Brandon Scott Blasdell v. State

In The

Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-09-00286-CR
____________________

BRANDON SCOTT BLASDELL, Appellant

V.

THE STATE OF TEXAS, Appellee
_______________________________________________________ _____________ _

On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 07-11-11972 CR
________________________________________________________ ____________ _

OPINION ON REMAND

In this appeal, which comes to us on remand from the Court of Criminal

Appeals, we consider whether the trial court abused its discretion in excluding the

testimony of a forensic psychologist concerning the weapon focus effect. See

Blasdell v. State, 384 S.W.3d 824, 831 (Tex. Crim. App. 2012). We conclude the

trial court’s exclusion of the testimony was not error, as the testimony was not

shown to be reliable. We affirm the trial court’s judgment.

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 Background

During the trial of this aggravated robbery case, the trial court excluded the

testimony of Dr. Steven Rubenzer, a forensic psychologist, concerning witness

identifications that occur during crimes that involved guns. Dr. Rubenzer labelled

the phenomena as the weapon focus effect.

Based chiefly on Blasdell’s identification by the robbery victim, Katy

Hadwin, the jury convicted Blasdell of the robbery. Shortly after the robbery

occurred, Katy gave the police an oral and written description of the man who

robbed her. Eight days later, just before picking Blasdell’s image from a

photographic lineup, Katy gave police a more detailed written description of the

robber. While testifying before the jury, Katy identified Blasdell in court as the

person who robbed her.

In the written statement given by Katy on the date of the robbery, the robber

is described as a white male, about 5’9” or 5’11” tall. In the more detailed written

description given to police eight days after the robbery, the assailant is described as

a right-handed white male, wearing a white shirt and blue jeans, carrying a

revolver, weighing 150 pounds, and as having short brown hair, a “unibrow,” light

blue/green eyes, and a fairly clear complexion. The detective then showed Katy a

photographic lineup containing six male images: from the array, Katy identified

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Blasdell, and she wrote her initials by Blasdell’s image. Katy additionally noted on

the array: “This is the guy who robbed me. I am 100% sure that is the guy.”

At trial, Katy described how she was robbed on the evening of February 11,

2007, as she attempted to get gas at a gas station. In her testimony, Katy described

the person who robbed her as a male with “light-colored eyes and a unibrow[.]”

According to Katy, during the robbery, the robber was close enough to her that she

could have touched him. She also testified that when she identified Blasdell’s

image in the array, she was “100 percent sure” that her identification was accurate.

After identifying Blasdell in court as the person who robbed her, Katy testified that

she had “[n]o doubt” Blasdell was the person who robbed her.

Katy also testified that the gun she saw during the robbery was a black

revolver that the robber pointed at her face; this fact led Dr. Rubenzer to conclude

that she had focused on the gun during the robbery. Katy affirmed that she had

gotten “a good look at his gun[]” during the robbery, and she acknowledged that

she was frightened and shaken up by the robbery. According to Katy, the robbery

occurred over a time-period of “a little longer than [twenty] seconds.”

The trial court conducted a hearing outside the jury’s presence to determine

the admissibility of Dr. Rubenzer’s testimony regarding Katy’s identification of

Blasdell. Dr. Rubenzer, a board-certified forensic psychologist, explained that he

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had read numerous articles and books in the area of eyewitness identification and

that he had testified in other cases as an expert on eyewitness identification. Dr.

Rubenzer defined the “weapon focus effect” as “a tendency, when there is a

weapon involved, particularly 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.” In forming his opinion in Blasdell’s case, Dr.

Rubenzer stated that he reviewed the offense report, the photo spread, Katy’s

description of her assailant, and that he had discussed the case with defense

counsel; however, he agreed that he had not interviewed Katy or any of the police

involved in the investigation of the robbery. With respect to whether Katy’s

identification was inaccurate, Dr. Rubenzer stated that in his opinion, the weapon

pointed in Katy’s face had “possibly” impacted her ability to accurately identify

Blasdell as the robber.

The trial court felt the testimony about the weapon focus effect was not

relevant, noting that Dr. Rubenzer’s opinion did not “provide information that the

jury doesn’t have anyway[,]” and excluded it from the jury. The trial court added

that the testimony it was excluding would not assist the trier of fact and that it was

not sufficiently tied to the facts of the case. While the trial court excluded Dr.

Rubenzer’s testimony describing the weapon focus effect, it allowed Dr. Rubenzer

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to testify to the jury about various other confounding factors that can complicate a

witness’s ability to accurately identify the person who committed the crime. For

instance, the trial court allowed the jury to hear Dr. Rubenzer’s testimony

regarding problems presented by some types of photographic lineups and regarding

problems in identification that can arise from “cross-race” identifications.

Appeal and Remand

After the jury convicted Blasdell of robbery, Blasdell appealed. In his only

issue, Blasdell claimed the trial court erred in excluding Dr. Rubenzer’s testimony

about the weapon focus effect. Blasdell v. State, No. 09-09-00286-CR, 2010 Tex.

App. LEXIS 8092, at *1 (Tex. App.—Beaumont Oct. 6, 2010) (mem. op., not

designated for publication) rev’d, 384 S.W.3d 824, 831 (Tex. Crim. App. 2012).

We affirmed the trial court’s exclusion of Dr. Rubenzer’s testimony, holding:

Here, Dr. Rubenzer did not commit to an opinion that the “weapon
focus effect” had impacted Katy’s identification of Blasdell [and
thus,] Dr. Rubenzer’s testimony . . . was not relevant to the juror’s
resolution of the issues. Absent a showing that the expert’s testimony
is “sufficiently tied” to the pertinent facts of the case, the expert’s
testimony is not relevant and does not “assist the trier of fact.” . . .
Without tying the general background on the topic to an opinion
pertinent to Katy’s identification of Blasdell, the trial court could have
reasonably concluded that Dr. Rubenzer’s testimony concerning the
“weapon focus effect” would not assist the trier of fact.

Blasdell, 2010 Tex. App. LEXIS 8092, at **7-8 (internal citations omitted).

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 The Court of Criminal Appeals granted Blasdell’s petition for discretionary

review to “examine the court of appeal’s holding that the trial court did not abuse

its discretion to exclude the expert’s testimony for a lack of ‘fit.’” Blasdell, 384

S.W.3d at 826. Examining the relevance prong of Rule 702, the Court of Criminal

Appeals specified that “for the testimony of an eyewitness identification expert to

be relevant for purposes of Rule 702, it is enough that he is able to say that a

particular identification procedure, or the facts or circumstances attending a

particular eyewitness event, has been empirically demonstrated to be fraught with

the potential to cause a mistaken identification.” Id. at 830; see Tillman v. State,

354 S.W.3d 425, 441-42 (Tex. Crim. App. 2011); see also Tex. R. Evid. 702.

Concluding that Dr. Rubenzer had “sufficient information to lead him to the

conclusion, consistent with his expert knowledge about the weapon focus effect,

that there was a real ‘possibility’” that Katy’s ability to make a reliable

identification could have been compromised, the Court of Criminal Appeals held

that “even the ‘possibility’ of distorted perception under the circumstances was

sufficient to establish a ‘fit’ with the facts of the case, and hence, the relevance of

Rubenzer’s expert testimony.” Blasdell, 84 S.W.3d at 830-31. The Court of

Criminal Appeals reversed our judgment and remanded the case to us for further

proceedings to determine: (1) whether Dr. Rubenzer was shown to be qualified to

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testify about the weapon focus effect, (2) whether the evidence about the weapon

focus effect was shown by the party that offered it to be sufficiently reliable that

the testimony should have been allowed to be considered by the jury, and (3) if the

trial court erred by excluding Dr. Rubenzer’s testimony, whether Blasdell was

harmed. Id. at 831 & n.18.

Dr. Rubenzer’s Expert Qualifications

The trial court conducted a hearing, outside the jury’s presence, to determine

whether to admit Dr. Rubenzer’s testimony. The evidence from the hearing reflects

that Dr. Rubenzer is licensed as a psychologist by the State of Texas and that he

has a private practice as a forensic psychologist in Houston, Texas. According to

Dr. Rubenzer, he has had a full-time private practice since 2004; before that, he

worked as a psychologist doing competency and insanity examinations and reports

for Harris County. Dr. Rubenzer’s resume reflects that at the time of the hearing,

he was on the editorial board of two scientific journals, and that he acted as a

consulting editor for a scientific journal devoted to psychological testing. Dr.

Rubenzer also served as a member of the adjunct faculty in the department of

psychology at Sam Houston State University between 1999 and 2004.

With respect to eyewitness identifications, Dr. Rubenzer described himself

as “basically self-educated.” He stated he had read 85 to 90 abstracts on the topic,

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seven books that discussed eyewitness identifications, and he testified that he had

attended symposiums at the annual or biannual psychological society meetings for

the last five years where speakers had addressed eyewitness identifications.

According to Dr. Rubenzer, he currently spends forty to fifty percent of his time on

reading “career-relevant material” in the area of eyewitness identification, and he

stated that the field generates approximately ten to fifteen percent of his income.

Although he was currently involved in an independent research project in the field

of eyewitness identification, he had not yet started collecting data. Dr. Rubenzer

explained that he had not yet published any articles in peer-reviewed journals in

the field of eyewitness identification. However, he had written two articles in the

field of eyewitness identification that were published in publications sponsored by

criminal defense lawyers, and he also had made two presentations to those same

organizations about issues related to eyewitness identifications.

In summary, Dr. Rubenzer demonstrated that he had knowledge about

various confounding factors that may exist in a witness’s ability to accurately

recall, describe, and identify the perpetrator seen committing a crime. Regardless

of our prior disagreement on the relevance of Dr. Rubenzer’s testimony that Katy’s

identification was possibly affected by her focus on the gun, the Court of Criminal

Appeals deemed the existence of a “real ‘possibility’ that [Katy’s] ability to make a

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reliable identification of the robber had been compromised” to be of assistance in a

case where no other significant evidence established that Blasdell was the person

who committed the robbery. Blasdell, 384 S.W.3d at 830-31.

With respect to the testimony of an expert, Rule 702 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.

Tex. R. Evid. 702. Dr. Rubenzer testified that he had previously provided

testimony on the subject of eyewitness identification two or three previous times.

Dr. Rubenzer stated that there were accepted guidelines, generally accepted in the

field, regarding procedures for lineup identifications, and that these guidelines

were published by the National Institute of Justice. Dr. Rubenzer testified that,

based on his experience and training, he could testify whether the proper

procedures were followed.

With respect to the topic of the weapon focus effect, and in addition to his

education and license as a psychologist, Dr. Rubenzer’s resume reveals he

reviewed two peer-reviewed articles that, from their titles, appear relevant to the

topic of the weapon focus effect. His resume also reflects that he had attended two

symposiums where speakers made presentations on that same topic.

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 “The question of whether a witness offered as an expert possesses the

required qualifications rests largely in the trial court’s discretion.” Wyatt v. State,

23 S.W.3d 18, 27 (Tex. Crim. App. 2000). Based on Dr. Rubenzer’s educational

experience and his degree as a licensed psychologist, the trial court apparently

decided to admit Dr. Rubenzer’s testimony regarding what factors may interfere

with a witness’s ability to accurately identify the person who perpetrated a crime.

And, whether a gun is a distraction during a brief encounter does not appear to be a

question far removed from what the jury would likely expect based on their

common experience; thus, the focus on the witness’s qualifications with respect to

this topic are less important than whether the testimony is reliable. See Davis v.

State, 313 S.W.3d 317, 350 (Tex. Crim. App. 2010) (citing Rodgers v. State, 205

S.W.3d 525, 527-28 (Tex. Crim. App. 2006)).

The trial court allowed Dr. Rubenzer to explain the possible confounding

factors involved in eyewitness identifications based on the same general

credentials that he had regarding the weapon focus effect. To the extent the trial

court disallowed Dr. Rubenzer’s testimony based on his qualifications as an expert

in the weapon focus effect, we hold the trial court abused its discretion.

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 Reliability

The Court of Criminal Appeals also asked that we address whether Dr.

Rubenzer’s testimony about the weapon focus effect was reliable under Rule 702.

Blasdell, 384 S.W.3d 831, n.18. The reliability prong of Rule 702 is used to

determine whether “[e]xpert testimony in the field of psychology pertaining to the

reliability of eyewitness identifications” has its basis in sound scientific

methodology. Tillman, 354 S.W.3d at 435; see also Weatherred v. State, 15

S.W.3d 540, 542 (Tex. Crim. App. 2000). To establish reliability, the proponent of

the evidence must show that “‘(1) the field of expertise involved is a legitimate

one, (2) the subject matter of the expert’s testimony is within the scope of that

field, and (3) the expert’s testimony properly relies upon or utilizes the principles

involved in that field.’” Tillman, 354 S.W.3d at 435-36 (quoting Weatherred, 15

S.W.3d at 542).

With respect to eyewitness identifications, the Court of Criminal Appeals in

Tillman stated that “psychology is a legitimate field of study and that the study of

the reliability of eyewitness identification is a legitimate subject within the area of

psychology.” Tillman, 354 S.W.3d at 436. In Blasdell, the Court noted that “a

substantial portion of the relevant community of forensic psychologists has

regarded the weapon focus effect to be a sufficiently well-established phenomenon

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to merit expert testimony.” 1 Blasdell, 384 S.W.3d at 829 n.3. In this case, at this

point, we focus on whether Blasdell demonstrated that Dr. Rubenzer’s testimony

about the weapon focus effect properly relied upon or utilized the principles

involved in that field. See Tillman, 354 S.W.3d at 436.

While Dr. Rubenzer generally described the weapon focus effect, he did not

describe the principles that apply to it. For instance, other than the definition he

provided for the term, he did not explain or discuss the peer reviewed articles that

he cited in his resume that appear to specifically address the topic, nor did he

describe the content of the two presentations he attended where the subject had

been discussed. Blasdell never provided the trial court with transcripts of the

articles discussing the weapon focus effect, nor was the trial court provided copies

of whatever documents may have accompanied the presentations Dr. Rubenzer

attended at his psychological meetings where the weapon focus effect was

discussed. The trial court was left solely with Dr. Rubenzer’s brief definition that

1
We note that during the hearing, Dr. Rubenzer did not discuss what a
substantial portion of the forensic psychology community thought about the
weapon focus effect or whether the group agreed that it was a matter that merited
expert testimony, and we further note that this fact was never established elsewhere
in the testimony that was before the trial court. We further note that the trial court
made its decision in 2009, more than two years before the Court of Criminal
Appeals discussed what forensic psychologists thought about the merits of the
weapon focus effect. See Tillman v. State, 354 S.W.3d 425, 425 (Tex. Crim. App.
2011).
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the weapon focus effect occurred “when there is a weapon involved, particularly 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.”

Without any further basis to explain the topic’s principles beyond the mere

ipse dixit of Dr. Rubenzer, the trial court was not in a position to properly evaluate

whether Dr. Rubenzer had either properly stated or applied the principles that

govern the weapon focus effect to Blasdell’s case. See id. Without more, such as

information about what the studies Dr. Rubenzer cited had shown regarding the

impact of a weapon being displayed on the reliability of a witness’s identification

of the perpetrator, the trial court was not able to determine whether Dr. Rubenzer’s

testimony about the weapon focus effect in Blasdell’s case was reliable. See id. at

437-38 (explaining that the expert had sufficiently explained specific principles of

psychology in the area of eyewitness identification to make the expert’s testimony

reliable).

We conclude that Blasdell provided the trial court with insufficient

information to allow the trial court to determine that Dr. Rubenzer’s testimony was

reliable. Consequently, we hold the trial court did not abuse its discretion in

excluding Dr. Rubenzer’s proffered testimony about the weapon focus effect, and

we affirm the trial court’s judgment.

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 AFFIRMED.

________________________________
HOLLIS HORTON
Justice

Submitted on September 19, 2013
Opinion Delivered January 8, 2014
Publish

Before McKeithen, C.J., Kreger and Horton, JJ.

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