PD-0905-21 02/09/2022
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?”
Allison was convicted of aggravated robbery. The robbery occurred in September of 2016 and was committed by four people, one of them masked. The State alleged the masked robber was Allison. The State attempted to prove this by, inter alia, showing Allison ordered a shooting at the same house the next January. Part of this proof was a jail call from the night before that shooting in which Allison and his cousin apparently discussed the robbery and Allison repeatedly told his cousin to “pull a Carlos” or “do a Carlos.” The other part was testimony from Detective Jayson Reed, whose expertise included gang-related crimes. Reed testified that “pull a Carlos” means “to do a shooting” or “take care of a witness.” He learned this by consulting with a cooperative source he had dealt with since 1998 and two law enforcement officers. Allison objected to his testimony on multiple grounds, including his inability to confront the people who told Reed what “pull a Carlos” means.
The court of appeals reversed on confrontation and hearsay grounds. It held that the meaning of “pull a Carlos” was testimonial hearsay because it was obtained specifically for use at trial for the truth of the matter asserted. It also held that the State failed to show Reed’s statement was reliable or firmly rooted in a hearsay exception. Finally, it held that Reed exercised no independent judgment in the matter; he simply parroted an out-of-court testimonial statement “in the guise of an expert opinion.” The court of appeals found this error was not harmless beyond a reasonable doubt. It held the definition of “pull a Carlos” was important to the State’s case—it “needed, or at least believed that it needed, this evidence”—because the January shooting could prove Allison was the masked robber and there was no other proof of its meaning. The court of appeals conceded, however, that there was direct evidence connecting Allison to the robbery, including corroborated testimony from an accomplice and Allison’s inculpatory jail call. It found harm nonetheless.
The State makes three arguments. First, Detective Reed testified from personal knowledge. In his capacity as an officer (and human), Reed acquired knowledge by talking to people who have it. Second, if what he learned was hearsay, experts are permitted to base their opinions on inadmissible hearsay. See Tex. R. Evid. 703. Any requirement that experts independently test or analyze information given to them might make sense with hard sciences, but it has no place with soft sciences like the field of street slang. Moreover, Reed received multiple definitions that were close but had to be synthesized for his testimony. Third, and alternatively, any error was harmless beyond a reasonable doubt because the State’s case was strong without the evidence tying Allison to the January shooting.
