Opinion
No. 05-05-00623-CR
Opinion issued July 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-57935-Jkq. Affirmed.
OPINION
Agapito Zuniga Rodriguez was convicted by a jury of the murder of Saturnino Hernandez, one of appellant's three roommates. See Tex. Pen. Code Ann. § 19.02(b) (Vernon 2003). The jury assessed punishment at twelve years' imprisonment in the penitentiary. In three points of error, appellant contends the evidence is legally and factually insufficient to support his conviction and the trial court erred by disallowing an expert witness to testify about witness identification. We affirm the trial court's judgment.
Another of appellant's roommates, Juan Herrera, was a co-defendant in Saturnino's murder.
Facts
Appellant shared a small apartment in Dallas with three other men: the deceased Saturnino Hernandez, co-defendant Juan Herrera, and Manuel Camargo. Maria Gamez was Manuel's girlfriend. Each Friday for almost two years, Maria and her friend Linda Contreras had picked Manuel up at his apartment and taken him to Maria's apartment in Arlington. On November 24, 2003, Maria and Linda drove to Manuel's apartment to pick him up. When they arrived, Linda parked her car in a position from which the two women could see the entrance to the apartment and the front of an adjoining patio. They saw Juan on the patio drinking beer. Maria asked Juan if Manuel was home, and was told he had not gotten home from work. As the two women waited in the car, a man, later identified as appellant, walked by the car carrying a bag. Linda asked Maria who the man was. Maria replied the man was one of Manuel's roommates coming from the laundromat. Appellant walked across the patio and into the apartment, where he put down the bag. He then walked back out onto the patio and sat down in a folding chair. Shortly thereafter, Saturnino came onto the patio. Saturnino told Juan he was tired of cleaning up his beer bottles and cans. Saturnino told Juan to clean them up now or get his "butt whipped." Juan responded, "[G]o ahead." Juan and Saturnino began to argue and the argument turned into a fight. The fight moved outside the line of vision of the two women. Appellant was still sitting in the folding chair. Although Maria and Linda lost sight of Juan and Saturnino, they could still hear "struggling." They also lost sight of appellant when he stood up and walked toward the direction of the "struggling." Shortly after Maria and Linda lost sight of appellant, they saw Saturnino come out the gate toward their car. Saturnino was holding his side, moaning, and had blood on his back. Saturnino leaned face down on the hood of a car parked next to Linda's. Linda could see him when she looked out her car window. Linda started her car, intending to leave and call the police. However, before she could back out, she saw appellant come out the gate. Appellant was holding what Linda described as a butcher knife. Appellant began to slash Saturnino with the knife. Linda was "scared to death." She honked her horn, hoping it would cause him to stop, but it did not. Linda then drove to a pay phone where Maria called 911. The next day Linda declined to view a photographic lineup, stating she "really didn't see the guy's face that good." Linda explained she was afraid of making a mistake and did not want to look at a picture and guess. At trial, however, Linda was sure appellant was the person she saw stabbing Saturnino. Linda stated, "I was sure that the gentleman [that] was carrying a laundry bag that went in, he is the same gentleman that came out and sat in the chair, and he is the same gentleman that came around the gate and stabbed that gentleman. That, I'm sure of." Linda was sure the man she saw stabbing Saturnino was the same man Maria had identified as being one of Manuel's roommates when he walked by their car carrying a bag. Appellant did not look anything like Juan. Maria testified she had seen appellant at the apartment before. She knew all of Manuel's roommates by sight, even though she did not necessarily know them by name. Juan and appellant are different in age, height, and appearance. Maria described appellant as being "taller than the other." Presumably, she meant Juan, whom she described as being "a short guy" in his fifties. Maria described Saturnino as "heavy" and around her age, which was sixty-two. When Maria saw appellant get up from the folding chair on the patio and leave her sight, she thought he was going to stop the fight between Juan and Saturnino. Instead, she heard "struggling." Later, as Saturnino was leaning on the hood of the car moaning and mumbling, Maria saw appellant walk up to Saturnino and call his name. Saturnino turned toward appellant, who then started slashing and stabbing Saturnino repeatedly with a "big, long knife." Maria identified appellant in court as the man they saw stab the deceased. Maria's testimony was also consistent with Linda's about honking the horn and going to call 911. The 911 tape was admitted into evidence. On that tape, Maria described the stabber as a tall man in his thirties. Maria can be heard telling Manuel "[t]hey're killing themselves over there, over at your house." Maria also told the 911 operator that two or three "wet backs" were stabbing another man. Linda, Maria, and Manuel went back to the scene. When they returned, Saturnino was lying on the ground in front of a beauty salon near the apartment. The paramedics and the police were there. Appellant was not there. Maria gave the police some basic information and told them there was another person in the apartment. Dallas police senior corporal Jared Honrath testified that on November 26, 2003, he was working patrol alone when he got the call of the stabbing. Honrath arrived at the scene within four or five minutes of receiving the call. He was the first officer to arrive. Dallas police officer Alan Villareal arrived next. The officers found Saturnino, who was still alive, on the ground. Honrath first went to Saturnino, who was coherent. Saturnino was bleeding profusely, the contents of his stomach were seeping out, he was gurgling, and really having problems speaking. There was blood everywhere. Honrath did not speak Spanish, but Villareal did. In Spanish, Villareal asked Saturnino who stabbed him. Saturnino replied, "Jose and Gapa." Both Honrath and Villareal heard Saturnino speak those names. The names "Jose" and "Gapa" were put in the police reports as initial suspects. An ambulance came and took Saturnino to the hospital, where he died. Before he died, however, Saturnino said to hospital staff, "My roommate stabbed me . . . a kitchen knife." The responding police officers tried to separate everyone, process the scene, look for evidence, and get basic contact information for potential witnesses and preparation of their reports. They talked to Maria and Linda. At that point, the police were investigating what they believed to be an aggravated assault. They got a description from dispatch and looked, without success, for a suspect matching that description. They also looked for, but did not find, the knife. Appellant was not at the scene. The police found a man named Juan Herrera in the apartment. However, Juan did not remotely resemble the description given on the 911 tape. Juan was bleeding, highly intoxicated, and had passed out on a bed in the apartment. The police got some information from Juan. However, at that time they thought he was a victim and did not arrest him. The police initially thought "Gapa" had attacked Juan as well as Saturnino. The police wrote two reports that night because they thought there were two different victims: Juan and Saturnino. Juan was later determined to be a co-defendant, not a victim. After working the scene for about one-and-a-half hours, Honrath went to Parkland Memorial Hospital (Parkland). An officer had been stationed there to monitor Saturnino, who was in surgery. When Honrath arrived at Parkland, he learned Saturnino had died at 9:52 p.m. The aggravated assault investigation then became a murder investigation. Honrath left Parkland, prepared the offense reports, and returned to the scene to meet with the homicide detectives. About 10:15 p.m. Honrath went to the scene with Detective Ahearn where they met with the lead homicide investigator, Detective Robert Quirk. Juan was there, but could not tell the officers who cut him. Juan refused medical treatment. At the time they believed there was only one suspect, either "Jose or Gapa." After the homicide detectives cleared Honrath, he went home. Dallas police senior corporal Alan Villareal testified he "covered" Honrath on the call. When Villareal arrived at the scene, Saturnino was bleeding and in pain. Villareal asked Saturnino his name and who had stabbed him. It sounded like Saturnino was saying "Gapa." He also said the name "Jose." As the first officer on the scene, Honrath filled out the reports. Villareal did see some civilians around the victim. He thought one was named Manuel. Villareal did not see appellant at the scene. Dallas police detective Dennis Williams testified that on November 26, 2003, he was working the evening shift with the Crime Scene Response Unit. At about 7:00 p.m. he got a "double cutting" call from Leslie's Beauty Shop. Williams arrived on the scene about 8:30 p.m. Honrath and Villareal were there. The victim had already been taken to Parkland. The gate was open and quite a few people were around. There was a broom, dozens of beer cans, and outdoor chairs on the patio. The first thing Williams did was look for a weapon, but he did not find one. A number of physical items were recovered from the scene and taken to the property room. Some were later sent to Southwestern Institute of Forensic Sciences (SWIFS). Williams photographed the scene. The pictures were admitted into evidence without objection. They included a picture of Juan that showed facial wounds and a bandaged head. There was a trail of blood leading to a Chevy Cavalier. The Cavalier's hood was dusty and looked "disturbed." Williams lifted a latent palm print from the front of the hood, but the print did not match anyone involved. No fingerprints were found. No other cars were printed. Retired Dallas police detective James R. Vineyard testified that on November 26, 2003, he was assigned to the Crime Scene Response Unit. He had received specialized training with the FBI and Department of Public Safety (DPS). Vineyard testified he arrived at the scene about 4:57 a.m. in response to a call from Quirk to assist with a suspect who had been detained and was in custody. Vineyard collected five knives, took photographs, and collected blood samples from both of Juan Herrera's hands. Vineyard also lifted some fingerprints from a beer can under a metal chair, but the fingerprints did not match anyone connected with the case. There was no visible blood on any of the knives. One knife appeared to have blood on it, but it was a very small paring knife with a serrated blade. The "woodsman knife" was not submitted to SWIFS. Vineyard described to the jury the apartment and the sleeping arrangements of the four men within the apartment. Dallas police detective Miguel Angel Sarmiento testified he was currently assigned as a homicide detective. Sarmiento was fluent in Spanish, and was called to assist in the murder investigation. Sarmiento arrived at the scene at about 5:00 a.m. to help in the search. At that time, appellant was the only one there, and was not a suspect. Appellant was not cut or bleeding. Sarmiento asked appellant if he had been drinking. Appellant replied he did not drink at all. Sarmiento asked appellant where Juan slept, and appellant explained the living arrangements to Sarmiento. Sarmiento asked if appellant had seen anything. Appellant said he did not see the fight. By the time appellant got to the fight, Saturnino had already been stabbed and was bleeding. Sarmiento asked if appellant saw Juan with a knife. Appellant responded that at no time did he ever see Juan with a knife. Sarmiento never talked to appellant again. Dallas police detective Robert Quirk testified he became the lead homicide investigator at about 10:15 p.m.on November 26, 2003, when he was notified Saturnino had died. The investigation took place over the course of three days, including Thanksgiving Day and the days before and after Thanksgiving. On November 26, Quirk and his partner went to the crime scene and met the responding officers at about 11:15 p.m. Appellant, Maria Martinez, and Juan were there. Quirk did not realize at first there were two women witnesses. Quirk spoke to appellant. Appellant did not have any injuries or blood on him. Appellant spoke in Spanish. Quirk's knowledge of Spanish was limited, but he was able to understand appellant's name was Agapito Zuniga Rodriguez, his address, phone number, his nicknames of "Gapo" or "Pito," and that he was at work and had not seen anything. Juan and appellant do not look alike. Juan was injured and covered in blood. The police took Juan to the police station, where he was interviewed. Juan confessed, was arrested, and later pleaded guilty. Juan, however, did not implicate appellant. After Juan was arrested, Quirk returned to the scene at about 5:00 a.m. Appellant was still there. The following day, Thanksgiving, Quirk met with Maria. Maria told Quirk appellant was at the apartment when she dropped off Manuel and she believed he was the suspect. At about 8:00 p.m. on Thanksgiving day, Quirk met Linda at her house. Quirk met with Linda at her apartment three times: on the afternoon of November 27, at a lineup on November 28, and when she gave an affidavit on November 29. Quirk tried to reach Maria, but she was not home. Quirk was told she might be taking Manuel home. Quirk went to the crime scene. Maria was not there, but Manuel was. Quirk talked to Manuel. Manuel told Quirk he was at work and was not there when the stabbing occurred, but he was there later with Linda and Maria. Manuel also told the officers where Angel's apartment was, but they could not reach Angel. Angel could not be located and did not come forward. On Friday, the day after Thanksgiving, on his way to work, Quirk went by to talk to Maria. Maria's story was consistent with Linda's. Quirk learned "Gapo" was appellant. Quirk then tried to contact appellant for an interview, but did not find appellant at the location. Quirk took a photographic lineup to Maria and she made a positive identification of appellant. On Friday night, appellant was interviewed by Dallas police officer Juan Salas, who spoke Spanish. Appellant gave a written statement in Spanish, which Salas translated into English. Quirk read the translated version of the statement before the jury. Appellant's written statement was different from his initial statements to Quirk at the scene. And, according to Sarmiento's notes, appellant told him yet a different story. While Salas was interviewing appellant, Maria was shown a photographic lineup by another officer. She picked appellant's photograph out of the lineup. Linda was not shown a lineup because she told Quirk she did not get a good look at the stabber. In March 2004, Quirk talked to witnesses Avila, Lino Lopez, and Omar Correa. Quirk learned from them that at about 7:08 p.m. on November 26, 2003, before the police arrived, Saturnino identified Juan as the person who stabbed him. Quirk had looked for "Jose" for seven hours. However, after Juan was arrested, Quirk quit looking for "Jose." Quirk never really learned who "Jose" was. Quirk testified the knife was never recovered. He further testified a knife is a deadly weapon. No case was filed against Saturnino. Officer Salas testified he was formerly assigned to homicide and had worked over thirty murder cases. Because he is fluent in Spanish, Quirk asked him to assist in the murder investigation. Salas first interviewed Juan as a witness. Juan later became a suspect and was ultimately arrested. Juan gave a written voluntary statement and consent to search his apartment. At about 5:00 a.m., Salas went to Juan's apartment. When Salas arrived, appellant was there. Appellant was not a suspect at that time. Salas looked for, but did not find, a knife. Salas did not talk to appellant while he was there, but Sarmiento did. On November 28, Quirk asked Salas to interview appellant at the homicide division. The second time Salas saw appellant was in the interview room. Salas read appellant his rights at 10:02 p.m. Appellant acknowledged he understood his rights, waived his rights, and agreed to talk to Salas. Salas talked to appellant an hour or two before appellant gave a statement. Appellant seemed coherent and not under the influence of anything. Appellant was nervous when being questioned. Appellant also agreed to give a written statement. At appellant's request, Salas wrote down the statement, then read it to appellant in Spanish. There were no threats or coercion. Appellant's entire confession was in Spanish. Salas translated it into English. Appellant signed the statement. Ms. Williams witnessed the statement. As translated, appellant's voluntary statement reads:On 11-27-03 at about 6:30 p.m., I arrived from washing my clothes to my apartment and found "Rey" and Juan arguing about cleaning out the apartment. I went into the apartment and dropped off my bag of clothes and went outside and set [sic] down on a chair. Juan and "Rey" continued to argue. I then got up and went to my friend Angel's apartment, which is next to our apartment. After awhile, I returned and it was when I saw "Rey" walking towards the trashcan bleeding from one side. Juan was only standing there. I returned to my friend Angel's apartment and I told him that they had gotten into a fight. But I didn't mention that "Rey" was hurt. There I spent the night till the next day. I do not know who call [sic] the ambulance.Officer Ortega contacted appellant's family. At about 9:00 p.m. on November 28, Ortega made contact with appellant. Appellant went willingly with Ortega to the homicide division. Spanish speaking officers were called. Appellant gave a voluntary statement. Lino Lopez testified he was a barber at Leslie's Salon and he was working on November 26, 2003. Lopez had known appellant for two or three years, cut his hair, and considered him a friend. An unidentified Hispanic lady, about forty, came into the salon and said "somebody was shooting somebody." Lopez and Omar Correa went outside. In Spanish, Lopez talked to Saturnino as he lay on the ground. Saturnino was bleeding and looked bad. Lopez had previously met Saturnino. Saturnino sometimes wore hats. Saturnino told Lopez that Juan had stabbed him. Lopez did not know Juan or "Jose." Lopez asked Saturnino twice who stabbed him, because he did not hear Saturnino's response the first time. Saturnino did not say "Jose" stabbed him. Saturnino did not say anything about appellant being involved and Lopez did not see appellant. Within two minutes, a white police officer came. Lopez did not talk to the police; he just went back inside the salon. Lopez and Correa were the only ones there before the ambulance came. Four months later, Lopez was contacted by a detective and gave a short affidavit. Dallas County deputy chief medical examiner Dr. Joanie McClain testified about the autopsy done on Saturnino. The cause of death was multiple sharp force injuries. McClain testified there were thirteen separate sharp force injuries. The wounds to the stomach and heart were lethal. A hole in the heart would cause one to bleed out. The wounds were consistent with having been inflicted by a knife. There were also bruises on the head consistent with Saturnino having been in a fight. The time of death was 9:34 p.m. on November 26, 2003. After the State rested, appellant called Omar Correa. Correa testified he was twenty years old, and knew appellant, who sometimes helped clean Correa's house. On November 26, Correa was at the beauty shop with Lopez waiting to get a haircut. About 7:00 or 8:00 p.m., a woman dropped off her kids for a haircut and came out of the beauty shop screaming that somebody had been shot. Correa and Lopez went up to Saturnino and asked him what happened. Saturnino, whom Correa knew as "Low Rider," said Juan had stabbed him. Correa waited for the police and he translated for them. Correa never heard Saturnino say that "Jose" or Gapa" stabbed him. Angel Barradas testified that he was appellant's neighbor at the time of the offense. Angel remembered appellant coming into his room and telling him there was a fight going on. Angel walked outside and saw Saturnino and Juan fighting in front of the apartment in between two cars. Juan had a knife. After the fight broke up, Saturnino walked across the street to a house and then to the barber shop where he fell. The police came. Angel went home. Appellant was also at Angel's apartment. Appellant testified in his own behalf. Appellant was on the porch when Saturnino and Juan got into an argument about cleaning the porch. They began to fight. Appellant got up and walked over to where they were fighting. The fighting continued until Juan pulled out a hunting knife and cut Saturnino "all the way from the head all the way down." Appellant went to see Saturnino's injuries. While Saturnino was bending over, appellant heard him say, "Well, you fucked me already." Appellant saw Juan stab Saturnino in the back. Saturnino yelled at appellant to "take him out of me" or "away from me." Appellant then went next door to Angel's apartment and asked Angel to call the police. Appellant went back to the scene with Angel and others. Angel separated Juan and Saturnino. Saturnino yelled, "Gapo, call an ambulance." Saturnino walked off yelling for someone to call an ambulance. Appellant tried to get Saturnino to sit down and wait for the ambulance. When the police arrived, appellant went back across the street inside a fenced area. Appellant was in the apartment when the police came several hours later. Appellant showed the police his "papers," but they did not talk to him. After the police left, appellant went to Angel's apartment. Appellant did not stay in the apartment that night. When the police returned early the next morning, appellant was standing outside. A few days later a female police officer took him to the police station where he was interviewed by a detective. The detective wrote out a statement and appellant signed it.
Sufficiency of the Evidence
In his first two issues, appellant contends the evidence is legally and factually insufficient to support the guilty verdict. Appellant asserts that Juan's plea of guilty to the murder of Saturnino, together with the defensive evidence, exonerates him.Standards of Review
The standards of review for legal and factual sufficiency of the evidence are well-established. When deciding whether evidence is legally sufficient to support a conviction, we assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App.), cert. denied, 126 S. Ct. 481 (2005). When deciding whether the evidence is factually sufficient, we must examine all the evidence without the prism of the light most favorable to the verdict and determine whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Under either standard, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (legal sufficiency review); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000) (factual sufficiency review). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Johnson, 23 S.W.3d at 9.Analysis
The indictment alleged that appellant didunlawfully then and there intentionally and knowingly cause the death of SATURNINO HERNANDEZ, an individual, by stabbing said SATURNINO HERNANDEZ with a knife, a deadly weapon, and an unknown object, a deadly weapon, the exact nature and description of which was unknown to the Grand Jurors,
And unlawfully then and there intend to cause serious bodily injury to SATURNINO HERNANDEZ and did then and there commit an act clearly dangerous to human life, to-wit: by stabbing said SATURNINO HERNANDEZ with a knife, a deadly weapon, and an unknown object, a deadly weapon, the exact nature and description of which is unknown to the Grand Jurors and did thereby cause the death of SATURNINO HERNANDEZ, an individual.The jury was authorized to convict appellant if it found he committed the offense, as charged, or if it found appellant, acting as a party, and with the intent to promote or assist the commission of the offense, encouraged, aided or attempted to aid Juan Herrera in the commission of the offense. See Tex. Pen. Code Ann. § 7.02(a) (Vernon 2003). The State had the burden of proving all of the elements of the indictment beyond a reasonable doubt. To meet its burden, the State had to prove that appellant, acting either alone or with Juan, intentionally or knowingly caused Saturnino's death by stabbing him with a knife or some other unknown object or that appellant intended to cause serious bodily injury to Saturnino by stabbing him with a knife or some other unknown object, a deadly weapon, and thereby caused Saturnino's death. There was evidence that Saturnino was stabbed both on the patio and, later, while leaning face down on the hood of a car. Even under appellant's testimony, Juan stabbed Saturnino while they were on the patio. And Juan pleaded guilty to having done so. The evidence also showed that after Saturnino had staggered to another location, appellant approached him and called his name. When Saturnino turned around, appellant "repeatedly" "slashed" and stabbed Saturnino, who was already wounded and bleeding from Juan's attack. Maria and Linda both positively identified appellant as the person they saw slashing Saturnino with a "butcher knife." The testimony of the two disinterested women was basically consistent. Moreover, appellant's own testimony corroborated Linda's and Maria's testimony that appellant had walked by their car carrying a laundry bag shortly before the stabbing. Maria's description to the 911 operator matched appellant, not Juan. Juan did not look at all like appellant. Two police officers heard Saturnino respond "Jose" or "Gapa" when he was asked who stabbed him. Appellant admitted his nickname was "Gapo." Conflicting evidence was presented at trial. It was the jury's role, as fact finder, to resolve those conflicts. In doing so, the jury rejected appellant's testimony, credited the testimony of Maria and Linda, and found appellant guilty as charged in the indictment. Reviewing the evidence under the appropriate standards, we conclude it is both legally and factually sufficient to support the jury's guilty verdict. We overrule appellant's first two points of error.
Evidentiary Ruling
In his third point of error, appellant contends the trial court erred in excluding expert testimony regarding eyewitness misidentification. Appellant contends the proposed evidence was both relevant and reliable under rule of evidence 702.Background
Appellant moved the trial court to allow expert testimony on eyewitness misidentification. Outside the presence of the jury, Dr. William Flynn testified in support of appellant's motion. Flynn testified he is a degreed psychologist and an expert on the reliability of eyewitness testimony. See Tex. R. Evid. 702. Flynn believed his testimony would assist the jury "[b] ecause there is published scientific research of a survey of experts showing that juries or lay people believe different things and incorrect things compared to the experts. We know some things they don't know." When asked to clarify, he stated, "I'm talking about differences in opinion and expert opinion versus jury opinion about eyewitness identification." When asked to explain the difference, Flynn stated,Jurors believe, for example, when there is a weapon involved in a crime that eyewitnesses are going to be more accurate rather than less accurate. Expert witnesses and research has shown that when there is weapon focus, that facial identification is much less accurate.
Secondly, lay witnesses or common sense beliefs, does not have an understanding of what is called unconscious transference. That is, when there is a bystander not involved in the crime, they're much more likely to be identified as the assailant rather than not. Expert witnesses are familiar with the concept of unconscious transference where eyewitnesses have known a witness in the past or see the person as a bystander and understand how easy the confusion is to identify the assailant as the bystander.When asked specifically about studies on weapon focus, Flynn replied,
[T]here are many, many studies on weapon focus since it is the most robust of all findings. There are so many studies on weapon focus showing that it makes eyewitness identification so bad that there's even what is called a meta (phonetic) analysis. Meaning some researchers have taken all of the studies, put all the subjects together and all the studies together and shown not only how robust it is, but how large the effect is of weapon focus on misidentification and witness error.When asked what evidence he had that such studies were accepted in general in the scientific community, Flynn replied,
[T]wo things strike me as being important testimony. Two other studies have been able to show that people who have been exonerated from crimes that they really were not guilty of due to DNA evidence that more than 75 percent of those people who were exonerated were exonerated because eyewitness identification was the only thing that sent them falsely to prison.
Secondly, there have been large surveys of literature, including the law enforcement literature, headed by Janet Reno, showing that eyewitness identification is very faulty and that has an error rate of almost 35 percent. And so it's really important to look at the factors that influence eyewitness identification.When asked if the studies to which he referred were peer reviewed, Flynn replied, "All of the studies I have brought with me are from not only respectable journals but they're journals that only accept articles when other well-known researchers in the field have critiqued these articles and allowed them to be published. That is to say they are all peer reviewed." When asked for what purpose such information was used, Flynn replied,
This is general scientific information that is specifically applied to the law in some cases. But facial identification is important for the whole concept of memory. It's important for the concept of head injury. So that, for example, when there are people that have closed head injuries or acquired head injuries, they lost the ability to remember faces, and so there are years of research on facial recognition with standardized facial recognition techniques and the factors which influence facial recognition before psychologists really became so interested in the law because of the DNA exonerating people showing that the main reason why innocent people went to jail was because — or to prison was because of faulty eyewitness identification.On cross-examination, Flynn testified he never went to the scene of the stabbing; he never interviewed the eyewitnesses in this case, including Herrera, or the police officers; he did not have direct knowledge of anything; and he was not present during the trial testimony. It was Flynn's "plan" to testify that the studies to which he referred on direct examination actually fit the fact scenario of this case. In response to the prosecutor's question of whether it were true that the field of expertise of eyewitness misidentification was not well-recognized by the scientific community, Flynn replied, "It is very accepted by the scientific community as of a recent review published in our flagship journal called The American Psychologist." When asked by the prosecutor if Flynn was aware that no study in the field so far had found evidence of weapon focus effect, Flynn replied that he was unaware of any studies stating that weapon focus is not a relevant factor in facial identification. In concluding his testimony, Flynn stated he had not taken any college courses on eyewitness misidentification, and his knowledge had been gained from reading articles and going to seminars. In disallowing Flynn's testimony, the trial court stated, The Court is going to rule as follows[:] That this field of expertise is not a legitimate one in the sense that the testimony that was offered here is not sufficiently reliable and relevant to help the jury in reaching accurate results and will not assist the trier of fact to understand the evidence or determine any fact in issue. And it instead would have a tendency to invade the province of the jury and confuse the jury.
Standard of Review and Applicable Law
We review the trial court's evidentiary rulings under an abuse of discretion standard. Willover v. State, 70 S.W.3d 841, 845 (Tex.Crim.App. 2002); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). When a trial court operates within its discretion, an appellate court should not disturb the trial court's ruling unless the trial judge's decision is so clearly wrong as to be outside the zone of reasonable disagreement. See Willover, 70 S.W.3d at 845; Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). We review the evidence in the light most favorable to the trial court's ruling. See Guzman, 955 S.W.2d at 89. Rule of evidence 702 governs the admission of expert testimony. See Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App. 1992). Rule 702 provides that "[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. Rule 702 incorporates rule 402 and 403 analyses. See Kelly, 824 S.W.2d at 572 n. 11. The proponent of the evidence has the burden of persuasion to show by clear and convincing evidence that the proffered evidence is relevant and reliable. See id. at 573. If the trial court is so persuaded, then the evidence should be admitted for the jury's consideration, unless the trial court determines the probative value of the evidence is outweighed by some factor in rule 403. See id. "`Unreliable . . . scientific evidence simply will not assist the [jury] to understand the evidence or accurately determine a fact in issue; such evidence obfuscates rather than leads to an intelligent evaluation of the facts.'" Id. at 572 (quoting K. Kreiling, Scientific Evidence: Toward Providing the Lay Trier with the Comprehensible and Reliable Evidence Necessary to Meet the Goals of the Rules of Evidence, 32 Ariz. L. Rev. 915, 941-42 (1990)). The "threshold determination" for a trial court to make regarding the admission of expert testimony is whether that testimony will help the trier of fact understand the evidence or determine a fact in issue. Id. A trial court's first task under rule 702 is to determine whether the proffered scientific expert testimony "is sufficiently reliable and relevant to help the jury in reaching accurate results." Id. To be reliable scientific evidence, the underlying scientific theory must be valid, the technique applying the theory must be valid, and the technique must have been properly applied on the occasion in question. See Hartman v. State, 946 S.W.2d 60, 62 (Tex.Crim.App. 1997); Jordan v. State, 928 S.W.2d 550, 554 n. 5 (Tex.Crim.App. 1996). Relevance is by nature a looser notion than reliability. Jordan, 928 S.W.2d at 555. To be relevant, scientific evidence must "assist the trier of fact" and be "sufficiently tied to the facts of the case." See id. In Jordan, the court of criminal appeals reversed the court of appeals's holding that the proffered evidence was not relevant under rule 702. Jordan, 928 S.W.2d at 556. In doing so, the court stated,The question under Rule 702 is not whether there are some facts in the case that the expert failed to take into account, but whether the expert's testimony took into account enough of the pertinent facts to be of assistance to the trier of fact on a fact in issue. That some facts were not taken into account by the expert is a matter of weight and credibility, not admissibility.Id.