### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-04-00528- CR

She r wood T hom as Edr ing to n, A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF HAY S COUNTY , 22ND JUDICIAL DISTRI CT NO. CR-04- 084, HO NORAB LE DONALD LEONARD, JUDGE PRESI DING

M E M O R

A N D U M O P I N I O N A j ury found appellant g uilty of stealing proper

ty valued at more than $20,000 a nd assessed punishment, e nhance d by previous fe lony convictions, at seve nty

y ear s’ imprisonment. See Tex. P en. Code Ann. § 31.03(a) , (e) (5) (West Supp. 2005). Appe llant contends the c ourt err ed by
e xclu din g te sti mony

by a de fe ns e e xpe rt of

fe re d a t the g uil t sta g e of

tr ia l and by re fu sin g to a dmi t an expert re port offe red at the punishment stage . We will overrule these contentions and aff irm the conviction. Dennis Smock, the complaining witness, testified that he met a ppellant at a truck stop in C ha nn e lvi e w o n F e br

ua ry 15 , 2 00 3. Smo c k, a tr

uc k dri ve r, ha d ju st d e liv e re d a loa d o f p lants to Houston-ar ea nur series, and his tra ctor-tr uck and flatbed trailer w ere empty . Appellant told Smock that he ha d a l o ad o f hay at his ranc h near

Austin that neede d to be shipped to Nebr aska, a nd he2

asked Smock if h e would be intere sted in the job. Smock testified that appellant “ knew a ll of the lingo of a truc ker.” After

chec king w ith his employ er, Smock a cce pted appe llant’s offe r. Smock and appe llant left Channelview in Smock’s truck a nd drove towa

rd Austin. They stopped at a g roce ry store in B uda, and Smock w ent inside to buy beer and cig are ttes. When he c a me ou t of

the sto re , ap pe lla

nt a nd the tr uc k w e re g on e . T he tr a ile r w a s f ound a ba nd on e d in Austin. Several months later, the truck wa s found in Alabama abandone d and stripped. I n his first point of error , appellant urges that the trial c ourt err ed by excluding t es t i m o n y b y

defe nse witness Ray

mond Rone, an expert on commer cial truc king r eg ulation, that would have assisted the jury in evaluating Smock’s testimony
. See Tex. R. App. P . 702. The c ourt permitted Rone to testify

that it wa s a violation of fede ral regulations f or a c ommercia l truck driver to acc ept passeng ers a

nd possess alcohol. The court did not permit Rone to testif y t h at i t was the common prac tice in the truc king industry for a driver to contac t his dispatcher afte r deliver ing a

load,
a n d t h a ti tw a s c o n t r a r

y t o c o m m o n p r a c t i c e “ f

o r a dr i v e r t o s e e k o u ta l o a d a n d t o a g r e e t o c a r

r y a load without notifying the motor car rier.” The c ourt disallowed this testimony beca use, “That’s not the evidenc e her e. He did call or a t least he said he called.”

To be he lpful, expert testimony must be rele vant to the fac ts of the ca se. Morales v. Sta te , 3 2 S. W.3 d 8 62, 86 5 ( Te x. Cr im. Ap p. 20 00 ). We h old that th e tr ia l c ourt

did no t a bu se its discretion by

ruling that the excluded t es t i mony did not satisfy

the “f it” require ment and wa s there fore irrele vant. Id . Point of error one is overrule d.

Ap p el l ant’s second point of err or re lates to the testimony of Dr. Ross Miller at the punishment stage . Miller is a clinical psy cho l o gist. Mil ler testified tha t he interview ed appe llant
on sever al occ asions and adminis tere d two persona lity tests. He c oncluded that a ppellant “suff

ersAlthough the report is included in the repor ter’s r ecor d, the State points out that it was not 1 a dmi tte d f

or the purp os e of

the a pp e a l. 3 from a mixed personality

disorder . . . of

modera te proportions and that it is possible that his criminal activit y wa s a manife station of this disorder.” Miller e x plained that as a result of a

“bruta l childhood,” appe llant perc eives other s as exploit ing or mistreating him, and that appellant justifies his criminal conduct as a “wa y to redr ess t he [ perc eived] g rieva nce.” At the conc lusion of Mill er’ s testimony , appellant pr offe red the witness’s written re p ort into evidence . The c ourt sustained the State’s hea

rsay objection to its admissi on. Appellant ar g ues that hear say underly ing a n expert’s opinion should not be ex cluded unless the dang er that the evidenc e will be misused outwe ighs its va lue in e x plaining or supporting the opin io n. Te x. R. A

pp . P. 70 5( d) . We have re vie we d th e re po rt in q ue sti on . I n la

rg e pa rt , it 1
mere ly restate s Miller’s trial testimony . Appellant does not draw our attention to any fac ts contained in the re p o rt t h at wer e not testified to by Miller befor e the jury . No abuse of discre tion is shown. Point of error two is ove rruled.

The judg ment of convic tion is affirmed.

_ _ _ _ _ _ _ ____________________________________ Be a Ann Smith, J ustice Be fore Chief J ustice L aw, Justi ces B . A. Smith and Pemberton Affir med Filed: De cembe r 21, 2005 Do No t Pu

bli sh