Mouton v. State

892 S.W.2d 234, 1995 Tex. App. LEXIS 137, 1995 WL 29047
CourtCourt of Appeals of Texas
DecidedJanuary 25, 1995
DocketNo. 09-93-292 CR
StatusPublished
Cited by5 cases

This text of 892 S.W.2d 234 (Mouton v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mouton v. State, 892 S.W.2d 234, 1995 Tex. App. LEXIS 137, 1995 WL 29047 (Tex. Ct. App. 1995).

Opinion

[235]*235OPINION

WALKER, Chief Justice.

Appellant was convicted by a jury for having committed the felony offense of Aggravated Robbery. The jury assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of twenty (20) years. Appellant raises six points of error on appeal, none of which complain of the sufficiency of the evidence to support the conviction.

Point of error one provides, “The trial court erred and abused its discretion in denying appellant’s objection to the qualification of State’s witness Kathy Deason.” The State called Ms. Deason, an identification technician with the Beaumont Police Department, to testify to the results of fingerprint analy-ses conducted at the victim’s house. At this point in the trial the 72 year old victim, Ms. Elouise Dixon, had already testified and identified appellant as the person who twice came to her door asking to use the phone. Upon being permitted to enter the second time, appellant grabbed the victim’s toaster and struck the victim on the head. Appellant then dragged the victim into the bedroom exclaiming that he needed money. At some point while still in the bedroom, the victim observed appellant pick up the victim’s radio. Out of fear that she would be assaulted again, the victim instructed appellant to take her money which was located in her purse. Appellant took approximately $25 and left the house. The victim testified that she had met appellant on one previous occasion approximately one month prior to the incident in question.

With regard to Ms. Deason’s qualifications, she testified as follows:

Q. (State) Mrs. Deason, how are you employed?
A. (Deason) I’m employed as an identification criminologist technician for Beaumont Police Department.
Q. How long have you been employed? A. 11 months.
Q. All you just said, what (sic) your duties as a tech?
A. As an I.D. tech we do crime scene analysis. We do photographs, fingerprinting, collect evidence, compare fingerprints, develop and print our own photographs.
Q. And have you ever been called on to make fingerprint comparisons and identifications?
A. Yes, sir.
Q. Have you done this on few or many occasions?
A. Many occasions.
Q. Can you take a print that is unknown to you and compare it with a known print of a person and determine if it belongs to the same person?
A. Yes, sir, you can.
Q. Have you done that on few or many occasions?
A. Many occasions.
⅜ ⅜ ⅜ ⅜ ⅜ ⅜
Q. And what type — Did you lift prints from those surfaces?
A. Yes, sir. From the toaster and from the radio.
Q. What — Is there a specific name for that type of print that you lifted?
A. The pattern is a whirl pattern. It’s a latent print.
Q. Latent print. Can you explain to the jury what a latent print is. (sic)
A. A latent print is where you would touch the surface of any — touch any surface. Then we use a fingerprint powder dust to dust over the surface. Then we use tape — The print will become visible with the powder. Then we use fingerprint tape to lift the print with. Then it’s placed on a card where it’s kept so the print will not be mutilated or destroyed.
⅜: ⅜ * ⅜ ⅝: ⅜
Q. Do you have an opinion based on your expereince (sic) and training whether the inked print on State’s Exhibit Number 4 and Number 3 are from the same person?
[Trial Counsel]: Your Honor, we object. She hasn’t been qualified and—
The Court: Sustained. You have to qualify the witness.
[The State]: Yes, sir.
[236]*236Q. (State) Mrs. Deason, could you explain your training?
A. (Deason) Our training is from Sar-geant (sic) Tatum. We receive training and extensiee (sic) schooling from Sargeant (sic) Tatum. We go through a three month fingerprint course under Sargeant (sic) Tatum, who is the head our (sic) department.
Q. How long have you been doing this?
A. 11 months.
Q. Do you have an opinion whether or not State’s Exhibit Number 3 and 4 are from the same person?
[Trial Counsel]: Your Honor, we are going to renew our objection as to the lack of qualifications. It would allow her to give testimony in this regard, especially on the date that these were obtained.
The Court: Overruled.

Appellant correctly points out that admissibility of expert testimony is governed by Tex.R.CRIM.Evid. 702, which provides: “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.” Appellant also correctly recognizes that the initial burden of establishing a witness’s qualifications lies with the party offering the testimony. Matson v. State, 819 S.W.2d 839, 851 (Tex.Crim.App.1991). This burden must be carried by clear and convincing evidence. See Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992). The determination that a witness has been sufficiently qualified as an expert rests largely with the discretion of the trial court, and the court’s decision will not be disturbed on appeal absent a clear showing of abuse of discretion. Sterling v. State, 800 S.W.2d 513, 521 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1213, 111 S.Ct. 2816, 115 L.Ed.2d 988 (1991).

We see Matson as also instructive in two areas. Relying on Holloway v. State, 613 S.W.2d 497, 501 (Tex.Crim.App.1981), the Matson Court observed that no rigid formula exists for determining whether a particular witness is qualified to testify as an expert; and that a witness may be qualified by reason of knowledge, skill, experience, or training, regardless of its source. Matson, supra at 851, n. 10. In the instant case, the pertinent portion of the record before us, reproduced above, contains what we believe to be sufficient evidence of Ms. Deason’s qualifications by way of her testimony concerning her knowledge, skill, experience, training, and education. As we read Rule 702, any one of these methods of qualification can be sufficient proof as they are listed in the disjunctive. See also, Holloway, supra at 501.

Secondly, the Matson

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Bluebook (online)
892 S.W.2d 234, 1995 Tex. App. LEXIS 137, 1995 WL 29047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mouton-v-state-texapp-1995.