Rodgers, Warren Keith

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0645-05

WARREN KEITH RODGERS, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SIXTH COURT OF APPEALS

WOOD COUNTY

Cochran, J., delivered the opinion of the Court, in which Meyers,

Womack, Johnson, Keasler, Hervey, and Holcomb, JJ., joined . Keller, P.J.,

concurred in the result . Price, J., filed a concurring opinion .

O P I N I O N

In this case we hold that a motion to strike an expert witness's testimony based on his

lack of qualifications, which is made after the witness has testified, can serve as a renewed

objection to the trial court's earlier ruling that the witness was qualified. In these

circumstances, an appellate court reviews the trial court's ruling based upon all of the

evidence before the court at the time of the motion to strike. Although we disavow some of

the language in the court of appeals's opinion, we affirm its ultimate conclusion that the

State's expert was qualified to testify under Rule 702 of the Texas Rules of Evidence. (1)

I.

At trial, the State's evidence showed that appellant ran over his wife with his van, and

then placed her injured body on a railroad track to be run over by a train. A latent-print

examiner, A. J. Jumper, was called to testify as an expert about his comparisons of the soles

of appellant's shoes and tire imprints from his van with impressions made from a shoe print

and tire tracks found near the railroad tracks. Appellant tested Mr. Jumper's qualifications

on voir dire and objected that he was not an expert in either tire or shoe comparisons. The

trial court overruled that objection, and Mr. Jumper testified that his comparisons revealed

common or similar characteristics. Appellant continued to challenge Mr. Jumper's

qualifications during his cross-examination and ultimately made a motion to strike the shoe-imprint-comparison testimony. (2) The trial court denied that motion. The jury convicted

appellant of murder and sentenced him to life imprisonment and a $10,000 fine.

On appeal, appellant claimed that the trial court erred in allowing Mr. Jumper to

testify as an expert. He relied, in part, on evidence he developed during his extensive cross-examination. The court of appeals declined to consider that evidence, however, because it

was developed " after Jumper had already expressed his opinions before the jury." (3) It held

that, based on the evidence at the time of its original ruling, the trial court had not abused its

discretion in permitting Mr. Jumper to testify as an expert on tire and shoe-print

comparisons. (4) II. Rule 702 of the Texas Rules of Evidence states,

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. (5)

Thus, before admitting expert testimony under Rule 702, the trial court must be satisfied that

three conditions are met: (1) the witness qualifies as an expert by reason of his knowledge,

skill, experience, training, or education; (2) the subject matter of the testimony is an

appropriate one for expert testimony; and (3) admitting the expert testimony will actually

assist the fact-finder in deciding the case. (6)

A trial court need not exclude expert testimony simply because the subject matter is

within the comprehension of the average jury. (7) If the witness has some special knowledge

or additional insight into the field that would be helpful, then the expert can assist the trier

of fact to understand the evidence or to determine a fact in issue. An expert "may add

precision and depth to the ability of the trier of fact to reach conclusions about subjects which

lie well within common experience." (8) Because the possible spectrum of education, skill, and

training is so wide, a trial court has great discretion in determining whether a witness

possesses sufficient qualifications to assist the jury as an expert on a specific topic in a

particular case. (9)

Appellate courts may consider several criteria in assessing whether a trial court has

clearly abused its discretion in ruling on an expert's qualifications. First, is the field of

expertise complex? The degree of education, training, or experience that a witness should

have before he can qualify as an expert is directly related to the complexity of the field about

which he proposes to testify. (10) If the expert evidence is close to the jury's common

understanding, the witness's qualifications are less important than when the evidence is well

outside the jury's own experience. For example, DNA profiling is scientifically complex;

latent-print comparison (whether of fingerprints, tires, or shoes) is not. Second, how

conclusive is the expert's opinion? The more conclusive the expert's opinion, the more

important is his degree of expertise. Testimony that "a given profile occurred one time in

2.578 sextillion (2.578 followed by 21 zeroes), a number larger than the number of known

stars in the universe (estimated at one sextillion)" (11) requires a much higher degree of

scientific expertise than testimony "that the defendant's tennis shoe could have made the

bloody shoe print found on a piece of paper in the victim's apartment." (12) And third, how

central is the area of expertise to the resolution of the lawsuit? The more dispositive it is of

the disputed issues, the more important the expert's qualifications are. If DNA is the only

thing tying the defendant to the crime, the reliability of the expertise and the witness's

qualifications to give his opinion are more crucial than if eyewitnesses and a confession also

connect the defendant to the crime. (13)

In any event, the appellate court must review the trial court's ruling in light of what

was before that court at the time the ruling was made. (14)

III.

In the present case, the State established, on direct examination, that Mr. Jumper is

a latent print examiner for the Dallas County Southwestern Institute of Forensic Sciences

(SWIFS). His qualifications as an expert latent print examiner included: training in the

physical evidence section of the Dallas County Sheriff's Office; an apprenticeship with a

certified print examiner; classes and courses on the matching of shoe and tire imprints at the

Dallas County Sheriff's Office and at the University of North Texas; a shoe and tire imprint

training class with a former FBI expert; and a tire imprint training class at an FBI conference.

When asked if he was "able then to take a, not just fingerprints but a tire print or shoe

print and make comparisons between an item from a crime scene and some other item or

known item that you later located," Mr. Jumper replied that he could. He also stated that he

had testified "[o]ver 150 times" in Texas courts. Appellant then took Mr. Jumper on voir

dire "to test his qualifications under 702." That voir dire revealed, among other things, that

Mr. Jumper had never graduated from college, had never written articles on tire prints, had

only a few days of class work specific to the matching of shoe and tire imprints, and had

testified only twice before regarding tire-print comparisons. When asked, "Is most of your

job fingerprints?" Mr. Jumper answered, "That's the bulk of it."

Appellant then objected at a bench conference. He agreed that Mr. Jumper was a

fingerprint-identification expert, but argued that he was not a shoe- or tire-imprint

identification expert. Appellant pointed to Mr. Jumper's relative lack of experience, training,

and education in the specific area of shoe- and tire-imprint comparison. (15)

After the trial court overruled appellant's objections, Mr. Jumper testified before the

jury about his comparisons. Asked if there was a match between appellant's shoe and the

imprint found at the scene, Mr. Jumper testified: "I can't exclude this shoe and I can't state

. . . as a fact that this shoe made that imprint. It has similar characteristics and design as you

can see in the, the photograph. . . ." Asked if he could "say for sure" that appellant's tires

made the tracks found at the scene, he answered "No sir, I can't say that those are the only

tires that could have made those tracks. . . . I can tell you that there is a similarity in the

physical shape and design as I pointed out. . . ."

Appellant then cross-examined Mr. Jumper for half a day. The cross-examination

was broken up by several bench conferences and lengthy voir dire examinations outside the

jury's presence because the State objected to the relevance of various lines of questioning,

such as that designed to expose Mr. Jumper's lack of expertise to identify the size, width, and

radius of a tire by reading a tire side-wall. (16) After previewing appellant's proposed cross-examination, the trial court allowed appellant to show that Mr. Jumper "wouldn't know how

to pick a tire off the shelf to sell it if he was in the business of selling tires in a tire store," or

"identify the make, manufacturer and the size of the shoes." Appellant eventually moved to

strike Mr. Jumper's shoe-comparison testimony because "[i]t's just visual. Any juror can

look at shoe tread, they can look at the shoe and they can do visual examination for whatever

purpose they deem." The trial court denied that motion and stated that

the same could be said about fingerprint identification. The Court believes

that someone trained in how to go about identifying, finding these factors,

while it is visual and presumably jurors have eyes that see in the same manner

that and expert can see, that that training and experience is beneficial in

knowing what to look for and how to compare it.

In sum, appellant made two distinct requests for relief; the first was the series of

objections after appellant's initial "voir dire to test [Mr. Jumper's] qualifications under 702,"

and the second was his motion to strike Mr. Jumper's shoe-comparison testimony because

Mr. Jumper's comparison was "just visual," something that any juror could do himself. (17)

On appeal, appellant argued that the trial court had abused its discretion in qualifying

Mr. Jumper as an expert (18) and that therefore, the admission of his testimony violated due

process. In addressing appellant's claim that the trial court abused its discretion in allowing

Mr. Jumper to testify, the court of appeals noted that, after the trial court overruled

appellant's objection to Mr. Jumper testifying as an expert,

the State continued with its direct examination of Jumper, eliciting opinions

from him, without further objection, that the shoe and tire prints photographed

at the scene and the impressions from Rodgers' shoes and tires had similar

characteristics and designs. After a weekend recess of the trial, Rodgers

conducted a lengthy and detailed cross-examination of Jumper, much of it

outside the presence of the jury, during which Rodgers made a strong

challenge to Jumper's general knowledge of tires and shoes. Rodgers'

" Daubert, Robinson and Kelly " issues on appeal are largely based on the

testimony developed during this cross-examination. Fatal to his contentions,

however, is that this testimony came after Jumper had already expressed his

opinions before the jury. (19)

The court then held, "Based on the evidence before the trial court at the time of its

ruling on Jumper's qualifications, no abuse of discretion has been shown." (20) The court also

stated that appellant's due-process claim (based on the alleged deficiencies in Mr. Jumper's

qualifications elicited during cross-examination) was inadequately briefed. (21)

We agree with appellant that the court of appeals was mistaken in "limiting the scope

of its analysis to those questions asked of Jumper initially" and in "excluding testimony

developed during subsequent cross-examination." (22) It is clear that the trial court understood

appellant to be continually challenging whether Mr. Jumper was qualified by knowledge,

skill, training, or education under Rule 702. His motion to strike was a repetition and

renewal of his original objection, based upon additional alleged deficiencies developed

during cross-examination. This is akin to a situation in which a suppression issue, litigated

in a pretrial suppression hearing, is re-litigated at trial. In that situation, an appellate court

that reviews the trial court's ruling considers not just the evidence from the motion to

suppress hearing, but the relevant trial testimony as well. (23)

Nevertheless, we need not remand this case to the court of appeals to re-review the

record before reaching a foregone conclusion. (24) This type of testimony has long been

admissible, in Texas and elsewhere, by either lay or expert witnesses. (25) Decades ago, we

noted that shoe print comparison testimony is generally admissible:

[T]he unbroken line of decisions of this state, and every other state with which we are

familiar, hold . . . that a witness who has made measurements of the tracks, and the

foot or shoe of the defendant, or who has made some such comparison between the

tracks and the shoes of the defendant, as placing the shoe in the tracks, or who has

detailed peculiarities in the tracks on the ground which correspond with the shoes, or

with the proven or admitted tracks of the defendant, that in either of these cases or

instances the witness may give his opinion as to the similarity of the tracks. (26)

And, as early as the days of the Model T, we said much the same about tire tracks:

There was evidence that appellant owned an automobile; that the tire on one side was

smooth and on the other a Diamond tread. There were found on the ground a short

distance from the scene of the homicide tracks made by an automobile with a smooth

tire on one side and a Diamond tread tire on the other. There was evidence that on the

same night that the homicide took place appellant was recognized driving his car. The

imprint made by the Diamond tread tire on the mud near the scene of the homicide

was preserved and introduced in evidence, and plaster cast of the tire on appellant's

car was also made and proof introduced that the tread on his car and the impression

on the mud were identical in size and shape. The fact that it was possible that the track

may have been made prior to the homicide, or that it might have been made by an

automobile other than that of appellant, would, under the circumstances, relate to the

weight of the testimony, but would not be legal ground for its rejection. (27)

The reason this kind of testimony is liberally allowed is that the field of tire and shoe

comparisons is not particularly complex, (28) the witness's opinions are not conclusive, (29) and

consequently, they are generally not pivotal to the resolution of the case. (30)

In this case, the jury heard descriptions of the physical comparisons upon which Mr.

Jumper based his conclusions. The exhibits relied on by Mr. Jumper for his physical

comparisons were admitted into evidence and were available to the jury during its

deliberations; the jury could make its own comparisons. It could also determine the weight

and credibility to give to Mr. Jumper's testimony and the likelihood that other individuals

with shoes and tires similar to appellant's might have made the prints found by the railroad

tracks. There was an abundance of other evidence pointing to appellant as the person who

murdered his wife. (31) Under the circumstances, we agree with the court of appeals that the

trial court did not abuse its discretion in concluding that Mr. Jumper was sufficiently

qualified to testify as an expert on shoe and tire print comparisons.

We affirm the court of appeals.

Delivered: May 3, 2006.

Publish

1.

Rodgers v. State , 162 S.W.3d 698, 708 (Tex. App.-Texarkana 2005).

2. Appellant did not explicitly renew his objection to Mr. Jumper's tire-comparison

testimony, but it is apparent from the context that the trial judge and the prosecutor clearly

understood appellant's objection as being based on the fact that Mr. Jumper was not an expert in

either tire or shoe identification. Because appellant's argument is precisely the same concerning

both areas and because the trial judge and prosecutor clearly understood (and the trial judge

rejected) appellant's same argument concerning both areas, the underlying purposes of Rule

103(a) were served. In this particular scenario, then, appellant's motion to strike Mr. Jumper's

shoe comparison testimony served to preserve his complaint concerning Mr. Jumper's tire

comparison testimony as well. See Tex. R. Evid. 103(a) (the opponent of evidence must state

"the specific ground of objection, if the specific ground was not apparent from the context").

3.

Rogers , 162 S.W.3d at 708 .

4.

Id.

5. Tex. R. Evid. 702.

6.

Alvarado v. State , 912 S.W.2d 199, 215-216 (Tex. Crim. App. 1995).

7.

See 3 Jack B. Weinstein & Margaret A. Berger, Weinstein's Evidence ¶ 702[02],

at 702-20 (1995) (noting that to exclude expert testimony when the subject is comprehensible by

the average juror "is incompatible with the standard of helpfulness expressed in Rule 702").

8. 3 David W. Louisell & Christopher B. Mueller, Federal Evidence § 382, at 640

(1979).

See Holloway v. State , 613 S.W. 2d 497, 501 (Tex. Crim. App. 1981).

9.

See Joiner v. State , 825 S.W.2d 701, 708 (Tex. Crim. App. 1992); Steve v. State , 614

S.W.2d 137, 139 (Tex. Crim. App. 1981). For this reason, appellate courts rarely disturb the trial

court's determination that a specific witness is or is not qualified to testify as an expert. Wyatt v.

State , 23 S.W.3d 18, 27 (Tex. Crim. App. 2000) ("The question of whether a witness offered as

an expert possesses the required qualifications rests largely in the trial court's discretion. Absent

a clear abuse of that discretion, the trial court's decision to admit or exclude testimony will not

be disturbed").

10.

Broders v. Heise , 924 S.W.2d 148, 153 (Tex. 1996); Perez v. State , 113 S.W.3d 819,

831-34 (Tex. App-Austin 2003, pet. ref'd).

11.

Wilson v. State , 185 S.W.3d 481 , ___ (Tex. Crim. App. 2006) (Johnson, J., concurring).

12.

State v. Oliver , 341 N.W.2d 744, 747 (Iowa 1983) ("A criminalist compared a bloody

shoe print found on a piece of paper in the victim's apartment with the sole of the defendant's

tennis shoe. The witness was permitted to testify over defendant's foundation objection that

defendant's shoe could have made the impression on the paper. . . . In this case the expert found

a similar tread pattern, similar shoe size, and twelve similar individual or manufacturing defects.

No dissimilarities were found. We find no abuse of trial court discretion in admitting the expert

opinion.").

13.

Cf. United States v. Everett , 972 F. Supp. 1313, 1319-20 (D. Nev. 1997) (police officer

was qualified to testify to Drug Recognition Evaluation protocol and to the probabilities that a

person is under the influence of drugs based upon that protocol, but could not testify that his

opinion was an established fact; noting that courts should consider to what use the opinion may

be put; "If the opinion or conclusion is proffered as expert testimony, going to and dispositive of

the ultimate issue, that is one use. If it is merely used to find probable cause" to arrest and

require a toxicological exam, "that is another use").

14.

Weatherred v. State , 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).

15. Among appellant's arguments and objections were the following:

* "Your Honor, I would like to come and challenge his qualifications. I didn't necessarily

want to do that in front of the jury. I don't have any other questions on my Daubert

challenge."

* "On paper, he looks good but when you look at the actual details, it's all about

fingerprints and that's what I just discovered because he listed all of his qualifications and

pretty much loads it together."

* "[I]t was only when I heard him list his qualifications I realized there might be an issue

and looked at his resume and it's rather weak."

* "My objection is he's not qualified under Daubert or Kelly . He doesn't meet the

qualifications by any level of standard. If he's going to testify to scientific testing that

he's familiar, well, maybe he's qualified to express an opinion on taking a tire print and

matching it to an individual tire or even a class of tires, I don't see how any way that a

grand total of 14 days of classroom training on any subject period would make anyone an

expert any time when that leaves his work qualifications which although respectful are

limited to two years of training through a supervisor and . . . on the job training. He's

already testified he's only testified twice, he's only made two reports."

* "He didn't get to 702. He doesn't meet the qualifications of 702 or 703."

16. Appellant justified his cross-examination by stating that

* "[T]his man has come into this courtroom and declared himself to be a Daubert qualified

expert in tire identification. He can no more identify a tire than I can. . . . I'm identifying

his lack of qualification ."

* "[H]e's not an expert. He doesn't need to be on here under 703. If the jury can look at

that tire and look at that print, then they don't need his testimony and he doesn't have

anything unique and he can't tell us how to reference the tire."

* ". . . the question is, is he qualified to get to that question."

* "[H]e doesn't have the qualifications necessary to identify a tire."

17. As explained in note 2,

supra , we conclude that the trial judge and prosecutor both

understood appellant's motion to strike as going to Mr. Jumper's qualifications to make any type

of imprint comparison because he was not an expert in either tire or shoe identification .

18. Among appellant's assertions were the following:

* "Mr. A. J. Jumper fails every test required by Daubert , Robinson and Kelly . . . "

* "Mr. Jumper never attended college."

* "His ignorance of tires and shoes is staggering."

* "Here is a list of what Mr. A.J. Jumper did not know about tires" (listing 10 things)

* "He knew nothing about shoes."

* "Respectfully, Mr. Jumper comes close to being a fraud. It is obvious how Mr. Jumper

got his job. Tired of modest salary at the Sheriff's Department, he sold himself to SWIFS

by assuring that he would be able to generate fees not only by billing out at as a

fingerprint expert, but also . . . as an available shoe print and tire print expert. No one

bothered to line up some old tires or shoes and ask him a few questions. That he would

enter a courtroom, make serious claims in a first degree felony murder case, and bill his

time seems almost criminal."

Appellant devotes considerable time in his brief to issues such as tire codes, widths, sizes, and

whether they are radial tires or bias-ply tires. Appellant is apparently confusing expertise in tire

print identification (i.e., "this tire track imprint was made by a 2005 19" Goodyear radial tire with

a code number of P215R78-15") with tire print comparison (i.e., "although I have no idea what

specific brand, model, or size of tire made this track, the tire prints made by that tire share many

characteristics with and are similar to the tire prints made by the defendant's tire"). Mr. Jumper

did not attempt to identify the specific type or brand of tire or shoe that made the imprints on the

muddy ground; his testimony was limited to comparing the latent shoe and tire imprints at the

scene with imprints left by appellant's shoes and tires.

19.

Rodgers , 162 S.W.3d at 707 .

20.

Id. at 708 .

21. The court of appeals stated,

Rodgers further alleges that Jumper's testimony as an expert witness violated the

Due Process Clause of the United States Constitution and that Rodgers was

thereby harmed. Rodgers does not provide any authority or argument on how his

due process rights were violated. His argument centers on the alleged deficiencies

in Jumper's qualifications elicited during cross-examination. He argues and cites

cases addressing Rule 702 and the Daubert/Kelly line of cases, but offers no

argument or authority why such purported error amounts to a due process

violation. We find this point of error inadequately briefed and decline to address

it. See TEX. R. APP. P. 38.1(h); Vuong v. State , 830 S.W.2d 929, 940 (Tex.

Crim. App. 1992).

Id. We did not grant review of the court of appeals's conclusion on this issue and therefore

express no opinion on that question.

22. In its brief, the State forthrightly admits that it may be responsible for the court of

appeals's inadvertent mistake because it had argued, in that court, that appellant failed to offer

any further challenges to Mr. Jumper's qualifications after his initial objection was overruled.

23.

Rachal v. State , 917 S.W.2d 799, 809 (Tex. Crim. App. 1996) ("in determining whether

a trial court's [suppression] decision is supported by the record, we generally consider only

evidence adduced at the suppression hearing because the ruling was based on it rather than

evidence introduced later. . . .However, this general rule is inapplicable where, as in this case, the

suppression issue has been consensually re-litigated by the parties during trial on the merits")

(citations omitted).

24.

McDonald v. State , 179 S.W.3d 571, 580 (Tex. Crim. App. 2005) (Cochran, J.,

concurring).

25. E. LeFevre, Annotation,

Footprints as Evidence , 35 A.L.R.2d 856 , *2 (1954-Updated

July 2005 ) ("It would seem to be a generally accepted proposition that for the purpose of

identifying the accused as the guilty party, evidence of the correspondence of the accused's shoes

or tracks, or those of his horse, to tracks found near the scene of the crime is admissible"); R.P.

Davis, Annotation, Admissibility of Evidence as to Tire Tracks , 23 A.L.R.2d 112 , *22

(1952-Updated August 2003) ("In prosecutions for various crimes intentionally committed

testimony or evidence that tire marks similar to those on defendant's car were observed at the

scene of the crime has been held admissible for the purpose of connecting defendant with the

crime").

26.

Martinez v. State , 330 S.W.2d 370, 373 (Tex. Crim. App. 1960) (quotations omitted);

see also Luster v. State , 85 S.W.3d 865, 868 (Tex. App-Eastland, 2002, pet. ref'd) (shoe-print

comparison evidence).

27.

Haley v. State , 209 S.W. 675, 676 (Tex. Crim. App. 1919); see also Wilson v. State ,

863 S.W.2d 59, 62-63 (Tex. Crim. App. 1993) (tire-tread-impression comparison evidence).

28.

See State v. Jeter , 609 So. 2d 1019 (La. Ct. App. 2d Cir. 1992) (trial court did not err in

qualifying fingerprint expert as an expert in footprint identification, based on seven years'

experience in crime-scene detection and self-education in shoe-print identification, although

detective's opinion-based on comparison between size and basic overall pattern of shoes worn

by defendant and photographs and measurement of shoe prints taken at burglary scene-could

properly have been submitted as that of a lay witness).

29.

See Schleeter v. Commonwealth , 290 S.W. 1075, 1080 (Ky. 1927):

In view of the evidence found herein that appellant and his co-defendants used

two Cadillac touring cars and a Marmon touring car in transporting the whiskey

they had stolen from the home of Mr. Guthrie to that of the witness, Herbert

Ballard, it was competent to admit the evidence that a large Cadillac touring car,

with tires having treads similar to the impression of the treads found in the tracks

of one of the cars that carried the whiskey from Guthrie's home, was found at the

home of the mother of appellant, Willard Schleeter, where he lived. It was a

circumstance, though slight, tending to connect appellant with the commission of

this offense.

Id. (emphasis added).

30.

See, e.g., Hurrelbrink v. State , 46 S.W.3d 350, 351-57 (Tex. App.-Amarillo 2001, pet.

ref'd) (holding that admission of expert testimony on footprint comparisons was admissible

under Daubert and Kelly ; noting that both State and defense experts "were in agreement that

footprint analysis is a valid science and could be used for the purposes of identification," and

upholding trial court's ruling that expert could not testify that "no two individuals can ever have

the same identical footprint"; noting that there was ample other circumstantial evidence tying

defendant to the crime and that expert did not testify that he could not state that footprints

"matched" with same certainty as can be said of fingerprints).

31.

See Rodgers , 162 S.W.3d at 702-05 (setting out evidence, including DNA analysis, that

proved, beyond a reasonable doubt, that appellant was the person who murdered his wife).