                                       In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                               ________________
                               NO. 09-16-00317-CR
                               NO. 09-16-00318-CR
                               NO. 09-16-00319-CR
                               NO. 09-16-00320-CR
                               ________________

                  EBENESER BENNY MORONES, Appellant

                                          V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                 On Appeal from the 435th District Court
                      Montgomery County, Texas
           Trial Cause Nos. 15-11-11633-CR, 15-11-11627-CR,
                  15-08-08136-CR and 15-11-11634-CR
__________________________________________________________________

                           MEMORANDUM OPINION

      A jury convicted appellant Ebeneser Benny Morones of unlawful possession

of a firearm by a felon, evading arrest or detention with a vehicle, aggravated assault

against a public servant, and possession of a controlled substance with intent to

deliver or manufacture, and the trial court assessed punishment at imprisonment for

life. In his sole appellate issue, Morones complains that the trial court abused its
                                          1
discretion by admitting expert testimony and exhibits regarding toolmark

identification, which is a form of firearm identification evidence, because the

scientific techniques used by the witness were not shown to be reliable. We affirm

the trial court’s judgments.

                           FACTUAL BACKGROUND

      Officer Robert Rodriguez, who formerly worked for the Woodbranch Police

Department, testified that he observed a white Cadillac traveling at a high rate of

speed on the highway. Rodriguez activated his patrol vehicle’s lights and siren and

began following the vehicle. Rodriguez realized that the driver was attempting to get

away, and Rodriguez called dispatch and provided the vehicle’s license plate

number. According to Rodriguez, as the vehicle continued to drive, Morones put his

head outside the window, pointed a gun at Rodriguez, and fired “a few rounds.”

Rodriguez testified that he feared imminent bodily injury. Rodriguez explained that

he saw debris on his dashboard from glass that had broken. Rodriguez identified

Morones as the shooter.

      Rodriguez continued to follow the vehicle until Rodriguez’s vehicle hit the

curb and became disabled, forcing him to withdraw from the pursuit. Rodriguez

testified that he heard through dispatch that other units were approaching. Rodriguez

explained that he saw a police unit from Patton Village, and he believed other

                                         2
officers were taking over the attempt to stop the vehicle. Rodriguez testified that his

in-car video was turned on, and a copy of the video of the pursuit was admitted as

an exhibit and published to the jury. Rodriguez testified that he subsequently

identified Morones from a photograph.

      Deputy Jeff Buchanan of the Montgomery County Precinct Four Constable’s

Office testified that he was on duty on the day that the vehicle failed to stop for

Rodriguez. Buchanan explained that he joined in to assist with the pursuit. Buchanan

was able to catch up to the chase at a point where the road opened up to three lanes,

and he heard Rodriguez say on the radio that someone was shooting at him and his

vehicle had been hit. Buchanan continued his attempt to locate the white Cadillac,

and he eventually saw the vehicle, activated his lights and siren, and attempted to

pull it over. Buchanan explained that the vehicle did not pull over, but continued

down the highway, jumping off and onto the highway “at almost every exit and

entrance ramp.” According to Buchanan, the vehicle eventually left the interstate

and feeder, and the pursuit “ended off of Hopper Road.”

      Buchanan testified that as the vehicle took the Hopper exit, he saw a male

climbing out of the window on the back passenger side. Buchanan testified that the

male pointed a semiautomatic pistol at him, and Buchanan heard shots. Buchanan

explained that the male then picked up a rifle and again began firing at Buchanan

                                          3
while the Cadillac was moving.1 Buchanan testified that he could see the male’s face,

and he identified Morones as the shooter. Buchanan testified that he has “[z]ero

doubt” that Morones is the person who was shooting at him. According to Buchanan,

he accidentally shifted his car into a lower gear, and although he initially believed

his vehicle was disabled, he resumed pursuing the Cadillac. Buchanan testified that

he observed a red Conex box, which is a large metal container, and he saw a male,

who he later realized was Morones, walking between the Conex box and a fence.

      Buchanan explained that he subsequently found the Cadillac wrecked in a

ditch, and he saw several people who had just gotten out of the vehicle running

through a yard. Buchanan testified that he got out of his vehicle and “cleared the

[Cadillac]” to make sure that no one was hiding in it. Inside the vehicle, Buchanan

observed “[s]everal handguns, shotguns, what appeared to be body armor, and just

junk all over the car.” According to Buchanan, other officers eventually arrived, and

they continued to search for the suspects who had fled the scene. Officers eventually

apprehended two females and a male, and Buchanan learned that the male who had

fired at Buchanan “had made the comment that he’s not going back to jail alive.”

One of the female suspects subsequently provided Morones’s name to the



      1
       Buchanan explained that Morones was in Montgomery County when he fired
at Rodriguez and in Harris County when he fired at Buchanan.
                                         4
authorities. Buchanan explained that he learned during the investigation that he had

been fired at two more times after he passed the Conex box, so Buchanan and another

officer returned to the area, searched, and found casings that he believed were used

in the shooting.

      Buchanan explained that the Cadillac was inventoried at the scene. During the

inventory, Buchanan and other officers found marijuana; pistol holsters; plastic

bottles with baggies inside; an Altoids box, a plastic container filled with what

officers believed were methamphetamines; a cigar box containing marijuana; a

baggie containing methamphetamines; multiple digital scales in the backseat and

back floorboard of the car; semiautomatic pistols; a shotgun on the backseat; a

Derringer; ammunition; and a magazine for an M1 carbine rifle. Buchanan identified

State’s exhibit 131 as the M1 carbine rifle Morones was firing at him. Buchanan

testified that six guns were recovered from the Cadillac, and an M1 carbine rifle was

later found in Morones’s possession. A redacted version of the video from

Buchanan’s patrol car was admitted as an exhibit and played for the jury. Deputy

Brian Treille of the Montgomery County Sheriff’s Department testified that he

apprehended Morones at a hotel and found a semiautomatic .30-caliber rifle in the

trunk of Morones’s vehicle.



                                         5
      Dawn Laporte,2 a Firearms Examiner II with the Harris County Institute of

Forensic Sciences (“HCIFS”), testified that she has worked for HCIFS for four years.

Laporte explained that prior to her employment with HCIFS, she worked for the

Pasadena Police Department for approximately four years as a firearms examiner in

training and then as a firearms examiner. Laporte explained that a Firearms

Examiner II is able to review other examiners’ cases, but a Firearms Examiner III is

not. Laporte testified that she received a bachelor’s degree in biology in 2006, and

she has been trained by the National Firearms Examiner Academy. In addition,

Laporte testified that she is in the process of obtaining her firearms certification

through the Association of Firearm and Toolmark Examiners (“AFTE”).

      Laporte testified that she tests firearms for functionality, determines if fired

evidence is traceable to a particular firearm, and reviews fired evidence to determine

what firearm could possibly have fired the evidence. Laporte explained that she is

familiar with several validation studies that are pertinent to firearms examination,

including Glock Gen 4 bullet validation, 10 consecutively rifled Ruger 9 millimeter



      2
        Before Laporte’s testimony began, defense counsel stated, “It’s my
understanding that the State is about to call an expert witness, and I would like to,
outside the presence of the jury, take on the witness under 702 and Daubert.” The
trial judge stated that she would first allow the State to establish the witness’s
qualifications and then permit the defense to voir dire the witness outside the jury’s
presence.
                                          6
barrels, DVIS barrel validation, and 40 Smith & Wesson cartridge case isolated pair

study. According to Laporte, validation studies are designed to test whether fired

evidence that is matched to a firearm could have come from another firearm.

      Laporte testified that she is published in the AFTE journal. Laporte explained

that she is a member of AFTE and the Southwestern Association of Forensic

Scientists, which are professional organizations, and she has attended professional

conferences that pertain to firearms examination. Laporte testified that she has

testified as an expert in firearms approximately fifteen times. According to Laporte,

she bases the opinions in her reports on her training, which is validated through the

scientific community.

      The defense then took Laporte on voir dire. During voir dire, Laporte

explained that ballistics study follows the AFTE theory of identification and

involves determining whether fired evidence can be linked to the firearm that fired

it based upon “the markings that are present from the firearm due to manufacturing.”

Laporte stated, “[I]f I determine that [fired evidence] goes to one gun, then it’s a

practical impossibility that it could go to any other firearm.” Laporte explained that

“practical impossibility” is the accepted term for describing the exclusion of all other

firearms. Laporte stated that the scientific theory is subject to peer review. Laporte

explained that the report she proposed to offer and the evidence upon which it is

                                           7
based was reviewed by her peers. When asked to disclose any known potential rate

of error, Laporte explained, “There is no real known rate of error in firearms. They’re

working on it right now. . . . As far as my errors, I have never made an error on a

proficiency test or competency test. So my rate would be zero.” Laporte stated that

her body of work and the theories behind it are generally accepted.

       After taking Laporte on voir dire, defense counsel asked that Laporte’s

testimony be barred, stating “I fear a couple of things could happen here with the

inability to determine clear potential rates of error on the scientific theory[.]”

Defense counsel further objected, “under Daubert we’re missing one tenet, one tenet

of the support [in] that we don’t know what this error rate is because there really

isn’t one to declare it. . . . This is done very subjectively, Judge. And this is . . . much

more prejudicial . . . than it is probative to the State’s case.” In response, the

prosecutor stated that Laporte had explained that based on her training, experience,

and articles that she has reviewed, written, and published, “this is the way that her

forensic science works.” The prosecutor pointed out that Laporte had previously

testified fifteen times, and “even though . . . this type of science has somewhat

subjective content to it, she is peer-reviewed by someone else who is similarly

trained, and that this science is accepted in our community and is validated

throughout the country.”

                                             8
      The trial judge overruled defense counsel’s objections under both Rule 403 of

the Texas Rules of Evidence and Daubert. Laporte then testified that for Morones’s

case, she reviewed six firearms, fired cartridge cases, bullets, and bullet fragments.

Laporte explained that after testing and examining the items, she prepared a report,

in which she concluded that, “based on agreement of the combination of individual

characteristics and all discernible class characteristics[,]” three of the items had been

fired from the M1 30 carbine rifle.

      During cross-examination, when asked to define toolmark, Laporte testified

that, although she really does not “deal in toolmarks,” “a toolmark would be the

marks that are imparted on the bullet or the cartridge case.” Laporte testified, “I’m a

firearms examiner. I’m not a firearms and toolmark examiner.” Laporte further

explained, “Ballistics is just not what we do. The scope of what I do is under a

microscope. . . . Ballistics is a totally different area.” According to Laporte, the

marks on the fired materials she tested were “consistent in class characteristics with

the Universal M1[,]” and she determined that the chamber marks of the materials

identified them as having been fired from the M1.

      Sarah McCoy testified that she was in the car with Morones during the

offense, and she explained that Morones was sitting in the backseat behind the

passenger seat. According to McCoy, when a Montgomery County Constable

                                           9
attempted to pull the car over, Morones stated that he intended to shoot the constable.

McCoy testified that Morones then rolled the window down, hung out the back

passenger-seat window, and shot at the police. McCoy explained that Morones

eventually jumped out of the vehicle, and the car crashed. The State rested at the

conclusion of McCoy’s testimony.

                                MORONES’S ISSUE

      In his sole appellate issue, Morones complains that the trial court abused its

discretion by admitting Laporte’s expert testimony and exhibits regarding toolmark

identification, which is a form of firearm identification evidence, because the

scientific techniques used were not shown to be reliable. We review the trial court’s

admission of expert testimony for an abuse of discretion. See Coble v. State, 330

S.W.3d 253, 272 (Tex. Crim. App. 2010). Assuming without deciding that the trial

court erred by admitting the complained-of testimony from Laporte, we will turn to

the issue of whether such alleged error is reversible.

      Because the alleged error is not constitutional, we will reverse the trial court’s

judgment only if the error affected Morones’s substantial rights. See Tex. R. App. P.

44.2(b). “A substantial right is affected when the error had a substantial and injurious

effect or influence in determining the jury’s verdict.” Schmutz v. State, 440 S.W.3d

29, 39 (Tex. Crim. App. 2014). Substantial rights are not affected by the erroneous

                                          10
admission of evidence if, after examining the record as a whole, the appellate court

has fair assurance that the error either did not influence the jury or had only a slight

effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). The presence

of overwhelming evidence of guilt may play a determinative role in resolving the

issue of harm. Id. at 356.

      Assuming without deciding that the trial court erred by admitting the

complained-of testimony from Laporte, the jury heard testimony from two police

officers who were chasing the Cadillac that Morones was the individual who fired

shots during the pursuit. In addition, the trial court heard testimony from McCoy, in

which she stated that Morones was sitting in the backseat on the passenger side and

identified Morones as the shooter. Moreover, as discussed above, Morones was

charged with four offenses: unlawful possession of a firearm by a felon, evading

arrest or detention with a vehicle, aggravated assault against a public servant, and

possession of a controlled substance with intent to deliver or manufacture, and the

trial court assessed punishment at imprisonment for life. The act of possessing or

using a firearm is not an element of evading arrest or detention or possession of a

controlled substance with intent to deliver or manufacture. See Tex. Penal Code Ann.

§ 38.04(a), (b) (West Supp. 2016); Tex. Health & Safety Code Ann. § 481.112(a),

(d) (West 2017). Furthermore, as to the offenses of aggravated assault against a

                                          11
public servant and unlawful possession of a firearm by a felon, the State was not

required to prove that Morones fired a particular firearm. See Tex. Penal Code Ann.

§ 22.01(a)(2), (b)(1) (West Supp. 2016); Id. § 22.02(a)(2), (b)(2) (West 2011); Id.

46.04(a)(1) (West 2011).

      For all of these reasons, we have fair assurance that the admission of Laporte’s

testimony either did not influence the jury or had only a slight effect and, therefore,

did not affect Morones’s substantial rights. See Tex. R. App. P. 44.2(b); Schmutz,

440 S.W.3d at 39; Motilla, 78 S.W.3d at 355. Accordingly, we overrule Morones’s

sole issue and affirm the trial court’s judgments.

      AFFIRMED.



                                               ______________________________
                                                      STEVE McKEITHEN
                                                          Chief Justice


Submitted on October 26, 2017
Opinion Delivered November 22, 2017
Do Not Publish

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




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