to give opinion or inference testimony provided that the opinion is rationally based on the perception of the witness and helpful to a clear understanding of the witness's testimony or the determination of a fact in issue. In affirming appellant's conviction, the Court of Appeals rejected his contention and held that a "speculative opinion, such as what someone else is thinking at a specific time, does not help the jury." Fairow, at 361. ⁵ Today, we are called upon to determine whether a lay opinion regarding culpable mental state is admissible under Rule 701, and, if so, whether the Court of Appeals in this case erred by agreeing with the trial court's decision to exclude such an opinion.

II.

When conducting a Rule 701 evaluation, ⁶ the trial court must decide (1) whether the opinion is rationally based on perceptions of the witness and (2) whether it is helpful to a clear understanding of the witness's testimony or to determination of a fact in issue. See Rule 701. The initial requirement that an opinion be rationally based on the perceptions of the witness is itself composed of two parts. First, the witness must establish personal knowledge of the events from which his opinion is drawn and, second, the opinion drawn must be rationally based on that knowledge. See Wendorf, Schlueter & Barton, Texas Rules of Evidence Manual, § VII, p. 5, (4th ed.1995).

A.

The perception requirement of Rule 701 is consistent with the personal knowledge requirement of Rule 602. ⁷ It requires the proponent of lay-opinion testimony to establish that the witness has personal knowledge of the events upon which his opinion is based. Personal knowledge will often come directly from the witness's senses. See e.g. Smith v. State, 683 S.W.2d 393, 404 (Tex.Crim.App.1984)(police officer may give non-expert opinion regarding physical facts he has observed ); Doyle v. State, 875 S.W.2d 21 (Tex.App.--Tyler 1994, no pet.) (prison guard allowed to give opinion testimony under Rule 701 based on "what he saw "); State v. Welton, 774 S.W.2d 341, 343 (Tex.App.--Austin, pet.ref'd)(police officer permitted to give non-expert opinion regarding intoxication based in part on smelling the odor of alcohol); Lape v. State, 893 S.W.2d 949 (Tex.App. Houston [14th] 1994)(abuse of discretion occurred when lay-witness not permitted to give an opinion on how sound traveled in her home)(all emphases added). It may, however, come from experience. See e.g. Austin v. State, 794 S.W.2d 408, 410-11 (Tex.App.--Austin 1990, pet. ref'd)( police officer permitted to testify that, based on his personal experience, it was his opinion that "Swedish deep muscle rub" was a code for prostitution); Williams v. State, 826 S.W.2d 783, 785 (Tex.App.--Houston [14th] 1992, pet. ref'd)(using past experience, a police officer was permitted to testify, as either a lay-witness or an expert, that he interpreted the defendant's actions to be a drug transaction); Reece v. State, 878 S.W.2d 320, 325 (Tex.App.--Houston [1st] 1994, no pet.) (based on training and experience, a police officer may testify under Rule 701 that a defendant's actions are consistent with someone selling cocaine). If the proponent of the opinion cannot establish personal knowledge, the trial court should exclude the testimony. See e.g. Bigby v. State, 892 S.W.2d 864, 889 (Tex.Crim.App.1994)(holding that a lay witness may not testify as to his opinion on appellant's sanity when that opinion was based on the observation of others); McMillan v. State, 754 S.W.2d 422, 425 (Tex.App.--Eastland 1988, pet. ref'd)(holding that a lay-witness opinion based on hearsay was inadmissible).

Applying the personal knowledge requirement to culpable mental state presents a unique problem. It is impossible for a witness to possess personal knowledge of what someone else is thinking. ⁸ The individual is the only one who knows for certain the mental state with which he is acting. See e.g. Arnold v. State, 853 S.W.2d 543, 547 (Tex.Crim.App.1993). ⁹ Therefore, if the trial court determines that a proffered lay-witness opinion is an attempt to communicate the actual subjective mental state of the actor, the court should exclude the opinion because it could never be based on personal knowledge. Likewise, if the witness's lack of personal knowledge yields testimony that amounts to "choosing up sides" or an opinion of guilt or innocence, his opinion should be excluded. See Boyde v. State, 513 S.W.2d 588 (Tex.Crim.App.1974); Spaulding v. State, 505 S.W.2d 919 (Tex.Crim.App.1974); Huffman v. State, 691 S.W.2d 726, 730 (Tex.App.--Austin 1985, no pet.). All Rule 701 opinions regarding culpable mental state, however, need not be automatically excluded for want of personal knowledge.

An opinion will satisfy the personal knowledge requirement if it is an interpretation of the witness's objective perception of events (i.e. his own senses or experience). Doyle v. State, 875 S.W.2d 21 (Tex.App.--Tyler 1994, no pet.), illuminates the distinction between personal knowledge of another's mental state and personal knowledge of perceived events. In Doyle, two prison guards personally observed a prisoner strike another guard. They testified, over objection, that the blows were intentional. Id. at 22. The Court of Appeals held that a prison guard, trying to explain what he saw, could, under Rule 701, give an opinion regarding whether the blow was "intentional or accidental." Doyle at 23. We agree. The prison guards in Doyle did not have personal knowledge of the mental state with which the defendant struck their colleague. They did, however, witness the attack and thus were qualified to give an opinion based on their perception of the event. So, while a witness cannot possess personal knowledge of another's mental state, he may possess personal knowledge of facts from which an opinion regarding mental state may be drawn. The jury is then free to give as much or as little weight to the opinion as it sees fit. Therefore, we conclude that once the proponent of the opinion establishes personal knowledge of the facts underlying the opinion, he has satisfied the perception requirement of Rule 701. This is so even if the opinion concerns culpable mental state. See Tex.R.Crim. Evid. 704. ¹⁰

1.

Once the perception requirement is satisfied, the trial court must determine if the opinion is rationally based on that perception. An opinion is rationally based on perception if it is an opinion that a reasonable person could draw under the circumstances. See Goode, Wellborn and Sharlot, 2 Texas Practice Guide to the Texas Rules of Evidence: Civil and Criminal, § 701.2, p. 5. An opinion not capable of reasonably being formed from the events underlying the opinion must be excluded. See e.g U.S. v. Cox, 633 F.2d 871, 875-876 (9th...