Winston v. State, No. 14-00-00987-CR.
| Court | Court of Appeals of Texas |
| Writing for the Court | Leslie Brock Yates |
| Citation | 78 S.W.3d 522 |
| Parties | Marcus Omar WINSTON, Appellant, v. The STATE of Texas, Appellee. |
| Docket Number | No. 14-00-00987-CR. |
| Decision Date | 28 March 2002 |
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v.
The STATE of Texas, Appellee.
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COPYRIGHT MATERIAL OMITTED
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Cary Marshall Faden, Sugarland, for appellants.
John Harrity, III, Richmond, for appellees.
Panel consists of Justices YATES, EDELMAN, and WITTIG*.
LESLIE BROCK YATES, Justice.
A jury convicted appellant, Marcus Omar Winston, of burglary of a habitation and assessed punishment at six years' confinement and a $2,000 fine. In two points of error, appellant challenges the trial court's (1) denial of a motion under Texas Rule of Evidence 702 to exclude evidence of a scent lineup and (2) denial of appellant's motion for directed verdict based upon the scent lineup evidence. We affirm.
On May 18, 1999, the complainant's son called to tell her their home had been burglarized. When she got home, she noticed that the patio door had been shattered and that her son's Sony Playstation and Nintendo 64 were missing. Police investigated but were unable to lift a fingerprint. However, two days later, another residence two blocks away on Kearny Street was burglarized, and several items were disturbed. Deputy Pikett of the Fort Bend County Sheriff's Department brought his bloodhound, Quincy, to track a scent from the scene. Quincy trailed a scent from the second house to appellant's front door. Appellant was questioned about both burglaries. Deputy Pikett then obtained the location of the earlier burglary and drove Quincy to the complainant's house. Deputy Pikett testified that he gave Quincy a sample of the scent from the second house and Quincy located that same scent at the complainant's house, trailing it back to appellant's front door. Detectives later discovered a receipt with appellant's signature showing he pawned a Sony Playstation and a Nintendo 64 on the same day that the complainant's were reported missing. These pawned items were recovered and identified by the complainant's son as his property. Appellant was arrested and charged with burglary of the complainant's house.
In the presence of his attorney, appellant gave police a scent sample. Deputy Pikett then had Quincy and another bloodhound, Columbo, each compare the scent obtained from the Kearney Street dwelling to a "scent lineup" of five gauze pads, one of which contained appellant's scent sample. Over appellant's objection, Deputy Pikett testified that both bloodhounds "alerted" to the gauze pad containing appellant's scent. Deputy Pikett testified that he interpreted the dogs' actions as indicating a match between the scent obtained from the second house and appellant's scent.
The trial court denied appellant's pre-trial motion to exclude the testimony regarding "the dog sniff." Appellant challenged
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the qualifications of Deputy Pikett as an expert as well as the admissibility of his testimony regarding "the dog sniff test" based on Texas Rule of Evidence 702. After presentation of Deputy Pikett's testimony at trial and after the State rested, appellant moved for directed verdict on the same grounds. The trial court denied this motion. The jury found appellant guilty of burglary of a habitation and assessed punishment at six years' confinement as well as a $2,000 fine. This appeal followed.
Since both of appellant's points of error deal with the admissibility of scent-lineup evidence under Texas Rule of Evidence 702,1 we will combine these points of error in determining whether the trial court abused its discretion in admitting this evidence.
We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim. App.2000); see also Kelly v. State, 824 S.W.2d 568, 574 (Tex.Crim.App.1992). In determining the admissibility of evidence, the trial court is the sole judge of the weight and credibility of the evidence presented at the suppression hearing. Weatherred, 15 S.W.3d at 542. We will reverse only if the trial court's decision falls outside "the zone of reasonable disagreement." Id
Appellant claims that the trial court abused its discretion in allowing Deputy Pikett to offer testimony regarding the scent lineup. We must decide whether the court properly admitted expert testimony that described the purported identification by a trained police bloodhound of an individual based on his scent. The admission of expert testimony is governed by Texas Rule of Evidence 702, which provides:
If 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. EVIN. 702. The trial court's task in assessing admissibility under Rule 702 is to determine whether the expert testimony is sufficiently reliable and relevant to help the jury in reaching accurate results. Kelly, 824 S.W.2d at 572.
In Kelly, the Texas Court of Criminal Appeals set forth a three-prong reliability test and identified seven nonexclusive factors for courts to consider in assessing reliability of scientific evidence. Id. at 573.2 Appellant suggests that the Kelly factors should be applied here. However, the Court of Criminal Appeals
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has adopted a less rigorous "translation" of the test set forth in Kelly for cases such as this one. See Nenno v. State, 970 S.W.2d 549, 560-61 (Tex.Crim.App.1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex.Crim.App.1999). In Nenno, the court stated that when addressing fields that are based upon experience or training as opposed to scientific methods, the appropriate questions for assessing reliability are (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert's testimony is within the scope of the field, and (3) whether the expert's testimony properly relies upon or utilizes the principles involved in the field. Id. at 561. Since interpretation of a dog's reaction to a scent lineup is based upon training and experience, and not scientific method, we apply the less rigorous Nenno test in this case. See Brooks v. People, 975 P.2d 1105, 1106 (Colo.1999) (holding canine scent-tracking evidence does not constitute evidence subject to Daubert scientific validation factors but that conventional Rule 702 and Rule 403 analysis should be applied).
Appellant does not contest that the subject matter of Deputy Pikett's testimony falls within his purported field of expertise in dogs and scent discrimination. Our analysis therefore focuses on the first and third prongs of the Nenno test.
Under the first prong of the Nenno test, we must determine whether the proffered field of expertise is legitimate. Texas courts have recognized the admissibility of many types of dog-related...
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People v. Mitchell, No. B151026.
...trained and handled, can discriminate between human odors." (Id. at pp. 1319-1320, fn. omitted.) In Winston v. State (Tex.App.2002) 78 S.W.3d 522, a sheriffs department bloodhound tracked the scent from an object that had been disturbed during a burglary to the defendant's front door. ......
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State v. White, No. 4196.
...327 (N.Y.App.Div.1997) (holding the use of a trained dog is an investigative rather than scientific procedure); Winston v. State, 78 S.W.3d 522, 526 (Tex.Ct.App.2002) (finding interpretation of a dog's reaction to a scent lineup is based upon training and experience, and not on scientific D......
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Hamal v. State , No. 02–09–00448–CR.
...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 an......
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Hamal v. State, NO. 02-09-00448-CR
...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 exper......
-
People v. Mitchell, No. B151026.
...trained and handled, can discriminate between human odors." (Id. at pp. 1319-1320, fn. omitted.) In Winston v. State (Tex.App.2002) 78 S.W.3d 522, a sheriffs department bloodhound tracked the scent from an object that had been disturbed during a burglary to the defendant's front door. The d......
-
State v. White, No. 4196.
...327 (N.Y.App.Div.1997) (holding the use of a trained dog is an investigative rather than scientific procedure); Winston v. State, 78 S.W.3d 522, 526 (Tex.Ct.App.2002) (finding interpretation of a dog's reaction to a scent lineup is based upon training and experience, and not on scientific D......
-
Hamal v. State , No. 02–09–00448–CR.
...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 an......
-
Hamal v. State, NO. 02-09-00448-CR
...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 exper......