Harris v. State
| Decision Date | 15 January 2014 |
| Docket Number | No. 13–11–00702–CR.,13–11–00702–CR. |
| Citation | 424 S.W.3d 599 |
| Parties | Billy Joe HARRIS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
Luis A. Martinez, Victoria, for Appellant.
Jim Vollers, Austin, Robert E. Bell, Dist. Atty., Edna, for the State.
Before Justices RODRIGUEZ, GARZA, and PERKES.
Appellant Billy Joe Harris challenges his conviction for aggravated sexual assault of a disabled person. SeeTex. Penal Code Ann. § 22.021 (West Supp.2011). By one issue, Harris argues that the trial court erred in excluding his expert's testimony. We affirm.
The indictment charged Harris with aggravated sexual assault. Harris entered a plea of not guilty by reason of insanity. In support of his insanity defense, Harris offered the testimony of his expert, Colin Ross, M.D., a psychiatrist.1 His testimony concerned a dissociative disorder known as dissociative identity disorder (DID), formerly referred to as multiple personality disorder (MPD) or repressed memory. The trial court excluded Dr. Ross's testimony in its entirety.2 The jury found Harris guilty of the charged offense and assessed his punishment at confinement for life in the Institutional Division of the Texas Department of Criminal Justice and a $10,000 fine.
By his sole issue, Harris contends that the trial court abused its discretion when it excluded testimony offered by Dr. Ross, Harris's expert witness in the field of DID. The State asserts that the trial court did not abuse its discretion because Dr. Ross's testimony regarding DID was unreliable and the jury should not have considered it. Harris agrees that the issue to be determined in this appeal is whether Dr. Ross's testimony was reliable.
We review a trial court's decision to admit or exclude scientific expert testimony under an abuse of discretion standard. Coble v. State, 330 S.W.3d 253, 272 (Tex.Crim.App.2010); Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). An abuse of discretion occurs when the trial court's ruling is arbitrary or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex.Crim.App.2005). A trial court does not abuse its discretion if its decision is within “the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex.Crim.App.2008). In determining whether a trial court abused its discretion, we review the trial court's ruling in light of what was before the trial court at the time the ruling was made. Weatherred, 15 S.W.3d at 542 (citing Hoyos v. State, 982 S.W.2d 419, 422 (Tex.Crim.App.1998) (en banc)).
Rule of evidence 702 provides that an expert may testify on scientific, technical, or other specialized subjects if the testimony would assist the factfinder in understanding the evidence or determining a fact issue. Tex.R. Evid. 702. “The threshold determination in an inquiry into the admissibility of scientific evidence is whether the evidence is helpful to the trier of fact, and for such evidence to be helpful, it must be reliable.” Somers v. State, 368 S.W.3d 528, 535 (Tex.Crim.App.2012); see Coble, 330 S.W.3d at 299;Weatherred, 15 S.W.3d at 542 (). The burden is on the proponent to show by clear and convincing evidence that the offered testimony is sufficiently relevant and reliable. Weatherred, 15 S.W.3d at 542.
If the trial court determines that the scientific testimony or evidence is not reliable, it may exclude it. See Weatherred, 15 S.W.3d at 542–43. The Texas Court of Criminal Appeals enumerated the following factors that may affect the reliability of hard science: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the experts testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question. Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992) (en banc); see Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590–92, 113 S.Ct. 2786, 125 L.Ed.2d 469, (1993). The field of psychology, however, falls within the ambit of “soft science,” not hard science.3See, e.g., Weatherred, 15 S.W.3d at 542 (). And when the reliability of soft scientific evidence is at issue, the inquiry is somewhat more flexible than the Kelly factors applicable to Newtonian and medical sciences. Coble, 330 S.W.3d at 273 (citing Kelly, 824 S.W.2d at 572–73).
When determining the reliability of soft-science testimony, the trial court must inquire as to whether: “(1) the field of expertise involved is a legitimate one, (2) the subject matter of the expert's testimony is within the scope of that field, and (3) the expert's testimony properly relies upon or utilizes the principles involved in that field.” Tillman v. State, 354 S.W.3d 425, 435–36 (Tex.Crim.App.2011) (). Referring to this series of questions as the Nenno test, the court of criminal appeals has described this inquiry as “merely an appropriately tailored translation of the Kelly test to areas outside of hard science.” Id. (quoting Nenno, 970 S.W.2d at 561). For soft science, “the ‘general principles announced in Kelly (and Daubert) apply, but the specific factors outlined in those cases may or may not apply depending upon the context.’ ” Id. (quoting Nenno, 970 S.W.2d at 560). For example, in Nenno, the court of criminal appeals explained that the “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.” 970 S.W.2d at 561. But the court also noted that it did “not categorically rule out employing such factors in an appropriate case.” Id. at 561 n. 9.
C. Expert Testimony1. Defense Expert Psychiatrist Colin Ross, M.D.
Dr. Ross, a practicing psychiatrist, testified that he attended medical school in Canada and received a Canadian specialty in psychiatry in 1985. Based in a medical school, Dr. Ross worked as a psychiatrist in Canada for approximately six years. He relocated to the Dallas, Texas area where he “runs a trauma program [in a private hospital] in the Dallas area, 1991 to the present.” Dr. Ross testified that he specializes in psychological trauma, “which is bad things that happen to people and their mental health effects,” and sub-specializes “in a certain group of symptoms called dissociative symptoms and dissociative disorders.” Dr. Ross defined dissociative disorders as “a failure of integration in the normal functions of consciousness, identity, memory[,] and perception.” He explained that the five subsections of the dissociative disorders are: dissociative amnesia; dissociative fugue; depersonalization disorder; DID; and dissociative disorder, not otherwise specified. Dr. Ross testified that about half of the people admitted to the Dallas program since 1991 have been diagnosed with DID and half have had other kinds of trauma and problems.
According to Dr. Ross, DID generally involves different identities that take turns being in charge of the body, and one identity may or may not remember what the other is doing. More specifically, Dr. Ross described DID as a disorder where the primary, normal person suddenly switches and someone else comes out, takes over the body, acts differently, and speaks with a different tone of voice. When that entity goes back inside the primary person, the person may have a “fuzzy” memory or no memory of what happened. The person would feel as if the other entity was in control, and the primary person could not stop or start it. According to Dr. Ross, if a personality is committing a crime based on this multiple personality concept, the primary person may or may not understand the wrongfulness of the act.
The defense hired Dr. Ross to examine Harris, offer his opinion in this matter, and testify as a defense expert. Dr. Ross agreed that Harris is suffering from a serious mental illness or defect, which he described as DID; however, according to Dr. Ross, a diagnosis of DID does not automatically mean that Harris “doesn't understand the wrongfulness of his acts, but it could.” Dr. Ross further testified that he was confident that DID is the correct diagnosis for Harris, but said that he “could very well be wrong.” On cross-examination, Dr. Ross agreed that repressed memories, multiple personality, and DID are all controversial theories. He also agreed that many of the leaders in the fields of psychology and psychiatry consider these theories to be unreliable “junk science” and that a number of therapists have been sued and prosecuted for abusing patients they treated for DID or MPD.
Dr. Ross explained that DID is categorized in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as a subcategory of dissociative disorders. 4 He testified that the DSM, published by the American Psychiatric Association, sets out all the rules and criteria for making different psychiatric diagnoses. He agreed that the DSM is the accepted treatise for...
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