Ebeneser Benny Morones v. State ( 2017 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-16-00317-CR
NO. 09-16-00318-CR
NO. 09-16-00319-CR
NO. 09-16-00320-CR
________________
EBENESER BENNY MORONES, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause Nos. 15-11-11633-CR, 15-11-11627-CR,
15-08-08136-CR and 15-11-11634-CR
__________________________________________________________________
MEMORANDUM OPINION
A jury convicted appellant Ebeneser Benny Morones of unlawful possession
of a firearm by a felon, evading arrest or detention with a vehicle, aggravated assault
against a public servant, and possession of a controlled substance with intent to
deliver or manufacture, and the trial court assessed punishment at imprisonment for
life. In his sole appellate issue, Morones complains that the trial court abused its
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discretion by admitting expert testimony and exhibits regarding toolmark
identification, which is a form of firearm identification evidence, because the
scientific techniques used by the witness were not shown to be reliable. We affirm
the trial court’s judgments.
FACTUAL BACKGROUND
Officer Robert Rodriguez, who formerly worked for the Woodbranch Police
Department, testified that he observed a white Cadillac traveling at a high rate of
speed on the highway. Rodriguez activated his patrol vehicle’s lights and siren and
began following the vehicle. Rodriguez realized that the driver was attempting to get
away, and Rodriguez called dispatch and provided the vehicle’s license plate
number. According to Rodriguez, as the vehicle continued to drive, Morones put his
head outside the window, pointed a gun at Rodriguez, and fired “a few rounds.”
Rodriguez testified that he feared imminent bodily injury. Rodriguez explained that
he saw debris on his dashboard from glass that had broken. Rodriguez identified
Morones as the shooter.
Rodriguez continued to follow the vehicle until Rodriguez’s vehicle hit the
curb and became disabled, forcing him to withdraw from the pursuit. Rodriguez
testified that he heard through dispatch that other units were approaching. Rodriguez
explained that he saw a police unit from Patton Village, and he believed other
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officers were taking over the attempt to stop the vehicle. Rodriguez testified that his
in-car video was turned on, and a copy of the video of the pursuit was admitted as
an exhibit and published to the jury. Rodriguez testified that he subsequently
identified Morones from a photograph.
Deputy Jeff Buchanan of the Montgomery County Precinct Four Constable’s
Office testified that he was on duty on the day that the vehicle failed to stop for
Rodriguez. Buchanan explained that he joined in to assist with the pursuit. Buchanan
was able to catch up to the chase at a point where the road opened up to three lanes,
and he heard Rodriguez say on the radio that someone was shooting at him and his
vehicle had been hit. Buchanan continued his attempt to locate the white Cadillac,
and he eventually saw the vehicle, activated his lights and siren, and attempted to
pull it over. Buchanan explained that the vehicle did not pull over, but continued
down the highway, jumping off and onto the highway “at almost every exit and
entrance ramp.” According to Buchanan, the vehicle eventually left the interstate
and feeder, and the pursuit “ended off of Hopper Road.”
Buchanan testified that as the vehicle took the Hopper exit, he saw a male
climbing out of the window on the back passenger side. Buchanan testified that the
male pointed a semiautomatic pistol at him, and Buchanan heard shots. Buchanan
explained that the male then picked up a rifle and again began firing at Buchanan
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while the Cadillac was moving.1 Buchanan testified that he could see the male’s face,
and he identified Morones as the shooter. Buchanan testified that he has “[z]ero
doubt” that Morones is the person who was shooting at him. According to Buchanan,
he accidentally shifted his car into a lower gear, and although he initially believed
his vehicle was disabled, he resumed pursuing the Cadillac. Buchanan testified that
he observed a red Conex box, which is a large metal container, and he saw a male,
who he later realized was Morones, walking between the Conex box and a fence.
Buchanan explained that he subsequently found the Cadillac wrecked in a
ditch, and he saw several people who had just gotten out of the vehicle running
through a yard. Buchanan testified that he got out of his vehicle and “cleared the
[Cadillac]” to make sure that no one was hiding in it. Inside the vehicle, Buchanan
observed “[s]everal handguns, shotguns, what appeared to be body armor, and just
junk all over the car.” According to Buchanan, other officers eventually arrived, and
they continued to search for the suspects who had fled the scene. Officers eventually
apprehended two females and a male, and Buchanan learned that the male who had
fired at Buchanan “had made the comment that he’s not going back to jail alive.”
One of the female suspects subsequently provided Morones’s name to the
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Buchanan explained that Morones was in Montgomery County when he fired
at Rodriguez and in Harris County when he fired at Buchanan.
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authorities. Buchanan explained that he learned during the investigation that he had
been fired at two more times after he passed the Conex box, so Buchanan and another
officer returned to the area, searched, and found casings that he believed were used
in the shooting.
Buchanan explained that the Cadillac was inventoried at the scene. During the
inventory, Buchanan and other officers found marijuana; pistol holsters; plastic
bottles with baggies inside; an Altoids box, a plastic container filled with what
officers believed were methamphetamines; a cigar box containing marijuana; a
baggie containing methamphetamines; multiple digital scales in the backseat and
back floorboard of the car; semiautomatic pistols; a shotgun on the backseat; a
Derringer; ammunition; and a magazine for an M1 carbine rifle. Buchanan identified
State’s exhibit 131 as the M1 carbine rifle Morones was firing at him. Buchanan
testified that six guns were recovered from the Cadillac, and an M1 carbine rifle was
later found in Morones’s possession. A redacted version of the video from
Buchanan’s patrol car was admitted as an exhibit and played for the jury. Deputy
Brian Treille of the Montgomery County Sheriff’s Department testified that he
apprehended Morones at a hotel and found a semiautomatic .30-caliber rifle in the
trunk of Morones’s vehicle.
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Dawn Laporte,2 a Firearms Examiner II with the Harris County Institute of
Forensic Sciences (“HCIFS”), testified that she has worked for HCIFS for four years.
Laporte explained that prior to her employment with HCIFS, she worked for the
Pasadena Police Department for approximately four years as a firearms examiner in
training and then as a firearms examiner. Laporte explained that a Firearms
Examiner II is able to review other examiners’ cases, but a Firearms Examiner III is
not. Laporte testified that she received a bachelor’s degree in biology in 2006, and
she has been trained by the National Firearms Examiner Academy. In addition,
Laporte testified that she is in the process of obtaining her firearms certification
through the Association of Firearm and Toolmark Examiners (“AFTE”).
Laporte testified that she tests firearms for functionality, determines if fired
evidence is traceable to a particular firearm, and reviews fired evidence to determine
what firearm could possibly have fired the evidence. Laporte explained that she is
familiar with several validation studies that are pertinent to firearms examination,
including Glock Gen 4 bullet validation, 10 consecutively rifled Ruger 9 millimeter
2
Before Laporte’s testimony began, defense counsel stated, “It’s my
understanding that the State is about to call an expert witness, and I would like to,
outside the presence of the jury, take on the witness under 702 and Daubert.” The
trial judge stated that she would first allow the State to establish the witness’s
qualifications and then permit the defense to voir dire the witness outside the jury’s
presence.
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barrels, DVIS barrel validation, and 40 Smith & Wesson cartridge case isolated pair
study. According to Laporte, validation studies are designed to test whether fired
evidence that is matched to a firearm could have come from another firearm.
Laporte testified that she is published in the AFTE journal. Laporte explained
that she is a member of AFTE and the Southwestern Association of Forensic
Scientists, which are professional organizations, and she has attended professional
conferences that pertain to firearms examination. Laporte testified that she has
testified as an expert in firearms approximately fifteen times. According to Laporte,
she bases the opinions in her reports on her training, which is validated through the
scientific community.
The defense then took Laporte on voir dire. During voir dire, Laporte
explained that ballistics study follows the AFTE theory of identification and
involves determining whether fired evidence can be linked to the firearm that fired
it based upon “the markings that are present from the firearm due to manufacturing.”
Laporte stated, “[I]f I determine that [fired evidence] goes to one gun, then it’s a
practical impossibility that it could go to any other firearm.” Laporte explained that
“practical impossibility” is the accepted term for describing the exclusion of all other
firearms. Laporte stated that the scientific theory is subject to peer review. Laporte
explained that the report she proposed to offer and the evidence upon which it is
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based was reviewed by her peers. When asked to disclose any known potential rate
of error, Laporte explained, “There is no real known rate of error in firearms. They’re
working on it right now. . . . As far as my errors, I have never made an error on a
proficiency test or competency test. So my rate would be zero.” Laporte stated that
her body of work and the theories behind it are generally accepted.
After taking Laporte on voir dire, defense counsel asked that Laporte’s
testimony be barred, stating “I fear a couple of things could happen here with the
inability to determine clear potential rates of error on the scientific theory[.]”
Defense counsel further objected, “under Daubert we’re missing one tenet, one tenet
of the support [in] that we don’t know what this error rate is because there really
isn’t one to declare it. . . . This is done very subjectively, Judge. And this is . . . much
more prejudicial . . . than it is probative to the State’s case.” In response, the
prosecutor stated that Laporte had explained that based on her training, experience,
and articles that she has reviewed, written, and published, “this is the way that her
forensic science works.” The prosecutor pointed out that Laporte had previously
testified fifteen times, and “even though . . . this type of science has somewhat
subjective content to it, she is peer-reviewed by someone else who is similarly
trained, and that this science is accepted in our community and is validated
throughout the country.”
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The trial judge overruled defense counsel’s objections under both Rule 403 of
the Texas Rules of Evidence and Daubert. Laporte then testified that for Morones’s
case, she reviewed six firearms, fired cartridge cases, bullets, and bullet fragments.
Laporte explained that after testing and examining the items, she prepared a report,
in which she concluded that, “based on agreement of the combination of individual
characteristics and all discernible class characteristics[,]” three of the items had been
fired from the M1 30 carbine rifle.
During cross-examination, when asked to define toolmark, Laporte testified
that, although she really does not “deal in toolmarks,” “a toolmark would be the
marks that are imparted on the bullet or the cartridge case.” Laporte testified, “I’m a
firearms examiner. I’m not a firearms and toolmark examiner.” Laporte further
explained, “Ballistics is just not what we do. The scope of what I do is under a
microscope. . . . Ballistics is a totally different area.” According to Laporte, the
marks on the fired materials she tested were “consistent in class characteristics with
the Universal M1[,]” and she determined that the chamber marks of the materials
identified them as having been fired from the M1.
Sarah McCoy testified that she was in the car with Morones during the
offense, and she explained that Morones was sitting in the backseat behind the
passenger seat. According to McCoy, when a Montgomery County Constable
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attempted to pull the car over, Morones stated that he intended to shoot the constable.
McCoy testified that Morones then rolled the window down, hung out the back
passenger-seat window, and shot at the police. McCoy explained that Morones
eventually jumped out of the vehicle, and the car crashed. The State rested at the
conclusion of McCoy’s testimony.
MORONES’S ISSUE
In his sole appellate issue, Morones complains that the trial court abused its
discretion by admitting Laporte’s expert testimony and exhibits regarding toolmark
identification, which is a form of firearm identification evidence, because the
scientific techniques used were not shown to be reliable. We review the trial court’s
admission of expert testimony for an abuse of discretion. See Coble v. State, 330
S.W.3d 253, 272 (Tex. Crim. App. 2010). Assuming without deciding that the trial
court erred by admitting the complained-of testimony from Laporte, we will turn to
the issue of whether such alleged error is reversible.
Because the alleged error is not constitutional, we will reverse the trial court’s
judgment only if the error affected Morones’s substantial rights. See Tex. R. App. P.
44.2(b). “A substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury’s verdict.” Schmutz v. State, 440 S.W.3d
29, 39 (Tex. Crim. App. 2014). Substantial rights are not affected by the erroneous
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admission of evidence if, after examining the record as a whole, the appellate court
has fair assurance that the error either did not influence the jury or had only a slight
effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). The presence
of overwhelming evidence of guilt may play a determinative role in resolving the
issue of harm. Id. at 356.
Assuming without deciding that the trial court erred by admitting the
complained-of testimony from Laporte, the jury heard testimony from two police
officers who were chasing the Cadillac that Morones was the individual who fired
shots during the pursuit. In addition, the trial court heard testimony from McCoy, in
which she stated that Morones was sitting in the backseat on the passenger side and
identified Morones as the shooter. Moreover, as discussed above, Morones was
charged with four offenses: unlawful possession of a firearm by a felon, evading
arrest or detention with a vehicle, aggravated assault against a public servant, and
possession of a controlled substance with intent to deliver or manufacture, and the
trial court assessed punishment at imprisonment for life. The act of possessing or
using a firearm is not an element of evading arrest or detention or possession of a
controlled substance with intent to deliver or manufacture. See Tex. Penal Code Ann.
§ 38.04(a), (b) (West Supp. 2016); Tex. Health & Safety Code Ann. § 481.112(a),
(d) (West 2017). Furthermore, as to the offenses of aggravated assault against a
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public servant and unlawful possession of a firearm by a felon, the State was not
required to prove that Morones fired a particular firearm. See Tex. Penal Code Ann.
§ 22.01(a)(2), (b)(1) (West Supp. 2016); Id. § 22.02(a)(2), (b)(2) (West 2011); Id.
46.04(a)(1) (West 2011).
For all of these reasons, we have fair assurance that the admission of Laporte’s
testimony either did not influence the jury or had only a slight effect and, therefore,
did not affect Morones’s substantial rights. See Tex. R. App. P. 44.2(b); Schmutz,
440 S.W.3d at 39; Motilla, 78 S.W.3d at 355. Accordingly, we overrule Morones’s
sole issue and affirm the trial court’s judgments.
AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on October 26, 2017
Opinion Delivered November 22, 2017
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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