Affirmed and Memorandum Opinion filed November 5, 2019.




                                     In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00975-CR

                   NATHAN LAFEGIA MOORE, Appellant

                                        V.
                          THE STATE OF TEXAS, Appellee

                     On Appeal from the 10th District Court
                           Galveston County, Texas
                       Trial Court Cause No. 16CR0636

                  MEMORANDUM OPINION

      Appellant Nathan Lafegia Moore challenges his conviction and sentence for
aggravated assault. In a single issue, he argues that the trial court erred by not
allowing him to take the State’s expert witness on voir dire. Because we conclude
that appellant failed to preserve his appellate complaint for review, we affirm the
trial court’s judgment.
                                   Background

      The Galveston County District Attorney charged appellant with the second-
degree felony offense of aggravated assault with a deadly weapon. Appellant
pleaded guilty to the charge, and the trial court placed appellant on two years’
deferred adjudication community supervision. A year later, the State moved to
revoke appellant’s community supervision and to adjudicate appellant’s guilt. As
grounds for revoking appellant’s community supervision, the State alleged that
appellant violated eleven conditions of his community supervision.

      The trial court held a hearing on the State’s motion. Appellant pleaded true
to six violations of the conditions of his community supervision but denied
violating the rest. An officer with the Galveston County Community Supervision
and Corrections Department testified that appellant violated certain conditions of
his community supervision, including testing positive for illegal drugs and failing
to complete any of the 240 hours of assigned community service. The State also
introduced evidence of appellant’s prior criminal history, which the State proved
by matching appellant’s fingerprints to prints included on each of the six
judgments.

      At the conclusion of the hearing, the trial court found that appellant violated
all eleven challenged conditions of his community supervision, adjudicated
appellant guilty of the charged offense, and sentenced appellant to ten years’
confinement in the Institutional Division of the Texas Department of Criminal
Justice.

      Appellant timely appeals.




                                         2
                                      Analysis

      In a single issue, appellant argues that the trial court reversibly erred by not
allowing appellant’s counsel to take the State’s expert witness on voir dire during
the adjudication hearing.

      Deputy Amanda Hall testified that she is a forensic investigator and latent
print examiner for the Galveston County Sheriff’s Office.         Deputy Hall took
appellant’s fingerprints in court and then matched those prints with prints on six
prior judgments, all for misdemeanor offenses.        When the State offered into
evidence the exhibits of appellant’s fingerprints and the six judgments, appellant’s
counsel asked to take Deputy Hall on voir dire and the following exchange
occurred:

      [Appellant’s counsel]: Can I take this witness on voir dire?
      THE COURT: For what purpose?
      [Appellant’s counsel]: See if she’s qualified on this.
      THE COURT: I think that’s meat for cross-examination. So, no.
      [Appellant’s counsel]: Okay. No objection.
      THE COURT: All right. State’s Exhibits 2, 3, 4, 5, 6, 7, and 8 will be
      admitted.

      Appellant contends on appeal that the trial court’s ruling denied appellant
the right to voir dire Deputy Hall under Texas Rule of Evidence 705(b), which
grants criminal defendants the right to examine an expert about the facts and data
that underlie the expert’s opinion.     See Tex. R. Evid. 705(b).      According to
appellant, this error “was harmful and prejudicial to appellant and undoubtedly
contributed to his sentence in this case.”

      Based on this record, we conclude that appellant failed to preserve error in
two respects. First, by stating “No objection” in response to the trial judge’s denial

                                             3
of appellant’s request to take Deputy Hall on voir dire and statement that the
witness’s qualifications were a matter for cross-examination, appellant effectively
waived any complaint about the trial court’s ruling. See, e.g., Stairhime v. State,
463 S.W.3d 902, 906 (Tex. Crim. App. 2015) (unless record plainly demonstrates
that defendant did not intend, nor did trial court construe, a “no objection”
statement to constitute abandonment of claim of error, then the “no objection”
statement serves as an unequivocal indication that a waiver was both intended and
understood).

      Second, appellant’s trial request does not align with his appellate complaint.
A party may challenge expert testimony on at least three specific grounds. First, a
party may allege that the witness does not qualify as an expert because the witness
lacks the requisite knowledge, skill, experience, training, or education in the
subject matter of the expert’s testimony. See Vela v. State, 209 S.W.3d 128, 131
(Tex. Crim. App. 2006); Tex. R. Evid. 702. Second, a party may allege that the
subject matter of the testimony is inappropriate because it is unreliable. See Vela,
209 S.W.3d at 131, 133-34; Tex. R. Evid. 705(c); Kelly v. State, 824 S.W.2d 568,
573 (Tex. Crim. App. 1992). Third, a party may allege that the testimony will not
assist the fact finder in deciding the case. See Vela, 209 S.W.3d at 131; Tex. R.
Evid. 401, 702. Respectively, these three requirements of expert testimony are
commonly referred to as (1) qualification, (2) reliability, and (3) relevance. See
Vela, 209 S.W.3d at 131. The three requirements raise distinct questions and
issues, and an objection based on one of these requirements does not preserve error
as to another. See, e.g., Turner v. State, 252 S.W.3d 571, 584 n.5 (Tex. App.—
Houston [14th Dist.] 2008, pet. ref’d) (holding that an objection based on the
expert’s qualifications did not preserve reliability issue).



                                           4
      In addition to challenging an expert on the three grounds discussed above, a
party in a criminal case has a procedural right to voir dire an expert under Texas
Rule of Evidence 705(b). Under this rule, a trial court must grant a criminal
defendant’s request to conduct a voir dire examination directed to the underlying
facts or data upon which an expert’s opinion is based, and this examination is
conducted outside the presence of the jury. Tex. R. Evid. 705(b). The purpose of
this examination is twofold:       (1) it allows the defendant to determine the
foundation of the expert’s opinion without the fear of eliciting inadmissible
evidence in the jury’s presence; and (2) it may supply the defendant with
“sufficient ammunition to make a timely objection to the expert’s testimony on the
ground that it lacks a sufficient basis for admissibility.” Shaw v. State, 329 S.W.3d
645, 655 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (internal quotation
omitted); see also Tex. R. Evid. 705(c) (“An expert’s opinion is inadmissible if the
underlying facts or data do not provide a sufficient basis for the opinion.”).

      A party’s contention that the trial court failed to conduct a properly
requested rule 705(b) hearing is a distinct argument from one challenging the
qualifications of an expert. See Jenkins v. State, 912 S.W.2d 793, 814 (Tex. Crim.
App. 1993); see also Shaw, 329 S.W.3d at 655. Thus, a trial court objection to an
expert’s qualifications does not preserve an appellate argument that the court erred
in denying a rule 705(b) hearing. Jenkins, 912 S.W.2d at 814 (holding that no rule
705(b) voir dire issue was preserved when the appellant objected only to the
expert’s qualifications); Shaw, 329 S.W.3d at 655-56.

      This is precisely the situation we now face. In the trial court, appellant
requested only the opportunity to test Deputy Hall’s qualifications as a fingerprint
examiner, which “is not a request for a Rule 705(b) hearing to explore the
‘underlying facts or data’ of the expert’s opinion.” Jenkins, 912 S.W.2d at 814

                                          5
(request to “prove up” expert’s qualifications is not a rule 705(b) request). On
appeal, in contrast, appellant argues that the trial court failed to conduct a rule
705(b) hearing. The record does not indicate that appellant requested a rule 705(b)
hearing or challenged the reliability of the witness’s opinions or methodology. We
hold, based on binding precedent in Jenkins and Shaw, that appellant did not
preserve for our review the issue of whether the trial court erred in denying a
request for a rule 705(b) hearing. See Jenkins, 912 S.W.2d at 814; Shaw, 329
S.W.3d at 655-56.

      Accordingly, and without reaching the merits of appellant’s arguments, we
overrule his sole issue.

                                   Conclusion

      We affirm the trial court’s judgment.




                                      /s/       Kevin Jewell
                                                Justice


Panel consists of Justices Jewell, Bourliot, and Zimmerer.
Do Not Publish — Tex. R. App. P. 47.2(b).




                                            6
