NO. 291-99







Johnson, J., filed a dissenting opinion, in which Meyers, Price and Womack, J.J., joined.


I respectfully dissent. The majority opinion reverses the court of appeals on the ground that the Ninth Court of Appeals erred in holding that the trial court abused its discretion in excluding expert testimony on the reliability of eyewitness identifications (ante, at ___ (slip op. at 1)).

Today's opinion represents the third time that this case has been before this court in some form. Appellant's first conviction for capital murder was overturned by the Ninth Court of Appeals, and we refused the petition for discretionary review filed after that decision. Weatherred v. State, 833 S.W.2d 341 (Tex. App.--Beaumont 1992, pet. ref'd). On remand, appellant was again convicted of capital murder, and the Ninth Court of Appeals again reversed his conviction. Weatherred v. State, 963 S.W.2d 115 (Tex. App.--Beaumont 1998). We granted the state's petitions for discretionary review, vacated the decision of the court of appeals, and remanded the cause for reconsideration in light of our then-recent decision in Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998). Weatherred v. State, 975 S.W.2d 323 (Tex. Crim. App. 1998). Following consideration of Nenno, the Court of Appeals again held that appellant's conviction warranted reversal. Weatherred v. State, 985 S.W.2d 234 (Tex. App.--Beaumont 1999). Again, both the State Prosecuting Attorney and the District Attorney filed petitions for discretionary review with this court. We refused the District Attorney's petition, and granted the State Prosecuting Attorney's petition, limited to the following ground: "the court of appeals erred in holding that Nenno v. State lessens the scrutiny in examining scientific evidence." As the above makes clear, the majority opinion reverses the judgment of the court of appeals on a basis that is unrelated to the ground for review that was granted by this court.

After briefing and closer examination of the issue, it appears that the grant was improvident. Even if we were to find that the court of appeals' characterization of Nenno was incorrect, this, in and of itself, would not change the disposition of the case. Despite the wording of the granted ground for review, the observation by the court of appeals concerning Nenno is not actually a "holding." It was made because of the court's confusion as to why we remanded the cause for reconsideration under Nenno. After making that observation, the Court of Appeals went on to delineate and apply the test of admissibility for "soft sciences" as set forth in Nenno, and as directed by this court. Weatherred, 985 S.W.2d at 236-39. Because the only ground granted by this court does not challenge the court of appeals' application of Nenno, sustaining that ground does nothing to change the court of appeals' final disposition in this case.

This is tacitly acknowledged in the State Prosecuting Attorney's brief to this court. In the portion of that brief titled "Summary of the Argument," the state briefly addresses the Nenno issue, and then in a separate paragraph, argues that "[i]n addition, the Court of Appeals erred in holding that, under Nenno, the proffered testimony was reliable, relevant, and not overly prejudicial." (Emphasis added.) This additional argument was not raised in the ground for review plead by the state and granted by this court; from the use of the words "in addition," it appears that the state understood this. Similarly, in the "Argument" portion of its brief, the state first makes its argument concerning the court of appeals' characterization of Nenno. It then goes on to assert that "[w]e believe that, under Nenno, the trial court did not err when it denied [appellant's] request to introduce expert evidence about eyewitness reliability." The state merely disagrees with the result reached by the court of appeals. This is not an appropriate ground for a petition for discretionary review. The state also argues that the evidence was inadmissible under Tex. R. Evid. 403. Again, this argument is not encompassed within the ground for review which was granted.

When the District Attorney and the State Prosecuting Attorney petitioned this court for discretionary review, we declined to grant the ground for review on which the majority now bases its decision. Today, a majority of this court decides to reverse the Court of Appeals on an issue that was not granted and is not before this court. See Tex. R. App. P. 69.1. If the court desires to address the issue on which the majority bases its opinion, it should grant the issue on its own motion and order briefing. To do otherwise undermines the credibility of this court.

The state's petition should be dismissed as improvidently granted, or the court should order rebriefing on the issue it now decides. Because it does neither, I dissent.

Johnson, J.

Date Delivered: March 29, 2000