Affirmed and Memorandum Opinion filed August 23, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-04-00311-CR
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RICHARD GLEN STURGEON, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 812,784
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M E M O R A N D U M O P I N I O N
Appellant Richard Glen Sturgeon appeals from his conviction for aggravated robbery. In his sole point of error, appellant argues that the trial court erred when it excluded expert testimony on the reliability of eyewitness identifications. We affirm.
Background
In the early hours of Christmas morning of 1998, two men robbed complainant Minh Nguy at gunpoint in his driveway, taking his wallet, keys, and car. Later that day, police stopped appellant when they found him driving yet another stolen car. Police officers found Nguy=s stolen personal items in the possession of one of the passengers in the car. Realizing appellant matched the description of one of Nguy=s attackers, police detained him. After Nguy identified appellant as one of the men who attacked him, appellant was charged with aggravated robbery.
At trial, the defense proffered the expert testimony of Dr. Steven Smith on the reliability of eyewitness identifications. The trial court conducted a Kelly/Daubert[1] hearing out of the presence of the jury. Dr. Smith has been a professor of cognitive psychology for the past twenty-three years.[2] He has published over fifty articles on cognitive psychology in peer reviewed journals. Dr. Smith testified that there were hundreds of studies and experiments addressing problems with eyewitness identification. The studies suggest that factors such as lighting, duration of exposure, weapon focus, and cross-racial identification have been found to be factors affecting eyewitness identification. However, Dr. Smith did not participate in any of the studies, could not name the researchers or institutions involved, and did not produce any articles regarding these studies to the court. He produced six articles to the court, only one of which addressed eyewitness testimony.
Dr. Smith was unfamiliar with the facts of the case and had not interviewed anyone other than appellant. When he did recite the facts as he knew them, he incorrectly described the robbery as involving three men dragging Nguy from a car when the facts show that two men approached Nguy while he was standing in his driveway. He further testified that he did not intend to give an opinion as to the reliability of Nguy=s identification but felt his role was to educate the jury regarding developments in the study of memory.
After hearing Dr. Smith=s testimony, the court determined that it was neither reliable nor relevant. While the court noted that the study of memory itself was an established science, Dr. Smith=s lack of background in the area of eyewitness testimony called his individual reliability on that subject into question. Dr. Smith was not only unfamiliar with the actual facts of the case, but the few facts he recited were incorrect. Since Dr. Smith=s testimony was not in any way tailored to the facts of the case, the court held that his testimony was not relevant. Accordingly, the trial court ruled that Dr. Smith=s testimony was inadmissible.
Following a jury trial, appellant was convicted of aggravated robbery and sentenced to twenty-five years= imprisonment. This appeal followed.
Analysis
Standard of Review
We review a judge=s decision on the admissibility of evidence under an abuse of discretion standard and will not reverse the court=s ruling if it is within the zone of reasonable disagreement. Sexton v. State, 93 S.W.3d 96, 99 (Tex. Crim. App. 2002). Rule 702 of the Texas Rules of Evidence states
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.
Tex. R. Evid. 702. For testimony to be admissible under Rule 702, the party offering the testimony must demonstrate, by clear and convincing proof, that the testimony Ais sufficiently reliable and relevant to help the jury in reaching accurate results.@ Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992).
Reliability
Reliability may be established by showing that (1) the field of expertise is a legitimate one, (2) the subject matter of the proposed testimony is within the scope of that field, and (3) the testimony properly relies upon and/or uses the principles involved in the field. Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998). The Court of Criminal Appeals has identified the following non-inclusive list of factors to aid in the reliability determination:
(1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the potential rate of error of the technique; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person(s) who applied the technique on the occasion in question.
Jordan v. State, 928 S.W.2d 550, 554 n.6 (Tex. Crim. App. 1996). However, the inquiry must be flexible to suit the needs of each case. Salazar v. State, 127 S.W.3d 355, 359 (Tex. App.CHouston [14th Dist.] 2004, pets. ref=d).
Appellant argues that Dr. Smith=s testimony was reliable because he demonstrated that he was a qualified cognitive psychologist who was published in the scientifically-recognized area of cognitive psychology. Although Dr. Smith may, in fact, be exceptionally qualified and well-published in the field of cognitive psychology, he was unable to establish his credentials in the specific field of eyewitness identification, the issue at hand. This is in stark contrast to cases in which expert testimony has been found reliable when the expert in question has been specialized in the precise subject on which he is to testify. See Russeau v. State, No. AP-74466, ___S.W.3d___, 2005 WL 1523774, at *9B10 (Tex. Crim. App. June 29, 2005) (finding the testimony of an expert who had specialized training in violence risk assessment was reliable on the subject of future dangerousness); Nenno, 970 S.W.2d at 562 (concluding that an expert with extensive experience interviewing prisoners convicted of sex offenses against children could reliably testify regarding the personality profile and tendencies for recidivism of offenders who sexually victimize children). Further, Dr. Smith was unable to produce or name the studies or articles upon which he relied for his opinion, and he has done no studies that have even attempted to simulate a crime experience. See Weatherred v. State, 15 S.W.3d 540, 542B43 (Tex. Crim. App. 2000) (noting that although expert claimed to have participated in studies on eyewitness identification and to have published articles on the subject, he failed to produce or even name any of the studies, researchers, or writings in question).
For these reasons, we find that the trial court could have reasonably found that Dr. Smith=s testimony was not reliable under Rule 702 and Kelly.
Relevance
In addition to being reliable, an expert=s testimony must be deemed relevant to the facts of the specific case:
The expert must make an effort to tie pertinent facts of the case to the scientific principles which are the subject of his testimony. . . . The question under Rule 702 is not whether there are some facts in the case that the expert failed to take into account, but whether the expert=s testimony took into account enough pertinent facts to be of assistance to the trier of fact on a fact in issue.
Jordan, 928 S.W.2d at 555B56.
Appellant argues that the judge erred in finding that Dr. Smith=s testimony was not relevant. In support of this argument, he claims that Dr. Smith=s testimony addresses factors important to the trier of fact. Appellant further argues that the court in Jordan found that an expert=s testimony must only be sufficiently tied to the facts Ato meet the simple requirement that it be >helpful= to the jury@ on the issue of eyewitness reliability. See id. at 556.
In response, the State argues that the Court of Criminal Appeals has held that Ageneric testimony@ and general Astudies@ are not sufficient unless they are connected to the facts at issue. See Williams v. State, 895 S.W.2d 363, 366 (Tex. Crim. App. 1994) (finding that testimony from an expert regarding the defendant=s psychological profile was too generic to be helpful to the jury). Because Dr. Smith stated that he would testify generally about the study of human memory, made no attempt to review any of the facts, and submitted articles completely unrelated to the issue of eyewitness reliability, the State argues that his testimony is not relevant. We agree.
Courts have consistently recognized that in order to be relevant, there is a need for at least some familiarity with the facts of the issue on trial. Jordan, 928 S.W.2d at 555. In Salazar, we cited Jordan to support our finding that the expert=s Atestimony was explicitly offered solely as educational material for the jury to use in assessing the complainants= credibility@ and accordingly Awas not sufficiently tied to the facts of the case and thus was not relevant.@ Salazar, 127 S.W.3d at 360. During his voir dire testimony, Dr. Smith explicitly stated that his testimony was intended for the single purpose of educating the jury about studies in human memory. He made no effort to relate his opinions to the facts of the case and did not identify factors that could help the jury except in the most general sense. We find that the trial court did not abuse its discretion in finding that Dr. Smith=s testimony was not relevant.
Because we find the trial court did not abuse its discretion in finding that Dr. Smith=s testimony was neither relevant nor reliable, we overrule appellant=s sole issue and affirm the trial court=s judgment.
/s/ Leslie Brock Yates
Justice
Judgment rendered and Memorandum Opinion filed August 23, 2005.
Panel consists of Justices Yates and Hudson and Senior Justice Mirabal.*
Do Not Publish C Tex. R. App. P. 47.2(b).
*Senior Justice Margaret Garner Mirabal sitting by assignment.
[1] Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992).
[2] Cognitive psychology encompasses the study of memory, perception, language, and problem solving.