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fied-immunity appeals—arising from their use
of force after Barnes had been restrained and
handcuffed—turn on questions of fact the dis-
trict court found disputed, we DISMISS these
interlocutory appeals for lack of jurisdiction
and REMAND for proceedings consistent
with this opinion.
Carroll v. Ellington, et. al., 5th Cir., No. 13-
20388, Aug. 26th, 2015.
EYEWITNESS TESTIMONY
Appellant was charged with aggravated rob-
bery. The only dispute at trial was the identity
of the assailant. To prove that the eyewitness
misidentified Appellant, the defense called a
forensic psychologist named Dr. Steven
Rubenzer to testify about the weapon-focus
effect and its possible impact in this case. The
trial court, however, excluded that testimony
as irrelevant.
Appellant was subsequently convicted. On
appeal, the Ninth Court of Appeals agreed
that the testimony was not relevant and
affirmed the ruling of the trial court. In the
first round of appeals, the Court of Criminal
Appeals reversed and remanded to the Ninth
Court which once again, affirmed the judg-
ment (conviction) of the trial court, but this
time on the basis that the scientific principles
of the weapon-focus effect were not proven
to be reliable by clear and convincing evi-
dence.
The Court of Criminal Appeals took the sec-
ond appeal on two issues:
(1) Eyewitness misidentification is a hallmark
of wrongful conviction, and
(2) Whether the court of appeals has decided
an important question of
30 www.texaspoliceassociation.com • 866-997-8282
federal law in a way that conflicts with the
applicable decisions of the Court
of Criminal Appeals or the Supreme Court of
the United States.
A trial judge’s decision to admit expert testi-
mony is reviewed for an abuse of discretion
and may not be reversed unless that ruling fell
outside the zone of reasonable disagreement.
Rule 702 of the Texas Rules of Evidence gov-
erns the admissibility of expert evidence:
A witness who is qualified as an expert by
knowledge, skill, experience, training, or
education may testify in the form of an opin-
ion or otherwise if the expert’s scientific, tech-
nical, or other specialized knowledge will
help the trier of fact to understand the evi-
dence or to determine a fact in issue.
We have interpreted this rule to require a pro-
ponent to prove by clear and convincing evi-
dence that the proffered testimony is reliable
and helpful to the jury in deciding the ulti-
mate issue.
However, because only the reliability of the
proposed expert testimony is at issue in this
case, we address only that requirement.
The purpose of the reliability inquiry is to
“separate the wheat from the chaff.” That is,
the trial court in its role as gatekeeper should
exclude unreliable “junk” science while
allowing other permissible types of reliable
expert testimony. We have identified two
types of permissible scientific evidence under
Rule 702, “hard” science evidence, such as
physics or mathematics and “soft” science
evidence, such as “social sciences or fields
that are based primarily upon experience and
training as opposed to the scientific method .
. . .” Psychology is a soft science, and eye-
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