## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 21

- 00201

- CR No. 02

- 21

- 00202

- CR

___________________________

On Appeal from County Criminal Court No. 5 Tarrant County, Texas Trial Co urt No s
. 1609086, 1609087

Before Sudderth, C.J.; Ba ssel and Walker, JJ. M emorandum Opinion by Justice Bassel



### D OMINIQUE 

### A. S MITH 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDU M O PIN IO N

I. Introduction A jury convicted A pp ellant Domin ique A. Smith of the offenses of assault and

unlawful re straint for acts com mitted against Complainant , his fiancé e , with the t w o
offense s alleged in separate cause numbers

. See gene rally Tex . Penal Code A nn. § § 2 0.02 (c) , 22.01(a)(1) . The trial court also made an affirmative finding of family

violence in both ca u ses
. In accorda nce with the p arties ’ ag reement as to puni s hment ,

t he tr ial court asse s sed Appellant ’ s punishment at 275 days in the Tarrant County Jail

for each offense and ordered the sentence s to run concurrentl y
. T he trial court suspended the sentence s and place d App ella nt on c ommunity supervision for twent y

four months. Appellant filed notices of appeal in both cau se numb ers.

I n a sing le issue, Appella nt com plain s t ha t the trial court erred by overrul ing objection s to q uestion s directed to a detective who invest igat ed the off en ses
. Appell ant argues that the detective improperly speculat ed by sta ting that bruises shown in a ph o to of Complainant’s arm look ed like they we re made by someone ’ s fingers. The trial court did n ot abuse its discre tion by overruling the objec tion s . Th e testimony t h a t the detective act ually offered was that part of his investigation was to
determine whet her the photo bore out Compla inant’s rendit ion of what had occurred , and in his opinion, the ph oto was consistent with that rendition

. T he de tective ’ s opinion was ad missible as a lay opinion under Texas Rule of Evidence 701.

Accordin gly, we affirm the trial court ’ s judgments.3 II. Factual B ackgro und

C ompla inant and Appellant had a long

- te rm relat i onship and had two children together. The epis o de that formed the basis of t he charges against Appellant began

when Complainant so ught to end t he i r relationship and an argument ensued ov er th e

p hone about various conflicts i n the ir rela tionship

. The conflic t escalated when Appellant announced that he was c oming to Complainant’s apartment , and s h e asked

him not to do so. When App ellant arrived , he was angered when Complainant w ould

not let him in side her apartme n t.

Com plainant recounted that on the mor ning after the argument while she was in the pa rki n g lot of the apartment complex prepar ing to take her children to school , Appellant materialized and dr agged Complain ant upstairs to her apartment. Complainant testified t hat once in the apartment, Appellant physical ly attacked h e r. Complainant chroni cle d how Appe llan t had cut her finger when he had grabbed her key s from her hand , had picke d her up by her upper arms and had th r o w n her on to a
bed , and h ad eventually chok ed her. While he was choki ng her, Appell ant allegedly

had sex with Complainant

.
Eve ntu ally , Appellant allowed Comp lainant to leav e the apartment and go to

work. Co mplainant acknowledged that sh e had spent time with Appellant i n the days

after the episode but cl aimed that she did so because of fear of the consequence s to App ellant if s he re vealed what had ha pp ened and the fea r of having t o ac knowledge

to h erself the type of person whom she h ad gotten into a relationship with. But when4 Appellant left t he apartment t o retrieve additional clothes , Complain an t decided to g o

to the police sta tio n to file a police report and to th e courthouse to o btai n an

emergency protective order.

While a t the police station , an officer took photos of Complain a n t t hat depict ed her injuries, including picture s o f her upper arm wh ere she claimed that App ellant had g rabbed her. On cross

- examination , Appellant’s counsel challenged

wh ether the pict ures actually showed t he injuries that Comp lainant claime d that she

had sustained , including whether the photos of her upper arm showed bruising

. Wit nesses who saw C omp lai n ant w hen s he arrived at work on the day she claimed

that she was assaulted testified that the y had seen the bruise s on Complaina nt’s upper

arms as depicted in the pictures

. A ph ot o of Complain an t’s upper arms w as also re fe re nced during the

test imony of a detective who had investigated Complain an t’s report of abuse. The

officer in question testified that he had be en a detective in the domestic crimes unit of

the Arlin gton Police Department for three of the fourteen years that he ha d been employe d by the de pa rtment

. Combin in g his trai ning in the police academy with that

he received w hile i n the domestic crimes unit, the detective had more than eighty

hours of train ing involving domestic crimes.

D uring the detect iv e ’ s tenure in th e do mestic crimes unit , h e h ad invest igated

hu ndreds of cases. He explained that the inv est igative proces s require s a detective to

rev iew a complainant ’ s statem ent that was taken b y an investigating officer and to5 review any phot os taken b y the office r and t o compare that i nfor ma tio n with w hat he

is told when he interv iews a complainant

. T he dete ct ive described th is investigative

process as follows : So when I talk to the victim, of course, what I want to keep in mind is that, y ou k now, how does t he statement tha t I ’ m given by th e vi ctim when I ’ m talking to [her] compare to the origin al statement t hat [ she ] g [a] ve the officers. How [do her] statements

. . . correlat [ e] to the pictures that were taken [versus] what [she] said had happened.

The det ective followed h is us ual investig ati ve process while investi gating

Co mplain an t ’s police rep ort , and as par t of th e process , he reviewed the p hotos tha t

were taken when she made th at report. The detective was sho wn on e of the photos , which d epicted C omplain an t wit h her le ft ar m raised

. T he dete ctive ’ s testim ony regarding the conc lusion s that he had drawn from the pic tur e prompted objection s
that t he detective was speculating

. Specifi cally , the following occurred during the

dete ctive ’ s dire ct testim ony : Q. And I want to direct your atten tio n sp ecifically to State ’ s Exhibit No. 7. Tell us a little bit about this photo.

A. Okay. When I look at this p hoto, what I see is [Complain ant ’ s] left arm where she has it raised.
Q. Okay

. A. And there ’ s three brui ses, three sm all bruises that res embl e tha t

-- [ Defense counsel] : Your Honor, excuse me, Your Honor, I ’ m g oing to objec t to him speculating to what he thinks those bruises

are.6 THE COURT: Overruled.
Q. [ Prosecutor] : Go ahe ad, Detective.

A. There are three dark s pots which re s emble bruises and what looks like, in my experience, are quite possibly from fi ngers because t hey are small and round like from fing e rtips. [Def e nse counsel] : Again, Your Honor, I object t o the

co mment, the last comment about wh at he thinks those th ree marks are.

THE COURT: Overruled.
Q. [Prosecutor] : Detective, would it be fair to say as you look at those photos, you were using your pre v io us three years of experience and the hundred s of cas es that you [had] looked at to see if thos e photos

m atc h ed up with wha t you were hearing from [Complainant] ?

A. Yes, sir.
Q. Ha d you seen photos like this in th e course of your [ other ] investigation [s] ?

A. I have.
Q

. Not unusual or uncommon?

A. No.

III. Analysis

A. We set for th the s t andar d of revi ew .

“ We review a trial court ’ s decision to admit evidence for a n abuse of

discretion. ” Wright v. State , 618 S.W .3d 887, 890 (Tex. App.

— For t Worth 2021, no pet.) (citing Colone v. St ate , 573 S.W.3d 249, 263

– 64 (Tex. Crim. App. 2019) )

. “ Under

this standard , the trial cour t ’ s decision to admit evidence will be uphe ld a s long as it7 [is] within the zone of reasonable disagreement. ” Id . (cit i ng Beham v. State , 559 S.W.3d 474, 478 (Tex. Cri m. App. 2 018) ). I f any theory of law supports the trial c ourt ’ s
dec isio n, we will not dis turb that dec ision

. Id . (citing Johnson v. S tate , 490 S.W.3d 895, 908 (Tex. Crim. App. 2016) )

.
B. The trial court di d no t abuse its discretion by permitting the det ect iv e to give a lay opin ion that the bruises on Compl ainan t’s

a r m were c onsistent with her ren dition of the eve nts as a n abuse victim. Appellant a rgues tha t the trial court erre d by permitting the de tectiv e “ t o testify that the three dark spots/ bruises dep icted in State ’ s Exhibit No. 7 ‘ are quite possibly

from finger s becaus e they are small and roun d like from f ingertips. ’ ” Appellant

contends that b y permitting the testimony, the trial court a llo w ed the d etect ive to
invade the province of the jury and t o draw inferenc es on the jury’s behalf that it was capable o f dra w

ing on its own

. But App ellant ’ s argument m ischaracterizes the

detective ’ s opin ion. The detective was not merely te l lin g the jury that the picture

showed bruises ; ins tead, part of his inv esti gation was to determine whether the photos

bo re ou t Complainant ’ s rendition of the fac ts , and in his opinio n , they did so. Appellant ’ s argument ignores a host of opinion s upholdin g tr ial court s ’ rulin gs permitting inves tigating of ficers to offer tes timony similar to that offered b y th e
de tective as a lay opinion unde r T e xas Rule of Evidence 701.

Rule 701 prov ides that “ [i] f a wi tness is not testifyin g as an expert, testimony in

th e fo rm of an opinion is limited to one that is [] (a ) rationally based on the witness ’ s8 perception [] and (b) hel pful to cl early understanding the witness ’ s testimony or to determining a fact in issue. ” Tex. R. Evid . 701. T he Cou rt of Criminal Appeals has

s et the following parameters for an opi nion to fall within Rule 701: Perceptions refer to a witness ’ s interp ret ation o f in forma tion acquired through his or her own senses or e xperience s at the time of the e vent. Thus, t he witness ’ s testimony can include o p ini ons, beliefs, or inferences as long as they are drawn from his or her own experiences or observations. An opinion i s rat ionally based o n perception if it is one that a reas onable person could draw under the circumsta nces. There is no bright [

- ] line ru l e i ndicating when an opinion is helpful, but we ha ve said that general evidentiary concerns, such as releva nce a nd

. . . Rul e 4 03 ’ s balanci n g test, aid the determination.

Wade v. Stat e , No. PD

- 0157

- 20, 2022 WL 1021056, at * 8 (Tex. Crim. App. Apr. 6,

202 2 ) ( footnotes omitted). Wade held that a defendant could offer a lay opinion that

his injury to a victim di d not const itu te seri ous pe rmane n t disfigurement because that

“ opinion was ra t ionally based on his observatio ns of the inj ury, both as it was inflic t ed and as the healed injury appeared at the time o f trial. ” Id . at * 9.
Here, t he detective ’ s testimony wa s rationally b ase d o n what h e per ceived, i. e.,
the bru ises depicted in the pho to of C omplainant’s arm and whether t he presence o f

those marks in his e xpe rience “ matched up ” with a domestic

- abuse comp lain an t ’ s
rendition of events. A host of courts of appea ls have u pheld trial court ruling s allowing p olice officers to testi f y , based on their experience, regarding what had m ade physical marks on a body o r wh at those mar ks in dic ated. See Davis v. State , 313 S.W.3d 317, 349 (Tex . Crim. App. 2010) ( holding that trial court d id not abuse its di scretion by permitting officer to te st ify tha t stab wounds o n dead cat appeared to b e inflicted9 by the same type of k n if e b l ade that was used to murder victim ); Sowel l v. State ,
No. 13

- 20

- 00250

- CR , 2021 WL 3 196520 , at * 3 (T ex. App.

— Corpu s C hristi

– Edinburg Jul y 29, 20 2 1 , no pet.) (mem. op., not desig nated for publication) ( “ [Detective ’ s ]

extensive histo ry in dealing with str angulation cases allowed him to identify marks on [ victim’s] neck , that she had vomited, and that s he [had] u rinated, as in dicators th at strangulat ion had occurred. ” ); Tobar v. State , No s. 14

- 15

- 00011

- CR, 14

- 15

- 00012

- CR,
2016 WL 2975568, at *6

– 7 (Tex. A pp.

— Houst on [14th Dist.] May 19, 2016, no pet.) (mem. o p., not designated for publication) ( concluding that poli ce office r ’ s

t estimony

— that “[ b]usted lips typically occur afte r an impact, n ot during a wrestling

match”

— was admissible as lay

- opi nion testimo n y under R ule 701 because the

officer ’ s tes timony was ra tionally based on his firsthand perceptio ns of the victim ’ s injuri es) ; Hawkins v. St ate , No. 06

- 08

- 0 0087

- CR, 2009 WL 302 55, at *4 (Tex . App.

— Texarkana Jan. 7, 2009, pet. ref ’ d) (mem. op., not designat e d for pub lication) ( holding

that trial court did not ab use its discretion by permitting officer to testify that wounds

on vict im were defen sive in nature ); Hollis v. State , 219 S.W.3d 446 , 4 67

– 68 (Tex. App.

— Austin 2007 , no pet.) ( holding that peace office r ’ s t estim ony

— that defendant

had blisters and discolorat ions on his hands indicating methamp h et amine exposure

—

was admissi ble un der R u le 701 ) ; Jackso n v. State , No. 08

- 01

- 00090

- CR, 2002 WL

18 74857, at *1 0 (Tex. App.

— El Paso Aug. 15, 2002, pet. ref ’ d

) (not d e sign ated for publication) ( holding that trial court did not abuse its discretion by p ermitting officer

to testif y that stab wo unds on appel lant were superficial); Kidd v. State , No. 01

- 00

-10 0 0869

- CR, 2001 W L 301374, at *2 (Tex. App.

— Houston [1st Dist.] Mar

. 29, 2001, no
pet

. ) (n ot design ated for publication) ( ho lding that trial court did not abuse its

discretion by pe rmitting offic er to tes tify about which br uises on victim were old er
and whic h were new er); see also In re J.C. , 892 S.W.2d 87 , 88

– 89 (Tex. App

. — El Paso
1995, no writ ) ( holding that trial court di d not ab use its discretion by determining that testimony of lay person

— tha t bruises app e ar ed to be one day old

— was admissible

because w itness ha d recen t personal experience with bruising).

I n a slightly different vein , our court and an other have upheld trial cour t rulin gs permitt ing an officer (1) to give a lay opinion tha t the injuries the officer had observed

were tied to the conduct of a defendant or (2) to state the cause of the injuries

. See James v . State , 335 S .W.3d 719, 725

– 26 (Tex. App.

— Fort Worth 2011, no pet.) ( holding that trial court did not abuse i ts discretion by permitting o f fice r to testify that it appeared that complainant’s boyfriend had “beat the crap” out of her); see also Murray v. S tate , No. 03

- 0 9

- 00541

- CR , 2011 WL 2162864 , at * 6 (Tex. App.

— Austin June 1, 2011, pet. ref’d) (mem. op., not designated for pub lication) ( ho l ding that trial

court did not abuse i ts discretion by permittin g investigator to offer a lay opinion that

the injur i es he saw on t he body indicated that the child had been beat en)

. Here, the

detective did not go as far as the cited examples when he opine d that the photo and Complainant’s rendition of the events were co nsistent and when he testified that it was part of his investigat ive process to determine whether the evidence of injuries and the story told by a complainant were consistent.11 F ur ther, the d etective ’ s opin ion falls in the realm of a lay opini on because it was predicated on his experience , not a scientifi c theory. The Texarkana C o u rt of Appeals has explained the d emarcation betw een a n exp eriential

- based lay opinion and

an expert opinio n that relies on specialized training :
A distinct line ca nnot be drawn between lay opinion and expert testimony because all perceptions a re evaluat ed based on experiences. However, a s a general rule, o bservations [that] do not require significant

e xpertise to i n terpret and [that] are not based on a scientific theo ry can be admitted as lay opinions if the requirements of Rule 701 are met. This is true e ven when the witness has experie nce or training. Addit ionally, even events not normally encounter ed by most pe o pl e in everyday life do not necessari ly require the tes timony o f an expert. The personal experience and knowledge o f a lay witnes s may establish that he or she is capable, wit hout qualification as an expert, of expressing an opinion on a sub ject outside t he realm of common knowledge.

Hawkins , 2009 WL 30255, a t *4

. The detective ap plied his experience to formulate an opinio n: the mar ks on C omp l ainant ’ s arm were consistent wit h C ompla inant’s

rendition of events as an abuse victim

. In formul ating his opi n i on , the detective drew

on th e experience that he had gleaned f rom investi gating hundreds of d omestic

crimes , not o n a scientific theory. The final question is whether the de tective ’ s opinion was “ helpful to cl early understanding the witnes s ’ s testimony or to determinin g a fact in issue. ” See Tex. R.

Evid. 701(b). Appellant focuses h is arg ument on this question, co n tending that t he jury could decide for itself whether the br uises on C omp lain an t’s arm were m ade by fingertips. A s we have no ted , i n making this argument, A pp ellant unreasonabl y

nar rows the s cope of the detec tive ’ s opi nion ; h is opinion went beyond the si m ple12 question o f what had made the bruises. In stead, his opi nion turned on how the injuries depicted in the picture impacted t he question th at was t he focus of his

investi gation

— whether the phot os b ore out Complainant’s rendition of what had

occurred. Ap p ellant does no t argue that the detective ’ s opinion would not aid the jury.

B ecause the detecti v e ’ s opinion was a dmissible as a lay opinion , the tria l court

did not abuse its discr etion by overr uling Appellant’s speculation o bjections and admitting the de t ecti ve ’ s lay

- o pinion testimony . W e overrule Appellant ’ s sol e issue

.
IV. Conclusion Having overruled App ellant ’ s sole issue , we affirm th e t rial court ’ s judgments

. /s/ Dabney Bassel Dabney Bassel Justice

Do Not Publish Tex. R. App. P. 47.2(b)

Delive re d : July 28, 2022