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Editor: Colin Miller
Univ. of South Carolina School of Law

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Wednesday, July 21, 2010

You'll Shoot Your Eye Out: Texas Case Involving BB Gun Stickup Reveals Basics Of Texas Rule Of Evidence 705(b)

Federal Rule of Evidence 705 provides that

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Texas Rule of Evidence 705(a) is similar. It provides that

The expert may testify in terms of opinion or inference and give the expert's reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.

Texas also, however, has Texas Rule of Evidence 705(b), which provides that

Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.

And, as the recent opinion of the Court of Appeals of Texas, Amarillo, in Blackburn v. State, 2010 WL 2802186 (Tex.App.-Amarillo 2010), makes clear, Rule 705(b) is mandatory.

In Blackburn, Charles Blackburn, Jr. was convicted by a jury of two counts of aggravated robbery, with an affirmative finding on use of a deadly weapon. The prosecution alleged that Blackburn, Jr. committed the robbery with a B.B. gun, which their expert witness, Chris Herndon, claimed qualified as a deadly weapon.

Early during Herndon's testimony, the State offered Exhibit No. 232, a receipt for a BB gun purchased for testing. The gun was identical to the one used in the robberies. Defense counsel requested, and was permitted, an opportunity to take Herndon on voir dire regarding the purchase of the BB gun. See Tex.R. Evid. 705(b). After voir dire, defense counsel lodged a relevancy objection to Exhibit No. 232. The trial court sustained the objection and disallowed introduction of the receipt.

When the State then offered Exhibit No. 233, a printout from the website of the BB gun manufacturer, Crosman Products, defense counsel objected “to hearsay as to anything that might be in these documents.” Before the trial court ruled, the prosecutor asked Herndon if the company specifics had aided him in his testing and whether the exhibit would aid the jury in understanding his testimony. After Herndon answered affirmatively, the State offered Exhibit No. 233 and defense counsel again objected on hearsay grounds.

In an ensuing colloquy, defense counsel asked the trial judge if he could take Herndon on voir dire regarding Exhibit 233, but the judge refused to allow voir dire.

After he was convicted, Blackburn, Jr. appealed, claiming, inter alia, that the trial court committed reversible error by precluding this latter voir dire. The Court of Appeals of Texas, Amarillo, agreed, finding that

Rule 705(b) of the Texas Rules of Evidence is clear. If a criminal defendant timely requests to conduct voir dire examination of an expert, the trial court shall permit him to question the expert on the underlying facts or data upon which the opinion is based....Rule 705 permits an abbreviated method of laying the groundwork before asking for an expert's opinion....As noted by the Court of Criminal Appeals, "the focus of Rule 705(b) is to prevent the jury from hearing the underlying facts and data which might ultimately be ruled as inadmissible."...

Rule 705(b) is mandatory....A trial court's denial of a timely and proper request constitutes error...In such a case, a reviewing court is required to decide whether the trial court's error was so harmful as to require reversal.

The appellate court, however, found that the trial court's error was not so harmful as to require reversal. According to the court, two bank tellers testified that they feared death or serious bodily injury from the (BB) gun, which was sufficient to establish that the gun was a deadly weapon. The court found this to be the case because "[e]ither expert testimony or lay testimony may be sufficient to support a deadly weapon finding by a jury."

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/07/705--blackburn-v-statenot-reported-in-sw3d-2010-wl-2802186texapp-amarillo2010.html

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