No. 01-08-00205-CR
Opinion issued July 16, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.2.
On Appeal from the 262nd District Court, Harris County, Texas, Trial Court Cause No. 1135198.
Panel consists of Justices KEYES, HANKS, and BLAND.
EVELYN V. KEYES, Justice.
A jury convicted appellant, Lamar Dunta Perkins, of burglary of a habitation and sentenced him to nine years in prison. In four points of error, appellant argues that (1) the trial court erred in admitting dog scent evidence; (2) his trial counsel was ineffective in failing to object to the admission of dog scent evidence; (3) his right to confrontation was violated when the trial court admitted the dog scent evidence; and (4) the evidence presented at trial was factually insufficient to support the conviction. We affirm the judgment of the trial court.
Background
On September 28, 2007, at approximately 10:30 a.m., William Claymore, the complainant, received a phone call from his bank, alerting him that his Bank of America VISA credit card had been used that morning at two separate locations near his home on Val Verde Street in Houston, Texas. The complainant never used the card and had secured it inside a fireproof box in a closet in the music room of his house. The complainant assumed that his home had been burglarized. He called his wife and went to his home. She called the Houston Police Department ("HPD"). HPD Officer H. Pham arrived at the crime scene to investigate. The complainant told Officer Pham that there were signs of forced entry in the back of the house because the back window of the house was broken. Officer Pham called for backup and inspected the crime scene. The house was disheveled and the fireproof box was among the missing items. The complainant kept several items in the fireproof box, including a jump drive, a checkbook, credit cards, and copies of insurance policies. The complainant also discovered that several other items were missing, including two electric guitars, one amplifier, a handgun, a digital camera, and his wife's ring. Officer Pham inspected the backyard and discovered that the complainant's fence had been breached. One of the complainant's amplifiers was found in his backyard along the fence line. Behind the complainant's fence was the apartment complex where appellant resided. The complainant's wife walked over to the apartment leasing office to alert them that her house had been burglarized and to inquire about any suspicious activity during the morning of the burglary. The office manager told the complainant's wife that she had gone to an apartment to serve an eviction notice and had seen electric guitars left outside the apartment. After receiving the information about the electric guitars from his wife, the complainant called HPD again. As the complainant was calling HPD, he observed three men loading vehicles for at least one and one-half hours. He saw two of the men, witness Abel Turner and Steven Humphries, carrying his two electric guitars and walking toward him. The complainant told the HPD dispatcher that he was in pursuit of two people who had burglarized his house. The HPD dispatcher believed that the complainant was reporting an armed robbery and sent several police cars to the scene. The HPD police pursued the two men and captured them. While the police were in pursuit of the two men with the guitars, appellant was standing outside his apartment. After police arrested the two men, they approached appellant and questioned him. Police observed that appellant was carrying an object in his hand and instructed him to release the object. Police recovered two objects, namely the complainant's jump drive and a pawn shop receipt. Appellant told police that the complainant had given him the jump drive. In response to further questions, appellant told police that Turner had given him the items and that he had never entered the complainant's house. The pawnshop receipt named appellant as the person who had pawned the item, namely a ring. The complainant's wife accompanied police to the pawn shop, where she identified and recovered her ring. Police also retrieved appellant's picture identification number from the pawnshop. Based on this information, appellant was charged with theft. Later, HPD officers C. Truhan and K. Fehr went to the crime scene to collect evidence. Officers Truhan and Fehr collected three samples of scent evidence by rubbing gauze pads over several areas in the complainant's house, including the closet area of the music room where the complainant kept his fireproof box. Officer Truhan then placed the samples in bags and labeled them. Officer Truhan also searched for fingerprints but found no usable fingerprints at the crime scene. She took the samples of scent evidence to the HPD property room. Officer Fehr also took samples of scent evidence from appellant, Turner, and Humphries. He swabbed each subject's arm with a gauze pad to pick up perspiration. He then placed the samples into plastic bags and labeled each bag with the corresponding subject's name. On September 29, 2007, HPD contacted Fort Bend County Sheriff's Deputy K. Pikett and asked him to analyze the samples of scent evidence obtained by Officer Truhan. Deputy Pikett's expertise involves the use of bloodhounds to analyze scent evidence. Deputy Pikett and his wife brought the following bloodhounds to the HPD Westside Station to analyze the scent evidence: an 11-year-old female named Quincy, a 3-year-old male named James Bond, and a 2-year-old female named Clue. Deputy Pikett and his wife went to the rear parking lot of the police station with the bloodhounds and set up six silver canisters side by side ten feet apart. HPD Officer R. Clements, an investigator with the robbery and theft division, gave Deputy Pikett the scent evidence obtained by Officer Truhan. Deputy Pikett asked for the racial and gender characteristics of the suspects. When told that appellant, Turner, and Humphries were all black males, Deputy Pikett retrieved three black male control samples from his vehicles. Deputy Pikett placed the samples obtained by Officer Truhan in the silver canisters. He placed Humphries' sample in the second canister, appellant's sample in the fifth canister, and Turner's sample in the sixth canister. He then placed the three black male control samples in the remaining canisters. After Deputy Pikett placed all the samples in the canisters, his wife placed the canisters in a random order, rendering Deputy Pikett without knowledge of the particular location of any given sample. Deputy Pikett allowed each bloodhound to sniff the sample taken from the closet in the music room of the complainant's house. Each of the three bloodhounds alerted that all three suspects had been in the complainant's house. Based on the results of the "scent lineup," appellant's charges were changed to burglary of a habitation. Trial began on March 7, 2008. At trial, the State presented testimony from Deputy Pikett. Deputy Pikett testified that he has been training bloodhounds since 1989. He has previously used his bloodhounds in federal cases with the Federal Bureau of Investigations, the Bureau of Alcohol, Tobacco, and Firearms, the United States Postal Service, and the Drug Enforcement Agency. He also testified that he had used his bloodhounds on state and local cases with the Texas Rangers and local law enforcement agencies. Quincy had worked on 1,740 cases; James Bond had worked on 1,160 cases; Clue had worked on 564 cases. He testified that he has never been admitted as an expert in dog scent lineups. However, the evidence he has obtained by dog scent lineups have been upheld by several Texas Courts of Appeals. Deputy Pikett testified that he begins training a bloodhound when it is eight weeks old. He takes the bloodhound to his backyard and holds a handkerchief in front of it. He waves the handkerchief and drops it on the ground as he runs away from it. The purpose of this exercise is to condition the bloodhound to "chase and catch." He testified that he places food in his pocket to encourage the animal to sniff out the food. When the bloodhound finds the food in Deputy Pikett's pocket, he rewards the animal with the food and displays of affection. Deputy Pikett testified that, as the training progresses, We want [the bloodhounds] when they get older, if they trailed to a group of people on some criminal case, it's not going to work that they get there and go one of these people is the criminal. We need them to go up and put their nose on the person. . . . Don't just go and say one of these people is the bad guy, we want you to put your nose on them. Deputy Pikett also testified that if he uses a bloodhound on a burglary case and he wants to detect a scent on a specific item that may have been in contact with several members of the household and the suspect, he wipes the item with a gauze pad and allows the bloodhound to sniff the pad. He brings the bloodhound to the scene to sniff all members of the burglarized household. The bloodhound then uses a process of elimination method called "missing member" to bypass the scents of the members of the household and focus on the scent of the person not present, namely the suspect. The bloodhound then begins to trail the scent of the suspect. Deputy Pikett testified that "a bloodhound is the Ferrari of the noses" compared to the capacity of other breeds to detect human scents. He testified that "none of the dogs do scent lineups at all until they can show great reliability training." The animal must demonstrate "scent discrimination," the ability to distinguish among several human scents present in an urban or suburban setting. Deputy Pikett testified that he conducts two types of dog scent lineups: person lineups and pad lineups. With pad lineups, such as the one used in this case, Deputy Pikett is contacted after a suspect has been identified. He uses six quart-size canisters numbered one through six and places the canisters in a position "perpendicular to the wind" to avoid cross-contamination. He places control samples matching the suspect's race and gender characteristics in five of the six canisters and places a sample of the suspect's scent in the sixth canister. He then allows a bloodhound to sniff a sample of a scent taken from a piece of evidence at the crime scene. He walks the bloodhound near the six canisters and it alerts when it detects a scent matching the scent taken from the crime scene. Deputy Pikett testified that each bloodhound alerts to a scent differently. Clue stands in front of the canister and wags her tail. She then jumps in Deputy Pikett's lap. James Bond turns around 90 degrees from the canister and shakes. Quincy turns around 90 degrees and barks. In this case, the three bloodhounds alerted to appellant's scent when they were given a sample of the scent taken from the music room where the complainant kept his safe, his credit cards, his jump drive, his electric guitars, his MP3 player, and his checkbook. Appellant presented testimony from Turner. Turner testified at trial that appellant did not enter the complainant's house. In connection with his guilty plea, however, Turner stipulated that he had committed the burglary with appellant. Turner testified that he was lying at the time he made his guilty plea. He testified that appellant was babysitting his child at the apartment of the child's mother during the morning prior to the burglary. Turner testified that he broke into the complainant's house and took the missing items over three trips to and from the apartment complex behind the complainant's house. He gave appellant several items from the burglary, including several rings. Appellant also presented testimony from Tiffany Hall. Hall testified that she saw appellant babysitting his child at 8 a.m and at 10:30 a.m on the morning of the burglary. On March 12, 2008, the jury convicted appellant of burglary of a habitation and sentenced him to 9 years in prison. Appellant gave notice of appeal. Admissibility of Dog Scent Evidence
In his first point of error, appellant argues that the trial court erred in admitting the dog scent evidence. If, on appeal, a defendant claims the trial judge erred in admitting evidence offered by the State, this error must have been preserved by a proper objection and a ruling on that objection. See Tex. R. App. P. 33.1; Tex. R. Evid. 103; Martinez v. State, 98 S.W.3d 189, 193 (Tex.Crim.App. 2003); Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). Here, appellant's trial counsel stated that he had no objections when the State introduced the dog scent evidence. The trial court admitted the evidence. Therefore, appellant failed to preserve error. Tex. R. App. P. 33.1; Tex. R. Evid. 103; Martinez, 98 S.W.3d at 193; Ethington, 819 S.W.2d at 858. We overrule appellant's first point of error. Ineffective Assistance of Counsel
In his second point of error, appellant argues that trial counsel was constitutionally ineffective in failing to object to the trial court admission of Deputy Pikett's testimony regarding the "scent lineup" evidence used to implicate appellant in the offense. Standard of Review
We evaluate the effectiveness of counsel under the two-pronged test enunciated in Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066 (1984). Hernandez v. State, 988 S.W.2d 770, 772 (Tex.Crim.App. 1999). First, an appellant must show that his trial counsel's representation fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. To prove this deficiency in representation, an appellant must demonstrate that his counsel's performance deviated from prevailing professional norms. Id. at 688, 104 S. Ct. at 2065. Second, he must show prejudice. Id. at 693, 104 S. Ct. at 2067. To show prejudice, an appellant must show a reasonable probability that, but for his counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694, 104 S. Ct. at 2068. When an appellant fails to satisfy one prong of the Strickland test, the reviewing court need not consider the other prong. Id. at 697, 104 S. Ct. at 2069. We cannot speculate beyond the record provided; rather, a reviewing court must presume that the actions were taken as part of a strategic plan for representing the client. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003). Ineffective assistance of counsel claims must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 836 (Tex.Crim.App. 2002). That record must itself affirmatively demonstrate the alleged ineffectiveness. Id. at 836-37. A defendant must prove, by a preponderance of the evidence, that there is, in fact, no plausible professional reason for a specific act or omission. Id. at 836. When no reasonable trial strategy could justify the trial counsel's conduct, counsel's performance falls below an objective standard of reasonableness as a matter of law, regardless of whether the record adequately reflects the trial counsel's subjective reasons for acting as he did. Andrews v. State, 159 S.W.3d 98, 102 (Tex.Crim.App. 2005). When trial counsel fails to object to the admission of novel scientific evidence, he is within bounds of professional competence in not making an objection if the State could have established that the novel scientific evidence is relevant and not barred by the Texas Rules of Evidence. Patrick v. State, 906 S.W.2d 481, 496 (Tex.Crim.App. 1995). If trial counsel reasonably perceives that an objection to novel scientific evidence would be frivolous, he is within the bounds of professional competence if he fails to object to the admission of the evidence. Id. Here, trial counsel failed to object to the admission of expert testimony regarding the results of the scent lineup, which appellant contends produced the sole evidence that resulted in his being charged with burglary of a habitation in addition to the original charge of theft. We therefore examine whether expert testimony of dog scent evidence in this case was admissible. Admissibility of Dog Scent Evidence
We review a trial court's decision to admit or exclude scientific expert testimony under an abuse of discretion standard. Sexton v. State, 93 S.W.3d 96, 99 (Tex.Crim.App. 2002); see also Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). If the trial court's ruling is within the zone of reasonable disagreement, then the trial court's ruling will be upheld. Sexton, 93 S.W.3d at 99. Application of Rule 702 Texas Rule of Evidence 702 states, "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." Tex. R. Evid. 702; Sexton, 93 S.W.3d at 99. The Court of Criminal Appeals has recognized that 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. Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App. 1992). Thus, in a case such as this, where the trial court is faced with an offer of expert testimony on a scientific topic unfamiliar to lay jurors, the trial court's first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching accurate results. Id. In Kelly, the Court of Criminal Appeals held, "Evidence derived from a scientific theory, to be considered reliable, must satisfy three criteria in any particular case: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and () the technique must have been properly applied on the occasion in question." Id. at 573. Non-exclusive factors that could affect a trial court's determination of reliability include: "(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 qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the techniques; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with such the underlying scientific theory and technique can be explained to the court; (7) the experience and skill of the person(s) who applied the technique on the occasion in question." Id. When expert testimony addresses fields of study aside from the hard sciences, such as the social studies or fields that are based primarily upon experience and training as opposed to the scientific method, however, the reliability standard set out in Kelly applies with less rigor. Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex.Crim.App. 1999); Trejos v. State, 243 S.W.3d 30, 49 (Tex.App.-Houston [1st Dist.] 2007, pet. ref'd); Winston v. State, 78 S.W.3d 522, 526 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). In Nenno, the Court of Criminal Appeals stated that the appropriate questions for assessing reliability when addressing fields that are primarily based upon experience and training are: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert's testimony is within the scope of the field; and (3) whether the expert's testimony properly relies upon or utilizes the principles involved in the field. Nenno, 970 S.W.2d at 561; Trejos, 243 S.W.3d at 49; Winston, 78 S.W.3d at 526. The Fourteenth Court of Appeals adopted the less rigorous Nenno test when reviewing the reliability of expert testimony that describes a dog's alert to a scent. Winston, 78 S.W.3d at 526. This Court had previously adopted the Winston application of the Nenno test to expert testimony that describes a dog's alert to a scent. Trejos, 243 S.W.3d at 49; see also Risher, 227 S.W.3d 133, 136-37 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). Appellant concedes that the State satisfied the first two prongs of the Nenno test in this case. However, he challenges the evidence on the third prong of the Nenno test, which requires the court to determine whether the proffered expert testimony properly relies upon or utilizes the principles involved in the field of expertise. Nenno, 970 S.W.2d at 561; Winston, 78 S.W.3d at 527. In Winston, the Fourteenth Court of Appeals held that three factors must be used to determine whether the proffered expert testimony properly relies upon or utilizes principles involved in dog-scent lineups: (1) the qualifications of the particular trainer; (2) the qualifications of the particular dog; and (3) the objectivity of the particular lineup. Winston, 78 S.W.3d at 527. In Winston, Deputy Pikett was found to be a qualified trainer of bloodhounds and Quincy was found to be a dog qualified to detect human scent. Id. at 527-28. Appellant concedes that Deputy Pikett is qualified to train bloodhounds and the dogs used here are qualified to detect human scent. Appellant argues, however, that the pad lineup used here was not objective. Deputy Pikett testified that he uses pad lineups when the police have already identified a suspect, as in this case. In Winston, the Fourteenth Court of Appeals upheld the trial court's ruling to admit evidence from a pad lineup, performed similarly to the pad lineup in this case. Id. at 528. We conclude, therefore, that appellant has failed to carry his burden of showing that the dog scent evidence admitted in this case was inadmissible. At most, appellant has shown weaknesses in the testimony that provide a basis for cross-examination, but he has not shown that its admission is outside the zone of reasonable disagreement. We conclude that appellant's trial counsel's performance was within the bounds of professional competence in failing to object to the dog scent evidence because the State could have established that the dog scent evidence was relevant and not barred by the Texas Rules of Evidence, making his objection unlikely to have succeeded. Patrick, 906 S.W.2d at 496. Therefore, we hold that appellant has failed to satisfy the first prong of Strickland. See Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. We overrule appellant's second point of error. Confrontation Clause
In his third point of error, appellant argues that his right to confrontation was violated when the trial court admitted the dog scent evidence because he did not have the opportunity to cross-examine the bloodhounds and because he had no video recording of the scent lineup. If, on appeal, a defendant claims his right to confrontation has been violated, this error must have been preserved by a proper objection and a ruling on that objection. Tex. R. App. P. 33.1; Holland v. State, 802 S.W.2d 696, 700 (Tex.Crim.App. 1991); Campos v. State, 186 S.W.3d 93, 98 (Tex.App.-Houston [1st Dist.] 2005, no pet.) ("The right of confrontation is vital to an ordered criminal justice system, but it is nonetheless a trial right, and a defendant waives his right to confront witnesses if he does not object at trial."). Here, appellant's trial counsel stated that he had no objections when the State introduced the dog scent evidence. The trial court admitted the evidence. Therefore, appellant failed to preserve error. Tex. R. App. P. 33.1; Holland, 802 S.W.2d at 700; Campos, 186 S.W.3d at 98. We overrule appellant's third point of error. Factual Sufficiency
In his fourth point of error, appellant argues that the evidence presented at trial was factually insufficient to sustain his conviction. Standard of Review
A factual sufficiency review involves three ground rules. Lancon v. State, 253 S.W.3d 699, 704 (Tex.Crim.App. 2008). First, we must recognize that a jury has already passed on the facts, and we must accord the jury the proper deference to avoid substituting our judgment for that of the jury. Id. at 704-05 (citing Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996)). Second, where we find the facts determined by the jury to be insufficient to affirm a conviction, we must clearly lay out and explain how the evidence supporting the verdict is too weak on its own to support it, or how contradicting evidence greatly outweighs evidence supporting the verdict. Id. at 705. Finally, we view all of the evidence in a neutral light when conducting this review. Id. We may only set aside a verdict where the evidence supporting the verdict is so weak as to render the verdict clearly wrong or manifestly unjust. Id. (citing Cain v. State, 958 S.W.2d 404, 406 (Tex.Crim.App. 1997)). A jury is in the best position to evaluate the credibility of witnesses, and we are required to afford "due deference" to the jury's determinations. Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006). A person commits burglary if, without the effective consent of the owner, the person enters a habitation, or a building or any portion of a building not then open to the public, with intent to commit a felony, theft, or an assault; or remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or enters a building or habitation and commits or attempts to commit a felony, theft, or an assault. See Tex. Penal Code Ann. § 30.02 (Vernon 2003). A defendant's unexplained possession of property recently stolen in a burglary permits an inference that the defendant is the one who committed the burglary. Rollerson v. State, 227 S.W.3d 718, 725 (Tex.Crim.App. 2007); see also Espinosa v. State, 463 S.W.2d 8,10 (Tex.Crim.App. 1971) ("Possession of recently stolen property, from a building which was left closed, is sufficient to support the conviction for burglary with intent to commit theft."). Here, the State presented testimony from the complainant that he discovered his house had been burglarized and watched three persons loading vehicles with his possessions. The police testified that the complainant's house showed signs of forced entry when he inspected it. Appellant possessed the jump drive obtained during the burglary of the complainant's house. He also possessed a pawnshop ticket for a ring obtained during the burglary of the complainant's house. Police recovered the complainant's jump drive and a pawn shop receipt from appellant. Appellant told police that he obtained the jump drive from the complainant and then told police that Turner had given him the items and that he had never entered the complainant's house. The complainant's wife accompanied police to a pawnshop where they recovered a ring she owned. Police discovered that appellant had left his picture identification number with the pawnshop when he pawned the ring. The State also presented testimony from Deputy Pikett. He testified that his bloodhound alerted to appellant's scent when he performed a scent lineup using samples taken from the music room where the complainant kept his safe, his credit cards, his jump drive, his electric guitars, his MP3 player, and his checkbook. Appellant presented testimony from Turner. Turner testified that appellant never entered the house and that appellant was babysitting at the time of the burglary in spite of his earlier stipulation in his guilty plea that he had committed the crime with appellant. He also testified that he gave appellant several items from the burglary, including several rings. Appellant also presented testimony from Hall. She testified that she saw appellant babysitting his child at 8 a.m and at 10:30 a.m on the morning of the burglary. The jury was in the best position to assess the credibility of the witnesses. Marshall, 210 S.W.3d at 625. Moreover, because he possessed several items obtained during the burglary, the jury was permitted to make an inference that appellant participated in the burglary. See Rollerson, 227 S.W.3d at 725; Espinosa, 463 S.W.2d at 10. We cannot say, therefore, that the evidence presented was so weak as to render the verdict clearly wrong or manifestly unjust. See Lancon, 253 S.W.3d at 705. We hold that the evidence presented at trial was factually sufficient to sustain appellant's conviction for burglary. See Lancon, 253 S.W.3d at 704; Rollerson, 227 S.W.3d at 725; Espinosa, 463 S.W.2d at 10. We overrule appellant's fourth point of error. Conclusion
We affirm the judgment of the trial court.