Opinion issued March 28, 2019




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00443-CR
                           ———————————
                    SLOBODAN VIDAKOVIC, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 297th District Court
                           Tarrant County,1 Texas
                       Trial Court Case No. 1514836R




1
     The Texas Supreme Court transferred this appeal from the Court of Appeals for the
     Second District of Texas. See TEX. GOV’T CODE § 73.001 (authorizing transfer of
     cases between courts of appeals).
                           MEMORANDUM OPINION

      A jury convicted Slobodan Vidakovic of the offenses of theft of an elderly

individual and exploitation of an elderly individual and assessed his punishment at

five years’ confinement.2 On appeal, Vidakovic challenges the trial court’s

admission of opinion testimony regarding the complainant’s mental capacity. We

affirm.

                                      Background

      The complainant in this case was Stuart Lee, a retiree who lived independently

at the time of the alleged offenses but now is deceased. Although Lee lived alone,

his home was near and he regularly checked in with his son, John. According to

John, Lee was a man of routine who lived frugally in retirement and was careful to

pay his bills on time, which is why John was surprised to learn in May or June 2016

that Lee’s water had been turned off and that Lee had not eaten in a week. John took

a close look at Lee’s finances and discovered not only that one of Lee’s cars had

been repossessed but also that Lee had not paid his property taxes and was delinquent

on other accounts. John was especially concerned when he discovered that Lee had



2
      See TEX. PENAL CODE § 31.03(a) (defining theft as unlawful appropriation of
      property with intent to deprive owner of property); Id. § 31.03(f)(3)(A) (stating that
      offense of theft is enhanced if it is shown that owner of property appropriated was
      elderly individual); Id. § 32.53(b)–(c) (stating that person commits third-degree
      felony offense if he intentionally, knowingly, or recklessly causes exploitation of
      elderly individual); see also id. § 22.04(c)(2) (defining “elderly individual” as “a
      person 65 years of age or older”).
                                            2
written checks to Vidakovic, one of Lee’s neighbors, totaling more than $41,000.

The checks to Vidakovic were issued over the course of about two years, beginning

in 2014.

      John confronted Vidakovic, demanding the return of Lee’s money. Vidakovic

responded that Lee was a friend, the money was a loan, and the matter did not

concern John. Suspecting theft, John contacted police, and an investigation ensued.

The investigation revealed that Vidakovic asked Lee to fund various projects and

business ventures between January 2014 and May 2016. Although he promised to

repay Lee with substantial interest or to make Lee his business partner, Vidakovic

did not fulfill his promises.

      A grand jury returned a two-count indictment against Lee for theft and

exploitation of an elderly individual. The indictment alleged that Vidakovic, through

“one scheme or continuing course of conduct,” had unlawfully appropriated Lee’s

property “by acquiring or exercising control over” Lee’s money, the aggregate value

of which was between $30,000 and $150,000, and that Lee was an elderly and

disabled individual.

      At trial, the State made the case that Vidakovic had defrauded Lee by taking

advantage of Lee’s age and diminishing mental capacity. The State presented

testimony from seven witnesses in support of its allegations. The witnesses included

(1) John, who testified about Lee’s financial condition and deteriorating mental


                                         3
health (including his diagnosis of Alzheimer’s disease and vascular dementia before

his death); (2) Officer J. Byford, a neighborhood patrol officer who was acquainted

with Lee and responded to John’s initial call for police assistance upon discovering

Lee’s payments to Vidakovic; (3) Dr. C. A. Hopewell, a clinical neuropsychologist

who examined Lee in September 2017 and observed signs of dementia and severely

impaired cognitive function; (4) J. Petkovich, Vidakovic’s former business partner

who identified Vidakovic’s email address and signature on several of the State’s

exhibits; (5) Detective C. Smith, who investigated the theft; and two investigators

from the Tarrant County District Attorney’s Office, (6) R. Bonham, an expert in

elder financial fraud, and (7) H. Nguyen, a computer and digital media forensic

examiner.

      Relevant for the purposes of this appeal is the testimony of Officer Byford

and Dr. Hopewell, who both gave opinions on which the State relied to support its

allegation that Lee was disabled due to a diminished mental capacity. Officer Byford

testified that he is a 21-year veteran of the Fort Worth Police Department. In his

assignment as a neighborhood patrol officer, Officer Byford works closely with

citizens on quality of life issues. Because Lee and Vidakovic lived in his patrol area,

Officer Byford knew both men. Officer Byford estimated that he had known Lee for

more than 12 years and testified that, during that time, he had interacted with Lee a

“couple of times a month probably, minimum, maybe more than that.” He described


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Lee, during their earlier encounters, as a “very sharp, very outgoing, friendly guy”

who took care of himself and his home.

      Officer Byford explained that, over the course of about two years, he observed

a decline in Lee’s mental health. He described the change as gradual at first but

became more drastic:

      As [Lee] got older, I mean, he seemed like he was not quite as sharp as
      he was when I first met him, mainly during the last few months leading
      up to this. I mean, I noticed . . . he would become confused a little bit
      in our conversations, didn’t have quite as much to tell me about the
      neighborhood. Our conversations usually revolved around one or two
      very specific things and didn’t extend beyond that.

Lee also forgot Officer Byford’s name, fell behind in keeping up his home, and

neglected his personal appearance. As told by Officer Byford, Lee was “definitely

getting thinner, getting a bit more frail looking. His – I wouldn’t say his personal

hygiene, but his dress just wasn’t [what] . . . I’m used to seeing him in, you know.”

      Officer Byford also told the jury about his law enforcement training related to

mental health, including identifying persons with diminished capacity and

intervening in mental health crises. He responded affirmatively when asked whether,

based on his training, he believed Lee had a diminished capacity at the time

Vidakovic committed theft. He also testified that the changes he perceived in Lee

would be obvious to someone who interacted with Lee on a regular basis. Much of




                                          5
Officer Byford’s testimony about Lee’s mental capacity was unobjected-to by

Vidakovic.3

      The second witness to offer an opinion on Lee’s mental capacity was Dr.

Hopewell, whom the trial court qualified as an expert and whose clinical

neuropsychology practice includes geriatric mental health. Dr. Hopewell regularly

examines patients like Lee to determine what, if any, services they may require

because of cognitive difficulties. Dr. Hopewell testified that he evaluated Lee’s

cognitive function in September 2017, pursuant to a request from the director of a

nursing home where Lee was admitted. Dr. Hopewell explained that his evaluation

included tests designed to assess “memory, thinking, the ability to make decisions,

the ability to interact appropriate[ly] with other people, [and] the ability to control

your emotions.” Lee could not complete most of Dr. Hopewell’s testing because he

“was functioning at such a low level.”




3
      Although he filed a motion in limine requesting that the State approach the bench
      and demonstrate Officer Byford’s expert qualifications before asking Officer
      Byford to opine on Lee’s mental capacity (which motion the trial court overruled),
      Vidakovic did not object when the State inquired whether Officer Byford believed
      Lee’s mental capacity was diminished. Vidakovic did object to (1) hearsay as to the
      testimony that Lee struggled to remember Officer Byford’s name; (2) relevance and
      speculation as to Officer Byford’s testimony about the period of time during which
      Lee suffered from diminished capacity; and (3) speculation as to Officer Byford’s
      statement that someone who “had coffee with Mr. Lee four or five times a week”
      would have made the same observations. But Vidakovic never objected that these
      opinions were expert opinions that Officer Byford was unqualified to give or that
      were unreliable.
                                           6
      Based on Lee’s performance, Dr. Hopewell found that (1) Lee’s short-term

memory was “extremely impaired”; (2) Lee’s long-term memory also “was very,

very low”; (3) Lee’s overall cognitive function was in the “moderately severe,

severely impaired range”; and (4) Lee suffered from symptoms of dementia. Dr.

Hopewell recommended to the nursing home director that Lee required assisted

living and a guardianship of his financial and medical affairs.

      In response to questioning by the State, Dr. Hopewell agreed that a patient’s

inability to manage his finances or home could be a sign of dementia, as could be a

patient’s inability to remember the name of a person with whom he is familiar or

fixation on certain topics. But on cross-examination, Dr. Hopewell made clear that

he was not offering any opinion regarding Lee’s cognitive abilities before the date

of his September 2017 examination. Defense counsel asked Dr. Hopewell, “[I]s it

possible for you to go back in time into January 2014 and give an opinion regarding

[Lee’s] mental state from 2014 until June of 2016,” which is roughly the time of the

theft alleged in the indictment. Dr. Hopewell responded that a look back in time was

possible but not using the tests he administered to Lee. According to Dr. Hopewell,

additional forensic neuropsychological testing would have been required. Because

Dr. Hopewell had not performed a forensic neuropsychological examination of Lee,

defense counsel confirmed the limited scope of Dr. Hopewell’s opinion in the

following exchange:


                                          7
             Q.     Okay. And so in your opinion, can you give, in any way, a
             reliable opinion about the mental state of Stuart Lee in 2014?

             A.     In 2014? No.

             Q.    Okay. In you opinion, can you give a reliable opinion in
             terms of the mental state of Stuart Lee in 2015?

             A.     No.

             Q.    Can you give a reliable opinion of – as to the mental state
             of Stuart Lee in 2016?

             A.     No.

      In closing argument, both the State and defense counsel addressed the

testimony on Lee’s mental capacity. The State aimed to persuade the jury that

Vidakovic’s crime was especially troubling given Lee’s age and inability “to

understand the desperate situation he was in because of [his] disease.” The State

urged the jury to disregard any argument that Lee had the capacity to understand

Vidakovic’s actions because, even if the jury could not be certain of the extent of the

diminishment of Lee’s mental capacity, it was clear that Lee “wasn’t all the way

there.” Defense counsel, in turn, devoted a substantial portion of his closing

argument to clarifying the testimony about Lee’s mental capacity, reminding the jury

that the “timeframe we’re talking about here is 2014 to 2016” and that Dr. Hopewell

had not spoken to Lee’s mental state during that period of time.




                                          8
      The jury deliberated and ultimately convicted Vidakovic of both offenses

alleged in the indictment, and Vidakovic was sentenced to five years’ confinement.

Vidakovic appealed.

                                Opinion Testimony

      In a single issue, Vidakovic contends the trial court erred by admitting opinion

testimony from Officer Byford and Dr. Hopewell that Lee’s mental capacity was

diminished during the period of time in which the theft occurred. According to

Vidakovic, Officer Byford’s and Dr. Hopewell’s opinions are expert opinions that

do not satisfy the standard for admissibility under Rule of Evidence 702.

A.    Standard of review and governing law

      We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018); Gibbs

v. State, 555 S.W.3d 718, 730 (Tex. App.—Houston [1st Dist.] 2018, no pet.). A trial

court abuses its discretion only when the court’s decision was so clearly wrong as to

lie outside the zone of reasonable disagreement. Beham, 559 S.W.3d at 478; Gibbs,

555 S.W.3d at 730.

      Vidakovic’s appeal concerns opinion testimony. How the challenged witness

testimony in analyzed depends on whether the witnesses offered lay opinion

testimony or expert opinion testimony. See Osbourn v. State, 92 S.W.3d 531, 535

(Tex. Crim. App. 2002) (“Both lay and expert witnesses can offer opinion


                                          9
testimony.”). Rule 701 allows lay opinions of “the more traditional witness—one

who ‘witnessed’ or participated in the events about which he or she is testifying—

while Rule 702 allows for a witness who was brought in as an expert to testify.” Id.

Under Rule 701, a lay witness may testify in the form of an opinion that is

(a) rationally based on the witness’s perception and (b) helpful to a clear

understanding of the witness’s testimony or the determination of a fact issue. TEX.

R. EVID. 701. Under Rule 702, an expert witness may testify in the form of an

opinion if “scientific, technical, or other specialized knowledge will help the trier of

fact to understand the evidence or determine a fact in issue” and the witness is

qualified as an expert by “knowledge, skill, experience, training, or education.” TEX.

R. EVID. 702.

      Certain opinion testimony may qualify for admission under both Rule 701 and

Rule 702. When a witness who is qualified as an expert testifies about events which

he or she personally perceived, the testimony may be admissible as both Rule 701

lay opinion testimony and Rule 702 expert opinion testimony. See Osbourn, 92

S.W.3d at 536. That is, a person with specialized knowledge may testify about his

or her own observations under Rule 701 and may also testify about the theories,

facts, and data used in his or her area of expertise under Rule 702. See, e.g., id. at

538 (holding police officer’s testimony that he smelled marijuana was admissible

under Rule 701 as lay opinion); Harnett v. State, 38 S.W.3d 650, 659 (Tex. App.—


                                          10
Austin 2000, pet. ref’d) (social worker permitted to testify under Rule 701 based on

her personal observations of appellant and under Rule 702 based on her training and

experience); Ventroy v. State, 917 S.W.2d 419, 422 (Tex. App.—San Antonio 1996,

pet. ref’d) (police officer permitted to testify under Rules 701 and 702 based on his

experience and personal knowledge of accident scene).

      But not all observations by witnesses with experience and training are

admissible as lay opinions. See Osbourn, 92 S.W.3d at 537; see also Emerson v.

State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994) (en banc) (declining to admit

officer’s testimony about appellant’s intoxication as lay opinion because officer’s

opinion was based on observations while administering Horizontal Gaze Nystagmus

test). The general rule is that “observations which do not require significant expertise

to interpret and which are not based on a scientific theory can be admitted as lay

opinions if the requirements of Rule 701 are met. This is true even when the witness

has experience or training.” Osbourn, 92 S.W.3d at 537.

      To provide lay opinion testimony under Rule 701, the witness must have had

some relevant perception. See id. at 535. Rule 701’s requirement that a lay opinion

be “rationally based on the perception of the witness” has two elements. Harnett, 38

S.W.3d at 657–58 (citing 2A Steven Goode, Olin Guy Wellborn, III & M. Michael

Sharlot, Courtroom Handbook on Texas Evidence, ch. 5, art. VII, at 413 (Texas

Practice 2000)). The first element is personal knowledge gained by perception,


                                          11
including what the witness saw, heard, smelled, tasted, touched, or felt. Id. at

658 (citing Bigby v. State, 892 S.W.2d 864, 889 (Tex. Crim. App. 1994)). The

second element is the opinion must be one that a reasonable person could draw from

the underlying facts. Id. (citing Fairow v. State, 943 S.W.2d 895, 900 (Tex. Crim.

App. 1997)). Not all witnesses who provide opinion testimony are experts. “It is only

when the fact-finder may not fully understand the evidence or be able to determine

the fact in issue without the assistance of someone with specialized knowledge that

a witness must be qualified as an expert.” Osbourn, 92 S.W.3d at 537.

B.    Opinion testimony of Officer Byford

      Appellant contends that Officer Byford’s opinion that Lee’s mental capacity

diminished over a period of about two years should have been excluded under Rule

702 because (1) the State did not establish Officer Byford’s qualification to give an

expert opinion on mental capacity and (2) Officer Byford’s opinion was not

supported by any scientific analysis and thus was not reliable or helpful. The State

responds that Officer Byford’s opinion was not expert testimony but instead was a

lay opinion admissible under Rule 701.4 We agree with the State.



4
      The State also argues that this issue has been waived because Vidakovic did not
      object to Officer Byford’s opinion at trial. Cf. TEX. R. APP. P. 33.1(a) (stating that
      timely objections and rulings are required to present complaint on appeal); Geuder
      v. State, 115 S.W.3d 11, 14–15 (Tex. Crim. App. 2003) (stating that denial of motion
      in limine is preliminary ruling that normally does not preserve error for appeal). We
      do not address the State’s waiver argument because we conclude that Vidakovic’s
      challenge is not sustainable on the merits even if preserved.
                                            12
      Although the record does not indicate whether Office Byford would have

qualified as an expert based on his training related to mental health, that is not the

relevant inquiry because Officer Byford was not testifying as an expert when he

expressed his opinion that Lee’s mental capacity was diminished. See Osbourn, 92

S.W.3d at 536 (“[A]lthough police officers have training and experience, they are

not precluded from offering lay testimony regarding events which they have

personally observed.”); see also Williams v. State, 191 S.W.3d 242, 254 (Tex.

App.—Austin 2006, no pet.) (on-duty patrol officer’s designation as “mental health

officer” after attending 40-hour course on mental health did not require that his

testimony about his perceptions be admissible only as expert testimony under Rule

702); State v. Welton, 774 S.W.2d 341, 343 (Tex. App.—Austin 1989, pet. ref’d)

(police officer permitted to give lay opinion on intoxication based, in part, on

smelling odor of alcohol). Officer Byford’s testimony was not scientific or technical

in nature. Rather his opinions and inferences were based on impressions and

conclusions he derived from what he saw and heard in his frequent interactions with

Lee as a patrol officer over the course of more than a decade. Officer Byford

explained that when the two men first met, Lee was engaged, intellectually sharp,

and diligent in maintaining his yard and personal appearance. But Officer Byford

had perceived changes in recent years based on his observations that Lee sometimes

forgot Officer Byford’s name, became confused in conversation or fixated on certain


                                         13
subjects, and no longer kept up his yard or personal appearance in the same manner.

These changes, according to Officer Byford, would have been obvious to anyone

who interacted with Lee on a regular basis. In other words, Officer Byford’s opinion

that Lee exhibited a diminished mental capacity was one that a reasonable person

could draw from observing Lee as Officer Byford had. See Osbourn, 92 S.W.3d at

538–39. And Officer Byford’s opinion going to Lee’s mental capacity during the

time of the theft aided the determination of fact issues, including whether Vidakovic

exploited Lee. See TEX. PENAL CODE § 32.53(a)(2) (defining criminal offense of

exploitation to include “the illegal or improper use of . . . [an] elderly individual . . .

or of the resources of . . . [an] elderly individual . . . for monetary or personal benefit,

profit, or gain”).

       Accordingly, we conclude that the trial court did not abuse its discretion

because Officer Byford’s opinion testimony was admissible under Rule 701.

C.     Opinion testimony of Dr. Hopewell

       Vidakovic also challenges the testimony of Dr. Hopewell, a clinical

neuropsychologist who opined that Lee exhibited symptoms of moderately severe

dementia and severely impaired cognitive function in September 2017. Although he

acknowledges that Dr. Hopewell was “unquestionably an expert” in the field of

psychology, Vidakovic asserts that Dr. Hopewell’s testimony should have been

excluded nonetheless because it could not reliably opine that Lee’s mental capacity


                                            14
was diminished during the years in which the theft occurred, from 2014 to 2016.

Nowhere in the record, however, did Dr. Hopewell give the opinion about which

Vidakovic complains. To the contrary, Dr. Hopewell specifically testified that he

could not reliably offer an opinion on Lee’s mental capacity at any time other than

in September 2017, when he examined Lee. Dr. Hopewell made clear that a look

back in time to determine Lee’s mental capacity from 2014 to 2016 required

additional testing that he had not administered to Lee. So he declined to offer any

such opinion. Indeed, the limited scope of Dr. Hopewell’s opinion was the subject

of vigorous cross-examination by Lee’s counsel, which emphasized for the jury that

Dr. Hopewell was not offering an opinion as to Lee’s mental capacity during the

timeframe alleged in the indictment. We cannot hold that the trial court abused its

discretion by admitting an expert opinion that was never admitted.

                                   Conclusion

      For all these reasons, we overrule Vidakovic’s sole issue on appeal. We affirm

the judgment of the trial court.




                                                Sarah Beth Landau
                                                Justice

Panel consists of Justices Keyes, Higley, and Landau.

Do not publish. TEX. R. APP. P. 47.2(b).

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