Alcides Larrinaga A.K.A. Alcides Larringa v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00199-CR
ALCIDES LARRINAGA A.K.A. APPELLANT
ALCIDES LARRINGA
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1328386D
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CONCURRING MEMORANDUM OPINION 1
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Appellant argues that the trial court erred by allowing a police detective to
opine whether this was a case of self-defense over his objection that the
detective had not been established as an expert. The majority concludes that the
testimony was admissible under rule of evidence 701 and that, regardless of its
admissibility, the testimony was harmless in light of the testimony from the other
witnesses about Appellant and Joel’s disputes. While I agree that the testimony
1
See Tex. R. App. P. 47.4.
was ultimately harmless, I disagree with the majority’s application of rule 701
because, although rule 701 provides a relaxed standard for the admissibility of
opinion testimony, it does not permit admission of an expert opinion in lay
opinion’s clothing.
To meet the lay opinion admissibility standard, the witness must have
personal knowledge of the facts underlying the opinion, and the opinion must be
rationally based on the witness’s perception of those facts. See Solomon v.
State, 49 S.W.3d 356, 360–61, 364 (Tex. Crim. App. 2001) (holding that
accomplice was qualified to opine that defendant, who had goaded and
encouraged others to rob and kill stranded motorist, was the person among the
group “responsible” for the robbery); Thomas v. State, 916 S.W.2d 578, 580–81
(Tex. App.—San Antonio 1996, no pet.) (holding that police officer was permitted
to provide lay-witness testimony as to how “crack” houses are usually run);
Reece v. State, 878 S.W.2d 320, 325 (Tex. App.—Houston [1st Dist.] 1994, no
pet.) (holding that police officer’s testimony that defendant’s actions were
consistent with someone selling cocaine was admissible under rule 701);
Williams v. State, 826 S.W.2d 783, 785 (Tex. App.—Houston [14th Dist.] 1992,
pet. ref’d) (stating that police officer was permitted to testify as a lay witness that
he had interpreted the defendant’s actions to be a drug transaction); Austin v.
State, 794 S.W.2d 408, 409–11 (Tex. App.—Austin 1990, pet. ref’d) (holding that
police officer could provide his opinion that “Swedish deep muscle rub” was a
code for prostitution).
2
Here, however, the detective was asked to look at the injuries from an
autopsy report and to opine as to whether “this [was] a case of self-defense.”
The record does not demonstrate that he had personal knowledge of the
underlying facts. Further, while he had experience in investigating homicide
cases, there was no evidence in the record to indicate that he had experience in
interpreting autopsy results such that he would be qualified to testify as to
whether the autopsy results indicated that the appellant in this case had shot a
man in self-defense. 2 Therefore, I would hold that the trial court abused its
discretion by admitting the testimony over objection. I nonetheless concur that,
considering the evidence in the record as a whole, the error was harmless.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: August 6, 2015
2
Our opinion in James v. State may appear to hold to the contrary, but in
James, the officer was permitted to opine that a claim of self-defense made no
sense in the context of personal observation of the physical condition of the
defendant and the complainant the second time the officer responded to the
scene of one of their domestic disturbances. 335 S.W.3d 719, 725–26 (Tex.
App.—Fort Worth 2011, no pet.) (noting that the officer testified that the claim of
self-defense was not consistent with the fact that the boyfriend had no new
injuries on him while the girlfriend had a black eye, a cut nose, blood all over her
face, bruises on her legs; the officer added that “he did a heck of a job defending
himself, if that was the case”).
3