7 - Voice For The Defense Online

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NO. 30,M
THE STATE OF TEXAS
VS.
$ IN THEDISIWCT COmT OF
9
8 FORT BEND COUNTY, TEXA8
§
8 268TH ]UDICL$L DISIWCT
MOTION TO DETERh4INE COMPETENCE OF
EXPERT WITNESSES TO TESTIFY
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Defendant and files this Motion to Determine Competence of Wtmesses to Testify
and for grounds shows:
1. Pursu:mt to the Templrary Orders that were entered in Cause No. 103,XXX in the .328tli
Judicial District Court, Defendant was forced to undergo Uevaluation" by psychologists whom TDPRS
(CPS) selected. The 328thJudicial Dlstrict Court did not advise Defendant ttrat my statements that
Defendant made to the psychologists could he used against 1)efend;nt in a criminal case or in a court
of law ("Miranda warning"). Further,]oseph Prraino, Ph.1). did not warn Defendant thlt the suhject
matter of Defendant's examinations would be diRlo6ed to ckitd parties, or in a court of law, or that
same could be used against Defendant m a cfimirral case. Subin u. Tevls D@pdrtment of Human
Services, 750 S.W.Zd 827,830 (Ta. App. El Paso 1988, nQ wnt). For this resson alone, this Court
should therefore exclude the twimony of all of TDPRS (CPS] experts.
2. Further, based on areview of the Gourt's fdes? the indictment m this case and the we
file m
the 328th Judiil DiicTCourt., Defendant expects the State (CPS) to call cerrainpasons to t&
as "esiperts" on the subject of allegcd abuse or alleged heat ra the welfare of the wmpkiatu in thh
ca.m Defendant expects h e petsons to be pychalogisu, CC.W.'s and/or C.P.S. caseworkers. Defendant
requests the Court to exerciae its Daubert "gatekeeper function" anddetemme the competence
of any such experts to testify at any proceed'ig herein. Rule 702, Tex. R. Euid.; Nenno v. State, 970
S.W.2d 549 (Tex. Crim. App 1998); Ham~r
u. Stme, 946 S.W,Zd 60 (Tex. Crim. App. 1997, en
banc); Janlrm u, Statte, 928 S.W.Zd 550 (Teu. Crim. App, 1996); Kelly u. State, 824 S.W.2d 568 (Tex.
Crim. App. 1992, en bane).
3. Defendant therefore moves to have each oFsuch pemns who would testify to alleged abuse
in this case, or any variant thereof eg. that wnduct is consistent wtth abase, that abwd children
recant, that the chikken are in danger if they remain with Defendant, chat Defendant pmes a fume
danger to the children, that abused children don't lie, that Defendant suffets From any alleged
svndromc etc. be examined at a prelunmary hearing and later, ifnecessary, outside of the presence of
the jury as to their competence
testify and offcr expert testimony on the sublecr of alleged abuse.
4. A authority for this motion, Defendant wuuld show that, effective March 1,1998, the Rules
of Evidence were consulidated into the Texas Rules of Evidence. The source of these Kules is the
Federal Rules of Evidence and the decisbm interpreting them should be hafmonieed as mu& as
possible. RaEtr u. State, 745 S.W.2d 415 (Tex. App. Houstoh [l4thDist.J 1988, no writ) ahd Callaway
v. State, 81.S.W.Zd 816 (Tex. App. k ill0 1991, review refused). In 1992, interpret& Rule 703,
Tex. R. Crim. kid., the Gown. of CriminaLAppeaIs changed the standard far the admissibility of
expen testimony incriminal cases: Kelly v. SW, 824 S.W.2d 568 (Tex. Crim. App. 1992)b baht].
The Gourt of Criminal Appealswnounced a three-pngd test to determine thereliability d"novd
sdenafi evidence": (a) the underlying tkeoey he valrdi (b) the technique applying the thwty
mw be valid; and (c) the technique must have been pmperly applied. KkUy at p. 572. KeUy did no6
address the Fve test, because that test had never been specifically adopted by the (iaur~s in Texas. In
1993, the Supreme Gown. of the United Stata changed the standard for admissib'iity of expert testimony
£tom the Frye rest of general aecept;mce to a test that expert tescLaony mast be reliable and
based on scientific methodology. DArt w. MePr@ll Dow Fhamaceutieals, Inc., 509 U.S. 579, I13
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