Xavier Powell v. State ( 2011 )

Affirmed and Memorandum Opinion filed April 21, 2011.

In The

Fourteenth Court of Appeals

NO. 14-09-00398-CR

XAVIER POWELL, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 48857

MEMORANDUM OPINION

             A jury convicted appellant, Xavier Powell, of murder and assessed punishment at fifty years’ confinement.  In his sole issue, appellant contends the trial court erred by admitting an officer’s testimony regarding a dog-scent lineup which implicated appellant in the offense.  We affirm.

Background

According to the State’s evidence, on the evening of February 9, 2008, the driver of a car in which appellant was a passenger chased another vehicle in which the complainant was a passenger.  There was a history of “bad blood” between the occupants of these vehicles, which escalated because of a confrontation earlier that day.  Before the chase, appellant retrieved an assault rifle from his home.  During the chase, appellant wrapped a white t-shirt around his face, “hung out” a car window, and fired multiple shots at the other vehicle.  One shot struck the complainant’s head, causing his death.

            An investigating police officer found eight spent cartridge casings and a white t-shirt at the scene.  Using three bloodhounds, Fort Bend County Deputy Keith Pikett, a canine handler, conducted separate scent lineups on these items: one using appellant’s scent and another using the scent of an accomplice who had also been an occupant in appellant’s vehicle.  All three dogs alerted to appellant’s scent, but not the accomplice’s scent, as present on the casings and t-shirt.

            Pursuant to appellant’s request, the trial court held a hearing outside the jury’s presence for the State to prove admissibility of Deputy Pikett’s expert testimony. After hearing the proffered testimony, the court overruled appellant’s objection and allowed Deputy Pikett to testify in front of the jury regarding the lineup process and results.

Analysis

            In his sole issue, appellant contends the trial court erred by admitting Deputy Pikett’s testimony.  We review a trial court’s ruling on admissibility of scientific evidence under an abuse-of-discretion standard.  See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).  We review the trial court’s ruling in light of the evidence that was before the court at the time of the ruling.  Id.  We must uphold the ruling if it was within the zone of reasonable disagreement.  Id.

Texas Rule of Evidence 702, governing admission of expert testimony, 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. Evid. 702.  A proponent of scientific evidence must show by clear and convincing proof that the proffered evidence is sufficiently relevant and reliable to assist a factfinder in determining a fact issue or understanding the evidence.  See Weatherred, 15 S.W.3d at 542; State v. Smith, No. 14-09-00977-CR, --- S.W.3d ---, 2011 WL 480600, at *3 (Tex. App.—Houston [14th Dist.] Feb. 10, 2011, no pet. h.).  Only reliability of the proffered evidence is at issue in the present case.

The Texas Court of Criminal Appeals has prescribed three criteria for assessing reliability of scientific evidence and identified seven non-exclusive 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).[1] However, because interpretation of a dog’s reaction to a scent lineup is based on training and experience rather than scientific principles, we apply the “less rigorous” test set forth in Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999).  See Winston, 78 S.W.3d at 525–26 (applying Nenno standard to admissibility of dog-scent lineups); see also Smith, --- S.W.3d ---, 2011 WL 480600, at *3 (same).  Under this standard, a court considers whether (1) the field of expertise is legitimate, (2) the subject matter of the expert’s testimony is within the scope of the field, and (3) the expert’s testimony properly relies on or utilizes the principles involved in the field.  Nenno, 970 S.W.2d at 561; Winston, 78 S.W.3d at 526; see also Smith, --- S.W.3d ---, 2011 WL 480600, at *3.

The trial court’s comments at the hearing reflect it applied the Nenno standard.  As we construe appellant’s brief, he challenges only the court’s finding on the third Nenno prong.  With respect to this prong, the trial court announced an oral finding that the lineup was performed “pursuant to accepted standards.”

In Winston, when applying the Nenno standard to dog-scent lineups, our court set forth three factors for a court to consider when deciding whether the third Nenno prong has been satisfied: (1) qualifications of the particular trainer; (2) qualifications of the particular dog; and (3) objectivity of the lineup.  Winston, 78 S.W.3d at 527.  Appellant challenges only the trial court’s implicit decision relative to this third factor.[2]

Because appellant presents no challenge to Deputy Pikett’s expertise, we will not discuss the portion of his testimony explaining his qualifications.  After outlining his qualifications, Deputy Pikett described the process of a scent lineup.  He typically obtains six scent samples by touching each person, including the suspect, with a gauze pad.  He also uses a gauze pad to obtain a scent sample from an evidentiary item collected at the crime scene.  Deputy Pickett does not personally place the samples for a lineup or watch the placement; rather, another officer places them, and Deputy Pikett then leads the dogs to each sample.  In this case, Inspector Oglesby, another bloodhound handler, placed the samples and then videotaped the process while Deputy Pikett led the dogs to each sample.

            To challenge objectivity of the lineup, appellant relies on Deputy Pikett’s testimony regarding measures taken to prevent subliminally cuing the dogs.  On direct examination, Deputy Pikett explained the reason he does not personally place samples for the lineup or know which sample contains the suspect’s scent: as the officer who will subsequently lead the dogs to the samples, he wishes to avoid subliminally cuing them to a particular sample.  On cross-examination, Deputy Pikett seemed to clarify that he does not personally believe dogs can be cued but avoids placing the samples to prevent any accusation of subliminal cuing.  Deputy Pikett agreed the National Police Bloodhound Association advises in its procedure manual that different officers should place the samples and lead the dogs thereto; but he suggested this recommendation was included to avoid accusations by defense counsel that an officer subliminally cued the dogs.

Appellant contends objectivity of the lineup was compromised because Deputy Pikett raised the possibility of subliminal cuing and, despite his subsequent protestation, the association recognizes this possibility.  Appellant did not present the association’s manual at trial, and it is not part of the record.  Thus, there was no evidence the association included the recommendation because it actually believes cuing is possible.  Nonetheless, Deputy Pikett’s testimony shows he did follow the recommendation, irrespective of whether subliminal cuing is actually possible.

Apparently, appellant’s primary contention is that Inspector Oglesby, who did place the samples, might have subliminally cued the dogs to appellant’s sample.  However, appellant cites no evidence indicating an officer who does not lead the dogs to the samples can nonetheless subliminally cue them to the suspect’s sample.  In fact, Deputy Pikett opined that Inspector Oglesby could not cue the dogs because, after placing the samples, he stood across the room videotaping the process while the dogs were led to the samples.  Moreover, the only evidence pertaining to the association’s recommendations was advice that different officers should place the samples and lead the dogs thereto—the procedure followed in this case.  Appellant cites no evidence of a requirement or recommendation that the officer who places the samples should then abstain from any further participation in the process.  To the contrary, Deputy Pikett testified, “It doesn’t say you can’t have anybody at the location who doesn’t know where the person is.”

In sum, the trial court did not abuse its discretion by finding Deputy Pikett properly “relie[d] on or utilize[d] the principles involved in the field,” as required under the third Nenno prong, and finding, relative to the pertinent Winston factor for evaluating the third Nenno prong, the lineup was objective.

We overrule appellant’s sole issue and affirm the trial court’s judgment.

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Panel consists of Justices Anderson, Seymore, and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).

---

[1] The three criteria are (1) a scientific theory is valid, (2) application of the theory is valid, and (3) the technique has been properly applied.  Kelly, 824 S.W.2d at 573. The non-exclusive factors affecting a court’s determination of reliability include (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) qualifications of the expert(s) testifying, (3) existence of literature supporting or rejecting the underlying scientific theory and technique, (4) potential rate of error of the technique, (5) availability of other experts to test and evaluate the technique, (6) the clarity with which the underlying scientific technique can be explained to the court, and (7) experience and skill of the person(s) who applied the technique on the occasion in question.  Id.; see Winston, 78 S.W.3d at 525 n.2.

[2] As our court recently recognized, the Winston court concluded that scent lineups are a legitimate field of expertise, stating “there is little distinction between a scent lineup and a situation where a dog is required to track an individual’s scent.”  Smith, --- S.W.3d ---, 2011 WL 480600, at *4  (quoting Winston, 78 S.W.3d at 527). The Smith court also recognized that, since Winston, the Texas Court of Criminal Appeals has noted there are “significant scientific differences among the various uses of scenting.”   Id. (quoting Winfrey v. State, 323 S.W.3d 875, 883 ((Tex. Crim. App. 2010), which quoted Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of Dog Scenting, 42 Hastings L.J. 15, 42 (1990)). However, the Winfrey court addressed only whether dog-scent lineup evidence is legally sufficient to support a conviction and not its admissibility under Kelly or Nenno.  See generally Winfrey, 323 S.W.3d 875.  We need not decide whether the field is a legitimate area of expertise because appellant raises no issue on overall legitimacy of the field (the first Nenno prong) and instead challenges only the trial court’s finding on the third Nenno prong relative to procedures employed in this particular case.