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Click here for the full text of this decision FACTS:At approximately 9:45 p.m. on June 20, 2003, Maria Moreno was vacuuming her car at a car wash. All the doors to the car were open. Her husband had gone to get change, and her young son was in the back seat. While she was cleaning out the back seat area, she looked up and noticed a stranger sitting in the driver’s seat. She pushed him and asked what he was doing. He responded by pointing a gun at her and demanding she get away. She removed her son from the car, and the man quickly drove away, after which she called 911. The responding officer secured the scene and obtained information on the stolen vehicle. The complainant advised the officer that the suspect had originally approached the scene on a bicycle which was then booked into evidence. She described the suspect as an 18-year-old black male with a small pointed nose. Thirteen days later, on July 3, 2003, the detective assigned to the case presented a six-person simultaneous photographic lineup to the Moreno. According to the detective, another detective selected the photographs used in the lineup. He did not make any suggestions to Moreno regarding the lineup. Four minutes to five minutes after viewing the lineup, the complainant positively identified Milton D. Stephenson as the man who had stolen her car from the car wash at gunpoint. Moreno’s eyewitness identification of Stephenson was the only evidence that tied Moreno to this crime. At a hearing on Moreno’s motion to suppress the photographic lineup identification of Stephenson, Moreno testified about the facts surrounding the robbery and her subsequent identification of Stephenson from that photographic lineup. The investigating detective testified that Moreno positively identified Stephenson without any suggestion or pressure from him. At the suppression hearing, the trial court denied Stephenson the opportunity to present testimony from Dr. Curtis E. Wills, a forensic psychologist and an expert witness on the subject of: 1. the reliability of eyewitness testimony in the context of simultaneous photographic lineup identifications; and 2. other elements that create false positives in photographic lineups. At the conclusion of the hearing, the trial court denied Stephenson’s motion to suppress both the photographic lineup and the in-court identification. At trial, Stephenson again proffered the testimony of Wills. In response to this proffer, the state requested a Daubert-Kelly hearing. During that hearing, Wills was allowed to testify and supporting exhibits were received. At the conclusion of that hearing, the court announced that Wills’ testimony would be excluded from the jury. The case proceeded to the jury, which found Stephenson guilty of aggravated robbery. At the punishment phase of trial, the jury found that Stephenson had previously been convicted of prior felony offenses and assessed his sentence at confinement for 99 years. Presenting three points of error, Stephenson argued that the trial court abused its discretion in: 1. excluding testimony of his expert witness; 2. denying his motion to suppress the photograph identification; and 3. denying his motion to suppress the in-court identification. HOLDING:Reversed and remanded. The trial court’s decision to admit or exclude testimony, the court stated, will not be disturbed absent a clear abuse of discretion. Under Rule 702 of the Texas Rules of Evidence, the proponent of expert testimony must show by clear and convincing evidence that the evidence he seeks to introduce is sufficiently relevant and reliable to assist the trier of fact in accurately understanding other evidence or in determining a fact issue. Applying this rule to the case, the court found that expert witness testimony pertaining to the reliability of eyewitness identification of a suspect from a photographic lineup was sufficiently tied to the pertinent facts of the case as to be relevant. Moving on to assess the reliability of the excluded witness’ testimony, the court noted that Rule 702 requires satisfaction of a three-part reliability test before novel scientific evidence would be admissible: 1. the underlying scientific theory must be valid; 2. the technique applying the theory must be valid; and 3. the technique must have been properly applied on the occasion in question. Factors that the trial court can consider, the court stated, in determining whether this reliability component has been met include, but are not limited t 1. acceptance by the relevant scientific community; 2. qualifications of the proffered expert; 3. literature concerning the technique; 4. the potential rate of error of the technique; 5. the availability of other experts to test and evaluate the technique; 6. the clarity with which the underlying theory or technique can be explained to the court; and 7. the experience and skill of the person applying the technique. Applying these principles, the court determined that Wills’ expert testimony was 1. within the legitimate field of psychology; 2. concerning a subject matter within the scope of that field, i.e., the reliability of eyewitness identifications in photographic lineups; and 3. arrived at after proper utilization of the principles of that field. As a result, the court concluded that the proffered expert testimony was admissible. Thus, the trial court abused its discretion in excluding the testimony. Moreover, the court found that the trial court’s decision to exclude Wills’ testimony significantly impaired Stephenson’s ability to present his defense and was, therefore, of constitutional proportions. In light of these considerations, the court could not determine beyond a reasonable doubt that the error did not contribute to Stephenson’s conviction. OPINION:Pirtle, J.; Quinn, C.J., and Campbell and Pirtle, J.J.

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