              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                          NO. AP-76,019



                             BILLIE WAYNE COBLE, Appellant

                                                    v.

                                    THE STATE OF TEXAS

     ON DIRECT APPEAL FROM THE 54TH JUDICIAL DISTRICT COURT
                       McLENNAN COUNTY


      K ELLER, P.J., filed a concurring opinion in which M EYERS, and K EASLER, JJ.,
joined.


       Rule 702 is not just about scientific evidence:

       If scientific, technical, or other specialized knowledge will assist the trier of fact to
       understand the evidence or to determine a fact in issue, a witness qualified as an
       expert by knowledge, skill, experience, training, or education may testify thereto in
       the form of an opinion or otherwise.1

We recognized in Nenno that expert testimony can be of the “nonscientific” variety, but that, in any

event, it might not be fruitful to draw “a rigid distinction between ‘hard’ science, ‘soft’ sciences, or


       1
           T EX . R. EVID . 702 (emphasis added).
                                                                    COBLE CONCURRENCE — 2

nonscientifc testimony” because the “distinction between various types of testimony may often be

blurred.”2 In Griffith, we explained that future dangerousness testimony can be provided by a mental

health expert based upon the expert’s “specialized education and experience.”3

        Rule 702 was meant to “relax the traditional barriers to opinion testimony.”4 The rule steered

courts away from Frye’s5 “general acceptance” standard6 toward determining whether the expert’s

testimony would be helpful to the trier of fact.7 For evidence to be helpful to the trier of fact, it must

be reliable, but reliability need not always be measured with the rigor that is applied to the hard

sciences.8 The reliability inquiry is “a flexible one.”9 And even if “the subject matter is within the

comprehension of the average jury,” “[i]f the witness has some special knowledge or additional

insight into the field that would be helpful, then the expert can assist the trier of fact to understand

the evidence or to determine a fact in issue.”10 Expert testimony that encompasses a field outside

of the hard sciences is admissible if: (1) the field of expertise is a legitimate one, (2) the subject

matter of the expert’s testimony is within the scope of the field, and (3) the expert’s testimony


        2
             Nenno v. State, 970 S.W.2d 549, 560 (Tex. Crim. App. 1998).
        3
             Griffith v. State, 983 S.W.2d 282, 288 (Tex. Crim. App. 1998).
        4
         Nenno, 970 S.W.2d at 560 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 588 (1993)).
        5
             See Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).
        6
             Daubert, 509 U.S. at 589.
        7
             Id. at 591; Williams v. State, 895 S.W.2d 363, 366 (Tex. Crim. App. 1994).
        8
             Nenno, 970 S.W.2d at 561.
        9
             Id.
        10
             Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006).
                                                                   COBLE CONCURRENCE — 3

properly relies upon and/or utilizes the principles involved in the field.11

         As the Court has observed, Dr. Coons is a psychiatrist who has been practicing forensic

psychiatry for thirty-one years. He has evaluated the competency or sanity of between 8,000 and

10,000 people, he has performed approximately 150 evaluations of future dangerousness, and he has

testified in approximately fifty cases. As the Court acknowledges, the record further shows that

psychiatric principles are commonly used in the civil commitment context to determine whether a

person poses a danger to himself or others. I would add that the record also shows the following:

First, while clinical practice is a relatively small part of Dr. Coons’s work, he has treated over 3,000

patients. Second, Dr. Coons subscribes to two journals in forensic psychiatry, goes to annual

meetings, and has lectured on forensic psychiatry at the University of Texas Law School, at various

attorney associations, and at continuing legal education seminars.

         With respect to assessing future dangerousness, Dr. Coons’s educational background and his

prior experience place him in a better position than the average juror. As Dr. Coons explained at

trial:

         I don’t know that there’s any specific rule or external measure, um, other than to say
         that, you know experience is – is important in these matters. It’s just like you go to
         the jail and you talk to a corrections officer and they say, So and so is dangerous.
         Why? I just know they are, or some things that they’ve said, or whatever. Uh, and
         they’ve had experience with that. Forensic psychiatrists have had experience with
         however many people they’ve seen or cases they’ve dealt with. And they develop an
         experiential body of knowledge and information and approach that helps them make
         their decisions.

         In making his assessment, Dr. Coons relied upon information from a variety of sources: an

interview with Lorna Sue Sawyer; a vital statistics death certificate regarding Arthur Coble; a note



         11
              Nenno, 970 S.W.2d at 561.
                                                                    COBLE CONCURRENCE — 4

from a senior criminal investigator with the prosecutor’s office; a narrative summary from the Naval

Hospital at San Diego regarding appellant; a report from Clay Griffith, M.D.; a timeline prepared

by the prosecutor’s office; appellant’s military personnel records; testimony from appellant’s prior

trial from Dr. Grigson, Mary Ivey, and Dr. Mark; appellant’s writings from the Polunsky Unit; the

grand jury testimony of appellant’s mother and sister; incoming and outgoing mail from the county

jail; and a report from Dr. Ralph Hodges.12 Dr. Coons explained that he always uses the same factors

in evaluating dangerousness and has done so for at least twenty years.

        The evidence at trial—Dr. Coons testimony—shows that forensic psychiatry is a legitimate

field, that predicting future dangerousness is within the scope of that field, and that using education

and experience to assess future dangerousness is a proper application of the principles involved in

the field. Notably, appellant has presented no evidence to the contrary. The Court faults Dr. Coons

for failing to cite “books, articles, journals, or even other forensic psychiatrists who practice in this

area” to substantiate his methodology, while acknowledging that Dr. Coons is “a genuine forensic

psychiatrist with a lengthy medical career.”13 But appellant did not introduce any “books, articles,

journals, or even other forensic psychiatrists” to testify that, contrary to Dr. Coons’s testimony, Dr.




        12
             Dr. Hodges diagnosed appellant at age fifteen as having “a sociopathic personality
disturbance of the dissocial order.” According to Dr. Hodges, such a diagnosis is for an individual
who has “little concern about others” and “who are concerned about . . . gratifying their own wishes
with little regard of the cost in terms of money or pain that they inflict on others.” Dr. Hodges
testified further that this diagnosis involves “extreme self-centeredness,” someone who is “basically
uncaring about the welfare or well-being of others.” Dr. Hodges testified that a later revision of the
DSM manual changed the name of the disorder to “conduct disorder” and prohibited the diagnosis
for anyone under age eighteen.
        13
             Court’s op. at 30.
                                                                    COBLE CONCURRENCE — 5

Coons’s experience-based method of evaluating future dangerousness is inappropriate.14

        I would hold that the trial court did not err in admitting Dr. Coons’s testimony. I therefore

concur in the Court’s judgment.

Filed: October 13, 2010
Publish




        14
           Of course, the fact that neither party presented any “books, articles, or journals” at trial
has not prevented the Court from citing those types of sources. Even though the Court does not
expressly rely upon those sources for the proposition that Dr. Coons’s methodology is inappropriate,
the court implicitly relies upon them to suggest that there is a substantial body of literature that Dr.
Coons should have relied upon in his testimony. I find such reliance by the Court to be
inappropriate, absent some indication in appellate opinions that these sources have been considered
in an adversarial hearing, for the reasons expressed in my concurring opinion in Hernandez v. State,
116 S.W.3d 26, 32-37 (Tex. Crim. App. 2003) (Keller, P.J., concurring). But even if one adhered
to Judge Keasler’s view that an appellate court is free to consider such materials, see id. at 43-52
(Keasler, J., dissenting), the Court fails to comprehensively consider the issue in light of the
materials it cites. So the Court has its cake and eats it too: considering the existence of this off-the-
record literature to find that Dr. Coons has failed to offer sufficient proof that his methodology is
legitimate, but not considering the contents of these materials to determine whether they approve of
his methodology.
