Winston v. State

• Citation: 78 S.W.3d 522
• Decision Date: 28 March 2002
• Docket Number: No. 14-00-00987-CR.,14-00-00987-CR.
• Parties: Marcus Omar WINSTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

Page 522

78 S.W.3d 522

Marcus Omar WINSTON, Appellant, v. The STATE of Texas, Appellee.

No. 14-00-00987-CR.

Court of Appeals of Texas, Houston (14th Dist.).

March 28, 2002.

Rehearing Overruled June 6, 2002.

COPYRIGHT MATERIAL OMITTED

Cary Marshall Faden, Sugarland, for appellants.

John Harrity, III, Richmond, for appellees.

Panel consists of Justices YATES, EDELMAN, and WITTIG^*.

OPINION

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.

Background and Procedural History

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 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.

Standard of Review

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

Analysis

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 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).

The Nenno Test

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.

Whether the Field of Expertise Is Legitimate

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 evidence. See Parker v. State, 46 Tex.Crim. 461, 80 S.W. 1008, 1011 (1904) (recognizing admissibility of dog-tracking evidence); Fitts v. State, 982 S.W.2d 175, 184 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd) (recognizing admissibility of a dog's reaction to the presence of hydrocarbons for determining probable cause); Walsh v. State, 743 S.W.2d 687, 689 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd) (recognizing the use of drug-sniffing dogs for determining probable cause). However, Texas courts have not addressed the admissibility of dog-tracking evidence as direct evidence against an accused since Parker, which was decided prior to the current standards for expert testimony set forth in Kelly and Nenno. See Parker, 80 S.W. at 1011. Furthermore, we have found no Texas cases addressing the admissibility of a scent lineup.

The ability of certain breeds of dogs, especially bloodhounds, to distinguish humans by scent is well-documented. See State v. Roscoe, 145 Ariz. 212, 700 P.2d 1312, 1319-20 & n. 2 (1984); Roberts v. State, 298 Md. 261, 469 A.2d 442, 447 & n. 5 (1983). Further, these dogs' superior senses have long been used to aid mankind in a variety of contexts outside the courtroom, including "to track by scent escaped criminals or lost persons and articles." People v. Price, 54 N.Y.2d 557, 446 N.Y.S.2d 906, 431 N.E.2d 267, 269 (1981); see Robinette v. Barnes, 854 F.2d 909, 914 n. 6 (6th Cir.1988) (noting police "K-9" division's use of dogs to locate missing persons and lost or abandoned articles). Deputy Pikett started working with bloodhounds to track and find lost people. He and his bloodhounds have assisted the FBI, the Bureau of Alcohol, Tobacco, and Firearms, and various other law-enforcement agencies throughout Texas and across the nation to track individuals based on scent. This work included the use of scent lineups to eliminate potential suspects from an investigation. In one notable case involving a serial killer, the FBI noted in a letter to Deputy Pikett's department that his work with the bloodhounds and scent lineups "saved many investigation man hours that would have been spent searching for the wrong person." Clearly, these dogs' ability to distinguish scents is valued and respected outside the context of the courtroom.

Thirty-seven states and the District of Columbia admit scent-tracking evidence to prove the identity of the accused, provided a proper foundation is laid. See Jay M. Zitter, Annotation, Evidence of Trailing by Dogs in Criminal Cases, 81 A.L.R.5th 563, 580-84 (2000). But see id. at 587 (identifying four states that have held dogtracking evidence to be generally inadmissible). For purposes of judging the reliability of evidence based on a dog's ability to distinguish between scents, we believe there is little distinction between a scent lineup and a situation where a dog is required to track an individual's...