Gerrard Eugene Dixon v. The State of Texas--Appeal from 183rd District Court of Harris County

Affirmed and Majority and Concurring Opinions filed November 29, 2007

Affirmed and Majority and Concurring Opinions filed November 29, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-06-00351-CR

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GERRARD EUGENE DIXON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Cause No. 1061607

C O N C U R R I N G O P I N I O N

Under Texas Rule of Evidence 702, Officer Bray qualifies as an expert in law enforcement,[1] but his law-enforcement experience and training do not qualify him as an expert in the field of family violence dynamics or the behavioral propensity of abuse victims to return to their abusers post-assault. For this reason, Officer Bray should not have been permitted to testify regarding these matters. Even though the court finds no error, it nevertheless reaches the proper result in overruling appellant=s second issue and in affirming the trial court=s judgment. Therefore, I respectfully concur in this court=s judgment.

Qualifications of Experts in the Field of Family Violence Dynamics or the

Behavioral Propensity of Abuse Victims to Return to Their Abusers Post-Assault

To testify as an expert, a witness must possess scientific, technical, or other specialized knowledge that will assist a factfinder, and the witness must be qualified as an expert by knowledge, skill, experience, training, or education. Tex. R. Evid. 702; Jensen v. State, 66 S.W.3d 528, 542 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d). An expert witness must qualify as an expert in the relevant field by reason of his knowledge, skill, experience, training, or education. See Tex. R. Evid. 702; Alvarado v. State, 912 S.W.2d 199, 215B16 (Tex. Crim. App. 1995). Under Rule 702, Officer Bray, through his experience in law enforcement and training at the police academy, qualified as an expert in law enforcement and law enforcement responses to family violence. But the testimony in dispute is not within this field. Instead, the evidence in issue is Officer Bray=s testimony regarding the behavioral dynamics of victims of family violence, which is a subject beyond his field of expertise as a police officer.

An offering party must establish that an expert holds the requisite knowledge, experience, skill, training, or education regarding a specific issue, which, in turn, qualifies the expert to give an opinion on that particular subject. Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996). Additionally, law enforcement officers are not qualified by position alone to render some expert opinions. See Pyle v. S. Pac. Transp. Co., 774 S.W.2d 693, 695 (Tex. App.CHouston [1st Dist.] 1989, pet. denied) (holding that a trial court did not err in excluding expert testimony regarding accident reconstruction from a police officer who held eight years of service, received training at a police academy, and attended a seminar focusing on accident reconstruction). Often, the special knowledge that qualifies a witness to give expert testimony is derived by combining experience, education, or studies of technical works. See Tex. R. Evid. 702; Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). In this case, Officer Bray had specialized knowledge in law enforcement gleaned both from experience on the job and training at the police academy, and insofar as he offered testimony as an expert regarding law enforcement responses to family violence, the trial court correctly permitted him to testify. But Officer Bray=s police training and on-the-job experience, whether considered alone or together, do not equate to training, experience, education, or knowledge gained through special study, degrees, or experience in the fields of sociology or psychology. The record simply does not show that Officer Bray is qualified to speak as an expert beyond his work as a police officer responding to calls of family violence. Though his experience and training, as reflected in the record, are sufficient to qualify him as an expert in law enforcement, the record contains no evidence of his qualifications, if any, to testify as an expert in behavioral propensity of family violence victims post-assault.

Furthermore, the subject matter for which Officer Bray=s opinion was offered is beyond Officer Bray=s field of expertise as a police officer. See Tex. R. Evid. 702; Alvarado, 912 S.W.2d at 215B16. Testimony regarding the dynamics of domestic violence is subject matter reserved for an expert. See Harris v. State, 133 S.W.3d 760, 774 (Tex. App.CTexarkana 2004, pet. ref=d) (ASuch specialized testimony [regarding a cycle of domestic violence] is the very essence of expert testimony.@). However, an expert=s qualifications and expertise must go to the matter on which the expert proffers an opinion. Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995) (providing that a party proffering an expert witness must establish that the witness is qualified on the specific matter in question). Often, those who provide expert testimony on subject matter involving the behavior of victims are psychologists, psychotherapists, or others with specialized training in human behavioral characteristics and conduct. See Fielder v. State, 756 S.W.2d 309, 320B21 (Tex. Crim. App. 1988) (holding that psychologist=s expert testimony is admissible to explain the conduct of women who endure abusive relationships), Harris, 133 S.W.3d at 774B75 (providing that when an assistant district attorney, who was an expert on protective orders as well as a former nurse, testified on the Acycle of domestic violence,@ she was not a lay witness, but rather an expert witness to the extent that her testimony explained why victims abandon procedures for protective orders); see also Perez v. State, 113 S.W.3d 819, 832B35 (Tex. App.CAustin 2003, pet. ref=d) (holding that trial court did not abuse its discretion in concluding that psychologist was qualified to give expert testimony regarding the behavioral characteristics of sexually abused children); Hitt v. State, 53 S.W.3d 697, 707 (Tex. App.CAustin 2001, pet. ref=d) (explaining that a psychotherapist=s expert testimony regarding children=s behavioral characteristics after sexual abuse is admissible). Although the subject matter involving behavioral propensity merits expert testimony, any such testimony should come from a qualified expert. Officer Bray, despite his extensive experience and training in law enforcement, lacks the expert qualifications to discuss this subject matter traditionally reserved for psychologists and psychotherapists.

A trial court=s determination of a witness=s qualifications will not be overturned absent an abuse of discretion. Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000). The record contains no evidence to show Officer Bray had the qualifications to testify on the particular subject matter of the behavioral propensity of victims who return to abusers post-attack. Therefore, the trial court abused its discretion in permitting Officer Bray to testify as an expert regarding victims= behavioral propensities post-attack. See Perez v. State, 25 S.W.3d 830, 838 (Tex. App.CHouston [1st Dist.] 2000, no pet.) (holding that trial court abused its discretion in admitting expert testimony when expert was not qualified in that specific field). The error, however, is not reversible.

Harm Analysis

A violation of evidentiary rules that results in the erroneous admission of evidence is non-constitutional error under Texas Rule of Appellate Procedures 44.2(a). Tex. R. App. P. 44.2(a); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). A reviewing court should disregard any non-constitutional error that does not affect substantial rights. Tex. R. App. P. 44.2(b); Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001); Johnson, 967 S.W.2d at 417 (explaining that where error did not influence the jury, appellant=s substantial rights are not affected). Criminal convictions are not to be overturned for non-constitutional error if the reviewing court, upon examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect. Johnson, 967 S.W.2d at 417. Considering the record as a whole, it may be said with fair assurance that Officer Bray=s testimony did not influence the jury or had but slight effect on the jury=s punishment verdict. Tex. R. App. P. 44.2(b); see Johnson, 967 S.W.2d at 417. Thus, under the non-constitutional harm analysis, the trial court=s error in admitting Officer Bray=s testimony regarding the behavioral propensity of family violence victims was harmless. See Tex. R. App. P. 44.2(b); Bonner v. State, No. 14-96-01542-CR, 1999 WL 212163, at *2 (Tex. App.CHouston [14th Dist.] Apr. 8, 2006, no pet. h.) (concluding that any error in admitting unqualified expert testimony of a police officer was harmless) (not designated for publication). Because the error provides no basis for reversal on this issue, this court reaches the correct result in overruling appellant=s second issue, and affirming the trial court=s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring Opinions filed November 29, 2007.

Panel consists of Justices Anderson, Fowler, and Frost (Anderson, J., majority).

Publish C Tex. R. App. P. 47.2(b).

[1] See Tex. R. Evid. 702.