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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.

presenting issue (Rule 702. Testimony by Experts)

• A motion to strike an expert witness's testimony based on his lack of qualifications, which is made after the witness has testified, can serve as a renewed objection to the trial court's earlier ruling that the witness was qualified. In these circumstances, an appellate court reviews the trial court's ruling based upon all of the evidence before the court at the time of the motion to strike. [Disavowing some of language in opinion of court of appeals at Rodgers v. State, 162 S.W.3d 698 (Tex. App.-Texarkana 2005), but affirming on the merits.] Rodgers v State (May 3, 2006, PD-0645-05)

• Where lab supervisor testified from record of test results, but did not personally perform the tests, nothing preserved for review on claim lab supervisor was not qualified as an expert witness, where trial objections were based on lack of personal knowledge, hearsay, and a defendant's right to confront the witnesses against her, and was no objection to witness's qualifications as an expert. Record showed state expressed reliance on witness as an expert and def did not object. Martinez v State, 22 S.W.3d 504 (Jun. 28, 2000)

• Nothing preserved for review on claim that trial court failed to conduct a proper gatekeeping analysis and that the evidence was inadmissible under Rule 702, where def’s only objection on the issue ("I’m going to object to this. I’d like to take this subject under voir dire to determine if he is qualified to determine time, also have possibly a 705 hearing.") resulted in the trial court conducting a hearing outside the presence of the jury, and def made no objections to the scope of the hearing or the manner in which it was conducted, nor did he raise any objection to witness’s qualification as an expert witness. Wilson v State, 7 S.W.3d 136 (Dec. 8, 1999)

• No merit to contention that the trial court erred in allowing state's expert to testify without first holding a Rule 702 hearing to determine whether his theories were sufficiently reliable to be admissible, where record showed that prior to witness' testimony before the jury, the judge heard from both attorneys and from witness concerning witness' qualifications to testify and the basis of his testimony, and was no indication in the record that def was prohibited from calling witnesses for the “hearing,” nor did def make any complaint that proceeding was not a sufficient hearing for purposes of qualifying the witness and establishing the basis of his testimony. Griffith v State, 983 S.W.2d 282 (Dec. 16, 1998)

rules (Rule 702. Testimony by Experts)

• Before admitting expert testimony under Rule 702, the trial court must be satisfied that three conditions are met: (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case. Rodgers v State (May 3, 2006, PD-0645-05)

• A trial court need not exclude expert testimony simply because the subject matter is within the comprehension of the average jury. If the witness has some special knowledge or additional insight into the field that would be helpful, then the expert can assist the trier of fact to understand the evidence or to determine a fact in issue. An expert may add precision and depth to the ability of the trier of fact to reach conclusions about subjects which lie well within common experience. Because the possible spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses sufficient qualifications to assist the jury as an expert on a specific topic in a particular case. Rodgers v State (May 3, 2006, PD-0645-05)

• A party seeking to introduce evidence of a scientific principle is not always required to present evidence sufficient to satisfy the test of Kelly v. State, 824 S.W.2d 568 (Tex. Cr. App. 1992): Where either the Court of Criminal Appeals or a court of appeals has previously determined the validity of a particular scientific principle and a technique applying that principle, a party seeking to introduce evidence based upon that scientific principle is not required to satisfy the first two prongs of the test of Kelly. Hernandez v State (June 4, 2003, No. 2053-01)

• A party seeking to introduce evidence of a scientific principle need not always present expert testimony, treatises, or other scientific material to satisfy the Kelly test (Kelly v. State, 824 S.W.2d 568 (Tex. Cr. App. 1992)). It is only at the dawn of judicial consideration of a particular type of forensic scientific evidence that trial courts must conduct full-blown "gatekeeping" hearings under Kelly. Once a scientific principle is generally accepted in the pertinent professional community and has been accepted in a sufficient number of trial courts through adversarial Daubert/Kelly hearings, subsequent courts may take judicial notice of the scientific validity (or invalidity) of that scientific theory based upon the process, materials, and evidence produced in those prior hearings. Similarly, once some courts have, through a Daubert/Kelly "gatekeeping" hearing, determined the scientific reliability and validity of a specific methodology to implement or test the particular scientific theory, other courts may take judicial notice of the reliability (or unreliability) of that particular methodology. Hernandez v State (June 4, 2003, No. 2053-01)

• 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)

• There are certain fields where a witness may qualify as an expert based upon experience and training, however, use of the terms "training" and "experience" do not automatically make someone an expert. All opinions are formed by evaluating facts based on life experiences including education, background, training, occupation, etc. Osbourn v State (December 18, 2002, No. 2330-01)

• Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kelly v. State, 824 S.W.2d 568 (Tex. Cr. App. 1992), apply to all scientific evidence. Kelly did not limit the two-pronged standard to novel scientific evidence; the Kelly test applies to all scientific evidence offered under Rule 702. Beard v State (September 25, 2002, No. 282-00)

• A trial court's responsibility under Rule 702 is to determine whether proffered scientific evidence is sufficiently reliable and relevant to assist the jury. The proponent of the scientific evidence must demonstrate by clear and convincing evidence that the evidence is reliable. This is accomplished by showing the validity of the underlying scientific theory, the validity of the technique applying the theory, and proper application of the technique on the occasion in question. Factors that may affect reliability include, but are not limited to, the following: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the testifying expert's qualifications; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the technique's potential rate of error; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person who applied the technique on the occasion in question. Mata v State (June 6, 2001, No. 133-00)

• While Rule 702 involves the dual inquiry of relevance and reliability, the overarching subject of Rule 702 is the scientific validity of the evidence at issue. In weeding out the so-called "junk" science, trial judges are called upon to serve as "gatekeepers." The proffered testimony must be sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute. Mata v State (June 6, 2001, No. 133-00)

• Appeals court will not disturb the trial court's decision to admit scientific evidence absent an abuse of discretion. Mata v State (June 6, 2001, No. 133-00)

• Appeals court may take judicial notice of scientific literature not presented by either party at trial or on appeal. Mata v State (June 6, 2001, No. 133-00)

• An appellate court should not disturb the trial court's decision to admit or exclude scientific evidence absent an abuse of discretion. Morales v State (December 6, 2000, No. 83-00)

• The reviewing court should, under Rule 702, examine the expert's testimony to assess whether the expert made an adequate effort to tie the relevant facts of the case to the scientific principles about which he testified. Morales v State (December 6, 2000, No. 83-00)

• Under Rule 702, the proponent of scientific evidence must show, by clear and convincing proof, that the evidence he is proffering is sufficiently relevant and reliable to assist the jury in accurately understanding other evidence or in determining a fact in issue. The reliability of "soft" science evidence (such as testimony on reliability of eyewitness identifications offered in the instant case) may be established by showing that (1) the field of expertise involved is a legitimate one, (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. Weatherred v State, 15 S.W.3d 540 (Mar. 29, 2000)

• Once a particular type of scientific evidence is well established as reliable, a court may take judicial notice of that fact, thereby relieving the proponent of the burden of producing evidence on that question. Weatherred v State, 15 S.W.3d 540 (Mar. 29, 2000)

• Pursuant to Rule 702, the trial court must determine whether the scientific evidence offered is sufficiently reliable and relevant to help the jury in reaching accurate results. The admission of such scientific evidence is within the sound discretion of the trial court and its decision regarding such will not be set aside absent an abuse of that discretion. To be considered reliable, evidence must have its basis in sound scientific methodology. Evidence that is not reliable is not helpful to the jury because it frustrates rather then promotes intelligent evaluation of the facts. With respect to the relevance consideration, expert testimony must assist the trier of fact to understand the evidence or to determine a fact in issue. Expert testimony that does not relate to a fact in issue is not helpful. Griffith v State, 983 S.W.2d 282 (Dec. 16, 1998)

• A def’s potential for being a future danger is a question of fact which the jury must answer under Article 37.071, Section 2(b).Testimony from mental health experts is relevant to that issue. Griffith v State, 983 S.W.2d 282 (Dec. 16, 1998)

• The proponent of psychological and psychiatric testimony offered during the punishment phase of a capital trial has the burden to show that the witness possesses the requisite expertise required by Rule 702 and that the witness’s testimony will assist the fact-finder. Griffith v State, 983 S.W.2d 282 (Dec. 16, 1998)

rules: qualify as expert (Rule 702. Testimony by Experts)

• Appellate courts may consider several criteria in assessing whether a trial court has clearly abused its discretion in ruling on an expert's qualifications. First, is the field of expertise complex? The degree of education, training, or experience that a witness should have before he can qualify as an expert is directly related to the complexity of the field about which he proposes to testify. If the expert evidence is close to the jury's common understanding, the witness's qualifications are less important than when the evidence is well outside the jury's own experience. Second, how conclusive is the expert's opinion? The more conclusive the expert's opinion, the more important is his degree of expertise. Third, how central is the area of expertise to the resolution of the lawsuit? The more dispositive it is of the disputed issues, the more important the expert's qualifications are. In any event, the appellate court must review the trial court's ruling in light of what was before that court at the time the ruling was made. Rodgers v State (May 3, 2006, PD-0645-05)

rules: helpful to trier of fact (Rule 702. Testimony by Experts)

• If 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. Rodgers v State (May 3, 2006, PD-0645-05)

rules: specific experts (Rule 702. Testimony by Experts)

• Zani v. State, 758 S.W.2d 233 (Tex. Crim. App. 1988), which held that hypnotically enhanced testimony is admissible in Texas, based on the general acceptance standard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), was not overruled by Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Although Kelly overruled the general acceptance standard and Texas courts' reliance on Frye, the Zani case, in developing a highly specific framework to ensure that hypnotically enhanced testimony offered in a particular case is reliable, was not overruled, either explicitly or implicitly, by Kelly or its progeny. State v Medrano (February 4, 2004, No. 1919-02)

• Sec. 724.064 Trans. Code makes admissible evidence of alcohol concentration as shown by analysis of breath specimens taken at the request or order of a peace officer. 724.016 authorizes DPS to adopt rules approving satisfactory analytical methods and requires that breath specimens be taken and analyzed by individuals who are certified by the department. Rule 702 authorizes the testimony of experts, in the form of opinion or otherwise, when scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue. Harmonizing these provisions: when evidence of alcohol concentration as shown by the results of analysis of breath specimens taken at the request or order of a peace officer is offered in the trial of a DWI offense, (1) the underlying scientific theory has been determined by the legislature to be valid; (2) the technique applying the theory has been determined by the legislature to be valid when the specimen was taken and analyzed by individuals who were certified by, and were using the methods approved by DPS rules; and (3) the trial court must determine whether the technique was properly applied, in accordance with the department's rules, on the occasion in question. In such cases there will be a "gatekeeper" hearing under Rule 702 as required by Kelly v. State, 824 S.W.2d 568 (Tex. Cr. App. 1992), but the issues at hearing will be only those that have not been resolved by the legislature's decisions on reliability. If the technique was properly applied, the evidence of the result of the analysis is reliable under Rule 702. (Of course, admissibility of the evidence also depends on other factors of relevance and the counterweights in Rule 403. Other rules or laws also may apply.) Court did not decide that all evidence relating to Intoxilyzer results may be admitted by this shortened gatekeeper hearing. For example, the statutes do not address the reliability of the techniques for interpreting and extrapolating Intoxilyzer results. Therefore, expert testimony that grounds itself in such techniques is still subject to the requirement that the proponent establish, in a gatekeeper hearing, the reliability of the underlying scientific theory and the technique of its application, as well as the proper application of the technique on the particular occasion. Beard v State (September 25, 2002, No. 282-00)

• Retrograde extrapolation is the computation back in time of the blood-alcohol level - that is, the estimation of the level at the time of driving based on a test result from some later time. As alcohol is consumed, it passes from the stomach and intestines into the blood, a process referred to as absorption. When the alcohol reaches the brain and nervous system, the characteristic signs of intoxication begin to show. The length of time necessary for the alcohol to be absorbed depends on a variety of factors, including the presence and type of food in the stomach, the person's gender, the person's weight, the person's age, the person's mental state, the drinking pattern, the type of beverage consumed, the amount consumed, and the time period of alcohol consumption. At some point after drinking has ceased, the person's BAC will reach a peak. After the peak, the BAC will begin to fall as alcohol is eliminated from the person's body. The body eliminates alcohol through the liver at a slow but consistent rate. Mata v State (June 6, 2001, No. 133-00)

• It was inappropriate for court of appeals to rely on its opinion in prior case as evidence of expert's qualifications in instant case, where nothing in record of instant case supported conclusion of court of appeals that expert had "impeccable qualifications, including extensive personal observations of the alcohol absorption and elimination process," or showed he had any ability to perform retrograde extrapolations. (Def in instant case, however, conceded at trial that witness was qualified to perform retrograde extrapolations generally, and complained only that witness could not reliably apply the technique to def.) Mata v State (June 6, 2001, No. 133-00)

• Where expert witness on BAC calculations conceded that his calculations were based on a "normal drinking pattern," then acknowledged that the "chug-a-lug" situation was not a normal drinking pattern, and also acknowledged that he had no idea how much def had had to drink, what he had had to drink, or how long def had been drinking, witness essentially conceded that all of his calculations as to def were speculative. Mata v State (June 6, 2001, No. 133-00)

• Even those who believe retrograde extrapolation is a reliable technique have utilized it only if certain factors are known, such as the length of the drinking spree, the time of the last drink, and the person's weight. In addition, there appears to be general disagreement on some of the fundamental aspects of the theory, such as the accuracy of Widmark's formulas, whether a standard elimination rate can be reliably applied to a given subject, and the effect that food in the stomach has on alcohol absorption. Nevertheless, given the studies, other concepts seem indisputable, including that multiple tests will increase the ability to plot a subject's BAC curve, a test nearer in time to the time of the alleged offense increases the ability to determine the subject's offense-time BAC, and the more personal information known about the subject increases the reliability of an extrapolation. The science of retrograde extrapolation can be reliable in a given case. The expert's ability to apply the science and explain it with clarity to the court is a paramount consideration. In addition, the expert must demonstrate some understanding of the difficulties associated with a retrograde extrapolation. He must demonstrate an awareness of the subtleties of the science and the risks inherent in any extrapolation. Finally, he must be able to clearly and consistently apply the science. Mata v State (June 6, 2001, No. 133-00)

• The court evaluating the reliability of a retrograde extrapolation should also consider (a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking. Obviously, not every single personal fact about the defendant must be known to the expert in order to produce an extrapolation with the appropriate level of reliability. If this were the case, no valid extrapolation could ever occur without def's cooperation, since a number of facts known only to the defendant are essential to the process. If state had more than one test, each test a reasonable length of time apart, and the first test were conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant's BAC with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert. Mata v State (June 6, 2001, No. 133-00)

• Where trial court excluded expert witness testimony offered by def in DWI case, regarding the rate at which alcohol is absorbed, or "burned off", by the normal processes of the human body, court of appeals erred in holding exclusion was error, where court of appeals noted one fact that was considered and applied by expert--the passage of time between def's last beer and his arrest--but failed to discuss whether this fact alone, as applied to the principles regarding alcohol burn-off, was enough "to be of assistance to the trier of fact" under Rule 702, or whether other facts were and/or should have been considered. That analysis under Rule 702 was inadequate; judgment vacated and cause remanded for reconsideration. (State did not claim that the testimony, in general, was irrelevant under Rule 401, but that, under Rule 702, def's expert failed to take into account enough of the pertinent facts to be of assistance to the jurors on the question of whether the def had lost the normal use of his mental and physical faculties by the reason of the introduction of alcohol into his body.) Morales v State (December 6, 2000, No. 83-00)

not error to admit (Rule 702. Testimony by Experts)

• It was not error to admit expert testimony on shoe and tire track comparisons over objection that witness was not qualified. The jury heard descriptions of the physical comparisons upon which witness based his conclusions; the exhibits relied on by witness for his physical comparisons were admitted into evidence and were available to the jury during its deliberations; the jury could make its own comparisons; jury could also determine the weight and credibility to give the testimony and the likelihood that other individuals with shoes and tires similar to def's might have made the prints found at scene; and there was an abundance of other evidence pointing to def as the person who committed offense. Rodgers v State (May 3, 2006, PD-0645-05)

• It was not abuse of discretion to admit fingerprint-comparison evid where record and well-established history supported conclusion that fingerprint-comparison testimony is admissible under rule 702. [Witness testified that she compared the fingerprints recovered from the crime scene to the fingerprints obtained from def and determined he was the person who left the fingerprints on car at crime scene. She testified that fingerprint comparison was a legitimate field of expertise, that the method she followed here was the accepted method within the field of expertise, and that the same method was used by the Federal Bureau of Investigation (FBI), the Department of Public Safety (DPS), and other law enforcement agencies; that she had sixteen years of experience in fingerprint comparison, that she had received training on the subject at numerous schools, and that she had routinely kept up with new techniques and developments within the field; and that she had given expert testimony on fingerprint comparison numerous times in both state and federal court and that her findings in this case were reviewed and confirmed by at least three other people trained in the field, including a Tyler Police Department investigator and an FBI agent. Second witness, a sixteen-year veteran of the DPS crime laboratory and a latent-fingerprint examiner, testified about the general reliability of fingerprint-comparison evidence; that he was an instructor in fingerprint comparison, that he had compared hundreds of thousands of fingerprints in his career, that he had given expert testimony on fingerprint comparison in both state and federal courts, that he had received specialized training in fingerprint comparison from the FBI and the DPS, and that he had kept abreast of new technologies within the field. He testified further that peer review was a critical part of fingerprint comparison, and that there was "no known error rate attached to the comparison of latent prints." He further testified that courts have relied on fingerprint evidence for over one hundred years and that it is generally accepted in the scientific community that no two people have the same fingerprints.] Russeau v State (June 29, 2005, No. AP-74,466)

not error to admit: expert in capital murder (Rule 702. Testimony by Experts)

• It was not abuse of discretion to admit expert testimony of psychologist at punishment stage in capital case that there was a probability appellant would commit criminal acts of violence in the future that would constitute a continuing threat to society, over objection predicate for admission of expert testimony was not shown, where she testified that she was a licensed psychologist with a doctorate in clinical psychology, that she had received post-doctorate specialized training in violence risk assessment, and that she gained experience in risk assessment while completing her post-doctoral training with TDCJ and while working for the Texas Youth Commission. She had given presentations on violence risk assessment to other mental-health professionals and had previously testified as an expert witness in a capital murder case. Her opinion of def's future dangerousness was based on the offense reports, the autopsy report, crime-scene photographs, a videotape and transcript of def's interview with investigators, witness statements, transcripts of witness interviews, arrest records and prior-offense records, TDCJ institutional and parole records, Smith County jail and probation records, and news footage of the offense, crime scene, and bond hearing. When reviewing the material and making her assessment, she used a combination of theory and technique that had been subjected to peer review and publication and was generally accepted within the scientific community. She drew upon her training, education, and experience in clinical and forensic psychology, and thoroughly reviewed literature on violence risk assessment and psychopathy. She also used the "guideline of the DSM4," which is published by the American Psychiatric Association and widely used as a standard in the field. Russeau v State (June 29, 2005, No. AP-74,466)

• It was not abuse of discretion to admit expert testimony of psychiatrist at punishment stage in capital case that there was a probability appellant would commit criminal acts of violence in the future that would constitute a continuing threat to society, over objection predicate for admission of expert testimony was not shown, where he testified that he was board-certified in general psychiatry, forensic psychiatry, and addiction psychiatry, and that he had testified on future dangerousness in a number of other cases. He testified that risk assessment of future dangerousness is a legitimate field of expertise. He reviewed reports, pictures, jail records, prison records, parole records, and other discovery items in support of his testimony on future dangerousness, and he relied upon his specialized knowledge and his review of current scientific literature in the field. He testified that the theory and technique he used were derived from published research studies that had been subjected to peer review and are generally accepted within the relevant scientific community. Russeau v State (June 29, 2005, No. AP-74,466)

• At punishment stage of capital murder case, it was not abuse of discretion to allow X to testify as an expert regarding the characteristics of sex offenders and their high recidivism rate. The testimony clarified previous testimony from state's medical experts and demonstrated the increased probability that this type of individual would be a future danger, where record showed that, during the punishment phase, two psychiatric experts testified that def was a psychopathic manipulator and that psychopathic manipulators include sex offenders, and state then offered X's testimony, not to elicit any opinions about def specifically, but to enlighten the jury as to the general characteristics of sex offenders, their high recidivism rate, and the lack of successful treatments. Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

• At punishment stage of capital murder case, it was not abuse of discretion to allow X to testify as an expert regarding the characteristics of sex offenders and their high recidivism rate, over objection that X had not been qualified as an expert in the area of sexual offenders, where state asked various questions regarding X's experience and training in the areas of sexual offenders and sexual deviation, and X testified that she had worked in the field for nineteen years and held a Bachelor's Degree with a double major in Psychology and Sociology with twenty-four hours towards her Master's as a Psychological Associate. She was employed with the Texas Department of Human Services for eight years where she received extensive training in working with sex offenders' families and sexual abuse. She received training from experts recognized in the field of sexual deviancy and also from the F.B.I. She annually completes forty hours of training on sexual deviancy and provides training for students seeking certification in the area of sex offenders. Further, she is a member of the National Treatment for Sexual Abusers and currently works with sex offenders as a community supervision officer for the court system. Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

• It was not an abuse of discretion to find that expert's testimony would be helpful to the jury (on future dangerousness issue in capital case), and overrule Rule 702 objection, in light of his specialized education and experience, and the effort he took to “fit” his evaluation to def's case, where expert testified that prior to becoming a special agent with the FBI, he had worked as a psychologist in a maximum security prison for about six years, where he was responsible for assessing and evaluating the adult male felon population for potential dangerousness or future threat to the community should they be released on parole; and that he reviewed “hundreds” of such cases during his time in that position. After leaving that post, he became the senior psychologist and Mental Health Director for a three prison unit complex where he continued to perform future threat evaluations in addition to supervising other psychologists. He had taught “criminal psychology” at the FBI Academy for a number of years. Before developing an opinion of def’s future dangerousness in instant case, he reviewed the investigative reports, crime scene photos, autopsy photos, witness statements, and def’s school and personnel records, among other information. Griffith v State, 983 S.W.2d 282 (Dec. 16, 1998)

not error to admit: DNA expert (Rule 702. Testimony by Experts)

• No merit to contention that trial court erroneously overruled motion to suppress statistical data interpreting results of DNA tests, on claim that the DNA results were not relevant because the statistical evaluation was incomplete for failure of the state to compare the DNA of other potential suspects with the sample taken from the victim. State’s DNA expert testified that PCR (polymerase chain reaction) analysis was conducted on the vaginal swab sample; the resulting DNA profile was then compared with DNA taken from def and another suspect. The probability that a randomly selected Southwestern Hispanic (def’s genetic classification group) would match the genetic profile of the sample DNA was one in 19,900,000; def’s DNA matched the sample. Hinojosa v State, 4 S.W.3d 240 (October 27, 1999)

not error to exclude not reliable (Rule 702. Testimony by Experts)

• It was not abuse of discretion to exclude expert testimony on reliability of eyewitness identification where def did not meet his burden to prove by clear and convincing evidence that the testimony was relevant and reliable and not mere "junk science." In attempt to meet that burden def simply offered expert’s testimony and nothing else; although expert claimed that he and others had carried out extensive research on the reliability of eyewitness identifications and that he himself had written much on that subject, he failed to produce or even name any of the studies, researchers, or writings in question. Trial court could have reasonably concluded that def failed to carry his burden of showing that the proffered expert testimony was scientifically reliable. Weatherred v State, 15 S.W.3d 540 (Mar. 29, 2000)

error to admit (Rule 702. Testimony by Experts)

• State had burden of proof in trial court to show, by clear and convincing evidence, that the ADx analyzer is a reliable method of determining the presence of marijuana in a person's body. When it failed to offer any testimony, any scientific material, or any published judicial opinions from which the trial court might take judicial notice of its scientific reliability, it could not rely on appeals court to become independent scientific sleuths to ferret out the appropriate scientific materials which could support the trial court's decision to allow the ADx technician's testimony. Where court of appeals was confronted with a trial record that did not support the scientific reliability of the ADx machine, it was not error to conclude that, based upon the record before it, the state had failed to show the machine's reliability. Although appellate courts may take judicial notice of other appellate opinions concerning a specific scientific theory or methodology in evaluating a trial judge's Daubert/Kelly "gatekeeping" decision, judicial notice on appeal cannot serve as the sole source of support for a bare trial court record concerning scientific reliability. Hernandez v State (June 4, 2003, No. 2053-01)

• Expert witness testimony, that cartridge cases from unfired bullets found in def's apartment had distinct marks that matched fired cartridge cases found at scene of offense, did not meet reliability requirement in Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Based on record in instant case, underlying theory of toolmark examination could be reliable in a given case, but state failed to produce evidence of the reliability of the technique used in instant case. Under the Kelly criteria, state failed to show that the technique applied in this case was valid. Sexton v State (October 9, 2002, No. 471-00)

• It was error to admit expert testimony that def was intoxicated at time of arrest based on his blood alcohol content two hours after arrest, where that testimony did not meet requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) and Kelly v. State, 2 824 S.W.2d 568 (Tex. Crim. App. 1992). Mata v State (June 6, 2001, No. 133-00)

• In pros for DWI, trial court abused its discretion in admitting that part of expert's testimony pertaining to the extrapolation of def's BAC. State failed to prove by clear and convincing evidence that expert witness' retrograde extrapolation was reliable: (1) Inconsistencies in expert's testimony prevented him from explaining the science to the court with any clarity. (2) There was only one test of def's BAC, and it occurred over two hours after the alleged offense, which is a significant length of time and seriously affects the reliability of any extrapolation. (3) Expert did not know one single personal characteristic of def - he did not know whether def had eaten anything that night and if so, how much; how much def had had to drink; what def had been drinking; when def's last drink was; the length of def's drinking spree; or even def's weight. Even the scientists who find retrograde extrapolations reliable would require more known quantities than what expert had in this case. Mata v State (June 6, 2001, No. 133-00)

harmless (Rule 702. Testimony by Experts)

• In pros for sexual assault of a child, error in admission of expert testimony about credibility of child-victim, was harmless in light of record as a whole and fact that def was acquitted by jury on one of the charges [opinion reviews record as a whole]. [Reversing court of appeals, which had found error was not harmless by focusing on fact that the case against def rested on credibility of victim, instead of reviewing record as a whole; that fact was significant, but was not conclusive.] Schutz v State (December 19, 2001, No. 1933-99)

• Trial court's ruling deviated from Kelly v State, 824 S.W.2d 568 (1992), and its progeny in two respects. First, it presumed that DNA evidence is admissible in general and shifted to the defense the burden of demonstrating that the state's evidence was not reliable. Further, it refused to permit a hearing outside the jury's presence to determine whether the evidence was admissible. Thus, the court erred in failing to determine the admissibility under Rule 702 by interpreting the second and third Kelly requirements [(2) the validity of the technique applying the theory; and (3) proper application of the technique on the occasion in question] as issues that the jury could consider in deciding what weight to give the state's evidence. Although the court abandoned its "gatekeeping" function with respect to the last two Kelly requirements, the error was harmless because the state's DNA evidence was in fact reliable. Because the court's failure to hold a hearing outside the jury's presence did not result in the admission of unreliable evidence, the error did not have a substantial and injurious effect or influence in determining the jury's verdict. Jackson v State, 17 S.W.3d 664 (May 17, 2000)