Blasdell, Brandon Scott ( 2012 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1892-11
BRANDON SCOTT BLASDELL, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS
MONTGOMERY COUNTY
H ERVEY, J., filed a concurring opinion in which K EASLER and
C OCHRAN, JJ., joined.
CONCURRING OPINION
I agree with the majority that the trial court abused its discretion in this case when
it excluded Dr. Rubenzer’s expert testimony on weapon focus effect on the grounds that it
was not relevant. I write separately to emphasize that Tillman 1 made it clear that for the
testimony of an eyewitness-identification expert to be relevant for purposes of Texas Rule
1
Tillman v. State, 354 S.W.3d 425 (Tex. Crim. App. 2011).
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of Evidence 702, the expert need not be able to attest that a specific eyewitness-
identification procedure actually resulted in an unreliable identification and that “it is
enough that a particular identification procedure, or the facts or circumstances attending a
particular eyewitness event, has been empirically demonstrated to be fraught with the
potential to cause a mistaken identification.” See Maj. Op. at 10.
As we explained in Tillman, the relevance inquiry of Rule 702 is whether evidence
“‘will assist the trier of fact’ and is sufficiently tied to the facts of the case.” Tillman, 354
S.W.3d at 438 (quoting Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996)). An
expert need “not testify as to every conceivable factor that might affect the reliability of
eyewitness identification present.” Id. Indeed, contrary to the notion that an expert must
testify that a particular procedure actually resulted in an unreliable identification, his
testimony need only be “sufficiently tied to the facts to meet the simple requirement that it
be ‘helpful’ to the jury on the issue of eye witness reliability.” Id.
In Tillman, the eyewitness-identification expert, Roy Malpass, discussed the
general psychology of eyewitness identification, including an explanation of his studies
and those conducted by others on the subject. “Then, Malpass responded to a series of
hypotheticals proposed by the defense, applying his knowledge of eyewitness
identification to the facts presented. . . . Malpass stated his opinion about the reliability of
the eyewitness identifications in each situation, and he identified the factors that he
believed impacted those identifications.” Id. at 438-39.
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In holding that the relevance prong of Rule 702 was satisfied, we noted that
Malpass did not testify as to the specific identification procedures in the case, nor did he
testify that those procedures actually resulted in an unreliable identification.
Significantly, we emphasized that “each hypothetical to which Malpass applied his
theories and opinions paralleled the facts . . . and the scenarios in which the eyewitnesses
found themselves.” Id. at 439 (emphasis added). And we highlighted that Malpass’s
expert testimony “was intended to educate the jury about an area in which it lacked a
thorough understanding so that it might comprehend some of the complications that may
arise.” Id. at 442.
Nowhere in our opinion did we even suggest that Malpass (or any similar expert)
had to attest that the specific identification procedures employed actually resulted in an
unreliable identification. Rather, we consistently stated that the testimony must be tied to
the facts of the case only as much as that the testimony will be “helpful” to the jury in
understanding the issue of eyewitness reliability. Therefore, it is clear from Tillman that
the relevance prong of Rule 702 is satisfied if an eyewitness-identification expert
provides the jury with additional information that “may help guide the jury in its
understanding of the standards in the area” and the potential for a particular eyewitness
procedure to cause a mistaken identification. See Tillman, 354 S.W.3d at 442.
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With these comments, I respectfully join.
Hervey, J.
Filed: December 5, 2012
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