Jordan v. State

• Decision Date: 07 August 1997
• Docket Number: No. 02-93-247-CR,02-93-247-CR
• Citation: 950 S.W.2d 210
• Parties: Alton Craig JORDAN, Appellant. v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 210

950 S.W.2d 210

Alton Craig JORDAN, Appellant. v. The STATE of Texas, State.

No. 02-93-247-CR.

Court of Appeals of Texas,

Fort Worth.

Aug. 7, 1997.

Wes Ball, Arlington, for Appellant.

Tim Curry, Criminal District Attorney, Betty Marshall, Charles Mallin, Assistant Chiefs of the Appellate Section, Danielle A. LeGault Christian Harrison, Sharon Johnson, Assistant Criminal District Attorneys, Fort Worth, for Appellee.

Before DAY, LIVINGSTON and RICHARDS, JJ.

OPINION ON REMAND

LIVINGSTON, Justice.

The sole issue before us is whether appellant presented sufficient evidence to establish the scientific reliability of excluded testimony on eyewitness identification. Because we find that appellant failed to present clear and convincing evidence of scientific reliability, we affirm.

Procedural History

This case is on remand from the Court of Criminal Appeals. On original submission, we held that the trial court did not err in excluding expert testimony offered by appellant because the testimony did not sufficiently "fit" the facts of the case. Jordan v. State, 877 S.W.2d 902, 905 (Tex.App.--Fort Worth 1994), rev'd, 928 S.W.2d 550 (1996). The Court of Criminal Appeals held that the testimony was "sufficiently tied to the facts to meet the simple requirement that it be 'helpful' to the jury on the issue of eye witness reliability." Jordan, 928 S.W.2d at 556. Accordingly, the court remanded the case to this court for us to determine "whether the testimony was scientifically reliable under Rule 702." Id.

Appellant now complains that the trial court erred in excluding the proffered expert testimony because the evidence presented during the expert's voir dire demonstrated the reliability of the testimony. The State contends that the trial court was within its discretion in excluding the testimony because appellant failed to prove that the underlying theories and techniques were scientifically reliable.

Facts

On July 23, 1991, Roy Briggs was working the night shift at a 7-11 in Mansfield, Texas. Around 2:30 a.m., two men entered the store. One of the men, later identified as appellant, pulled a gun and asked Briggs where the cigarettes were kept. Briggs took appellant to the storeroom where cigarettes were stored. Appellant ordered Briggs to fill three trash cans with cigarettes and load them into a white pick-up truck parked outside the rear store door. After Briggs completed this task, he noticed that appellant had put on a pair of white gloves. Fearing he was about to be shot, Briggs grabbed an empty trash can and pushed appellant outside the rear store door and locked it. Briggs locked himself in the storeroom and called 911.

Officer Lee Sanders arrived at the store within minutes. After getting a description from Briggs, Sanders drove off in search of the robbers. A few miles from the store, Sanders noticed a white pick-up truck and another vehicle parked on the side of the highway. Sanders also noticed two men matching the description given by Briggs standing by the vehicles. When Sanders ordered the two men to lie on the ground, they fled on foot. As Sanders pursued them, one of the two men opened fire. Officer Sanders took cover and both men escaped.

The white pick-up truck abandoned by the two men was loaded with cigarettes from the 7-11. Appellant's identification card was also found in the truck.

On the day after the robbery, Briggs was unable to identify anyone in a photo lineup. A month later, however, Briggs picked appellant out of a photo lineup containing a more recent photo of appellant. Sanders was also shown a photo lineup and identified appellant and another man as the men who had fled from the side of the highway.

At trial, appellant contested the eyewitness identifications. He presented testimony from two alibi witnesses placing him in Waco at the time of the offense. Appellant also called co-defendant Darren Harris, who testified that he was present at the robbery and that it was committed by Derrick Hicks, not appellant.

Appellant also attempted to present expert testimony from Dr. Raymond Finn on the reliability of eyewitness testimony. During voir dire and outside the presence of the jury, Finn testified about factors affecting the reliability of eyewitness identifications.

Applicable Law

Appellant contends that expert testimony on eyewitness identification should be subjected to less scrutiny because the psychological sciences are not susceptible to the measurable results often associated with "hard science" and encourages us to apply a different standard of review in the instant case. The Court of Criminal Appeals, however, has directed us to determine whether the testimony was "scientifically reliable under rule 702." Jordan, 928 S.W.2d at 556. The test adopted in "Kelly applies to all scientific evidence offered under Rule 702." Hartman v. State, 946 S.W.2d 60, 63 (Tex.Crim.App.1997). Accordingly, we will determine whether appellant met his burden of establishing the scientific reliability of the testimony under the Kelly standard. Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992).

Once it is determined the proffered evidence is relevant, the proponent of scientific evidence has the burden of proving its scientific reliability by clear and convincing evidence. See Kelly, 824 S.W.2d at 573. To satisfy this burden, the proponent must make a technical showing, outside the presence of the jury, demonstrating: (1) a valid underlying scientific theory, (2) a valid technique applying the theory, and (3) that the technique was properly applied on the occasion in question. See id.; Jordan, 928 S.W.2d at 555. Factors that may influence a trial court's determination of reliability include: (a) the extent to which the underlying scientific theory and technique are accepted as valid by the...