No. 09-09-00286-CR
Submitted on September 15, 2010.
Opinion Delivered October 6, 2010. DO NOT PUBLISH.
On Appeal from the 9th District Court, Montgomery County, Texas, Trial Cause No. 07-11-11972 CR.
Before GAULTNEY, KREGER, and HORTON, JJ.
HOLLIS HORTON, Justice.
A jury found Brandon Scott Blasdell guilty of aggravated robbery. The jury then assessed Blasdell's punishment at thirty years' confinement. In a single issue, Blasdell contends the trial court erred by excluding his expert's testimony on eyewitness identification as related to the "weapon focus effect." We affirm the trial court's judgment.
Background
On the evening of February 11, 2007, Katy Hadwin stopped at a gas station to get gas. She got out of her car with her keys and locked her purse inside her car. Before she was able to purchase gas, a man approached her, stuck a gun in her face, and demanded her purse. Katy testified that the man had light colored eyes and a "unibrow." She also stated that the man did not have a beard. Katy attempted to give the man her debit card, but he continued to demand that she give him her purse. After Katy unlocked her car and gave him her purse, the man walked to his "older-model" white truck and left. Katy left the gas station, but returned after she called 911. The police officers met her at the gas station, and she explained to them what had happened. She also provided them with the man's description. Approximately a week after the robbery, Katy met with a detective and filled out a suspect description form. Katy identified Blasdell as the perpetrator from a photographic lineup. When she picked Blasdell out of the photographic lineup and when she identified Blasdell at trial, Katy maintained that she was "100 percent sure" that Blasdell had robbed her, because she could not "forget his face." Standard of Review and Applicable Law
We review a trial court's decision to exclude an expert's testimony for an abuse of discretion. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). If the trial court's ruling lies within the zone of reasonable disagreement, the trial court's ruling will not be reversed on appeal. Id. Texas Rule of Evidence 702 governs the admission of expert testimony. Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000). Rule 702 provides: "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." TEX. R. EVID. 702. The proponent of the expert testimony must show by clear and convincing proof that the evidence he seeks to introduce is sufficiently relevant and reliable to assist the trier of fact in accurately understanding other evidence or determining a fact at issue. Weatherred, 15 S.W.3d at 542. To be relevant, the expert must sufficiently tie pertinent facts of the case to the scientific principles, which are the subjects of the testimony, for the testimony to help the trier of fact resolve the issues in dispute. Salazar v. State, 127 S.W.3d 355, 360 (Tex. App.-Houston [14th Dist.] 2004, pet. ref'd) (citing Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996)). Expert testimony addressing the reliability of eyewitness identification is a "soft science;" as such, the proponent of the evidence must show that (1) the field of expertise involved is legitimate, (2) the subject matter of the expert's testimony is within the scope of that field, and (3) the expert's testimony properly relies upon or utilizes the principles involved in that field. State v. Medrano, 127 S.W.3d 781, 784-86 (Tex. Crim. App. 2004); Weatherred, 15 S.W.3d at 542. Under the Texas Rules of Evidence, the facts in a particular case upon which the expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. TEX. R. EVID. 703. These facts need not be admissible in evidence if they are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject. Id. Analysis
Blasdell offered Dr. Rubenzer as an expert on eyewitness identification. Dr. Rubenzer testified during a Daubert hearing outside the presence of the jury. Dr. Rubenzer is a board-certified forensic psychologist. He explained that he had read approximately eighty-five to ninety articles in the area of eyewitness identification, but he agreed that he had not authored any peer-reviewed articles or conducted his own studies in the area. Dr. Rubenzer further testified that he had testified as an expert on eyewitness identification in other cases. In preparation for his testimony in Blasdell's case, Dr. Rubenzer reviewed the photographic lineup and the suspect description form completed by Katy. He also stated that he had discussed the "circumstances of the identification and the crime itself" with defense counsel. However, Dr. Rubenzer acknowledged that he did not interview Katy, Blasdell, or the detective that conducted the photographic lineup. Dr. Rubenzer further explained that he was not present during the testimony of various witnesses who had testified during the trial. Additionally, Dr. Rubenzer commented that he "hope[d] to be informed more about the procedures the police actually followed in the case" through "hypothetical questions" from counsel. After the trial court requested that he give more specific testimony on how his opinions related to the facts of the case, Dr. Rubenzer addressed photo spread identifications, "cross-race" identifications, and the "weapon focus effect." Dr. Rubenzer explained the "weapon focus effect" as "a tendency, when there is a weapon involved, particularly in brief encounters, for the weapon to essentially attract attention away from the perpetrator's face and, by doing so, result in lesser accuracy for the identification." When asked by the trial court whether Dr. Rubenzer had an opinion about whether the "weapon focus effect" "played a role in this case or just that it could because we know generally that's something that happens," Dr. Rubenzer replied, "I'd say it would have to be a `possibly.'" At the conclusion of the hearing, the trial court ruled that Dr. Rubenzer could testify about the various aspects of photographic lineups and "cross-race" identifications. However, the trial court ruled that Dr. Rubenzer's testimony about the "weapon focus effect" was inadmissible. In explanation of its ruling, the trial court stated: "[E]ither [Dr. Rubenzer] doesn't have an opinion or his opinion is not relevant such that it would provide, as the cases say — provide information that the jury doesn't have anyway." The trial court added that Dr. Rubenzer's opinion testimony about the "weapon focus effect" would not assist the trier of fact and that the testimony was not sufficiently tied to the facts of this case. When deciding whether a trial court abused its discretion in refusing to admit evidence under Texas Rule of Evidence 702, we consider both the relevance of the evidence and its reliability. See Jordan, 928 S.W.2d at 555. To be relevant, the expert's testimony must "assist the trier of fact" by relating to a fact in issue and by being sufficiently tied to the facts of the case. Id. "The inquiry is not whether there are some facts that the expert failed to take into account, but whether the expert took into account enough pertinent facts to be of assistance to the trier of fact." Baldree v. State, 248 S.W.3d 224, 229-30 (Tex. App.-Houston [1st Dist.] 2007, pet. ref'd) (citing Jordan, 928 S.W.2d at 556). Thus, as a reviewing court, we examine whether the expert's testimony is sufficiently tied to the pertinent facts of the case and to the scientific principles about which he was to testify. Id. at 230 (citing Morales, 32 S.W.3d at 866; Jordan, 928 S.W.2d at 555 ("Establishing this connection is not so much a matter of proof, however, as a matter of application.")). Here, Dr. Rubenzer did not commit to an opinion that the "weapon focus effect" had impacted Katy's identification of Blasdell. As a juror could have just as easily concluded that the gun possibly impacted Katy's ability to accurately identify the man who had robbed her, Dr. Rubenzer's testimony about the "weapon focus effect" was not relevant to the juror's resolution of the issues. See Baldree, 248 S.W.3d at 230; Salazar, 127 S.W.3d at 360. Absent a showing that the expert's testimony is "sufficiently tied" to the pertinent facts of the case, the expert's testimony is not relevant and does not "assist the trier of fact." See Jordan, 928 S.W.2d at 555-56; Salazar, 127 S.W.3d at 360. We agree with the trial court's conclusion that Blasdell failed to meet his burden of demonstrating by clear and convincing evidence that Dr. Rubenzer's testimony about the "weapon focus effect" was relevant. Without tying the general background on the topic to an opinion pertinent to Katy's identification of Blasdell, the trial court could have reasonably concluded that Dr. Rubenzer's testimony concerning the "weapon focus effect" would not assist the trier of fact. See Jordan, 928 S.W.2d at 555; Salazar, 127 S.W.3d at 360. Accordingly, excluding Dr. Rubenzer's testimony was within the trial court's discretion, as the admission of the testimony is within the zone of reasonable disagreement. See Weatherred, 15 S.W.3d at 542. We overrule Blasdell's sole issue and affirm the trial court's judgment. AFFIRMED.