TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
v.
The State of Texas, Appellee
NO. 0964382, HONORABLE FRED A. MOORE, JUDGE PRESIDING
According to appellant's written confession, he and Brush planned to take a .38 caliber pistol belonging to Brush to a pawn shop. "I was sitting on the bed on the back left hand corner. I was fixing to reload it and put one bullet in it playing with it. I clicked it off once and then again. When I clicked it the second time it went off. At my woman was where it was pointed." The bullet struck Brush in the head, killing her.
Brush's nephew, D.J. Henderson, witnessed the shooting. Henderson testified that appellant put a single bullet in the pistol and told Brush "to go to the window and shoot it in those woods." When Brush told appellant she did not want to do this, "[H]e just . . . pointed it at her head and then he clicked it two times and then it went off and he shot her in the head."
Appellant's first point of error is that the district court erred by "permitting testimony stating a conclusion of law from a witness who was speaking outside of his acknowledged area of expertise and who was not knowledgeable in regard to the relevant legal standards of recklessness and negligence." The witness is question was Michael Nellis, a licensed peace officer, a certified firearms instructor, and the owner of a firearms training school. Nellis was asked if the conduct described in appellant's confession was reckless or criminally negligent, as those terms are statutorily defined. Nellis answered, "I would say it was reckless."
Appellant voiced three objections to Nellis's testimony at trial:
(1) "I anticipate that he's going to testify about whether or not this handgun was used in conformity with safety standards that he's familiar with and I think his opinion is irrelevant for the jury. I think it's for them to decide." The district court did not rule on this objection.
(2) "It is calling for a legal conclusion, not a conclusion based on his field of expertise . . . ." "[A]n expert may only offer an opinion in his field of expertise. . . . He can't offer an opinion on the issue of recklessness. That is the ultimate charge to the jury. Cause of death, manner and means, all of those are clearly subject to the opinion. This is an attempt to offer the opinion -- the heart of my objection is it's a legal conclusion, it's a legal opinion. It goes straight to the law that is going to be put to the jury." The court overruled this objection.
(3) "I'm objecting to the presentation of the legal question to this witness and point to the plain language of 704: 'An expert witness is not entitled to give a legal opinion or answer as to a point of law,' and that's what I believe this man is doing." The prosecutor responded that rule 704 permits "an opinion on the ultimate issue of fact," and that he intended to ask the witness "whether the handling of the firearm was reckless or negligent as defined in Texas law." Defense counsel then added, "That is construing law and legal definitions and I object for that reason." This objection was overruled.
Texas Rule of Criminal Evidence 704 states: "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Under rule 704, opinion testimony regarding a defendant's culpable mental state is not excludable on the ground that this is an ultimate issue for the jury. Fairow v. State, 943 3 S.W.2d 895, 897-98 n.5 (Tex. Crim. App. 1997). The decision to admit such testimony is committed to the discretion of the trial court, guided by the general principles applicable to the admission of opinion testimony. See id. at 898-901 (discussing whether trial court abused discretion by excluding lay opinion testimony as to whether defendant intentionally shot victim); 2 Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal § 704.1 (Texas Practice 2d ed. 1993).
Appellant argues that Nellis was not shown to be familiar with the legal definitions of recklessness and criminal negligence, or otherwise qualified to express a legal opinion as to appellant's state of mind when the fatal shot was fired. (1) He further argues that Nellis's opinion testimony was unnecessary because the jury was in possession of all the relevant facts and could draw the proper inferences. Appellant's trial objections, however, centered on the contention that the challenged testimony went to an "ultimate issue" or "legal question" about which expert testimony is categorically barred. The contentions he now makes were not presented to the district court and therefore were not preserved for review. We do not reach the question whether the decision to admit Nellis's opinion testimony was an abuse of discretion. Point of error one is overruled.
Appellant's second point of error complains of the admission in evidence of a twenty-two page record from the Austin Housing Authority containing documents relating to the deceased's application for public housing. Appellant contends the exhibit was irrelevant, but offers no argument or authority in support of this contention. See Tex. R. App. P. 38.1(h). At trial, the State argued that the exhibit showed that the deceased was planning to leave appellant, and therefore was evidence of motive to kill. Since the jury acquitted appellant of murder, and thus found that he did not intentionally or knowingly take Brush's life, any error in the admission of the exhibit was harmless. See Tex. R. App. P. 44.2(b). Point of error two is overruled.
Finally, appellant contends the district court erred by admitting at the punishment stage State's exhibit eighty-four, containing a complaint, information, and judgment of conviction reflecting that appellant was convicted of resisting arrest in 1994 and placed on community supervision. Appellant asserts that this conviction was inadmissible because it was not final. The record does not support this assertion, which is without merit in any event. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 1997). There also is no support in the record for appellant's contention that the term of supervision had expired and the cause had been dismissed. The opinion on which appellant relies, Taylor v. State, 911 S.W.2d 906 (Tex. App.--Fort Worth 1995, pet. ref'd), is not on point. Point of error three is overruled.
The judgment of conviction is affirmed.
J. Woodfin Jones, Justice
Before Chief Justice Carroll, Justices Jones and Kidd
Affirmed
Filed: November 20, 1997
Do Not Publish
1. We note that Nellis was given the statutory definitions of recklessness and criminal negligence and asked to express his opinion in light of those definitions. Cf. Fairow, 943 S.W.2d at 901 (witness was not given legal definition of intentional). One of the factors to be considered by the court when deciding whether to admit opinions regarding mixed questions or law and fact is whether the proffered opinion is based on adequately explored legal criteria. Guide to Texas Rules § 704.1.
s what I believe this man is doing." The prosecutor responded that rule 704 permits "an opinion on the ultimate issue of fact," and that he intended to ask the witness "whether the handling of the firearm was reckless or negligent as defined in Texas law." Defense counsel then added, "That is construing law and legal definitions and I object for that reason." This objection was overruled.
Texas Rule of Criminal Evidence 704 states: "Testimony in the fo