Affirmed and Opinion filed October 24, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00553-CR

                     JARED LEVI COLEMAN, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee

                    On Appeal from the 23rd District Court
                          Brazoria County, Texas
                        Trial Court Cause No. 66104

                                OPINION

      On appeal from his murder conviction, appellant Jared Levi Coleman
challenges the trial court’s denial of his motion to suppress statements he made to
officers about the offense and the trial court’s refusal to admit expert testimony
regarding appellant’s susceptibility to giving a false statement under police
questioning. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
      Appellant was charged by indictment with the first-degree felony offense of
murder, to which he pleaded ―not guilty.‖ In the course of a murder investigation,
appellant gave several recorded statements to investigating officers. Before trial,
appellant filed a motion to suppress three of those statements. The trial court
denied the motion. In the trial that followed the jury found appellant guilty of the
charged offense. The trial court assessed punishment at thirty years’ confinement.

                        DENIAL OF MOTION TO SUPPRESS

      In his first issue, appellant asserts the trial court erred in denying his motion
to suppress. In the motion appellant challenged the admissibility of two non-
custodial statements, one written statement and one video-recorded statement, both
of which appellant gave to investigating officers on September 27, 2011
(collectively, the ―September Statements‖).          In both statements appellant
implicated himself in the charged offense. According to appellant, police coerced
or induced the September Statements by an offer to ―help‖ him or a promise of
probation and no jail time in exchange for his confession.

      Appellant also sought to suppress a video recording of a custodial statement
he gave to investigators on October 7, 2011 (the ―October Statement‖), after he
was indicted for the offense. In this video statement appellant referred to and
recanted parts of the September Statements. Appellant does not challenge the
voluntariness of the October Statement but instead asserts that it was inadmissible
as the fruit of the allegedly improperly obtained September Statements.

      We review a trial court’s ruling on a motion to suppress under a bifurcated
standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
At a suppression hearing, the trial court is the sole finder of fact and is free to
believe or disbelieve any or all of the evidence presented. Wiede v. State, 214

                                          2
S.W.3d 17, 24–25 (Tex. Crim. App. 2007). We give almost total deference to the
trial court’s determination of historical facts, especially when the trial court’s fact
findings are based on an evaluation of credibility and demeanor. Guzman, 955
S.W.2d at 89.     We afford the same amount of deference to the trial court’s
application of the law to facts if the resolution of those ultimate questions turns on
an evaluation of credibility and demeanor. Id. We review de novo the trial court’s
application of the law to facts if resolution of those ultimate questions does not
turn on an evaluation of credibility and demeanor. Id.

      The record of the suppression hearing reflects that appellant’s friend had
contacted an investigating officer with information indicating that appellant had
confided in the friend about appellant’s role in the charged offense. The friend
contacted the officer the following day, indicating that appellant wanted to speak
with the officer. The friend testified at the suppression hearing that in exchange
for appellant’s statements, the officer promised that appellant would receive only
probation and not confinement. The officer denied imparting any such information
to the friend or to appellant. The friend was present when appellant made the
September Statements. The record indicates that the friend brought appellant to
the police interview on the day of the September Statements, and in the friend’s
presence, the officer conducted a recorded, non-custodial interview with appellant.
During the interview, appellant also made a written statement, which he signed at
the conclusion of the interview.

      As reflected by the record, the officer initially informed appellant of the
possibility of being indicted for the offense.        Additionally, the officer told
appellant that by giving the statement, appellant had a chance to help himself and
that the officer was trying to help appellant, too. The officer explained several
times to appellant that he was not under arrest and that he was free to leave with

                                          3
his friend and end the interview at any point. The officer informed appellant that
he would not be placed in jail that day; the video reflects that the officer and
appellant shook hands to confirm that appellant would not be jailed that day.
Appellant orally confessed his involvement in the charged offense. He also gave a
written statement about his involvement.      Several times in the course of the
interview, appellant asked whether he would go to jail that day or the following
day. The officer confirmed that appellant would not go to jail that day or the
following day. The recorded video of the statement reflects that the friend asked
the officer whether appellant would be going to jail in the future and inquired
about the possibility of probation, to which the officer responded, ―no.‖ This
inquiry occurred one hour into the interview, after appellant had admitted
involvement in the offense. The officer testified that by his statement, ―no,‖ he
meant that appellant would neither go to jail nor receive probation in the
immediate future and that he did not know what was going to happen in the future.
The video does not reflect any promise regarding probation or any reference to
such a promise made by the officer. Only the friend made a reference to probation.
The officer admitted that appellant was hesitant to sign the written statement, but
testified that the hesitation was not a result of any threat, promise, or coercion on
the officer’s part. The officer denied promising appellant probation or promising
that appellant would receive no jail time. The officer testified that he did not
threaten, coerce, or promise appellant anything in exchange for the September
Statements.

      After the interview, appellant left with his friend.      The following day,
appellant contacted the officer and informed him that the statements he had made
in the interview the day before were false. On October 6, 2011, appellant was
indicted and arrested. On the next day, appellant gave the October Statement to


                                         4
the investigating officer, in which appellant also made reference to and recanted
the September Statements. This recorded statement does not contain any reference
to a promise of probation.

      After hearing the evidence, the trial court denied the motion to suppress,
finding, in pertinent part, that: (1) no promise or offer of probation or anything else
of value was made by the investigating officer; (2) appellant never mentioned
being promised probation from the officer or anyone else during either of his
recorded interviews; and (3) the oral and written statements given by appellant
were made freely and voluntarily and without compulsion or persuasion.

      Article 38.21 of the Texas Code of Criminal Procedure, entitled
―Statement,‖ requires a statement to have been ―freely and voluntarily made
without compulsion or persuasion‖ to be admissible as evidence. Tex. Code Crim.
Proc. Ann art. 38.21 (West 2005). In assessing the voluntariness of a statement,
we consider the totality of the circumstances under which the statement was made,
and ultimately whether appellant’s will was overborne. See Creager v. State, 952
S.W.2d 852, 855 (Tex. Crim. App. 1997); Reed v. State, 59 S.W.3d 278, 281 (Tex.
App.—Fort Worth 2001, pet. ref’d). A statement is involuntary if circumstances
show that the confession was induced by a promise of a benefit. See Ramirez v.
State, 76 S.W.3d 121, 126–127 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).

      For a promise to render a confession invalid under article 38.21, the promise
must have been positive, made or sanctioned by someone in authority, and of such
an influential nature that it would cause a defendant to speak untruthfully.
Martinez v. State, 127 S.W.3d 792, 794 (Tex. Crim. App. 2004). The truth or
falsity of the statement is immaterial; the question is whether the promise likely
would induce a false confession. Id. at 794–95. General, unspecific offers to help
are not likely to induce one to make an untruthful statement and will not invalidate

                                          5
a confession. Dykes v. State, 657 S.W.2d 796, 797 (Tex. Crim. App. 1983).
Similarly, general statements made to a suspect regarding how a confession can
sometimes result in leniency do not render a confession involuntary. Muniz v.
State, 851 S.W.2d 238, 253–54 (Tex. Crim. App. 1993). Any prediction about the
future events is not a promise. Mason v. State, 116 S.W.3d 248, 261 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d) (involving an officer’s statements that the
situation would ―go better‖ for appellant by giving a confession was a prediction
about a future event that did not amount to a promise).

      The only evidence in support of appellant’s contention that the officer
promised probation in exchange for a confession is the testimony of appellant’s
friend at the suppression hearing; the friend’s testimony was controverted by that
of the investigating officer.    No other record evidence supports appellant’s
assertions, and no promises or statements regarding probation appear on the video
recording of appellant’s statement. In the October Statement, appellant made no
reference to a promise for probation. The trial court chose to believe the officer’s
testimony that he did not make the alleged promise of probation to appellant or to
appellant’s friend, and we defer to this assessment of the facts. See Miller v. State,
312 S.W.3d 162, 168 (Tex. App.—Fort Worth 2010, no pet.) (deferring to the trial
court’s determination of credibility and demeanor and concluding that the trial
court did not abuse its discretion by finding appellant’s statement voluntary despite
an alleged promise by the investigating officer).
      Appellant cites Pitts v. State, 614 S.W.2d 142, 143 (Tex. Crim. App. [Panel
Op.] 1981), as support for his argument that the officer’s statements amounted to
an improper inducement. But, unlike the promisor in Pitts, the officer interviewing
appellant did not directly, positively, and unequivocally promise that appellant
would not go to jail or that appellant would receive only probation. See Ramirez,


                                          6
76 S.W.3d at 126–27.       Rather, the record reflects that the officer informed
appellant that most likely appellant would be indicted.        Any indication that
appellant would not go to jail or would receive probation does not rise to the same
level of inducement as in Pitts and is not enough, standing alone, to induce a
statement because the officer did not make a direct, positive offer in his single
comment, ―no,‖ to the friend’s inquiry as to whether appellant would go to jail or
receive probation. See Martinez, 127 S.W.3d at 795 (concluding no positive
promise was made when the officer left the impression that if appellant accepted
responsibility, the officer would not file charges against others); Humphries v.
State, 993 S.W.2d 826, 830 (Tex. App.—El Paso 1999, pet. ref’d) (concluding that
an officer’s statement that accused would be a witness and not a defendant if he
was not involved in a murder but had information about the murder, did not induce
a confession because the remarks did not amount to a direct, positive promise of a
benefit and served as a comment on the status of the case). See also Espinosa v.
State, 899 S.W.2d 359, 364 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d)
(concluding that an officer’s promise that appellant would receive ―less time‖ if he
confessed was not of such an influential nature that it caused appellant to confess).
The trial court did not err in denying appellant’s motion to suppress on these
grounds. See Martinez, 127 S.W.3d at 795.

      As for whether appellant could have been induced by the officer’s comments
that appellant could help himself by confessing or that the officer was attempting
to help appellant, the officer’s statements were not positive promises of leniency.
See Herrera v. State, 194 S.W.3d 656, 660 (Tex. App.—Houston [14th Dist.]
2006, pet. ref’d) (holding that the statement, ―We can talk to the D.A., get you an
offer, if you can help us,‖ was not specific enough to influence appellant to speak
untruthfully); Drake v. State, 123 S.W.3d 596, 603 (Tex. App.—Houston [14th


                                          7
Dist.] 2003, pet. ref’d) (concluding that an officer’s general, non-specific statement
that an appellant ―could help herself‖ did not render appellant’s statement
involuntary). General promises of leniency, such as the officer’s statement that an
appellant’s cooperation by giving a statement would ―help‖ the accused do not
reach the required level for improper inducement. See Dykes, 657 S.W.2d at 797.
Moreover, the officer’s remarks were not of such an influential nature as to amount
to improper inducement. See Johnson v. State, 68 S.W.3d 644, 654 (Tex. Crim.
App. 2002) (providing that officer’s representation that an accused’s cooperation
would be conveyed to the trial court was not a promise inducing a confession).

         The record does not reflect that appellant’s will was overborne as a result of
the officer’s comments so as to render appellant’s statements involuntary. See
Mason, 116 S.W.3d at 261. The September Statements were admissible because
they were given freely and voluntarily and are not invalidated under article 38.21.
See Tex Code Crim. Proc. art. 38.21; Drake, 123 S.W.3d at 603 (holding that
appellant’s statements were freely and voluntarily given despite allegations of a
promise and of improper inducement through an offer to help appellant). Because
the September Statements are admissible, the October Statement, in which
appellant referred to the September Statements, is not ―fruit of the poisonous tree.‖
Therefore, the trial court did not abuse its discretion by denying appellant’s motion
to suppress. See Drake, 123 S.W.3d at 603. We overrule appellant’s first issue.

         REFUSAL TO ADMIT EXPERT TESTIMONY OF FORENSIC PSYCHIATRIST
         In his second issue, appellant asserts that the trial court violated his
constitutional right to present a meaningful defense when it erroneously ruled that
Dr. Michael Fuller could not testify as to his expert opinion that appellant fits the
profile of someone who would be susceptible to giving a false confession.1 The

1
    The trial court ruled that Dr. Fuller was qualified as a forensic psychiatrist and could testify
                                                  8
erroneous exclusion of evidence offered under the rules of evidence generally
constitutes non-constitutional error. See Walters v. State, 247 S.W.3d 204, 219
(Tex. Crim. App. 2007). But, constitutional error occurs when the trial court
erroneously excludes otherwise relevant, reliable evidence which ―forms such a
vital portion of the case that exclusion effectively precludes the defendant from
presenting a defense.‖ Wiley v. State, 74 S.W.3d 399, 405 (Tex. Crim. App. 2002)
(quoting Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002)). Appellant
argues that such constitutional error occurred when the trial court ruled that Dr.
Fuller would not be allowed to testify before the jury about his expert opinion that
appellant fits the profile of one who would be susceptible to giving a false
confession.

       We review a trial court’s ruling on the admissibility of evidence under an
abuse-of-discretion standard. See Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim.
App. 2010).       Texas Rule of Evidence 702, entitled ―Testimony by Experts,‖
governs the admission of expert testimony, and 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. In Kelly v. State, the Court of Criminal Appeals adopted
several procedural and substantive limitations upon the admission of expert
scientific testimony to ensure that unreliable expert opinions would be excluded
from the jury’s consideration. See Kelly v. State, 824 S.W.2d 568, 572–73 (Tex.
Crim. App. 1992). Under Kelly, a trial judge, upon request, must conduct a
generally about circumstances in which false confessions could occur. But, the trial court ruled
Dr. Fuller could not testify as to his expert opinion that appellant fits the profile of someone who
would be susceptible to giving a false confession. On appeal, the parties do not dispute Dr.
Fuller’s qualifications as a forensic psychiatrist.

                                                 9
―gatekeeping‖ hearing outside the presence of the jury to determine whether
scientific evidence is sufficiently reliable and relevant to help the jury in reaching
an accurate result. See Coble, 330 S.W.3d at 273. Then the judge must decide
whether, on balance, that expert testimony might nonetheless be unhelpful or
distracting for other reasons. See id. To be considered reliable, evidence from a
scientific theory must satisfy three criteria: ―(a) the underlying scientific theory
must be valid; (b) the technique applying the theory must be valid; and (c) the
technique must have been properly applied on the occasion in question.‖2 Id.
(quoting Kelly, 824 S.W.3d at 573). The trial court’s essential gatekeeping role is
to ensure that evidence that is unreliable because it lacks a basis in sound scientific
methodology is not admitted. See id.

       For expert testimony to be admissible under this rule, the party offering
scientific expert testimony must demonstrate, by clear and convincing evidence,
that this testimony is sufficiently reliable and relevant to assist the factfinder in
reaching accurate results. See Kelly, 824 S.W.2d at 572. When, as in the case
under review, we are addressing fields of study such as the social sciences or fields
that are based primarily upon experience and training as opposed to the scientific
method, we apply the less rigorous standard set forth in the Nenno case. See
Coble, 330 S.W.3d at 273–74 (applying Nenno test to testimony of forensic
psychiatrist regarding future dangerousness); Nenno v. State, 970 S.W.2d 549,

2
  In Kelly, the Court of Criminal Appeals set out the following list of nonexclusive factors that a
trial court can consider in determining scientific reliability: (1) the extent to which the underlying
theory and technique are accepted as valid by the relevant scientific community; (2) the
qualifications of the testifying expert; (3) the existence of literature supporting or rejecting the
underlying scientific theory and technique; (4) the potential error rate; (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 who applied the technique in this case. Kelly, 824 S.W.3d at 573. See Coble, 330
S.W.3d at 273, n.40.


                                                 10
560–61 (Tex. Crim. App. 1998), overruled in part on other grounds by, State v.
Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999); Ruckman v. State, 109
S.W.3d 524, 5209–31 (Tex. App.—Tyler 2000, pet. ref’d) (applying Nenno test to
testimony regarding false confessions). Under this standard, the trial court must
inquire whether (1) the field of expertise is a legitimate one, (2) the subject matter
of the expert’s testimony is within the scope of the field, and (3) the expert’s
testimony properly relies upon or utilizes the principles involved in the field. See
Coble, 330 S.W.3d at 273–74; Nenno, 970 S.W.2d at 561.                This inquiry is
somewhat more flexible than the application of the Kelly factors. Coble, 330
S.W.3d at 274. The general principles announced in Kelly apply, but the specific
factors outlined in those cases may or may not apply depending upon the context.
See id. Under either Kelly or Nenno, reliability should be evaluated by reference to
the standards applicable to the particular professional field in question. See id.

      The State objected that appellant had failed to satisfy the Nenno test, and the
trial court ruled that Dr. Fuller could not testify as to his expert opinion that
appellant fits the profile of one who would be susceptible to giving a false
confession. Dr. Fuller testified at a hearing outside the presence of the jury so that
the trial court could determine the admissibility of his testimony. Dr. Fuller stated
that the area of false confessions was within the scope of his field of practice and
area of expertise as a forensic psychiatrist. Dr. Fuller outlined three ―sub sets [sic]
of false confessions that are accepted in the literature and by researchers.‖ He
referred generally to 300 cases in the span of two decades in which the results of
DNA testing had exonerated individuals convicted of a crime. Dr. Fuller stated
that about fifteen to twenty-five percent of these individuals were found to have
falsely confessed. According to Dr. Fuller, ―false confessions frequently occur in
individuals who are emotionally unstable, who have mental illness, [sic] who have


                                          11
impaired cognitive abilities.‖    Dr. Fuller expressed his belief that there is a
―legitimate clinical concern‖ as to whether appellant falsely confessed to the
charged offense. According to Dr. Fuller, this concern is a result of appellant’s
testimony that he falsely confessed and appellant’s ―psychological profile‖ which
Dr. Fuller described as ―one that is very much like the psychological profile of an
individual who would be at relatively or higher risk than, say, the average person
for making a false confession.‖ According to Dr. Fuller, appellant’s psychological
profile is consistent with the profile of someone who would falsely confess.
      On cross-examination by the State, Dr. Fuller acknowledged that he had
never before testified in a court as an expert specifically in the area of false
confessions. Dr. Fuller testified he had read reviews of articles by a ―Dr. Leo‖ and
reviews of articles by Mr. Saul Kassin. Dr. Fuller also read a 2009 article by Dr.
Leo on the topic of false confessions as well as excerpts from the work of Mr.
Kassin. Dr. Fuller indicated he found these articles by searching the internet for
―false confessions‖ after evaluating appellant several months before trial. Dr.
Fuller stated he had not read The Psychology of Confessions by Saul Kassin. Dr.
Fuller acknowledged that he did not teach any courses in false confessions and had
not written any articles or books on the topic. Dr. Fuller stated that this case is the
first time he has ―focused more directly and thoughtfully‖ on false confessions as a
primary issue. Dr. Fuller testified that he based his conclusion that appellant had
the profile of a person who would confess falsely on his general mental-status
examination of appellant, his clinical interview, and his discussion with appellant
of the circumstances at or near the time of the alleged crime. According to Dr.
Fuller, he based this conclusion on his findings that appellant was suffering from a
major depressive episode with extreme hopelessness about his future, a sense of
failure in general about the quality and direction of appellant’s life, obsession with
military themes of honor and chivalry, and preoccupation with ―the notion of
                                          12
laying himself down as part of a tribe or as part of a group. . .‖ Dr. Fuller
described appellant as a very needy, disturbed young man, who was depressed and
hopeless but not psychotic, and probably intermittently intoxicated. According to
Dr. Fuller, there is a possibility appellant made a voluntary, false confession to
achieve notoriety, attention, and a disturbed sense of fame.

      Dr. Fuller did not administer any formal psychological testing of appellant.
The only examination he used with appellant was an examination for neurological
function, cognitive function, and memory function. Dr. Fuller has heard of the
―Johnson Suggestibility Scale,‖ but he has not used that scale and is unfamiliar
with it. Dr. Fuller did not tie his opinion that appellant had the profile of a person
who would confess falsely to any specific study or article. Nor did Dr. Fuller
provide the trial court with a copy of any study or article. Dr. Fuller had not read
an article by Kassin cited by the State.       Dr. Fuller did not explain how his
testimony properly relies upon or uses principles in this field, nor did he cite any
article or other source in support of this proposition. There is no objective source
material in this record to substantiate Dr. Fuller’s methodology as one that is
appropriate in the practice of forensic psychiatry.

      We presume, without deciding, that the field of Dr. Fuller’s expertise is a
legitimate one, and that the subject matter of Dr. Fuller’s testimony is within the
scope of the field. Nonetheless, based upon the lack of evidence showing that Dr.
Fuller’s testimony properly relies upon or utilizes the principles involved in this
field, we conclude that appellant did not satisfy his burden of showing by clear and
convincing evidence during the gatekeeping hearing the reliability of Dr. Fuller’s
methodology for determining whether appellant fits the profile of someone who
would be susceptible to giving a false confession. See Coble, 330 S.W.3d at 279–
80 (holding that proponent of expert testimony by forensic psychiatrist did not

                                          13
show by clear and convincing evidence at the gatekeeping hearing that expert’s
methodology was reliable based upon third Nenno factor); Ruckman, 109 S.W.3d
at 530 (holding that proponent of expert testimony regarding false confessions did
not show by clear and convincing evidence at the gatekeeping hearing that expert’s
testimony was reliable based upon lack of proof regarding third Nenno factor). We
conclude the trial court did not abuse its discretion by ruling that Dr. Fuller could
not testify before the jury as to his expert opinion that appellant fits the profile of
someone who would be susceptible to giving a false confession. See Coble, 330
S.W.3d at 277–80; Ruckman, 109 S.W.3d at 530.                     Because the trial court’s
exclusion of this evidence was not erroneous, it cannot constitute constitutional
error as asserted by appellant in his second issue. See Wiley, 74 S.W.3d at 405.
Accordingly, we overrule appellant’s second issue.

       The trial court’s judgment is affirmed.



                                            /s/     Kem Thompson Frost
                                                    Chief Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown.3
Publish — Tex. R. App. P. 47.2(b).




3
  Originally, this case was submitted before a panel consisting of Justices Frost, Jeffrey Brown,
and Donovan. Following the appointment of Justice Jeffrey Brown to the Supreme Court of
Texas and the appointment of Justice Frost as Chief Justice of the Fourteenth Court of Appeals,
this case was resubmitted to the current panel of Chief Justice Frost, Justice Donovan, and
Justice Marc Brown.
                                               14
