Editor's Comment: What’s Happening - By Sarah Roland

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Wednesday, February 27th, 2019

Among the many significant decisions issued since our last publication, Michael Mowla highlights Rhomer in this SDR. No. PD-0448-17 (Tex. Crim. App. 2019). In Rhomer, a felony murder case—causing the death of another in an accident while committing felony DWI—the Court of Criminal Appeals decided that an accident reconstruction expert can testify about a specific type of accident reconstruction in which he has no formal training, and that the testimony of the accident reconstruction expert here should be governed by the Nenno test. 970 S.W.2d 549, 560 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720 (Tex. Crim. App. 1999). The opinion includes a good discussion of the three requirements that must be met before expert testimony can be admitted: (1) qualification, (2) reliability, and (3) relevance. See Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). Understanding these conditions and the differences between them are important when dealing with experts.

Important to its ultimate analysis about whether the officer could testify as an expert here, the CCA noted that

[a]ccident reconstruction may sometimes be complex, but the reconstruction opinion offered by Doyle was not. He did not calculate pre-impact vehicle speeds; he examined physical evidence in the context of the accident scene to form an opinion about the area of impact and how the collision occurred. His testimony was more akin to latent print comparison than to DNA profiling because it was relatively simple. p.9 (internal citation omitted).

The CCA also reminds us that

the trial court is supposed to act as a gatekeeper against expert testimony that would not help the trier of fact. This is not the same thing as requiring every expert to be the best possible witness. p.10 [emphasis added].

While the print version of the SDR is great, I would encourage everyone to read the online version as it necessarily contains a great deal more information about each case. Rhomer is one such case. It is worth reading and understanding since we all deal with experts. Also, be sure to thank Michael Mowla for the tremendous work he does with SDR.

Also, of great import, the Court of Criminal Appeals heard oral argument on Watkins v. State, No. PD-1015-18, at the end of February. Watkins is a 39.14 case. The case centers on the meaning of “material” in subsection (a). TCDLA filed an amicus brief in support of the Petitioner, Ralph Watkins, who is represented on appeal by TCDLA member Jason Neihaus. If you have some time, check out those briefs; they provide an excellent history of 39.14. Also, be sure to add this one to your case mail so you will be updated when the opinion is issued, and be sure to thank the members of our Amicus Curiae Committee: Allison Clayton, Lane Haygood, Rick Wardroup, Kerri Anderson Donica, Butch Bradt, Clint Broden, Kristin Brown, Leigh Davis, Douglas Evans, Niles Illich, Angela Moore, Stanley Schneider, David Schulman, Hilary Sheard, Gary Taylor, and Kyle Therrian.

This case provides a few good practice reminders for us. Remember to file a 39.14 request in each case tracking the statutory language and one that is tailored to the specific facts of your case. If you don’t get the request filed, then make certain you have proof that your request was properly sent and received. Make the request as soon as possible. Specifically ask for notice of extraneous offenses/acts and notice of the State’s expert. Specifically ask for copies of prior judgments and penitentiary packets, if applicable. If you think you should ask for it, you should ask for it.

It happens with great frequency that we inevitability learn through the “initial” discovery provided that there is other information out there in the State’s possession that hasn’t been provided; perhaps it’s a witness statement, an additional video, or a supplemental lab report. Whatever it may be, when we learn there may be something else, we have a choice: Do we make another specific request for it or do we lie behind the log and wait? Every case is different, of course, but the best course of action generally is to make a more specific request. Remember, nothing prevents us from filing supplemental requests under Article 39.14 as the case progresses. Then, when the information is still not provided later, the remedy that we suggest to the court—wholesale exclusion and/or a continuance—is more palatable (presently there is no enforcement mechanism contained in Article 39.14).

Also, it is worth remembering that Article 39.14 creates a statutory right to discovery upon timely request. Subsection (h) merely codifies the State’s constitutional obligation under the Due Process Clause to provide certain discovery. As such, it is worthwhile to also file—and get a ruling on—a motion for Brady material in every case. There is no good reason not to do so.

On a separate note and as always, please be sure to let me know if you have any constructive criticism so that we can continue to strive to improve the Voice. Enjoy this issue!