                                  NO. 07-06-0380-CR

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL D

                                    APRIL 24, 2007

                         ______________________________


             MILTON D. STEPHENSON, A/K/A MILTON STEPHENSON,
                 A/K/A MILTON DEE STEPHENSON, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

          FROM THE 252ND DISTRICT COURT OF JEFFERSON COUNTY;

                 NO. 91144; HONORABLE LAYNE WALKER, JUDGE

                        _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                       OPINION


      This case involves the admissibility of expert witness testimony in the field of

psychology pertaining to the reliability of eyewitness identification of a suspect from a
photographic lineup. Following a Daubert-Kelly hearing,1 the trial court concluded that the

proffered expert witness testimony did not meet the threshold requirements for admissibility

and excluded the testimony. Finding that, under the circumstances of this case, the trial

court erred by excluding such testimony, we reverse and remand this case for a new trial.


                                       Background


       At approximately 9:45 p.m. on June 20, 2003, Maria Moreno was vacuuming her car

at a car wash. All the doors to the car were open. Her husband had gone to get change,

and her young son was in the back seat. While she was cleaning out the back seat area,

she looked up and noticed a stranger sitting in the driver’s seat. She pushed him and

asked what he was doing. He responded by pointing a gun at her and demanding she get

away. She removed her son from the car and the man quickly drove away, after which she

called 911.


       The responding officer secured the scene and obtained information on the stolen

vehicle. The complainant advised the officer that the suspect had originally approached

the scene on a bicycle which was then booked into evidence. She described the suspect

as an eighteen year old black male with a small pointed nose.




       1
        See Tex. R. Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
(1993); Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992).

                                             2
       Thirteen days later, on July 3, 2003, the detective assigned to the case presented

a six-person simultaneous photographic lineup to the complainant. According to the

detective, the photographs used in the lineup were selected by another detective. He did

not make any suggestions to the complainant regarding the lineup. Four to five minutes

after viewing the lineup, the complainant positively identified Appellant as the man who had

stolen her car from the car wash at gunpoint. The complainant’s eyewitness identification

of Appellant was the only evidence which tied Appellant to this crime.


       At a hearing on Appellant’s motion to suppress the photographic lineup identification

of Appellant, the complainant testified about the facts surrounding the robbery and her

subsequent identification of Appellant from that photographic lineup. The investigating

detective testified the complainant positively identified Appellant without any suggestion

or pressure from him. At the suppression hearing, the trial court denied Appellant the

opportunity to present testimony from Dr. Curtis E. Wills, a forensic psychologist, who had

been proffered as an expert witness on the subject of (1) the reliability of eyewitness

testimony in the context of simultaneous photographic lineup identifications and (2) “other

elements” that create “false positives in photographic lineups.” At the conclusion of the

hearing, the trial court denied Appellant’s motion to suppress both the photographic lineup

and the in-court identification.


       At trial, Appellant again proffered the testimony of Dr. Wills. In response to this

proffer, the State requested a Daubert-Kelly hearing. During that hearing, Dr. Wills was


                                             3
allowed to testify and supporting exhibits were received. At the conclusion of that hearing,

the court announced that the testimony of Dr. Wills would be excluded from the jury.


       The case proceeded to the jury, whereupon Appellant was found guilty of

aggravated robbery. At the punishment phase of trial, the jury found that Appellant had

previously been convicted of prior felony offenses and assessed his sentence at

confinement for 99 years.


       Presenting three points of error, Appellant maintains the trial court abused its

discretion in (1) excluding testimony of his expert witness; (2) denying his motion to

suppress the photograph identification; and (3) denying his motion to suppress the in-court

identification.


                                   Standard of Review


       A trial court’s determination of a witness’s qualifications as an expert and its

decision to exclude expert testimony is reviewed for abuse of discretion. Ellison v. State,

201 S.W.3d 714, 723 (Tex.Crim.App. 2006). The trial court’s decision to admit or exclude

testimony will not be disturbed absent a clear abuse of discretion. Id. The trial court

abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any

guiding rules or legal principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App.

1993). Under this standard, the appellate court must uphold the trial court’s ruling if it was




                                              4
within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391

(Tex.Crim.App. 1991)(op. on reh’g).


             Expert Testimony on Reliability of Eyewitness Identification


       Under Rule 702 of the Texas Rules of Evidence, the proponent of expert testimony

must show by clear and convincing evidence that the evidence he seeks to introduce is

sufficiently relevant and reliable to assist the trier of fact in accurately understanding other

evidence or in determining a fact issue. Kelly v. State, 824 S.W.2d 568, 572

(Tex.Crim.App. 1992).


                                          Relevance


       The standard for relevance is whether the scientific principles “will assist the trier of

fact” and are “sufficiently tied” to the pertinent facts of the case. Jordan v. State, 928

S.W.2d 550, 555-56 (Tex.Crim.App. 1996). In this case, the State’s case rested solely

upon the complainant’s eyewitness identification of Appellant. Likewise, Appellant’s

defense of mistaken identity rested solely upon the jury being able to judge the credibility

of this eyewitness testimony.      Expert witness testimony pertaining to the reliability of

eyewitness identification of a suspect from a photographic lineup was sufficiently tied to

the pertinent facts of this case as to be relevant.




                                               5
                                          Reliability


       Courts have wrestled with the application of the reliability component to a proffer of

expert testimony pertaining to the reliability of eyewitness identifications. Weatherred v.

State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000), citing Nenno v. State, 970 S.W.2d 549,

561 (Tex.Crim.App. 1998), overruled on other grounds, State v. Terrazas, 4 S.W.3d 720,

727 (Tex.Crim.App. 1999); Nations v. State, 944 S.W.2d 795 (Tex.Crim.App. 1997). See

also Jordan, 928 S.W.2d at 553.


       In Kelly the Court of Criminal Appeals held that Rule 702 required satisfaction of a

three-part reliability test before “novel” scientific evidence would be admissible: (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.

Kelly, 824 S.W.2d at 573. Factors the trial court might consider in determining whether this

reliability component has been met include, but are not limited to: (1) acceptance by the

relevant scientific community, (2) qualifications of the proffered expert, (3) literature

concerning the 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

theory or technique can be explained to the court, and (7) the experience and skill of the

person applying the technique. Id.; see also Nenno, 970 S.W.2d at 560.




                                               6
       In Nenno the Court of Criminal Appeals suggested that the Kelly framework applies

to the soft sciences but with “less rigor” than to the hard sciences.2 Nenno, 970 S.W.2d

at 561; Roberts v. State, No. AP-75051, 2007 WL 1135647, at *7 (Tex.Crim.App. April 18,

2007)(not yet released for publication). Expert witness testimony in the field of psychology

pertaining to the reliability of eyewitness identification of a suspect from a photographic

lineup is a “soft science.” In the field of “soft sciences,” the three-prong Kelly test for

reliability can be restated as requiring that the proponent of the evidence to show that the

(1) field of expertise involved is a legitimate one, (2) subject matter of the expert’s

testimony is within the scope of that field, and (3) expert’s testimony properly relies upon

or utilizes the principles involved in that field. Nenno, 970 S.W.2d at 561.


                                          Analysis


                       Was the Testimony of Dr. Wills Admissible?


       During the Daubert-Kelly hearing conducted by the trial court, Dr. Wills testified

concerning his psychological research and publication of articles in the areas of eyewitness

memory and the reliability of eyewitness testimony. He also testified he has been involved

in approximately 400 presentations, articles, and papers. He specifically offered testimony



       2
        “Hard sciences” are generally considered to be those sciences which are based
upon scientific method and are susceptible to rigid scientific testing and validation, such
as chemistry, physics, or mathematics; whereas, “soft sciences” are generally considered
to be those nonscientific disciplines that rely upon technical or specialized knowledge, skill
or experience, such as the social sciences of psychology, sociology, or criminology.

                                              7
on sequential versus simultaneous lineups, as well as the rules and evaluation process

involved in preparing a photographic lineup.3 For purposes of establishing whether Dr.

Wills had relied upon and utilized the appropriate methodology and principles involved in

the field of the reliability of eyewitness identifications in photographic lineups, the trial court

admitted two exhibits (Defendant’s Exhibit No. 2 and Defendant’s Exhibit No. 3) in support

of his testimony.


       Defendant’s Exhibit 2 is an article written by the Honorable Pat Priest, Senior District

Judge from Bexar County, entitled “Eyewitness Identification and the Scientific Method,”

published in the December 2002 issue of the Texas Bar Journal. According to Judge

Priest’s article, the scientific method for eyewitness identification is as follows:


       C       the person conducting the lineup interview should not know which
               member of the lineup is the suspect;
       C       the interviewee should be informed that the suspect may or may not
               be in the lineup and that the interviewer does not know which person
               is the suspect;
       C       the suspect must not stand out from the others;
       C       a clear statement of the witness’s level of confidence should be taken
               immediately after the identification and prior to any feedback;
       C       the interviewer should conduct a sequential and not a simultaneous
               lineup; and
       C       for purposes of ad hoc review, the lineup procedure should be
               videotaped.



       3
       According to Dr. Wills’s testimony, a simultaneous lineup refers to multiple
photographs appearing on one page whereas a sequential lineup consists of viewing one
photograph at a time and either rejecting or accepting it.

                                                8
      Defendant’s Exhibit 3 is a paper presented at the 2004 Advanced Criminal Law

Course, sponsored by the State Bar of Texas, entitled “Restoring Integrity in Eyewitness

Cases: Sequential Photo Lineups.” It includes several appendices, one of which is a paper

on photographic lineup procedures prepared by Dr. Wills for the Texas Rangers. Two

other articles also included in Exhibit 3 are: (1) “Eyewitness Accuracy Rates in Sequential

and Simultaneous Lineup Presentations: A Meta-Analytic Comparison,” and (2) “Best

Practice Recommendations for Eyewitness Evidence Procedures: New Ideas for the Oldest

Way to Solve a Case.”


      Dr. Wills testified that his paper for the Texas Rangers involved the importance of

suspect photos being consistent with one another and with the complainant’s description

of the suspect. For example, he explained that if the complainant’s description included

a mole, then a mole would either have to be apparent or unapparent in all photographs

in the lineup to reduce the risk of a witness identifying a suspect based solely on the

appearance of a mole rather than an actual identification of the suspect.


      Based upon his review of the facts in this case, Dr. Wills then offered his opinion

that the lineup in question had “some real problems.” According to Dr. Wills, the lineup

was biased. Specifically, he pointed out that the simultaneous lineup included several

photographs that did not sufficiently match the complainant’s description of the suspect.

Furthermore, he noted that some of the photographs stood out from the others because




                                            9
some included facial hair while others did not, and some included suspects with broad

noses while others did not.


       Simultaneous with the introduction of Defendant’s Exhibit Nos. 2 and 3, the trial

court announced that the admission of these exhibits was for the benefit of the review to

be conducted by the Court of Appeals. Based on this comment and the time frame

reflected by the record, we are persuaded that the trial court did not take the time to

actually consider this evidence.4 Notwithstanding the fact that the trial court may not have

considered this evidence, said exhibits were properly before it for purposes of

consideration and analysis as to whether Appellant had met his burden pertaining to the

admissibility of Dr. Wills’s testimony. We must, therefore, review the totality of this

evidence to determine whether the trial court’s decision to exclude the testimony of Dr.

Wills was an abuse of discretion.


       Dr. Wills was proffered as an expert witness in the field of psychology. Psychology

is a legitimate and recognized field of expertise. Tiede v. State, 76 S.W.3d 13, 14

(Tex.Crim.App. 2000). The reliability of eyewitness identification is a legitimate subject

matter within the field of psychology. Weatherred v. State, 963 S.W.2d 115, 122-31

(Tex.App.–Beaumont 1998), rev’d. on other grounds, 15 S.W.3d 540 (Tex.Crim.App.



       4
         While the record of proceedings is ultimately for the benefit of appellate review, a
trial court is duty-bound to consider evidence proffered for purposes of a Daubert-Kelly
analysis and it may not shirk that duty by simply deferring to the appellate court to do that
which it had the obligation to do in the first place.

                                             10
2000). Dr. Wills’s testimony, in particular his opinion that the photographic lineup in

question was biased, relies upon and utilizes the principles involved in that field. In

preparation for his testimony, Dr. Wills reviewed the statement given to the police by Maria

Moreno. He also reviewed the probable cause affidavit and the photographic lineup in

question. He applied the concept of “relative judgment” to simultaneous photographic

lineups and opined the benefits of sequential photographic lineups versus simultaneous

photographic lineups. Furthermore, he applied the concepts of “cueing and unintentional

behavior” to the process of preparing and presenting non-suggestive photographic lineups.


       Having determined that the proffered expert testimony of Dr. Wills was (1) within the

legitimate field of psychology, (2) concerning a subject matter within the scope of that field,

to-wit: the reliability of eyewitness identifications in photographic lineups; and (3) arrived

at after proper utilization of the principles involved in that field, we conclude the proffered

expert testimony met the three prong analysis of Kelly and Nenno and was admissible.

Concomitantly, the trial court abused its discretion in excluding that testimony.


         Was the Appellant Harmed by the Exclusion of the Expert Testimony?


       In Cain v. State, 947 S.W. 2d 262 (Tex.Crim.App. 1997), the Court of Criminal

Appeals held that except for certain federal constitutional errors deemed structural by the

United States Supreme Court, no error is categorically immune from a harm analysis. See

also Wheat v. State, 178 S.W.3d 832, 833 (Tex.Crim.App. 2005). Although a trial court’s

decision to exclude defensive evidence can substantially affect the rights of the accused,

                                              11
erroneous evidentiary rulings rarely rise to the level of denying an accused the fundamental

constitutional right to present a meaningful defense. Teide v. State, 76 S.W.3d 13, 14

(Tex.Crim.App. 2002); Poiter v. State, 68 S.W.3d 657, 663 (Tex.Crim.App. 2002). As

explained in Poiter, there are, however, two distinct types of evidentiary rulings which

potentially rise to the level of a constitutional violation: (1) state evidentiary rulings which

categorically and arbitrarily prohibit an accused from offering otherwise relevant, reliable

evidence which is vital to his defense; and (2) a trial court’s clearly erroneous ruling

excluding otherwise relevant, reliable evidence which “forms such a vital portion of the case

that exclusion effectively precludes the defendant from presenting a defense.” Poiter, 68

S.W.2d at 665.


       Therefore, when a trial court excludes relevant, reliable evidence which forms such

a vital portion of the case that the accused is effectively prevented from presenting a

meaningful defense, the appellate court must reverse the judgment of the trial court unless

it determines beyond a reasonable doubt that the error did not contribute to the conviction

or to the punishment assessed. Tex. R. App. P. 44.2(a).


       Having determined that the trial court erred in excluding the testimony of Dr. Wills,

we must assess whether that testimony was vital to Appellant’s presentation of a

meaningful defense. In this regard, we start with the observation that the accuracy and

reliability of the complainant’s identification of Appellant as the perpetrator of this crime

was pivotal to the State’s case. The State presented no other inculpatory evidence tying


                                              12
Appellant to the crime for which he was convicted. Likewise, Appellant’s defense of

mistaken identity turns on the ability of the jury to judge the reliability of that very same

testimony. Therefore, we conclude that the reliability of the eyewitness identification was

a vital aspect of the case at bar.


       Although the proffer of expert testimony on eyewitness identification has increased,

it remains controversial. Weatherred, 15 S.W.3d at 541 n.2. Courts from all levels,

psychologists, and commentators have accepted the premise that the “identification of

strangers is proverbially untrustworthy.” United States v. Wade, 388 U.S. 218, 228, 87

S.Ct. 1926, 1933, 18 L.Ed. 2d 1149 (1967); U.S. v. Brownlee, 454 F.3d 131, 141 (3rd Cir.

2006); Cook v. State, 741 S.W.2d 928, 952 (Tex.Crim.App. 1987)(Clinton J., dissenting).

The hazards of eyewitness identifications are established by a formidable number of

instances of misidentification in the records of American criminal jurisprudence.5 Making

the situation even more problematic is the fact that “jurors seldom enter a courtroom with

the knowledge that eyewitness identifications are unreliable.”6 Given these vagaries, a

defendant’s ability to effectively challenge the certainty and confidence of an eyewitness

identification is a matter of paramount importance to the fair administration of justice.




       5
       Samuel R. Gross et al., Exonerations in the United States: 1989 - 2003, 95 J.Crim.L
& Criminology 523 (2004); 3 Wigmore, Evidence § 786a (3d ed. 1940).
       6
       Rudolf Koch, Note, Process v. Coutcome: The Proper Role of Corroborative
Evidence in Due Process Analysis of Eyewitness Identification Testimony, 88 Cornell L.
Rev. 1097, 1099 n.7 (2003)

                                             13
       Under the facts of this case, the trial court’s decision to exclude the testimony of Dr.

Wills significantly impaired Appellant’s ability to present his defense and was, therefore,

of constitutional proportions. In light of these considerations, we cannot determine beyond

a reasonable doubt that the error did not contribute to the conviction.


                                        Conclusion


       Having determined that Appellant was harmed by the exclusion of Dr. Wills’s

testimony, we sustain point one. Although Appellant addresses the denial of his motion

to suppress in points two and three, he neither argues nor references any authority in

support of those contentions. Accordingly, he presents nothing for review as to points two

and three. Tex. R. App. P. 38.1(h). See also Cardenas v. State, 30 S.W.3d 384, 393

(Tex.Crim.App. 2000).


       Consequently, having sustained Appellant’s first point of error, the judgment of the

trial court is reversed and this cause is remanded for a new trial.




                                                   Patrick A. Pirtle
                                                       Justice



Publish.




                                              14
