### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-09-00442- CR

Jim m y Dean Mar tin, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 264 TH JUDICI AL DISTRICT NO. 636 66, H ONO RAB LE MARTH A J. TRUDO , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

J immy Dea

n Martin was convicted of burg lary of a habitation. See Tex. Penal Code Ann. § 30.02 (West 2003). With an enhance ment for prior convictions, punishment was asse ssed at 70 y ear s’ imprisonment. See id

. § 12.42(c) (1) (West Supp. 2010). Martin appea ls, arguing tha t the t rial court err ed by (1) deny in g his challeng e for cause to a venireper son and (2) qualify ing an expert witness despite the witness’s repe ated statements that he was not an expert. We will aff irm.

F ACTUAL AND P ROCEDURAL BACK GR OUND The jury hear d evidenc e that Martin broke i n t o a h o use and stole sever al items. I n v es t i gat o rs rec overe d a latent palm print from the house that matched Martin’s. They also interviewe d sever al neig hbors who stated that Martin had tried to sell them some o f t h e items he stole. Another neig hbor stated that he had seen some of the stolen items in Martin’s possession afte r the burg lary

.Martin was indicted for burg lary o f a h abitation. See id

. § 30.02. His indictment

alleg ed four prior felony convictions for enhanc ement purposes. S ee id

. § 12.42(c) (1). Martin pleade d n o t g uilty and proce eded to trial. During voir dire, Martin questioned the venire persons about whether they could consider the full rang e o f punishment for a hy pothetical defe ndant if they found h i m g uilty of burg lary and it turned out he had prior convictions. Venire person 4 responde d that she could not, and M ar t i n ch al l enged her for cause . The State opposed the challeng e, arg uing that Marti n ’s questions had been worde d confusing ly and that conseque ntly it was not cl ear whether venire person 4 rea lly could not consider the full rang e of punishment. The court ultimately denied Martin’s challeng e for cause , and Martin then used a pere mptory

challeng e to strike venir eper son 4. After the jury was selec ted, the State called as its first witness Wil lroy Petrucha , the investiga tor who had discovere d Martin’s latent palm print at the crime scene . Martin asked to examine Petrucha outside the jury ’s prese nce, an d t h e co urt g rante d his reque st. Martin asked Petrucha whether he was a fing erpr int expert, and Petrucha said that he was not. On the basis of this statement, Martin objected to Petrucha testify ing as an expert. The State then questioned Petrucha about his training and experience

. Martin reiter ated his objection, but the court ultimately qualified Petrucha as an expert. After the j ury was reca lled, Martin aga in asked Petrucha whe ther he was a fing erpr int e x pert, and Petrucha ag ain said that he was not. Ma rtin re- urg ed his objection, and the
court ag ain overr

uled it. Petrucha proce eded to testify that the latent print he discovere d at the crime

scene came from Martin. L ater , the State called a second fing erpr int witness, Way ne Corley , whose expertise Martin did not challeng e. Corley also testified that the late nt print came f rom Martin.

2At the conclusion of t he trial, th e j u ry found Martin g uilty and im posed a sentenc e

of 70 y ear s’ conf

inement. Martin appe als.

STANDARD OF REVIEW We revie w a trial court’s ruling on a challeng e for cause with considera ble defe renc e beca use the trial court is in the best position to evalua te a venire person’ s demea nor and response s. Blue v. State , 125 S.W .3d 491, 497 (Tex. Crim. App. 2003). We will reverse a trial c ourt’s ruling

on a challeng e for cause only if a clea r abuse of discretion is evident. Id

. An abuse of discretion is evident only when no rea sonabl e view of the rec ord could support the trial court’s ruling

. W ebb v. State , 232 S.W .3d 109, 112 (Tex. Crim. App. 2007). When a v enire person is uncer tain, unclea r, vacillating , or contra dictory , or when a venire person equivoca tes on the question of his or her ability to follow the law as it perta ins to the juror’s leg al role in a criminal proce eding , we defe r to the trial court’s finding s. See Feldman v. State , 71 S.W .3d 738, 744 (Tex. Crim. Ap p . 2 0 02); Adanandus v. State , 866 S.W .2d 210, 222 (Tex. Crim. App. 1993).

We revie w a trial court’s decision to admit or exclude expert testimony for abuse of discretion. Sexton v. State , 93 S.W .3d 96, 99 (Tex. Crim. App. 2002). This means that we will uphold the trial court’s decision if it is within t he zone of re asonable disag ree ment. Id . “B eca use the possible spectrum of educa tion, skill, and training is so wide, a trial court has g rea t discretion in deter mining whe ther a witness possesses sufficie nt qualifications to assist the jury as an e x pert on a spec ific topic in a pa

rticular c ase.” Rodgers v. State , 205 S.W .3d 525, 527-28 (Te x . Crim. App. 2006). Thus, we will “ra

rely disturb the trial court’s deter mination that a specific witness is or is not

3qualified to testify as an expert.” Id

. at 528 n.9 (citing W yatt v. Stat e , 2 3 S

. W

. 3 d 1 8 , 27 (Tex. Crim. App. 2000)).

DISCUSSIO N

Martin raises two issues on app eal. First, he arg ues that the trial court err ed by deny ing his challeng e for cause to venirepe rson 4 bec ause ve nirepe rson 4 sug g ested she c ould not consider the full rang e of punishment for a hy pothetical defe ndant with prior convictions. Second, 1 he arg ues that the trial court err ed by qualify ing Petrucha as a fing erpr int expert despite Petrucha ’s statements that he wa s not an expert. We will consider these a rg uments in turn.

Whether th e Trial Court

Erred by De nying Mart

in’s Ch allenge for Cause to V enireperson 4 Martin arg ues that venire person 4 indicated she would be unable to consider the full rang e of punishment if it turned out Martin had prior convictions. Martin is corr ect that an inability
to consider the full rang e of punishment is a form of bias t h at i s g rounds to excuse a prospec tive j u ro r for cause . See Tex. Crim. Proc. C ode Ann. art. 35.16(c)(2) (West 2006); Standefer v. State , 59 S.W .3d 177, 181 (Tex. Crim. App. 2001). “B efor e a prospec tive juror can be excused for cause

on this basis, howeve r, the law must be explained to him,” “he must be asked whether he can follow that law rega

rdless of his persona l views,” and his answe r must indicate that his bias “would substantially impair [hi s] ability to car ry out his oath and in s t ru ct i o n s i n acc ordanc e with law.” Feldman , 71 S.W .3d at 744.

Martin actua l l y ch al l eng ed sever al venire persons on this basis, but he discusses only 1 venire person 4 on a

ppeal. 4Martin’s counsel beg an the rele vant portion of voir dire by asking venire person 9 a 2 “hy pothetical question”:
[A] ssume that y ou found someone g uilty of burg lary of a habitation

. . . . Assume y ou have no rea sonable doub t as t o the person’ s g uilt, all rig ht. Assume it was done knowing ly and intentionally

. And y ou g et to the punishment part [of trial]. And the rang e of punishment is 5 to 99 y ea rs in the penitentiary

. . . . Can y ou, g iven the hy pothetical, can y ou in g ood faith fairly consider the minimum of punishment five y ear s?

Venire person 9 responde d that she could consider the minimum in such a scena rio. Appar ently no venire person expressed a differ ent opinion, beca use defe nse counsel stated, “So ev er y b ody could [consider the full rang e].” Def ense counsel then posed a second question: “same hy pothetical. The person in my make believe story has been previously convicted of a felony

. Can y ou in g ood faith fairly consider t he minimum punishment of five y ear s? ” After soliciting answe rs from sever al venire persons, defe nse counsel repe ated the question with the hy p o t h et i cal defe ndant having incre asing numbers of prior convictions, ultimately asking : “Same hy pothetical with a person that’s g ot four prior felony convictions, can y ou in g ood faith fairly consider the minimum punishment of five y ear s? ” Venire person 4 r eplied “no,” as did sever al other ve nirepe rsons.

3 Martin then challeng ed the venire persons who said “no,” including venire person 4, arguing that they had indicated “they could not consider the minimum punishment.” The State

Venire person 9 was not one of the venire persons Martin ultimately challeng ed for cause . 2 Given Martin’s four prior felony convictions, the minimum sentenc e the jury could impose 3 here was actua lly fiftee n y ea rs , n o t five. See Tex. Penal Code Ann. § 12.42(c) (1) (West Supp. 2010). This fac t undersc ores the disconnec t b et we en M ar t i n’s hy pothetical and the law the jury would actua lly

be apply ing. 5opposed Mar tin’s challeng e, ar g uing tha t Martin’s hy pothetical questions wer e “ve ry convoluted” and that conseque ntly the signific ance of the veni re p er s o ns’ response s was not clea r. The State further arg ued that hy

pothetical questions are an “inappr opriate” basis for a ch al l enge for cause beca use in answe ring them a venire person does not “commit to any thing.” The State argu ed that without probing the venire persons with follow-up questions to fi rm ly establish their bias, Martin failed to establish that they wer e proper ly excludable for cause . The court ultimately denied Martin’s challeng es for cause , explaining that Martin’s hy pothetical questions we re unclea r, that many venire persons appea

red confuse d by them, that sever al venire persons may have been responding to

eac h other’s answe rs rathe r than Martin’s questions, a nd that Martin failed to fir mly establish bias by asking probing follow-up questions.

On this rec ord, we cannot say that the trial court abused its discretion. I n the absenc e of a “cle arly objectionable decla ration by [a] venire person,” we defe r to the trial judge ’s decision to deny a challeng e for cause . Swearingen v. Stat e , 101 S.W .3d 89, 98 (Tex. Crim. App. 2003). A clea rly objectionable decla

ration is one that in d i ca t es the venire person has a bias that “would

s u b s t an tially impair [hi s] ability to car ry out his oath and instructions in acc ordanc e with law. ” Feldman , 71 S.W .3d at 744. Be cause venire person 4’s purpo rt ed l y objectionable decla ration was

m ade in response to a hy pothetical question, the trial court could rea sonably conclude that t h e decla ration did not clea

rly evince a bias ag ainst the law that venire person 4 would actua lly be asked
to apply

. I n fac t, M ar t i n ’s hy pothetical assumed a minimum sentenc e of five y ear s, but g iven Martin’s four p ri o r felony convictions, the minimum sentenc e the jury could impose here was actua lly fiftee n y ear s. See Tex. Penal Code § 12.42(c)(1). This discrepa ncy reinfor ces that the

6venire persons’ answe rs to Martin’s hy pothetical did not nece ssarily ref lect their fee lings towards the law they would actua lly

be aske d to apply

. Fur thermore , befor e a venire person’ s clea rly objectionable decla

ration will support

a challeng e for c ause, the venire person “ must be asked whether he can follow th[ e] la w reg ardle ss of his persona l views.” Id

. Venire person 4 was not asked this vital follow-up question; rathe r, she

was c halleng ed af

ter re sponding only

to a hy pothetical sce nario. Finally , the trial court perc eived confusion among the venire persons and thought that

some of them might be responding to eac h other rathe r than to Martin’s questions. To the extent this sug g ests the venire persons’ answe rs wer e “uncle ar,” that fac t further counsels defe renc e to the trial court’s deter

mination. See id .; Adanandus , 866 S.W .2d at 222. For all these rea sons, we cannot say that the trial court clea

rly abused its discretion in deny ing Martin’s challeng e for ca u s e to venire person 4. We over rule Mar tin’s first issue.

Whether th e Trial Court

Erred by Qualifying Petrucha as an Expert Martin nex t arg ues t hat t he trial cour t er re d by qualify ing Petrucha as a finge rprint expert beca

use Petrucha

denied he was a

fing erpr int ex pert. Texas Rule of Evidence 702 pro v i d es t hat “[i] f scientific, technica l, or other specia liz ed knowledg e will a ssist the trier of fac t to understand the evidenc e or to de termine a fac t in issue, a witness qualified as an expert by knowledg e, skill, experience , training , or education, may testify there to in the form of an opinion or otherwise.” A witness’s qualifica tion to serve as an expert is a question of l aw f o r the court to decide

. See Rodgers , 205 S.W .3d at 527-28. We look

7to the following three fac tors in assessing whether the trial cour

t abused its discretion in ruling on an expert’s qua lifications:
First, is the fi el d of expertise complex? The deg ree of education, training , or experience that a witness should have before he can qualify as an e x pert is direc tly rela ted to the complexit y of the field about which he proposes to testify

. . . . Second, how conclusive is the expert’s opinion? The more conclusive the expert’s opinion, the more important is his deg ree of expertise

. . . . And third, how centr al is the are a of expert i s e t o t he resolution of the lawsuit? The more dispositi ve it is of the disputed issues, the more important the e x pert' s qualifications ar e.
Id . at 528. Her e, these fac tors establish that the trial court di d not abuse its discretion by qualify ing Petrucha as a fing erpr int expert. Reg arding the first fac tor, latent fing erpr int analy sis is
not complex, see id ., and the “deg ree of education, training , or experience that a witness should have b ef o re h e ca n q ualify as an expert” on it is “dire ctly rela ted” to its level of complexit y . See id

. Petrucha testified that he had be en ce rtified in f inge rprint compar ison by the Texas D epar tment of P u b l i c Safety afte r g radua ting with perf

ect score s from three fing erpr inting course s in which he examined thousands of prints. He also testified that he had been mentored by three highly experience d fing erpr int experts, had been trained in all the equipment used for latent print collection

an d compar ison, and had revie wed many studies, article s, and journals conce rning fing erpr in t s . Martin cites no authority , nor are we awa re of any , sug ges t i n g that such a backg round was insufficie n t t o qualify Petrucha as a fing erpr int expert. I ndeed, the exis tence of such authority would be surp rising g iven the “g rea t discretion” entrusted to trial courts in evalua ting experts’

cre dentials. Id

.

8Reg arding the second fac tor, Petrucha ’s opinion was rathe r conclusive, as he testified

that the odds of a false- positive print match are very low. See id

. The weig ht of this conclusivene ss is more than offse t by the third fac tor, howeve r, as Petrucha ’s testimony was not centr al to t he resolution of the l aw s u i t
. I n fac t, it was eff ectively superf

luous, as the State called a second fing erpr int ex pert who g ave unc ontested testimony that was identica l to Petrucha’s. F urthermor e, expert testimony was not the only evidenc e in the case — the State called witnesses who testified to seeing stolen g oods in Martin’s possession—which further reduc es the cen t ralit y of Petrucha ’s testimony

. Cf id

. (“I f [ the s ubject of expert testimony ] is the only thing ty ing the defe ndant to the

cr i me, t he reliability of t he ex pertise and the wit ness’s qualifications to g ive hi s opinion are more

cruc ial than if ey ewitnesses and a confe ssion also connec t the defe ndant to the crime.” ). On balanc e, g iven the weig ht of these fac tors, we cannot s ay t h at the court abused its discretion by qualify ing Petrucha as an e x pert witness. See id . at 527-28. We over rule Mar tin’s second issue.

CONCLUSION For the re asons stated a

bove, we aff

irm the trial cour

t’s judgme nt.

__________________________________________ David Pury ear , J ustice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: De cembe r 15, 2010 Do Not Publish
9