AIFI ItNI; Opinion issued November 14, 2012.




                                             In ilie
                                tiiirt nf Appiaki
                        Fiffl! tHtrict tif 4
                                           xaa at Ja11as

                                     No.   05-11-00605-CR


                          HA VI I) CESAR CORONAI)O, Appellant

                                               V.

                             THE STATE OF TEXAS, Appellee


                      On Appeal from the 265th Judicial District Court
                                   l)allas County, Texas
                           Trial Court Cause No. F10—01245—R


                                           OPINION
                         Before Justices Bridges, Richter, and Lang
                                Opinion By Justice Richter

       A jury convicted appellant of injury to a child, made a deadly weapon finding, and

sentenced him to life imprisonment and a $10,000 line. In a single issue on appeal, appellant

asserts the trial court erred in denying his motion to exclude the testimony of the State’s bite

mark expert. Finding no reversible error, we affirm the trial court’s judgment.

                                        B
                                        c
                                        1 KGRo UN D

       On December 1 7, 2008, appellant brought his five—month-old son to the emergency

room with multiple traumatic injuries. The family reported that the child had simply stopped

breathing while appellant was feeding him. Although the child had no heart rate and had
stopped breathing. he was resuscitated.

       The child had severe head and neck iniuries, including hemorrhaging and tissue

swelling on his brain. He also suffered retinal hemorrhaging. The ligaments supporting the

child’s upper neck were toni, detaching the base of the skull from the spine. In addition to

the head and neck injuries, the child had approximately forty broken bones in his shoulders,

arms, hands, legs, and feet. He also had bruising and swelling on his head, face, hands, and

feet, and bruising and bite marks on his elbows and knees.

       Appellant, the child’s father, told the police that he was alone in the bedroom with

the child when he stopped breathing. Ruthy, the mother ofthe child, and Joe, Ruthy’s father,

were elsewhere in the home.

       Dr. Matthew Cox testified at trial that the child’s neck injury was the worst he had

ever seen in an infant, and could only have been caused by a severe whiplash event that

would have caused the child to immediately stop moving and breathing. Dr. Cox opined that

the head and neck injuries were caused by a violent shaking, and the child’s serious bodily

injury was intentionally inflicted. He also opined that the injury was caused by whomever

was alone with the child at the time the injury occurred.

       Dr. Robert Williams, a practicing dentist and board-certified odontologist analyzed

the bite mark evidence in the ease. As a result ofhis analysis, Dr. Williams eliminated Ruthy

and Joe as persons who could have inflicted the bite marks, but could not exclude appellant

Prior to trial, appellant moved to exclude Dr. Williams’s testimony, alleging that forensic

dentistry does not meet the requisite guidelines for the admission of scientific expert
testimony. After conducting a hearing on appellant’s motion, the trial    court   ruled that the

testimony was admissible.

       Dr. Williams was among the witnesses who testified at trial. Upon conclusion ofthe

trial, thejury found appellant guilty of injury to a child, made an affirmative deadly weapon

finding, and sentenced him to life imprisonment and a $10,000 fine.

                                         ANAIXsIs

       In his sole issue on appeal, appellant contends the bite-mark evidence admitted at trial

through the testimony of Dr. Williams is not reliable scientific evidence under Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,584—87(1993), and Kelly v. State, 824

S.W.2d 568, 573 (Tex. Crim. App. 1992). Specifically, appellant contends he established

the scientific theory is questionable because reports from the National Research Council of

the National Academies and others have concluded that serious deficiencies exist in the area

of forensic dcntistry. See generally National Research Council of the National Academies,

Strengthening Forensic Science in the United States: A Path Forward 173—176 (2009)

[hereinafter NAS Report]. The State responds that the trial court did not abuse its discretion

in denying the motion to exclude Dr. Williams’s testimony because the record reflects that

Dr. Williams followed scientifically grounded and professionally accepted techniques in

collecting and analyzing the bite mark evidence in this case.

       We review a trial court’s ruling on the admissibility of expert testimony for an abuse

of discretion. Layton v. State, 280 S.W.3d 235,240 (Ta. Crim. App. 2009); Weatherredv.

State, 15 S.W.3d 540,542 (rex. Crim. App. 2000). Such rulings will rarely be disturbed by




                                            -3-
an appellate court.   IC/U I’.   .S!Uh’, 209 SWd I 28. 136 (Tex. (‘rim, App. 206) Roc/gci       i..


S’taic, 205 S,W 3d 525. 527 28            9   ([cx. (‘rim .App. 2006). As with other types of’

evidentiarv rulings, we will uphold the trial court’s decision unless   it   lies outside the zone

of reasonable disagreement La ion, 280 S W d at 240 (clung 7
                                                           vfontgornervi State $10

SW2d 372, 380 (Tex. Crim. App. 1990) (op. on reh’g)). If the record supports the trial

court’s decision on the admission ol evidence, there is no abuse ol discretion. Osbourn v.

State, 92 S.W.3d 53 I 537 (Tex. Crim. App. 2002),
                        ,




          Rule 702 of the Texas Rules of Evidence provides:

                If scientific, technical, or other specialized knowledge will assist the
                trier of fact to understand the evidence or determine a fact issue, a
                witness qualified as an expert by knowledge, skill, experience, training,
                or education may testify thereto in the form ofan opinion or otherwise.

Tix. R. Evin. 702. It is a trial court’s responsibility under Rule 702 to determine whether

proffered scienti he evidence is sufliciently reliable and relevant to assist the jury. Jackson

i’.   Siaic, I 7 S.W.3d 664, 670 (Tex. Crim. App. 2000). Thus, before admitting expert

testimony, the trial court must be satisfied three conditions are met: (1) the witness qualifies

as an expert by reason of his knowledge, skill, experience, training, or education; (2) the

subject matter of the testimony is appropriate for expert testirnony and (3) admitting the

expert testimony will actually assist the fact finder in deciding the case. VeIn, 209 S.W.3d

at 1 3 1: ,Iuckson, 1 7 S.W.3d at 670. These conditions are commonly referred to as (1)

qualification, (2) reliability, and (3) relevance. Vein, 209 S.W.3d at 13 1. The focus of the

reliability analysis is to determine whether the evidence has its basis in sound scientific




                                                 -4-
methodology such that testimony about ‘junk science” is weeded out, li//man v. State, 354

S W 3d425 45 (1 cx ciim App 2011) Rchabilitycenteisonprinciplcsandmcthodology

rather than the conclusions an expert generates by using those principles or methodology.

See Daubert, 509 U.S. at 595. Although an inquiry as to reliability is flexible, the proponent

of the evidence must establish some foundation for the reliability of an expert’s opinion.

1/cIa, 209 S.W.3d at 134. The demonstration of reliability must be made by clear and

convmcmg       evidence, Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crirn. App. 2005).

         To be considered sufficiently reliable as to be of help to a jury, scientific evidence

must meet three criteria: (1) the underlying scientific theory must be valid; (2) the technique

applying the theory must be valid; and (3) the technique must have been properly applied

on the occasion in question. VeIn, 209 S.W.3d at 134; Kelly, 824 S.W.2d at 573. Generally,

in areas considered “hard science,” factors that could affect a trial court’s determination of

reliability include, but are not limited to: (1) the extent to which the underlying scientific

theory and technique are accepted as valid by the relevant scientific community, if such a

community can be ascertained; (2) the qualifications of the expert testifying; (3) the

existence of literature supporting or rejecting the underlying scientific theory and technique;

(4) the potential rate of error of the technique; (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(s)




   Although appellant now also references the relevance of Dr. Williams’s testimony, the challenge in the court below
was made only as to reliability. Our inquiry is limited accordingly. See Tix. R. Aim. P. 33.1(a).
                                                           I                 ti                            Ii                                                                                                                                                                                          II


                                                       I                               I                                                     iii               iii                                                                                                            I

                                                                             I                                                 Li                                                           I                                                                                          I                (I

                      I                            i                                                 I                                                               I                                                                                                                                  (I

                          I(                                                           1
                                                                                       P                                                ii!                                    I                    I                                      II


                                                                                           I). I                                    r                  I                           ii                                  1                                                I     i        iI

I                     i       It         I                          1!           1               I                        ii            1(1                          It                                                                   I It    ti       lit                          it        I.


ir          Ii                     I         /                 i     I                                   tit     j    I I                                          iii              I                         Ii   1                 I tI              11(1    It            tI1)t)           I


    Oil           t                          hi                                                           ()     W d                                                     (     ‘                    m              App                   0101              h        i         h             au

lit                   lit)              ()   pI)Vlit                     I           II     I)             it’ iii   lb        ()                          I   I                    ill                            ci I d1                        ii,t           lb               Ii         ci ot

      P    It I                    I         on                    jii   LIII                tO                 tahi I Ii       F        I         hil it                    Ill                U                          it             iii         pt-Upon                 iii       mu                  I


      tahi i h                 lb            (I)       lb                I           Id ol                      j) ills         I            a     I               itIfliat                 OIl                (       )   th             uhj          I   mait                    ol’ lb

      P    Ft             I            tIfllOiIV I                  \ViIhin                 lb                  cope ol that                       Ii          Id’           and        (       )       lIt                p        ii     I      I   iition’ )rop nY

F     he     011 Ui’ 111111                            lb P                      Ifl        p1                  involv d in that Ii Id ‘V iin ()7()                                                                                      W. d at 61                               i//man

354 S.’vV d at 43                                                    6 I3ccau c ihe di Unction 1) (we                                                                                       it vaniou                           I    p ol testimony ma

oltcn he hiulT d lb                                                court                   ol crimmal appeals                                                                plicitly               ich’aiii                    ci from d velopm                                        ri         id

di (mci icIt                           hetwe           ii           haiti                  se idle                    oil                diCflCC5                            mid nonsci nIl tic t                                              timony.                      4lorui.s i


S’iaIe,         361 S.W 3d 649 6 5 (Tex Crim. App. 2011).

                  I)r. Wi I hams testi lied that                                                                 forensic                odontolo y is the application of the science of

denti try to the field of’ law The NAS Report describes the                                                                                                                                         science as an                                experience                            ha ed

forensic                  method based on expert mlerpretation of observed pLltterns. Se V
                                                                                         ’1.S’I?c’pori,
                                                                                         1                                                                                                                                                                                             sup/u




                                                                                                                                              6
p. 1 74. Therefore, because the science is more akin to a soft science, we employ the Nenno

factors in our analysis.

       Dr. Williams testified that he is a practicing dentist and boardcertified odontologist,

and has been performing bite mark analysis for twenty years. He served on the board of

directors for the American Board of Forensic Odontology (“ABFO”) for six years, and

worked with the certification committee to develop guidelines for becoming board certified

in forensic odontology. He teaches at Baylor College of Dentistry, the University of Texas,

Southern Methodist University, and Texas A & M University, and has written several papers

and given numerous presentations in the field of forensic odontology. He works on a

consulting basis with the Dallas County Medical Examiner’s office and has been their chief

forensic odontologist since 1991. He has also consulted with the FBI and various other law

enforcement agencies across the state.

       Dr. Williams testified that the field of forensic odontology is accepted as valid by the

American Academy of Forensic Sciences, the American Dental Association, the Texas

Dental Association, and many other scientific organizations that are involved with dentistry.

There is also extensive literature supporting the scientific theory and underlying techniques

of bite mark analysis, including a text book written by Robert Dorion entitled “Bitemark

Evidence” and articles written by Charles Bowers, David Sweet, and David Sin. Dr.

Williams acknowledged that there is a lack of scientific studies testing the reliability of bite

marks on human skin, likely due to the fact that few people are willing to submit to such a

study. However, he did point out there was one study on skin analysis conducted by Dr.
Gerald Reynolds using pig skin, “the next best thing to human skin.’’ Dr. Williwus testified

that there are recotnizahle and definable techniques in the field of forensic odontoloev that

can be verified. Specifically, the AI3FO has established guidelines for the proper collection,

documentation, and analysis of bite mark evidence, These guidelines provide a basic

framework in which the scientific principles of forensic odontology are analyzed and

applied, but they still allow for some discretion among practitioners. The techniques applied

by a practitioner can he verihed by examining their documentation ol the analysis performed

to ensure that no error, distortion or discrepancy was introduced into the comparison. Dr.

Williams stated that he regularly has his work yen tied by the two other dentists within his

practice by submitting the evidence to them and having them perform a blind analysis, He

stated there are approximately 104 board-certified forensic odontologists available to verify

another practitioner’s analysis.

        [)r Williams described generally how bite mark evidence is collected and analyzed

according to the AI3F’O guidelines. He testified that an odontologist should be contacted as

soon as a bite mark is discovered because it is ideal that the evidence on the victim be as

recent as possible. The odontologist should photograph the pattern injury and, if possible,

take a saliva swab for DNA testing. An odontologist can take an impression of the skin

where the suspected bite mark is located if it is lacerated or depressed, but Dr. Williams

testified that he does not find such impressions to be of much evidentiary value. The next

step would be to gather evidence from any suspects in the case, such as photographs,

impressions, and casts of the suspects’ teeth. Once the evidence is collected, the odontologist




                                              V
analyzes the pattern injury on the victim to determine whether it has enough characteristics

to be classified as a human bite mark. Dr. Williams explained that if the bruising is diffuse,

the injury may not have evidentiary value, If a human bite mark is identified, the

odontologist then determines whether there are enough unique characteristics of the teeth

to pick the particular person out of a population. Dr. Williams was not willing to quantify

the number of teeth needed to make a positive identification on any given bite mark other

than saying “more than one,” He explained that the more teeth that are “evidentiary” in the

bite mark, the more accurate a statement an odontologist can make as to whether it is a

human bite mark and whether there is a particular individual that can be associated with that

bite mark. The ABFO guidelines provide a variety of methods that odontologists can utilize

in comparing the cast of a suspect to a bite mark, Of these approved methods, Dr. Williams

uses Adobe Photoshop to conduct his analysis. He scans the dental casts of any suspects and

photographs of the bite marks onto his computer and sizes them “one to one” so they can be

properly compared. He uses Adobe Photoshop to remove the superfluous material                 of the   cast

so   that all that is left   are   the edges of the teeth that make contact with the tissue. This image

is then converted to a transparent overlay which can be superimposed over the bite marks

for comparison. Dr. Williams began              using   Adobe Photoshop   in   1993 and worked with the

forensic photographer for the Dallas County Medical Examiner’s Officer to develop and

refine this technique for bite mark comparison.
        Dr. Williams acknowledged he was aware of recent cases and studies questioning

the accuracy ni bite mark analysis. lie explained that these studies and eases simply

highlight the taut that practitioner error, lack of training and/or a misapplication of

recognized odontology techniques can yield results that are not evidentiar and should not

he used in the judicial arena, Dr. Williams stated that he does not agree with the NAS

Report’s conclusion that bite mark analysis cannot result in a conclusive match, He

explained that the ability to find a match depends on the quality of the evidence available

for analysis and the quality of the evidence obtained from a suspect tbr comparison, and

“the NAS does not like to see such a subjective analysis.” Although he acknowledged that

skin does not always make a good impression material, he also stated that you do not have

to be a “rocket scientist” to see that, in some cases, there is a unique and distinct pattern of

teeth that can be identified.

        Dr. Williams testified about the steps he took in performing the bite mark analysis

in this case. Dr. Williams was contacted by the State the day the child was brought to the

hospital. Shortly thereafter, he went to the hospital and took photographs of the injuries. He

was unable to collect a saliva sample for DNA testing because the child had already been

cleaned up by the hospital personnel. The child had several pattern injuries that were

suspected to be bite marks, but not all had sufficient evidentiary value to facilitate

comparison. Dr. Williams identified three or more as being consistent with a human bite

mark and then limited his analysis to two of the bite marks, one on the left knee and one on

the lower right leg, just below the knee.




                                               10—
       Subsequently, the three individuals who had access to the victim during the time the

injuries were inflicted—Joe, Ruthy, and appellant— were brought to Dr. Williams’ s office

for examination, Dr. Williams took photographs of each suspect’s teeth and obtained dental

impressions, from which he made two sets of dental exemplars or casts. In examining the

photographs and cast of appellant’s teeth, Dr. Williams noted that his top teeth were not

aligned with his bottom teeth and he had a large, visible gap between two teeth in the front,

Dr. Williams scanned the dental casts of the three suspects and photographs of the child’s

bite marks onto his computer and sized them for comparison. He used Adobe Photoshop to

remove the superfluous material and then created an overlay of each suspect’s teeth to

compare to the bite marks. Considering the physical parameters of each suspect’s teeth, the

unique pattern of contusions on the child’s skin, and the closed population of suspects

exposed to the child at the time the injuries were inflicted, Dr. Williams concluded that both

Joe and Ruthy could be excluded as the person who inflicted the bite marks, but appellant

could not be excluded as the person who inflicted the bite marks.

       Appellant acknowledges that bite mark evidence has generally been deemed

admissible. See Spence v. State, 795 S.W.2d 743, 752 (Tex. Crim. App. 1990). In Spence,

the court of criminal appeals noted that while they had not found unanimous agreement on

the proper predicate for determining admissibility of bite mark evidence, “our research has

not yet led us to a single reported case where bite mark evidence has been ruled not to be

admissible evidence.” Id. The court further observed that while experts in the field do not

agree on the exact number of similarities necessary to make a positive identification, “the




                                            —ii—
lack of agreement on the minimum number of concordant points on similarity, as well as

what might be considered as the lack of sufficient background data goes to the weight and

not the admissibility of such evidence,” id.

         Yet appellant insists that Spence no longer holds any preeedential value because it

was decided before Daubert and the NAS identification of several deficiencies in the field

of forensic odontology. The existence of deficiencies in a particular field, however, does not

merit the wholesale exclusion of all evidence within that field. And there is nothing to

suggest that the application of Daubert to the facts in Spence would yield a different result,

Indeed, in a recent unpublished decision, the court of criminal appeals upheld the admission

of similar expert testimony in the field of forensic odontology. See chanthakoummane v.

State, No. AP-75,795, 2010 WL 1696789, at *23 (Tex. Crim. App. April 28, 2010) (not

designated for publication). In c’hanthakoumrnane, both the State and the defense presented

                                      2 Id. at *2 l—22. Unlike the case at bar, the
expert testimony concerning bite mark analysis.

State’s expert utilized his analysis to positively identify the suspect rather than exclude

suspects from a closed population. The expert testifying on behalf of the defense was highly

critical of the State’s expert’s techniques, as well as the evidentiary value of the bite mark

used for analysis. Id. at *22. These criticisms formed the basis for the defendant’s Daubert

reliability challenge. Id.




   1lere, appellant was provided with an appointed expert and had the opportunity to refute Dr. Williams’s testimony.
   2
For reasons not apparent in the record, appellant elected not to do so.




                                                       —12—
       lhe court of criminal appeals rejected the defendant’s argument that the testirnon

was not reliable and therefore inadmissable. In so concluding. the court reasoned that the

State’s expert lollowed the ABF() iidelincs when conductini his analysis, and the

opposing   expert did not discredit the scientific theory or the technique of bite mark

comparison, Id. at *23. Because the trial court was ultimately in the best position to evaluate

the witnesses and their conflicting testimony, the high court deferred to the trial court’s

decision to admit the evidence, Id.

       Appellant further argues that the bite mark evidence at issue here fails the “testability”

prong of Daubert because it was not derived from techniques with known testing rates.

Although l)r. Williams did concede that skin is a poor impression medium, he also explained

that there can still he bite marks that have evidentiary value. In conducting his analysis in

this case, Dr. Wi I hams stated that he was conservative and only selected two of several

pattern injuries that were likely bite marks. The two that were selected were marks that he

believed met his high standard of evidentiary value. As to known error rates, Dr. Williams

explained the difficulties in conducting studies on human bite marks. And as the State

observes, because bite mark analysis is based partly on experience and training, the hard

science methods of validation, such as assessing the potential rate of error, are not always

appropriate for testing its reliability. See Nenno, 970 S.W.2d at 56 1. Reliability should be

evaluated with reference to the standards applicable to the particular field in question. See

C’ohie. 330 S.W.3d at 274. Moreover, the      Daithert   inquiry affords more flexibility than

appellant’s argument suggests. SeeDauhert, 509 U.S. at 58g. While setting forth the factors
relevant to scienti he reliability, the Supreme ( ourt cautioned that “we do not presume to set

out a definitive checklist or test.’ hi. at 59. We decline to impose such a checklist here.

       Finally, with regard to the deficiencies in lorensic odontology identilied in the NAS

report, we note that the NAS report does not conclude that bite mark evidence has lost

general acceptance in the scientific community, nor does it call for universal exclusion of

such evidence. To the contrar   .   the NAS report acknowledged that “[d]espite the inherent

weaknesses involved in bite mark comparison, it is reasonable to assume that the lwocess can

sometimes reliably exclude suspects.” i’L4S I? eport. supra at 176. The NAS Report further

observed that the methods of collection of bite mark evidence are relatively

noncontroversial; the dispute arises with regard to interpretation of the collected data, NAS

1?eport, supra, at 1 76. Significantly, the evidence in this case was used for the very purpose

the NAS deems reliable      to exclude suspects in a closed population. The State established

that Dr. Williams’s analysis was conducted in accordance with the ABFO guidelines, and

appellant did not discredit the basic scientific theory or technique of’ bite mark comparison.

To the extent appellant demonstrated deficiencies or limitations of the science, such

Limitations go to the weight of the evidence rather than its admissibility. See 5ence, 795

S.W.2d at 752. On this record, the trial court could reasonably conclude that the field of

expertise is legitimate, Dr. Williams’s testimony was within the scope of that field, and Dr.

Williams properly relied on established principles in that field. See Nenno, 970 S.W.2d at

561.




                                             —14—
Consequently,   We C1flfl0t   conclude the trial   COUrt abLiSc(I   its (lisCl’CliOfl in admitting the

evidence, Appellant’s sole issue is overruled. The judgment ol the trial court is amrmed.




                                                      MAR [IN RlCifi’tR
                                                      J LIST ICE




Publish
TEx. R. APp. P.47

I 10605F.P05
                                 Quurt uf ppcuta
                        FiftI! istrict nf Jixa at a1tas
                                       JUDGMENT
l)AVJI) CESA R CORON Al)O, Appellant                 Appeal from the 265th Judicial I)istrict
                                                     Court ol Dallas County, Texas. (Tr.Ct.No.
No. 05—11 —00605—CR           \/                     Fl 0—() I 245—k).
                                                     Opinion delivered by Justice Richter,
THE STATE OF TEXAS, Appdllee                         Justices Bridges and Lang participating.


       Based on the Court’s opinion of this date, the judnment of the trial   court   is AFFIRMEL).




.ludgment entered November 14, 2012.




                                                     MARTIN
                                                     JUST ICE
