XVIII. Expert Testimony

A. STATE EXPERT OPINION TESTIMONY — WHAT B.A.C = LOSS OF NORMAL = PROPER?

Redden v. State, No. 11-13-00214-CR, 2015 WL 4720794 (Tex.App.-Eastland 2015)

The State asked its Technical Supervisor expert at what level she believed a person had lost the normal use of their mental and physical faculties. Over objection she was allowed to answer that by “about .04 or .05” the majority of people are significantly impaired. Finding that the only thing preserved was the objection that an objectionable question was answered. The Court disagreed and cited Long and Adams cases for proposition that the question was proper and relevant.

Long v. State, 649 S.W.2d 363 (Tex.App.-Fort Worth 1983, pet. ref’d).

Adams v. State, 808 S.W.2d 250 (Tex.App.-Houston [1^st Dist.] 1991, no pet.).

Expert testimony that .08 = “loss of normal use of mental and physical faculties” is admissible, even though intoxication is defined as .10 or greater.

B. IMPEACHMENT — PRIOR TESTIMONY (JOHN CASTLE)

Sparks v. State, 943 S.W.2d 513 (Tex.App.-Fort Worth 1997, pet. ref’d).

It was proper for State to impeach defense expert John Castle with circumstances of his prior testimony in a Collin County trial, State v. Lucido. Namely, the prosecutors pointed out that an in­-court experiment with the lntoxilyzer 5000 demonstrated that contrary to his expert opinion, certain foods, chewing gum, and medications did not affect the test results.

C. EXPERT TESTIMONY ABOUT DWI VIDEO PROPERLY EXCLUDED

Platten v. State, No. 12-03-00038-CR, 2004 WL 100399 (Tex.App.-Tyler 2004, pet. ref’d) (not designated for publication).

Defense attempted to call Dr. Gary Wimbish, a toxicologist, as an expert witness to testify that he believed defendant was not intoxicated based upon the defendant’s performance on the DWI video. There were no FSTs on the tape. Though Dr. Wimbish testified in a Daubert hearing that his opinions drawn from viewing the tapes were based on independently recognized principles that had been studied, applied and peer reviewed, he admitted that none of those applied to situations where there were no FSTs. He further could not cite any scientific theory supporting the conclusion that intoxication can be determined solely from the viewing of a videotape and he could not refer the Court to any literature on that proposition. The Appellate Court found the exclusion of this testimony was proper and further found that Wimbish’s testimony was excludable as it would not be outside the knowledge and experience of the average juror.

D. DEFENSE EXPERT OPENED DOOR TO DEFENDANT’S ALCOHOLISM

Manor v. State, No. 11-05-00261-CR, 2006 WL 2692873 (Tex.App.-Eastland, 2006).

In response to the defendant’s putting forth the defense that what appeared to be signs of intoxication was actually a symptom of her suffering from depression and having a panic attack, the State was allowed to rebut this theory by putting on evidence that she also suffered from alcoholism. In response to the attack that there was no 404(b) notice, the Court held that because the evidence of alcoholism of which Manor complains was introduced in cross-examination and not in the State’s case-in-chief, the State was not required to give advance notice to Manor of its intent to introduce such evidence.

E. RESULTS OF DEFENSE EXPERT’S EXPERIMENT PROPERLY EXCLUDED

Noyes v. State, No. 14-05-01169-CR, 2007 WL 470452 (Tex.App.-Houston [14th Dist.] 2007, no pet.) (not designated for publication).

Defense expert was precluded from testifying about an out of court drinking experiment conducted on defendant. Defendant failed to affirmatively show the proposed experiment was substantially similar to the incident and, thus, the trial court did not abuse its discretion in excluding the results.

F. IMPEACHING EXPERT WITH BRADY NOTICE

Baires v. State, No. 02-16-00022-CR, 2016 WL 5845927 (Tex. App. – Fort Worth 2016)

This was a felony DWI case where the blood was tested by chemist at IFL and results analyzed by Elizabeth Feller, who at the time was employed by IFL and subsequently fired. A Brady notice was issued by the DA’s office regarding Feller and she was not called to testify. During cross of IFL chemist (who re-analyzed the sample) the defense sought to introduce the Brady notice on Feller. The State objection that it was irrelevant and hearsay was sustained. Defense was allowed to cross on issue of chain of custody and the chemist testified he retested sample because Feller and chemist who did original testing left IFL. The chemist testified to not knowing the circumstances of Feller leaving IFL. The defense was allowed to cross-examine chemist about the reinterpretation of Fellers test results but not allowed to go into Feller’s alleged misconduct. Court holds this was not error.

G. MUST HAVE EXPERT TO TESTIFY ABOUT DRUG IDENTIFICATION

Amberson v. State, No. 13-16-00306, 2018 Tex. App. LEXIS 3123, (Tex.App. – Edinburg 2018)

This was a DWI arrest that based on a search incident to arrest the officer located several pills in the defendant’s purse. From there the officer used Drugs.com and DrugBible to identify the type of pills. The court held that the information obtained from these sources was hearsay and not proper lay witness testimony. The visual observation of the pills, comparison with Drugs.com and DrugBible, and the conclusion as to the type of drug is in the province of an expert.

Note: This is essentially the same process our experts go through to identify a drug.