Risher v. State

227 S.W.3d 133, 2006 WL 3518145
CourtCourt of Appeals of Texas
DecidedApril 25, 2007
Docket01-05-00960-CR
StatusPublished
Cited by3 cases

This text of 227 S.W.3d 133 (Risher 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
Risher v. State, 227 S.W.3d 133, 2006 WL 3518145 (Tex. Ct. App. 2007).

Opinion

OPINION

SAM NUCHIA, Justice.

A jury convicted appellant, Howard Forrest Risher, of possession with intent to deliver more than 4 grams and less than 200 grams of cocaine, and assessed punishment at 50 years in prison. Appellant challenges the trial court’s admitting the expert testimony of Officer D.L. Oglesby as an abuse of discretion. We affirm.

Facts

Appellant agreed to sell Jackie Wilson, a police informant, two kilograms of cocaine. After two failed attempts, appellant met with Wilson outside of a Luby’s restaurant on June 28, 2004. Wilson entered a car driven by Juan Martinez and with appellant in the back seat. After driving away from the restaurant, Martinez parked the car and proceeded to remove a bag from under the seat. He took out two brick-shaped objects wrapped in plastic and showed them to Wilson. Martinez then made a V-shaped cut in the wrapping of each brick and allowed Wilson to taste the substance.

After tasting the substance and identifying it as cocaine, Wilson informed appellant and Martinez that he would have to make a call in order to get the money to complete the transaction. Appellant and Martinez dropped Wilson off at a gas station across the street from the restaurant. Wilson proceeded to call Officer Gonzales, a member of the surveillance team, to inform him about the deal. However, as Wilson was making the phone call, appellant got into the driver’s seat of the car and, with Martinez in the back seat, sped away. Police officers, who in four or five unmarked cars had been monitoring the transaction, pursued appellant as he drove onto the freeway, and officers in two marked cars joined the chase. Appellant exited the freeway and drove into a residential neighborhood. He lost control of the car and crashed it into a utility pole.

The police pulled appellant and Martinez out of the car and searched it, but except for a small bag containing marijuana, found no other narcotics. Martinez told the officers that appellant had thrown the two bricks of cocaine out of the window during the chase. The officers searched the freeway where the chase had occurred and found two bricks of cocaine near the intersection where appellant had left the freeway. The plastic wrapping around each brick had a V-shaped cut. Wilson identified the bricks as those he had seen in appellant’s possession. Gonzales testified that, to link the bricks of cocaine to appellant and Martinez, he called Oglesby, a canine handler, to perform a human-scent lineup.

After arriving on the scene, Oglesby prepared a scent pad by dropping a sterile gauze pad into the plastic bag where the police officers had placed the bricks of cocaine. He then directed appellant, an African-American, and five Caucasian police officers to form a lineup. After the six men were in place, Oglesby retrieved his bloodhound, Lucy, from his truck and let her sniff the scent pad. On Oglesby’s signal to start, Lucy went directly to the lineup and, when she got to appellant, stopped and touched her nose to him. Oglesby testified that this was how Lucy was trained to do her alert.

*136 The trial court held a hearing the day before trial to hear appellant’s objections to Oglesby’s testimony regarding the scent lineup. 1 At the close of the hearing the judge ruled that he would allow Oglesby’s testimony.

Admissibility of Expert Testimony

In his sole point of error, appellant contends that the trial court erred in admitting the expert testimony of Oglesby. Specifically, he argues that Oglesby lacked the qualifications to conduct a human-scent lineup, that Lucy was not a reliable scent trailer, and that the lineup was not objective.

A. Standard of Review

We review a trial court’s decision to admit or exclude scientific testimony for abuse of discretion and will uphold the ruling if it is within the zone of reasonable disagreement. Sexton v. State, 93 S.W.3d 96, 99 (Tex.Crim.App.2002). A trial court abuses its discretion when it acts without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.1990) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985) as stating appropriate test for abuse of discretion).

The Court of Criminal Appeals has held that rule 702 of the Texas Rules of Evidence requires the satisfaction of a three-part test before expert scientific testimony is admissible. See Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992) (holding that admissibility of novel scientific evidence was governed by three-part reliability test: (1) scientific theory must be valid, (2) application of theory must be valid, and (3) technique must have been properly applied); Hartman v. State, 946 S.W.2d 60, 62-63 (Tex.Crim.App.1997) (applying Kelly requirements to all scientific evidence, whether or not it was novel). 2 In determining reliability, courts consider factors such as (1) whether the theory or technique can be or has been tested, (2) whether the theory or technique has been subjected to peer review or publication, (3) the known or potential rate of error, and (4) general acceptance within the relevant scientific community. Nenno v. State, 970 S.W.2d 549, 560 (Tex.Crim.App.1998), overruled on other grounds, State v. Terrazas, 4 S.W.3d 720 (Tex.Crim.App.1999). In Nenno, the Court of Criminal Appeals explained that these factors do not necessarily apply outside of the hard sciences, and that the appropriate questions in considering the reliability of other fields 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 that 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.

B. Discussion

Appellant relies on the third prong of the Nenno test to challenge the admissibility of Oglesby’s expert testimo *137 ny. Extrapolating from opinions of other jurisdictions regarding the admission of scent-lineup evidence, the Fourteenth Court of Appeals set out three factors to determine whether the third prong is satisfied. Winston v. State, 78 S.W.3d 522, 526-27 (Tex.App.-Houston [14th] 2002, pet. ref d). The three factors are: (1) the qualifications of the particular trainer, (2) the qualifications of the particular dog, and (3) the objectivity of the particular lineup. Id. at 527.

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227 S.W.3d 133, 2006 WL 3518145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/risher-v-state-texapp-2007.