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Markerrion D'Shon ALLISON, Appellant v. The STATE of Texas
We granted the State's petition for discretionary review to decide if the Confrontation Clause was violated when an expert testified to the meaning of a slang phrase he learned from other people. We hold the admission of the expert opinion did not violate evidentiary rules or Appellant's constitutional right to confront adverse witnesses. Therefore, we reverse the judgment of the court of appeals.
The charged offense
On September 8, 2016, complainant Jose Jimenez was alone at a house on Clearwood Drive in Longview playing video games and smoking marihuana when someone knocked on the door and asked for William Benicaso. Benicaso lived at the house with Jimenez and sold marihuana. Jimenez presumed the person was there to buy marihuana, so Jimenez told the person that nobody else was in the house and that there was no marihuana in the house either.
Later that night, Jimenez was still alone at the house when he heard another knock on the door. Jimenez testified, “I had a really funny feeling as if something bad was going to happen.” When he opened the door, he saw the end of a shotgun barrel. Jimenez tried to close the door, but four individuals forced their way inside.
One of the individuals hit Jimenez on the back of the head with a pistol, asking where “it” was. Jimenez told them that “there wasn't anything.” He testified that he did not know exactly what they wanted, but “figured it was money or drugs.” The four individuals proceeded to “ransack” the house, at one point forcing Jimenez to flip over a bed in one of the bedrooms.
The suspects then sent Jimenez back to the living room and ordered Jimenez to his knees. Jimenez testified, “[T]hey started saying ․ go get T.K. ․ I want to kill this fool.” The individuals then told Jimenez, “[Y]ou're going to die today. You're going to die today for no reason.” The last thing Jimenez recalled was the laser site of a handgun trained on the back of his head.1
One of the men shot Jimenez in the head. Jimenez survived, but suffered a fractured skull causing him to experience a “brain shift” of two or three centimeters to the left. Jimenez has skull fragments permanently lodged in his brain, permanent vision loss, and lost “some gray matter,” which was found at the crime scene.
Jimenez described the assailants to investigators. He described one of the intruders as wearing a mask, black, dark-skinned, “lanky,” around 5’8,” wearing dark clothing, and no more than twenty-two years old. Although this description was consistent with Appellant's appearance, Jimenez was unable to identify Appellant in a photospread lineup. Jimenez did identify two of the other individuals involved in the robbery from a photographic lineup, however: Sean Owens-Toombs and Trekeymian Allison (referred to as T.K.).
January 6: Subsequent arrest of 3 of the 4 suspects
On January 6, 2017, three individuals were arrested for the September 8 robbery: R.J. (a minor), Owens-Toombs, and T.K. An arrest warrant was also issued for Appellant, but he was not initially apprehended.
January 7: Jail call between Appellant and T.K.
On January 7, 2017, Appellant and T.K. spoke on a recorded telephone line while T.K. was in jail. Appellant said the police were looking for him, and that people were talking about the shooting. T.K. opened the call by asking Appellant, “Hey ․ What's on the street?” Appellant responded, “Everybody thinking, ‘Oh, shot a n****r in the head or (inaudible).’ ” Appellant then referred to his mother telling him, “[Inaudible] said they came to her house looking for me early this morning.” T.K. asked, “For what?” Appellant responded, “You know. For that s**t.”
After a brief exchange, T.K. said, “I need you to pull a Carlos,” to which Appellant asked, “Yeah?” T.K. answered in the affirmative. T.K. told Appellant “We all's in there together” to which Appellant agreed. T.K. then asked, “Why [did R.J.] turn himself in?” T.K. told Appellant, “I'm trying to figure out where they got our name from, for real.” Appellant answered, “I dunno. This is bulls**t.”
After another exchange in which Appellant and T.K. tried to figure out how their names came up in the investigation, T.K. said, “Probably need you to do that Carlos for me, put that money on the books.” T.K. continued, “These n****rs done got our, done got our names in some bulls**t.” Appellant questioned what T.K. had just said, when T.K. told Appellant, “That why n****rs you d- get that out the way.”
Right before ending the telephone call, T.K. reiterated, “Go on and pull that Carlos, though,” to which Appellant responded, “Uh huh.” T.K. then ended the call by telling Appellant “All right. Bye. Be careful, boy.” Appellant answered, “That's a bet.” Five times during the call, T.K. told Appellant that he needed him to “pull a Carlos.”
January 8: Second Clearwood house shooting
The day after the phone call, on January 8, 2017, four individuals surrounded the Clearwood Drive house. Witnesses at the house saw two men wearing ski masks at the front door, another man hiding behind a car in the driveway, and a fourth man inside the carport, who was identified as a black man with long dreadlocks or braids. The man with dreadlocks fired a gun at the house. No one was injured in the shooting, although a bullet went through a bedroom window. No one was ever charged for the January 8 shooting, but prosecutors sought to use it to show Appellant attempted to silence witnesses to the charged offense.
Co-defendant's trial testimony
One of the co-defendants, R.J., testified that he participated in the robbery on the evening of September 8, along with Appellant, Owens-Toombs, and T.K. R.J. said that he had been to the Clearwood house on a prior occasion to buy marihuana from Benicaso, who, according to R.J., sold “pretty good weed” at “a good price.”
On the afternoon of September 8, R.J. walked to T.K.’s house to “chill” with Owens-Toombs, T.K., and Appellant, along with some other people he did not know. T.K.’s house was located only a few blocks away from the Clearwood house. Sometime around six o'clock, R.J. decided to go to the Clearwood house to buy some marihuana from Benicaso, but when he arrived, he learned from Jimenez that Benicaso was not home. R.J. asked Jimenez to tell Benicaso that R.J. had come by the house, and then he left the Clearwood house and returned to T.K.’s house.
When he arrived back at the house, Owens-Toombs, T.K., and Appellant were still there. R.J. said that, after he informed the group that Benicaso was not home, they decided to go back to the Clearwood house to search it for marihuana. The group gathered their guns and drove back to the Clearwood house sometime after dark. R.J. testified that T.K. was carrying a shotgun, Owens-Toombs was carrying a handgun with a laser on it, and Appellant had a small handgun.
When they arrived at the Clearwood house, everyone except R.J. got out of the car. R.J. testified that Appellant was wearing a mask. R.J. stated, “[T]hat's how I knew it was him.” R.J. said that none of the others were wearing a mask. When R.J. entered the house, the first thing he saw was Appellant searching the living room. R.J. also saw blood on the floor in the middle of the living room. R.J. said he went to look in the bathroom, which was also in the front of the house, and began searching for the marihuana. According to R.J., he could hear people yelling “back and forth” in one of the back rooms. While the arguing continued, R.J. went into the living room and continued his search. R.J. said that, by that time, Appellant had gone “deeper in the house.”
R.J. testified that he never saw Jimenez during the time he was inside the house, which was, in his opinion, about five to seven minutes. According to R.J., he and Appellant exited the house before Owens-Toombs shot Jimenez. Owens-Toombs and T.K. were called as witnesses by the State, but both refused to testify.2
Detective Juarezortega's trial testimony
The State called Detective Armando Juarezortega of the Longview Police Department who authenticated a video containing a custodial interview of Appellant. In the interview, Appellant claimed that he did not know if he had been near the robbery location on the night of the robbery. The video also contained an exchange between Juarezortega and Appellant regarding the phrase “pull a Carlos.” Multiple detectives asked Appellant if he knew what the term “pull up a Carlo [sic]” meant, but each time Appellant denied knowing what it meant and told Juarezortega that he would rather save that discussion for another day. However, Appellant seemingly corrected the detectives by saying “to pull a Carlos,” as opposed to “Carlo.” As the interview continued, Appellant admitted that he had talked to T.K. on the phone while T.K. was in jail. Juarezortega told Appellant that he would hear a recording of his conversation with T.K. during Appellant's trial, which included T.K. asking him to “pull a Carlos,” and Appellant agreeing to do so. Appellant repeatedly said that the words meant nothing; yet he followed this comment by referring to the term as “slang.”
Juarezortega then questioned Appellant about the January 8 shooting at the Clearwood house. Appellant responded by telling Juarezortega that he wanted to see a video of the shooting.
Detective Reed's trial testimony
Following Juarezortega's testimony, the State called Detective Jayson Reed who testified as to his investigation of the term “pull a Carlos,” given the prevalence of that term's use during the jail call. The State offered the testimony in the attempt to prove that Appellant participated at the second Clearwood house shooting and that it was done to silence the witnesses to the charged offense.
In a hearing outside the presence of the jury, Detective Reed established that he had been in law enforcement for twenty-eight years and that most of that time, his career focused on counter-drug operations. During his counter-narcotic work, he dealt with informants, sources, and cooperating witnesses.3 Reed also undertook specialized training on criminal gangs. He therefore became familiar with the use of slang terms. Reed explained that there had been occasions when he was unfamiliar with a particular slang term. When that happened, he would ask informants or his sources what the term or word meant. Reed described a number of slang terms used in the narcotics world and how slang terms are constantly changing and can vary by community.
Reed then testified to being asked by the prosecutor to research the meaning of the phrase “pull a Carlos” and explained how he contacted one of his confidential informants to ask what the term meant. Detective Reed had worked with this particular informant since 1998 and considered him to be credible. Detective Reed did not tell the informant why he needed the information. Detective Reed also consulted other potential sources of information including Officer Bethard with the Longview Police Department and Investigator Hall Reavis with the Gregg County Criminal District Attorney's Office. As a result of his research, Detective Reed developed an expert opinion as to what the term “pull a Carlos” meant: “It all boils down to basically doing a shooting. Now, I've gotten—it's either drive-by do a shooting, take care of a witness. It[ ] all comes around as shooting.”
Appellant objected to Reed's testimony on Confrontation Clause grounds. The trial court overruled the objection and found that Reed was an expert qualified to testify as to the meaning of slang phrases including “pull a Carlos.”
The State then called Reed to testify before the jury. Reed told the jury that he talked to the confidential informant and the two other individuals in law enforcement and they each said they were familiar with the term and its meaning. Reed then testified, without objection,4 that in his expert opinion, “pull a Carlos” means “[t]o conduct a shooting of some sort.” The jury convicted Appellant of aggravated robbery and sentenced him to twenty-five years’ confinement.
COURT OF APPEALS
On appeal, Appellant argued that Reed's testimony about the meaning of “pull a Carlos” violated the Confrontation Clause. The Sixth Court of Appeals agreed, finding that under the circumstances of this case, disclosure of the out-of-court statements underlying Reed's opinion constituted the use of testimonial statements in violation of the Confrontation Clause. The appellate court found that the statement was procured specifically for use against Appellant at trial and was offered solely for the truth of the matter asserted—that to “pull a Carlos” means to shoot someone. This information was directly relevant to the State's theory of Appellant's consciousness of guilt. The court also held that the State failed to show the statement was reliable, that it was firmly rooted in a hearsay exception, that the source was unable to testify, and on what basis he had reached the conclusion that “pull a Carlos” meant to shoot someone. Finally, the court found, Reed merely recited what he had learned from the cooperating source and adopted those statements as his own. The court expressed concern that “allowing a witness to simply parrot ․ out-of-court testimonial statements directly to the jury in the guise of expert opinion would provide an end run around Crawford, and this we are loath to do.” Allison v. State, No. 06-20-00020-CR, 2021 WL 5345133 at *12 (Tex. App.—Texarkana Nov. 17, 2021) (internal quotation marks omitted) (quoting Johnson v. State, Nos. 05-09-00494-CR & 05-09-00495-CR, 2011 WL 135897, at *4 (Tex. App.—Dallas Jan. 18, 2011, no pet.)) (not designated for publication) (discussing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)).
STATE'S PETITION FOR DISCRETIONARY REVIEW 5
The State's petition for discretionary review presents novel grounds involving the intersection of Rule 703 and the Confrontation Clause. All three grounds involve the testimony of Detective Reed and his testimony that “pull a Carlos” means to “do a shooting.” We will first address whether expert witnesses testifying on subject matters within the soft sciences based on knowledge and experience are required to perform the same level of independent testing or analysis of any hearsay information that forms the basis of their opinion as is required of expert witnesses testifying to subject matters within the hard sciences.
LAW & ANALYSIS
In its first ground, the State relies on Williams v. Illinois, 567 U.S. 50, 70, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), arguing that the meaning of “pull a Carlos” was within Reed's personal knowledge at the time he testified and that there is no Confrontation Clause violation when a witness testifies to facts within their personal knowledge.
In Williams, the defendant challenged a laboratory expert's testimony that a DNA report from a prior kidnapping, rape, and robbery—which was not introduced into evidence—matched a DNA sample taken from the defendant upon his arrest on unrelated charges. In a decision authored by Justice Alito, a plurality found there was no Confrontation Clause violation where the report was not offered for its truth, but for the limited purpose of explaining the basis for the assumptions underlying the expert's independent conclusion that the samples matched. Even if the expert report was admitted for its truth, Justice Alito wrote, the report was not testimonial. Williams, 567 U.S. at 79, 132 S.Ct. 2221 (plurality opinion). The five other justices in two opinions (Justice Thomas, concurring in the judgment, and Justice Kagan, joined by three other justices, dissenting) expressed the position that the report was offered for its truth. Id. at 103, 132, 132 S.Ct. 2221 (Thomas, J., concurring) (Kagan, J., dissenting). Those opinions differed, however, in that while Justice Thomas found the report was not testimonial in nature, the dissenting justices found it was. Id. at 111, 134, 132 S.Ct. 2221 (Thomas, J., concurring) (Kagan, J., dissenting).
While the instant case and Williams are similar in that both cases involve testifying experts who based their opinions on out-of-court statements that were not admitted into evidence, Williams is of limited help as a nonbinding plurality opinion. Therefore, in our analysis of a witness's personal knowledge as it relates to the Confrontation Clause, we turn to Texas Rule of Evidence 703 and Crawford v. Washington.
Texas Rule of Evidence 703
In its second ground, the State argues that the Confrontation Clause is not violated where an expert bases his opinion on inadmissible hearsay because that testimony is expressly permitted by Rule of Evidence 703. Further, it argues that the appellate court's holding that Reed's testimony was not “based on his own testing and/or analysis” and was simply a “parrot” of out of court statements effectively required Reed (a non-scientific expert) to conduct scientific testing before he could give an expert opinion. The State complains that, in so holding, the court of appeals erroneously relied on cases involving hard science expert witnesses testifying about matters readily subject to independent scientific testing or analysis which is very different from the instant case involving an expert testifying about linguistics and slang usage. The latter is a subject in which conclusions are based on experience and training rather than formulaic scientific methods.
Rule 703 provides: “[a]n expert may base an opinion on facts or data that [he] has personally observed. If experts in [his] field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.” Tex. R. Evid. 703. Thus, the requirement of personal knowledge does not apply to expert witnesses whose opinions and conclusions are reasonably based on facts or data generally relied upon by experts in the particular field. Id. at 602, 703.
In Kelly v. State, we presented the standard for determining whether an expert's scientific opinion was reliable: (a) the underlying scientific theory must be valid; (b) the technique applying the theory must be valid; and (c) the technique must have been properly applied on the occasion in question. 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). Rule 702 is not just limited to hard science experts, however. It also allows expert testimony as to soft sciences and fields based primarily upon experience and training as opposed to scientific methods. See 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 (Tex. Crim. App. 1999) (en banc) (disapproving of Nenno’s holding that Texas Code of Criminal Procedure article 38.22 applies only to custodial statements). Nenno recognized that soft science or non-scientific expert testimony is held to a less rigorous standard than hard science expert testimony. Specifically, we held:
The appropriate questions are: (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 upon and/or utilizes the principles involved in the field.
Nenno, 970 S.W.2d at 561. Kelly is therefore confined to the evaluation of scientific expert testimony. Because Detective Reed's testimony constitutes specialized knowledge of law enforcement, not scientific knowledge, the Kelly standards for admission do not apply.
Application of Nenno
Applying the ‘soft’ science analysis of Nenno, we hold that the trial court did not err in finding Detective Reed is an expert permitted to testify regarding the definition of “pull a Carlos.”
(1) Whether the field of expertise is a legitimate one
While this Court has not specifically held that slang interpretation is a legitimate field of expertise, multiple circuit courts have. See United States v. Hankey, 203 F.3d 1160, 1169 (9th Cir. 2000) (holding “[t]his type of street intelligence might be misunderstood as either remote ․ or hearsay ․, but FRE 702 works well for this type of data gathered from years of experience and special knowledge.”); see also United States v. Griffith, 118 F.3d 318, 321 (5th Cir. 1997); see also United States v. Delpit, 94 F.3d 1134, 1145 (8th Cir. 1996); see also United States v. Quintana, 70 F.3d 1167, 1170–71 (10th Cir. 1995); see also United States v. Boissoneault, 926 F.2d 230, 232 (2d Cir. 1991); see also United States v. Rollins, 862 F.2d 1282, 1292 (7th Cir. 1988); see also United States v. Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987). Importantly, Appellant does not challenge whether slang translation is a legitimate field, only that Detective Reed does not qualify as a slang expert.
(2) Whether the subject matter of the expert's testimony is within the scope of that field
Detective Reed was qualified to testify on this subject matter based upon his experience and training in that he (1) had been employed with the Longview Police Department for about twenty-eight years, (2) dealt mostly with narcotics and gang-related crimes, while also executing warrants and gathering intelligence, (3) dealt with many informants and was familiar with both victims and suspects involved in the narcotics trade, (4) was familiar with the connection between drugs and other crimes, and (5) had significant knowledge of other slang terms. While defense counsel objected that he had no formal training in slang, we are not persuaded that Reed's extensive experience working in large-scale drug and gang organizations left him unqualified as a slang expert.
(3) Whether the expert's testimony properly relies upon and/or utilizes the principles involved in the field
As Don Vito Corleone so aptly remarked, “I have learned more on the streets than in any classroom.” The Godfather (Paramount Pictures 1972). Detective Reed did not attend a formal course or training in drug and gang linguistics, if such courses exist. Reed stated that there had been occasions when he might not be familiar with a particular name, term, event, or situation. If that happened, Reed would contact somebody in the field, specifically, other police agencies or “somebody that knows somebody and their informant knows somebody in between” and then locate “somebody close to let [them] know what's going on.” Asking others in the same field what a word means (either by consulting a dictionary, consulting an urban dictionary, or asking someone with direct knowledge) is one of the prevailing methods for learning what a word means. Detective Reed gave examples of several slang terms that might be outside a layperson's vernacular, such as “one plug,” (a source of information); “ice,” (methamphetamine); “eight ball,” (three and one-half grams); “teenager,” (sixteenth of a gram); “ice cream,” (methamphetamine); “hard and soft,” (crack cocaine and powder cocaine); and “wet,” (PCP). Detective Reed has learned the meaning of these slang drug terms over the course of conversations with others in the field. An officer's knowledge of the jargon in drug trade and gang activities is critical to criminal investigations. It is unclear how one is to obtain personal knowledge of the terminology without asking trusted sources within the trade.
We therefore find Detective Reed's ‘soft’ science testimony permissible. Detective Reed may not have performed scientific testing on the meaning of the phrase “pull a Carlos” (since no such scientific testing was possible), but he did follow a widely-accepted course of action to determine what the phrase meant by consulting other law enforcement personnel and informants as to the meaning of “pull a Carlos.” As a soft-science expert witness, Detective Reed should not be required to conduct scientific testing on the information that forms the basis of his expert opinion prior to testifying to his expert opinion.
We now turn to the appellate court's concern that cloaking inadmissible testimonial hearsay in the basis for an expert opinion allows a witness to simply “parrot ․ out-of-court testimonial statements directly to the jury in the guise of expert opinion [that] would provide an end run around Crawford.” Allison, 2021 WL 5345133 at *12 (mem. op.) (internal quotation marks omitted) (quoting United States v. Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007)).
However, was Detective Reed “parroting” the out-of-court statements? The State argues that Detective Reed did not blindly “parrot” what someone told him, but reached a conclusion after evaluating several descriptions and synthesizing the information. Appellant argues that there was no such interpretation here, but rather wholesale repetition of statements from the confidential informant and law enforcement personnel. We disagree.
First, to analyze information is to “study or determine the nature and relationship of the parts of something,” or “to subject to scientific or grammatical analysis.” Analyze, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/analyze (last visited December 1, 2022). In this case, an expert conducted research in his particular field in order to interpret the phrase “pull a Carlos.” Reed consulted with four people: one who did not know what the phrase meant, and three others that said the phrase meant to do a shooting, to do a drive-by shooting, or “to take care of a witness.”6 These responses were not identical. After consulting with the sources, Detective Reed synthesized this information and concluded that “pull a Carlos” meant to “do a shooting.” Reed did not blindly recite what someone else told him, but rather investigated the meaning of the phrase and only came to a conclusion after consulting a range of sources (including a source he has known since 1998) to feel confident in his conclusion.
Secondly, requiring a “proving up” of street slang would be an inquest into perpetuity. For example, if Appellant were to call the confidential informant and Officers Bethard and Reavis as witnesses, what would prevent Appellant from demanding those witnesses produce the origins for their definition of the phrase?7 Appellant's request to cross-examine the primary and secondary witnesses to prove up a definition of a word could extend to a tertiary level and beyond. How would the court determine a reasonable limit for such an expedition? While we recognize the appellate court's concern about using an expert to “work around” the Confrontation Clause, it is judicially inefficient to require a “proving up” of street slang. In the field of slang linguistics, it is most practical to gauge the reliability of an expert opinion under a ‘soft’ science standard found in Nenno.
The Confrontation Clause
Rule 703 and judicial economy aside, we now turn to whether Reed's testimony was a violation of Appellant's right to confront witnesses. We hold that there was no Confrontation Clause violation as his conclusion was non-testimonial and the jury heard only the direct, in-court testimony of Detective Reed.
In Crawford v. Washington, the Supreme Court held that the Sixth Amendment confrontation right applies not only to in-court testimony, but also to out-of-court statements that are testimonial in nature. 541 U.S. at 51, 124 S.Ct. 1354. The Confrontation Clause forbids the admission of testimonial hearsay unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. Id.
The first step in a Confrontation Clause analysis is to determine whether the statement at issue was testimonial or non-testimonial. In Crawford, the Supreme Court drew a distinction between the two categories, although it did not explicitly define what is considered testimonial and what is not. Id.; see Burch v. State, 401 S.W.3d 634, 637 (Tex. Crim. App. 2013) (“While the exact contours of what is testimonial continue to be defined by the courts, such statements are formal and similar to trial testimony.”).
The Crawford Court stated that “testimony” is “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford, 541 U.S. at 51, 124 S.Ct. 1354. According to the Supreme Court, an accuser making a formal statement to government officials bears testimony in a sense that a person making a casual remark to an acquaintance does not. Id. As examples of testimonial statements, the Crawford Court lists affidavits, custodial examinations, depositions, prior testimony, confessions, or similar pretrial statements that declarants would reasonably expect to be used in a prosecution. The Supreme Court also refers to statements that were made under circumstances leading an objective witness to reasonably believe the statement would be available for use at a later trial. Id. at 52, 124 S.Ct. 1354.
On the other hand, the Sixth Amendment does not bar the admission of non-testimonial hearsay. Id. “An off-hand, overheard remark might be unreliable evidence and thus a good candidate for exclusion under hearsay rules, but it bears little resemblance to the ․ abuses the Confrontation Clause targeted.” Id. at 51, 124 S.Ct. 1354.
Was the statement “[t]o conduct a shooting of some sort” testimonial in nature?
In general, a statement is testimonial if a reasonable person would have understood that law enforcement officers were conducting a criminal investigation and collecting evidence for the purpose of prosecution. See Wall v. State, 184 S.W.3d 730, 745 (Tex. Crim. App. 2006).
Detective Reed testified that he was familiar with slang words due to his work in the narcotics trade. He testified that if he ran across a slang term that he was not familiar with, he would ask informants or sources what the term meant. Following this procedure in the instant case, Reed asked four individuals if they were familiar with the phrase “pull a Carlos.” Reed did not give a context for the phrase or otherwise tell his sources why he was asking, nor is it apparent that any of the consultants were otherwise familiar with the facts of this case. An informant that Reed has known since 1998 immediately told him what the term meant. Likewise, a police officer and an investigator with the DA's office separately gave their interpretations of the term which were consistent with the meaning given by the confidential informant. A fourth source did not know what the term meant.
None of the four individuals, while speaking with Detective Reed, were told that Reed was inquiring about the meaning of to “pull a Carlos” as part of an investigation. Instead, it was likely that the sources believed the detective was simply trying to expand his slang-term vocabulary by establishing the meaning of some phrase that he recently heard. Nor did any of the four individuals have any expectation that his statement would be of later use to accuse a defendant of a crime, as he spoke informally and without coercion. A reasonable person would not expect that simply because a law enforcement officer asks them the meaning of a certain phrase that that question was asked in order to conduct a criminal investigation or collect evidence for purpose of prosecution.
Accordingly, any definition of the term “pull a Carlos” that was relayed by the confidential informant or law enforcement personnel to Detective Reed was a non-testimonial statement. The rule in Crawford is therefore inapplicable because the statements were not testimonial in nature. The trial court did not err in allowing Detective Reed to testify as to the meaning of the phrase “pull a Carlos.”
Did Detective Reed testify as to any out of court statements?
As discussed above, Texas Rule of Evidence 703 allows an expert to base his or her opinion on inadmissible hearsay. Tex. R. Evid. 703. This is because the testifying expert's opinion is not itself hearsay and the testifying expert is available for cross-examination. In this case, Appellant had the opportunity to, and did in fact, cross-examine Detective Reed.
Further, Detective Reed did not disclose the hearsay upon which his own opinion was based. Detective Reed never testified before the jury as to what the confidential informant and Officers Bethard and Reavis said specifically. Therefore, no out-of-court statements were admitted at trial. Instead, the jury heard only the direct, in-court testimony of Detective Reed that he spoke to some sources and then gave his own opinion of what the phrase “pull a Carlos” meant. Accordingly, Detective Reed was the person “bearing witness” against Appellant—not the people whom the Detective claimed made the original statements. Because he was available for confrontation and cross-examination, the requirements of the Confrontation Clause were satisfied.
Even if the trial court erred in allowing Officer Reed to testify as to the meaning of the phrase “pull a Carlos,” Appellant was not harmed by its admission.
Standard of review
We review constitutional error in the admission of testimonial statements in violation of the Confrontation Clause under the standard specified in Rule 44.2(a) of the Texas Rules of Appellate Procedure. Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007); see Tex. R. App. P. 44.2(a). Constitutional error requires reversal of the judgment “unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” Tex. R. App. P. 44.2(a).
The following factors are relevant to our analysis: (1) the importance of the out-of-court statement to the State's case; (2) whether the out-of-court statement was cumulative of other evidence; (3) the presence or absence of evidence corroborating or contradicting the out-of-court statement on material points; and (4) the overall strength of the State's case. Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007).
The emphasis of the harm analysis under Rule 44.2(a) is not on the propriety of the outcome of the trial. Id. In other words, the question is not whether the jury's verdict was supported by evidence, but whether it is likely that the constitutional error was actually a contributing factor in the jury's deliberations. Id. That is, whether the error adversely affected the integrity of the process that led to the conviction. Id.
In analyzing harm, we may consider, in addition to the factors listed above and without limitation, the source and nature of the error, the extent, if any, the error was emphasized by the State, and how much weight the jury might have placed on the erroneously admitted evidence compared to the remainder of the evidence as to the relevant element or defensive issue. Id. We must ask whether there is a reasonable possibility that the error moved the jury from a state of non-persuasion to one of persuasion on a particular issue. Id. Ultimately, we must be satisfied, to a level of confidence beyond a reasonable doubt, that the error did not contribute to the conviction to conclude that the error was harmless and affirm. Scott, 227 S.W.3d at 690.
A plurality of the court of appeals determined that the erroneous admission of Officer Reed's testimony was harmful constitutional error requiring reversal. Allison, 2021 WL 5345133 at *14. Justice Burgess's concurrence would dispense with the harm analysis in its totality since the State did not brief the issue. Id. at *18. The dissent, however, conducted a harm analysis and would have held the admission of Detective Reed's statements harmless. Id. at *19.
Error was harmless
The meaning of the phrase “pull a Carlos” was offered during Detective Reed's testimony. Excluding Reed's testimony, the State had a strong case against Appellant based on the testimony of the complainant, Jose Jimenez, who gave a physical description of the masked individual who robbed him, consistent with Appellant's height, build, race, and age. The State also put on the testimony of accomplice witness, R.J., who directly testified to Appellant's participation in the aggravated robbery and confirmed that Appellant was the only robber who wore a mask. Further, it introduced and the recorded jail call between Appellant and his accomplice, T.K. in which they discussed the charged aggravated robbery offense in terms that implicated them to the offense (referred to the complainant by his first name, discussed the complainant being shot in the head, etc.). This evidence weighs heavily against a conclusion that Appellant was harmed by Detective Reed's testimony that the term “pull a Carlos” meant to conduct a shooting.
The evidentiary value from Detective Reed's testimony was slight as it related to an extraneous offense. In fact, the State's own witnesses, Detective Armando Juarezortega, testified that the State did not have probable cause to link the second Clearwood house shooting to a specific suspect. The trial court instructed the jury with a limiting instruction and again in the jury charge that they could not consider this extraneous offense for any purpose unless they were convinced beyond a reasonable doubt that Appellant committed the second shooting at the Clearwater House. It is generally presumed that a jury follows the trial court's instructions. Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998). There is no evidence the jury did not follow the trial court's instructions regarding the extraneous offenses, so we presume the jury did follow the trial court's instructions.
Based on the foregoing, we are confident that the verdict was not attributable to Detective Reed's opinion as to what “pull a Carlos” meant. After carefully reviewing the record, we hold that any error in the admission of Detective Reed's opinion of the phrase did not contribute to appellant's conviction or punishment and was harmless beyond a reasonable doubt. See Tex. R. App. P. 44.2(a).
We find that under the less-rigorous ‘soft’ science standards, Detective Reed properly offered expert witness testimony concerning the meaning of a term of gang slang. We further find the Confrontation Clause was not implicated in this case for two additional reasons. First, the out-of-court statements were non-testimonial in nature. Second, no out-of-court statement was admitted at trial. Finally, we find that any error in admitting the testimony was harmless. Because the court of appeals held otherwise, we reverse and affirm the judgment of the trial court.
Does a police officer become an “expert” in the meaning of a slang phrase when he asks a couple of people he knows what that slang phrase means, forms a conclusion about the meaning of that phrase from those conversations, and then testifies to his opinion at trial? I do not think so.
The Court and I disagree about that matter. But I ultimately agree with the Court that the admission of that kind of testimony was harmless beyond a reasonable doubt in the context of this case. And for that reason, I cannot understand why the Court expends so many pages opining that the testimony was properly admitted. I write separately only to explain why I disagree with the Court's decision to affirm the trial court's admission of the officer's alleged “expert” testimony.
Jose Jimenez lived with William Benicaso at a house on Clearwood Drive in Longview. Benicaso was known to sell marijuana. On September 8, 2016, Jimenez was at their home alone playing video games and smoking marijuana when four individuals knocked on his door and forced their way in. Jimenez saw that one of the men had a shotgun, and one of them struck him in the back of the head with a pistol and asked him where “it” was. Jimenez testified that he thought they were asking about money or drugs, but he did not know for sure.
Before the men left, they ordered Jimenez to his knees in the living room of the home, told him that he was going to die, and one of the men shot him in the head. Jimenez did not die. He woke up some time later in a pool of his own blood. Jimenez had suffered a fractured skull, and some fragments of his skull were permanently lodged in his brain. He suffered some permanent vision loss and he also lost some of the “gray matter” from his brain.
R.J., T.K., and Owens-Toombs were arrested for the crime, and an arrest warrant was issued for Appellant, but he was not immediately taken into custody. While T.K. was in jail, he spoke with Appellant on a recorded telephone line. On the recording, T.K. can be heard telling Appellant “I need you to pull a Carlos.” On another occasion during the same phone call, T.K. told Appellant: “Probably need you to do that Carlos for me, put that money on the books.” Then, just before the end of the call, T.K. again said, “Go and pull that Carlos, though,” and Appellant responded, “Uh huh.” In fact, on five separate occasions during the phone call, T.K. asked Appellant to “pull a Carolos.”
The next day (after the phone call between Appellant and T.K.), on January 8, 2017, witnesses saw four people show up at Jimenez's and Benicaso's house. Two of them were wearing ski masks, one hid behind a car in the driveway, and one made his way into the carport. The man in the carport was identified as a black male with dreadlocks or braids. That man fired a gun at the house. The bullet went through a bedroom window, but no one was injured. Prosecutors attempted to use this evidence to prove Appellant tried to silence witnesses to the offense.
After Appellant was arrested, Detective Juarezortega asked Appellant what the phrase “pull a Carlos” meant. Appellant denied knowing what it meant. But he did refer to the phrase as “slang.”
To explain the meaning of “pull a Carlos” at trial, the State sought to admit “expert” testimony from Detective Jayson Reed about the meaning of the phrase. Reed's testimony was offered to help establish that Appellant participated in the shooting that took place at Jimenez's and Benicaso's house the day after Appellant and T.K.’s recorded telephone call. Outside the presence of the jury, Reed testified that he had never been certified or qualified in any area specifically related to slang terminology.
Reed explained that he was initially unaware of the meaning of “pull a Carlos.” About three weeks before Appellant's trial, however, Reed's wife—(who was the prosecutor on this case)—asked him to talk to one of his sources to find out what the phrase meant. Reed then consulted three sources: a confidential informant, a Lubbock Police Officer named Chris Bethard, and a district attorney's office investigator named Hal Reavis. Reed claimed that his confidential informant told him that “pull a Carlos” meant to “basically do[ ] a shooting” or “take care of a witness.” Bethard and Reavis, he claimed, confirmed his confidential informant's understanding.
After the hearing held outside the presence of the jury, the trial court found that Reed was an expert who was qualified to testify about the meaning of slang phrases such as “pull a Carlos.” Appellant objected to Reed's testimony on four bases: (1) that Reed was not a qualified expert; (2) that Appellant had not been permitted to cross examine the people Reed relied upon to draw a conclusion about the meaning of the phrase; (3) that Reed's testimony was hearsay; and (4) that it violated the Confrontation Clause. The trial court then overruled Appellant's objections, and Reed testified that, in his expert opinion, “pull a Carlos” means “[t]o conduct a shooting of some sort.”
Appellant was convicted of aggravated robbery, but the court of appeals reversed and remanded for a new trial after concluding that the admission of Detective Reed's testimony about the meaning of the term “pull a Carlos” violated the Confrontation Clause. Allison v. State, No. 06-20-00020-CR, 2021 WL 5345133, at *12, *14 (Tex. App.—Texarkana Nov. 17, 2021) (mem. op., not designated for publication). This Court then granted the State's petition for discretionary review to consider whether the Confrontation Clause is violated when a witness learns the meaning of a phrase from other people and then testifies to that meaning at trial as if from his personal knowledge.1
Texas Rule of Evidence 702 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 to determine a fact in issue.
Tex. R. Evid. 702. There is no question that this Rule provides for the admission at trial of expert testimony, even when such testimony may not be based on any “scientific” field of inquiry. But must the expert offering the testimony at least be required first to show that he is “qualified” by “knowledge, skill, experience, training, or education” in some “technical” or “other [field] of specialized knowledge” that will “help the trier of fact” to “understand the evidence” or “determine a fact in issue”? Even though the Court's opinion decides that Detective Reed was qualified as a “slang expert,” the way that it goes about drawing that conclusion suggests that the answer to my question is no.
In Morris v. State, this Court addressed the admissibility of expert testimony that was not based on “science.” 361 S.W.3d 649 (Tex. Crim. App. 2011). The Court explained that, in Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998), it had “set forth a framework for evaluating the reliability of expert testimony in fields of study outside the hard sciences.” Morris, 361 S.W.3d at 654. This framework, the Court explained, “consisted of three questions: (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 upon and/or utilizes the principles involved in the field.” Id. According to the Court, these questions were “simply a translation of the Kelly test appropriately tailored to areas outside of hard science.” Id. (citing Nenno, which in turn cites Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992)). And the Court explained that it “explicitly refrained from developing rigid distinctions between ‘hard’ science, ‘soft’ sciences, and nonscientific testimony because we recognized that the distinction between various types of testimony may often be blurred.” Id. at 654−55.
The testimony at issue in Morris pertained to a practice known as “grooming.” Id. at 656. Special Texas Ranger David Hullum testified in that case that he “had been a Texas Ranger in Eastland for approximately nine years,” that he “had played a major role in the investigation of several hundred sexual offenses, approximately seventy-five of which involved child victims[,]” and that “he had been recognized as an expert in the trial court and other courts in connection with sexual offenses against children.” Id. at 651. He explained that he had experience “with determining the existence of grooming techniques,” and “specialized experience and training in the techniques or ploys used by child molesters against children.” Id. “[G]rooming,” according to Hullum, is “an attempt by the offender to get the victim compliant with what he wants to happen.” Id. He explained that “grooming typically occurs over an extended time period and involves spending intimate time alone with the child.” Id. He “further explained that grooming involves an element of trust, created by an emotional tie between the offender and the victim[,]” and “cited specific examples of grooming such as supplying the child with alcohol or pornography, engaging in sexual banter, giving or withholding gifts, or telling the child about the adult's own prior sexual experiences.” Id. at 651−52. And he responded that “a perfect example” of grooming would be “a gradual increase in the amount of time an adult stayed each night in a child's bedroom, until the adult spent the entire night there[.]” Id. at 652.
All of Ranger Hullum's testimony was grounded in his own personal knowledge based on his own training and experiences as a law enforcement officer. But Ranger Hullum's testimony was nothing like what happened in this case. Detective Reed's testimony nakedly relied on information he gained from other people who could have been, instead, called to testify in his place. And yet, the Court upholds the admission of his opinion as “expert” testimony.
For its part, the Court identifies the legitimate field of expertise at issue in this case as “slang interpretation.” Majority Opinion at ––––. But it points to no evidence that Reed has such expertise. It observes that Detective Reed had “specialized knowledge of law enforcement.” Id. It further explains that Reed was “qualified to testify” on the basis of “his experience and training,” which included: (1) his “twenty-eight years” as an employee “with the Longview Police Department”; (2) the fact that he “dealt mostly with narcotics and gang-related crimes, while also executing warrants and gathering intelligence”; (3) the fact that he “dealt with many informants and was familiar with both victims and suspects involved in the narcotics trade”; (4) the fact that he was “familiar with the connection between drugs and other crimes”; and (5) the fact that he “had significant knowledge of other slang terms.” Id. at ––––.
Still, the testimony Reed gave did not pertain to any matter that he already knew about before Appellant was charged. It was about the meaning of a specific phrase—one that, by his own admission, the prosecutor in this case asked him to go out and learn so that he could testify to it at Appellant's trial. The Court admits that defense counsel objected that Reed “had no formal training in slang.” Id. But the Court says it is “not persuaded that Reed's extensive experience working in large-scale drug and gang organizations left him unqualified as a slang expert.” Id.
Nothing about Reed's testimony suggests: (1) that “slang interpretation” is a legitimate field of expertise (although it might be one); (2) that his testimony is within the scope of that field; or (3) that his testimony properly relies upon and/or utilizes any principles involved in the field. See Morris, 361 S.W.3d at 654. The Court simply observes that Reed has expertise in the way people use slang terms in the drug trade, and personal knowledge of the meaning of certain very commonly used phrases (but not the one at issue in this case), and from that draws the conclusion that Reed appropriately relied upon that expertise when he informed the jury of his opinion about the meaning of “pull a Carlos.” See Majority Opinion at –––– (“It is unclear how one is to obtain personal knowledge of the terminology without asking trusted sources within the trade[,]” and “[w]e therefore find Detective Reed's ‘soft’ science testimony permissible.”). But that is not what happened here.
Even if Reed could legitimately testify that slang terminology is developed and used by people involved in criminal activity to hide the content of their communications from people whom those people do not want to know about their activities, and even if he could properly testify about the meaning of certain commonly used phrases other than the one at issue in this case, that is not the disputed testimony in this case. In this case, Reed purported to render an opinion about the meaning of a particular slang phrase used by specific people that he did not know the meaning of before Appellant was charged. At the same time, he identified no “principles” by which the meaning of such unknown slang terms used by people involved in crime can be interpreted. Nor did he explain what principles he relied upon in this case to decipher the meaning of the slang phrase he purported to interpret—other than to ask a confidential informant. Instead, he relied on the fact that he is an experienced police officer and offered an opinion based on what he learned from conversations he had with other people outside of court.
I do not believe the Court's opinion sets a precedent that the Court will want to follow in different circumstances. Imagine, for instance, a case in which the State seeks to produce evidence that a defendant was at the location of a crime scene at the time that a crime happened. The prosecutor in that case encourages a police officer to ask around about where the defendant was on the date and time of the offense. The prosecutor then calls the officer as an expert, at trial, in determining the location of individuals at particular moments in time, due to his extensive experience in law enforcement investigations. Then, after the officer testifies that he asked a confidential informant and some other law enforcement officers what they thought, the officer testifies at trial to his “expert” opinion that the defendant was at the scene of the crime. I do not think the Court would approve of admitting that officer's opinion as expert testimony. But that is essentially the same thing the Court does today.2
This Court has said that the trial court's role as “gatekeeper” in the area of scientific evidence requires it to “ensure that evidence that is unreliable because it lacks a basis in sound scientific methodology is not admitted.” Coble v. State, 330 S.W.3d 253, 273 (Tex. Crim. App. 2010). The trial court's “gatekeeper” role also applies, the Court has suggested, in cases involving the presentation of non-scientific expert evidence. See Morris, 361 S.W.3d at 654−55 (“we [have] also explicitly refrained from developing rigid distinctions between ‘hard’ science, ‘soft’ sciences, and nonscientific testimony”). So, the trial court's “gatekeeping” function should remain the same whether the court is examining scientific or nonscientific expert opinion testimony.
But the trial court did not fulfill its “gatekeeping” function here. Reed may have had law enforcement experience, but he demonstrated no specialized knowledge of, or special ability to decipher, the meaning of the phrase “pull a Carlos” as used by T.K. in his recorded conversation with Appellant. Reed simply asked a “confidential informant” what that person thought it meant, confirmed that person's conclusion with a few more people employed in law enforcement, and then told the jury what he concluded the slang phrase meant based on those conversations. As the court of appeals noted, only the “confidential informant” would have been able to say “why, when, how, and on what basis he had reached the conclusion that ‘pull a Carlos’ meant to shoot someone.” Allison, 2021 WL 5345133, at *11. Admitting Reed's testimony as that of an “expert” permitted the State to deprive Appellant of the opportunity to confront and cross-examine the witnesses Reed relied upon to develop his opinion.
In my view, the Court does not properly hold the trial court responsible for failing to fulfil its expert testimony “gatekeeping” function. Instead, by relying upon the mirage of expert opinion testimony, the Court approves the trial court's admission of testimony in violation of Appellant's Sixth Amendment right to confront the witnesses against him. See U.S. Const. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the right ․ to be confronted with the witnesses against him”). Nor would it help to shift the focus and argue that this testimony might have been admissible as lay opinion testimony. Our Rules of Evidence permit an expert to rely upon hearsay “if [it is] of a type reasonably relied upon by experts in that field of expertise.” Tex. R. Evid. 703; Ramirez v. State, 815 S.W.2d 636, 651 (Tex. Crim. App. 1991). But no such exception is apparent in the Rules for opinions offered by lay witnesses. See Tex. R. Evid. 701.
I do not mean to suggest that no one could ever be properly qualified at trial as an expert in deciphering the meaning of slang phrases.3 An expert properly qualified could even presumably render a reliable opinion on the meaning of a particular slang phrase. The expert doing so would be expected to develop his opinion with reference to his own experience in the field and/or by identifiable principles relied upon by other experts in that field, and of course applied appropriately in the case at issue. I just do not believe the State properly demonstrated that Detective Reed's testimony about the meaning of “pull a Carlos” constitutes reliable expert testimony in this case.
The Court points to other cases in which courts have allowed similar testimony, such as United States v. Griffith, 118 F.3d 318 (5th Cir. 1997). See Majority Opinion at ––––. But in Griffith, as in the other cases pointed to by the Court, the law enforcement personnel who testified to the meaning of slang terms seemed to have discerned the meaning of those obscure words and phrases from their own experiences working to frustrate the criminal activities of persons involved in the illegal drug trade. Never were those law enforcement personnel specifically asked to go out and learn the meaning of a word or phrase, exclusively to develop an opinion about its meaning, so that the opinion could be used against a particular defendant at his trial. Detective Reed did not learn the meaning of the phrase “pull a Carlos” over the course of his many years as a law enforcement officer. He developed his opinion about the meaning of that phrase after being asked by the prosecutor in this case to learn the meaning of the phrase so that it could be presented against Appellant at his trial.
It is true that the “Advisory Committee Notes” to the Federal Rules of Evidence pertaining to Federal Rule of Evidence 702 explain the following:
[W]hen a law enforcement agent testifies regarding the use of code words in a drug transaction, the principle used by the agent is that participants in such transactions regularly use code words to conceal the nature of their activities. The method used by the agent is the application of extensive experience to analyze the meaning of the conversations. So long as the principles and methods are reliable and applied reliably to the facts of the case, this type of testimony should be admitted.
Advisory Committee Notes, Federal Rule of Evidence 702, https://www.law.cornell.edu/rules/fre/rule_702 (last referenced on April 11, 2023) (emphasis added). Thus, the Advisory Committee Notes seem to approve of an officer relying on his extensive experience to explain the meaning of a word or phrase he has come to understand. But they do not seem to approve of, or even to contemplate, the admission of testimony by a law enforcement officer who, on an isolated occasion, is specifically asked to go out to discover the particular definition of a word or phrase in order to use that definition against a particular defendant in a particular trial. That officer's testimony is not based on his extensive experience. It is based on hearsay from other persons who happen to know the meaning of a particular slang term. Failure to honor a defendant's insistence that those other persons be produced to testify constitutes a violation of his right to confront the actual source of that information at his trial. Plainly speaking, the way I see it, I agree with the court of appeals that the trial court erred by admitting Detective Reed's opinion testimony.
This Court also granted discretionary review to consider whether the admission of Reed's testimony was harmful. Our rules provide that, because the error was constitutional, the trial court's judgment “must” be “reversed” unless it can be determined “beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” See Tex. R. App. P. 44.2(a). So, unless we are convinced beyond a reasonable doubt that the error did not contribute to the conviction or punishment, we must reverse.
After considering Reed's testimony in the context of all of the evidence admitted at Appellant's trial, I agree with the Court that it did not affect either his conviction or punishment. In my view, the jury could have, all on its own, understood the basic import of the phrase “pull a Carlos” from the context in which that phrase was used in the recorded conversation itself—even without Reed's explanation of its meaning. And I am also persuaded by the dissenting Justice in the court of appeals who explained that Reed's testimony on the meaning of “pull a Carlos” was “unimportant for the State to advance its overall theory—that Allison participated in the aggravated robbery on September 8[,]” and that “the State had no real need for Reed's testimony” in its effort to prove Appellant guilty of participating in that offense. Allison, 2021 WL 5345133, at *18 (Stevens, J., dissenting). Reed's “expert” testimony simply does not appear to be the kind of evidence that would move the needle one way or the other on either guilt or punishment. And so, like the Court, I conclude beyond a reasonable doubt that it was harmless. Tex. R. App. P. 44.2(a).
The court of appeals was correct, in my view, to find that the trial court erred by admitting Detective Reed's opinion testimony about the meaning of the phrase “pull a Carlos.” Doing so violated Appellant's right to confront and cross-examine his accuser. But the court of appeals was wrong to find Reed's testimony harmful. I agree with this Court that the testimony at issue here was harmless.
Because I disagree with this Court's opinion to the degree that it holds that Detective Reed's opinion testimony was properly admitted, I respectfully concur only with its judgment.
1. Jimenez testified, “I remember—I don't know who it was, but someone had pointed a laser site that was on a gun, you could kind of tell. Kind of left it towards my vision to where I could see it and slowly drug it over. I could feel where it was touching the back of my head. Even [though] they don't emit heat, I could almost feel where it was, and after that, I just kind of woke up on the carpet. The front door was open. I was in a pool of my own blood.”
2. The trial court ruled that neither witness had a Fifth Amendment privilege and ordered both to testify under threat of contempt. Both Owens-Toombs and T.K. refused to answer the prosecutor's questions. Nevertheless, it does not appear from the record that either was held in contempt of court.
3. Reed explained that “sources” referred to a person who does not receive anything in exchange for the information he gives while a “cooperating witness” or “informant” receives something in exchange for the information.
4. Wright v. Quarterman, 470 F.3d 581, 586–87 (5th Cir. 2006) (noting that Texas law generally requires defendant to make a specific Confrontation Clause objection to preserve such error); Lucio v. State, 351 S.W.3d 878, 909 (Tex. Crim. App. 2011) (concluding that defendant's objections failed to alert trial court to any claim that State's presentation of certain evidence violated her Sixth Amendment right to confront witnesses against her and, thus, failed to preserve such claims for appellate review); Davis v. State, 313 S.W.3d 317, 347 (Tex. Crim. App. 2010) (holding that Confrontation Clause claims are subject to preservation requirements under Texas Rule of Appellate Procedure 33.1(a)(1)(A)); Paredes v. State, 129 S.W.3d 530, 535 (Tex. Crim. App. 2004) (holding that defendant “failed to preserve error on Confrontation grounds” by failing to assert that objection at trial); Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990) (“We hold that in failing to object at trial, [defendant] waived any claim that admission of the videotape violated his rights to confrontation and due process/due course of law.”).
6. His testimony was, “It all boils down to basically doing a shooting. Now, I've gotten—it's either drive-by do a shooting, take care of a witness. It's[sic] all comes around as shooting.”
7. It is worth noting that nothing in the record indicates that Appellant was prevented from calling any additional out-of-court declarants. To the contrary, Hall Reavis, Investigator with the District Attorney's Office, did in fact testify. In a hearing outside the presence of the jury, Reavis testified that, in preparation for this case and the companion cases, he personally downloaded the jail call at issue. During a trial prep conference with the trial prosecutor, Chris Bethard with the Longview Police Department, came by the office. While the prosecutor and Reavis were discussing the phrase ‘pull a Carlos,’ Bethard “out of the blue says, oh, that means to do a shooting.”Reavis then testified that while investigating an unrelated case, the same prosecutor and Reavis were interviewing an inmate and Reavis asked the inmate if he ever heard of the phrase to pull a Carlos. According to Reavis, the inmate immediately said the phrase meant to put a hit on a witness or to shoot a witness to prevent someone from testifying. The State then made the name of the inmate available to the defense and the trial court told defense counsel he could subpoena this witness for trial. There is nothing in the record to indicate that this witness was unavailable.As for Bethard, there is also nothing in the record to indicate that he was unavailable for defense counsel to fully cross-examine. Bethard was listed as a State's witness, but it does not appear he was called by the State to testify at Appellant's trial. However, the record before us does not indicate that defense counsel was not able to confront Bethard due to unavailability.
1. The specific grounds for review granted by the Court are the following:1. “Once a witness learns the meaning of a phrase from other people[,] is the meaning of that phrase thereafter part of the personal knowledge of the witness which the witness can then testify to without violating the Confrontation Clause?”2. “Are non-hard science expert witnesses required under the Confrontation Clause to perform the same level of independent testing/analysis required of hard science expert witnesses before they can give an expert opinion based on hearsay evidence?”3. “Did the Court of Appeals err by finding harm from the admission of Detective Reed's testimony?”
2. For that matter, the Court could also, relying on today's precedent, approve of expert testimony from an officer that a particular person was the trigger man in a shooting based on information the officer gained from a confidential informant. The Court could justify that decision by concluding that the officer is an expert in criminal investigations, and that such experts regularly rely on information from confidential informants to determine who is responsible for a crime.
3. There are, after all, people who have been able to decipher the meaning of hieroglyphics created thousands of years ago. And that great feat was not accomplished without a great deal of experience, insight, and effort. See Andrew Robinson, Cracking the Egyptian Code: The Revolutionary Life of Jean-Francois Champollion (Oxford University Press 2012).
McClure, J., delivered the opinion of the court in which Hervey, Richardson, Newell, and Slaughter, JJ., joined.
Yeary, J. filed a concurring opinion. Keller, P.J., and Keel, J., concurred. Walker, J., dissented.
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Docket No: NO. PD-0905-21
Decided: April 19, 2023
Court: Court of Criminal Appeals of Texas.
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