Review of Erroneous Admission of Expert Testimony

by Rick Wetzel on November 17, 2010

Here’s a quick blurb on the proper standard to be used by a Texas criminal appeals court’s analysis of whether the trial court erred in admitting expert testimony:

Texas Rule of Appellate Procedure 44.2(b)

In accordance with Tex. R. App. 44.2(b), this Court’s analysis of the harm associated with the erroneous admission of expert testimony considers everything in the record, including the evidence admitted, the jury instructions, the State’s theory, defensive theories, closing arguments, and voir dire.  Acevedo v. State, 255 S.W.3d 162, 170 (Tex. App. – San Antonio 2008, pet. ref’d); Motilla v. State, 78 S.W.3d 352, 356 (Tex. Crim. App. 2002).

Important Factors In The Analysis

Important factors are “the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case.”  Motilla, 78 S.W.3d at 355.  More specifically, the reviewing court should consider whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert.  Motilla, 78 S.W.3d at 356.

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{ 2 comments… read them below or add one }

allenrogers December 2, 2010 at 12:31 am

Rick, if the trial lawyer believes the State did emphasize the error and that the erroneously admitted evidence was elicited from the expert, what objections best preserve the error for appeal?


Rick Wetzel December 10, 2010 at 10:02 am

Take the expert on voir dire at the first opportunity under Tex. R. Evid. 705(b). If the court finds the expert qualified, reurge the lack of qualifications objection each time the State makes use of the erroneously admitted testimony.


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