(1) The Court of Appeals committed error by incorrectly applying the law for admissibility of expert opinion testimony in concluding that the trial court did not abuse its discretion in allowing the testimony. The ruling conflicts with the opinion of the Court of Criminal Appeals in the issue in Layton v. State, 280 S.W.3d 235, 241 (Tex.Crim.App.2009), which states that the party offering expert testimony must prove that the expert testimony being offered is reliable and relevant by clear and convincing evidence, and Gobert v. State, AP–76,345, 2011 WL 5881601 (Tex.Crim.App. Nov. 23, 2011) cert. denied, ––– U.S. ––––, 133 S.Ct. 103, 184 L.Ed.2d 47 (2012); Coble v. State, 330 S.W.3d 253, 277 (Tex.Crim.App.2010), holding that expert testimony is not admissible when the offering party provides no scientific research or studies to support her idiosyncratic methodology.The ruling also conflicts with the opinion of the Court of Criminal Appeals in Leonard v. State, 385 S.W.3d 570, 582 (Tex.Crim.App.2012), which holds that Tex.R.Evid. 702 and 703 do not allow inadmissible evidence to support an expert opinion unless it is reasonably relied upon by experts in the particular field, and reasonable reliance does not exist if the evidence would not pass the reliability test of Tex.R.Evid. 702.
(1) The Court of Appeals committed error by incorrectly applying the law for admissibility of expert opinion testimony in concluding that the trial court did not abuse its discretion in allowing the testimony. The ruling conflicts with the opinion of the Court of Criminal Appeals in the issue in Layton v. State, 280 S.W.3d 235, 241 (Tex.Crim.App.2009), which states that the party offering expert testimony must prove that the expert testimony being offered is reliable and relevant by clear and convincing evidence, and Gobert v. State, AP–76,345, 2011 WL 5881601 (Tex.Crim.App. Nov. 23, 2011)cert. denied, ––– U.S. ––––, 133 S.Ct. 103, 184 L.Ed.2d 47 (2012) ; Coble v. State, 330 S.W.3d 253, 277 (Tex.Crim.App.2010), holding that expert testimony is not admissible when the offering party provides no scientific research or studies to support her idiosyncratic methodology. The ruling also conflicts with the opinion of the Court of Criminal Appeals in Leonard v. State, 385 S.W.3d 570, 582 (Tex.Crim.App.2012), which holds that Tex.R.Evid. 702 and 703 do not allow inadmissible evidence to support an expert opinion unless it is reasonably relied upon by experts in the particular field, and reasonable reliance does not exist if the evidence would not pass the reliability test of Tex.R.Evid. 702.
He was sentenced to death. Gobert v. State, No. AP-76,345, 2011 WL 5881601, at *3 (Tex. Crim. App. Nov. 23, 2011).
In the ensuing appeal, the State acknowledged that Merillat had provided incorrect testimony, but both the State and Estrada agreed that the error had been unintentional and stemmed from a change in TDCJ regulations that took effect about three months before Merillat testified. Id. at 287; see also Gobert v. State, No. AP-76,345, 2011 WL 5881601, at *6 (Tex. Crim. App. Nov. 23, 2011) (not designated) (referring to Merillat's testimony in Estrada as “unintentionally inaccurate”). But based on the incorrect testimony given in 2007, the TCCA ordered a new punishment hearing, finding that a “fair probability” existed “that [the defendant's] death sentence was based upon Merillat's incorrect testimony as evidenced by the jury's notes.” Id.
In another case, the Texas Court of Criminal Appeals observed that it had upheld Merrillat's testimony as reliable and relevant to the future dangerousness issue concerning the opportunities for violence in prison society, however, it had remanded Estrada for a new punishment phase due to Merillat's "unintentionally inaccurate testimony concerning reclassification of capital-murder inmates." Gobert v. State, No. AP-76,345, 2011 WL 5881601, at *6 (Tex. Crim. App. 2011).
In another case, the TCCA noted that it had upheld Merrillat's testimony as reliable and relevant to the future dangerousness issue concerning the opportunities for violence in prison society, however, it had remanded Estrada for a new punishment phase due to Merillat's "unintentionally inaccurate testimony concerning reclassification of capital-murder inmates." Gobert v. State, No. AP-76,345, 2011 WL 5881601, at *6 (Tex. Crim. App. 2011). In the present case, Merillat was apparently familiar with the 2005 change in the TDCJ regulation by the time he testified in October 2007.
This Court affirmed applicant's conviction and sentence on direct appeal. Gobert v. State, No. AP-76,345 (Tex. Crim. App. Nov. 23, 2011)(not designated for publication). Unless otherwise indicated, all references to Articles are to the Texas Code of Criminal Procedure.