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Adrian BRANTLEY, Appellant v. The STATE of Texas, Appellee
A jury convicted appellant, Adrian Brantley, of the felony offense of manslaughter and sentenced him to fifty years' imprisonment. See Tex. Penal Code Ann. § 19.04(a) (“A person commits an offense if he recklessly causes the death of an individual.”). In one issue, appellant contends that the trial court erred by denying his motion to exclude testimony about data retrieved from the crash data recorder in appellant's vehicle.
Early on the morning of February 18, 2016, appellant was driving a late-model Dodge Charger with a female passenger and traveling northbound on Highway 288 in Harris County when the vehicle left the road, drove 516 feet on the median, crashed through two concrete barriers, and landed upside down on a hike-and-bike trail below the barriers.1 A nearby homeless man heard the crash but did not see it, and he called 911 to report it. First responders arrived, removed appellant from his car, and took him to Ben Taub Hospital. Appellant's passenger died at the scene.
Houston Police Department (HPD) Officer Jaime Gaona, who was assigned to HPD's vehicular crimes division, arrived on the scene and was the primary lead investigator. Gaona began his investigation by starting at appellant's upside-down vehicle and walking back to the barriers above, where he found debris from the crash. Gaona followed tire marks in the grass from the barriers through which appellant's vehicle had crashed back to the road where the tire marks ended. Gaona saw no signs of braking in the grass, such as shredded or burnt grass or dirt. Gaona determined from the amount of damage to appellant's vehicle and to the barriers that appellant was traveling at a high speed.
HPD Officer Jason Hill also responded to the scene. Hill testified that he used a tool called a total station, which he described as a surveyor's tool that is used to measure distances and map out various points that can then be used to recreate the scene on paper. However, Hill did not diagram the scene because, while he was investigating the scene, a second unrelated vehicle crashed and “grazed” him, and he was transported to a hospital and was out of work for a week. Officer Gaona used Hill's total station measurements and determined that appellant's vehicle veered off of Highway 288 and traveled 516 feet before hitting the barriers and then crashing onto the trail below. Gaona also drew a scaled diagram of the scene.
HPD Detective Reginald Veal, who at the time was a ten-year veteran of HPD and a nine-year veteran of HPD's vehicular crimes division, assisted with the investigation in the following days.2 Veal was trained in crash investigations and reconstruction and is one of five HPD officers who can reconstruct vehicle accidents. The day after appellant's crash, Veal obtained a warrant to retrieve data from appellant's vehicle's airbag control module, or “black box.” Veal then went to the vehicle storage lot, to which appellant's vehicle had been towed after the crash and downloaded data from the vehicle's black box.
According to Veal's trial testimony, the purpose of a black box is to determine whether to deploy airbags in a vehicle. The black box has an accelerometer inside that detects rapid changes in velocity.3 If the black box detects a rapid change in velocity forward or backward, it will deploy the front airbags. If the black box detects a significant change in velocity from the side, it will deploy side or side-curtain airbags. In addition, and importantly for our purposes, when the black box's accelerometer detects a rapid change in velocity that is significant enough to deploy an airbag, the black box permanently records certain vehicle data every tenth of a second for the preceding five seconds before the velocity change and airbag deployment.4 The black box records data such as the date and time of the airbag deployment, whether the driver and front passenger seatbelts were buckled, the speed of the vehicle in miles per hour, the percent of throttle and brake applied, engine revolutions per minute (RPM), the degree of steering wheel input to the left and right, and the tire pressure of all four wheels. The data also shows the vehicle's odometer at the time of airbag deployment, which in this case indicated that appellant's late-model vehicle had 1,466 miles on it. This data can be downloaded onto a computer in a readable portable document format (PDF) report.
Appellant was indicted for manslaughter as a result of the crash. See Tex. Penal Code Ann. § 19.04(a). Prior to trial, appellant filed a motion to exclude the black box data report on the grounds that its data was unreliable, was not retrieved from a qualified person, and that it violated appellant's Sixth Amendment right to confront “each and every scientist involved in the State's recording analysis.” Appellant's motion also requested a hearing on the admissibility of the data report before the State could introduce it to the jury.
At appellant's trial, prior to Detective Veal's testimony, the trial court held a hearing on Veal's testimony about the black box data evidence. During the hearing, the State argued that it did not intend to offer opinion testimony from Veal regarding reconstruction of appellant's crash. Instead, Veal would only to interpret the data report that he obtained from the black box. Although the trial court understood that Veal might not offer expert opinion testimony, the trial court nevertheless concluded that Texas Rule of Evidence 702, which governs expert testimony, applied because of the technical issues involved.
During voir dire, Veal testified that he was trained in accident reconstruction and downloading and interpreting data from black boxes, and that his training included a “couple” of eighty-hour courses in accident investigation, an eighty-hour course in crash reconstruction, a forty-hour course in pedestrian reconstruction, and an eighty-hour course on black boxes. Veal also attended a “wrecks conference” in 2016 and attended other reconstruction courses involving heavy motor vehicles and motorcycles. Veal estimated that he had attended between eight and ten classes or seminars in his nine years in the vehicular crimes division. In those same nine years, Veal estimated that he had downloaded black box data from at least fifty vehicles. Veal did not have any training or knowledge about the manufacturing process of black boxes, their error rate, or the manufacturer's standards to ensure accurate data reporting. He was trained, however, about the basic functioning of the black box and how to read and interpret the data report downloaded from the black box.
Regarding the theories he used to reconstruct vehicle crashes, Veal testified, “Everything in reconstruction is based on ․ energy and physics.” Veal testified that he believed appellant's black box was properly functioning because the airbags deployed and because data from the five seconds prior to the crash was hard written into the computer. Veal testified that he has never had data from a black box that is different from what a scene investigation reveals and that the photos and diagrams he reviewed from the scene of appellant's crash corroborated the reported data from the black box. Veal did not perform a crash reconstruction analysis on appellant's crash because of the difficulty in accounting for the energy lost from two separate events: when the vehicle hit the initial barriers and when it landed upside-down on the trail below the highway. Veal testified that when a vehicle is crushed, an investigator can usually look at how much energy it takes to distort the frame of the vehicle, which was impossible to measure in this case because of the impact from the two separate events. Had there only been one crash, Veal could and would have performed a crash analysis.
Veal admitted that he does not know about the manufacturing process of the black box, whether the process varies between manufacturers, what specifications each manufacturer requires from their black boxes, how the black boxes prevent errors, or what standards manufacturers use to ensure the accuracy of black boxes. Veal also admitted that, while the black box data reported appellant's vehicle's speed for the five seconds preceding his crash, he could not say the specific speed at which appellant's vehicle was traveling when it left the highway.
The trial court determined that Detective Veal was qualified by his background, training, and experience to testify about the data collected from the black box, that his testimony was grounded in a valid scientific theory, and that his testimony was reliable and applied a proper methodology. The trial court also determined that Veal's testimony was probative and would assist the jury in determining issues in the case. The trial court admitted Veal's testimony.
In his testimony to the jury, Veal testified about his experience at HPD and his education, training, and knowledge in crash investigations and black box data retrieval. Veal testified that he obtained a warrant to download the data from the black box in appellant's vehicle, and that he downloaded it. He also testified that he reviewed photographs from the scene and a scene diagram created from evidence at the scene and measurements from the total station device.
Veal testified that appellant's late-model vehicle had 1,466 miles on it, and he explained the basic function of a black box. Veal testified that the black box senses rapid changes in velocity to determine whether to deploy an airbag by constantly recording data from its accelerometer and from the vehicle, including the vehicle's speed, throttle, gear position, and steering input. Veal explained that a computer in the black box constantly records data, overwriting prior data when the black box detects no velocity change significant enough to deploy an airbag. But once the black box detects a rapid change in velocity that is significant enough to deploy an airbag, the black box's computer permanently records the data from the previous five seconds at tenth-of-a-second intervals. Veal also testified about the procedure he used to download the data from the black box, which is to connect a manufacturer's data retrieval tool to the black box and to connect the tool to his laptop. The tool then inputs the data into the laptop via a PDF report.
Detective Veal also explained the information that appeared in the PDF data report, which provided the vehicle identification number for appellant's car, the date the data was retrieved from the black box, the crash date, and the version of the data retrieval tool. The data also included the speed, steering input, gear, and braking, and it indicated whether the vehicle's anti-lock braking system was activated. The data also showed that the driver's seatbelt was buckled, but the passenger's seatbelt was not buckled.
Veal testified that, in this case, the black box permanently recorded two events: one when the vehicle rapidly decelerated from hitting the first concrete barrier, which caused the front airbag to deploy, and the second likely from flipping over, which registered a rapid change in lateral velocity and caused the side-seat and side-curtain airbags to deploy.5 Both events were permanently recorded and, because the two deployments occurred quickly and close in time to one another, some of the information from each deployment's previous five seconds of recorded data overlapped.
Veal also testified that much of the data, such as speed, steering input, and seatbelt data, was verified by photographs and diagrams of the scene. For example, the data showed that, at the time of the crash, the driver was wearing a seatbelt but the passenger was not. This data was supported by the testimony of Houston Fire Department Captain Steve Stulce, one of the first responders to the scene of appellant's crash, who testified that appellant was buckled into the driver's seat and that his seat belt had to be cut to remove him from the vehicle. Stulce further testified that the complainant, who was likely in the passenger seat and whose seatbelt was not buckled, was found cradled up on the driver's floorboard. Veal also testified that the steering input data was consistent with someone's turning left and then quickly back to the right to correct the previous left steering input that likely caused the vehicle to leave the roadway.
Veal also testified that the black box data showed that appellant's vehicle traveled at 90 miles per hour at the beginning of the five-second period preceding the crash into the barrier, briefly accelerated to a maximum of 98 miles per hour, and then gradually decelerated to 62 miles per hour immediately before the first event. Veal also testified about the scene diagram, which showed that appellant's vehicle left the roadway and then traveled “around 517” feet before hitting the barriers. Furthermore, Veal testified that the amount of force it takes to break concrete barriers is consistent with the black box's recorded impact speed of 62 miles per hour immediately before appellant's car hit the barriers, causing a rapid change in velocity and deploying the airbags. Veal testified that a vehicle can decelerate when it leaves the road and drives onto the grass, which is consistent with the black box data. He also testified that the impact of the barriers would have been sufficient to deploy the front airbags. Moreover, the velocity change in the vehicle flipping over and landing upside-down on the trail is consistent with deploying the side airbags.
Veal also testified about the feet per second and the overall distance that a vehicle can travel at different speeds. Because appellant's vehicle traveled 516 feet from the road to the barriers, which was verified by surveying the tire marks in the grass, appellant would have been traveling between 60 and 70 miles per hour.6 Veal further explained that this was consistent with the black box data showing that appellant's vehicle traveled at 90 and 98 miles per hour in the five seconds before the crash because the black box could have begun recording data prior to appellant's vehicle leaving the roadway, at which point the recorded data showed deceleration.
On cross-examination, defense counsel challenged Veal's knowledge of the accelerometer inside the black box. Veal admitted that he did not know the manufacturer of the accelerometer, how it is manufactured, its error rate, or Chrysler's black-box manufacturing habits. Veal also acknowledged that the accelerometer has a mechanism similar to the mechanism in a cellular telephone that tells the phone when to go dormant, that there are instances when a phone does not go dormant as it should, and that black-box accelerometers are not “always spot on.” However, Veal denied that there was any indication in any of the evidence that the black box did not function properly. To the contrary, Veal testified that the data was confirmed by other evidence at the scene.
After the jury convicted appellant of manslaughter, this appeal followed.
Admissibility of Witness Testimony
In his sole issue on appeal, appellant contends that the trial court erred by allowing Detective Veal to testify about the data from the black box because he is not qualified to opine on the science and technology behind the black box's recording of data.7
A. Standard of Review
We review a trial court's decision to admit expert testimony for an abuse of discretion. E.g., Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019) (citations omitted); Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018) (citations omitted). “The trial court abuses its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably.” Rhomer, 569 S.W.3d at 669 (citation omitted). A “trial court's decision to admit or exclude evidence will be upheld as long as it was within the ‘zone of reasonable disagreement.’ ” Beham, 559 S.W.3d at 478 (citations omitted).
B. Governing Law
Expert testimony is governed by Texas Rule of Evidence 702, which provides, “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue.”8 Tex. R. Evid. 702. Whether expert testimony will assist the trier of fact is a threshold issue for the trial court to determine. E.g., Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000) (“[T]he trial court's ‘first task is to determine whether the testimony is sufficiently reliable and relevant to help the jury in reaching the accurate results.’ ”) (quoting Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992)). Before admitting expert testimony, the trial court must determine that the testimony is a proper “fit” with the facts of the case, i.e., that the testimony is “sufficiently tied to the facts to meet the simple requirement that it be ‘helpful’ to the jury.” Id. (quoting Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996)).9
An expert may be qualified by knowledge, skill, experience, training, or education to testify in the form of an opinion or otherwise. Tex. R. Evid. 702. “ ‘A witness must first have a sufficient background in a particular field, but a trial judge must then determine whether that background ‘goes to the very matter on which [the witness] is to give an opinion.’ ’ ” Rhomer, 569 S.W.3d at 669 (alterations in original) (quoting Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006)). “ ‘Fit’ is a component of qualification, and ‘the expert's background must be tailored to the specific area of expertise in which the expert desires to testify.’ ” Id. (quoting Vela, 209 S.W.3d at 133). The proponent of the expert's testimony has the burden to show an expert is qualified. Id.
When reviewing an expert's qualifications to offer opinion testimony, appellate courts consider three factors: (1) whether the field of expertise is complex; (2) whether the expert's opinion is conclusive; and (3) whether the area of expertise is central to the resolution of the lawsuit. Id. at 669–70 (citing Rodgers v. State, 205 S.W.3d 525, 528 (Tex. Crim. App. 2006)). An expert's qualifications must be greater for more complex fields of expertise and for more conclusive and dispositive opinions. Id. at 670 (citing Rodgers, 205 S.W.3d at 528).
The test for reliability of an expert's opinion differs depending on whether the testimony is based on hard science or soft science. Hard sciences are “areas in which precise measurement, calculation, and prediction are generally possible,” and “include mathematics, physical science, earth science, and life science.” Weatherred v. State, 15 S.W.3d 540, 542 n.5 (Tex. Crim. App. 2000). Soft sciences, on the other hand, “are generally thought to include such fields as psychology, economics, political science, anthropology, and sociology.” Id. (citation omitted). “The distinctions between hard and soft sciences may be blurred, and the reliability inquiry is flexible.” Rhomer, 569 S.W.3d at 671. The party offering expert testimony bears the burden to establish some foundation for the reliability of the expert's opinion. E.g., Coble v. State, 330 S.W.3d 253, 275–76 (Tex. Crim. App. 2010).
The test for reliability of soft-science expert testimony asks whether: (1) the field of expertise is a legitimate one; (2) the subject matter of the expert's testimony is within the scope of that field; and (3) the expert's testimony properly relies upon and/or utilizes the principles involved in the field. Rhomer, 569 S.W.3d at 671 (citing Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999)). “Reliability centers on the principles and methodology, and not on conclusions an expert generates by using those principles or methodology.” State v. Dominguez, 425 S.W.3d 411, 422 (Tex. App.—Houston [1st Dist.] 2011, pet. ref'd) (citations omitted). An expert's opinion is inadmissible if it is “connected to existing data only by the expert's own assertions.” Id. (citation omitted). If an analytical gap exists between the data and the expert's opinion, the opinion should be excluded as unreliable. Id. (citation omitted).
Appellant concedes that Detective Veal was qualified to retrieve the black box data, but he challenges Veal's knowledge of the science and technology underlying the black box's ability to record data because Veal did not know the error rate of the black box data or the scientific principles behind the functioning of the black box's accelerometer. The State responds that the process Veal used to interpret the data is not complex, his testimony was not conclusive or dispositive, and therefore he was qualified to offer his opinions.10
Veal testified that he received training in an 80-hour course on the black box in addition to an 80-hour course in crash reconstruction. He also testified that he had attended between eight and ten seminars during his nine-year tenure in HPD's vehicular crimes division and had experience downloading black box data from more than fifty vehicles. Veal admitted that his expertise on the functioning of the black box was limited to his knowledge that the black box has its own accelerometer that detects rapid velocity changes for purposes of deploying a vehicle's airbags.
We agree with the State that Veal's field of expertise—downloading black box data—is not particularly complex. Rhomer, 569 S.W.3d at 669–70 (citing Rodgers, 205 S.W.3d at 528). Veal testified that he uses a manufacturer-provided tool to download data from the black box, which creates a report in a PDF format. The black box retrieval report contains a section of general information with definitions and points users to a “CDR Help File Glossary” for additional definitions. The report plainly states whether the vehicle is equipped with certain airbags and other safety devices by listing “yes” or “no.” The report also includes a section on “Pre-crash Data,” upon which Veal primarily relied for his testimony and which shows for every tenth of a second for the five seconds preceding a crash the following information: “Time Stamp,” “Speed, Vehicle Indicated (MPH) [km/h] ),” “Accelerator Pedal, % Full,” “Engine Throttle, % Full,” “Engine RPM,” and “Steering Input (deg[ree] ).” Each of these column labels is defined in the first few pages of the report in a section titled, “Pre-crash Data,” which corresponds with that section of the report. For example, the report defines “Accelerator Pedal, % Full” as “this indicates the actual position of the accelerator pedal.” “Speed, Vehicle Indicated” is defined as “This indicates the average of the drive wheels. The accuracy of the recorded Speed, Vehicle Indicated will be affected if the vehicle had the tire size or the final drive axle ration changed from the factory build specifications.” And the report defines “Steering Input” as “Steering wheel turned counter clockwise (left turn) is positive steering input.”
While the average juror likely could read and interpret the black box data report, particularly with the aid of the report's definitions, expert testimony can assist a jury when the expert's knowledge is greater than that of the average person. See Davis v. State, 313 S.W.3d 317, 350 (Tex. Crim. App. 2010) (“An expert must possess some additional knowledge or expertise beyond that possessed by the average person, but the gap need not necessarily be monumental.”) (citing Rodgers, 205 S.W.3d at 527–28); see also Edwards v. State, 107 S.W.3d 107, 115 (Tex. App.—Texarkana 2003, pet. ref'd) (“Expert testimony assists the trier of fact when the jury is not qualified to ‘the best possible degree’ to determine intelligently the particular issue without the help of the testimony.”) (citation omitted).
Detective Veal's testimony was limited to his interpretation of the data from the black box data report, which is plainly conveyed with definitions to assist the report's reader.11 The only testimony Veal offered about the functioning of the black box was general: that it has an onboard accelerometer that detects rapid changes in velocity to determine whether to deploy an airbag and when such a change in velocity sufficient to deploy the airbag occurs, certain data is permanently recorded on the black box. Contrary to appellant's arguments on appeal, Veal did not testify about how the accelerometer works or its reliability beyond the fact that he believed it was functioning properly because the airbags deployed, which fulfilled the primary function of the black box, and because the data was corroborated by other evidence gathered at the scene. We thus conclude that Veal's field of expertise is not complex.
Nor were Veal's opinions conclusive. See Rhomer, 569 S.W.3d at 669–70 (citing Rodgers, 205 S.W.3d at 528). He testified that, at the beginning of the five-second period preceding appellant's vehicle's crash into the first barrier, the black box data showed appellant's vehicle was traveling at 90 miles per hour, it briefly accelerated to 98 miles per hour, and then it decelerated. He also testified that the black box data was consistent with other data collected at the scene, including the measurement of the tire marks in the grass that showed that appellant's vehicle had traveled 516 feet from the roadway to the barrier. Veal used simple mathematics to calculate that appellant's vehicle was traveling between 60 and 70 miles per hour after it left the roadway but before it hit the first barrier. The black box data was consistent with this calculation because, according to Veal, it was probable that the black box began recording appellant's vehicle at speeds of 90 miles per hour and more because the five-second period likely began before appellant's vehicle left the roadway. Veal did not offer a conclusive opinion on the speed of appellant's vehicle or offer an opinion on, for example, whether the crash could have been avoided had appellant traveled at a slower speed. See Turner v. State, 435 S.W.3d 280, 284 (Tex. App.—Waco 2014, pet. ref'd) (holding evidence of causation sufficient based in part on accident reconstruction expert testimony that, based on calculations and data, including from black box, appellant's vehicle could have avoided collision if he was traveling 74 miles per hour or less). Veal testified only about the basic functioning of the black box and what its data reported, and he tied the reported data to evidence gathered at the scene of appellant's crash. His testimony was not conclusive.
Finally, Veal's testimony was not dispositive or central to resolution of the case. See Rhomer, 569 S.W.3d at 669–70 (citing Rodgers, 205 S.W.3d at 528). He admitted that he did not know the science involved in the black box accelerometer's functioning and that he did not know the error rate of the data. Regarding his testimony about the speed of appellant's vehicle, other evidence supported that appellant was speeding. Officer Gaona testified that he saw no signs of braking in the grass, such as shredded or burnt grass or dirt. And based on the amount of damage to appellant's vehicle and the barriers, Gaona testified that appellant was speeding. In addition, the jury had photographs of appellant's vehicle, the barriers it hit, and the tire marks it left in the grass. Thus, Veal's testimony was not dispositive. C.f. Rhomer, 569 S.W.3d at 670 (“[The accident reconstruction expert's] opinion was dispositive because there was no other evidence about the central issues․”).
Veal's field of expertise was not complex and his opinions were not conclusive or dispositive. See id. at 670 (“Greater qualifications are required for more complex fields of expertise and for more conclusive and dispositive opinions.”) (citing Rodgers, 205 S.W.3d at 528). Therefore, we hold that Detective Veal was qualified to testify about the basic functioning of the black box and the data that he retrieved from it.
Appellant argues that Veal's testimony was not reliable because the State did not produce evidence showing that the black box data was generally reliable or reliable in this specific case. The State responds that this Court may take judicial notice of the reliability of the scientific theory or methodology based on cases outside of Texas, and it further responds that it presented other evidence corroborating the black box data.12
On appeal, appellant relies on the reliability test for hard sciences set forth in Kelly v. State. See Rhomer, 569 S.W.3d at 671 (citing Kelly, 824 S.W.2d at 573). In this case, Veal's testimony about the black box did not rely on precise measurement, calculation, or prediction. Therefore, we evaluate the reliability of Veal's testimony under the soft-science standard set forth in Nenno v. State. See Rhomer, 569 S.W.3d at 671 (“We agree with the court of appeals that the Nenno [soft-science] test applied to [the expert's] testimony because his opinions were based on his training and experience in evaluating physical evidence at crash scenes more than on a hard scientific inquiry such as calculating a vehicle's pre-impact speed.”); see also Dominguez, 425 S.W.3d at 423 (applying Nenno test “when addressing fields that are based upon experience or training as opposed to scientific methods”).
As a nine-year veteran of HPD's vehicular crimes division, Veal's field of expertise is accident reconstruction. See Rhomer, 569 S.W.3d at 671 (citing Nenno, 970 S.W.2d at 561). Veal offered testimony about appellant's vehicle's crash, the basic functioning of a black box, the process of retrieving data from the black box, and interpreting the data report. All of this testimony is part of reconstructing an accident. “[T]he field of accident reconstruction is a legitimate one.” Id. at 671–72. We likewise conclude that Veal's field of expertise is legitimate.
Veal testified within the scope of his expertise. See id. at 671 (citing Nenno, 970 S.W.2d at 561). He explained the basic process of how a black box functions in general and in this particular case. He testified about the procedure he used to retrieve the black box data, which appellant admittedly does not challenge. And Veal testified about his interpretation of the black box data report. Veal admitted that he did not know all of the nuances behind the functioning of the black box or its accelerometer and that he did not know the error rate of the black box data, except that the black box functioned as it should have because it deployed the airbags and that the data was corroborated by other evidence. Veal did not offer opinions in these areas except that the data that he reviewed from the scene confirmed his interpretation of the black box data. Veal's testimony did not stray from accident reconstruction, including use of the black box data, and thus the subject matter of Veal's testimony was within the scope of his field of expertise.
Veal also properly relied on and utilized principles involved in the field. See id. (citing Nenno, 970 S.W.2d at 561). During voir dire, when defense counsel asked Veal about his training on the scientific basis for how the black box itself works, Veal explained that it is based on the accelerometer inside the black box that “sens[es] the change of velocity.” He also explained that when the black box detects a rapid change in velocity from the front, the black box deploys front airbags. And when the black box detects a rapid change in lateral velocity, the black box deploys side or side curtain airbags. Veal was also able to confirm that the data reported by the black box was accurate based on evidence collected at the scene, including the vehicle's breaking the concrete barrier, which would have required significant speed, as well as the tire marks in the grass and the condition of appellant's vehicle.
We do not believe that Veal's lack of knowledge of the manufacturing process of the black box and its accelerometer or of the black box's error rate affected the reliability of his testimony. Veal tied the black box data into evidence obtained at the scene, which supported his conclusions. See TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 240 (Tex. 2010); cf. Dickerson v. State Farm Lloyd's Inc., No. 10-11-00071-CV, 2011 WL 3334964, at * 11 (Tex. App.—Waco Aug. 3, 2011, no pet.) (concluding expert's opinions were unreliable because expert “admitted that his calculations vary wildly from information obtained from the black box in [defendant's] sedan, and he does not explain the variation or, in other words, he failed to bridge the analytical gap between the facts and his conclusions. In addition, much of [the expert's] testimony is against the great weight of the evidence contained in the record”). Veal also testified that appellant's vehicle was late model with fewer than 2,000 miles on it, which further supports the accuracy of the black box data.
On this record, we cannot say that an analytical gap exists between the data and Veal's opinions or that any such gap is connected only by Veal's assertions. The principles and methods Veal used to explain the functioning of the black box were adequately acquired through his training. Veal's testimony was not conclusory or subjective. See Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019) (“A conclusory statement asserts a conclusion with no basis or explanation.”).
For the first time on appeal, appellant challenges the relevance of Veal's testimony. Appellant argues that Veal's knowledge of how a black box records data “did not extend to the theories about the technology, including what prevents it from misstating the speeds and error rates.” Appellant also argues that, when defense counsel spoke to Veal outside of the courtroom, Veal stated that he intended to testify that he believed the higher rates of speed that appeared in a graph in the black box data report, which is speculative because the opinion was not supported by the science and technology underlying the black box data. Veal did not offer this testimony at trial.
We agree with the State that appellant failed to preserve this issue for appellate review. Tex. R. App. P. 33.1. Appellant did not object to Veal's testimony on the basis of relevance either in his motion or in open court. Moreover, appellant's arguments about Veal's lack of knowledge regarding error rates and Veal's intended testimony—which was not presented to the jury—go to the reliability of Veal's testimony, not its relevance. We have already concluded that Veal's testimony was reliable. We also conclude that Veal's testimony was relevant to the issue of whether appellant engaged in reckless conduct, in part by speeding.13
We affirm the judgment of the trial court.
1. The record does not indicate how many feet the vehicle fell after hitting the barriers and landing upside-down on the trail below the median.
2. Veal responded to the scene to investigate the second crash that injured Officer Hill, but he did not participate in the on-scene investigation of appellant's crash on the night it occurred.
3. According to Veal, the black box has its own accelerometer separate from the vehicle's speedometer used to show the driver the speed at which he or she is traveling.
4. Veal testified that the black box constantly monitors and records various data, but overwrites prior data when there is not a crash or airbag deployment. However, when there is a crash or airbag deployment, the black box “hard writes,” or permanently records to a hard drive, five seconds of data in tenth-of-a-second intervals.
5. Veal testified that the second event could not have been appellant's hitting the second barrier because the “two barriers were within feet [of] each other” but the second event occurred a couple of seconds after the first. Based on the vehicle's speed of 62 miles per hour, or 90 feet per second, immediately before the first event—the crash into the first concrete barrier—appellant's vehicle traveled the few feet between the barriers quicker than the couple of seconds between the recorded events.
6. Veal testified that a vehicle traveling at 60 miles per hour travels 88 feet per second for a total of 440 feet in five seconds. Veal also testified that a vehicle traveling at 70 miles per hour travels 102 feet a second for a total of 513 feet over 5 seconds.
7. Appellant's brief presents the following issue: “The trial court abused its discretion in denying appellant's motion to exclude the vehicle's crash data recorder (CDR) under Daubert [v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)] and Texas and Federal Rule of Evidence 702.” However, appellant's arguments on appeal and to the trial court focus on Detective Veal's testimony about the data collected from the device, part of which is the reliability of the black box's recorded data. Appellant makes no arguments concerning admission of the data itself. We therefore construe appellant's arguments as challenging the admission of Veal's testimony, in part on the basis that the underlying data was unreliable.
8. The parties apparently agree that Detective Veal offered expert testimony, and the trial court performed its gatekeeping function in determining whether to admit Veal's testimony as if he were offering expert opinion testimony.
9. After determining that expert testimony will assist the trier of fact to understand the evidence or to determine a fact in issue and that the testimony is relevant, Tex. R. Evid. 401, the trial court must then determine whether the testimony should be excluded under Texas Rule of Evidence 403 because its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000) (citing Tex. R. Evid. 403 and Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)). The trial court performed a Rule 403 analysis before admitting the testimony at issue; appellant does not challenge that part of the trial court's ruling.
10. The State also argues that appellant only preserved for appellate review the issue of whether Veal was qualified as an expert to interpret the black box data. We disagree. Prior to Veal's voir dire, the State represented that it only intended to offer Veal to testify about interpretation of the black box data. Despite the State's representation, appellant's objections to Veal's testimony about the black box were broader than Veal's interpretation of the black box data.
11. The black box data report also included other information, including various crash pulse graphs, Delta-V calculations, “angular rates” in degrees per second, and a hexadecimal data section. However, Veal offered no testimony on these areas of the report.
12. The State also argues that appellant did not preserve the issue of reliability of black box data generally because he did not object on that basis in the trial court. We disagree. Although appellant's motion to exclude the black box evidence argued that “the State cannot establish that the [black box's] data in this case was performed in a scientifically reliable method,” appellant's objections in his motion and at trial challenged the reliability of black box data in general.
13. Because we find no error, we do not address whether any error was harmful.
Evelyn V. Keyes, Justice
Response sent, thank you
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Docket No: NO. 01-18-01078-CR
Decided: April 07, 2020
Court: Court of Appeals of Texas, Houston (1st Dist.).
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