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Click here for the full text of this decision FACTS:Curtis Wayne Pope Jr. was charged with the murder of Darrell North, who was found stabbed to death at his construction-site trailer. North had suffered over 50 distinct sharp-force wounds to his head, face, back, chest, shoulders and torso. Suspicion focused on Pope who, along with North, failed to keep a scheduled meeting with a pool-construction customer on the evening of the murder. DNA tests tied blood found on the floor and furniture at the crime scene, as well as on the victim’s pants, to Pope. After Pope was charged, the state filed a motion for discovery of expert witnesses asking for the name and address of any expert witnesses that the defense might call at trial. Pope later filed a motion for independent examination of the DNA evidence and requested the trial court to enter an order permitting his expert witness to review and examine all reports and testing already performed by William Watson for purposes of DNA testing and comparisons, as well as independent testing if necessary. The trial court granted Pope’s motion. Less than a month later, Pope formally designated Benjamin as a potential defense expert witness. The state then designated 11 potential expert witnesses. Several months later, the trial judge granted a joint request by the state and Pope to submit hair samples from the murder victim, Pope and Donald Fortenberry, another possible suspect, as well as fingernail scrapings from the murder victim, for additional DNA testing. This additional DNA testing excluded Fortenberry, but included Pope. Immediately before the state’s first DNA expert testified at trial, Pope made a motion in limine to bar any mention of Benjamin, because his existence as a potential defense witness was irrelevant. The trial judge granted this motion. However, Pope’s cross-examination of William Watson attacked the validity of the DNA testing procedures and test interpretation. Before beginning his redirect examination, the prosecutor approached the bench and argued that Pope had opened the door to the existence and role of Benjamin as a defense expert. The trial court ruled that the state could ask its expert if he knows Benjamin, how he knew him, how long he had known him, whether he was aware that Benjamin was involved in this case and whether Benjamin had ever requested any further testing. In its closing argument, the state argued that if Benjamin or any other expert disagreed with the state’s DNA experts, Pope would have called that witness to testify. The jury convicted Pope, and the court sentenced him to life imprisonment. On appeal, Pope complained of the trial court’s ruling and the state’s argument. In its analysis, the court of appeals first noted that a testifying expert’s identity, once disclosed, is not work-product. Second, it stated that testimony regarding the witnesses’ knowledge of Benjamin’s qualifications, and the materials provided to him, cannot be privileged, because they do not constitute work-product of the defense. Third, it stated that it believed that the testimony elicited by the state regarding Benjamin’s failure to request additional testing indirectly violated Pope’s work-product privilege, because the testimony could have had the effect of disclosing Benjamin’s mental impressions regarding the absence of a need for further tests. The 2nd Court of Appeals in Fort Worth concluded, however, that the improper admission of testimony was nonconstitutional error and harmless under Texas Rule of Appellate Procedure 44.2(b). HOLDING:Affirmed. Pope, the court stated, claimed that allowing the state to introduce evidence establishing that Benjamin was an eminently qualified defense expert who was provided with all of the state’s DNA testing material was inadmissible for the same reason that evidence of his failure to request additional testing was: It could have no possible relevance other than to allow the jury to conclude that Benjamin reviewed the state’s DNA testing and concluded it was accurate. But Benjamin was, at all times, a formally designated expert witness for the defense, the court stated. His identity and qualifications, the court noted, were not protected by any work-product privilege. Information that the lawyer himself puts into the public domain via a formally filed legal motion can hardly be thought of as a secret trial strategy, the court stated. Finally, the court stated, the question of whether the state’s experts received a request from any person to retest their samples or send samples to an independent lab for retesting by someone else is not covered by the work-product doctrine. Juries, the court stated, are entitled to draw reasonable inferences from known, unprivileged facts, even though those inferences may have the effect of indirectly disclosing an attorney’s (or his agent’s) mental impressions. The work-product doctrine does not prevent the factfinder from making reasonable inferences from known facts, the court stated. OPINION:Cochran, J., delivered the opinion of the court, in which Keller, P.J., and Meyers, Price, Womack, Keasler, Hervey and Holcomb, J.J., joined. CONCURRENCE:Johnson, J. “I concur in the judgment of this Court, but not its reasoning. It is permissible to argue to the jury that the defendant did not present witnesses to contradict testimony offered by the state. It is not permissible to select a potential, but uncalled, witness such as Dr. Benjamin, tout his knowledge, experience, and standing among his colleagues and then argue, solely because the defendant did not call him as a witness (a circumstance that could have many causes), that even that eminent scholar did not dispute the state’s evidence. Such tactics constitute bolstering of the testimony of the state’s witnesses. . . . I would affirm the judgment of the court of appeals and its reasoning.”

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