ALLISON, MARKERRION D'SHON v. the State of Texas ( 2023 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0905-21
MARKERRION D’SHON ALLISON, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
GREGG COUNTY
MCCLURE, J., delivered the opinion of the court in which HERVEY,
RICHARDSON, NEWELL, and SLAUGHTER, JJ., joined. YEARY, J. filed a concurring
opinion. KELLER, P.J., and KEEL, J., concurred. WALKER, J., dissented.
OPINION
We granted the State’s petition for discretionary review to decide if the
Confrontation Clause was violated when an expert testified to the meaning of a slang
phrase he learned from other people. We hold the admission of the expert opinion did not
ALLISON — 2
violate evidentiary rules or Appellant’s constitutional right to confront adverse witnesses.
Therefore, we reverse the judgment of the court of appeals.
BACKGROUND
The charged offense
On September 8, 2016, complainant Jose Jimenez was alone at a house on
Clearwood Drive in Longview playing video games and smoking marihuana when
someone knocked on the door and asked for William Benicaso. Benicaso lived at the house
with Jimenez and sold marihuana. Jimenez presumed the person was there to buy
marihuana, so Jimenez told the person that nobody else was in the house and that there was
no marihuana in the house either.
Later that night, Jimenez was still alone at the house when he heard another knock
on the door. Jimenez testified, “I had a really funny feeling as if something bad was going
to happen.” When he opened the door, he saw the end of a shotgun barrel. Jimenez tried to
close the door, but four individuals forced their way inside.
One of the individuals hit Jimenez on the back of the head with a pistol, asking
where “it” was. Jimenez told them that “there wasn’t anything.” He testified that he did not
know exactly what they wanted, but “figured it was money or drugs.” The four individuals
proceeded to “ransack” the house, at one point forcing Jimenez to flip over a bed in one of
the bedrooms.
The suspects then sent Jimenez back to the living room and ordered Jimenez to his
knees. Jimenez testified, “[T]hey started saying . . . go get T.K. . . . I want to kill this fool.”
ALLISON — 3
The individuals then told Jimenez, “[Y]ou’re going to die today. You’re going to die today
for no reason.” The last thing Jimenez recalled was the laser site of a handgun trained on
the back of his head. 1
One of the men shot Jimenez in the head. Jimenez survived, but suffered a fractured
skull causing him to experience a “brain shift” of two or three centimeters to the left.
Jimenez has skull fragments permanently lodged in his brain, permanent vision loss, and
lost “some gray matter,” which was found at the crime scene.
Jimenez described the assailants to investigators. He described one of the intruders
as wearing a mask, black, dark-skinned, “lanky,” around 5’8,” wearing dark clothing, and
no more than twenty-two years old. Although this description was consistent with
Appellant’s appearance, Jimenez was unable to identify Appellant in a photospread lineup.
Jimenez did identify two of the other individuals involved in the robbery from a
photographic lineup, however: Sean Owens-Toombs and Trekeymian Allison (referred to
as T.K.).
January 6: Subsequent arrest of 3 of the 4 suspects
On January 6, 2017, three individuals were arrested for the September 8 robbery:
R.J. (a minor), Owens-Toombs, and T.K. An arrest warrant was also issued for Appellant,
but he was not initially apprehended.
1
Jimenez testified, “I remember—I don’t know who it was, but someone had pointed a
laser site that was on a gun, you could kind of tell. Kind of left it towards my vision to where I
could see it and slowly drug it over. I could feel where it was touching the back of my head. Even
[though] they don’t emit heat, I could almost feel where it was, and after that, I just kind of woke
up on the carpet. The front door was open. I was in a pool of my own blood.”
ALLISON — 4
January 7: Jail call between Appellant and T.K.
On January 7, 2017, Appellant and T.K. spoke on a recorded telephone line while
T.K. was in jail. Appellant said the police were looking for him, and that people were
talking about the shooting. T.K. opened the call by asking Appellant, “Hey. . . What’s on
the street?” Appellant responded, “Everybody thinking, ‘Oh, shot a n****r in the head or
(inaudible).’” Appellant then referred to his mother telling him, “[Inaudible] said they came
to her house looking for me early this morning.” T.K. asked, “For what?” Appellant
responded, “You know. For that s**t.”
After a brief exchange, T.K. said, “I need you to pull a Carlos,” to which Appellant
asked, “Yeah?” T.K. answered in the affirmative. T.K. told Appellant “We all’s in there
together” to which Appellant agreed. T.K. then asked, “Why [did R.J.] turn himself in?”
T.K. told Appellant, “I’m trying to figure out where they got our name from, for real.”
Appellant answered, “I dunno. This is bulls**t.”
After another exchange in which Appellant and T.K. tried to figure out how their
names came up in the investigation, T.K. said, “Probably need you to do that Carlos for
me, put that money on the books.” T.K. continued, “These n****rs done got our, done got
our names in some bulls**t.” Appellant questioned what T.K. had just said, when T.K. told
Appellant, “That why n****rs you d- get that out the way.”
Right before ending the telephone call, T.K. reiterated, “Go on and pull that Carlos,
though,” to which Appellant responded, “Uh huh.” T.K. then ended the call by telling
ALLISON — 5
Appellant “All right. Bye. Be careful, boy.” Appellant answered, “That’s a bet.” Five times
during the call, T.K. told Appellant that he needed him to “pull a Carlos.”
January 8: Second Clearwood house shooting
The day after the phone call, on January 8, 2017, four individuals surrounded the
Clearwood Drive house. Witnesses at the house saw two men wearing ski masks at the
front door, another man hiding behind a car in the driveway, and a fourth man inside the
carport, who was identified as a black man with long dreadlocks or braids. The man with
dreadlocks fired a gun at the house. No one was injured in the shooting, although a bullet
went through a bedroom window. No one was ever charged for the January 8 shooting, but
prosecutors sought to use it to show Appellant attempted to silence witnesses to the charged
offense.
Co-defendant’s trial testimony
One of the co-defendants, R.J., testified that he participated in the robbery on the
evening of September 8, along with Appellant, Owens-Toombs, and T.K. R.J. said that he
had been to the Clearwood house on a prior occasion to buy marihuana from Benicaso,
who, according to R.J., sold “pretty good weed” at “a good price.”
On the afternoon of September 8, R.J. walked to T.K.’s house to “chill” with Owens-
Toombs, T.K., and Appellant, along with some other people he did not know. T.K.’s house
was located only a few blocks away from the Clearwood house. Sometime around six
o’clock, R.J. decided to go to the Clearwood house to buy some marihuana from Benicaso,
but when he arrived, he learned from Jimenez that Benicaso was not home. R.J. asked
ALLISON — 6
Jimenez to tell Benicaso that R.J. had come by the house, and then he left the Clearwood
house and returned to T.K.’s house.
When he arrived back at the house, Owens-Toombs, T.K., and Appellant were still
there. R.J. said that, after he informed the group that Benicaso was not home, they decided
to go back to the Clearwood house to search it for marihuana. The group gathered their
guns and drove back to the Clearwood house sometime after dark. R.J. testified that T.K.
was carrying a shotgun, Owens-Toombs was carrying a handgun with a laser on it, and
Appellant had a small handgun.
When they arrived at the Clearwood house, everyone except R.J. got out of the car.
R.J. testified that Appellant was wearing a mask. R.J. stated, “[T]hat’s how I knew it was
him.” R.J. said that none of the others were wearing a mask. When R.J. entered the house,
the first thing he saw was Appellant searching the living room. R.J. also saw blood on the
floor in the middle of the living room. R.J. said he went to look in the bathroom, which
was also in the front of the house, and began searching for the marihuana. According to
R.J., he could hear people yelling “back and forth” in one of the back rooms. While the
arguing continued, R.J. went into the living room and continued his search. R.J. said that,
by that time, Appellant had gone “deeper in the house.”
R.J. testified that he never saw Jimenez during the time he was inside the house,
which was, in his opinion, about five to seven minutes. According to R.J., he and Appellant
ALLISON — 7
exited the house before Owens-Toombs shot Jimenez. Owens-Toombs and T.K were called
as witnesses by the State, but both refused to testify. 2
Detective Juarezortega’s trial testimony
The State called Detective Armando Juarezortega of the Longview Police
Department who authenticated a video containing a custodial interview of Appellant. In
the interview, Appellant claimed that he did not know if he had been near the robbery
location on the night of the robbery. The video also contained an exchange between
Juarezortega and Appellant regarding the phrase “pull a Carlos.” Multiple detectives asked
Appellant if he knew what the term “pull up a Carlo [sic]” meant, but each time Appellant
denied knowing what it meant and told Juarezortega that he would rather save that
discussion for another day. However, Appellant seemingly corrected the detectives by
saying “to pull a Carlos,” as opposed to “Carlo.” As the interview continued, Appellant
admitted that he had talked to T.K. on the phone while T.K. was in jail. Juarezortega told
Appellant that he would hear a recording of his conversation with T.K. during Appellant’s
trial, which included T.K. asking him to “pull a Carlos,” and Appellant agreeing to do so.
Appellant repeatedly said that the words meant nothing; yet he followed this comment by
referring to the term as “slang.”
2
The trial court ruled that neither witness had a Fifth Amendment privilege and ordered
both to testify under threat of contempt. Both Owens-Toombs and T.K. refused to answer the
prosecutor’s questions. Nevertheless, it does not appear from the record that either was held in
contempt of court.
ALLISON — 8
Juarezortega then questioned Appellant about the January 8 shooting at the
Clearwood house. Appellant responded by telling Juarezortega that he wanted to see a
video of the shooting.
Detective Reed’s trial testimony
Following Juarezortega’s testimony, the State called Detective Jayson Reed who
testified as to his investigation of the term “pull a Carlos,” given the prevalence of that
term’s use during the jail call. The State offered the testimony in the attempt to prove that
Appellant participated at the second Clearwood house shooting and that it was done to
silence the witnesses to the charged offense.
In a hearing outside the presence of the jury, Detective Reed established that he had
been in law enforcement for twenty-eight years and that most of that time, his career
focused on counter-drug operations. During his counter-narcotic work, he dealt with
informants, sources, and cooperating witnesses. 3 Reed also undertook specialized training
on criminal gangs. He therefore became familiar with the use of slang terms. Reed
explained that there had been occasions when he was unfamiliar with a particular slang
term. When that happened, he would ask informants or his sources what the term or word
meant. Reed described a number of slang terms used in the narcotics world and how slang
terms are constantly changing and can vary by community.
3
Reed explained that “sources” referred to a person who does not receive anything in
exchange for the information he gives while a “cooperating witness” or “informant” receives
something in exchange for the information.
ALLISON — 9
Reed then testified to being asked by the prosecutor to research the meaning of the
phrase “pull a Carlos” and explained how he contacted one of his confidential informants
to ask what the term meant. Detective Reed had worked with this particular informant since
1998 and considered him to be credible. Detective Reed did not tell the informant why he
needed the information. Detective Reed also consulted other potential sources of
information including Officer Bethard with the Longview Police Department and
Investigator Hall Reavis with the Gregg County Criminal District Attorney’s Office. As a
result of his research, Detective Reed developed an expert opinion as to what the term “pull
a Carlos” meant: “It all boils down to basically doing a shooting. Now, I’ve gotten—it’s
either drive-by do a shooting, take care of a witness. It[] all comes around as shooting.”
Appellant objected to Reed’s testimony on Confrontation Clause grounds. The trial
court overruled the objection and found that Reed was an expert qualified to testify as to
the meaning of slang phrases including “pull a Carlos.”
The State then called Reed to testify before the jury. Reed told the jury that he talked
to the confidential informant and the two other individuals in law enforcement and they
each said they were familiar with the term and its meaning. Reed then testified, without
objection, 4 that in his expert opinion, “pull a Carlos” means “[t]o conduct a shooting of
4
Wright v. Quarterman, 470 F.3d 581, 586–87 (5th Cir. 2006) (noting that Texas law generally
requires defendant to make a specific Confrontation Clause objection to preserve such error); Lucio
v. State, 351 S.W.3d 878, 909 (Tex. Crim. App. 2011) (concluding that defendant’s objections
failed to alert trial court to any claim that State’s presentation of certain evidence violated her Sixth
Amendment right to confront witnesses against her and, thus, failed to preserve such claims for
appellate review); Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010) (holding that
Confrontation Clause claims are subject to preservation requirements under Texas Rule of
Appellate Procedure 33.1(a)(1)(A)); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App.
ALLISON — 10
some sort.” The jury convicted Appellant of aggravated robbery and sentenced him to
twenty-five years’ confinement.
COURT OF APPEALS
On appeal, Appellant argued that Reed’s testimony about the meaning of “pull a
Carlos” violated the Confrontation Clause. The Sixth Court of Appeals agreed, finding that
under the circumstances of this case, disclosure of the out-of-court statements underlying
Reed’s opinion constituted the use of testimonial statements in violation of the
Confrontation Clause. The appellate court found that the statement was procured
specifically for use against Appellant at trial and was offered solely for the truth of the
matter asserted—that to “pull a Carlos” means to shoot someone. This information was
directly relevant to the State’s theory of Appellant’s consciousness of guilt. The court also
held that the State failed to show the statement was reliable, that it was firmly rooted in a
hearsay exception, that the source was unable to testify, and on what basis he had reached
the conclusion that “pull a Carlos” meant to shoot someone. Finally, the court found, Reed
merely recited what he had learned from the cooperating source and adopted those
statements as his own. The court expressed concern that “allowing a witness to simply
parrot . . . out-of-court testimonial statements directly to the jury in the guise of expert
opinion would provide an end run around Crawford, and this we are loath to do.” Allison
2004) (holding that defendant “failed to preserve error on Confrontation grounds” by failing to
assert that objection at trial); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (“We
hold that in failing to object at trial, [defendant] waived any claim that admission of the videotape
violated his rights to confrontation and due process/due course of law.”).
ALLISON — 11
v. State, No. 06-20-00020-CR, 2021 WL 5345133 at *12 (Tex. App.—Texarkana Nov. 17,
2021) (internal quotation marks omitted) (quoting Johnson v. State, Nos. 05-09-00494-CR
& 05-09-00495-CR, 2011 WL 135897, at *4 (Tex. App.—Dallas Jan. 18, 2011, no pet.)
(not designated for publication) (discussing Crawford v. Washington, 541 U.S. 36 (2004)).
STATE’S PETITION FOR DISCRETIONARY REVIEW 5
The State’s petition for discretionary review presents novel grounds involving the
intersection of Rule 703 and the Confrontation Clause. All three grounds involve the
testimony of Detective Reed and his testimony that “pull a Carlos” means to “do a
shooting.” We will first address whether expert witnesses testifying on subject matters
within the soft sciences based on knowledge and experience are required to perform the
same level of independent testing or analysis of any hearsay information that forms the
basis of their opinion as is required of expert witnesses testifying to subject matters within
the hard sciences.
LAW & ANALYSIS
In its first ground, the State relies on Williams v. Illinois, 567 U.S. 50, 70 (2012),
arguing that the meaning of “pull a Carlos” was within Reed’s personal knowledge at the
5
This Court granted the following grounds on the State’s petition for discretionary review:
(1) Once a witness learns the meaning of a phrase from other people is the meaning of that
phrase thereafter part of the personal knowledge of the witness which the witness can then
testify to without violating the Confrontation Clause?
(2) Are non-hard science expert witnesses required under the Confrontation Clause to perform
the same level of independent testing/analysis required of hard science expert witnesses
before they can give an expert opinion based on hearsay evidence?
(3) Did the Court of Appeals err by finding harm from the admission of Detective Reed’s
testimony?
ALLISON — 12
time he testified and that there is no Confrontation Clause violation when a witness testifies
to facts within their personal knowledge.
In Williams, the defendant challenged a laboratory expert’s testimony that a DNA
report from a prior kidnapping, rape, and robbery—which was not introduced into
evidence—matched a DNA sample taken from the defendant upon his arrest on unrelated
charges. In a decision authored by Justice Alito, a plurality found there was no
Confrontation Clause violation where the report was not offered for its truth, but for the
limited purpose of explaining the basis for the assumptions underlying the expert’s
independent conclusion that the samples matched. Even if the expert report was admitted
for its truth, Justice Alito wrote, the report was not testimonial. Williams, 567 U.S. at 79(plurality opinion). The five other justices in two opinions (Justice Thomas, concurring in
the judgment, and Justice Kagan, joined by three other justices, dissenting) expressed the
position that the report was offered for its truth. Id. at 103, 132 (Thomas, J., concurring)
(Kagan, J., dissenting). Those opinions differed, however, in that while Justice Thomas
found the report was not testimonial in nature, the dissenting justices found it was. Id. at
111, 134 (Thomas, J., concurring) (Kagan, J., dissenting).
While the instant case and Williams are similar in that both cases involve testifying
experts who based their opinions on out-of-court statements that were not admitted into
evidence, Williams is of limited help as a nonbinding plurality opinion. Therefore, in our
analysis of a witness’s personal knowledge as it relates to the Confrontation Clause, we
turn to Texas Rule of Evidence 703 and Crawford v. Washington.
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Texas Rule of Evidence 703
In its second ground, the State argues that the Confrontation Clause is not violated
where an expert bases his opinion on inadmissible hearsay because that testimony is
expressly permitted by Rule of Evidence 703. Further, it argues that the appellate court’s
holding that Reed’s testimony was not “based on his own testing and/or analysis” and was
simply a “parrot” of out of court statements effectively required Reed (a non-scientific
expert) to conduct scientific testing before he could give an expert opinion. The State
complains that, in so holding, the court of appeals erroneously relied on cases involving
hard science expert witnesses testifying about matters readily subject to independent
scientific testing or analysis which is very different from the instant case involving an
expert testifying about linguistics and slang usage. The latter is a subject in which
conclusions are based on experience and training rather than formulaic scientific methods.
Rule 703 provides: “[a]n expert may base an opinion on facts or data that [he] has
personally observed. If experts in [his] field would reasonably rely on those kinds of facts
or data in forming an opinion on the subject, they need not be admissible for the opinion
to be admitted.” TEX. R. EVID. 703. Thus, the requirement of personal knowledge does not
apply to expert witnesses whose opinions and conclusions are reasonably based on facts or
data generally relied upon by experts in the particular field. Id. at 602, 703.
In Kelly v. State, we presented the standard for determining whether an expert’s
scientific opinion was reliable: (a) the underlying scientific theory must be valid; (b) the
technique applying the theory must be valid; and (c) the technique must have been properly
ALLISON — 14
applied on the occasion in question. 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). Rule
702 is not just limited to hard science experts, however. It also allows expert testimony as
to soft sciences and fields based primarily upon experience and training as opposed to
scientific methods. See Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998),
overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999) (en
banc) (disapproving of Nenno’s holding that Texas Code of Criminal Procedure article
38.22 applies only to custodial statements). Nenno recognized that soft science or non-
scientific expert testimony is held to a less rigorous standard than hard science expert
testimony. Specifically, we held:
The appropriate questions are: (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.
Nenno, 970 S.W.2d at 561. Kelly is therefore confined to the evaluation of scientific expert
testimony. Because Detective Reed’s testimony constitutes specialized knowledge of law
enforcement, not scientific knowledge, the Kelly standards for admission do not apply.
Application of Nenno
Applying the ‘soft’ science analysis of Nenno, we hold that the trial court did not err in
finding Detective Reed is an expert permitted to testify regarding the definition of “pull a
Carlos.”
(1) Whether the field of expertise is a legitimate one
While this Court has not specifically held that slang interpretation is a legitimate field
of expertise, multiple circuit courts have. See United States v. Hankey, 203 F.3d 1160, 1169
ALLISON — 15
(9th Cir. 2000) (holding “[t]his type of street intelligence might be misunderstood as either
remote. . . or hearsay. . . , but FRE 702 works well for this type of data gathered from years
of experience and special knowledge.”); see also United States v. Griffith, 118 F.3d 318,
321 (5th Cir. 1997); see also United States v. Delpit, 94 F.3d 1134, 1145 (8th Cir. 1996);
see also United States v. Quintana, 70 F.3d 1167, 1170–71 (10th Cir. 1995); see also
United States v. Boissoneault, 926 F.2d 230, 232 (2nd Cir. 1991); see also United States v.
Rollins, 862 F.2d 1282, 1292 (7th Cir. 1988); see also United States v. Hoffman, 832 F.2d
1299, 1310 (1st Cir. 1987). Importantly, Appellant does not challenge whether slang
translation is a legitimate field, only that Detective Reed does not qualify as a slang expert.
(2) Whether the subject matter of the expert’s testimony is within the scope of that field
Detective Reed was qualified to testify on this subject matter based upon his experience
and training in that he (1) had been employed with the Longview Police Department for
about twenty-eight years, (2) dealt mostly with narcotics and gang-related crimes, while
also executing warrants and gathering intelligence, (3) dealt with many informants and was
familiar with both victims and suspects involved in the narcotics trade, (4) was familiar
with the connection between drugs and other crimes, and (5) had significant knowledge of
other slang terms. While defense counsel objected that he had no formal training in slang,
we are not persuaded that Reed’s extensive experience working in large-scale drug and
gang organizations left him unqualified as a slang expert.
(3) Whether the expert’s testimony properly relies upon and/or utilizes the principles
involved in the field
ALLISON — 16
As Don Vito Corleone so aptly remarked, “I have learned more on the streets than
in any classroom.” THE GODFATHER (Paramount Pictures 1972). Detective Reed did not
attend a formal course or training in drug and gang linguistics, if such courses exist. Reed
stated that there had been occasions when he might not be familiar with a particular name,
term, event, or situation. If that happened, Reed would contact somebody in the field,
specifically, other police agencies or “somebody that knows somebody and their informant
knows somebody in between” and then locate “somebody close to let [them] know what’s
going on.” Asking others in the same field what a word means (either by consulting a
dictionary, consulting an urban dictionary, or asking someone with direct knowledge) is
one of the prevailing methods for learning what a word means. Detective Reed gave
examples of several slang terms that might be outside a layperson’s vernacular, such as
“one plug,” (a source of information); “ice,” (methamphetamine); “eight ball,” (three and
one-half grams); “teenager,” (sixteenth of a gram); “ice cream,” (methamphetamine); “hard
and soft,” (crack cocaine and powder cocaine); and “wet,” (PCP). Detective Reed has
learned the meaning of these slang drug terms over the course of conversations with others
in the field. An officer’s knowledge of the jargon in drug trade and gang activities is critical
to criminal investigations. It is unclear how one is to obtain personal knowledge of the
terminology without asking trusted sources within the trade.
We therefore find Detective Reed’s ‘soft’ science testimony permissible. Detective
Reed may not have performed scientific testing on the meaning of the phrase “pull a
Carlos” (since no such scientific testing was possible), but he did follow a widely-accepted
ALLISON — 17
course of action to determine what the phrase meant by consulting other law enforcement
personnel and informants as to the meaning of “pull a Carlos.” As a soft-science expert
witness, Detective Reed should not be required to conduct scientific testing on the
information that forms the basis of his expert opinion prior to testifying to his expert
opinion.
We now turn to the appellate court’s concern that cloaking inadmissible testimonial
hearsay in the basis for an expert opinion allows a witness to simply “parrot . . . out-of-
court testimonial statements directly to the jury in the guise of expert opinion [that] would
provide an end run around Crawford.” Allison, 2021 WL 5345133 at *12 (mem. op.)
(internal quotation marks omitted) (quoting United States v. Lombardozzi, 491 F.3d 61, 72
(2nd Cir. 2007)).
However, was Detective Reed “parroting” the out-of-court statements? The State
argues that Detective Reed did not blindly “parrot” what someone told him, but reached a
conclusion after evaluating several descriptions and synthesizing the information.
Appellant argues that there was no such interpretation here, but rather wholesale repetition
of statements from the confidential informant and law enforcement personnel. We disagree.
First, to analyze information is to “study or determine the nature and relationship of
the parts of something,” or “to subject to scientific or grammatical analysis.” Analyze,
MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/analyze
(last visited December 1, 2022). In this case, an expert conducted research in his particular
field in order to interpret the phrase “pull a Carlos.” Reed consulted with four people: one
ALLISON — 18
who did not know what the phrase meant, and three others that said the phrase meant to do
a shooting, to do a drive-by shooting, or “to take care of a witness.” 6 These responses were
not identical. After consulting with the sources, Detective Reed synthesized this
information and concluded that “pull a Carlos” meant to “do a shooting.” Reed did not
blindly recite what someone else told him, but rather investigated the meaning of the phrase
and only came to a conclusion after consulting a range of sources (including a source he
has known since 1998) to feel confident in his conclusion.
Secondly, requiring a “proving up” of street slang would be an inquest into
perpetuity. For example, if Appellant were to call the confidential informant and Officers
Bethard and Reavis as witnesses, what would prevent Appellant from demanding those
witnesses produce the origins for their definition of the phrase? 7 Appellant’s request to
6
His testimony was, “It all boils down to basically doing a shooting. Now, I’ve gotten—it’s
either drive-by do a shooting, take care of a witness. It’s[sic] all comes around as shooting.”
7
It is worth noting that nothing in the record indicates that Appellant was prevented from
calling any additional out-of-court declarants. To the contrary, Hall Reavis, Investigator with the
District Attorney’s Office, did in fact testify. In a hearing outside the presence of the jury, Reavis
testified that, in preparation for this case and the companion cases, he personally downloaded the
jail call at issue. During a trial prep conference with the trial prosecutor, Chris Bethard with the
Longview Police Department, came by the office. While the prosecutor and Reavis were
discussing the phrase ‘pull a Carlos,’ Bethard “out of the blue says, oh, that means to do a
shooting.”
Reavis then testified that while investigating an unrelated case, the same prosecutor and Reavis
were interviewing an inmate and Reavis asked the inmate if he ever heard of the phrase to pull a
Carlos. According to Reavis, the inmate immediately said the phrase meant to put a hit on a witness
or to shoot a witness to prevent someone from testifying. The State then made the name of the
inmate available to the defense and the trial court told defense counsel he could subpoena this
witness for trial. There is nothing in the record to indicate that this witness was unavailable.
As for Bethard, there is also nothing in the record to indicate that he was unavailable for defense
counsel to fully cross-examine. Bethard was listed as a State’s witness, but it does not appear he
ALLISON — 19
cross-examine the primary and secondary witnesses to prove up a definition of a word
could extend to a tertiary level and beyond. How would the court determine a reasonable
limit for such an expedition? While we recognize the appellate court’s concern about using
an expert to “work around” the Confrontation Clause, it is judicially inefficient to require
a “proving up” of street slang. In the field of slang linguistics, it is most practical to gauge
the reliability of an expert opinion under a ‘soft’ science standard found in Nenno.
The Confrontation Clause
Rule 703 and judicial economy aside, we now turn to whether Reed’s testimony was
a violation of Appellant’s right to confront witnesses. We hold that there was no
Confrontation Clause violation as his conclusion was non-testimonial and the jury heard
only the direct, in-court testimony of Detective Reed.
In Crawford v. Washington, the Supreme Court held that the Sixth Amendment
confrontation right applies not only to in-court testimony, but also to out-of-court
statements that are testimonial in nature. 541 U.S. at 51. The Confrontation Clause forbids
the admission of testimonial hearsay unless the declarant is unavailable to testify and the
defendant had a prior opportunity to cross-examine the declarant. Id.The first step in a Confrontation Clause analysis is to determine whether the
statement at issue was testimonial or non-testimonial. In Crawford, the Supreme Court
drew a distinction between the two categories, although it did not explicitly define what is
was called by the State to testify at Appellant’s trial. However, the record before us does not
indicate that defense counsel was not able to confront Bethard due to unavailability.
ALLISON — 20
considered testimonial and what is not. Id.; see Burch v. State, 401 S.W.3d 634, 637 (Tex.
Crim. App. 2013) (“While the exact contours of what is testimonial continue to be defined
by the courts, such statements are formal and similar to trial testimony.”).
The Crawford Court stated that “testimony” is “[a] solemn declaration or
affirmation made for the purpose of establishing or proving some fact.” Crawford, 541
U.S. at 51. According to the Supreme Court, an accuser making a formal statement to
government officials bears testimony in a sense that a person making a casual remark to an
acquaintance does not. Id. As examples of testimonial statements, the Crawford Court lists
affidavits, custodial examinations, depositions, prior testimony, confessions, or similar
pretrial statements that declarants would reasonably expect to be used in a prosecution. The
Supreme Court also refers to statements that were made under circumstances leading an
objective witness to reasonably believe the statement would be available for use at a later
trial. Id. at 52.
On the other hand, the Sixth Amendment does not bar the admission of non-
testimonial hearsay. Id. “An off-hand, overheard remark might be unreliable evidence and
thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to
the. . . abuses the Confrontation Clause targeted.” Id. at 51.
Was the statement “[t]o conduct a shooting of some sort” testimonial in nature?
In general, a statement is testimonial if a reasonable person would have understood
that law enforcement officers were conducting a criminal investigation and collecting
ALLISON — 21
evidence for the purpose of prosecution. See Wall v. State, 184 S.W.3d 730, 745 (Tex.
Crim. App. 2006).
Detective Reed testified that he was familiar with slang words due to his work in
the narcotics trade. He testified that if he ran across a slang term that he was not familiar
with, he would ask informants or sources what the term meant. Following this procedure
in the instant case, Reed asked four individuals if they were familiar with the phrase “pull
a Carlos.” Reed did not give a context for the phrase or otherwise tell his sources why he
was asking, nor is it apparent that any of the consultants were otherwise familiar with the
facts of this case. An informant that Reed has known since 1998 immediately told him
what the term meant. Likewise, a police officer and an investigator with the DA’s office
separately gave their interpretations of the term which were consistent with the meaning
given by the confidential informant. A fourth source did not know what the term meant.
None of the four individuals, while speaking with Detective Reed, were told that
Reed was inquiring about the meaning of to “pull a Carlos” as part of an investigation.
Instead, it was likely that the sources believed the detective was simply trying to expand
his slang-term vocabulary by establishing the meaning of some phrase that he recently
heard. Nor did any of the four individuals have any expectation that his statement would
be of later use to accuse a defendant of a crime, as he spoke informally and without
coercion. A reasonable person would not expect that simply because a law enforcement
officer asks them the meaning of a certain phrase that that question was asked in order to
conduct a criminal investigation or collect evidence for purpose of prosecution.
ALLISON — 22
Accordingly, any definition of the term “pull a Carlos” that was relayed by the
confidential informant or law enforcement personnel to Detective Reed was a non-
testimonial statement. The rule in Crawford is therefore inapplicable because the
statements were not testimonial in nature. The trial court did not err in allowing Detective
Reed to testify as to the meaning of the phrase “pull a Carlos.”
Did Detective Reed testify as to any out of court statements?
As discussed above, Texas Rule of Evidence 703 allows an expert to base his or her
opinion on inadmissible hearsay. TEX. R. EVID. 703. This is because the testifying expert’s
opinion is not itself hearsay and the testifying expert is available for cross-examination. In
this case, Appellant had the opportunity to, and did in fact, cross-examine Detective Reed.
Further, Detective Reed did not disclose the hearsay upon which his own opinion
was based. Detective Reed never testified before the jury as to what the confidential
informant and Officers Bethard and Reavis said specifically. Therefore, no out-of-court
statements were admitted at trial. Instead, the jury heard only the direct, in-court testimony
of Detective Reed that he spoke to some sources and then gave his own opinion of what
the phrase “pull a Carlos” meant. Accordingly, Detective Reed was the person “bearing
witness” against Appellant—not the people whom the Detective claimed made the original
statements. Because he was available for confrontation and cross-examination, the
requirements of the Confrontation Clause were satisfied.
Harm analysis
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Even if the trial court erred in allowing Officer Reed to testify as to the meaning of
the phrase “pull a Carlos,” Appellant was not harmed by its admission.
Standard of review
We review constitutional error in the admission of testimonial statements in
violation of the Confrontation Clause under the standard specified in Rule 44.2(a) of the
Texas Rules of Appellate Procedure. Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App.
2007); see TEX. R. APP. P. 44.2(a). Constitutional error requires reversal of the judgment
“unless the court determines beyond a reasonable doubt that the error did not contribute to
the conviction or punishment.” TEX. R. APP. P. 44.2(a).
The following factors are relevant to our analysis: (1) the importance of the out-of-
court statement to the State’s case; (2) whether the out-of-court statement was cumulative
of other evidence; (3) the presence or absence of evidence corroborating or contradicting
the out-of-court statement on material points; and (4) the overall strength of the State’s
case. Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007).
The emphasis of the harm analysis under Rule 44.2(a) is not on the propriety of the
outcome of the trial. Id. In other words, the question is not whether the jury’s verdict was
supported by evidence, but whether it is likely that the constitutional error was actually a
contributing factor in the jury’s deliberations. Id. That is, whether the error adversely
affected the integrity of the process that led to the conviction. Id.In analyzing harm, we may consider, in addition to the factors listed above and
without limitation, the source and nature of the error, the extent, if any, the error was
ALLISON — 24
emphasized by the State, and how much weight the jury might have placed on the
erroneously admitted evidence compared to the remainder of the evidence as to the relevant
element or defensive issue. Id. We must ask whether there is a reasonable possibility that
the error moved the jury from a state of non-persuasion to one of persuasion on a particular
issue. Id. Ultimately, we must be satisfied, to a level of confidence beyond a reasonable
doubt, that the error did not contribute to the conviction to conclude that the error was
harmless and affirm. Scott, 227 S.W.3d at 690.
A plurality of the court of appeals determined that the erroneous admission of
Officer Reed’s testimony was harmful constitutional error requiring reversal. Allison, 2021
WL 5345133 at *14. Justice Burgess’s concurrence would dispense with the harm analysis
in its totality since the State did not brief the issue. Id. at *18. The dissent, however,
conducted a harm analysis and would have held the admission of Detective Reed’s
statements harmless. Id. at *19.
Error was harmless
The meaning of the phrase “pull a Carlos” was offered during Detective Reed’s
testimony. Excluding Reed’s testimony, the State had a strong case against Appellant based
on the testimony of the complainant, Jose Jimenez, who gave a physical description of the
masked individual who robbed him, consistent with Appellant’s height, build, race, and
age. The State also put on the testimony of accomplice witness, R.J., who directly testified
to Appellant’s participation in the aggravated robbery and confirmed that Appellant was
the only robber who wore a mask. Further, it introduced and the recorded jail call between
ALLISON — 25
Appellant and his accomplice, T.K. in which they discussed the charged aggravated
robbery offense in terms that implicated them to the offense (referred to the complainant
by his first name, discussed the complainant being shot in the head, etc.). This evidence
weighs heavily against a conclusion that Appellant was harmed by Detective Reed’s
testimony that the term “pull a Carlos” meant to conduct a shooting.
The evidentiary value from Detective Reed’s testimony was slight as it related to an
extraneous offense. In fact, the State’s own witnesses, Detective Armando Juarezortega,
testified that the State did not have probable cause to link the second Clearwood house
shooting to a specific suspect. The trial court instructed the jury with a limiting instruction
and again in the jury charge that they could not consider this extraneous offense for any
purpose unless they were convinced beyond a reasonable doubt that Appellant committed
the second shooting at the Clearwater House. It is generally presumed that a jury follows
the trial court’s instructions. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App.
1998). There is no evidence the jury did not follow the trial court’s instructions regarding
the extraneous offenses, so we presume the jury did follow the trial court’s instructions.
Based on the foregoing, we are confident that the verdict was not attributable to
Detective Reed’s opinion as to what “pull a Carlos” meant. After carefully reviewing the
record, we hold that any error in the admission of Detective Reed’s opinion of the phrase
did not contribute to appellant’s conviction or punishment and was harmless beyond a
reasonable doubt. See TEX. R. APP. P. 44.2(a).
CONCLUSION
ALLISON — 26
We find that under the less-rigorous ‘soft’ science standards, Detective Reed
properly offered expert witness testimony concerning the meaning of a term of gang slang.
We further find the Confrontation Clause was not implicated in this case for two additional
reasons. First, the out-of-court statements were non-testimonial in nature. Second, no out-
of-court statement was admitted at trial. Finally, we find that any error in admitting the
testimony was harmless. Because the court of appeals held otherwise, we reverse and
affirm the judgment of the trial court.
Delivered: April 19, 2023
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