This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

rules (Rule 701. Opinion Testimony by Lay Witnesses)

• Both lay and expert witnesses can offer opinion testimony. Rule 701 covers the more traditional witness - one who "witnessed" or participated in the events about which he or she is testifying - while Rule 702 allows for a witness who was brought in as an expert to testify. A witness can testify in the form of an opinion under Rule 701 if the opinions or inferences are (a) rationally based on his or her perceptions and (b) helpful to the clear understanding of the testimony or the determination of a fact in issue. Perceptions refer to a witness's interpretation of information acquired through his or her own senses or experiences at the time of the event (i.e., things the witness saw, heard, smelled, touched, felt, or tasted). Since Rule 701 requires the testimony to be based on the witness's perception, it is necessary that the witness personally observed or experienced the events about which he or she is testifying. Thus, the witness's testimony can include opinions, beliefs, or inferences as long as they are drawn from his or her own experiences or observations. This also incorporates the personal knowledge requirement of Rule 602 which states that a witness may not testify to a matter unless he or she has personal knowledge of the matter. There is, however, a provision in Rule 602 for opinion testimony by expert witnesses which allows a person testifying as an expert under Rule 702 to base his or her opinion on facts and data that are of a type reasonably relied upon by experts in the field. Thus, expert testimony serves the purpose of allowing certain types of relevant, helpful testimony by a witness who does not possess personal knowledge of the events about which he or she is testifying. Osbourn v State (December 18, 2002, No. 2330-01)

• When a witness who is capable of being qualified as an expert testifies regarding events which he or she personally perceived, the evidence may be admissible as both Rule 701 opinion testimony and Rule 702 expert testimony. A person with specialized knowledge may testify about his or her own observations under Rule 701 and may also testify about the theories, facts and data used in his or her area of expertise under Rule 702. Osbourn v State (December 18, 2002, No. 2330-01)

• A distinct line cannot be drawn between lay opinion and expert testimony because all perceptions are evaluated based on experiences. However, as a general rule, observations which do not require significant expertise to interpret and which are not based on a scientific theory can be admitted as lay opinions if the requirements of Rule 701 are met. This is true even when the witness has experience or training. Additionally, even events not normally encountered by most people in everyday life do not necessarily require the testimony of an expert. The personal experience and knowledge of a lay witness may establish that he or she is capable, without qualification as an expert, of expressing an opinion on a subject outside the realm of common knowledge. It is only when the fact-finder may not fully understand the evidence or be able to determine the fact in issue without the assistance of someone with specialized knowledge that a witness must be qualified as an expert. Osbourn v State (December 18, 2002, No. 2330-01)

• It does not take an expert to identify the smell of marihuana smoke. Testimony as to the identity of an odor is admissible in some instances even though the person testifying is not an expert. While smelling the odor of marihuana smoke may not be an event normally encountered in daily life, it requires limited, if any, expertise to identify. Although it cannot be presumed that everyone is capable of identifying marihuana by smell, a witness who is familiar with the odor of marihuana smoke through past experiences can testify as a lay witness that he or she was able to recognize the odor. Osbourn v State (December 18, 2002, No. 2330-01)

• It was not error for trial court to consider portion of PSI in which victim opposed probation. No merit to def's contention that trial court's consideration of victim's opinion about def's suitability for probation violated limitations on opinion testimony. Generally, the rules of evidence do not apply to the contents of a PSI. Fryer v State (January 30, 2002, No. 1474-99)

• No merit to contention that evidence rules 602 and 701 require that an affiant have personal knowledge of the information contained in a controverting affidavit under 31.04 CCP. Personal knowledge is not required, so rules 602 and 701 do not apply to the affidavits required by Article 31.04. Busby v State, 990 S.W.2d 263 (March 31, 1999)

not error to admit lay opinion (Rule 701. Opinion Testimony by Lay Witnesses)

• It was not abuse of discretion to admit testimony of officer, as lay opinion witness, not as expert witness, that def possessed marihuana, based on the odor she smelled and the green, leafy substance she saw. The opinion was one that a reasonable person could draw from the circumstances. Her observation did not require significant expertise to interpret and her observations were not interpreted based on a scientific theory. Her belief or inference that the substance was marihuana was based on identifiable facts that were within her personal knowledge such as the green, leafy appearance and the distinct odor. No merit to contention witness was expert witness because her opinion was based on her training and experience as a police officer. While witness may have had the potential to be qualified as an expert because she possessed knowledge, skill, experience and education, she was not testifying as an expert when she identified the marihuana. Rather, she was testifying based on her firsthand sensory experiences. She herself smelled the odor that she perceived to be burnt marihuana. The fact that she had smelled marihuana before in the course of her employment as a police officer did not necessarily make her an expert. Also, even if she was an expert, that would not preclude her from offering a lay opinion about something she personally perceived. Osbourn v State (December 18, 2002, No. 2330-01)

• It was not error to admit testimony of witness present at crime that in her opinion def was responsible for victim being robbed, over objection that it called for a legal conclusion and invaded province of jury, where she had personal knowledge of the events leading up to offense, and her testimony that def was responsible for the robbery was based upon that knowledge, and her testimony was no more than a shorthand rendition of the facts. If error, was harmless under 44.2(b) where jury had already heard all of the facts upon which witness' conclusion was based; witness did not purport to be an expert or otherwise to be in a position to possess information not already related to the jury; and her opinion here added little, if any, weight to her testimony. Solomon v State (June 20, 2001, No. 73,459)