Page 89 - Texas police Association Peace Officer Guide 2017

In Gutierrez-Farias, although the expert witness did not specifically reference the defendant, his
testimony “presented the jury with a simple generalization: In most drug cases, the person hired
to transport the drugs knows the drugs are in the vehicle.” Accordingly, this court concluded that
the expert testimony crossed the line between an explanation of the witness’s analysis of the
facts and an impermissible opinion on the ultimate legal issue in the case. Thus, we must
determine whether Agent Sanchez’s testimony was an explanation of the facts of the case or an
impermissible opinion regarding whether Ramos knew that the cocaine was in his vehicle.
During Agent Sanchez’s direct examination, he testified regarding several characteristics of drug
couriers, including: (1) drug smugglers being matched to the type of vehicle they drive (example
of cowboy-type to a pickup truck); (2) drug smugglers use the voids in the vehicle to hide the
drugs; (3) drug smugglers change license plates to avoid detection; (4) drug smugglers use
“burner” cell phones that have virtually no history or personal information attached to the phone;
and (5) the time line for the travel pattern of a drug smuggler from Mexico to a hub city in the
United States and back to Mexico. A careful reading of Agent Sanchez’s testimony indicates that
it was an explanation of the facts of the case, and it made no assertion or generalization regarding
Ramos’s knowledge. Thus, we conclude that Sanchez’s testimony was not the “functional
equivalent” of an opinion that Ramos knew he was transporting drugs.
For the foregoing reasons, the district court’s judgment is AFFIRMED.

th
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U.S. v. Ramos-Rodriguez, No. 14-50846, 5 Cir., Jan. 5 , 2106.
EVIDENCE, HEARSAY, CHILD WITNESS.

Brandon Earl Barker (“Barker”) appeals his convictions under 18 U.S.C. § 2252(a)(2) and 18
U.S.C. § 2252(a)(4) for one count of possession of child pornography and four counts of attempt
to receive child pornography. He argues that the district court’s admission of the out-of-court
statements of a child victim to a Texas-certified Sexual Assault Nurse Examiner (“SANE”)
violated his Sixth Amendment confrontation right. Because we hold that the child’s statements to
the SANE were non-testimonial, we affirm the district court’s admission of the testimony and the
conviction.

In July 2013, during a period of attempted marital reconciliation, Barker’s ex-wife discovered
files on his desktop computer with titles indicative of child pornography. She recorded a cell
phone video of the location of the files. After arguing over the custody of the couple’s child a
few days later, Barker’s ex-wife told him she did not think that her daughter was safe in his care
and she “knew what he was doing on his computer.” She then informed the police that she had
discovered child pornography on Barker’s computer. The police seized Barker’s computer. A
forensic analysis subsequently discovered over 180 images, over 100 files, and one video of
child pornography.

At Barker’s trial, the Government moved to introduce evidence of Barker’s alleged prior sexual
abuse of a young girl. LaFrance testified to the duties of a SANE, noting that a SANE is tasked
with medically evaluating a patient referred by law enforcement for a sexual assault exam. The
police are not present during this examination; the nurse and patient are alone in the room. The

A Peace Officer’s Guide to Texas Law 84 2017 Edition