Curtis Robinson, Jr. v. The State of Texas--Appeal from 253rd District Court of Liberty County

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-06-051 CR
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CURTIS ROBINSON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 253rd District Court
Liberty County, Texas
Trial Cause No. 25,461
MEMORANDUM OPINION

A single indictment charged appellant, Curtis Robinson, Jr., with separate felony offenses of Aggravated Robbery and Burglary of a Habitation. The lone victim, E.B.Y., was eighty-four years' old at the time of the offenses. Other than identity of the perpetrator, the basic facts are not in dispute. On September 11, 2004, E.B.Y. was alone in his home when a black male in his thirties or early forties knocked at the door. The man claimed his vehicle had overheated and he needed water. When E.B.Y. opened his storm door, the man pulled out a knife and held it under E.B.Y.'s throat. The man used an electrical cord to tie up E.B.Y., and then stole a handgun and money belonging to E.B.Y. The man then left the house. At trial, E.B.Y. was unable to positively identify Robinson as the man who robbed and burglarized him. The jury found Robinson guilty on both counts. Finding Robinson to be an habitual offender, the trial court assessed punishment at life on each offense and ordered, the sentences to run consecutively with ones Robinson was serving at the time of trial. Robinson raises two appellate issues:

1. The trial court erred in holding the evidence to be sufficient to sustain the conviction, because the evidence was insufficient to establish the identity of the Appellant as the actor perpetrating the alleged offense.

 

2. The trial court erred in permitting the identification of the Defendant based on a "human scent" lineup conducted without a Court Order.

 

At the close of the State's case, Robinson moved for an instructed verdict of "not guilty" on each count of the indictment. These motions were denied by the trial court. A challenge to the denial of a motion for instructed verdict is actually a challenge to the legal sufficiency of the evidence. Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993); Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990). We review a challenge to the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the offense proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004). When conducting a sufficiency review, we consider all of the evidence admitted, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). This standard leaves to the factfinder the responsibility to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. See Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000). The factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). Thus, the factfinder is free to accept or reject any or all of a witness's testimony. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).

Under his first issue, Robinson argues the evidence was legally insufficient to identify him because the circumstantial evidence tying him to E.B.Y.'s stolen handgun was too tenuous. The record indicates that no fingerprint evidence was recovered at the scene or found on any item connected with the crime. Robinson, however, appears to discount the human scent identification evidence that essentially establishes his complicity in the offences as described by E.B.Y. As noted above, in a sufficiency analysis, the reviewing court examines all the evidence whether properly or improperly admitted. Conner, 67 S.W.3d at 197. At trial, Deputy Keith Pikett of the Fort Bend County Sheriff's Office testified his three trained bloodhound trailing dogs positively alerted on Robinson's scent during human scent discrimination "lineups." The lineups involved the electrical cord used by the perpetrator to tie up E.B.Y. and the wallet from which the perpetrator extracted cash belonging to E.B.Y. Additionally, Robinson's friend, and former employer, Gary Reynolds, testified that Robinson unexpectedly appeared at his home in Austin, Texas, on September 12, 2004. Reynolds stated that Robinson appeared "grungy," was depressed and paranoid, and that Robinson spoke of committing suicide. During this conversation with Reynolds, Robinson said he had done something "that couldn't be fixed," and that he had committed a crime. Robinson further said that he had "tied up an old man" and had robbed him. Robinson thought he had killed the old man. Robinson produced a handgun and told Reynolds that he would use the handgun to commit suicide. Robinson told Reynolds the gun belonged to "the old man."

In addition to the above, the record also contains the evidence tracing E.B.Y.'s stolen handgun to Robinson, the direct proof of Robinson's presence near E.B.Y.'s home on the day of the offenses, and E.B.Y.'s general description of the intruder matching that of Robinson. From all of the record evidence, taken in the light most favorable to the verdict, any rational trier of fact could have found Robinson to have committed the charged offenses beyond a reasonable doubt. Issue one is overruled.

Issue two involves the admissibility of the human scent identity testimony. Prior to trial, Robinson filed a number of motions, one of which requested suppression of evidence identifying Robinson based on "human scent" lineups. Robinson grounded his motion on Texas Rule of Evidence 702. As further authority, Robinson's motion cited Kelly v. State, (1) Nenno v. State, (2) and Winston v. State. (3) The motion concluded with the following prayer:

WHEREFORE, PREMISES CONSIDERED, the Defendant prays that the Trial Court GRANT a hearing on this Motion to determine which standard should apply; whether testimony regarding "human scent" identification by canines should be allowed; and, whether the "human scent" identification of the Defendant be suppressed.

 

Although the written motion does allude to the fact that the "human scent" lineup was conducted without a court order, the substance of the motion does not complain of any of these out-of-court identification procedures on the basis that prior judicial approval was not obtained. Nor was this theory raised or argued to the trial court. Therefore, any portion of Robinson's second appellate issue complaining of the lack of a court order prior to any of the human scent lineups suffers from procedural default, and Robinson has forfeited appellate review for error, as the issue does not comport with what was raised and argued to the trial court. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).

The remainder of issue two is governed by the analyses and holdings in Winston v. State, 78 S.W.3d 522 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd), as the operative facts and circumstances there are almost identical to those presented in the record before us. Winston challenged, by way of a suppression motion, the testimony of a deputy sheriff regarding a "dog sniff test," based upon Texas Rules of Evidence 702. Id. at 524-25. TheWinston opinion describes a procedure conducted by the deputy that is very similar to the human scent lineup used in the instant case. Id. at 524. In the Winston investigation, the deputy used two dogs to sniff five gauze pads, one of which contained the scent of Winston. Id. Over Winston's objections, the deputy testified that both bloodhounds "alerted" to the gauze pad containing Winston's scent. Id. He also testified that he interpreted the "alerts" as indicating a match between the scent obtained from the crime scene [residential burglary] and Winston's scent. Id. In framing our issue, we can do no better than the Fourteenth Court did in framing the issue before it, viz: "We must decide whether the court properly admitted expert testimony that described the purported identification by a trained police bloodhound of an individual based on his scent." Id. at 525.

First, we note Robinson affirmatively announced "no objection" when any of the scent identification evidence was proffered by the State during his trial. When a pretrial motion to suppress evidence is overruled, the defendant need not subsequently object at trial to the same evidence to preserve error on appeal. Moraguez v. State, 701 S.W.2d 902, 904 (Tex. Crim. App. 1986). However, when a defendant affirmatively states during trial that he has "no objection" to the admission of the evidence in question, he has forfeited appellate review as to any error in its admission, despite the pretrial ruling. See Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992); Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988); see also Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) ("Forfeit" and "procedural default" refer to the loss of a claim or right for failure to insist upon it by objection.). Robinson did not preserve an objection to the admissibility of the evidence.

Furthermore, we see no error in the admission of the evidence in any event. The Winston Court set out the proper standard of review thusly:

We review a trial court's ruling on the admissibility of evidence under an abuse of discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); see also Kelly v. State, 824 S.W.2d 568, 574 (Tex. Crim. App. 1992). In determining the admissibility of evidence, the trial court is the sole judge of the weight and credibility of the evidence presented at the suppression hearing. Weatherred, 15 S.W.3d at 542. We will reverse only if the trial court's decision falls outside "the zone of reasonable disagreement." Id.

 

Winston, 78 S.W.3d at 525. The Winston Court then analyzed the admissibility of the deputy's testimony in light of Rule 702 based on the relevance and reliability test announced in Nenno. (4) Id. at 526. At the suppression hearing in the instant case, Robinson took the position that the Nenno test was the more appropriate test to apply under the circumstances, with the State agreeing to this approach. After applying the Nenno test to the facts presented to it, the Winston Court ruled "that the foundational requirements established in this case comply with the Nenno test and that the trial court did not abuse its discretion in admitting the scent-lineup testimony from [the] [d]eputy [sheriff]." Id. at 529.

The threshold determination in any inquiry into the admissibility of expert testimony under Rule 702 is whether the testimony is helpful to the trier of fact. Emerson v. State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994). Texas Rule of Evidence 702 provides that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Tex. R. Evid. 702. It is the trial court's responsibility to determine whether proffered scientific evidence is sufficiently reliable and relevant to assist the jury. See Jackson v. State, 17 S.W.3d 664, 670 (Tex. Crim. App. 2000). The requirement of reliability applies with less rigor to nonscientific expert testimony than to the hard sciences. See Nenno, 970 S.W.2d at 561; see also Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). When nonscientific expert testimony is at issue, the trial court should inquire: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert's testimony is within the scope of that field; and (3) whether the expert's testimony properly relies on or utilizes the principles involved in the field. Nenno, 970 S.W.2d at 561.

The Winston Court found that the use of scent lineups is a legitimate field of expertise, noting that thirty-seven states and the District of Columbia admit scent-tracking evidence to prove the identity of an accused, so long as a proper predicate has been established. Winston, 78 S.W.3d at 527. Additionally, the Winston Court referred to an FBI letter to Deputy Pikett commending his "work with the bloodhounds and scent lineups" and noting that such work by Pikett "'saved many investigation man hours that would have been spent searching for the wrong person.'" Id. at 526-27. We echo the following sentiment of the Winston Court: "Clearly, these dogs' ability to distinguish scents is valued and respected outside the context of the courtroom." Id. Our research has turned up nothing since Winston calling scent-tracking evidence or scent identification lineups into question. (5) We find that human scent identification evidence involving the use of trained dogs to be a legitimate field of expertise. As the record clearly reflects that the subject matter of Deputy Pikett's testimony was squarely within the scope of human scent identification lineups, we move on to the third Nenno, i.e. factor whether the testimony properly relies on or utilizes principles of the field. The Winston Court analyzed this factor by breaking it down into three sub-factors: (1) the qualifications of the particular trainer; (2) the qualifications of the particular dog; and (3) the objectivity of the particular lineup. Id. Deputy Pikett testified to his credentials at the suppression hearing: (1) earned a bachelor's degree in Chemistry, and a master's degree in Education, with an "AP assistance" in Chemistry; (2) spent eight years as a deputy with the Fort Bend County Sheriff's Department and a certified peace officer; (3) had thirteen years' total experience working with law enforcement with his dogs; (4) began training bloodhounds in 1989, and has trained five of his own dogs, and has trained dogs for Houston, Dallas, Bellaire, Galveston, Waller County, and Texas Parks and Wildlife law enforcement agencies; (5) attended 176 seminar hours on bloodhound training; (6) conducted four "schools" for the FBI, per their request, to instruct on the collection and use of scent evidence; (7) has written articles for "The American Bloodhound Club" on the training of bloodhounds; (8) in addition to the FBI, has assisted the U.S. Marshal's office, the Texas Rangers, and the Bureau of Alcohol, Tobacco, and Firearms. Thus, we find Deputy Pikett's qualifications were sufficiently established.

Deputy Pikett then testified concerning the three dogs he used in the instant case, "Quincy," "Jag," and "James Bond." He began training his dogs when they were eight weeks old. His training procedures have been approved and recommended by other experts in the field, namely Glen Remby, Jerry Yelk, and Bill Tolhurst. (6) He then described the dogs' qualifications, starting with his eight-year old dog, Quincy, who had worked approximately 1750 felony cases by the end of the year 2005. As of the end of 2005, Quincy had also worked 760 cases involving human scent identification lineups. Deputy Pikett's next dog, Jag, had worked 335 human scent identification lineup cases by the end of 2005. Deputy Pikett's youngest dog, James Bond, had worked 230 cases involving human scent identification lineups. The three dogs are registered bloodhounds with the American Kennel Club. Deputy Pikett indicated that out of 760 scent identification cases worked, Quincy identified the wrong subject only twice, while neither Jag nor James Bond had ever misidentified a subject. On the question of scent identification when the scents are stale or old, Deputy Pikett testified that his dogs had experience with shell casings and smoked cigarettes that were five years old "and the dog alerted on them and DNA proved them right." We find that the dogs were qualified for human scent identification.

The record indicates that Deputy Pikett not only testified in detail as to the procedure used in the scent identification lineup in the instant case, but the trial court was shown the lineup procedure at issue conducted by Deputy Pikett and members of the Liberty County Sheriff's Department the day before the hearing via DVD recording. The testimony indicates the three dogs alerted to Robinson's scent on both the wallet and the electrical cord handled by the perpetrator of the offenses at issue. From all of the testimony describing the scent lineup procedure used to identify Robinson, we find the objectivity prong well established. Thus, the third Nenno factor is also established. See Winston, 78 S.W.3d at 527-29. We further note that during the entire hearing, no objections were lodged to any testimony about the facts or circumstances regarding the scent identification lineup. We conclude, as did the Winston Court, that the foundational requirements established in the record comply with the Nenno test and therefore the trial court did not abuse its discretion in admitting the evidence concerning the human scent identification lineup. Robinson's second issue is overruled.

The judgment of the trial court is affirmed.

AFFIRMED.

__________________________________

CHARLES KREGER

Justice

 

Submitted on July 17, 2006

Opinion Delivered November 29, 2006

Do not publish

 

Before Gaultney, Kreger and Horton, JJ.

1. 824 S.W.2d 568 (Tex. Crim. App. 1992).

2. 970 S.W.2d 549 (Tex. Crim. App. 1998).

3. 78 S.W.3d 522 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd).

4. 970 S.W.2d at 560-61.

5. One California case, which held the trial court erred in admitting evidence of the defendant's identification via a canine scent identification lineup without first holding a foundational hearing, involved the use of a "scent transfer unit," a device described by the canine-handler as "essentially a modified dust buster." See People v. Mitchell, 2 Cal. Rptr. 3d 49, 54 (Cal. Ct. App. 2003). In the instant prosecution there was no mechanical device involved in the scent identification lineup procedure.

6. Robinson did not lodge an objection to this line of testimony. The record does not further identify these named "experts," nor illuminate any further the nature of their approval of Deputy Pikett's training techniques.