Brewer, Brent Ray ( 2011 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,378
BRENT RAY BREWER, Appellant
v.
THE STATE OF TEXAS
ON DIRECT APPEAL
FROM CAUSE NO. 6997-A IN THE 47TH DISTRICT COURT
RANDALL COUNTY
K ELLER, P.J., delivered the opinion of the Court in which M EYERS, P RICE,
K EASLER, C OCHRAN and A LCALA, JJ., joined. W OMACK, J OHNSON, and H ERVEY, JJ.,
concurred.
In June of 1991, appellant was convicted of capital murder and sentenced to death.1 We
affirmed his conviction and sentence on direct appeal,2 but his sentence was later vacated by a federal
1
TEX . PENAL CODE §19.03(a); TEX . CODE CRIM . PROC. art. 37.071. Unless otherwise
indicated, all future references to articles refer to the Code of Criminal Procedure.
2
Brewer v. State, No. 71,307 (Tex. Crim. App. June 22, 1994) (not designated for
publication).
BREWER — 2
district court.3 A new punishment hearing was held in 2009, and appellant was again sentenced to
death. Direct appeal to this Court is automatic.4 Appellant raises five issues. Finding no reversible
error, we affirm.
I. BACKGROUND
On April 26, 1990, appellant and Kristie Nystrom asked Robert Laminack for a ride to the
Salvation Army, and he agreed to take them. During the drive, appellant began stabbing Laminack
while demanding his wallet. Laminack turned over his wallet, which contained $140, and appellant
and Nystrom fled from the scene. Laminack died from his injuries.
II. ANALYSIS
A. Jurisdiction
In his first issue, appellant claims that the trial court lacked jurisdiction because the trial
judge granted his motion to quash the indictment. At oral argument, appellant’s counsel conceded
this issue. He explained that, at a hearing held after the brief was filed,5 it became clear that the trial
court had orally denied the motion and that the written order purporting to grant the motion was a
clerical error. Issue one is overruled.
B. Parole Eligibility
In issues two and three, appellant complains about matters related to parole eligibility. We
shall first detail the events relating to parole eligibility that transpired at trial.
3
See Brewer v. Dretke, 2004 U.S. Dist. LEXIS 14761 (N.D. Tex. Aug. 2, 2004); Brewer v.
Quarterman, 550 U.S. 286 (2007); Brewer v. Quarterman, 512 F.3d 210 (5th Cir. Tex. 2007).
4
TEX . CODE CRIM . PROC. art. 37.0711, §3(j).
5
We had abated the appeal and remanded this case to the trial court to inquire in the matter.
BREWER — 3
1. Background
Appellant filed a motion to preclude the State from placing any information about the
applicable parole law before the jury. He contended that such information was irrelevant and
violated his rights under the due process and cruel and unusual punishment provisions of the United
States Constitution. He claimed that a parole instruction could be submitted only if requested by the
defense, and he claimed that even an instruction that told the jury not to consider parole would be
impermissible.6 The trial court granted this motion.
In a hearing outside the presence of the jury, defense counsel requested that Nystrom be
admonished not to talk about her own eligibility for parole. The prosecutor responded, “Your Honor,
the Court’s ruling was in reference to Mr. Brewer’s parole, not Ms. Nystrom’s parole.” Defense
counsel objected that appellant would be prejudiced by any mention by Nystrom of eligibility for
parole on her life sentence for the same capital murder because the jury would then know that
appellant was also eligible for parole. The prosecutor responded that evidence regarding Nystrom’s
parole eligibility was relevant to show why she was testifying at appellant’s new punishment hearing
when she did not testify at his original trial. The prosecutor also argued that it was “total
speculation” whether the jury would equate Nystrom’s parole eligibility with appellant’s. The trial
6
With respect to the latter two claims, appellant’s motion stated:
Any parole instruction requested by the State should be denied as statutorily improper
as the Texas Code of Criminal Procedure allows only a defendant to request such an
instruction. During Brewer’s original sentencing trial, the judge correctly overruled
a request by the State for the following instruction: “During your deliberations you
will not consider or discuss any possible action of the Board of Pardons and Paroles
or the Governor, nor how long a defendant would be required to serve on a sentence
of life imprisonment.”
BREWER — 4
judge asked if appellant’s objection was based on Rule 403,7 and defense replied, “Well, I maintain
it’s objectionable under the entire motion that we filed, but I think that’s certainly a component of
it.” The trial judge then overruled the objection.
The State called Nystrom as a witness. The prosecutor questioned Nystrom about the fact
that she had not testified at appellant’s earlier trial. Nystrom affirmed that, at the time of appellant’s
first trial, she had been charged with capital murder but had not been tried yet. At that first trial, she
had invoked her Fifth Amendment right not to testify. The prosecutor questioned Nystrom about
parole in the following colloquy:
Q. What is the one thing we said that we would do if you agreed to testify?
A. That you would write a letter stating that I had cooperated to the parole board.
Q. Okay. And you have—you’ve been up for parole twice. Is that correct?
A. Yes, sir.
Q. And our agreement with you is, that if you testify, we will tell the parole board
that you cooperated and testified, and that’s all we are going to do.
A. That’s it.
Q. We’re not going to go testify for you at the parole board or encourage them to give
you parole or anything else. Only that you did agree and you did cooperate and you
did testify truthfully to our knowledge?
A. Yes, sir.
Q. Is the fact that we’re willing to write such a letter to the parole board—is that the
only reason you are willing to testify now?
A. No, sir.
During argument, the prosecutor briefly referred to Nystrom’s parole eligibility in
7
TEX . R. EVID . 403.
BREWER — 5
commenting on her credibility:
[PROSECUTOR]: There’s been a little bit of new evidence in this case that nobody
ever heard before, Kristie Nystrom. And I think it helps a lot. I think it helps us
know for sure there was a plan. The other jury apparently believed there was, but
now we have even more evidence from Kristie Nystrom. Now, I realize she may
have a motive to lie to you. I realize that. She’s been up for parole twice. She’s
hoping—
[DEFENSE COUNSEL]: I’m going to object at this point and renew my previous
objection.
THE COURT: Overruled.
[PROSECUTOR]: She’s been up for parole twice and she is hoping the parole board
will hear this time that she did cooperate for the first time and testified. I understand
that. But you saw her testimony. I—I truly believe part of it is she finally wants to
try to do what is right by the Laminack family.
During deliberations, the jury sent out two notes (at the same time) inquiring about parole.
In the first note, the jury asked, “Is a life sentence ‘without chance of parole?’” In the second note,
the jury asked, “Does a life sentence constitute life without parole? Is there a possibility of parole
in the future?” After the trial judge asked for input from the parties, defense counsel moved for a
mistrial on the basis that the jury was improperly considering parole. The trial judge denied the
motion for mistrial and instructed the jury, “As to the questions you asked, please reread the charge,
and that is all I can tell you.”
2. Evidence
In issue two, appellant contends that the trial court abused its discretion in admitting evidence
that Nystrom was eligible for parole.8 In his ground and supporting argument, appellant never
8
The exact wording of his issue is:
When the offense was committed, at sentencing a capital jury could not properly
(continued...)
BREWER — 6
explains exactly why the evidence in question is inadmissible. He argues that parole eligibility is
irrelevant to the special issues, but he does not explain why the evidence that the State had agreed
to tell the parole board of Nystrom’s cooperation was irrelevant. Appellant also cites Sneed9
regarding misstatements of parole law, though he never explains how the Sneed case relates to the
issues at hand. And appellant devotes a large section of his argument to a harm analysis. But before
error can be harmful, it must be error. Arguably, appellant has failed to adequately brief this issue.10
Nevertheless, we address the merits of appellant’s complaint as best we understand it and
determine that the trial court did not abuse its discretion in admitting the evidence. The evidence
in question was relevant to the jury’s evaluation of Nystrom’s credibility as a witness. The fact that
the State would write a letter to the parole board saying that she had cooperated had some tendency
to show possible bias or interest on her part. In Coleman v. State, we said that “any and every fact
going or tending to show mental bias, interests, prejudice, or any other motive, or mental state, or
status of the witness which, fairly considered and construed, might even remotely tend to affect his
credibility should be admitted.”11 That statement is no longer unqualifiedly true, as it has been
modified by the rules of evidence, but we see no rule of evidence that would exclude the evidence
(...continued)
consider parole eligibility. And here a life sentence would mean immediate parole
eligibility. Was the admission of testimony of an accomplice’s current parole
eligibility under a capital life sentence, over objection, and in violation of a pretrial
order, an abuse of discretion, and did more than a slight effect result since the jury
notes reflected deliberation regarding appellant’s parole eligibility?
9
Sneed v. State, 670 S.W.2d 262 (Tex. Crim. App. 1984).
10
See TEX . R. APP. P. 38.1(h).
11
545 S.W.2d 831, 834 (Tex. Crim. App. 1977) (brackets and changed capitalization
omitted, emphasis in Coleman).
BREWER — 7
at issue here. If the evidence is seen as an attack on the credibility of the witness, the rules allow the
credibility of the witness to “be attacked by any party, including the party calling the witness.”12 Had
appellant, rather than the State, offered this evidence in an effort to show Nystrom’s motive for
testifying, it clearly would have been admissible.13 Furthermore, it is not uncommon for the State
to bring out on direct examination evidence that shows its own witnesses’s motive to cooperate.14
Even if we construe appellant’s complaint to embrace a Rule 403 claim, we conclude that
a violation of that rule has not been shown. Rule 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, or needless presentation of cumulative
evidence.15
The use of the word “may” in the rule was intended to confer substantial discretion on the trial
12
TEX . R. EVID . 607.
13
Billodeau v. State, 277 S.W.3d 34, 42-43 (Tex. Crim. App. 2009) (“The possible animus,
motive, or ill will of a prosecution witness who testifies against the defendant is never a collateral
or irrelevant inquiry, and the defendant is entitled, subject to reasonable restrictions, to show any
relevant fact that might tend to establish ill feeling, bias, motive, interest, or animus on the part of
any witness testifying against him.”) (allegation that child witness was biased because defendant took
away his remote-control cars); see Smith v. State, 779 S.W.2d 417, 430-31 (Tex. Crim. App. 1989)
(alleged violation of discovery order in failing to timely disclose prosecutor’s agreement to write a
letter to parole board was not a basis for reversal because defendant was able to use this beneficial
information in cross-examination of the witness); contra, Woods v. State, 152 S.W.3d 105, 111 (Tex.
Crim. App. 2004) (defendant’s offer of proof failed to establish a nexus between witness’s testimony
and witness’s prison sentence because witness was ineligible for good time and had no idea about
other potential favorable treatment).
14
See, e.g., De La Paz v. State, 279 S.W.3d 336, 345 (Tex. Crim. App. 2009).
15
TEX . R. EVID . 403.
BREWER — 8
court.16 Moreover, showing prejudice is not enough to exclude evidence under the rule; the prejudice
must be “unfair”17 and it must substantially outweigh the probative value of the evidence.18 Under
the Rule 403 balancing inquiry, the following factors may be considered: (1) how compellingly the
evidence serves to make a fact of consequence more or less probable, (2) the potential for the
evidence to impress the jury in an irrational but nevertheless indelible way, (3) the time the
proponent needs to develop the evidence, and (4) how much the proponent actually needs the
evidence to prove a fact of consequence.19
With respect to the first factor, the evidence may not have been especially probative, but it
was relevant to an assessment of the witness’s credibility. Regarding the third factor, the State
needed very little time to present the evidence. As for the fourth factor, there was another obvious
explanation for why Nystrom would testify at appellant’s second trial but not his first: Nystrom’s
own case had not been tried yet at the time of appellant’s first trial. Nevertheless, without the
information about the State’s promise to tell the parole board of her cooperation, a factfinder’s view
of Nystrom’s credibility would have been incomplete.
The most important question here is the second factor: Did the evidence have the potential
to impress the jury in an irrational but indelible way? We conclude that it did not. Even assuming
the jury understood from the evidence that appellant could be immediately eligible for parole, the
16
Powell v. State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006).
17
Martinez v. State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010).
18
See id. (“Rule 403 favors the admission of relevant evidence, and carries a
presumption that relevant evidence will be more probative than prejudicial.”).
19
Powell, 189 S.W.3d at 287; Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim.
App. 1991).
BREWER — 9
future-dangerousness issue calls upon the jury to assess whether the defendant would be dangerous
“whether in or out of prison.”20 Because a jury is already supposed to consider a defendant’s
dangerousness outside of prison, the information that the defendant may be out of prison soon, if
given a life sentence, does not really change the calculus. Moreover, because appellant was in fact
eligible for parole at the time he was sentenced at the punishment retrial,21 we are not faced with a
situation in which the jurors might have mistakenly believed that the defendant would be eligible for
parole sooner than he was.22
And, in considering whether evidence had the potential to impress the jury in an irrational
way, we must consider whether that potential irrational impact could have been prevented or
minimized by a limiting instruction.23 A limiting instruction to consider the evidence solely in
connection with Nystrom’s credibility and not to consider the question of parole with respect to
appellant’s sentence would have been sufficient to prevent the jury from considering the possibility
of parole.24 Issue two is overruled.
20
Estrada v. State, 313 S.W.3d 274, 282-83 (Tex. Crim. App. 2010). See also Williams v.
State, 273 S.W.3d 200, 234-35 (Tex. Crim. App. 2008).
21
Under the law in effect at the time the offense was committed, a capital-murder defendant
sentenced to life in prison would be eligible for parole after fifteen years. TEX . CODE CRIM . PROC.
art. 42.18, § 8(b). By the time of his punishment retrial, appellant had already served that much time.
22
Cf. Sneed, supra; Simmons v. South Carolina, 512 U.S. 154 (1994).
23
Henderson v. State, 962 S.W.2d 544, 567-68 (Tex. Crim. App. 1997); Lane v. State, 933
S.W.2d 504, 520 (Tex. Crim. App. 1996); Montgomery, 810 S.W.2d at 393.
24
Hawkins v. State, 135 S.W.3d 72, 84-85 (Tex. Crim. App. 2004); Colburn v. State, 966
S.W.2d 511, 520 (Tex. Crim. App. 1998); Brown v. State, 769 S.W.2d 565, 567 (Tex. Crim. App.
1989). See also TEX . CODE CRIM . PROC. art 37.07, § 4 (containing instructions that “[e]ligibility for
parole does not guarantee that parole will be granted” and the jury is “not to consider the manner in
(continued...)
BREWER — 10
3. Jury Instruction
In issue three, appellant contends, in the alternative, that the trial court erred in failing to give
the jury an instruction that it could not consider parole after the jury sent out a note inquiring whether
a life sentence in this case would be with or without parole.25 Although appellant concedes that he
did not request such an instruction, he contends that he was entitled to an egregious-harm review
under Almanza.26
In his motion, appellant opposed any type of jury instruction about parole—even an
instruction to not consider the possibility of parole. He is therefore estopped from now claiming that
he should have obtained such an instruction.27 It could perhaps be argued that circumstances had
materially changed since he filed his motion: evidence was introduced about Nystrom’s parole
eligibility and the jury sent out notes inquiring about parole. But the trial judge cannot have been
expected to read defense counsel’s mind and decide that appellant had changed his position. To the
(...continued)
which the parole law may be applied to this particular defendant”).
25
The exact wording of his issue is:
In the alternative to Issue Two, when the jury sent out notes showing that it was
considering parole, the trial court referred the jury to the charge, which contained
no mention of parole. The appellant, though, made no request for an instruction
precluding the jury from deliberating on the subject of parole. Was the appellant
egregiously harmed by the omission?
26
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).
27
Druery v. State, 225 S.W.3d 491, 505-06 (Tex. Crim. App. 2007) (defense counsel said
defendant was not requesting submission of lesser-included offense of murder); Ripkowski v. State,
61 S.W.3d 378, 389-90 (Tex. Crim. App. 2001) (defense request that mitigation issue not be
submitted); Prystash v. State, 3 S.W.3d 522, 531-32 (Tex. Crim. App. 1999) (defendant opposed
submission of anti-parties special issue).
BREWER — 11
contrary, given defense counsel’s request for a mistrial and his complete failure to request any sort
of curative or limiting instruction, the trial judge had ample reason to believe that appellant’s
position remained the same and that, if the trial judge were to include the type of instruction
appellant now says should have been included, appellant would likely complain of such action on
appeal. Having once told the trial judge that he opposed even an instruction to disregard parole, it
was incumbent upon appellant to inform the trial judge if the circumstances at trial had caused
appellant to change his mind on the matter.
Moreover, appellant points to no applicable statute that would entitle him to any instruction
about parole, even an instruction to completely disregard parole. Applicant would have been entitled
to a limiting instruction in the jury charge regarding the evidence of Nystrom’s parole if the evidence
had been admitted for a limited purpose, but he did not ask for a limiting instruction at the time the
evidence was admitted. “A failure to request a limiting instruction at the time evidence is presented
renders the evidence admissible for all purposes and relieves the judge of any obligation to include
a limiting instruction in the jury charge.”28 Indeed, we have said, “Trial judges should be wary of
giving a limiting instruction under Rule 105(a) without a request because a party might well
intentionally forego a limiting instruction as part of its deliberate strategy ‘to minimize the jury's
recollection of the unfavorable evidence.’”29 Issue three is overruled.
C. Challenge for Cause
In issue four, appellant contends that the trial judge erred in denying his challenge for cause
to prospective juror Dugger. Appellant claims that Dugger was challengeable for cause because she
28
Williams, 273 S.W.3d at 230.
29
Oursbourn v. State, 259 S.W.3d 159, 179 n.80 (Tex. Crim. App. 2008).
BREWER — 12
stated that a finding of intentional, deliberate murder will always entail a finding of probability of
future criminal acts of violence.30
Appellant points to the following passage in voir dire:
[DEFENSE COUNSEL]: Ms. Dugger, if we go back again to this hypothetical
defendant here, if you found that he committed this act intentionally, it wasn’t an
accident or mistake, there was no legal justification, and he did it deliberately, in your
mind would that indicate to you that he was always going to be a future danger?
[PROSPECTIVE JUROR DUGGER]: Yes.
Although there had been a substantial amount of questioning by the prosecutor and defense counsel
before this point, this passage was the last question asked in Dugger’s voir dire. Appellant had
previously questioned Dugger repeatedly about her response on the mitigation issue to a hypothetical
in which the jury had already found that the defendant intentionally and deliberately committed the
murder and that the defendant constituted a future danger,31 but the question set out above was the
first time that Dugger had been asked about whether her response to the deliberateness issue would
impact her perception of the future-dangerousness issue.
Notably, appellant did not inform Dugger that the law required that she keep an open mind
on the future-dangerousness issue even after answering the deliberateness issue “yes.” He did not
ask her whether she could follow that law and set aside any tendency to automatically believe that
30
Appellant exercised a peremptory challenge against Dugger, exhausted his peremptory
challenges, requested (and was denied) more peremptory challenges, and identified at least one
objectionable juror who sat on the jury. Appellant has therefore satisfied the traditional predicate
for showing harm from the erroneous denial of a defense challenge for cause. Freeman v. State, 340
S.W.3d 717, 731 (Tex. Crim. App. 2011).
31
The juror had indicated that she would find no mitigation under those circumstances,
regardless of any other evidence she heard, but subsequent questioning by the State rehabilitated her
on that point.
BREWER — 13
a defendant who kills deliberately would also be a future danger.
We review a trial court’s decision to deny a challenge for cause with great deference and will
reverse only when a clear abuse of discretion has been shown.32 “To establish that the challenge for
cause is proper, the proponent of the challenge must show that the venireperson understood the
requirements of the law and could not overcome his prejudice well enough to follow the law. So
before a venireperson may be excused for cause on this basis, the law must be explained to him, and
he must be asked whether he can follow that law, regardless of his personal views.”33 Appellant
failed to explain the law to Dugger or to ask whether Dugger could follow the law despite her
personal views.34 Issue four is overruled.
D. Expert Testimony
In issue five, appellant contends that the trial court erred in admitting testimony from Dr.
Richard Coons regarding appellant’s future dangerousness. Appellant relies heavily on our opinion
32
Davis v. State, 329 S.W.3d 798, 807 (Tex. Crim. App. 2010).
33
Gonzales v. State, 2011 Tex. Crim. App. LEXIS 1323, 11 (September 28). See also
Davis, 329 S.W.3d at 807.
34
See Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004) (prospective juror’s
statement during voir dire that “with a child killer or something I would vote the death penalty in a
minute” did not render him challengeable for cause because “neither party questioned [him] further
about his statement, explained to him what the law requires, or asked whether he could follow the
law despite his personal views”); Sells v. State, 121 S.W.3d 748, 759 (Tex. Crim. App. 2003)
(rejecting claim that prospective juror “was biased against the law that ‘society’ comprises persons
inside prison” because the defendant “failed to meet his burden of showing that the law was
explained to the venireperson, or that the venireperson was asked whether he could follow that law
regardless of his personal views”); Murphy v. State, 112 S.W.3d 592, 600 (Tex. Crim. App. 2003)
(prospective jurors were not challengeable based on faulty understanding of the term “probability”
because “the law was not carefully or adequately explained” to them).
BREWER — 14
in Coble v. State.35 However, appellant failed to preserve error.
To preserve error regarding the admission of evidence, a party must object in a timely fashion
and state the specific ground for objection, if the ground is not apparent from the context.36 The
ground for objection, unless apparent from the context, must be stated with “sufficient specificity
to make the trial court aware of the complaint.”37 Appellant claims that he preserved error in two
ways: (1) by filing and obtaining an adverse ruling on a motion in limine, and (2) by having a
Daubert38 hearing outside the presence of the jury. We are not persuaded.
An adverse ruling on a motion in limine does not preserve error.39 Appellant contends that
his motion—although titled a motion in limine—requested that expert predictions on future
dangerousness be excluded. Appellant seems to be suggesting that his motion was mislabeled and
was actually a motion to exclude evidence. If such were the case, the motion could preserve error
if the trial judge understood that the motion was in fact a motion to exclude evidence.40 The only
evidence appellant points to for the proposition that the trial judge understood his motion to be
something other than in limine is the motion’s language calling for the exclusion of evidence and a
35
330 S.W.3d 253, 270-80 (Tex. Crim. App. 2010).
36
TEX . R. EVID . 103(a)(1). See also TEX . R. APP . P. 33.1(a)(1).
37
Rawle 33.1(a)(1)(A).
38
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
39
Griggs v. State, 213 S.W.3d 923, 926 n.1 (Tex. Crim. App. 2007) (“A motion in limine,
whether granted or denied, preserves nothing for appellate review.”); Geuder v. State, 115 S.W.3d
11, 14-15 (Tex. Crim. App. 2003).
40
See Geuder, 115 S.W.3d at 14 n.10 (discussing Draughon v. State, 831 S.W.2d 331, 333
n.1 (Tex. Crim. App. 1992)).
BREWER — 15
written order denying the motion and showing the defendant’s exception thereto. However, the
judge’s reaction to appellant’s request for a Daubert hearing suggests the trial judge may not have
understood the motion to be something other than in limine:
[DEFENSE COUNSEL]: Your Honor, I assume they’re offering him as an expert in
the case.
[PROSECUTOR]: Indeed we are.
[DEFENSE COUNSEL]: In this case we’d ask for a 702, 705 hearing.
THE COURT: Okay. Did you wait this long to delay this thing? Tell me yes or no.
[DEFENSE COUNSEL]: No, Your Honor, I did not.
THE COURT: Okay.
Under the circumstances, we find the record to be insufficient to show that the trial judge understood
the motion to be a motion to exclude evidence rather than a motion in limine.41
But even assuming the trial court understood it as such, the motion failed to preserve error.
In Nenno, we explained that a reliability inquiry outside the area of hard science involves a three-
pronged inquiry: “(1) whether the field of expertise is a legitimate one, (2) whether the subject matter
of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony
properly relies upon and/or utilizes the principles involved in the field.”42 Appellant’s motion did
not refer to Dr. Coons but generally castigated psychiatric and psychological expert testimony on
future dangerousness as not meeting the applicable standards of reliability and relevance under Rule
41
See Draughon, 831 S.W.2d at 333 & n.1 (appellant’s motion to prevent the state from
questioning “prospective jurors concerning their attitudes toward the death penalty” was clearly not
“a request that the admissibility of evidence or disposition of other matter by the court be determined
outside the jury’s presence”).
42
Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998).
BREWER — 16
702 and as unfairly prejudicial under Rule 403. With respect to the reliability claim under Rule 702,
the motion was in essence an attack under the second prong of Nenno—whether future-
dangerousness predictions are properly within the scope of the fields of psychiatry and psychology.
Although we have held Dr. Coons’s methodology to be unreliable under Rule 702, we did so solely
on the basis of the third prong of Nenno—whether Dr. Coons’s testimony properly applied the
principles in his field. 43 There are other psychiatrists and psychologists that use methodologies for
assessing future dangerousness that differ radically from the methodology employed by Dr. Coons.44
The motion’s attack under the second prong of Nenno did not place the trial court on notice of
appellant’s current complaint relating to the third prong of Nenno. Indeed, it seems difficult to
envision how an attack under the third prong could be made as a general matter, without reference
to a specific expert witness’s anticipated testimony. The broad-based attack on all psychiatric and
psychological testimony on future dangerousness in the motion in limine simply did not preserve a
contention that Dr. Coons’s methodology in particular was unreliable,45 and appellant does not now,
in his brief, attempt to argue that all psychiatric and psychological assessments of future
dangerousness are inadmissible.
We also find the existence of a Daubert hearing to be insufficient to preserve error. A
43
See Coble, 330 S.W.3d 253, 274, 279 (Only third prong of inquiry, whether Dr. Coons’s
methodology properly relied upon the accepted principles of forensic psychiatry, was at issue, and
Court concluded “the prosecution did not satisfy its burden of showing the scientific reliability of
Dr. Coon’s methodology for predicting future dangerousness.”)
44
See Davis v. State, 313 S.W.3d 317, 353-54 (Tex. Crim. App. 2010).
45
See Roberts v. State, 220 S.W.3d 521, 532 (Tex. Crim. App. 2007) (global objection to
victim-impact testimony did not place trial court on notice that a particular item of victim-impact
testimony would be objectionable due to its unforeseeability).
BREWER — 17
hearing was held outside the presence of the jury in which Dr. Coons was extensively questioned on
his qualifications and the reliability of his testimony. At the end of the hearing, the trial judge stated:
“I’m going to hold that Dr. Coons is qualified and that the field—the psychiatric field of future
dangerousness is a valid scientific theory and that—that the technique he used to apply it was valid,
and that it was applied validly here in this Brewer case.” But appellant never lodged any objection
to the reliability of Dr. Coons’s testimony during the hearing, or, as far as we can tell, at any other
point before or during Dr. Coon’s testimony. We addressed a similar issue in Davis, where we
explained that the defendant must still lodge an objection at the Daubert hearing to preserve error:
The trial court expressly found both experts to be qualified, their methodologies to
be accepted by the relevant scientific community, and their testimony to be relevant
and reliable in helping a jury understand the issue of future dangerousness. Appellant
did not, during this hearing, lodge an objection to the testimony of these witnesses.
Defense counsel did not suggest to the trial court that the witnesses were unqualified
or the methodologies unreliable, nor did he present any evidence to that effect.
Appellant has failed to show us that he has preserved error.46
Similarly, in Neal, we explained:
Appellant filed a motion requesting voir dire of expert witnesses. The trial court
granted the motion and allowed Dr. Coons to testify after conducting a hearing on his
qualifications. Appellant did not object to the admission of Dr. Coons’s testimony
based on inadequate qualification. To preserve a complaint for appellate review, a
specific and timely objection, motion, or request must be made to the trial court. The
complaint is timely only if the party makes the complaint “as soon as the grounds for
it become apparent.” To be adequately specific, the complaint must “let the trial
judge know what he wants and why he is entitled to it.” In this case, although
appellant did request a hearing on expert qualification in the first place, he did not
object once the trial court had qualified Dr. Coons. Thus, he forfeited the right to
challenge that ruling on appeal.47
The failure to articulate an objection after the Daubert hearing could mean that appellant was
46
Davis, 313 S.W.3d at 352-53.
47
Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008).
BREWER — 18
satisfied that the State met the applicable predicate for admissibility. But even if one assumed
appellant still had an objection, one would be left with the question of what precisely the objection
was. Was appellant objecting to Dr. Coons’s qualifications, to the legitimacy of future-
dangerousness predictions within the field of psychiatry, to Dr. Coons’s particular methodology, to
whether the evidence satisfied the “fit” requirement,48 or to some combination of these?
Appellant did lodge an objection after Dr. Coons’s testimony was complete. At that time,
he objected on the basis of Rules 702 and 705 and various constitutional provisions. But that
objection, insofar as it encompassed the complaint he now urges, was not timely. An objection is
timely only if it is made as soon as the ground for objection becomes apparent.49 The ground for
appellant’s objection became apparent, at the latest, at the close of the Daubert hearing. Appellant’s
belated objection did not preserve error. And even if the objection had been timely, it was not
specific: Appellant never stated what aspect of Rule 702 he was relying upon, e.g. expert
qualifications, whether the subject matter was a legitimate part of the field, whether the expert
properly applied the principles of the field, or whether the testimony satisfied the “fit” requirement.
Issue five is overruled.
The judgment of the trial court is affirmed.
Delivered: November 23, 2011
Do not publish
48
See Tillman v. State, 2011 Tex. Crim. App. LEXIS 1343, 40-41 (October 5) (discussing
the “fit” requirement); Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000) (same).
49
Pena v. State, 2011 Tex. Crim. App. LEXIS 1319, 19 (September 28); Griggs, 213 S.W.3d
at 927.