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

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
═══════════════════════════════════════
YEARY, J., filed a concurring opinion.
Does a police officer become an “expert” in the meaning of a slang
phrase when he asks a couple of people he knows what that slang phrase
means, forms a conclusion about the meaning of that phrase from those
ALLISON – 2
conversations, and then testifies to his opinion at trial? I do not think
so.
The Court and I disagree about that matter. But I ultimately
agree with the Court that the admission of that kind of testimony was
harmless beyond a reasonable doubt in the context of this case. And for
that reason, I cannot understand why the Court expends so many pages
opining that the testimony was properly admitted. I write separately
only to explain why I disagree with the Court’s decision to affirm the
trial court’s admission of the officer’s alleged “expert” testimony.
I. BACKGROUND
Jose Jimenez lived with William Benicaso at a house on
Clearwood Drive in Longview. Benicaso was known to sell marijuana.
On September 8, 2016, Jimenez was at their home alone playing video
games and smoking marijuana when four individuals knocked on his
door and forced their way in. Jimenez saw that one of the men had a
shotgun, and one of them struck him in the back of the head with a pistol
and asked him where “it” was. Jimenez testified that he thought they
were asking about money or drugs, but he did not know for sure.
Before the men left, they ordered Jimenez to his knees in the
living room of the home, told him that he was going to die, and one of
the men shot him in the head. Jimenez did not die. He woke up some
time later in a pool of his own blood. Jimenez had suffered a fractured
skull, and some fragments of his skull were permanently lodged in his
brain. He suffered some permanent vision loss and he also lost some of
the “gray matter” from his brain.
ALLISON – 3
R.J., T.K, and Owens-Toombs were arrested for the crime, and an
arrest warrant was issued for Appellant, but he was not immediately
taken into custody. While T.K. was in jail, he spoke with Appellant on a
recorded telephone line. On the recording, T.K. can be heard telling
Appellant “I need you to pull a Carlos.” On another occasion during the
same phone call, T.K. told Appellant: “Probably need you to do that
Carlos for me, put that money on the books.” Then, just before the end
of the call, T.K. again said, “Go and pull that Carlos, though,” and
Appellant responded, “Uh huh.” In fact, on five separate occasions
during the phone call, T.K. asked Appellant to “pull a Carolos.”
The next day (after the phone call between Appellant and T.K.),
on January 8, 2017, witnesses saw four people show up at Jimenez’s and
Benicaso’s house. Two of them were wearing ski masks, one hid behind
a car in the driveway, and one made his way into the carport. The man
in the carport was identified as a black male with dreadlocks or braids.
That man fired a gun at the house. The bullet went through a bedroom
window, but no one was injured. Prosecutors attempted to use this
evidence to prove Appellant tried to silence witnesses to the offense.
After Appellant was arrested, Detective Juarezortega asked
Appellant what the phrase “pull a Carlos” meant. Appellant denied
knowing what it meant. But he did refer to the phrase as “slang.”
To explain the meaning of “pull a Carlos” at trial, the State sought
to admit “expert” testimony from Detective Jayson Reed about the
meaning of the phrase. Reed’s testimony was offered to help establish
that Appellant participated in the shooting that took place at Jimenez’s
and Benicaso’s house the day after Appellant and T.K.’s recorded
ALLISON – 4
telephone call. Outside the presence of the jury, Reed testified that he
had never been certified or qualified in any area specifically related to
slang terminology.
Reed explained that he was initially unaware of the meaning of
“pull a Carlos.” About three weeks before Appellant’s trial, however,
Reed’s wife—(who was the prosecutor on this case)—asked him to talk to
one of his sources to find out what the phrase meant. Reed then
consulted three sources: a confidential informant, a Lubbock Police
Officer named Chris Bethard, and a district attorney’s office investigator
named Hal Reavis. Reed claimed that his confidential informant told
him that “pull a Carlos” meant to “basically do[ ] a shooting” or “take
care of a witness.” Bethard and Reavis, he claimed, confirmed his
confidential informant’s understanding.
After the hearing held outside the presence of the jury, the trial
court found that Reed was an expert who was qualified to testify about
the meaning of slang phrases such as “pull a Carlos.” Appellant objected
to Reed’s testimony on four bases: (1) that Reed was not a qualified
expert; (2) that Appellant had not been permitted to cross examine the
people Reed relied upon to draw a conclusion about the meaning of the
phrase; (3) that Reed’s testimony was hearsay; and (4) that it violated
the Confrontation Clause. The trial court then overruled Appellant’s
objections, and Reed testified that, in his expert opinion, “pull a Carlos”
means “[t]o conduct a shooting of some sort.”
Appellant was convicted of aggravated robbery, but the court of
appeals reversed and remanded for a new trial after concluding that the
admission of Detective Reed’s testimony about the meaning of the term
ALLISON – 5
“pull a Carlos” violated the Confrontation Clause. Allison v. State, No.
06-20-00020-CR, 2021 WL 5345133, at *12, *14 (Tex. App.—Texarkana
Nov. 17, 2021) (mem. op., not designated for publication). This Court
then granted the State’s petition for discretionary review to consider
whether the Confrontation Clause is violated when a witness learns the
meaning of a phrase from other people and then testifies to that
meaning at trial as if from his personal knowledge. 1
II. CONFRONTATION
Texas Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form
of an opinion or otherwise if the expert’s scientific,
technical, or other specialized knowledge will help the trier
of fact to understand the evidence or to determine a fact in
issue.
TEX. R. EVID. 702. There is no question that this Rule provides for the
admission at trial of expert testimony, even when such testimony may
1 The specific grounds for review granted by the Court are the following:
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 – 6
not be based on any “scientific” field of inquiry. But must the expert
offering the testimony at least be required first to show that he is
“qualified” by “knowledge, skill, experience, training, or education” in
some “technical” or “other [field] of specialized knowledge” that will
“help the trier of fact” to “understand the evidence” or “determine a fact
in issue”? Even though the Court’s opinion decides that Detective Reed
was qualified as a “slang expert,” the way that it goes about drawing
that conclusion suggests that the answer to my question is no.
In Morris v. State, this Court addressed the admissibility of
expert testimony that was not based on “science.” 361 S.W.3d 649 (Tex.
Crim. App. 2011). The Court explained that, in Nenno v. State, 970
S.W.2d 549 (Tex. Crim. App. 1998), it had “set forth a framework for
evaluating the reliability of expert testimony in fields of study outside
the hard sciences.” Morris, 361 S.W.3d at 654. This framework, the
Court explained, “consisted of three questions: (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.” Id. According to the Court, these questions were
“simply a translation of the Kelly test appropriately tailored to areas
outside of hard science.” Id. (citing Nenno, which in turn cites Kelly v.
State, 824 S.W.2d 568 (Tex. Crim. App. 1992)). And the Court explained
that it “explicitly refrained from developing rigid distinctions between
‘hard’ science, ‘soft’ sciences, and nonscientific testimony because we
recognized that the distinction between various types of testimony may
often be blurred.” Id. at 654−55.
ALLISON – 7
The testimony at issue in Morris pertained to a practice known as
“grooming.” Id. at 656. Special Texas Ranger David Hullum testified in
that case that he “had been a Texas Ranger in Eastland for
approximately nine years,” that he “had played a major role in the
investigation of several hundred sexual offenses, approximately
seventy-five of which involved child victims[,]” and that “he had been
recognized as an expert in the trial court and other courts in connection
with sexual offenses against children.” Id. at 651. He explained that he
had experience “with determining the existence of grooming
techniques,” and “specialized experience and training in the techniques
or ploys used by child molesters against children.” Id. “[G]rooming,”
according to Hullum, is “an attempt by the offender to get the victim
compliant with what he wants to happen.” Id. He explained that
“grooming typically occurs over an extended time period and involves
spending intimate time alone with the child.” Id. He “further explained
that grooming involves an element of trust, created by an emotional tie
between the offender and the victim[,]” and “cited specific examples of
grooming such as supplying the child with alcohol or pornography,
engaging in sexual banter, giving or withholding gifts, or telling the
child about the adult’s own prior sexual experiences.” Id at 651−52. And
he responded that “a perfect example” of grooming would be “a gradual
increase in the amount of time an adult stayed each night in a child’s
bedroom, until the adult spent the entire night there[.]” Id. at 652.
All of Ranger Hullum’s testimony was grounded in his own
personal knowledge based on his own training and experiences as a law
enforcement officer. But Ranger Hullum’s testimony was nothing like
ALLISON – 8
what happened in this case. Detective Reed’s testimony nakedly relied
on information he gained from other people who could have been,
instead, called to testify in his place. And yet, the Court upholds the
admission of his opinion as “expert” testimony.
For its part, the Court identifies the legitimate field of expertise
at issue in this case as “slang interpretation.” Majority Opinion at 14.
But it points to no evidence that Reed has such expertise. It observes
that Detective Reed had “specialized knowledge of law enforcement.” Id.It further explains that Reed was “qualified to testify” on the basis of
“his experience and training,” which included: (1) his “twenty-eight
years” as an employee “with the Longview Police Department”; (2) the
fact that he “dealt mostly with narcotics and gang-related crimes, while
also executing warrants and gathering intelligence”; (3) the fact that he
“dealt with many informants and was familiar with both victims and
suspects involved in the narcotics trade”; (4) the fact that he was
“familiar with the connection between drugs and other crimes”; and (5)
the fact that he “had significant knowledge of other slang terms.” Id. at
15.
Still, the testimony Reed gave did not pertain to any matter that
he already knew about before Appellant was charged. It was about the
meaning of a specific phrase—one that, by his own admission, the
prosecutor in this case asked him to go out and learn so that he could
testify to it at Appellant’s trial. The Court admits that defense counsel
objected that Reed “had no formal training in slang.” Id. But the Court
says it is “not persuaded that Reed’s extensive experience working in
ALLISON – 9
large-scale drug and gang organizations left him unqualified as a slang
expert.” Id.
Nothing about Reed’s testimony suggests: (1) that “slang
interpretation” is a legitimate field of expertise (although it might be
one); (2) that his testimony is within the scope of that field; or (3) that
his testimony properly relies upon and/or utilizes any principles
involved in the field. See Morris, 361 S.W.3d at 654. The Court simply
observes that Reed has expertise in the way people use slang terms in
the drug trade, and personal knowledge of the meaning of certain very
commonly used phrases (but not the one at issue in this case), and from
that draws the conclusion that Reed appropriately relied upon that
expertise when he informed the jury of his opinion about the meaning of
“pull a Carlos.” See Majority Opinion at 16 (“It is unclear how one is to
obtain personal knowledge of the terminology without asking trusted
sources within the trade[,]” and “[w]e therefore find Detective Reed’s
‘soft’ science testimony permissible.”). But that is not what happened
here.
Even if Reed could legitimately testify that slang terminology is
developed and used by people involved in criminal activity to hide the
content of their communications from people whom those people do not
want to know about their activities, and even if he could properly testify
about the meaning of certain commonly used phrases other than the one
at issue in this case, that is not the disputed testimony in this case. In
this case, Reed purported to render an opinion about the meaning of a
particular slang phrase used by specific people that he did not know the
meaning of before Appellant was charged. At the same time, he
ALLISON – 10
identified no “principles” by which the meaning of such unknown slang
terms used by people involved in crime can be interpreted. Nor did he
explain what principles he relied upon in this case to decipher the
meaning of the slang phrase he purported to interpret—other than to
ask a confidential informant. Instead, he relied on the fact that he is an
experienced police officer and offered an opinion based on what he
learned from conversations he had with other people outside of court.
I do not believe the Court’s opinion sets a precedent that the Court
will want to follow in different circumstances. Imagine, for instance, a
case in which the State seeks to produce evidence that a defendant was
at the location of a crime scene at the time that a crime happened. The
prosecutor in that case encourages a police officer to ask around about
where the defendant was on the date and time of the offense. The
prosecutor then calls the officer as an expert, at trial, in determining the
location of individuals at particular moments in time, due to his
extensive experience in law enforcement investigations. Then, after the
officer testifies that he asked a confidential informant and some other
law enforcement officers what they thought, the officer testifies at trial
to his “expert” opinion that the defendant was at the scene of the crime.
I do not think the Court would approve of admitting that officer’s opinion
as expert testimony. But that is essentially the same thing the Court
does today. 2
2 For that matter, the Court could also, relying on today’s precedent,
approve of expert testimony from an officer that a particular person was the
trigger man in a shooting based on information the officer gained from a
confidential informant. The Court could justify that decision by concluding that
the officer is an expert in criminal investigations, and that such experts
ALLISON – 11
This Court has said that the trial court’s role as “gatekeeper” in
the area of scientific evidence requires it to “ensure that evidence that
is unreliable because it lacks a basis in sound scientific methodology is
not admitted.” Coble v. State, 330 S.W.3d 253, 273 (Tex. Crim. App.
2010). The trial court’s “gatekeeper” role also applies, the Court has
suggested, in cases involving the presentation of non-scientific expert
evidence. See Morris, 361 S.W.3d at 654−55 (“we [have] also explicitly
refrained from developing rigid distinctions between ‘hard’ science, ‘soft’
sciences, and nonscientific testimony”). So, the trial court’s
“gatekeeping” function should remain the same whether the court is
examining scientific or nonscientific expert opinion testimony.
But the trial court did not fulfill its “gatekeeping” function here.
Reed may have had law enforcement experience, but he demonstrated
no specialized knowledge of, or special ability to decipher, the meaning
of the phrase “pull a Carlos” as used by T.K. in his recorded conversation
with Appellant. Reed simply asked a “confidential informant” what that
person thought it meant, confirmed that person’s conclusion with a few
more people employed in law enforcement, and then told the jury what
he concluded the slang phrase meant based on those conversations. As
the court of appeals noted, only the “confidential informant” would have
been able to say “why, when, how, and on what basis he had reached the
conclusion that ‘pull a Carlos’ meant to shoot someone.” Allison, 2021
WL 5345133, at *11. Admitting Reed’s testimony as that of an “expert”
permitted the State to deprive Appellant of the opportunity to confront
regularly rely on information from confidential informants to determine who
is responsible for a crime.
ALLISON – 12
and cross-examine the witnesses Reed relied upon to develop his
opinion.
In my view, the Court does not properly hold the trial court
responsible for failing to fulfil its expert testimony “gatekeeping”
function. Instead, by relying upon the mirage of expert opinion
testimony, the Court approves the trial court’s admission of testimony
in violation of Appellant’s Sixth Amendment right to confront the
witnesses against him. See U.S. CONST. AMEND. VI (“In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him”). Nor would it help to shift the focus and
argue that this testimony might have been admissible as lay opinion
testimony. Our Rules of Evidence permit an expert to rely upon hearsay
“if [it is] of a type reasonably relied upon by experts in that field of
expertise.” TEX. R. EVID. 703; Ramirez v. State, 815 S.W.2d 636, 651
(Tex. Crim. App. 1991). But no such exception is apparent in the Rules
for opinions offered by lay witnesses. See TEX. R. EVID. 701.
I do not mean to suggest that no one could ever be properly
qualified at trial as an expert in deciphering the meaning of slang
phrases. 3 An expert properly qualified could even presumably render a
reliable opinion on the meaning of a particular slang phrase. The expert
doing so would be expected to develop his opinion with reference to his
own experience in the field and/or by identifiable principles relied upon
3 There are, after all, people who have been able to decipher the
meaning of hieroglyphics created thousands of years ago. And that great feat
was not accomplished without a great deal of experience, insight, and effort.
See Andrew Robinson, Cracking the Egyptian Code: The Revolutionary Life of
Jean-Francois Champollion (Oxford University Press 2012).
ALLISON – 13
by other experts in that field, and of course applied appropriately in the
case at issue. I just do not believe the State properly demonstrated that
Detective Reed’s testimony about the meaning of “pull a Carlos”
constitutes reliable expert testimony in this case.
The Court points to other cases in which courts have allowed
similar testimony, such as United States v. Griffith, 118 F.3d 318 (5th
Cir. 1997). See Majority Opinion at 14. But in Griffith, as in the other
cases pointed to by the Court, the law enforcement personnel who
testified to the meaning of slang terms seemed to have discerned the
meaning of those obscure words and phrases from their own experiences
working to frustrate the criminal activities of persons involved in the
illegal drug trade. Never were those law enforcement personnel
specifically asked to go out and learn the meaning of a word or phrase,
exclusively to develop an opinion about its meaning, so that the opinion
could be used against a particular defendant at his trial. Detective Reed
did not learn the meaning of the phrase “pull a Carlos” over the course
of his many years as a law enforcement officer. He developed his opinion
about the meaning of that phrase after being asked by the prosecutor in
this case to learn the meaning of the phrase so that it could be presented
against Appellant at his trial.
It is true that the “Advisory Committee Notes” to the Federal
Rules of Evidence pertaining to Federal Rule of Evidence 702 explain
the following:
[W]hen a law enforcement agent testifies regarding the use
of code words in a drug transaction, the principle used by
the agent is that participants in such transactions
regularly use code words to conceal the nature of their
activities. The method used by the agent is the application
ALLISON – 14
of extensive experience to analyze the meaning of the
conversations. So long as the principles and methods are
reliable and applied reliably to the facts of the case, this
type of testimony should be admitted.
Advisory Committee Notes, Federal Rule of Evidence 702,
https://www.law.cornell.edu/rules/fre/rule_702 (last referenced on April
11, 2023) (emphasis added). Thus, the Advisory Committee Notes seem
to approve of an officer relying on his extensive experience to explain the
meaning of a word or phrase he has come to understand. But they do not
seem to approve of, or even to contemplate, the admission of testimony
by a law enforcement officer who, on an isolated occasion, is specifically
asked to go out to discover the particular definition of a word or phrase
in order to use that definition against a particular defendant in a
particular trial. That officer’s testimony is not based on his extensive
experience. It is based on hearsay from other persons who happen to
know the meaning of a particular slang term. Failure to honor a
defendant’s insistence that those other persons be produced to testify
constitutes a violation of his right to confront the actual source of that
information at his trial. Plainly speaking, the way I see it, I agree with
the court of appeals that the trial court erred by admitting Detective
Reed’s opinion testimony.
III. HARM
This Court also granted discretionary review to consider whether
the admission of Reed’s testimony was harmful. Our rules provide that,
because the error was constitutional, the trial court’s judgment “must”
be “reversed” unless it can be determined “beyond a reasonable doubt
that the error did not contribute to the conviction or punishment.” See
ALLISON – 15
TEX. R. APP. P. 44.2(a). So, unless we are convinced beyond a reasonable
doubt that the error did not contribute to the conviction or punishment,
we must reverse.
After considering Reed’s testimony in the context of all of the
evidence admitted at Appellant’s trial, I agree with the Court that it did
not affect either his conviction or punishment. In my view, the jury could
have, all on its own, understood the basic import of the phrase “pull a
Carlos” from the context in which that phrase was used in the recorded
conversation itself—even without Reed’s explanation of its meaning.
And I am also persuaded by the dissenting Justice in the court of appeals
who explained that Reed’s testimony on the meaning of “pull a Carlos”
was “unimportant for the State to advance its overall theory—that
Allison participated in the aggravated robbery on September 8[,]” and
that “the State had no real need for Reed’s testimony” in its effort to
prove Appellant guilty of participating in that offense. Allison, 2021 WL
53451332, at *18 (Stevens, J., dissenting). Reed’s “expert” testimony
simply does not appear to be the kind of evidence that would move the
needle one way or the other on either guilt or punishment. And so, like
the Court, I conclude beyond a reasonable doubt that it was harmless.
TEX. R. APP. P. 44.2(a).
IV. CONCLUSION
The court of appeals was correct, in my view, to find that the trial
court erred by admitting Detective Reed’s opinion testimony about the
meaning of the phrase “pull a Carlos.” Doing so violated Appellant’s
right to confront and cross-examine his accuser. But the court of appeals
ALLISON – 16
was wrong to find Reed’s testimony harmful. I agree with this Court that
the testimony at issue here was harmless.
Because I disagree with this Court’s opinion to the degree that it
holds that Detective Reed’s opinion testimony was properly admitted, I
respectfully concur only with its judgment.
FILED: April 19, 2023
PUBLISH