In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-12-0323-CR
________________________
Boyd Dale Campbell, Jr., Appellant
v.
The State of Texas, Appellee
On Appeal from the 287th District Court
Parmer County, Texas
Trial Court No. 3272, Honorable Gordon H. Green, Presiding
April 3, 2013
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Boyd Dale Campbell, Jr. challenges his sentence after pleading guilty
to the offense of unauthorized use of a motor vehicle. He contends that 1) the
fingerprint expert who testified at the punishment hearing was not qualified to do so, and
2) the State failed to give timely and proper notice of its intent to use extraneous
offenses and prior convictions during the punishment phase. We affirm the conviction.
Issue 1 – Expert Witness
The State sought to qualify Joe Bill Dempsey, the Happy Chief of Police, as a
fingerprint expert. Dempsey had been in law enforcement since 1972 and an ID Tech
since 1973. As an ID Tech, he gathered fingerprints from crime scenes and classified
fingerprints on ten-print cards. He had “a couple hundred” hours of training in fingerprint
comparisons in the 1970’s and 1980’s from the FBI, the Amarillo Police Department,
DEA, and a technical school in Amarillo. He was also certified through TCLEOSE. He
had been called to testify as an expert witness twice but never actually testified.
Although he admitted having no fingerprint training in the last twenty-five years, he had
worked as chief of police, an ID Tech, and trainer of other officers with the Tulia police
department until 2006. When defense counsel asked Dempsey if he would agree that
“there’s been plenty of advancement in fingerprint technology,” the witness answered, “I
disagree wholeheartedly in that aspect of what I do. The loops, arches and whirls are
still the same. They haven’t changed. Never have, never will.” Dempsey also informed
the court that he had been trained in differentiating between good and bad fingerprints.
Appellant argues that the trial court erred in finding Dempsey an expert in the
area of fingerprint comparison because he did not consider himself one and he had
received no “training” (especially in the area of what “a good print versus a bad print” is
for over twenty years. We overrule the issue.
The decision as to whether an expert is qualified to testify is left to the sound
discretion of the trial court. Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002);
Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). Specialized knowledge may
be derived from education, practical experience, a study of technical works, or a varying
2
combination of them. Wyatt v. State, 23 S.W.3d at 27. An expert may even give an
opinion based solely on practical experience. Carter v. State, 5 S.W.3d 316, 319 (Tex.
App.–Houston [14th Dist.] 1999, pet. ref’d).
As disclosed in the record, Dempsey was trained in the area of fingerprint
examination, but had none within the last several decades. Nevertheless, during those
several decades he trained others and conducted his own fingerprint investigations on a
rather frequent basis for many, many years. His training also included training in the
area of what constituted a good print versus bad print, though not recently. And, while
the officer speculated that there may have been advancements in differentiating
between good and bad prints, nothing of record suggests what those possible “updates”
were and whether they somehow brought significant change to the area. The absence
of the latter information is important given the witness’ opinion that the basics of
fingerprint examination in which he practices (loops, whirls, and arches) have not and
will not change.
We further note that expertise may come from experience too, not simply through
undergoing formal training. Indeed, “doing” as opposed to simply attending classes is
itself highly educational. So, in view of the foregoing circumstances, we cannot say that
the decision to find Dempsey an expert fell outside the zone of reasonable
disagreement and evinced an instance of abused discretion. See Rodriguez v. State,
No. 13-98-205-CR, 1999 Tex. App. LEXIS 7957, at *10-11 (Tex. App.–Corpus Christi
October 21, 1999, no pet.) (not designated for publication) (finding the witness qualified
when he had performed fingerprint identification for the last fifteen years and performed
75-100 identifications, his education consisted of a correspondence course in the
3
1960’s and a four-hour course, and he had taught an advanced course in fingerprint
examination).
Nor does Dempsey's refusal to label himself an “expert” change our decision.
The question is one for the court to decide. It is quite conceivable that people may be
experts in a particular realm or science due to their training or experience and not
consider themselves such for whatever reason they choose. Again, the decision was
for the trial court to make, and it did not err here.
Notice of Extraneous Offenses and Prior Convictions
Next, appellant complains of the State’s failure to provide reasonable notice of its
intent to proffer evidence of extraneous offenses and prior convictions during the trial’s
punishment phase. We overrule the issue.
Regarding the extraneous offenses, he complains of lacking notice of those
described in a police report given him weeks before trial. That they were contained in
the police report given him long before trial and constituted diversions he undertook
upon stealing the vehicle and going on his multi-county joyride prevents us from
concluding that appellant was in any way surprised by their use. So, we cannot say that
he was harmed even if the trial court’s decision was inaccurate. Sharp v. State, 210
S.W.3d 835, 839 (Tex. App.–Amarillo 2006, no pet.) (holding that purported error was
harmless because the appellant did not illustrate surprise or the inability to develop a
defense).
As for the prior convictions, appellant did not deny garnering notice of them via
an amended motion to enhance punishment filed seven days before trial. He simply
complains about the timeliness of that notice. Yet, the record illustrated that one of
4
those convictions was disclosed to appellant via the State’s original motion to enhance
filed approximately nineteen days before trial. And while appellant’s counsel suggested
that the seven-day notice of the others was not enough because he needed to
investigate whether he was actually the subject of those convictions, he neither moved
for a continuance, sought leave to obtain an expert to compare fingerprints on the pen-
packets, nor explained why he could not make the requisite assessment within that
seven-day period. It could also be said that counsel had ready access to the best
source of information to begin his assessment, that source being his client. Yet, he
never represented to the court that the convictions were of another party and time was
needed to garner the tools to prove that. Given this, we cannot say that the amount of
prior notice given him was unreasonable. See Villescas v. State, 189 S.W.3d 290, 294
(Tex. Crim. App. 2006) (stating that notice of the use of extraneous offenses for
enhancement is timely when given at the beginning of sentencing if the defendant does
not suggest a successful defense and request a continuance); see also Pelache v.
State, 324 S.W.3d 568, 577 (Tex. Crim. App. 2010) (stating that a motion to enhance
filed two days before the punishment phase gave sufficient notice and did not violate
due process when the defendant did not request a continuance, appear surprised, or
argue he was unprepared to defend against them).
Accordingly, the judgment is affirmed.
Brian Quinn
Chief Justice
Do not publish.
5