PD-0448-17 11/08/2017
(1) “Did the appellate court, in affirming the trial court’s decision to admit the police officer’s expert testimony despite the officer acknowledging he had no requisite qualifications in motorcycle accident reconstruction, violate Texas Rule of Evidence 702?”
(2) “In relying on Nenno, instead of Kelly, did the appellate court apply an incorrect standard when determining that an accident reconstruction expert’s testimony was reliable even though he applied no scientific theory or testing from that field and he had no qualifications in the field of motorcycle accident reconstruction?
(3) “Should the less rigid Nenno standard apply, as opposed to the Kelly standard, when an expert in a technical scientific field chose to not apply any of the scientific testing or theory to a particular case?
Rhomer’s car collided with the motorcycle Chavez was riding, killing him. Rhomer was charged with felony murder and other offenses. At trial, the State offered testimony from a detective who testified that Chavez was on his side of the road when accident occurred. He based this opinion on the fact that debris from the accident was all in Chavez’s lane, curb strikes, the curvature of the road, where the vehicles had been damaged and Chavez injured, and where the vehicles and Chavez ended up—on Chavez’s side of the roadway. Although the detective measured the scene using a surveying instrument, he did not do any speed or energy calculations.
On appeal, Rhomer argued that the detective was not qualified and his testimony was unreliable because he had no training in motorcycle accident reconstruction. The detective, who had investigated at least 1000 crashes, had been certified at a 133-hour intermediate crash investigation course. He also attended an 80-hour advanced crash course, a reconstruction course, and trainings involving collisions between vehicles and pedestrians and vehicles and bicycles. He agreed that the physics and mathematical principles involved in reconstruction were different when the collision was between a car and a motorcycle but there were “distinct similarities” with collisions between a car and a bicycle. The court of appeals found the detective was qualified and his opinion reliable. Instead of applying Kelly’s reliability test for hard sciences, the court of appeals held that the test in Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998), applied because the detective’s opinion was not dependent upon scientific inquiry (like calculating speed) but was based on his experience and training.
Rhomer argues that the detective’s expertise in 2-vehicle collisions or vehicle-bicycle collisions did not make him an expert in accidents involving motorcycles, just as an M.D. degree does not qualify a doctor to opine on all medical questions. He also contends that the detective’s failure to use scientific theory and principles is a reason to find his opinion unreliable, not to invoke the lower standard in Nenno. He asserts that the detective’s belief that scientific theory was not needed is itself unreliable given his lack of training in motorcycle accident reconstruction.
