Blasdell, Brandon Scott ( 2015 )

PD-0162-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
April 10, 2015 Transmitted 4/10/2015 3:54:27 PM
Accepted 4/10/2015 4:48:32 PM
ABEL ACOSTA
NO. PD-0162-14 CLERK
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS AT AUSTIN
BRANDON SCOTT BLASDELL, Appellant,
v.
THE STATE OF TEXAS, Appellee
No. 09-09-00286-CR
COURT OF APPEALS
FOR THE NINTH DISTRICT OF TEXAS
AT BEAUMONT
Arising from:
Cause No. 07-11-11972-CR
IN THE 9TH DISTRICT COURT,
MONTGOMERY COUNTY, TEXAS
STATE’S APPELLATE BRIEF
BRETT W. LIGON
District Attorney
Montgomery County, Texas
BRENT CHAPELL
Assistant District Attorney
Montgomery County, Texas
T.B.C. No. 24087284
207 W. Phillips, Second Floor
Conroe, Texas 77301
936-539-7800
936-788-8395 (FAX)
brent.chapell@mctx.org
ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 38.2, the State hereby supplements the
appellant’s list of parties to this appeal with the names of all trial and appellate
counsel for the State:
District Attorney: BRETT W. LIGON
District Attorney
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301
Counsel for the State in the trial court: SYLVIA YARBOROUGH
Former Asst. District Attorney
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301
Counsel for the State in the appellate courts: BRENT CHAPELL
Assistant District Attorney
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................................... ii
TABLE OF CONTENTS ................................................................................................... iii
STATEMENT OF THE CASE ........................................................................................... 1
STATEMENT OF FACTS .................................................................................................. 2
SUMMARY OF THE STATE’S ARGUMENT ................................................................. 5
REPLY TO POINT OF ERROR ......................................................................................... 6
A. The appellant failed to establish Rubenzer’s qualifications as to the
specific topic of the weapon focus effect. ................................................................ 6
B. The appellant failed to establish that the weapon focus effect
testimony was reliable in this case. ........................................................................ 13
C. The appellant bore the burden of establishing the admissibility of
Rubenzer’s testimony. ............................................................................................ 16
CONCLUSION AND PRAYER ....................................................................................... 19
CERTIFICATE OF COMPLIANCE WITH RULE 9.4 .................................................... 20
CERTIFICATE OF SERVICE ........................................................................................... 20
iii
INDEX OF AUTHORITIES
Cases
Blasdell v. State,
384 S.W.3d 824 (Tex. Crim. App. 2012) .............................................................. 1, 4, 15
Blasdell v. State,
420 S.W.3d 406 (Tex. App.—Beaumont 2014, pet. granted) ............................. 1, 4, 5, 7
Blasdell v. State,
No. 09-09-00286, 2010 WL 3910586 (Tex. App.—Beaumont Oct. 06, 2010),
rev’d, 384 S.W.3d 824 (Tex. Crim. App. 2012)...................................................... 1, 3, 4
Broders v. Heise,
924 S.W.2d 148 (Tex. 1996) ........................................................................................... 8
Ex parte Blasdell,
No. AP-76697, 2011 WL 5903657 (Tex. Crim. App. Nov. 23, 2011)............................ 1
Gammill v. Jack Williams Chevrolet, Inc.,
972 S.W.2d 713 (Tex. 1998) ........................................................................................... 9
Hernandez v. State,
116 S.W.3d 26 (Tex. Crim. App. 2003) ........................................................................ 15
Jordan v. State,
928 S.W.2d 550 (Tex. Crim. App. 1996) ...................................................................... 14
Mays v. State,
285 S.W.3d 884 (Tex. Crim. App. 2009) ...................................................................... 17
Morris v. State,
361 S.W.3d 649 (Tex. Crim. App. 2011) ...................................................................... 13
Nenno v. State,
970 S.W.2d 549 (Tex. Crim. App. 1998) ...................................................................... 13
New Jersey v. Henderson,
208 A.3d 872 (N.J. 2011) .............................................................................................. 15
Sennett v. State,
406 S.W.3d 661 (Tex. App.—Eastland 2013, no pet.).................................................... 9
iv
Tillman v. State,
354 S.W.3d 425 (Tex. Crim. App. 2011) ................................................................ 14, 15
Vela v. State,
209 S.W.3d 128 (Tex. Crim. App. 2006) ............................................................ 6, 7, 8, 9
Weatherred v. State,
15 S.W.3d 540 (Tex. Crim. App. 2000) .................................................................... 6, 14
Wyatt v. State,
23 S.W.3d 18 (Tex. Crim. App. 2000) ............................................................................ 7
Rules
Tex. R. App. P. 9.4 ............................................................................................................. 20
Tex. R. App. P. 33.1 .......................................................................................................... 17
Tex. R. App. P. 38.2 ............................................................................................................ ii
Tex. R. Evid. 103 ............................................................................................................... 17
v
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
STATEMENT OF THE CASE
The appellant was convicted of aggravated robbery and sentenced to
imprisonment for thirty years (C.R. 59–62, 69). On original submission, the Ninth
Court of Appeals affirmed the trial court’s judgment in an unpublished
memorandum opinion. See Blasdell v. State, No. 09-09-00286, 2010 WL 3910586
(Tex. App.—Beaumont Oct. 06, 2010) (mem. op., not designated for publication),
rev’d, 384 S.W.3d 824 (Tex. Crim. App. 2012) (Blasdell I). The appellant did not
initially file a petition for discretionary review.
However, on November 23, 2011, this Court granted the appellant’s
application for writ of habeas corpus, allowing the appellant to file an out-of-time
petition for discretionary review. See Ex parte Blasdell, No. AP-76697, 2011 WL
5903657 (Tex. Crim. App. Nov. 23, 2011) (not designated for publication). After
granting discretionary review, this Court reversed the judgment of the Ninth Court
of Appeals and remanded the case to that court for further proceedings. See
Blasdell v. State, 384 S.W.3d 824 (Tex. Crim. App. 2012) (Blasdell II).
On remand, the Ninth Court of Appeals again affirmed the judgment of the
trial court. See Blasdell v. State, 420 S.W.3d 406 (Tex. App.—Beaumont 2014,
pet. granted) (Blasdell III). This Court granted the appellant’s petition for
discretionary review on October 15, 2014.
STATEMENT OF FACTS
A. The evidence at trial.
Katy Hadwin stopped at a roadside station to purchase gasoline (3 R.R. 66,
69). As soon as she stepped out of her car, the appellant approached her and thrust
a gun into her face (3 R.R. 70–71, 77–78). The appellant demanded her
belongings, saying, “Give me your fucking purse” (3 R.R. 71). Hadwin saw that
the appellant was clean-shaven with “light-colored eyes and a unibrow” (3 R.R.
71).
Hadwin retrieved her purse from her vehicle and gave it to the appellant,
who then walked off toward his truck (3 R.R. 72–73). Hadwin fled and called her
grandfather, who lived nearby, and then called 911 (3 R.R. 68–69, 73–74). Police
instructed Hadwin to return to the gas station, where she provided them with the
appellant’s description (3 R.R. 13, 16–17, 74–75).
Later that week, Hadwin met with a detective and filled out a suspect
description form (3 R.R. 30, 37–38, 55, 76, 80). Detectives presented Hadwin with
a photo spread from which she identified the appellant’s picture as being that of the
perpetrator (3 R.R. 37–39, 57–58, 77, 80). Hadwin maintained that she was 100%
sure that the appellant was the man who robbed her (3 R.R. 77, 80, 98–99).
The reliability of eyewitness identification became a major issue during trial
(4 R.R. 5–70). To that end, the appellant called Dr. Steven Rubenzer, a forensic
2
psychologist, to testify (4 R.R. 5–6). One of the scientific theories about which
Rubenzer intended to testify was the “weapon focus effect,” or the idea that there is
a “tendency, when there is a weapon involved, particularly in brief encounters, for
the weapon to essentially attract attention away from the perpetrator’s face” and
“result in lesser accuracy for the identification” (4 R.R. 32). The trial court
conducted an extensive voir dire of Rubenzer regarding the various theories to
which he proposed to testify. Because Rubenzer could only say that the weapon
focus effect was “possibly” a factor in Hadwin’s identification of the appellant, the
trial court held that such testimony was not reliable and would not assist the jury in
determining a fact of consequence (4 R.R. 52–53, 61, 82). The trial court excluded
any testimony related to the weapon focus effect but allowed Rubenzer to testify
about other confounding factors that can complicate a witness’s ability to
accurately identify the person who committed the crime, such as suggestive lineups
and cross-race identification (4 R.R. 60–61, 82).
B. Appellate review.
On appeal, the appellant argued that the trial court improperly excluded
Rubenzer’s testimony regarding the weapon focus effect. See Blasdell I, 2010 WL
3910586, at *2. On original submission, the Ninth Court of Appeals held that
Rubenzer “did not commit” to an opinion that the weapon focus effect affected
Hadwin’s identification of the appellant. Id. at *3. The court of appeals stated that
3
because the appellant did not make a showing that Rubenzer’s testimony was
“sufficiently tied” to the pertinent facts of the case, the appellant did not meet his
burden of showing by clear and convincing evidence that Rubenzer’s weapon
focus effect testimony was relevant. Id. Having disposed of the issue on grounds
of relevance, the Ninth Court of Appeals did not reach the question of whether the
appellant demonstrated that the weapon focus effect testimony was reliable or
whether Rubenzer was qualified to offer such testimony. Id. at *2 n.2.
But this Court reversed, holding that Rubenzer’s testimony establishing the
“possibility” of distorted perception under the circumstances was sufficient to
establish a “fit” with the facts of this case, and hence, the relevance of Rubenzer’s
expert testimony. See Blasdell II, 384 S.W.3d at 830–31. The case was remanded
to the court of appeals to decide the remaining issues pertaining to the admissibility
of Rubenzer’s testimony: (1) whether Rubenzer was qualified to give the opinion
he did; (2) whether the proffered evidence was sufficiently reliable to be
considered by the jury; and (3) whether, if indeed it was error to exclude
Rubenzer’s testimony regarding the weapon focus effect, the appellant was harmed
by that exclusion. See id. at 831 n.18.
On remand, the Ninth Court of Appeals hastily disposed of any attack on
Rubenzer’s qualifications and instead focused its analysis on the reliability of the
proffered evidence. See Blasdell III, 420 S.W.3d at 410. The court of appeals
4
concluded that the appellant failed to adequately describe the principles behind the
weapon focus effect, and the only evidentiary basis to explain those principles
came from the mere ipse dixit of Rubenzer. Id. at 411. Without further
information, “the trial court was not in a position to properly evaluate whether Dr.
Rubenzer had either properly stated or applied the principles that govern the
weapon focus effect” as it relates to the appellant’s case. Id. Hence, the trial court
did not abuse its discretion in excluding Rubenzer’s testimony about the weapon
focus effect because it was unable to determine whether such testimony was
reliable. Id.
SUMMARY OF THE STATE’S ARGUMENT
The court of appeals properly concluded that the appellant failed to
demonstrate the reliability of Rubenzer’s proffered testimony regarding the
weapon focus effect. The evidence presented to the trial court was insufficient to
establish Rubenzer’s qualifications as an expert in the field, that the weapon focus
effect was not junk science, and that Rubenzer’s testimony properly relied upon or
utilized the principles involved in his field of so-called expertise. In light of the
appellant’s concession that the current record is insufficient, the trial court’s
decision to exclude Rubenzer’s testimony was not an abuse of discretion.
5
REPLY TO POINT OF ERROR
The appellant’s sole contention is that the Ninth Court of Appeals erred in
holding that the trial court did not abuse its discretion when it excluded Rubenzer’s
testimony regarding the “weapon focus effect” (see Appellant’s Brief at 7–8). The
appellant complains that the trial court did not afford him the opportunity to
demonstrate the reliability of Rubenzer’s proffered testimony (see id.).
Prior to admitting expert testimony, the trial court is required to make three
separate inquiries: (1) whether the witness qualifies as an expert by reason of his
knowledge, skill, experience, training, or education; (2) whether the subject matter
of the testimony is an appropriate one for expert testimony; and (3) whether
admitting the testimony will actually assist the factfinder in deciding the case. See
Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). These conditions,
which the proponent of scientific evidence must establish by clear and convincing
proof, are commonly referred to as (1) qualification, (2) reliability, and (3)
relevance. Id.; Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).
Because this Court has previously decided that Rubenzer’s testimony would be
relevant, only the first two conditions are at issue in this case.
A. The appellant failed to establish Rubenzer’s qualifications as to the
specific topic of the weapon focus effect.
Although the Ninth Court of Appeals correctly held that the appellant failed
to establish the reliability of his proffered testimony regarding the weapon focus
6
effect, the court’s cursory qualification of Rubenzer as an expert bears further
examination. See Blasdell III, 420 S.W.3d at 410. A witness’s qualification to
give an expert opinion may be derived from specialized education, practical
experience, a study of technical works, or a varying combination of these things.
Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). “Because the possible
spectrum of education, skill, and training is so wide, a trial court has great
discretion in determining whether a witness possesses sufficient qualifications to
assist the jury as an expert on a specific topic in a particular case.” Vela, 209
S.W.3d at 136. Absent a clear abuse of that broad discretion, a decision to admit
or exclude testimony should not be disturbed. See Wyatt, 23 S.W.3d at 27.
In this case, it is uncontested that Rubenzer is qualified to testify as a
forensic psychologist, and he is possibly likewise qualified to testify as an expert in
the field of eyewitness identification. But the appellant failed to demonstrate
Rubenzer’s qualification with regard to the weapon focus effect, specifically, or the
reliability of its underlying science. This distinction is important because
Rubenzer was permitted to testify at length as an expert regarding the shortfalls of
eyewitness identification, including the suggestiveness of lineups and cross-race
identification. Therefore, Rubenzer’s qualification as an expert with respect to the
weapon focus effect is of crucial importance in this case.
7
Qualification is a two-step inquiry. A witness must first have a sufficient
background in a particular field, and then the trial court must determine whether
that background “goes to the very matter on which [the witness] is to give an
opinion.” Vela, 209 S.W.3d at 131 (quoting Broders v. Heise, 924 S.W.2d 148,
153 (Tex. 1996)). Put together, these inquiries require an expert to be sufficiently
qualified in the specific topic on which they plan to testify, even if that topic is
encompassed within a broader scientific field in which the expert is qualified. See
id.
Put another way, “the expert’s background must be tailored to the specific
area of expertise in which the expert desires to testify.” Id. at 133. In Broders, for
example, the Texas Supreme Court examined the potential qualification of an
emergency physician to testify about the cause-in-fact of a patient’s death.
Broders, 924 S.W.2d at 153. The Court rejected the argument that the physician
could testify about “all medical matters” merely because he was a medical doctor,
explaining that “there is no validity . . . to the notion that every licensed medical
doctor should be automatically qualified to testify as an expert on every medical
question.” Id. To hold otherwise would prevent a trial judge from fulfilling his
gatekeeping duty to “ensure that those who purport to be experts truly have an
expertise concerning the actual subject about which they are offering an opinion.”
Id. at 152–53; see also Vela, 209 S.W.3d at 131–32 (relying on Broders in
8
determining proper standard for evaluating expert qualification); Gammill v. Jack
Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998) (holding mechanical
engineer was not qualified to testify as expert in automobile-related products-
liability suit, despite his extensive background in designing and testing other
vehicles and their components).
Likewise, in Sennett v. State, 406 S.W.3d 661, 668 (Tex. App.—Eastland
2013, no pet.), the Eleventh Court of Appeals held the proponent failed to establish
the qualifications of his proffered forensic expert witness. See Sennett, 406
S.W.3d at 668. Although the trial court recognized that computer forensics is a
valid area of scientific or technical expertise and that it was relevant to the case,
and that the witness was otherwise qualified to discuss the technical aspects of
computing, because the defendant failed to establish—via evidence—the expert’s
qualifications, the trial court was justified in refusing to permit him to testify as an
expert with regard to the specific issue of e-mail authenticity. Id. at 668–69.
Because the “fit” between the subject matter at issue and the expert’s familiarity
therewith was inadequate, the exclusion of testimony about that specific topic was
not an abuse of discretion. See id.; see also Vela, 209 S.W.3d at 133.
Similar to Broders and Sennett, while Rubenzer is a qualified forensic
psychologist and readily able to discuss the issues on which he was permitted to
testify, the appellant simply failed to establish that Rubenzer was qualified to
9
discuss the weapon focus effect, specifically. As to the area of eyewitness
identification, generally, Rubenzer has not published any articles in a peer-
reviewed journal and has not conducted any independent research resulting in the
collection of data (4 R.R. 14). Rubenzer has developed a so-called expertise in the
field via mere self-education, by reading numerous peer-reviewed articles and
attending seminars that focused on relevant topics. Despite an extensive voir dire,
Rubenzer did not discuss the content he reviewed and did not provide the trial
court with any copies of the articles or programs from the symposia.
More importantly, the discussion on the record regarding the weapon focus
effect, specifically, is brief and lacks substance. First, defense counsel suggested
in an offer of proof that Rubenzer would discuss:
Weapon focus effect. We have the complaining witness identifying a
black revolver. Dr. Rubenzer is familiar with that because that comes
out of the offense report. And that’s a – from her testimony, we
know, that’s specific; and this isn’t somebody who was a gun nut who
can tell us caliber and things like that.
(4 R.R. 19).
Next, during a voir dire examination to determine the admissibility of
Rubenzer’s testimony, defense counsel questioned Rubenzer:
Q. And let’s talk about the weapon focus effect. Can you tell us
what that is?
A. Yes. That’s a tendency, when there is a weapon involved,
particularly in brief encounters, for the weapon to essentially
10
attract attention away from the perpetrator’s face and, by doing
so, result in lesser accuracy for identification.
Q. And pursuant to those exhibits you’ve examined and in our
discussions as far as the offense report, you were aware in your
preparation that the complaining witness identified the gun as a
black revolver; is that correct?
A. I didn’t hear the term “black.” I just heard “revolver.”
Q. Okay. How is that significant to you?
A. Well, it just indicates that the witness apparently did look at the
gun long enough to determine what type of gun it was.
(4 R.R. 32–33).
Rubenzer discussed the topic for the last time when he opined that the
weapon focus effect could have “possibly” played a role in this case, which
ultimately formed the basis for this Court’s prior opinion establishing the relevance
of Rubenzer’s proffered testimony (4 R.R. 51–52). Other than the trial court’s
ruling excluding Rubenzer’s testimony on the subject (4 R.R. 82), the record’s only
remaining mention of the weapon focus effect appears in Defendant’s Exhibit 2,
wherein the phrase appeared in the title of two peer-reviewed articles, and the issue
was identified as a topic of discussion at two symposia attended by Rubenzer.
Rubenzer did not cite any experiments he had performed on the effect; nor did he
11
provide the trial court with studies on the topic, any symposia he attended,1 or even
any formal training associated with the weapon focus effect.
To be clear, the extent of Rubenzer’s training and experience regarding the
weapon focus effect, as reflected in the record, is that he read two peer-reviewed
articles on the subject, and he heard or viewed two presentations on the topic,
which were presented among multiple other topics in a less-than-two-hour period.
And the extent of Rubenzer’s discussion of the topic and the science behind it, as
reflected in the record, is his terse explanation that there is a tendency for a weapon
to attract attention away from the perpetrator’s face, resulting in lesser accuracy for
identification. Granted, it is likely that Rubenzer has further developed his
knowledge with respect to the weapon focus effect and that some of his
educational materials discussed the topic in some detail, but any evidence of such
further qualification is simply absent from the record on which this Court’s review
is limited.
Consequently, the appellant has failed to establish an adequate “fit” between
the subject matter at issue—the weapon focus effect—and Rubenzer’s familiarity
therewith. Although this Court has previously deemed the topic of the weapon
focus effect to adequately “fit” with the facts of this case under the purview of a
1
Rubenzer provided the trial court with the names and locations of symposia
he attended, but he did not provide any programs or testimony regarding the
substance of those symposia.
12
relevance analysis, the “fit” question with respect to Rubenzer’s qualification to
testify about the weapon focus is an independent inquiry. The science may fit the
facts of the case, but the science has not been shown to fit the witness’s expertise.
Because the appellant failed to meet his burden, the trial court could not
have abused its discretion in finding that Rubenzer’s qualifications were not
sufficiently established, and the cursory analysis by the Ninth Court of Appeals
warrants nullification.
B. The appellant failed to establish that the weapon focus effect testimony
was reliable in this case.
Even if the Ninth Court of Appeals was correct in finding Rubenzer to be
qualified, the appellant is nevertheless not entitled to relief, because the Ninth
Court of Appeals was likewise correct in finding that the appellant failed to
establish the reliability of Rubenzer’s proffered testimony.
In assessing the reliability of expert testimony outside the hard sciences,
reviewing courts analyze the testimony according to three considerations: (1)
whether the field of expertise is legitimate; (2) whether the subject matter of the
testimony is within the scope of that field; and (3) whether the testimony properly
relies upon or utilizes the principles involved in the field. See Morris v. State, 361
S.W.3d 649, 653 (Tex. Crim. App. 2011) (citing Nenno v. State, 970 S.W.2d 549
(Tex. Crim. App. 1998)). The focus on reliability is to determine whether the
evidence has its basis in sound scientific methodology and not “junk science.” See
13
Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (citing Jordan v.
State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996)). As opposed to relevance,
which is by nature a looser notion, reliability demands a certain technical showing.
Jordan, 928 S.W.2d at 555.
While some science may be recognized as valid, the proponent of scientific
evidence must provide the trial court with sufficient evidence of such validation
before the exclusion of expert testimony on the topic will constitute an abuse of
discretion. For example, in Weatherred, this Court considered whether the
testimony of Dr. Kenneth Deffenbacher regarding the reliability of eyewitness
identifications was admissible over an objection that the underlying science was
neither reliable nor relevant. See Weatherred, 15 S.W.3d at 542-43. This Court
held that because Deffenbacher “failed to produce or even name any of the studies,
researches, or writings in question,” the court of appeals “could have reasonably
concluded that the appellant failed to carry his burden” of showing the trial court
that the proffered expert testimony was reliable and relevant. Id. (emphasis in
original). This Court recognized the validity of the science to which Deffenbacher
proposed to testify, but nevertheless found that the evidence presented to the trial
court was insufficient to allow that court to so conclude. Id.
Like the evidence presented to establish Rubenzer’s qualification, the
appellant in this case presented only scant evident with regard to the reliability of
14
the underlying science. Rubenzer provided the trial court with no titles of any
studies, no names of any researchers, nor even the general substance of any
writings on the weapon focus effect; and he did not discuss the methodology
behind the science. As this Court has recognized, these studies do exist, and courts
in other states have held that a properly qualified expert may discuss the weapon
focus effect. See Blasdell II, 384 S.W.3d at 828 n.3 (citing Tillman, 354 S.W.3d at
436–37, which in turn cites New Jersey v. Henderson, 208 A.3d 872, 905 (N.J.
2011) (holding that studies have shown an average decrease of 10% in the
accuracy of identifications when a weapon is present)). While the New Jersey
Supreme Court was able to find testimony regarding the weapon focus effect
relevant and reliable after conducting a “meta-analysis of nineteen weapon focus
studies that involved more than 2,000 identifications,” the appellant in this case
presented no such evidence of its reliability to the trial court.
Absent these materials, the trial court was not in the position to determine
the reliability of Rubenzer’s proffered testimony regarding the weapon focus
effect. See Hernandez v. State, 116 S.W.3d 26, 32–34 (Tex. Crim. App. 2003)
(Keller, P.J., concurring) (discussing limitations on a court’s ability to take judicial
notice of evidence outside the record to establish an expert’s reliability). This
Court’s reasoning in Weatherred compels the conclusion that the appellant did not
15
meet his burden of establishing that the proffered testimony about the weapon
focus effect has its basis in sound methodology.
Furthermore, as the Ninth Court of Appeals correctly concluded, the
appellant wholly failed to establish that his proposed testimony properly relied
upon or utilized the principles involved in the field. The underlying science behind
the weapon focus effect, including the principles involved therein, were never
presented to the trial court in the first place. And even if they were, Rubenzer
never testified that his proffered testimony regarding the weapon focus effect was
derived from, based on, or reliant upon the self-studies he performed in the broad
area of eyewitness identification. Rubenzer merely offered a cursory description
of the weapon focus effect, his opinion that the effect could have possibly played a
role in this case, and a long list of literature that was not shown to discuss the
specific topic at issue. This evidence was insufficient to establish by clear and
convincing evidence that Rubenzer’s opinion properly relied upon or utilized the
principles involved in the field of study related to the weapon focus effect. The
trial court did not abuse its discretion in excluding that portion of Rubenzer’s
proffered testimony.
C. The appellant bore the burden of establishing the admissibility of
Rubenzer’s testimony.
The appellant devotes the majority of his argument to blaming the trial court
for failing to sufficiently inquire into the reliability of the proffered testimony
16
about the weapon focus effect before ruling that it should be excluded (see
Appellant’s Brief at 7–8, 11). But it was the appellant’s burden—not the trial
court’s—to make a sufficient offer of proof to ensure the record was fully
developed for appellate purposes. See Tex. R. App. P. 33.1(a); Tex. R. Evid.
103(a)(2), (c). The appellant’s suggestion that the trial court excluded the
proffered testimony solely on the grounds that it was not relevant does not alleviate
his duty to make a sufficient bill of exception or offer of proof to fully establish its
admissibility in the event that the trial court’s reasoning was unsound. See Mays v.
State, 285 S.W.3d 884, 890–91 (Tex. Crim. App. 2009) (“The primary purpose of
an offer of proof is to enable an appellate court to determine whether the exclusion
was erroneous and harmful.”). Moreover, the record reflects that the State argued
against the admission of Rubenzer’s testimony under the full standard set forth in
Texas Rule of Evidence 702, including both relevance and reliability (4 R.R. 20).
The trial court gave no indication that it would not have afforded the appellant the
opportunity to make a bill of exception or offer of proof for the purpose of
establishing the reliability of the proffered weapon focus effect testimony, had he
requested to do so.
The appellant also appears to contend that the trial court must have abused
its discretion in excluding the weapon focus effect testimony because it allowed
17
Rubenzer to testify about other topics subsumed within the concept of eyewitness
identification despite not having established their reliability:
The trial court was primarily concerned with relevance and did not
make inquiry into reliability. During the hearing, [the appellant] did
not establish the reliability of any of the other theories that Dr.
Rubenzer testified about, and yet the trial court allowed testimony on
those areas of eyewitness identification. During the hearing in the
trial court, Dr. Rubenzer did not state or apply the principles that
governed any eyewitness identification errors . . . Dr. Rubenzer did no
more or no less to describe or explain the scientific principles of
weapon focus effect as he did the eyewitness identification errors he
was allowed to testify about.
(Appellant’s Brief at 11–12). But this argument lacks merit. By merely admitting
some scientific evidence that has not properly been shown to be reliable, a trial
court does not impose upon itself a requirement that it must admit all scientific
evidence that has not properly been shown to be reliable.
The appellant has essentially admitted that the current record establishes
neither Rubenzer’s qualification to testify about the weapon focus effect nor the
reliability of his proffered testimony on the topic. Given the concededly deficient
record, the appellant has failed to properly preserve for appellate review the issues
of qualification and reliability with respect to the excluded expert testimony.
In sum, the weapon focus effect may very well be a sound science, and
Rubenzer may very well be qualified to testify about the topic, but the appellant
simply failed to present the trial court with sufficient evidence to support those
conclusions. As a result, this Court should not disturb the trial court’s conclusion
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that Rubenzer’s proffered testimony was not shown to be sufficiently reliable,
because such a conclusion was soundly within the trial court’s discretion based on
the evidence made available by the appellant. To hold otherwise would open the
door for qualified experts in a wide-encompassing field to testify about any
beneficial theory that falls within the purview of that field, regardless of its
soundness. The judgments of the trial court and the Ninth Court of Appeals should
be affirmed.
CONCLUSION AND PRAYER
It is respectfully submitted that all things are regular and the judgment of the
court of appeals should be affirmed; and in the alternative, that the case be
remanded to the court of appeals for a harmless error analysis.
BRETT W. LIGON
District Attorney
Montgomery County, Texas
/s/ Brent Chapell
BRENT CHAPELL
T.B.C. No. 24087284
Assistant District Attorney
Montgomery County, Texas
207 W. Phillips, Second Floor
Conroe, Texas 77301
936-539-7800
936-788-8395 (FAX)
brent.chapell@mctx.org
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CERTIFICATE OF COMPLIANCE WITH RULE 9.4
I hereby certify that this document complies with the requirements of Tex. R.
App. P. 9.4(i)(2)(B) because there are 4,201 words in this document, excluding the
portions of the document excepted from the word count under Rule 9.4(i)(1), as
calculated by the MS Word computer program used to prepare it.
/s/ Brent Chapell
BRENT CHAPELL
Assistant District Attorney
Montgomery County, Texas
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was
mailed to counsel for the appellant on the date of the submission of the original to
the Clerk of this Court.
/s/ Brent Chapell
BRENT CHAPELL
Assistant District Attorney
Montgomery County, Texas
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