Opinion
No. 14-05-00798-CR
Memorandum Opinion filed October 24, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 339th District Court, Harris County, Texas, Trial Court Cause No. 1006747. Affirmed.
Panel consists of Justices FOWLER, EDELMAN, and FROST.
MEMORANDUM OPINION
Carlos David Silva appeals a conviction for murder on the ground that the trial court erred by excluding the testimony of his eyewitness identification expert, Dr. Steven Rubenzer, a forensic psychologist. We affirm. A trial court's ruling on the admission of expert testimony is reviewed for abuse of discretion. Ellison v. State, ___ S.W.3d ___, ___ (Tex.Crim.App. 2006). In addition, a trial court's decision to admit or exclude evidence will be upheld if it is correct under any theory of law applicable to the case and supported by the record before the trial court at the time the ruling was made. Brito Carrasco v. State, 154 S.W.3d 127, 129 (Tex.Crim.App. 2005); Osbourn v. State, 92 S.W.3d 531, 538 (Tex.Crim.App. 2002). An expert witness's testimony is admissible if the expert is qualified and his specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue. Tex. R. Evid. 702. To meet this requirement, expert testimony must be sufficiently reliable and relevant. Russeau v. State, 171 S.W.3d 871, 881 (Tex.Crim.App. 2005), cert. denied, 126 S. Ct. 2982 (2006). The reliability of scientific testimony is determined by a variety of factors, including the qualifications of the expert witness. Id. The relevance of such testimony depends on whether the testimony sufficiently ties enough facts of the case to the scientific principles about which the expert testifies that the testimony is thereby helpful to the jury. Morales v. State, 32 S.W.3d 862, 865B66 (Tex.Crim.App. 2000). In addition, even expert testimony that is otherwise relevant and reliable may be excluded if it would confuse or mislead the jury. Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App. 1992). In this case, the trial court excluded Dr. Rubenzer's testimony on eyewitness and cross-racial identification on the ground that he did not adequately establish his qualifications as an expert in that field. Without deciding whether the testimony was not reliable for that reason, we conclude that the exclusion of the evidence was within the trial court's discretion for lack of relevance based on the evidence presented to the trial court at the Daubert hearing (the "hearing"). At the hearing, Dr. Rubenzer proffered testimony on: (1) how the human memory works; (2) "cross-race" identification and "weapon focus"; and (3) photo spread identification. He stated that he was only there to discuss the human memory and the eyewitness identification factors as well as the techniques and standards for administering photo spreads. However, he did not relate most of the abstract principles of which he spoke to the facts of the case or specify how any of the eyewitness identification factors could have affected the eyewitness identification in this case. For instance, he testified about the different stages of memory, but did not discuss how that information could be pertinent to the eyewitness identification in this case. Similarly, Dr. Rubenzer described theories of cross-racial identification and weapon focus, but provided no basis for the jury to evaluate how those theories affected the accuracy of Charlotte Onenese's eyewitness testimony. Regarding the use of photo spreads, most of Dr. Rubenzer's testimony focused on matters not involving scientific, technical, or other specialized knowledge. For instance, he expressed concerns over the differences between appellant's photo and those of the other subjects. He stated that the differences in the backgrounds of the photos and appellant's hair style compared to the other subjects could have caused appellant's photo to stand out on the photo spreads. Dr. Rubenzer also stated the photo spread administrations were problematic because they were not video taped or recorded; however, he did not discuss how this may have affected the eyewitness identifications made in this case. Under these circumstances, it was within the trial court's discretion to conclude that Dr. Rubenzer's testimony would not have been helpful to the jury in understanding the evidence or deciding any facts at issue in this case. Therefore, appellant's issue is overruled, and the judgment of the trial court is affirmed.
A jury found appellant guilty, and the trial court assessed punishment at life in confinement.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).
Many of these concerns were brought before the jury through another witness, investigator Brian Harris.