Case Number: 02-16-00212-CR

Judge: Bonnie Sudderth

Court: COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

Plaintiff's Attorney: Robert T. Christian

Defendant's Attorney: Johnna McArthur

Description: Appellant shot and killed his wife, LaVera, on February 12, 2015. He shot
her six times while she was sitting in her SUV in their driveway and on the phone
with 911. LaVera died while she was still on the phone with 911.
In an interview that evening with Investigator Robert Young, Appellant
explained the tumultuous relationship he and LaVera shared. They had been
married just over three years. During that time, they had worked together in an
insurance business that LaVera owned, but had been struggling financially and
often argued over money. The couple had discussed divorce as a possibility,
and according to Appellant, he had been in the process of moving out of their
home at the time of the shooting.
Appellant described LaVera, who was his fourth wife, as verbally and
emotionally abusive toward him, claiming that LaVera would “get in [his] f***ing
face” all the time when they argued, which was often, “beat down” on him, and
according to Appellant, “[s]he just wouldn’t f***ing leave [him] alone.” Appellant
told Young that he could not take it anymore.
LaVera had called 911 on one prior occasion, and when they began to
argue again earlier in the evening of LaVera’s death, Appellant said that LaVera
went outside and threatened to call 911 again. Appellant told Young, “I asked
her to get out of the g**d*** car, she wouldn’t get out of the g**d*** car, I went
into the house, I got the gun, I went back and I shot her. I guess I shot her six
times because the gun was empty.”
3
Appellant made multiple statements along these lines. At one point he
said he told LaVera, “Open the window, let’s talk,” but LaVera replied, “I’m talking
to 911,” and then he shot her. At another point, he explained that he said, “Come
here, let’s talk,” and she said, “I’ve got 911, I’m calling the police on you again,”
and Appellant thought, “Well, this is it, I’m f***ed.” Yet another time he explained,
“[S]he [went] and got in her g**d*** Mercedes and [said] ‘I’m calling 911.’ When
you push somebody so much, then—well” and, “she just decided that she was
going to go out and call the g**d*** police on me again.” Appellant said that after
he shot her initially, LaVera screamed to the 911 operator, “He shot me! He shot
me!” so he shot her again. At another point, he told Investigator Young that he
shot her “because she [was] f***ing mean.”
Appellant also explained to Young that he was concerned she would report
him for domestic abuse. Although he strenuously denied ever hitting or
otherwise physically abusing LaVera, he was worried that domestic abuse
charges could place his license to sell insurance at risk.
Appellant was charged with capital murder for killing LaVera in retaliation
for or to obstruct her from calling 911 and reporting him to the police. See id.
(providing elements of capital murder), § 36.06 (West 2016) (providing that a
person commits an offense if he harms another by an unlawful act in retaliation
for or to prevent their reporting of a crime).
At trial, Appellant only contested whether he shot LaVera in retaliation or
obstruction of her call to 911. To support his defensive theory, Appellant offered
4
the testimony of Dr. Brian Falls, a forensic psychiatrist who met with Appellant
once about a year after the murder. The State challenged the admissibility of
Dr. Falls’s testimony, and at a pretrial hearing, Dr. Falls explained his opinion.
Dr. Falls testified that, after meeting with Appellant for approximately five
hours, he diagnosed Appellant with severe alcohol use disorder, general
personality disorder, and a depressive disorder. Dr. Falls also testified that
based on his review of a dozen or perhaps “a few dozen” peer-reviewed journals
and literature from the Food and Drug Administration, Appellant’s use of the drug
Chantix, a smoking-cessation aid, was “one of several contributing factors” that
caused Appellant to kill his wife. According to Dr. Falls, medical literature
reported that Chantix had the ability to make some people act “aggressive[ly],”
“impulsively, irrationally, and . . . very quickly, oftentimes.”
Dr. Falls opined that Appellant’s use of Chantix,1 his heavy consumption of
alcohol (contrary to the warning to avoid alcohol use on Chantix’s packaging), his
personality traits (including narcissism), and his psychopathic traits (including
impulsivity) combined to cause him to abruptly kill his wife. In Dr. Falls’s view,
the spontaneous nature of the murder and because, a year after the fact,
Appellant could not explain to Dr. Falls why he murdered LaVera, Appellant’s
actions were illogical and irrational. And, because of the illogical and irrational 1Falls admitted that Appellant had stopped taking Chantix four or five days before the murder, but testified that the FDA has acknowledged that people can have issues with aggression or violence even after they have stopped taking Chantix.
5
nature of the murder, Dr. Falls opined that Appellant did not murder LaVera in
retaliation for her calling 911.
At the conclusion of the hearing, the trial court found that while Dr. Falls
was qualified to testify as an expert, his expert opinion was inadmissible because
it was not relevant to the jury’s determination of guilt.
The jury found Appellant guilty of capital murder. Because the State
elected not to seek the death penalty, Appellant was automatically sentenced to
life in prison without parole. See id. § 12.31(a)(2) (West Supp. 2017).
Discussion
On appeal, Appellant argues that the trial court erred by excluding
Dr. Falls’s testimony regarding the effects of Chantix because, in his estimation, it
goes directly to Appellant’s mental state and whether he killed LaVera in
retaliation for or to prevent her from calling 911.
I. Standard of review and applicable law
We review the trial court’s decision to exclude expert testimony for an
abuse of discretion and will not disturb the decision so long as it is “within the
zone of reasonable disagreement.” Kelly v. State, 824 S.W.2d 568, 574 (Tex.
1992).
Rule 702 allows for the admission of testimony by an expert witness so
long as (1) the witness qualifies as an expert by reason of his knowledge, skill,
experience, training, or education; (2) the subject matter of the testimony is an
appropriate one for expert testimony; and (3) admitting the expert testimony will
6
actually assist the factfinder in deciding the case. Tex. R. Evid. 702; Alvarado v.
State, 912 S.W.2d 199, 215–16 (Tex. Crim. App. 1995). As the sponsoring party,
Appellant was required to demonstrate, by clear and convincing evidence, that
Dr. Falls’s testimony was (1) based on a reliable foundation and (2) relevant to
the issues in this case. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.
2011) (citing Hartman v. State, 946 S.W.2d 60, 62 n.4 (Tex. Crim. App. 1997);
Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996)); see also Kelly,
824 S.W.2d at 573 (establishing the burden of proof as clear and convincing
evidence rather than simply preponderance of the evidence before scientific
evidence may be admitted under rule 702).
To be relevant, an expert’s opinion must not only assist the trier of fact in
understanding the evidence or determining a fact in issue, but also be sufficiently
tied to the facts of the case. See Tex. R. Evid. 702; Jordan, 928 S.W.2d at 555.
In other words, as the expert, Dr. Falls was required to “make an effort to tie
pertinent facts of the case to the scientific principles which are the subject of his
testimony.” Tillman, 354 S.W.3d at 438 (quoting Jordan, 928 S.W.2d at 555).
With regard to expert testimony involving mens rea, the court of criminal
appeals has generally disapproved of opinion testimony to another person’s state
of mind. In Winegarner v. State, the court acknowledged that while a witness
may testify to his own intention or state of mind, a witness’s testimony to another
person’s state of mind is “necessarily based on conjecture” because “one person
cannot possibly know another’s state of mind.” 505 S.W.2d 303, 305 (Tex. Crim.
7
App. 1974), overruled on other grounds by White v. State, 576 S.W.2d 843, 845
(Tex. Crim. App. 1979); see also Jackson v. State, 548 S.W.2d 685, 692–93
(Tex. Crim. App. 1977) (relying upon Winegarner in holding it was not proper for
psychiatrist to testify to defendant’s state of mind at time of voluntary
manslaughter). However, expert testimony to a defendant’s intent or state of
mind has been held admissible in some limited circumstances, including:
(1) cases involving the defense of insanity, see Ruffin v. State, 270 S.W.3d 586,
593 (Tex. Crim. App. 2008) (“Insanity is the only ‘diminished responsibility’ or
‘diminished capacity’ defense to criminal responsibility in Texas.”); (2) cases
involving the defense of self-defense in a domestic violence situation, Tex. Code
Crim. Proc. Ann. art. 38.36(b) (West 2005); or (3) cases where such testimony
may be relevant to rebut or disprove the defendant’s culpable mens rea, Ruffin,
270 S.W.3d at 593; Jackson v. State, 160 S.W.3d 568, 573 (Tex. Crim. App.
2005). Appellant argues that Dr. Falls’s testimony is admissible because it was
relevant to rebut or disprove Appellant’s mens rea.
In 2005, the court of criminal appeals differentiated between evidence that
tended to negate the requisite mens rea for a crime and evidence that simply
presented an excuse for the crime. Jackson, 160 S.W.3d at 572. In Jackson,
the defendant claimed that he had killed his brother because he was paranoid
that his brother was out to get him. Id. He sought to present a defense of
diminished capacity and presented evidence of his mental illnesses through his
own testimony and that of a psychiatrist expert witness. Id.
8
The court, in reiterating that Texas does not recognize a diminished
capacity defense, held that evidence of the defendant’s mental illness was
inadmissible because it did not tend to negate the requisite mens rea. Id. The
court explained that any evidence of defendant’s mental illness did not serve to
negate the applicable mens rea, but instead presented an excuse for the crime—
“that Appellant killed his brother because he was so paranoid that he thought his
brother was out to get him.” Id. The expert testimony, the court explained,
actually made the defendant’s mens rea—the intent to seriously injure or kill his
brother—more clear, not less so. Under the facts of that case, the expert
testimony regarding the defendant’s mental illness simply provided a motive for
his intentional act. Id.
Three years later, however, in a case involving a mental illness in a
different context, the court of criminal appeals rejected a blanket ban against the
admission of expert testimony offered to rebut a defendant’s mens rea, holding
that expert testimony could be relevant and aid the jury in determining whether
the defendant possessed the requisite mens rea under the facts of that case.
Ruffin, 270 S.W.3d at 596. In Ruffin, the defendant was charged with aggravated
assault of a police officer. Id. at 597–98. At trial, Ruffin offered testimony by his
psychologist to the existence and severity of his mental disease and delusions,
which had caused him to believe he was shooting at trespassers or Muslims, not
police officers. Id. at 588. The court of criminal appeals compared Ruffin’s
delusions to blindness and used the example of a blind defendant who shot a
9
person upon hearing them approach his front porch. Id. at 593. If that person
turned out to be a uniformed police officer, the court reasoned, the blind
defendant could not be convicted of aggravated assault of a police officer
because his blindness prevented him from seeing the uniform and knowing that
the person was a police officer. Id. at 593–94. In that situation, evidence of
defendant’s blindness—either from a layperson or an expert witness—would
certainly be relevant to rebut the argument that the man intended to shoot at a
police officer. Id. at 594.
Using this analogy, the court reasoned that in other circumstances, expert
testimony could be relevant to explain how a physical condition could distort a
person’s perceptions thereby negating mens rea:
If, instead of blindness, the defendant suffers from mental delusions such that he sees a “trespasser” or a “Muslim” when everyone else around him sees a police officer, he cannot be convicted of intentionally shooting at a police officer, although he may be convicted of intentionally shooting at a trespasser or Muslim. Guilt of the greater offense requires that the State prove, beyond a reasonable doubt, that the defendant intended to shoot a police officer, not a trespasser or Muslim. That is the required mens rea and that is the State’s constitutional burden of proof.

Id. at 594 (footnotes omitted). Thus, the court held, expert testimony to Ruffin’s
mental diseases and delusions was relevant to explain how his delusions
distorted his “auditory and visual perceptions” and could aid the jury in
determining whether the defendant intended to shoot at police officers. Id. at
597.
10
II. Application
First, unlike the defendant in Ruffin, here there was no evidence that
Appellant’s use of Chantix actually negated his mens rea. Rather, Dr. Falls
broadly opined that several factors—including Appellant’s use of Chantix—
combined to, essentially, create a “perfect storm” that made Appellant more
impulsive and irrational.
But the question here is whether Dr. Falls’s testimony was offered to
provide an excuse for the crime, as in Jackson, or whether it was probative as to
mens rea, as in Ruffin. The mens rea of capital murder as it was charged in this
case was twofold: (1) Appellant’s intent to kill LaVera, and (2) Appellant’s intent
to obstruct or retaliate against LaVera’s calling of 911. See Tex. Pen. Code Ann.
§§ 19.03(a)(2), 36.06.
Appellant argues that Dr. Falls’s testimony was relevant and admissible to
negate the mens rea of retaliation or obstruction, but we disagree. As it was
presented in this case, the evidence of the influence of Chantix on Appellant is
more closely akin to the influence of paranoia in Jackson—it merely provides a
possible excuse for his irrational and impulsive behavior.
Dr. Falls essentially testified that Appellant killed LaVera because Chantix
caused him to act impulsively and irrationally.2 Notably, Dr. Falls did not testify
2Given the potentially harsh penal consequences of violent crime, much violent criminal behavior could be characterized as irrational and impulsive, regardless of whether drugs—prescription or otherwise—are involved.
11
that Chantix prevented him from being motivated, at least in part, by the fact that
she was on the phone with 911, reporting him for domestic abuse. Here,
Dr. Falls merely provided an excuse as to why, in his expert opinion, Appellant
did not reflect and consider the consequences of his act prior to pulling the
trigger multiple times. Thus, Dr. Falls’s testimony provided an excuse for
Appellant’s overreaction to LaVera’s contacting 911, but it does not negate
Appellant’s mens rea.3
We do not go so far as to hold that expert testimony to the side effects of
Chantix or other medications is wholesale inadmissible. Appropriately presented,
such testimony may be helpful to a jury if, for example, it caused delusions or
hallucinations similar to those caused by mental illness in Ruffin. Ruffin, 270
S.W.3d at 597; see also Jackson, 160 S.W.3d at 574 (“[R]elevant evidence may
be presented which the jury may consider to negate the mens rea element.”).
But the opinion evidence offered in this case by Dr. Falls was irrelevant.
Because the trial court did not abuse its discretion in excluding Dr. Falls’s
testimony, we overrule Appellant’s only issue.

Outcome: Having overruled Appellant’s sole issue on appeal, we affirm the trial
court’s judgment.

Plaintiff's Experts:

Defendant's Experts:

Comments: