LUCIANO SARABOSING, JR., M.D., P.A. v. CHILDREN'S CENTER OF VICTORIA, L.L.P., ET AL.--Appeal from 267th District Court of Victoria County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2007 » LUCIANO SARABOSING, JR., M.D., P.A. v. CHILDREN'S CENTER OF VICTORIA, L.L.P., ET AL.--Appeal from 267th District Court of Victoria County

State: Texas

Court: Texas Northern District Court

Docket No: 13-07-00487-CV

Case Date: 09/20/2007

Plaintiff: LUCIANO SARABOSING, JR., M.D., P.A.

Defendant: CHILDREN'S CENTER OF VICTORIA, L.L.P., ET AL.--Appeal from 267th District Court of Victoria County

Preview:Daniel Rahim Sexton v. The State of Texas--Appeal
from 144th Judicial District Court of Bexar County
98-00598 Sexton v State of Texas.wpd No. 04-98-00598-CR
Daniel Rahim SEXTON,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-0072
Honorable Robert R. Barton,(1) Judge Presiding
Denial of Motion for Rehearing and Revised Opinion
Opinion by: Sarah B. Duncan, Justice
Sitting: Tom Rickhoff, Justice
Catherine Stone, Justice
Sarah B. Duncan, Justice
Delivered and Filed: November 24, 1999
AFFIRMED
We withdraw the opinion issued in this case on August 31, 1999, and substitute the following opinion in its stead.
However, we deny Sexton's motion for rehearing and do not modify the judgment issued in this case on August 31,
1999.
Daniel Rahim Sexton was convicted of three counts of aggravated assault with a deadly weapon and sentenced to three
fifteen-year terms in prison. Sexton appeals the trial court's judgments, arguing the trial court erred in admitting the
testimony of the State's firearms expert because the State failed to demonstrate his testimony was reliable. We
disagree.
Factual and Procedural Background
Sexton was arrested for the aggravated assault of three young people. The three victims had each been shot while
sitting in a car at a stop sign. Police recovered a total of sixteen shell casings at the scene of the crime, including four
nine millimeter shell casings. Pursuant to Sexton's arrest, the police searched Sexton's bedroom and discovered twenty-
six live nine millimeter cartridges. All of the shell casings were given to Ronald Crumley, a firearm and toolmark
examiner with the Bexar County Forensic Science Center, to examine. Crumley concluded all four of the spent shell
casings had been fired from the same gun. Crumley further concluded that two of the spent shell casings had been
cycled through the same magazine as twelve of the live cartridges and the other two spent shell casings had been
cycled through the same magazine as twelve of the other live cartridges.
Crumley based these latter findings on several theories. The general theory of firearm and toolmark examination is that
harder metals leave marks on softer metals when they come into contact with each other. Thus, when a magazine is
made of a harder metal than a cartridge, it can leave a mark on the cartridge if the two objects come into contact. One
of the areas of possible contact is the magazine's lips, which hold the cartridges at the top of the magazine. According
to Crumley, if the lips leave a mark on the cartridge, that mark is individual to the magazine, like a fingerprint. Thus, if
sufficient magazine marks are left on a shell casing and a live cartridge, a firearm and toolmark examiner can
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determine, by looking at the two objects under a comparison microscope, whether they were cycled through the same
magazine. In this case, Crumley determined that the shell casings had been cycled through the same magazine or
magazines as twenty-four of the live cartridges by examining the magazine marks on both the shell casings and the
cartridges under a comparison microscope.
After a pre-trial suppression hearing, the court decided to allow Crumley to testify about his findings. Sexton now
appeals, arguing the trial court erred in admitting Crumley's testimony that the nine millimeter shell casings found at
the scene were loaded into the same magazine as the live cartridges found in Sexton's bedroom.
Standard of Review
We review a trial court's admission of evidence under the abuse of discretion standard. Kelly v. State, 824 S.W.2d 568,
574 (Tex. Crim. App. 1992); Montgomery v. State, 810 S.W.2d 372, 390-93 (Tex. Crim. App. 1991) (on rehearing). A
trial court does not abuse its discretion if its "ruling was at least within the zone of reasonable disagreement."
Montgomery, 810 S.W.2d at 391. Under this standard, we "view the evidence in the light most favorable to the trial
court's ruling," affording almost total deference to findings of historical fact supported by the record. Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). However, when the resolution of the factual issue does not turn upon an
evaluation of credibility or demeanor, we review the trial court's determination of the applicable law, as well as its
application of the appropriate law to the facts it has found, de novo. Id.
Discussion
Sexton argues the State failed to prove, by clear and convincing evidence, that the evidence matching the shell casings
with the live cartridges was reliable under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and Kelly. To be
considered reliable, evidence derived from a scientific theory must satisfy three criteria: "(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." Kelly, 824 S.W.2d at 573. Among the factors the court may take into
account in determining the reliability of scientific evidence are:
(1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific
community, if such a community can be ascertained; (2) the qualifications of the expert(s) testifying; (3) the existence
of literature supporting or rejecting the underlying scientific theory and 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 scientific theory and technique can be explained to the court; and (7) the experience and skill of the
person(s) who applied the technique on the occasion in question.
Id. This list of factors is by no means exhaustive, and the ultimate inquiry into reliability is flexible. See Nenno v.
State, 970 S.W.2d 549, 560-61 (Tex. Crim. App. 1998).
Sexton attacks the State's evidence of the validity of both the underlying theory and the technique used to match the
shell casings found at the scene of the crime and the cartridges found in Sexton's bedroom to the same magazine or
magazines.
Qualifications and Experience
Crumley testified he has worked as a firearm and toolmark examiner for over five years. He trained at the Texas
Department of Public Safety (DPS) crime lab in Austin for one-and-a-half years. As a part of his DPS training,
Crumley learned to identify magazine marks and match cartridges based on these marks. He also attended training
programs by the Southwest Institute of Forensic Science and the Association of Firearm and Toolmark Examiners, and
he taught courses on toolmark examination at the DPS crime lab, the Houston Police Department, and the University
of Texas Police Department. Crumley has also written three articles on firearm and toolmark examination, each
published in the Association of Firearm and Toolmark Examiners' Journal. In total, he has testified as a firearm and
toolmark expert in almost fifty cases. However, this was the first case in which he examined magazine marks and
testified about the results.
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Acceptance by the Scientific Community and Support in Literature
The science of ballistics in general, and specifically the matching of toolmarks, enjoys wide acceptance in the
scientific community. Cf. United States v. St. Jean, 1995 WL 106960, *5 (A.F. Ct. Crim. App. 1995), aff'd, 45 M.J.
435 (1996); Colorado v. Genrich, 928 P.2d 799, 802 (Colo. Ct. App. 1996); Prewitt v. Alabama, 460 So.2d 296, 302
(Ala. Crim. App. 1984); Collins v. Maryland, 447 A.2d 1272, 1283 (Md. Ct. Spec. App. 1982), aff'd, 464 A.2d 1028
(Md. 1983); New York v. Magri, 147 N.E.2d 728, 730 (N.Y. 1958); Leigh Stephens McCarthy, Comment, Life After
Daubert v. Merrell Dow: Maine as a Case Law Laboratory for Evidence Rule 702 Without Frye, 46 Me. L. Rev. 285,
318 n.164 (1994).While Crumley acknowledged he had never matched magazine marks in a case before, he also stated
that the practice was not a novel one. He identified three treatises in which magazine marks are mentioned as a way of
matching cartridges or shell casings, including Julian S. Hatcher's Textbook of Firearms Investigation, Identification
and Evidence, Vincent DiMaio's Gunshot Wounds: Practical Aspects of Firearms, Ballistics and Forensic Techniques,
and the Association of Firearm and Toolmark Examiner's training manual. However, Sexton points out that this
literature makes only passing reference to magazine marks.
DiMaio acknowledges in his book that "the magazine may impart class and individual markings to a cartridge ."
Vincent DiMaio, Gunshot Wounds: Practical Aspects of Firearms, Ballistics and Forensic Techniques 31 (1985).
Likewise, Hatcher includes magazine lips among the mechanisms that can leave distinctive marks on shell casings.
Julian S. Hatcher, Firearms Investigation, Identification and Evidence flyleaf, 310 (1957) (revision of Hatcher's
Textbook of Firearms Investigation, Identification and Evidence, published in 1935). Thus, while the treatises may
make only sparse mention of magazine marks, it is clear that the literature supports the theory that a magazine can
leave identifiable marks on cartridges and shell casings that can be matched to that magazine.
Rate of Error
According to Crumley, there is no possibility of error in matching one set of magazine marks to another. Crumley
claims the technique is one-hundred percent reliable and never wrong. DiMaio, author of Gunshot Wounds: Practical
Aspects of Firearms, Ballistics, and Forensic Techniques, testified that he could not be one hundred percent accurate in
matching two cartridge cases based on their magazine markings unless he had the actual magazine. However, as
Sexton points out in his brief, DiMaio did not qualify as a firearm and toolmark expert, and his interest in firearms and
toolmarks came only by way of hobby. Sexton further argues Crumley's statement that there is "no possibility of error"
is a "bald assertion" that is "legally insufficient to support this finding." However, while Crumley's assertion does not
conclusively establish the overall reliability of the technique for matching magazine marks, see Daubert v. Merrell
Dow Pharm., Inc., 43 F.3d 1311, 1316 (9th Cir.), cert. denied, 516 U.S. 869 (1995), it provides at least some evidence
of the possible rate of error, or lack thereof, in the process. Cf. Williams v. State, 936 S.W.2d 399, 402-04 (Tex. App.--
Fort Worth 1996, pet. ref'd) (no abuse of discretion in finding scientific evidence reliable even when only evidence of
rate of error was expert witness's testimony that "'[t]here's not really that much error'" and the test "'will either work or
it won't'").
Other Experts
Crumley further testified he worked under the supervision of Ed Love, who has been a firearm and toolmark examiner
for over twenty years. Love made an independent examination of the evidence and agreed with Crumley's findings.
Clarity of Explanation
At the suppression hearing, Crumley clearly explained the underlying theories--from general ideas on firearm and
toolmark identification to specific theories on the distinctive quality of magazine marks--and the technique he used to
apply those theories--evaluation of the live cartridges and the spent shell casings under a comparison microscope.
Conclusion
In light of this evidence, we hold the trial court's decision to admit Crumley's testimony did not fall outside of the zone
of reasonable disagreement, and we affirm the trial court's judgment. See Kelly, 824 S.W.2d at 573; Aguilar v. State,
980 S.W.2d 824, 826-27 (Tex. App.--San Antonio 1998, no pet.); Williams, 936 S.W.2d at 402-04.
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Sarah B. Duncan, Justice
Publish
1. The Honorable Robert R. Barton presided over the trial and signed the judgments in this case. However, the
Honorable Susan D. Reed, then presiding judge in the 144th Judicial District Court, presided over the pretrial
suppression hearing and ruled on the defendant's motion to suppress.
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