Blasdell, Brandon Scott

384 S.W.3d 824, 2012 Tex. Crim. App. LEXIS 1604, 2012 WL 6027269
Court of Criminal Appeals of Texas·Decided December 5, 2012·No. PD-1892-11·Published·Cited by 25 cases

Opinions

OPINION

PRICE, J., delivered the opinion of the Court in which KELLER, P.J., and WOMACK, JOHNSON, KEASLER, HERVEY, COCHRAN and ALCALA, JJ., joined.

The only evidence against the appellant in his prosecution for aggravated robbery was the identification testimony of the victim. The appellant offered testimony from a forensic psychologist intended to educate the jury about the so-called “weapon focus effect.” The trial court ruled that this expert testimony was not relevant, however, because it was insufficiently tied to the particular facts of the case, and the Ninth Court of Appeals affirmed the appellant’s conviction in an unpublished opinion.1 We granted the appellant’s petition for discretionary review in order to examine the court of appeals’s holding that the trial court did not abuse its discretion to exclude the expert’s testimony for a lack of “fit.” We reverse.

FACTS AND PROCEDURAL POSTURE

Katy Hadwin had stopped to put gas in her car on the evening of February 11, 2007, when a man approached her, pointed a gun at her face, and demanded her purse. Hadwin fumbled to unlock her car door and reached across the driver’s seat to retrieve her purse from the passenger seat as her assailant yelled, “Hurry up, bitch.” Once she gave the purse to her assailant, he fled on foot to a nearby older model white truck that was “similar to a Toyota.” Although it was close to dark, around 8:00 p.m., the scene was well lit.

Approximately a week later, Detective Juan Sauceda of the Conroe Police Depart[827]*827ment called Hadwin down to the station to view a photo lineup. Because the appellant roughly fit the description that Had-win had given to the responding officers, and because he owned a white truck (albeit a Dodge), he became a suspect in the crime, and Sauceda compiled the photo lineup by taking the appellant’s photo and those of five others whom he thought looked like the appellant. Before showing Hadwin the photo lineup, Sauceda asked her to fill out a suspect description form. There she described her assailant as having “light blue/green eyes” and a “uni-brow.” She described the gun that had been pointed at her face as a “revolver.” When Sauceda showed her the photo lineup, Hadwin identified the appellant as her assailant, writing on the lineup form that she was “100% sure that is the guy.”

At trial, Hadwin repeated her description of the robber as having “light colored eyes and a unibrow[,]” which she described as “one eyebrow instead of two” and “thick.” She repeated that she was “100% sure” of her identification in the photo lineup “[b]ecause I can’t forget his face.” She also identified the appellant in the courtroom as the man who robbed her. Although she was “not really” familiar with guns, she recognized that what had been pointed at her face was a black revolver. She acknowledged that she had gotten a “good look at” it, and that having it pointed at her face was “the scariest thing” she had ever been through. Had-win initially estimated that the robbery had spanned five minutes, but after going over the events with defense1 counsel, she agreed it probably occurred over a period of “a little longer than 20 seconds.” Though Hadwin ultimately expressed “no doubt” that the appellant was the robber, the State presented no evidence to corroborate that identification. Hadwin never recovered the purse or its contents, nor did she receive notification that anyone ever tried to use her credit cards. None of these items was found in the appellant’s possession when he was arrested, and no gun was found or even registered in his name.

After the State rested, the trial court conducted a hearing outside the jury’s presence to preview the testimony of Dr. Steven Rubenzer, a forensic psychologist whom the appellant proposed to call as an expert witness with respect to the potential pitfalls with eyewitness identification.2 Among other matters about which the appellant desired Rubenzer to testify was a phenomenon known as the weapon focus effect, which he characterized as “a tendency, when there is a weapon involved, [828]*828particularly in brief encounters, for the weapon to essentially attract attention away from the perpetrator’s face and, by doing so, result in lesser accuracy for the identification.” Rubenzer had reviewed the offense report and had talked with defense counsel about the facts of the case, but had interviewed neither Hadwin nor Sauceda about the circumstances of the offense or the photo lineup. He was aware, however, that the robber had pointed the revolver at Hadwin’s face during the brief robbery. Toward the end of the hearing, the trial court questioned Ruben-zer with respect to this topic:

THE COURT: Okay. Then that’s— weapon focus issue. Do you have any specific opinion that that happened in this case, the weapon distracted or reduced the focus on the person’s—
[Rubenzer]: Yes.
THE COURT: — face?
[Rubenzer]: Yes.
THE COURT: Do you have an opinion? Tell me about that.
[Rubenzer]: Well, she identified that — the weapon on the description sheet as a revolver.
THE COURT: And that — and that alone, you’re saying, based on your studies, et cetera, would indicate that—
[Rubenzer]: It tells me that she did look at the gun.
THE COURT: Well, but ultimately we’re talking about misidentification or bias or whatever you want to call it, with respect to a photo spread and her identification as to the photo spread. Do you have an opinion that that played a role in this case or just that it could because we know generally that’s something that happens?
[Rubenzer]: I’d say it would have to be a “possibly.”
THE COURT: “Possibly.” Okay.

While the trial court allowed Rubenzer to testify about certain aspects of the procedure that Sauceda utilized in conducting the photo lineup, he prohibited the appellant from asking Rubenzer any questions designed to educate the jury about the weapon focus effect.

In his only point of error on appeal, the appellant argued that the trial court erred in excluding Rubenzer’s expert testimony regarding the weapon focus effect. Setting aside the question whether the appellant had established the validity of the science that purportedly establishes the weapon focus effect, and hence, its reliability for purposes of Rule 702,3 the court of [829]*829appeals affirmed the trial court’s ruling on another basis. Because Rubenzer “did not commit to an opinion that the ‘weapon focus effect’ had impacted [Hadwin’s] identification of’ the appellant, the court of appeals held, any expert testimony on that topic was not “sufficiently tied to the pertinent facts of the case[.]”4 “Without tying the general background on the topic to an opinion pertinent to [Hadwin’s] identification of’ the appellant, the court of appeals summarized, “the trial court could have reasonably concluded that Dr. Rubenzer’s testimony concerning the ‘weapon focus effect’ would not assist the trier of fact.”5

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Blasdell, Brandon Scott, 384 S.W.3d 824, 2012 Tex. Crim. App. LEXIS 1604, 2012 WL 6027269 (Tex. 2012).

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