               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                        NO. PD-1892-11



                         BRANDON SCOTT BLASDELL, Appellant

                                                v.

                                   THE STATE OF TEXAS



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

            H ERVEY, J., filed a concurring opinion in which K EASLER and
C OCHRAN, JJ., joined.

                                  CONCURRING OPINION

       I agree with the majority that the trial court abused its discretion in this case when

it excluded Dr. Rubenzer’s expert testimony on weapon focus effect on the grounds that it

was not relevant. I write separately to emphasize that Tillman 1 made it clear that for the

testimony of an eyewitness-identification expert to be relevant for purposes of Texas Rule


       1
           Tillman v. State, 354 S.W.3d 425 (Tex. Crim. App. 2011).
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of Evidence 702, the expert need not be able to attest that a specific eyewitness-

identification procedure actually resulted in an unreliable identification and that “it is

enough that a particular identification procedure, or the facts or circumstances attending a

particular eyewitness event, has been empirically demonstrated to be fraught with the

potential to cause a mistaken identification.” See Maj. Op. at 10.

       As we explained in Tillman, the relevance inquiry of Rule 702 is whether evidence

“‘will assist the trier of fact’ and is sufficiently tied to the facts of the case.” Tillman, 354

S.W.3d at 438 (quoting Jordan v. State, 928 S.W.2d 550 (Tex. Crim. App. 1996)). An

expert need “not testify as to every conceivable factor that might affect the reliability of

eyewitness identification present.” Id. Indeed, contrary to the notion that an expert must

testify that a particular procedure actually resulted in an unreliable identification, his

testimony need only be “sufficiently tied to the facts to meet the simple requirement that it

be ‘helpful’ to the jury on the issue of eye witness reliability.” Id.

       In Tillman, the eyewitness-identification expert, Roy Malpass, discussed the

general psychology of eyewitness identification, including an explanation of his studies

and those conducted by others on the subject. “Then, Malpass responded to a series of

hypotheticals proposed by the defense, applying his knowledge of eyewitness

identification to the facts presented. . . . Malpass stated his opinion about the reliability of

the eyewitness identifications in each situation, and he identified the factors that he

believed impacted those identifications.” Id. at 438-39.
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       In holding that the relevance prong of Rule 702 was satisfied, we noted that

Malpass did not testify as to the specific identification procedures in the case, nor did he

testify that those procedures actually resulted in an unreliable identification.

Significantly, we emphasized that “each hypothetical to which Malpass applied his

theories and opinions paralleled the facts . . . and the scenarios in which the eyewitnesses

found themselves.” Id. at 439 (emphasis added). And we highlighted that Malpass’s

expert testimony “was intended to educate the jury about an area in which it lacked a

thorough understanding so that it might comprehend some of the complications that may

arise.” Id. at 442.

       Nowhere in our opinion did we even suggest that Malpass (or any similar expert)

had to attest that the specific identification procedures employed actually resulted in an

unreliable identification. Rather, we consistently stated that the testimony must be tied to

the facts of the case only as much as that the testimony will be “helpful” to the jury in

understanding the issue of eyewitness reliability. Therefore, it is clear from Tillman that

the relevance prong of Rule 702 is satisfied if an eyewitness-identification expert

provides the jury with additional information that “may help guide the jury in its

understanding of the standards in the area” and the potential for a particular eyewitness

procedure to cause a mistaken identification. See Tillman, 354 S.W.3d at 442.
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      With these comments, I respectfully join.

                                                  Hervey, J.

Filed: December 5, 2012

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