            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                     NO. PD–0162–14



                      BRANDON SCOTT BLASDELL, Appellant

                                              v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                FROM THE NINTH COURT OF APPEALS
                      MONTGOMERY COUNTY

              M EYERS, J., filed a dissenting opinion.

                                DISSENTING OPINION

       The trial court excluded the defense expert’s testimony regarding the weapon-

focus effect, finding that the testimony was not relevant. The court of appeals agreed.

We remanded the case to the court of appeals for a determination regarding the reliability

of the evidence. On remand, the court of appeals concluded that the defense did not

provide sufficient information to allow the trial court to determine that the expert’s

testimony was reliable, and the trial court did not abuse its discretion in excluding the
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testimony. The majority has joined the court of appeals in seconding that opinion.

       The record indicates that at a hearing outside the presence of the jury, the court

questioned the defense expert witness about the weapon-focus effect:

       THE COURT: Okay. Then that’s — weapon focus issue. Do you have any
       specific opinion that that happened in this case, the weapon distracted or
       reduced the focus on the person’s —

       EXPERT: Yes.

       THE COURT: — face?

       EXPERT: Yes.

       THE COURT: Do you have an opinion? Tell me about that.

       EXPERT: Well, she identified that — the weapon on the description sheet
       as a revolver.

       THE COURT: And that — and that alone, you’re saying, based on your
       studies, et cetera, would indicate that —

       EXPERT: It tells me that she did look at the gun.

       THE COURT: Well, but ultimately we’re talking about misidentification or
       bias or whatever you want to call it, with respect to a photo spread and her
       identification as to the photo spread. Do you have an opinion that that
       played a role in this case or just that it could because we know generally
       that’s something that happens?

       EXPERT: I’d say it would have to be a “possibly.”

       THE COURT: “Possibly.” Okay.

Based upon the conduct of the hearing, it is clear that the reliability of the weapon-focus

effect was never challenged, by the court or by the State. The court even said, “we know
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generally that’s something that happens” in questioning the expert about the weapon-

focus issue, and the State never objected to this questioning. Because the judge was the

one asking the expert his opinion about the weapon-focus effect, the defense was not

required to lay the foundation for the reliability of the theory. The trial court’s ruling was

that the evidence was not relevant to this particular case, but the reliability of the theory

itself was never disputed. I think it is totally wrong and unfair for the court of appeals

and the majority to procedurally default the Appellant in this case for something that the

trial court never even called into question. Therefore, I respectfully dissent.




Filed: September 16, 2015

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