Hamal v. State, 02-09-00448-CR

CourtCourt of Appeals of Texas
Writing for the CourtSUE WALKER
Docket NumberNO. 02-09-00448-CR,02-09-00448-CR
Decision Date22 September 2011


NO. 02-09-00448-CR


DELIVERED: September 22, 2011




Appellant Angela Dodd Hamal appeals her conviction for possession of a controlled substance in an amount of four grams or more but less than 200 grams. In three points, Hamal argues that the trial court erred by denying her motion to suppress and her requested jury instructions. We will reverse and remand for a new trial.

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Texas Department of Public Safety Trooper David Riggs stopped Hamal's vehicle after witnessing it travelling 79 miles per hour in a 65-miles-per-hour zone. When he approached Hamal's vehicle, Trooper Riggs noticed that Hamal was nervous, her hands were shaking, and she was looking down into a purse or bag. After asking Hamal to get out of the car, Trooper Riggs asked her several questions, including, "Have you ever been in any trouble for anything?" Hamal responded, "No." Hamal also responded, "No," when asked if she had anything illegal in her car. Trooper Riggs went back to his police car and requested that dispatch run her driver's license number. The criminal history check revealed that Hamal had been arrested nine times, four of which were for possession of controlled substances.

Believing that Hamal "may be hiding something," Trooper Riggs asked for consent to search her vehicle, which she denied. Trooper Riggs then called dispatch and requested a drug detection canine unit. While waiting for the canine unit to arrive, Trooper Riggs explained to Hamal that she had "seemed kind of nervous" when she got out of her car and had lied when she told him that she "had never been in trouble and never been arrested." Hamal replied, "No. No. I said that I am not in any trouble right now. I have been arrested. I do have a past, and it was a long time ago."

Corporal Robert Payne of the Wise County Sherriff's Office arrived with his drug dog approximately thirty-two minutes after the initial stop. Approximately

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ten minutes later, the dog began sniffing Hamal's car and alerted on it. A search of her car revealed a pipe and a bag containing 4.82 grams of methamphetamine. Hamal was arrested.

Hamal filed a motion to suppress all evidence seized as a result of her arrest, and without holding a hearing, the trial court denied her motion. Neither party requested findings of fact or conclusions of law.

At trial, after both parties rested, the trial court denied Hamal's proposed jury instructions, including her request for a code of criminal procedure article 38.23 instruction. A jury convicted Hamal of possession of a controlled substance and, after she pleaded "true" to enhancement offenses, assessed punishment at thirty-five years' confinement. After a hearing, the trial court denied Hamal's motion for new trial, in which she argued that the trial court had erred by denying her motion to suppress. This appeal followed.


In a portion of Hamal's first point, she asserts that the trial court abused its discretion by overruling her rule 702 objection to the testimony of Corporal Payne as an expert witness regarding the canine sniff.1

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A. Standard of Review and Rule 702

We review a trial court's ruling on admissibility of scientific evidence under an abuse of discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). We review the trial court's ruling in light of the evidence that was before the court at the time of the ruling. Id. We must uphold the ruling if it was within the zone of reasonable disagreement. Id.

Rule of evidence 702, governing admission of expert testimony, provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Tex. R. Evid. 702. A proponent of scientific evidence must show by clear and convincing proof that the proffered evidence is sufficiently relevant and reliable to assist a factfinder in determining a fact issue or understanding the evidence. See Weatherred, 15 S.W.3d at 542; State v. Smith, 335 S.W.3d 706, 711 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd).

The court of criminal appeals has prescribed three criteria for assessing reliability of scientific evidence and has identified seven nonexclusive factors for consideration. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992); see Winston v. State, 78 S.W.3d 522, 525 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd). However, because interpretation of a dog's reaction to a scent is based on training and experience rather than scientific principles, we apply the

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"less rigorous" test set forth in Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). See Winston, 78 S.W.3d at 525-26 (applying Nenno standard to admissibility of dog-scent lineups); see also Smith, 335 S.W.3d at 711 (same). Under this standard, a court considers whether (1) the field of expertise is legitimate, (2) the subject matter of the expert's testimony is within the scope of the field, and (3) the expert's testimony properly relies on or utilizes the principles involved in the field. Nenno, 970 S.W.2d at 561; Winston, 78 S.W.3d at 526; see also Smith, 335 S.W.3d at 711.

B. Corporal Payne's Testimony

Corporal Payne testified that after completing an eighty-hour training course, he and the dog were nationally certified in drug interdiction and that he was also nationally certified as a handler for the dog. To obtain certification, the dog had to prove its accuracy in locating concealed narcotics, including methamphetamine. Corporal Payne testified that the dog had not made any errors when it completed the national certification testing. He also testified that he had used the dog to detect drugs on many occasions and that the dog had successfully detected drugs or controlled substances inside vehicles. He said that the dog alerted through "a big head turn. You'll see his head, his shoulders, his whole body turn back, and follow the odor with his nose. And then he'll go into a sitting position."

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Corporal Payne also testified about the events recorded by Trooper Riggs's dashboard camera and about the three separate alerts that the dog made on Hamal's car: (1) the alert on the passenger side door almost immediately after approaching the vehicle, (2) the alert after the dog jumped up and sniffed the interior of Hamal's car through the open passenger side window, and (3) the alert once the dog entered the vehicle. Corporal Payne stated that as he and Trooper Riggs searched Hamal's car, the dog continued to alert on the car. Corporal Payne said that after the dog alerted, he gave the dog its reward, a white rubber ball.

During cross-examination, Corporal Payne stated that he "wouldn't necessarily say [that he is] an expert witness," that he is not an expert at dog training, but that he is an expert at dog handling and could testify about what the dog did. He also testified that he had not trained the dog but that he knew what the dog's alert was, what training the dog had received, how responsive the dog was, and the dog's error rate. He said that he did not keep a numeric log of the dog's error rate and that determining the error rate is complicated because lingering scents could cause the dog to alert even after contraband has been removed.

C. Admission of Testimony Not Abuse of Discretion

In four subpoints, Hamal attacks the trial court's implied finding that Corporal Payne's testimony satisfied the requirements of Nenno's third prong:

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whether the expert's testimony properly relies upon or utilizes the principles involved in the field. See 970 S.W.2d at 561.

First, she alleges that Corporal Payne's "admission" that he was not necessarily an expert and was not present when the dog was trained required that the trial court sustain her objection. However, a review of the record reveals that although Corporal Payne admitted that he was not an expert in dog training, he detailed his credentials and experience and stated that he was nationally certified in dog handling and was an expert in that area. Corporal Payne's testimony supports the trial court's implied finding that he was qualified to testify as an expert witness in dog handling.

Second, Hamal asserts that Corporal Payne was disqualified as an expert witness because he was not present when the dog was trained, did not know the dog's error rate, and did not bring the dog's field records with him for Hamal's inspection. Corporal Payne testified about his credentials, expertise, and his experience with the dog that alerted on Hamal's car. Specifically, Corporal Payne stated that he and the dog had received national certification after completing an eighty-hour training...

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