HERVEY, J., delivered the opinion for a unanimous Court.
Appellant, Larry Joseph Tillman, was charged with capital murder. TEX. PENAL CODE §§ 12.31(b), 19.03(a)(2). A jury found him guilty, and the trial court assessed
On the night of December 21, 2005, the victims, Amandre Wilson and Joseph Liebetreu, returned home after attending a charity ball. Ricardo Avila, who lived across the street from Wilson's town home, was in his kitchen just after midnight when he heard two gunshots from the direction of the victim's home. As he ran towards the front of his house to look across the street, Avila heard Liebetreu yell, "Hey, you, get out of here." He then heard two more shots. Avila saw an "extremely tall" black man run out of the victim's front door. The suspect was wearing a black, mid-thigh length coat and a gray knit cap. Avila testified that the lights of the victim's front porch and garage were working, as was the street light, so he could see the suspect's face.
Dan Christoffel lived in the same town-home complex as Wilson. While his brother was driving him down the street, Christoffel witnessed a tall black man who appeared to have been running away from the victim's home, slowing when he saw the car's headlights. Christoffel described the man as having a baby face and wearing a knit cap and a dark, long, thigh-length coat. Christoffel passed within four to six feet of the suspect, and the two made eye contact. Christoffel submitted a sworn witness statement that morning.
Bobby Williams testified at trial that he was at an apartment talking to some people when three black males came into the apartment. This was shortly after the victims were murdered. Williams saw and heard one of these individuals, a "big guy," discussing how he had murdered the victims.
On February 23, 2006, Williams "tentatively" identified Appellant to a couple of police officers while they were driving around Appellant's neighborhood in an unmarked police vehicle. Subsequently, the investigating officer, Xavier Avila, prepared a photo spread containing Appellant's photograph. On February 24, witnesses
Twelve days later, on March 8, witnesses Avila and Christoffel separately viewed a five-person live lineup. Officer Avila described the lineup at trial. He stated that Appellant was in the number one position, and Appellant was the only individual in this live lineup who was cleanly shaven. Appellant was also the only one in the live lineup from the previous six photo spreads that had been viewed by the witnesses previously. Witness Avila positively identified Appellant. Christoffel "tentatively" identified Appellant from the lineup—he stated that either Appellant or the number two person in the live lineup was the person he saw and that he "felt confident that No. 1 was the person based on his face." Christoffel testified at trial:
Officer Avila suggested that there was nothing unusual about the identification procedure used with witnesses Avila and Christoffel:
The defense responded to this during cross-examination by emphasizing some of the suggestive aspects of the identification procedure:
Officer Avila also testified that a videotape of the lineup was shown to Christoffel's brother, who said he thought the suspect could either be the man in the third or fourth position. On re-direct, Officer Avila explained that he did not really expect the brother to be able to identify anyone since he was driving that night and his focus was on that task.
Appellant proffered the testimony of Dr. Roy Malpass as an expert on eyewitness identifications, and the trial court conducted a hearing outside the presence of the jury. Throughout the gatekeeping hearing, Malpass emphasized that he was not there to render an opinion about the accuracy of any particular witness's testimony. Nor did he intend to tell the jury about the specific lineup or photo spread used. Instead, he was to discuss the manner in which the lineup and photo spread were employed. For example, he proposed to testify "[t]hat the use of a photospread prior to gaining identification in a, in a physical lineup is a biasing fact against the Defendant." Similarly, defense counsel stated that he did not intend to ask Malpass specifically about the testimony of Officer Avila. Rather, it "expected to put those questions to [Malpass] as hypotheticals without reference to whether or not he had heard the testimony."
On direct examination, Malpass testified that he was a professor of psychology at the University of Texas at El Paso, has researched eyewitness-related issues since 1969, and has conducted a number of experimental studies in the area. Malpass asserted that he leads the Eyewitness Identification and Research Laboratory at the university, which, at any given time, utilizes two to three Ph.D. students as well as several undergraduates in ongoing research. A number of scientists from other universities are involved in the laboratory's work too. Additionally, Malpass participated
When asked if his area of psychology, the study of eyewitness identification, is a field of study, Malpass responded in the affirmative. He explained that it is an experimental science, using repeatable techniques and calculated error rates to test a working hypothesis. Additionally, Malpass stated that a community consensus among experts on the subject matter is achieved through peer review and surveys of those experts.
Malpass noted that he has conducted experiments using simulated crimes and testing eyewitnesses in the capacity of eyewitnesses to pick out suspects, and he has been on national television to discuss those experiments. He also explained that he is familiar with scientific, psychological studies involving eyewitness procedures, including the use of photo spreads. Malpass stated that he heard the testimony of Officer Avila, and the type of photo spread used in this case is the same kind examined in the experiments he has studied. Malpass asserted that he has testified in a number of cases in Texas on similar matters, and although he has testified only for the defense in criminal trials and defendants in civil trials, Malpass has worked as a consultant for prosecutors, the federal government, and for defendants in both state and federal courts.
On cross-examination, Malpass acknowledged that he has never personally done studies where "there was a photo spread followed by a lineup," and that his "testimony has been disallowed several times by trial court judges in state criminal cases" because the trial court found his testimony either not relevant or not reliable. He also recognized that "there's one well-known researcher who flatly states that our knowledge is not sufficient for him to testify." However, on re-direct, Malpass stated that the same expert will never testify for the defense and testifies for the prosecution frequently.
On re-direct examination, Malpass testified that there are a number of people, including himself, who will not testify about certain issues simply because they believe that the scientific research is not sufficiently developed at this time. However, there are over 30 scientific studies involving the use of a photo spread in which no one is identified, followed by a live lineup in which only the target suspect was also in the photo spread. According to Malpass, those studies show that such a procedure is suggestive.
Malpass also testified regarding identification procedures like those used with Williams.
Malpass stated that these two types of identification procedures are "suggestive."
In a later hypothetical, Malpass testified to the psychological effects on an eyewitness of working with a sketch artist.
A final hypothetical addressed the suggestiveness of a lineup in which only one individual has a particular physical characteristic.
On re-cross examination, the State inquired about why a jury needs an expert to be told that these identification processes were suggestive, and Malpass replied that there are studies showing that jurors do not understand eyewitness identification completely and do not know how to apply what they do know to a particular case. When questioned about the general studies to which he had referred, Malpass stated that they are conducted with a wide range of conditions (for example, often staging crimes with varying degrees of distraction), and he explained via example that the conditions are manipulated in order to focus on various, isolated factors. The State then asked Malpass to describe the most reliable study that he knows. In response, Malpass detailed a study in which a crime was staged in front of about 350 people in a lecture hall, and then law enforcement interviewed the viewers and conducted live lineups. Questionnaires were also distributed that asked about the viewers' personal reactions to the events. According to Malpass, the viewers, like jurors, did not seem to "spontaneously" understand what was a fair lineup procedure and what was not. Malpass later explained that a witness uses the same mental processes in a lab experiment as in the real world, so the results of the relevant studies could be translated into real life, real crime scenarios.
During subsequent questioning, Malpass denied that he was asleep during Officer Avila's testimony. He maintained that his attention did not waver while the officer was on the stand. A deputy did approach him while a supervisor from the Houston Police Department was on the stand but not when Officer Avila was testifying. Still, Malpass stated that he was not present during the testimony of witnesses Avila and Christoffel.
The trial court decided that Malpass would not be permitted to testify before the jury. In excluding Malpass's testimony, the trial court made this ruling:
Other witnesses who testified at trial included policemen and investigating officers involved in the case, the first paramedic and the first police officer to arrive at the scene, a shoe-print and tire-tread examiner from the FBI, a forensic consultant, a firearm examiner, a Harris County medical examiner, a forensic artist, a retail analyst, Appellant's former cellmate, Wilson's brother, and Liebetreu's co-worker.
During its deliberations, the jury sent out two notes. One note asked "to see the artist sketch drawn with the description provided by [Officer Avila]" and to "provide the [post-arrest] picture that the prosecuting attorney showed the jury during final arguments" of Appellant. The other note asked for "the VHS tape that [the police] took of the outside of the [victim's town home] revolving around to [witness Avila's] house across the street." Ultimately, the jury found Appellant guilty of capital murder, and the trial court assessed the automatic punishment of confinement for life in the Institutional Division of the Texas Department of Criminal Justice.
Appellant argued on direct appeal that the trial court erred in excluding Malpass's testimony.
We granted Appellant's petition for discretionary review to address whether the court of appeals erroneously decided that the trial court properly excluded the eyewitness-identification testimony of Appellant's proffered expert (Malpass) because the psychologist "demonstrated no knowledge of the facts of this case and made no effort to connect his opinion with those facts." See id. at *4-5, 2010 Tex.App. LEXIS 4013, at *12.
Appellant argues that the court of appeals improperly excluded Malpass's testimony because it was indeed relevant and reliable as it satisfied the three requirements of Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App.1998), for "soft sciences."
Appellant reasons that courts have recognized that there is a place for experts in the area of eyewitness identification in criminal trials. He asserts that Malpass is qualified as an expert in that field and the subject matter that he proposed to discuss is within the scope of that field. In addition, he contends that Malpass's testimony was aimed at the very procedure used in this case. Malpass was familiar with the identification procedure at issue, and his proposed testimony would explain the general suggestiveness of the specific type of identification procedure used here. Appellant points out that at least thirty studies backed up Malpass's testimony. Further, Malpass's testimony would be helpful to the jury because jurors really do not fully understand eyewitness identification and the possible bias of an incorrect procedure.
According to Appellant, when Malpass sought to discuss the suggestive nature of the specific identification process used in this case, he proposed to do nothing more than what other experts are allowed to do everyday, testify in the hypothetical. Appellant analogizes this situation to child-abuse cases in which experts are allowed to testify about "delayed outcry syndrome." In such cases, the experts do not claim to know whether that syndrome was in play in any given case, but the testimony is helpful to the jury and typically permissible.
The State responds that Appellant has failed to prove that Malpass's testimony was relevant and reliable. The State concedes that Malpass proved to be a psychologist through profession and he assisted the Department of Justice in publishing literature on eyewitness evidence, but it maintains that that is the only evidence proffered to support his expertise in the area of eyewitness identification. The State notes that Malpass admitted this was not a study conducted or observed by himself but rather something about which he had read. The State suggests that it cannot be gathered what principles of psychology Malpass might have relied upon during his eyewitness-identification testimony. He cited no books, articles, journals, or names of psychologists who practice in this area—he provided only "generic testimony" and "general studies."
A trial judge's decision on the admissibility of evidence is reviewed under an abuse of discretion standard and will not be reversed if it is within the zone of reasonable disagreement. Davis v. State, 329 S.W.3d 798, 813-14 (Tex.Crim.App. 2010); Russeau v. State, 291 S.W.3d 426, 438 (Tex.Crim.App.2009).
Here, the evidence at issue is the testimony of eyewitness-identification expert Malpass. Admission of expert testimony is governed by Rule 702 of the Texas Rules of Evidence, which states,
Tex.R. Evid. 702; see Morales v. State, 32 S.W.3d 862, 865 (Tex.Crim.App.2000). For expert testimony to be admissible under this rule, the party offering the scientific expert testimony must demonstrate, by clear and convincing evidence, that such testimony "is sufficiently reliable and relevant to help the jury in reaching accurate results." Kelly v. State, 824 S.W.2d 568, 572 (Tex.Crim.App.1992). In other words, the proponent must prove two prongs: (1) the testimony is based on a reliable scientific foundation, and (2) it is relevant to the issues in the case. Hartman v. State, 946 S.W.2d 60, 62 n. 4 (Tex.Crim.App.1997); Jordan, 928 S.W.2d at 555.
The focus of the reliability analysis is to determine whether the evidence has its basis in sound scientific methodology such that testimony about "junk science" is weeded out. Jordan, 928 S.W.2d at 555. Expert testimony in the field of psychology pertaining to the reliability of eyewitness identifications is a "soft science." See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App.2000). Consequently, to establish its reliability, the proponent must establish that "(1) the field of expertise involved is a legitimate one, (2) the subject matter of the expert's testimony is within the scope of that field, and (3) the
Here, Malpass was to testify about the reliability of eyewitness identifications. We believe that psychology is a legitimate field of study and that the study of the reliability of eyewitness identification is a legitimate subject within the area of psychology. Malpass explained that the study of eyewitness identification is an experimental science—it tests a working hypothesis using repeatable techniques that allow for the calculation of error rates. Universities and colleges, including the University of Texas at El Paso, have laboratories that focus on eyewitness identification, and there are published journals on the subject matter. In addition, those involved in the field are able to establish a consensus through peer review articles and surveys of experts.
Nationwide, 190 of the first 250 DNA exonerations involved eyewitnesses who were wrong. BRANDON L. GARRETT, Convicting the Innocent: Where Criminal Prosecutions Go Wrong 8-9, 279 (2011). In Texas, reports indicate 80 percent of the first 40 DNA exonerations involved an eyewitness identification error. Innocence Project of Texas, Texas Exonerations-At a Glance (2011), http://ipoftexas.org/index. php?action=at-a-glance.
In a recent opinion of the Supreme Court of New Jersey, New Jersey v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011), the court focused on the reliability of an eyewitness identification.
Id. at 911-12 (citing Saul M. Kassin et al., On the "General Acceptance" of Eyewitness Testimony Research: A New Survey of the Experts, 56 AM. PSYCHOLOGIST 405, 407 (2001)). The Supreme Court of New Jersey went on to note that, in the ten years since the Kassin study, the consensus that the study of eyewitness identification is a reliable field of research has continued to grow. Id. at 912. And the court highlighted that law enforcement and reform agencies throughout the country have taken note of the scientific community's findings, forming task forces and developing new procedures to improve the reliability of eyewitness identifications. Id. at 912-14. Additionally, the United States Supreme Court recently granted certiorari on another case involving the reliability of eyewitness identification. Perry v. New Hampshire, ___ U.S. ___, 131 S.Ct. 2932, 180 L.Ed.2d 224 (2011).
Since the first two prongs of Nenno are satisfied, the issue becomes whether Malpass's testimony properly relied upon and utilized the principles involved in the relevant field of psychology. We believe that this standard has been met. Malpass's extensive resume reflects his status as a scientist and consultant in the field: he is a professor of psychology, he has researched eyewitness-related issues for over 40 years, he has conducted experiments in the area, he leads the Eyewitness Identification and Research Laboratory, he assisted the Department of Justice in creating a publication on eyewitness-identification procedures, he is on the editorial board of the Law and Human Behavior journal, and he has been on national television to discuss eyewitness-identification studies. Malpass used this extensive experience and knowledge to opine about the identification procedures in this case. He expressed familiarity with the literature and many relevant studies in the area and applied the relevant concepts to the hypotheticals presented.
The State contends that Malpass's testimony is not reliable because he provided only "generic testimony" and "general studies." Malpass's testimony involved more than mere generalities. In Coble v. State, 330 S.W.3d 253 (Tex.Crim.App. 2010), we held that the expert testimony was not reliable because it was unclear what principles of forensic psychiatry the expert might have relied upon. We pointed out that "he cited no books, articles, journals, or even other forensic psychiatrists who practice in this area," and "[a]lthough there is a significant body of literature concerning the empirical accuracy of clinical predictions versus actuarial and risk assessment predictions, [the expert] did not cite or rely upon any of these studies and was unfamiliar with the journal articles given to him by the prosecution." Id. at 278-79.
The specific principles of psychology in the area of eyewitness identification relied upon by Malpass were sufficiently clear. Although some references to studies and experts were of a general nature, Malpass articulately described specifics when asked to do so. For example, he detailed the study in which a crime was staged in front of 350 people in a lecture hall, and he extensively commented on the pertinent conclusions resulting from that experiment. Malpass also referenced over 30 scientific studies involving the use of a photo spread in which no one is identified,
Relevance is "a looser notion than reliability" and is "a simpler, more straight-forward matter to establish." Jordan, 928 S.W.2d at 555. The relevance inquiry is whether evidence "`will assist the trier of fact' and is sufficiently tied to the facts of the case." Id. Hence, to be relevant, the expert "must make an effort to tie pertinent facts of the case to the scientific principles which are the subject of his testimony." Id. Upon examining his testimony, we hold that Malpass's proffered testimony is relevant because it satisfies those requirements.
In Jordan v. State, we specifically addressed the "fit" aspect of the relevance inquiry. There, the proffered expert "answered questions about the specific facts of the case and how they might be affected by the factors he testified to," "stated his opinion about the reliability of the eyewitness identifications," and "identified facts in the case that he believed impacted those identifications." Id. at 556. However, the expert "did not testify about several factors that might have affected the reliability of the eyewitness identifications";
Like the expert in Jordan, Malpass tied the relevant facts of the case to the scientific principles about which he testified. In fact, Malpass testified to a hypothetical set of facts that mirrored the procedure employed in this case.
During the gatekeeping hearing, Malpass discussed the psychology of eyewitness identification and how certain factors may contribute to disassociation in the eyewitness's memory. He explained his own studies conducted on the topic as well as other studies with which he was familiar (including 30 on the use of a photo spread in which no one is identified, followed by a
Significantly, each hypothetical to which Malpass applied his theories and opinions paralleled the facts of this case and the scenarios in which the eyewitnesses found themselves. For example, one hypothetical mirrored the identification procedure by which witnesses Avila and Christoffel identified Appellant—it described a procedure in which a witness could not identify anyone in a photo spread, and then a week later, the witness was shown a live lineup, with only one person from the photo spread standing in that lineup. A later hypothetical corresponded to witness Avila working with a police artist to develop a suspect sketch, as it concerned the effects on an eyewitness of working with a police sketch artist. Still another hypothetical paralleled the identification procedures used with Williams—it described a drive-by identification of a suspect, followed by a live lineup. Finally, the last hypothetical concerned a live lineup in which only one individual had facial hair, and such facts are the opposite of what occurred in the live lineup viewed by witnesses Avila and Christoffel in which Appellant was the only individual who was cleanly shaven. Thus, it would appear that Malpass was familiar with the case or at least a procedure exactly like that employed in this case.
In all, Malpass's testimony was sufficiently tied to the facts of this case. Our conclusion is not undermined by the fact that Malpass was not present during the testimony of witnesses Avila and Christoffel and possibly slept during some of Officer Avila's testimony. In Jordan, we disapproved of the court of appeals's emphasis on the expert's failure to interview the State's witnesses or examine the evidence at issue in the case. Jordan, 928 S.W.2d at 556 n. 8. We explained that such requirements would be contrary to Rule of Evidence 703, which permits an expert to base his opinion testimony on the data and facts made known to him during trial. Id. (citing Tex.R. Evid. 703); see also Ramey v. State, No. AP-75678, 2009 Tex.Crim.App. LEXIS 124, at *44-45 (Tex.Crim.App.2009) (not designated for publication) (stating that the rules of evidence do not require an expert to complete personal interviews in order to give an opinion about future dangerousness). Thus, it is sufficient that Malpass based his opinion on facts learned during his testimony. After all, Malpass responded to a series of hypotheticals, which mirrored the procedure used here and, thus, exposed the expert to the pertinent facts of this specific case.
Nor is our conclusion weakened because the facts of the case were presented to Malpass as hypotheticals. In Jordan, we noted that an expert can offer an opinion based solely on hypothetical questions posed at trial. Jordan, 928 S.W.2d at 556 n. 8 (citing Fielder v. State, 756 S.W.2d 309, 320 (Tex.Crim.App.1988)). And, although factually distinguishable, we believe that our reasoning in Cohn v. State, 849 S.W.2d 817 (Tex.Crim.App.1993),
The case at hand is distinguishable from other cases in which we have held that expert testimony is irrelevant on the grounds that it was not sufficiently tied to the facts of the case. See, e.g., Williams, 895 S.W.2d 363; Rousseau v. State, 855 S.W.2d 666 (Tex.Crim.App.1993); Pierce v. State, 777 S.W.2d 399 (Tex.Crim.App. 1989).
Indeed, Daubert itself illustrates why the testimony in this case "fits" for relevance purposes. Daubert created the "fit" analysis to meet Rule 702's "helpfulness" standard, which "requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility." Daubert, 509 U.S. at 591-92, 113 S.Ct. 2786. The Supreme Court noted that this necessary connection "has been aptly described by Judge Becker as one of `fit.'" Id. at 592, 113 S.Ct. 2786. The case where Judge Becker created the "fit" description was, like this case, a situation where the defense proffered eyewitness-identification expert testimony. United States v. Downing, 753 F.2d 1224, 1242 (3d Cir.1985). In that case, the expert on eyewitness identification sought to testify that cross-racial identifications often result in misidentifications; however, there was no evidence that a cross-racial identification had actually occurred. Id. at 1242. Therefore, the testimony did not "fit" because it concerned a hypothetical event that had not occurred in that particular case.
In addition to being sufficiently tied to the facts of the case, we believe that Malpass's testimony would assist the trier of fact.
Over forty years ago, the United States Supreme Court stated that the "vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification." United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Since then, eyewitness identification has continued to be troublesome and controversial as the outside world and modern science have cast doubt on this crucial piece of evidence. As Malpass pointed out in his testimony, eyewitness identification that is not properly conducted is a major factor behind wrongful conviction. The Supreme Court of New Jersey has articulated its concern for the current state of eyewitness identification:
Henderson, 27 A.3d 872, 877.
Awareness and concern surrounding mistaken identifications and wrongful convictions has impacted the public to the point where it has become an obvious concern in jury selection. In our recent capital opinion, Davis v. State, 313 S.W.3d 317, 344 (Tex.Crim.App.2010), one veniremember expressed, "I don't see how you can put someone to death or, you know, say life imprisonment, when you hear all the time of cases that are overturned for, you know, DNA or whatever." Similarly, in Chanthakoummane v. State, No. AP-75,794, 2010 WL 1696789, at *12, 13, 2010 Tex.Crim.App. Unpub. LEXIS 249, *33, 35 (Tex.Crim.App. April 28, 2010) (not designated for publication), another veniremember stated, "I was disturbed by what has gone on in Dallas County with all the
Therefore, while jurors might have their own notions about the reliability of eyewitness identification, that does not mean they would not be aided by the studies and findings of a trained psychologist on the issue. See Jordan, 928 S.W.2d at 556. Additional explanation of eyewitness-identification theories may help guide the jury in its understanding of the standards in the area. Malpass's background and experience have focused on the study of eyewitness identification, and he testified that research reveals that jurors do not understand eyewitness identification completely and do not know how to apply what they do know to a particular case. As Malpass explained, his expert testimony was intended to educate the jury about an area in which it lacked a thorough understanding so that it might comprehend some of the complications that may arise.
More importantly, since the State was allowed to inform the jury, via Officer Avila's testimony, that there was nothing unusual about the identification procedures in this case, Malpass's testimony was necessary to provide the jury with a more balanced picture of the reliability of these procedures. We understand the abuse of discretion standard and hesitate to second guess the trial court in these decisions. We also believe that an eyewitness-identification expert will not necessarily assist the trier of fact in every case. However, the jury in this case should have had the benefit of Malpass's testimony here because eyewitness identification was crucial to the State's case, and regardless of the suggestions made by the State, we believe that the identification procedure employed (in particular that used with witnesses Avila and Christoffel) was not usual. A total of six separate photo spreads were shown to the witnesses, each showing six persons. Appellant was in the last of the photo spreads. Neither witness could identify Appellant in the six photo spreads. Just twelve days later, the witnesses viewed a live line-up. Of the five individuals in the lineup, Appellant was the only one who had been in the previously viewed photo spreads, and Appellant was the only one who was cleanly shaven. Witness Avila identified Appellant, but Christoffel could only tentatively identify him. This procedure was out of the ordinary, as it involved many layers of suggestiveness. Consequently, in this case, it was imperative that the jury be exposed to the full spectrum of possible implications resulting from that suggestiveness in order to have a full understanding of the subject.
It is not for us to substitute our judgment for that of the trial court in determining abuse of discretion, but rather, we must determine whether the trial court has made a decision that is outside the zone of reasonable disagreement. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim.App.2006). We therefore hold that the trial court abused its discretion when it excluded reliable, relevant evidence that would "assist the trier of fact" by increasing the jurors' awareness of biasing factors in eyewitness identification. Malpass's testimony could have aided the jury by either validating or calling into question their own inclinations.
In conclusion, Malpass's testimony is reliable and relevant, and the court of appeals erred in holding otherwise. We reverse the judgment of the court of appeals and remand this case to that court for a harm analysis.
