                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-14-00199-CR

ALCIDES LARRINAGA A.K.A.                                             APPELLANT
ALCIDES LARRINGA

                                        V.

THE STATE OF TEXAS                                                         STATE

                                     ----------

          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1328386D

                                     ----------

               CONCURRING MEMORANDUM OPINION 1

                                     ----------

      Appellant argues that the trial court erred by allowing a police detective to

opine whether this was a case of self-defense over his objection that the

detective had not been established as an expert. The majority concludes that the

testimony was admissible under rule of evidence 701 and that, regardless of its

admissibility, the testimony was harmless in light of the testimony from the other

witnesses about Appellant and Joel’s disputes. While I agree that the testimony

      1
       See Tex. R. App. P. 47.4.
was ultimately harmless, I disagree with the majority’s application of rule 701

because, although rule 701 provides a relaxed standard for the admissibility of

opinion testimony, it does not permit admission of an expert opinion in lay

opinion’s clothing.

      To meet the lay opinion admissibility standard, the witness must have

personal knowledge of the facts underlying the opinion, and the opinion must be

rationally based on the witness’s perception of those facts. See Solomon v.

State, 49 S.W.3d 356, 360–61, 364 (Tex. Crim. App. 2001) (holding that

accomplice was qualified to opine that defendant, who had goaded and

encouraged others to rob and kill stranded motorist, was the person among the

group “responsible” for the robbery); Thomas v. State, 916 S.W.2d 578, 580–81

(Tex. App.—San Antonio 1996, no pet.) (holding that police officer was permitted

to provide lay-witness testimony as to how “crack” houses are usually run);

Reece v. State, 878 S.W.2d 320, 325 (Tex. App.—Houston [1st Dist.] 1994, no

pet.) (holding that police officer’s testimony that defendant’s actions were

consistent with someone selling cocaine was admissible under rule 701);

Williams v. State, 826 S.W.2d 783, 785 (Tex. App.—Houston [14th Dist.] 1992,

pet. ref’d) (stating that police officer was permitted to testify as a lay witness that

he had interpreted the defendant’s actions to be a drug transaction); Austin v.

State, 794 S.W.2d 408, 409–11 (Tex. App.—Austin 1990, pet. ref’d) (holding that

police officer could provide his opinion that “Swedish deep muscle rub” was a

code for prostitution).


                                          2
      Here, however, the detective was asked to look at the injuries from an

autopsy report and to opine as to whether “this [was] a case of self-defense.”

The record does not demonstrate that he had personal knowledge of the

underlying facts.   Further, while he had experience in investigating homicide

cases, there was no evidence in the record to indicate that he had experience in

interpreting autopsy results such that he would be qualified to testify as to

whether the autopsy results indicated that the appellant in this case had shot a

man in self-defense. 2    Therefore, I would hold that the trial court abused its

discretion by admitting the testimony over objection. I nonetheless concur that,

considering the evidence in the record as a whole, the error was harmless.


                                                   /s/ Bonnie Sudderth

                                                   BONNIE SUDDERTH
                                                   JUSTICE

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 6, 2015


      2
        Our opinion in James v. State may appear to hold to the contrary, but in
James, the officer was permitted to opine that a claim of self-defense made no
sense in the context of personal observation of the physical condition of the
defendant and the complainant the second time the officer responded to the
scene of one of their domestic disturbances. 335 S.W.3d 719, 725–26 (Tex.
App.—Fort Worth 2011, no pet.) (noting that the officer testified that the claim of
self-defense was not consistent with the fact that the boyfriend had no new
injuries on him while the girlfriend had a black eye, a cut nose, blood all over her
face, bruises on her legs; the officer added that “he did a heck of a job defending
himself, if that was the case”).


                                         3
