Petriciolet v. State

TERRY JENNINGS

Affirmed.

Cheri Duncan, Assistant Public Defender, Houston, TX, for Appellant. Devon Anderson, District Attorney, Jessica Akins, Assistant District Attorney, Harris County, Houston, TX, for State.

Panel consists of Justices JENNINGS, SHARP, and BROWN.

OPINION

TERRY JENNINGS, Justice.

A jury found appellant, Arturo Petriciolet, guilty of the offense of aggravated assault of a family member and assessed his punishment at confinement for fifty years. The trial court further found that he used a deadly weapon, namely, a firearm, in the commission of the offense. In his sole issue, appellant contends that the trial court erred in admitting expert testimony during the punishment phase of trial.

See Tex. Penal Code Ann. § 22.02(a), (b)(1) (Vernon 2011); see also Tex. Fam.Code Ann. §§ 71.0021, .003, .005 (Vernon 2014).

We affirm.

Appellant objected that Varela's testimony was unnecessary for the jury to make a determination regarding whether his use of a firearm created a high-risk situation. Varela agreed, stating, “The number one thing is the fact that he's used a weapon in the past and he's actually shot her and I think like the average man on the street, I don't even know if we need research to tell us that.... I should hope that ... most of us would have enough common sense to realize that.” The trial court decided to admit Varela's testimony.

After the jury returned, the trial court stated that it would allow Varela “to testify as an expert in domestic violence, social work[,] and to testify concerning an assessment instrument that's used in her field and her conclusion as a basis of that assessment instrument.” It then instructed the jury as follows:

[I]n coming to her conclusion using that assessment instrument, [Varela] has to rely on information given to her from other people; and she uses that information to reach her assessment. She cannot tell you whether or not the information that's given is true or not true. All right; but we do know that is the information that she has to reach her assessment. In other words, those things are not offered for the truth of the matter, just so that you know what she used to reach her assessment.

Varela told the jury that although she had not interviewed appellant, she had interviewed the complainant, her daughters, and appellant's ex-wife. She noted that she had formed an opinion in this case based on her investigation and the testimony at trial. The State then asked Varela if she had the ability to determine whether “some of the things” people said to her were “true or not true,” and she responded, “Yes.” Varela then opined that the incident at issue was not an anomaly; rather, it “fit into a pattern of behavior.” And the lethality-assessment factors present in this case include: “previous use of violence, [previous] threats” and “the type of control and jealous behavior that [appellant] exhibited in the past.” Varela then concluded that appellant “score[d] high on the risk assessment” because he had used a firearm, although she explained that this was not a prediction of future domestic violence.

Standard of Review

We review a trial court's ruling on the admissibility of expert testimony for an abuse of discretion. Lagrone v. State, 942 S.W.2d 602, 616 (Tex.Crim.App.1997); Hernandez v. State, 53 S.W.3d 742, 750 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd). We consider the trial court's ruling in light of the evidence presented at the time of its ruling, and we uphold the ruling if it lies within the zone of reasonable disagreement. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). We cannot conclude that a trial court abused its discretion merely because, under the same circumstances, we might have ruled differently. See Hernandez, 53 S.W.3d at 750. Rather, we gauge an abuse of discretion by whether the trial court acted without reference to any guiding rules or principles. Id. Thus, a trial court enjoys wide latitude in determining whether expert testimony is admissible. Id.

Expert Testimony

In his sole issue, appellant argues that the trial court erred in allowing Varela to testify, during the punishment phase of trial, as an expert on “lethality assessment” because she was not qualified to testify on the issue and her testimony was not reliable.

“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. Before admitting expert testimony, a trial court must determine that (1) the witness qualifies as an expert by reason of his knowledge, skill, experience, training, or education; (2) the subject matter of the testimony is an appropriate one for expert testimony; and (3) admitting the expert testimony will actually assist the fact-finder in deciding the case. Rodgers v. State, 205 S.W.3d 525, 527 (Tex.Crim.App.2006). Thus, the trial court must determine that the expert is qualified to testify and the proffered testimony is reliable and relevant. Vela v. State, 209 S.W.3d 128, 131 (Tex.Crim.App.2006).

Reliability

“ ‘[R]eliability depends upon whether the evidence has its basis in sound scientific methodology,’ ” which “ ‘demands a certain technical showing.’ ” Id. at 133 (quoting Jordan v. State, 928 S.W.2d 550, 555 (Tex.Crim.App.1996)). Such a showing allows a trial court to “ ‘weed out testimony pertaining to so-called junk science.’ ” Id. (quoting Jordan, 928 S.W.2d at 555). “Thus, just because ‘junk science or otherwise inadequately tested scientific theories might be shown to relate to the facts of a case,’ it will not always have a sufficiently reliable basis.” Id. (quoting Jordan, 928 S.W.2d at 555). If a court determines that underlying facts or data do not provide a sufficient basis for an expert's opinion, the opinion is inadmissible. Tex.R. Evid. 705(c); Vela, 209 S.W.3d at 133.

The Texas Court of Criminal Appeals has set forth a three-prong reliability test and identified seven non-exclusive factors for courts to consider in assessing the reliability of expert testimony concerning “hard sciences.” Vela, 209 S.W.3d at 133–34 (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992)). The Kelly test for expert reliability requires that (1) the underlying scientific theory be valid, (2) the technique applying the theory be valid, and (3) the technique have been properly applied on the occasion in question. 824 S.W.2d at 573. Factors that could affect a trial court's determination of expert reliability include, but are not limited to: (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 testifying expert; (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. Kelly, 824 S.W.2d at 573.

So-called “hard sciences,” “areas in which precise measurement, calculation, and prediction are generally possible, include mathematics, physical science, earth science, and life science.” Weatherred v. State, 15 S.W.3d 540, 542 n. 5 (Tex.Crim.App.2000). In contrast, so-called “soft sciences” generally include the “social sciences or fields that are based primarily upon experience and training as opposed to the scientific method.” Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App.1998) overruled on other grounds, State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999).

In Nenno v. State, the court of criminal appeals held that when assessing the reliability of expert testimony concerning the so-called “soft sciences,” those that are based on experience or training as opposed to scientific method, “[the] requirement of reliability applies but with less rigor than to the hard sciences.” 970 S.W.2d 549, 561 (Tex.Crim.App.1998), overruled on other grounds, State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999). The appropriate considerations 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 that field. Id.

Here, appellant argues that “[t]he State did not prove by clear and convincing evidence” that (1) “lethality assessment is a legitimate field of expertise,” (2) “a defendant's risk for future domestic violence is a legitimate subject matter within the scope of that field,” or (3) “Varela's testimony properly relied upon and/or utilized the principles involved in the field of lethality assessment.” See id. Appellant asserts that the State “did not cite any cases in which courts [have] allowed such expert testimony” and “did not offer a single treatise, textbook or other scholarly publication” on the topic. In addition, Varela's testimony in this case did not demonstrate that lethality assessment is a legitimate field of expertise because she “offered only vague take-away points from one journal article, which she did not name and which the State did not offer into evidence.”

As the proponent of Varela's expert testimony, the State had the burden to show by clear and convincing evidence that Varela's testimony was reliable. State v. Smith, 335 S.W.3d 706, 712 (Tex.App.-Houston [14th Dist.] 2011, pet. ref'd). The State does not direct us to any cases in which “lethality assessment” has been deemed a legitimate area of expertise. See Nenno, 970 S.W.2d at 561. In support of its assertion that “the admissibility of expert testimony assessing risk is not a new concept and has been evaluated by courts of appeals,” the State relies on two “future dangerousness” cases: Davis v. State, 313 S.W.3d 317 (Tex.Crim.App.2010), and Russeau v. State, 171 S.W.3d 871 (Tex.Crim.App.2005). In capital-murder cases, a “future-dangerousness” special issue ensures that no defendant is sentenced to death unless the jury first finds that he poses a threat of future violence. Coble v. State, 330 S.W.3d 253, 268 (Tex.Crim.App.2010). In such cases, risk assessments of future dangerousness have been recognized as a legitimate field of expertise. Russeau, 171 S.W.3d at 884.

In Davis, the State's expert, a board-certified psychiatrist who specialized in criminal forensic psychiatric consulting and served on the Texas Manifest Dangerousness Review Board, testified that he examined the defendant's background, applying a widely-accepted combination of actuarial prediction and anamnestic methods to assess the risk of future violence. 313 S.W.3d at 353. And a second expert, a forensic psychologist, explained that he had used “the HCR–20” and “the HARE psychopathy checklist” to assess the defendant's risk for future violence and both assessment tools are widely published, have been subjected to peer review, and are regularly relied upon by other psychologists. Id. at 353–54. Based on this underlying testimony, the court concluded that the experts were qualified to offer this expert opinion testimony as to the future dangerousness of the defendant. Id. at 354.

In Russeau, the State's expert, a licensed psychologist with the Texas Department of Criminal Justice, based her opinions concerning the defendant's future dangerousness on offense reports, autopsy reports, crime-scene photographs, videotapes and transcripts of the defendants' interviews with investigators, witness statements, transcripts of witness interviews, arrest records and prior-offense records, institutional and parole records, jail and probation records, and investigations of the crime scene. 171 S.W.3d at 883–84. She used a combination of theory and technique, which was generally accepted within the scientific community and had been subjected to peer review and publication. Id. at 884. And she applied the “guideline of the DSM4,” which is published by the American Psychiatric Association and widely used as a standard in that field. Id. The State's second expert, a board-certified forensic psychiatrist, testified regarding risk assessment of future dangerousness as a legitimate field of expertise. Id. Based on their underlying testimony, the court concluded that the experts were qualified to offer their opinion testimony on the future dangerousness of the defendant. Id.

Thus, the assessment of future dangerousness, which involves examining the defendant himself under specific protocols, has been accepted as a legitimate field of expertise within psychology. See id. However, the instant case is not a “future-dangerousness” case, i.e., a death-penalty, capital-murder case, in which the State had the burden to prove the defendant a “continuing threat to society.” See Tex.Code Crim. Proc. Ann. art. 37.071, § 2(b)(1) (Vernon Supp.2013). And Varela is neither a psychiatrist nor a psychologist. Nor did she use any accepted method of actuarial prediction or psychological testing to evaluate the defendant in this case.

Regardless, whether under Kelly or Nenno, “reliability should be evaluated by reference to the standards applicable to the particular professional field in question.” Coble, 330 S.W.3d at 274. Here, Varela testified that she is a licensed social worker and that “lethality assessment” is “commonly” used in her field. However, she did not offer any specifics to support her assertion, and she did not cite any books, articles, studies, journals, or other clinical social workers who practice in this area. Rather, she relied solely on a single “journal article” that she did not identify and the State did not tender to the trial court. Varela described the research in the unnamed article as having “looked at the previous factors that sort of led up to ... instances [of violence].” (Emphasis added.) She explained that a “lethality assessment” is a risk assessment that involves “research based on a whole big group of people ” that say domestic violence is “more likely to happen or not more likely to happen.” (Emphasis added.) Varela did not testify regarding any specific methodology used to conduct a lethality assessment. She explained that “[t]here's an instrument that we can use that has the questions on it; but what we've done—we sort of put that into our own data base so we can collect statistics on it.” (Emphasis added.) She further explained that her assessment involved asking questions of the victim, but not the defendant. And although she “thinks” lethality assessment “has been tested,” she was not sure and would need “to look at the [journal],” which she did not do before completing her testimony at trial. However, she did concede that lethality assessments have a “pretty high” rate of error—that “[i]t's like 30 or 40 percent.”

When a witness's methodology and conclusions cannot be validated or have been “otherwise inadequately tested,” the proposed testimony is characterized as “junk science.” Coble, 330 S.W.3d at 274; Vela v. State, 209 S.W.3d at 133. Here, the State presented no evidence to validate Varela's methodology and conclusions. Thus, it did not show by clear and convincing evidence that “lethality assessment” is a legitimate field of expertise. See Nenno, 970 S.W.2d at 561; see also Weatherred, 15 S.W.3d at 542–43 (excluding testimony by expert witness who “claimed that he and others had carried out extensive research” and had written “much on the subject,” but failed to produce or name any studies, research, or writings). Accordingly, we hold that the trial court erred in admitting Varela's testimony as an expert on lethality assessment.

In so holding, we emphasize that a trial court, in discharging its duty as a gatekeeper to ensure the relevance and reliability of expert testimony, must determine how the reliability of particular testimony is to be assessed. Vela, 209 S.W.3d at 134. We note that although the reliability inquiry is flexible, the proponent must establish some foundation for the reliability of the expert's opinion. Id. Although trial courts “may give experts wide latitude in selecting their sources,” the trial court “must still evaluate those sources' reliability.” Id. at 135.

Harm

Having concluded that the trial court erred in admitting Varela's testimony, we next determine whether appellant was harmed. Non-constitutional error requires reversal only if it affects the substantial rights of the accused. See Tex.R.App. P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93 (Tex.Crim.App.2011). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App.1997). We will not overturn a criminal conviction for non-constitutional error if, after examining the record as a whole, we have fair assurance that the error did not influence the jury, or had but a slight effect. Barshaw, 342 S.W.3d at 93.

We review the entire record to ascertain the effect or influence on the verdict of the wrongfully admitted evidence. Id. We may consider, among other things: (1) the strength of the evidence of the appellant's guilt; (2) whether the jury heard the same or substantially similar admissible evidence through another source; (3) the strength or weakness of an expert's conclusions, including whether the expert's opinion was effectively refuted; and (4) whether the State directed the jury's attention to the expert's testimony during argument. See Coble, 330 S.W.3d at 286–88. Error in the admission of evidence may be rendered harmless when substantially the same evidence is admitted elsewhere without objection. See Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App.1986) (“Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove.”).

Varela's testimony was erroneously admitted during the punishment phase of trial. And she testified that the “lethality assessment” factors present in this case were appellant's “previous use of violence, [previous] threats, the type of control and jealous behavior that [appellant] exhibited in the past,” and his use of a weapon. Varela opined that, based on these factors, appellant “scores high on the risk assessment,” and his use of a weapon “alone is the highest risk factor.”

We note first that, in regard to the “lethality assessment” factors, the jury heard the same or substantially similar evidence regarding the specifics of appellant's bad acts from other witnesses. See Coble, 330 S.W.3d at 286–88; Anderson, 717 S.W.2d at 628. The complainant testified about appellant's previous use of violence and threats against her, and his controlling and jealous behavior. Specifically, she testified that appellant had been “very controlling” of her and would often wait for her in the parking garage where she worked. He did not allow her to wear make-up or brush her hair, see her mother or her friends, or receive telephone calls outside of work. She explained that appellant is an alcoholic, had a history of behaving violently towards her, including slapping her on at least two occasions, and had threatened to “beat [her] up” if she tried to have a romantic relationship with anyone else.

The complainant also testified that appellant shot her in the face with a firearm as she was walking down the stairs in her home. And, as a result of the wounds he inflicted, she has lost vision in her left eye, has had five facial operations, and will require future reconstructive surgeries. Her teeth have fallen out and she cannot open her mouth.

Further, the complainant, her sister, and her daughter each testified regarding their fear of appellant based upon his behavior. The complainant explained that she and her children “live in constant fear.” And although she is paying a mortgage on her own house, she and her children have lived together in a single bedroom at her parents' home since the shooting. They sleep with the lights on and do not leave the house unless required. The complainant's sister testified that the family is “on constant alert ... living in a constant state of fear [and] panic.” They are afraid appellant is “going to come back and finish [the complainant] off or harm the rest of the family.” And the complainant's daughter testified that the family is living in fear and worry that appellant is going to harm someone else.

Next, we note that Varela's testimony was quite weak. See Coble, 330 S.W.3d at 286–88. She equivocated, emphasized that her assessment was not predictive of anything, and asserted that expert testimony was not even necessary for the jury to determine whether appellant, having shot the complainant in the face, posed a “high risk” for future domestic violence.

Moreover, the trial court instructed the jury not to consider the truth of the information underlying Varela's conclusions as follows:

[I]n coming to her conclusion using that assessment instrument, [Varela] has to rely on information given to her from other people; and she uses that information to reach her assessment. She cannot tell you whether or not the information that's given is true or not true. All right; but we do know that is the information that she has to reach her assessment. In other words, those things are not offered for the truth of the matter, just so that you know what she used to reach her assessment.
And we emphasize that the State did not mention Varela's testimony in its closing punishment argument to the jury. See id.

Finally, we note that the evidence of appellant's guilt, which was overwhelming, showed that he committed a particularly brutal act—shooting the complainant in her face shortly after putting their children to bed. The long-term effects of his brutal act upon the complainant are severe and will last the remainder of her life. Thus, there is ample evidence to support the jury's assessment of punishment of confinement for fifty years.

Accordingly, we cannot conclude that the erroneous admission of Varela's testimony had a substantial and injurious effect on the jury's decision on punishment. See id. at 287.

We overrule appellant's sole issue.

Conclusion

We affirm the judgment of the trial court. -------- Notes: