Affirm and Opinion Filed November 8, 2016 

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In The 

## Court of Appeals Fifth District of Texas at Dallas
No. 05-15-00859-CR DERIC EUGENE MADISON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 291st Judicial District Court Dallas County, Texas Trial Court Cause No. F-1476000-U 

### MEMORANDUM OPINION Before Chief Justice Wright, Justice Fillmore, and Justice Brown Opinion by Chief Justice Wright Deric Eugene Madison was charged with the of fense of capital murder. A jury found him guilty of the lesser-included offense of murder and assessed punishment at life imprisonment and a fine of $10,000. In one issue, appellant compla ins that the trial court erred by overruling his objection to the admission of im proper opinion testimony. The bac kground of the case and the evidence adduced at trial are well kn own to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issu e this memorandum opinion. T EX
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. P. 47.2(a), 47.4. We affirm the trial court’s judgment. BACKGROUND Joshua Tubbleville spent the evening of Thursday, May 29, 2014, on a double date with friends, and later at a club called Sisu. Upon ar riving home a little after 1:00 a.m., Tubbleville–2– encountered two people in front of his townhouse. Tracy Duck worth, a homeless man, was lying in the grass across the street, getting wet because the sprinklers were running. Appellant, who was in the neighborhood trying to se ll drugs, approached Duckworth to see if he needed help. Although Tubbleville did not know either man, he helped Duckworth up and invited Duckworth and appellant into his house. The men played dominos while drinking beer and tequila. Tubbleville eventually told Duckworth to leave because Duckworth was getting mud on Tubbleville’s furniture. Tubbleville and appellant continued to drink and play dominos. Appellant testified that at some point, Tubbleville and a ppellant drove to a gas station to buy chewing tobacco and gum. According to appellant, when th ey returned to Tubbleville’s townhouse, Tubbleville could not find his cell phone and accused appellant of stea ling it. Appellant denied taking the phone, turned out his pockets, and let Tubbleville pat hi m down. Appellant tes tified that Tubbleville later gave him a tour of his home and s howed him a shotgun and a silver handgun. Around 5:30 a.m., Tubbleville dr ove appellant to a Taco Cabana restaurant to get something to eat and paid for th eir food using his Wells Fargo cr edit card. Appellant testified that as Tubbleville drove away from the restaurant, he again accused appellant of stealing his phone and when appellant denied the theft, Tubbleville got angry and pulled out a gun. According to appellant, the men struggled over the gun and Tubbleville began to drive even faster. Tubbleville drove his car at an accelerated speed over a curb and into a tree. Appellant testified that after the car crashed and the airbag s deployed, he was able to gain control of the gun. Appellant admitted shooting T ubbleville but stated that he feared for his life and shot Tubbleville in self-defense. Appe llant also admitted that after s hooting Tubbleville, he got out of Tubbleville’s car and ran because he was “freaked out” and scared.–3– Appellant was charged with capital murder by shooting the deceased with a firearm, a deadly weapon, while in the course of commi tting and attempting to commit the offense of robbery of the deceased. The jury convicted appe llant of the lesser-included offense of murder and assessed a punishment of life in prison and a $10,000 fine. This appeal followed. STANDARD OF REVIEW AND APPLICABLE LAW Appellant raises one issue on appeal, arguing the trial court erred by overruling his objection to the admission of improper speculati ve opinion testimony. Sp ecifically, appellant complains about Detective Scott Sayer’s opinion testimony that if a person kills another person in self-defense he usually remains at the scene to explain himself. Standard Of Review We review a trial court’s evidentiary rulings for an abuse of discretion. See Johnson v.
State , 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); Winegarner v. State , 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). A trial court is in th e best position to determ ine whether evidence should be admitted or excluded. Winegarner , 235 S.W.3d at 790. Consequently, we will not disturb the ruling “as long as the trial court’ s decision was within the zone of reasonable disagreement and was correct under any theo ry of law applicable to the case.” Id

. Applicable Law Both lay and expert witne sses can offer opinion testimony. See T EX
. R. E VID . 701, 702; see also Osbourn v. State , 92 S.W.3d 531, 535 (Tex. Crim. A pp. 2002). Rule 701 covers the testimony of a “traditional” witnes s—one who personally witnessed or participated in the events about which he is testifying—while Rule 702 pe rtains to the testimony of a witness who was brought in to testify as an expert. Osbourn , 92 S.W.3d at 535. If a witne ss is not testifying as an expert, opinion testimony must be (a) rationally based on the witness’s perception and (b) helpful to clearly understand the witn ess’s testimony or to determine a fact in issue. T EX
. R. E VID . 701;–4– Ex parte Nailor , 149 S.W.3d 125, 134 (Tex. Crim. App. 2004) . “An opinion is not objectionable just because it embraces an ultimate issue.” T EX
. R. E VID . 704; see Ex parte Nailor , 149 S.W.3d at 134–35 (police officer, as lay witness, could offer an opinion that de fendant had not been attacked by the victim, even though the tes timony embraced an ultimate issue). DISCUSSION Scott Sayer, a homicide detective with the Dallas Police Department, was the lead detective on the investigation in to Tubbleville’s death. Detec tive Sayer arrived at the scene shortly after the incident was reported, directed every aspect of the investigation, and once appellant’s fingerprints were identified, intervie wed appellant three time s. During the State’s direct examination of Detective Sayer, the prosecutor asked what he thought about various statements appellant made during the police interview in which appellant admitted to shooting Tubbleville. The followi ng exchange took place: STATE: Did it make sense to you that if someone were to kill somebody in self-defense they would throw the gun out of their window piece by piece? DETECTIVE: No, it did not. STATE: Why does that not make sense to you? DETECTIVE: If somebody who kills somebody in self-defense, which I’ve worked before, they’re us ually standing there with the gun and they explain themselves. Throwing a gun out piece by piece – DEFENSE: Judge, I’m going to object as to what happens in other cases or usually happens or what he thinks should have happened in this case. STATE: Can I respond? COURT: Response. STATE: Through his training and e xperience and nine years as a homicide detective.–5– COURT: Overruled. DEFENSE: Judge, I think the objection is he’s just speculating as to what somebody in this situation might have done. STATE: Your Honor, I’m asking if it makes sense to him as a homicide detective. COURT: Overruled. STATE: You can respond. DETECTIVE: No, it doesn’t make sense. STATE: Why? DETECTIVE: Somebody who destroys evid ence is trying to hide what they’ve done, not explain what they’ve done. Appellant argues the trial court committed harmful error by overruling his objection to Detective Sayer’s opinion testimony that when a pe rson kills another in self-defense, he usually remains at the scene to explain what happened. Appellant complains that the State attempted to use his flight against him to disp rove he acted in self-defense. He asserts that Sayer’s testimony was speculative, unsupported by evidence of its accu racy or validity, and presented evidence to the jury that people who kill in self-defense always remain at the scene of the incident to explain why they had killed another. Rule 701 permits a lay witness to offer opini on testimony if the opini on is (a) rationally based on the perception of the witness and (b) helpful to a clear unders tanding of the witness’s testimony or the determination of a fact in issue. T EX
. R. E VID . 701; see Ex parte Nailor , 149 S.W.3d at 134. The initial requiremen t is composed of two parts. See Osbourn , 92 S.W.3d at 538; Fairow v. State , 943 S.W.2d 895, 898 (Tex. Crim. App. 1997). First, Detective Sayer had to establish personal knowledge of the events from which hi s opinion was drawn; second, his opinion had to be rationally based on that knowledge. Osbourn , 92 S.W.3d at 538; Fairow , 943 S.W.2d at 898. The personal knowledge of the ev ents which form the basis of the witness’s–6– opinion may come directly from the witn ess’s senses or from experience. Osbourn , 92 S.W.3d at 535; Fairow , 943 S.W.2d at 898. An opinion is rationa lly based on perception if it is an opinion that a reasonable person could draw unde r the circumstances. Fairow , 943 S.W.2d at 900. The second requirement of Rule 701 is that th e opinion be helpful to the trier of fact to either understand the witness’s testimony or determine a fa ct in issue. Solomon v. State , 49 S.W.3d 356, 364 (Tex. Crim. App. 2001). In this case, the State established that Dete ctive Sayer had been a police officer for over twenty years, a detective for ten years, and assi gned as a homicide detective for nine years. Sayer testified that he was the lead investigator in the Tubblev ille homicide investigation and had interviewed appellant several ti mes. Thus, the State establis hed that Sayer’s opinion was rationally based on his training and experience as a homicide detective as well as his perceptions during the investigation into Tubbleville’s death. The record reflects that Sayer testified without objection that appellant’s statement that he shot Tubbleville in self-defense and then threw the disassembled gun out the window did not make sense to him. Sayer then explained that based on his experience in working self-defense cases, when someone kills another person in self-defense, he usually stays at the scene with the gun to explain himself. Appellant does not appear to base his argum ent on evidence rules 701 or 702. Instead, he cites several cases in support of his statement that no witness is competent to voice an opinion as to guilt or innocence thr ough testimony, and another case stating it is improper for a witness to opine on the truthfulness of another witness’s testimony. But the question to which defense counsel objected did not ask Detective Sayer to opine on the truthfulness of another witness’s testimony, to opine on the truthfulne ss of appellant’s assertion of self-defense, to opine whether appellant was guilty, or to even opine on appell ant’s credibility, thus possibly encroaching upon the jury’s province to make credibility determin ations. Instead, the question inquired about the–7– logical force of appellant throwing the gun out of his car window piece by piece in light of what Detective Sayer had personally observed. See James v. State , 335 S.W.3d 719, 726 (Tex. App.—Fort Worth 2011, no pet.) (question whether defendant’s self-defense assertion made sense in light of police officer’s observati ons admissible under rule 701). Detective Sayer responsively opined that appellant’s actions did no t make sense to him because in his experience, if someone kills another person in self-defense, he is usuall y standing there with the gun to explain himself. The trial co urt could have reasonably conc luded that Detective Sayer’s testimony was admissible under rule 701 because it was rationally based on events that he perceived, was relevant to whethe r appellant acted in self-defense , and did not expressly question appellant’s or another witness’ s truthfulness or credibility. See id

. Once the proponent of the opinion establishes personal knowledge of the facts underlying the opinion, he has satisfied the perception requirement of Rule 701. The trial court must then determine whether the opinion will be helpful to the trier of fact to either understand the witness’s testimony or dete rmine a fact in issue. See Solomon , 49 S.W.3d at 365. There is no bright line test to be applied to determine whet her an opinion is helpful. “General evidentiary considerations of relevance and balancing will invariably assist the trial judge in making his determination.” Fairow , 943 S.W.2d at 900. In this case, Detective Sayer’s opinion was helpful to the jury’s consideration of appellant’s testimony that after s hooting Tubbleville, he got out of the car and ran because he was scared. And Sayer’s opinion was helpful to the jury in determining whether appellant shot Tubbleville in self-defense. See T EX
. R. E VID . 701; see also
James , 335 S.W.3d at 726. Even if Detective Sayer’s testimony was admitted in error, the error is harmless. Texas Rule of Appellate Procedure 44.2( b) instructs that we must di sregard a nonconstitutional error “that does not affect substantial rights.” T EX
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. P. 44.2(b). Substant ial rights are not–8– affected by the erroneous admission of evidence if this Court, “after examining the record as a whole, has fair assurance that th e error did not influence the jury, or had but a slight effect.” S ee Solomon , 49 S.W.3d at 365. We have reviewed the record as a whole. Even in the absence of Detective Sayer’s complained-of testimony, the jury could have reas onably concluded that appellant’s assertion of self-defense made no sense based on other evid ence admitted without objection. For example, the uncontested evidence established that appella nt shot Tubbleville tw ice after Tubbleville crashed his car into the tree. Although appellant testified at trial that he and Tubbleville struggled over the gun, appellant also testified that he had so le possession of the gun when he shot Tubbleville and then ran away. Appellant te stified that he took th e gun apart and threw the pieces out of his car window as he fled the scene. He also testified th at he threw away the clothes he was wearing that even ing and asked his girlfriend to lie if asked where appellant was on the night in question. Finally, appellant conceded that he repeatedly lied to the police during each of the three police interviews. Consid ering the testimony from the other witnesses regarding the events of the night in questi on, we conclude Detectiv e Sayer’s opinion testimony did not have a substantia l or injurious effect on the jury’s verdict and di d not affect appellant’s substantial rights. T EX
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. P. 44.2(b). We overrule ap pellant’s sole issue. CONCLUSION Having overruled appellant’s sole issue, we affirm the judgment of the trial court.

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. P. 47 150859F.U05 /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE–9– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DERIC EUGENE MADISON, Appellant
No. 05-15-00859-CR V. THE STATE OF TEXAS, Appellee On Appeal from the 291st Judicial District Court, Dallas County, Texas Trial Court Cause No. F-1476000-U. Opinion delivered by Chief Justice Wright. Justices Fillmore and Brown participating. Based on the Court’s opinion of this da te, the judgment of the trial court is AFFIRMED

. Judgment entered November 8, 2016.