          IN THE COURT OF CRIMINAL APPEALS
                      OF TEXAS
                                     NO. PD-0796-10



                          DANIEL RAY MORRIS, Appellant

                                             v.

                                THE STATE OF TEXAS

        ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
              FROM THE ELEVENTH COURT OF APPEALS
                        EASTLAND COUNTY

       C OCHRAN, J., filed a concurring opinion in which J OHNSON, J., joined.

                                      OPINION

       Given the ground for review that we granted in this case, I agree with the majority’s

resolution. This is the ground that we granted:

       The court of appeals erred in holding that purportedly expert testimony about
       “grooming” was admissible where there was no showing that the study of
       “grooming” was a legitimate field of expertise.

The only question that we need address is the legitimacy of a phenomenon known as

“grooming” behavior by those who use a particular method to get a person to comply with
                                                          Morris    Concurring Opinion      Page 2

what the groomer wants.1 This is not rocket science. It does not depend upon any scientific,

technical, or psychological principles or methodology. This type of testimony does not

depend upon educational expertise, any calculable rate of error, learned treatises, peer

review, or any other esoteric skill. This is not even “soft science.”2 It is just “horse sense”

expertise developed over many years of personal experience and observation. It is “modus

operandi” evidence that may or may not be relevant in a particular case. We may take

judicial notice of the legitimacy of such a behavioral phenomenon by, inter alia, looking to

decisions from other courts that have addressed that issue. What our decision in Hernandez

forbids is taking judicial notice, for the first time on appeal, of the scientific reliability of a

particular machine, such as the Adx machine in that case, or of an intoxilyzer machine, or

DNA or blood lab technology, or a particular scientific methodology for which there has not

been some showing, in a trial court hearing, of its scientific reliability.3

       Texas law has long allowed such experiential “horse sense” expertise. For example,

in one 1929 case, the court of civil appeals held that an experienced cowman was qualified




       1
         In this case, Ranger Hullum defined “methodology” as the method of operation or how a
particular crime is committed. He defined “grooming” as an attempt by an offender to get the
victim to comply with what the offender wants the victim to do. Going into a child’s bedroom
and spending 10 to 15 minutes, then finally spending the night, he said, was an example of
grooming.
       2
           See Nenno v. State, 970 S.W.2d 549, 560-61 (Tex. Crim. App. 1998).
       3
           Hernandez v. State, 116 S.W.3d 26, 30-32 (Tex. Crim. App. 2003).
                                                          Morris    Concurring Opinion      Page 3

to give his opinion on how many men were needed to handle a herd of cattle.4 Just as Texas

has long recognized that farmers may be expert witnesses in matters peculiarly within their

knowledge,5 so may police officers. We, along with federal courts and other state courts

have recognized that police officers, based solely on their years of experience and training,

may qualify as experts to testify about a wide variety of “modus operandi” techniques of

illegal enterprises or conduct.6 Their expert “modus operandi” testimony may be admissible

when it is both relevant to a disputed issue and when that “modus operandi” testimony is of

appreciable assistance to the jury7 because it is outside the average juror’s experience or full

understanding.8


       4
         Texas & P. Ry Co. v. Edwards, 21 S.W.2d 754, 757 (Tex. Civ. App.–El Paso 1929),
rev’d on other grounds, 36 S.W.2d 477 (Tex. Comm’n App. 1931).
       5
          See McDonald v. Webb, 510 S.W.2d 670, 673 (Tex. Civ. App.–Corpus Christi 1974, no
writ) (farmer, who was qualified by his technical training and experience, could testify about
quality of cotton and what makes a “below grade” bale of cotton); Kincheloe Irrigating Co. v.
Hahn Bros. & Co., 132 S.W. 78, 81 (Tex. Civ. App.–San Antonio 1910), aff’d 146 S.W. 1187
(Tex. 1912) (farmer who had grown rice for three years and stated that he knew a good rice crop
from a poor one, was qualified to testify that a certain plot would have yielded a specific number
of bags per acre had it been properly watered).
       6
         Fields v. State, 932 S.W.2d 97, 107-08 (Tex. App.–Tyler 1996, pet. ref’d) (DPS
lieutenant in narcotics service could testify to characteristics and patterns commonly existing
among “people who would be traveling with quantities” of controlled substances, especially
cocaine); Foster v. State, 909 S.W.2d 86, 88-89 (Tex. App–Houston [14th Dist.] 1995, pet. ref’d)
(experienced police officer could testify as an expert on modus operandi of “juggings”-well-
organized robberies-which “explained the rather complicated maneuvers of the co-actors with
various automobiles and license plates”).
       7
       See 7 JOHN H. WIGMORE , EVIDENCE IN TRIALS AT COMMON LAW § 1923, at 29
(Chadbourne Rev. 1978).
       8
         See e.g. United States v. Perez, 280 F.3d 318, 341-42 (3d Cir. 2002) (police officers
may testify as experts to modus operandi of drug traffickers based upon experience and training);
                                                          Morris    Concurring Opinion        Page 4

       The adoption of Rule 702 by both Texas and the federal courts has not changed this

aspect of experiential expertise.9 Indeed, the advisory committee to the Federal Rules of

Evidence has explicitly discussed the “reliability” aspect of “modus operandi” expertise

offered by police officers:

       The [2002] amendment [to Rule 702 of the Federal Rules of Evidence]
       requires that the testimony must be the product of reliable principles and


United States v. Buchanan, 70 F.3d 818, 832 (5th Cir. 1995) (narcotics agent may testify to the
significance of conduct or modus operandi of drug distribution business); United States v. Gibbs,
190 F.3d 188, 210 (3d Cir. 1999) (government agents may testify to the meaning of coded drug
language); United States v. Gil, 58 F.3d 1414, 1421–22 (9th Cir. 1995) (expert testimony
regarding how drug-traffickers employ telephone pagers and public telephones to avoid detection
by police was properly admitted); United States v. Tapia–Ortiz, 23 F.3d 738, 741 (2d Cir. 1994)
(affirming the admission of expert testimony of how drug traffickers employed telephone pagers
“in order to avoid detection”); United States v. Gastiaburo, 16 F.3d 582, 588-89 (4th Cir. 1994)
(expert testimony about “tools of the trade” of drug traffickers, including “beepers,” was properly
admitted); United States v. Solis, 923 F.2d 548, 549–51 (7th Cir. 1991) (expert testimony that the
use of “beepers” by drug traffickers permit them to be anonymous and mobile was properly
admitted); United States v. Sellaro, 514 F.2d 114, 118-19 (8th Cir. 1973) (FBI agent qualified as
expert on modus operandi of bookmakers and could define the meaning of various bookmaker
terms, even though he had never placed a bet with a bookie).
       9
       See FED . R. EVID . 702, advisory committee notes to 2002 amendments. The advisory
committee states,
      Some types of expert testimony will be more objectively verifiable, and subject to
       the expectations of falsifiability, peer review, and publication, than others. Some
       types of expert testimony will not rely on anything like a scientific method, and so
       will have to be evaluated by reference to other standard principles attendant to the
       particular area of expertise. The trial judge in all cases of proffered expert
       testimony must find that it is properly grounded, well-reasoned, and not
       speculative before it can be admitted. The expert’s testimony must be grounded in
       an accepted body of learning or experience in the expert’s field, and the expert
       must explain how the conclusion is so grounded. See, e.g., American College of
       Trial Lawyers, Standards and Procedures for Determining the Admissibility of
       Expert Testimony after Daubert, 157 F.R.D. 571, 579 (1994) (“[W] hether the
       testimony concerns economic principles, accounting standards, property valuation
       or other non-scientific subjects, it should be evaluated by reference to the
       ‘knowledge and experience’ of that particular field.”).
                                                    Morris    Concurring Opinion         Page 5

methods that are reliably applied to the facts of the case. While the terms
“principles” and “methods” may convey a certain impression when applied to
scientific knowledge, they remain relevant when applied to testimony based
on technical or other specialized knowledge. For example, when a law
enforcement agent testifies regarding the use of code words in a drug
transaction, the principle used by the agent is that participants in such
transactions regularly use code words to conceal the nature of their activities.
The method used by the agent is the application of extensive experience to
analyze the meaning of the conversations. So long as the principles and
methods are reliable and applied reliably to the facts of the case, this type of
testimony should be admitted.10


10
   Id. The committee elaborated that
        Nothing in this amendment is intended to suggest that experience alone--or
experience in conjunction with other knowledge, skill, training or education--may
not provide a sufficient foundation for expert testimony. To the contrary, the text
of Rule 702 expressly contemplates that an expert may be qualified on the basis of
experience. In certain fields, experience is the predominant, if not sole, basis for a
great deal of reliable expert testimony. See, e.g., United States v. Jones, 107 F.3d
1147 (6th Cir. 1997) (no abuse of discretion in admitting the testimony of a
handwriting examiner who had years of practical experience and extensive
training, and who explained his methodology in detail); Tassin v. Sears Roebuck,
946 F.Supp. 1241, 1248 (M.D.La. 1996) (design engineer’s testimony can be
admissible when the expert’s opinions “are based on facts, a reasonable
investigation, and traditional technical/mechanical expertise, and he provides a
reasonable link between the information and procedures he uses and the
conclusions he reaches”). See also Kumho Tire Co. v. Carmichael, 119 S.Ct.
1167, 1178 (1999) (stating that “no one denies that an expert might draw a
conclusion from a set of observations based on extensive and specialized
experience.”).
        If the witness is relying solely or primarily on experience, then the witness
must explain how that experience leads to the conclusion reached, why that
experience is a sufficient basis for the opinion, and how that experience is reliably
applied to the facts. The trial court’s gatekeeping function requires more than
simply “taking the expert’s word for it.” See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 43 F.3d 1311, 1319 (9th Cir. 1995) (“We’ve been
presented with only the experts’ qualifications, their conclusions and their
assurances of reliability. Under Daubert, that’s not enough.”). The more
subjective and controversial the expert’s inquiry, the more likely the testimony
should be excluded as unreliable. See O’Conner v. Commonwealth Edison Co., 13
F.3d 1090 (7th Cir. 1994) (expert testimony based on a completely subjective
methodology held properly excluded). See also Kumho Tire Co. v. Carmichael,
                                                          Morris    Concurring Opinion       Page 6

       Appellant argued in the trial court, and on appeal, that “the State had presented no

evidence that ‘the theory under which he’s going to express these opinions [is] accepted by

the scientific community or the psychiatric community or the psychological community[.]’” 11

He is absolutely correct.       This Court need not take judicial notice of the scientific,

psychological, or psychiatric “reliability” of expertise concerning the “modus operandi” of

grooming. Indeed we should not. As the dissent appropriately notes, the concept of

scientific “reliability” has no application to such testimony. “Grooming” is simply a

behavioral phenomenon that may or may not apply in a given scenario. One cannot, for

example, determine the scientific reliability of a police officer’s testimony that when Dan

sidled up to Simon, looked around to make sure no one else was watching, then quickly gave

Simon a $10 bill and took something from Simon’s hand, that this was a drug transaction.

There is no determinable “error rate” for how many times this type of interaction is a drug

transaction versus something else. There are probably few treatises, research studies, or peer

review articles written on the topic of the reliability of a drug transaction “modus operandi.”

There is no psychological principle involved in such experiential “modus operandi”

expertise; it is simply that the police officer, like Justice Stewart on seeing pornography,




       119 S.Ct. 1167, 1176 (1999) (“[I]t will at times be useful to ask even of a witness
       whose expertise is based purely on experience, say, a perfume tester able to
       distinguish among 140 odors at a sniff, whether his preparation is of a kind that
       others in the field would recognize as acceptable.”).
Id.
       11
            Appellant’s Brief on Appeal at 29.
                                                            Morris    Concurring Opinion   Page 7

“knows it when he sees it,”12 or at least he has an expert opinion, based on his experience and

training, concerning the significance of the particular circumstances. What the witness must

be able to do is explain how his experience and training qualifies him to make assessments

of a certain type of behavior and precisely why, based on that experience and training, he has

formed an opinion of this particular set of circumstances.

       The witness may be wrong, of course, in the particular case. Not every street corner

encounter such as described above is a drug transaction. Not every developing close

relationship between a young boy and an older man that involves lollipops, back-rubs, or

trips to the ice-cream store is an instance of “grooming.” But the relative likelihood of these

particular circumstances involving that particular “modus operandi” are generally matters for

cross-examination.13

       Nor is this an example of a scientific expert, such as a psychiatrist like Dr. Coons,

testifying to unscientific “horse sense” dressed up in a doctor’s white robe. As we stated in

Coble v. State,14 the danger with unscientific expertise posing as science is that the jury will




       12
            Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
       13
           Appellant argues that there must be empirical data to support the phenomenon of
“grooming” behavior before it can be the subject for expert testimony: “Where, however, in the
record before the Court is there any empirical data showing, for example, how many men who
give back rubs to their children turn out to be ‘grooming’ them?” Appellant’s Brief at 23. But
that is not a necessary requirement under Rule 702, nor is it a requirement of any purely
experiential expertise. It is, of course, a proper topic for vigorous cross-examination.
       14
            330 S.W.3d 253 (Tex. Crim. App. 2010).
                                                           Morris    Concurring Opinion      Page 8

accept it uncritically.15 There is no such danger when evaluating a police officer’s testimony

concerning a “modus operandi” such as “grooming.” It is “horse sense” in plain clothes; the

jury can immediately grasp the concept and use it or reject as they see fit.

       Because the only question before us is whether the behavioral phenomenon of

“grooming” is a legitimate one that may a suitable subject for expert testimony, I join the

majority opinion.


Filed: December 7, 2011
Publish




       15
          Id. at 279 n.68 (noting that, if Dr. Coons’s methodology were unscientific, the intuitive
appeal of his opinions would be doubly dangerous as the jury might accept his testimony
uncritically) (citing Flores v. Johnson, 210 F.3d 456, 465–66 (5th Cir. 2000) (Garza, J.,
concurring) (“[T]he problem here (as with all expert testimony) is not the introduction of one
man’s opinion on another’s future dangerousness, but the fact that the opinion is introduced by
one whose title and education (not to mention designation as an ‘expert’) gives him significant
credibility in the eyes of the jury as one whose opinion comes with the imprimatur of scientific
fact.”)).
