Holmes v. State

• Citation: 135 S.W.3d 178
• Decision Date: 24 March 2004
• Docket Number: No. 10-01-00274-CR.,No. 10-01-00273-CR.,10-01-00273-CR.,10-01-00274-CR.
• Parties: Andy Joe HOLMES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

135 S.W.3d 178

Andy Joe HOLMES, Appellant, v. The STATE of Texas, Appellee.

No. 10-01-00273-CR.

No. 10-01-00274-CR.

Court of Appeals of Texas, Waco.

March 24, 2004.

Walter M. Reaves, Jr., West, for appellant.

John W. Segrest, McLennan County Dist. Atty., Waco, appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.^*

OPINION

TOM GRAY, Chief Justice.

Andy Joe Holmes pled guilty to two charges of Aggravated Assault. His victims were his former wife and her adult son. Holmes asked the jury to assess his punishment. After a trial on punishment, Holmes was sentenced to 35 years in prison on both charges. He presents two issues on appeal. We affirm.

BACKGROUND

Holmes attacked his former wife, Toni Hawkins, the morning after she obtained a divorce from him. He attacked her with a knife. Her screams awakened her son, Leroy Hughes. Hughes saw his mother scuffling with Holmes and went to assist her. Holmes ultimately stabbed Hawkins and Hughes multiple times. One of Hughes's wounds was a severed main artery in his left arm.

EXPERT TESTIMONY

Holmes's first two issues deal with expert testimony admitted under rule 702. TEX.R. EVID. 702. The leading case in this State, for criminal cases, remains Kelly. Kelly v. State, 824 S.W.2d 568 (Tex.Crim. App.1992). Kelly lays out a "common sense" test based upon an analysis of three criteria to determine if expert testimony is reliable. Kelly stated:

As a matter of common sense, evidence derived from a scientific theory, to be considered reliable, must satisfy three criteria in any particular case: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question.

Id. at 573 (emphasis added). The case then discusses seven factors that could affect a trial court's reliability determination. The Court emphasized the list was not exclusive. Id. The factors are identified as follows: (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 expert(s) 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. Id.

There is no precise correlation between the factors and criteria. We note that the factors generally correlate with the criteria as follows:

factor 1 relates to criteria (a) and (b);

factor 2 relates to qualification;

factor 3 relates to criteria (a) and (b);

factors 4 and 5 relate to criteria (b);

factor 6 relates to criteria (a) and (b); and

factor 7 relates to criteria (c) and qualification.

Qualification, as such, is a separate issue under rule 702 and is not a criteria in the reliability test except to the extent it is a factor to weigh in assessing the evidence on the three identified criteria.

At this point, we must briefly digress to make one point clear. When an analysis is being made under rule 702, there is an inherent problem in establishing the validity of the particular theory. To establish the validity of the theory, you need an expert to testify. But they cannot be an expert if the theory has not been recognized as a valid scientific theory. You see the point and the problem. You do not have a valid theory until you have an expert who can validate it. You do not have an expert until you have a valid theory. We need not tarry on this chicken-and-egg problem for long. We use our common sense and recognize that the witness validates the theory in which the witness is simultaneously validating their own qualifications as an expert.

BLOOD SPATTER ANALYSIS¹

Holmes's brief presents us with our first obstacle in reviewing his issues adequately. In the section entitled "Issues Presented," Holmes sets out three issues. The first two are as follows:

1. Did the trial court err in allowing expert testimony from a witness on blood splatter analysis, whose only qualification was that he had attended a 40 hour school on blood splatter analysis.

2. Did the court err in holding the state established that blood splatter analysis was reliable, where there was no testimony concerning the validity of the scientific techniques involved, or whether or how they had been verified.

These issues appear fairly straightforward. The first issue is a complaint about the expert's qualifications. The second appears to be an attack based only on the second criteria used to determine reliability of expert testimony, that is, the technique applying the theory must be valid. See Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992). However, six pages later, Holmes alters and combines the first two issues into "Point of Error Number One" which states:

THE TRIAL COURT ERRED IN ALOWING A POLICE OFFICER TO TESTIFY AS A BLOOD SPLATTER EXPERT WHERE THERE WAS LITLE TESTIMONY CONCERNING HIS QUALIFICATIONS, AND THERE WAS NO TESTIMONY COCERNING THE RELIABILITY OF BLOOD SPLATTER INTERPRETTION.

At this point, it appears Holmes is attacking the qualifications of the expert and launches a global attack on the reliability of blood spatter analysis, thus invoking a review of all three criteria of Kelly, the third one being that the technique must have been properly applied on the occasion in question. See Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992). But in the body of his argument, Holmes argues that (1) because Steve January was not qualified as an expert, the State did not establish the scientific validity of blood spatter analysis, thus raising a complaint of only the first criteria of Kelly; (2) January was not qualified as an expert in blood spatter analysis, qualification being a separate issue under a rule 702 analysis; and (3) Holmes was harmed by January's testimony.

Holmes provides no specific argument or analysis as to whether the technique was properly applied on the occasion in question. He simply argues validity and qualifications. This does not get him a review of the application criteria. A party can have the world's foremost authority testify and establish the validity of the scientific field, but if the technique is improperly applied, the testimony is not reliable. It is not a question of the witness's qualification as an expert, although that can be a factor in the analysis; it is a question of the expert's application of the underlying science on the occasion in question. Thus, based on Holmes's brief, we will address whether the testifying expert was qualified, whether the theory/field of blood spatter analysis is valid (the first Kelly criteria), whether the technique applying the theory is valid (scope within field—the second Kelly criteria), and, if necessary, whether Holmes was harmed by the admitted testimony.

QUALIFICATION

To qualify as an expert witness, the witness must possess special knowledge of the specific matter about which the expertise is sought. Cortijo v. State, 739 S.W.2d 486, 488 (Tex.App.-Corpus Christi 1987, pet. ref'd). The special knowledge that qualifies a witness to give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a varying combination of these things. Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App.2000)(quoting Penry v. State, 903 S.W.2d 715, 762 (Tex.Crim. App.1995)); see TEX.R. EVID. 702. An expert witness's knowledge or experience about an issue must only exceed that of an average juror. Gonzales v. State, 4 S.W.3d 406, 417 (Tex.App.-Waco 1999, no pet.).

Whether a witness presented qualifies as an expert is a question that rests largely in the trial court's discretion. Wyatt, 23 S.W.3d at 27; Gonzales, 4 S.W.3d at 417. Absent a clear abuse of discretion, the trial court's decision to admit or exclude the testimony will not be disturbed. Wyatt, 23 S.W.3d at 27; Cortijo, 739 S.W.2d at 488.

The Court of Criminal Appeals has previously found no abuse of discretion in qualifying a witness as an expert in blood spatter analysis where the witness had received more than 60 hours of training, had read a book on the subject, and contended that the methods used were of the type relied on by experts in the field. Alvarado v. State, 912 S.W.2d 199, 215-216 (Tex.Crim.App.1995).

Evidence

Regarding his qualifications, January testified that he had been employed with the Waco Police Department for 13 years. His current assignment was as a detective for the special crimes unit. January stated he had been a detective in that unit for six and a half years. As a detective for the special crimes unit, January was responsible for conducting follow-up investigations on major crimes that occur against persons.

January also testified that he had received Level 1 training in blood spatter analysis. He explained that there are two levels of training and that Level 1 training included the recognition of blood patterns and blood spatter that is caused by some type of blood source at the scene. The Level 1 training session was one-week long and taught at the DPS academy in Austin. January estimated that he actually participated in 45-50 hours of instruction. The instructor, Bob Henderson, was a nationally known blood spatter expert. Henderson studied under Tom Bevel, another world renowned blood spatter expert.

In the class, January studied blood velocities, blood patterns, blood sources, and weapons. January explained that the size of the blood drop, the blood stain, or the blood pattern is determined by several different variables such as what struck the blood source. He further explained that a projectile from a...