Armando Gonzalez Jr. v. the State of Texas

Opinion filed December 19, 2024

In The

Eleventh Court of Appeals
__________

No. 11-22-00340-CR
__________

ARMANDO GONZALEZ JR, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CR 56662

OPINION
The jury found Appellant, Armando Gonzalez Jr., guilty of murder for a death
arising from a motor vehicle accident wherein he was alleged to be intoxicated. The
trial court sentenced Appellant to imprisonment for a term of sixty years in the
Institutional Division of the Texas Department of Criminal Justice. The trial court
additionally imposed a fine in the amount of $10,000. In a single issue on appeal,
Appellant contends that the trial court abused its discretion when it refused to allow
his proposed expert to testify about flaws the expert claimed existed in the
investigation by law enforcement. We affirm.
Background Facts
Omar Gomez testified that his wife, Noemi “Michelle” Gomez, was visiting
him in Midland while he was there for work. Michelle and Omar met Appellant,
one of Omar’s close friends, at Appellant’s home on a Saturday night. The three
went out together, and Appellant drove Michelle’s vehicle the entire night because
he was familiar with the area. They went to dinner and two bars and drank alcohol
throughout the night. They left the second bar after closing. Omar testified that
Appellant was driving, Omar was in the front passenger seat, and Michelle was in
the rear passenger seat behind Omar. Omar was intoxicated, and Appellant had to
pull over so that Omar could vomit at one point during the drive.
Omar fell asleep in the vehicle and woke up to “an impact” hitting the right
side of his head. At first, Omar thought Appellant had only crashed into a fence,
and he became confused when he saw Appellant pulling Michelle out of the vehicle.
Omar could not open his door and climbed out of the driver’s side of the vehicle.
Omar was unable to tell if Michelle was breathing and began performing CPR on
her.
Catarino Natividad testified that the crash happened in front of his home at
around 2:30 a.m. Natividad’s daughter called 9-1-1. Natividad saw Omar
performing CPR on Michelle and saw Appellant standing off to the side. Natividad
testified that he saw Appellant talking to someone on the phone and heard him telling
the person that “he was going to need help on this one, that he had really messed up,
and not to let him down.”
Deputy Rigoberto Munoz, Jr. with the Midland County Sheriff’s Office was
the first officer on scene. Deputy Munoz moved Omar off of Michelle in order to

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“preserve the scene.” Appellant told Deputy Munoz that he had been the person
driving the vehicle and that he “had an accident.”
Michelle suffered fatal injuries in the accident, including a “gaping laceration”
and “penetrating injury” on the right side of her neck, a fractured jaw, “fractures of
two of the upper bones of the spine at the base of the skull,” multiple fractures to the
base of her skull, and injuries to her brain and brain stem. Dr. Tasha Greenberg, the
medical examiner who performed Michelle’s autopsy, testified that these injuries
caused Michelle’s death and that Michelle’s death was “very fast.”
Corporal Nathaniel Barker with the Texas Highway Patrol testified that the
vehicle had first gone “airborne or had very little contact of the ground” at an
intersection before coming back down onto the pavement and “bottom[ing] out.”
The vehicle then began “side skid[ding]” and hit a metal dumpster. The vehicle
dragged the dumpster with it as it entered into a private drive and went through a
fence before coming to a stop. The dumpster caused “significant damage” to the
passenger side of the vehicle, particularly to the rear passenger door. Part of the
dumpster went through the vehicle door and intruded into the passenger
compartment. Corporal Barker testified that “there were things [that the officers on
scene] could have done better,” but the officers “all felt it was pretty clear” that
Appellant was the person driving the vehicle at the time of the accident.
The State called Sergeant Jon Shock with the Texas Department of Public
Safety to testify as an expert in crash reconstruction. Sergeant Shock reviewed the
black box data from the vehicle. Five seconds before the crash, the vehicle’s speed
was recorded at “just under 97 miles an hour.” The brakes were activated “about a
second and a half” before impact, causing the vehicle’s ABS system to activate. The
turning pattern of the steering wheel indicated that there was a loss of control of the
vehicle.

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Trooper Nicholas Henson with the Texas Department of Public Safety was
the lead investigator of the crash. His body camera video and dash camera video
were admitted and played for the jury. Trooper Henson testified that another trooper
and deputy had arrived at the scene before he did. The other trooper on the scene
told Trooper Henson that the driver was in a gray shirt. Trooper Henson walked
over to the two men sitting on the pavement and asked them who the driver was.
The man wearing a gray shirt raised his hand. Trooper Henson later identified the
man, who said he was the driver, as Appellant. Appellant admitted multiple times
that he was the driver of the vehicle.
Appellant told Trooper Henson that he drank three alcoholic beverages that
night and that his intoxication level was at a “two, two point five” on a scale of one
to five. Trooper Henson arrested Appellant for intoxication manslaughter.
Appellant told Trooper Henson that he had been arrested for driving while
intoxicated twice before. Trooper Henson testified that, while in route to the jail to
obtain a sample of Appellant’s blood, Appellant said that he “deserve[d]” jail time
for “manslaughter.” Trooper Henson testified that Appellant’s blood was drawn “a
little more than two hours” after the crash, and the test revealed that Appellant had
a blood alcohol content of 0.146.
When a nurse at the jail asked Appellant if he was bleeding anywhere,
Appellant responded, “Not that I know of.” Trooper Henson testified that he did not
see any visible injuries on Appellant. Appellant was subsequently taken to the
hospital, and his medical records stated that he had subcutaneous bruising on his
right chest wall, “likely from [a] seat belt injury,” and a fractured tooth.
Trooper Henson explained that fatality crashes typically involved “multiple
troopers” and that “everybody splits duties and takes different responsibilities.”
Trooper Henson testified that his “main focus” was speaking with Appellant, while
some of the other troopers were making a scale diagram of the scene, gathering
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evidence, taking photographs, and gathering witness statements. When asked
whether it was “procedure to retain [vehicles] as evidence,” Trooper Henson said
that it was not, and that the only time he had seen a vehicle retained as evidence was
when officers “had no idea who was in the vehicle at all.” Trooper Henson said that
the vehicle did not need to be retained as evidence in this case because his
investigation and Appellant’s own statements led him to conclude that Appellant
was the driver.
On cross-examination, Trooper Henson testified that he did not collect any
DNA samples because, in his experience, “it wasn’t common practice” to do so.
Trooper Henson said that he did not attempt to retrieve fingerprints from the steering
wheel because he would not be able to determine when the fingerprints had been left
on the steering wheel. Trooper Henson conceded that he “could [] have done a better
job” investigating who was sitting in the passenger seat and who was driving, but
testified that he did not investigate further because Appellant “admitted multiple,
multiple times to being the driver.”
Trooper Levi Wilcox with the Texas Department of Public Safety spoke with
Omar at the scene. Trooper Wilcox testified that Omar had a gash on the right side
of his head that looked like it had been bleeding. Omar told Trooper Wilcox that he
was sitting in the front passenger seat. Trooper Wilcox testified that Omar’s wound
could have caused the smear of blood seen on the vehicle’s front passenger side
airbag. Trooper Wilcox testified that collecting DNA evidence to determine who
the driver of the vehicle was could have “[p]ossibly” been prudent, but he had “never
been on a scene of an accident that we did that.”
The defense sought to offer Antonio Leal to testify as an expert witness. Leal
was employed as a state trooper with DPS before becoming a licensed private
investigator. Leal received crash reconstruction training and was a member of a
crash reconstruction team while working for DPS. Appellant sought to offer Leal as
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an expert in “crime scene investigation and collection of evidence at a crime scene.”
The State objected, asserting that:
[I]nvestigating and report writing and all of those things are
neither a hard science nor a soft science.

If Mr. Leal were here representing himself as an expert in crash
[reconstructions], I would say . . . that he is just as qualified as Sergeant
Shock that we had testify earlier.

However, as [trial counsel] just put forward, he’s trying to
purport him to be an expert in investigations, which is not a science at
all. It is not an accepted -- there’s no peer review. There’s no -- it’s
not a science, Judge.

It’s not a soft science like therapy. It’s not a hard science like
crash reconstruction. It’s somebody who used to do something coming
in and nitpicking somebody else’s work.”
The trial court permitted the State to question Leal on voir dire. Leal testified that
he was given eight photographs, medical records, Michelle’s autopsy, and the DPS
“major crash packet” that had been completed. Leal was not given any videos or
CDR data. Leal testified that he could have done a more thorough investigation if
he had been given all of the photographs, videos, and information gathered in the
case. Leal was “surprised” that Appellant had admitted his guilt, which was in the
videos Leal did not receive. The State renewed its objection, asserting that Leal was
“trying to be put forth as an expert in a field that does not exist” and that “he wasn’t
given all of the information and, therefore, could not have done a thorough report.”
Appellant’s trial counsel responded to the State’s objection and was permitted
to ask Leal more questions. Leal agreed that the main purpose of his testimony was
to “tell the jury how the investigation done by [Trooper] Henson was conducted.”
Appellant’s trial counsel asked Leal what additional knowledge his expertise could

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give the jury, and Leal responded that he noticed a “lack of thoroughness in the case,
as far as working a crime scene.”
Appellant’s trial counsel then asked the trial court to admit Leal as an expert
in “crime scene reconstruction.” The trial court asked Leal if he was a crime scene
reconstructionist, and Leal responded that he was because he had “advanced crime
scene reconstruction training.” The trial court noted that Leal’s report contained
“corrections or criticisms” of the paperwork filled out by the troopers and
investigators on scene, but did not have “any conclusions or, better yet, opinion as
to the result of an accident reconstruction.” Relying on Rule 705 of the Texas Rules
of Evidence, particularly Rule 705(c), the trial court ruled that Leal’s opinion was
inadmissible “because the underlying facts or data do not support a sufficient basis
for the opinion. And that particular opinion would be . . . accident reconstruction,
and find that he is not an expert in that field.”
Analysis
Appellant asserts that the trial court abused its discretion when it did not allow
Leal to testify as an expert about his perceived deficiencies in the crash investigation.
During both his opening statement and closing argument, Appellant’s trial counsel
asserted that Appellant was not driving the vehicle when it crashed and that “all of
this could have been prevented” if the investigating officers had “done their job.”
Appellant’s trial counsel specifically contended that investigating officers should
have swabbed the vehicle for DNA, fingerprinted the steering wheel, and taken the
other surviving passenger to the hospital to see whether he was injured.
“A trial judge’s ruling on the admissibility of expert testimony is reviewed
under an abuse-of-discretion standard and will not be disturbed if it is within the
zone of reasonable disagreement.” Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim.
App. 2017) (citing Russeau v. State, 291 S.W.3d 426, 438 (Tex. Crim. App. 2009)).
“Absent a clear abuse of that discretion,” we will not disturb the trial court’s decision
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to admit or exclude testimony. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App.
2000). We review the trial court’s ruling in light of the evidence before the court at
the time of the ruling. Rodgers v. State, 205 S.W.3d 525, 528–29 (Tex. Crim. App.
2006) (citing Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)). We
will uphold the trial court’s evidentiary ruling if it is correct on any theory of law
applicable to that ruling, “even if the trial judge gave the wrong reason for his right
ruling.” De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009) (citing
Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002)).
A trial judge must make three separate inquiries before admitting expert
testimony: “(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
actually assist the fact-finder in deciding the case.” Vela v. State, 209 S.W.3d 128,
131 (Tex. Crim. App. 2006) (quoting Rodgers, 205 S.W.3d at 527). These inquiries
are referred to as “(1) qualification, (2) reliability, and (3) relevance.” Id. at 131.
The second and third inquiries are particularly relevant here.
In order to be reliable, an expert’s testimony must be within the scope of his
field of expertise and must properly rely upon and/or utilize the principles involved
in that field. Rhomer v. State, 569 S.W.3d 664, 671 (Tex. Crim. App. 2019) (citing
Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998)). Appellant’s trial
counsel originally asserted that Leal was an expert in “crime scene investigation and
collection of evidence at a crime scene.” But after additional questioning,
Appellant’s trial counsel offered Leal as an expert in “crime scene reconstruction.”
It appears that there may have been some confusion at trial with respect to
counsel’s use of the term “reconstruction.” The confusion stems from the fact that,
often times, an expert is called to testify as an accident reconstructionist when a
motor vehicle collision is involved. For example, the Texas Court of Criminal
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Appeals addressed an expert called to testify about accident reconstruction in
Rohmer. 569 S.W.3d at 670–72. However, sometimes the term “crime scene
reconstruction” is used to refer to an expert that intends to testify as to the manner
in which a crime scene was investigated by law enforcement. See Gonzales v. State,
680 S.W.3d 358, 388 (Tex. App.—Eastland 2023, pet. ref’d); Nadeau v. State,
No. 05-19-01137-CR, 2022 WL 3053917, at *4 (Tex. App.—Dallas Aug. 3, 2022,
pet. ref’d) (mem. op., not designated for publication); Stirman v. State, No. 11-12-
00090-CR, 2014 WL 1285773, at *2–3 (Tex. App.—Eastland Mar. 31, 2014, pet.
ref’d) (mem. op., not designated for publication). The confusion here was certainly
understandable given that an automobile collision led to Michelle’s death.
On appeal, Appellant focuses on his trial counsel’s offer of Leal as an expert
in crime scene investigation and evidence collection. Appellant contends that Leal’s
testimony was analogous to the nonscientific expert field of “police practice”
because Leal “sought to highlight grave deficiencies in the police investigation.”
Appellant asserts that Leal’s testimony was “essential” because the jury might not
have understood the significance of the investigating officers’ failure to collect DNA
evidence or fingerprints from the steering wheel.
Appellant cites two federal civil cases that discuss expert testimony about
police practice. See Ikhinmwin v. Rendon, No. SA-16-CV-184-OLG (HJB), 2017
WL 10768507, at *1 (W.D. Tex. Oct. 2, 2017); Perez v. City of Austin, No. A-07-
CA-044 AWA, 2008 WL 1990670, at *1 (W.D. Tex. May 5, 2008). These civil
cases are readily distinguishable from a criminal prosecution. Appellant does not
cite to any criminal cases from Texas in support of his proposition that Leal’s
testimony was admissible because he was testifying as a police practice expert.
In Work v. State, the Amarillo Court of Appeals held that a private
investigator’s opinion that a police investigation was not sufficiently thorough was
irrelevant because it would not have been helpful to the jury in determining a fact in
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issue. Work v. State, 07-17-00286-CR, 2019 WL 5861993, *3 (Tex. App.—
Amarillo 2019, pet. ref’d) (mem. op., not designated for publication). The same is
true here. Leal did not explain how his opinion that the DPS investigation was
deficient would have assisted the jury in determining a fact at issue. When
Appellant’s trial counsel asked Leal what additional knowledge his expertise could
give the jury, Leal responded that he noticed a “lack of thoroughness in the case, as
far as working a crime scene.” However, the jury had already been made aware of
the fact that the investigating officers did not obtain DNA samples or fingerprints.
Further, the jury heard Troopers Henson, Wilcox, and Barker testify that taking
DNA swabs and fingerprints from the vehicle could have provided additional
corroboration that Appellant was the driver.
The key fact issue in this case was whether Appellant was driving the vehicle
when it crashed. Leal did not have an opinion that someone else was driving the
vehicle. Instead, his opinion was that the DPS troopers did not do enough to confirm
that Appellant was the driver even though Appellant told the officers at the scene of
the accident that he was the driver.
The jury was able to consider Omar’s testimony that Appellant was driving,
Natividad’s testimony that Appellant told someone on the phone that he “had really
messed up, and not to let him down,” Deputy Munoz’s testimony that Appellant told
him he was driving and that he “had an accident,” and Appellant’s numerous video-
recorded admissions that he was the driver. Thus, Appellant’s status as the driver
was ultimately a credibility issue for the jury to determine. See Brooks v. State, 323
S.W.3d 893, 899 (Tex. Crim. App. 2010) (“[T]he jury is the sole judge of the
witnesses’ credibility and the weight to be given their testimony.”). As was the case
in Work, Leal’s proposed testimony that the DPS investigation was incomplete was
not relevant to the whether the jury believed Appellant’s statements that he was the

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driver as well as the testimony from Omar and Natividad that Appellant was the
driver. See Work, 2019 WL 5861993 at *3.
In Floyd v. State, the Alabama Court of Criminal Appeals addressed whether
an expert could testify about the sufficiency of the police’s investigation of a murder
in order to opine that the investigation was “flawed.” Floyd v. State, 289 So. 3d 337,
413 (Ala. Crim. App. 2017). The court concluded that testimony of this character
would not assist the trier of fact to understand the evidence or to determine a fact in
issue. Id. (“The purpose for which Remus’s testimony was offered -- to point out
the alleged deficiencies in the police investigation of Jones’s murder -- is not a
proper subject of expert testimony because it would not assist the trier of fact in
understanding the evidence or deciding a fact in issue.”). Further, the court cited
cases from other jurisdictions that had reached the same conclusion. Id. at 413–14.
One of the cases cited by the court in Floyd was Mason v. United States, 719
F.2d 1485 (10th Cir. 1983). Id. The court in Mason rejected the defendants’ attempt
to introduce the testimony of an expert regarding the inadequacy of the investigative
techniques employed by the police. 719 F.2d at 1490. As explained by the Tenth
Circuit in Mason:
As we view it, the presentation of expert testimony criticizing the
presentation of the other side of the case is not appropriate. It may be
a proper subject for comment by the lawyers in their final arguments
and seemingly the defendants’ attorneys discussed the inadequacies in
their final arguments to the jury. We conclude the trial court acted
properly in excluding the testimony of defendants’ expert.

719 F.2d at 1490.

We agree with the reasoning employed by our sister court in Work, as well as
the rationale utilized by the Alabama Court of Criminal Appeals in Floyd and the
Tenth Circuit in Mason. As noted by the court in Mason, complaints about a flawed
law enforcement investigation are not properly presented by expert testimony, but

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rather they are more appropriate for closing argument or perhaps cross-examination
of the officers involved in the investigation. See id. Accordingly, the trial court
would not have abused its discretion as the gatekeeper if it determined that Leal’s
testimony would not have helped the trier of fact. See Rhomer, 569 S.W.3d at 670;
De La Paz, 279 S.W.3d at 344. In light of the wide discretion we afford the trial
court regarding the admissibility of expert testimony, we cannot say that the trial
court abused its discretion in ruling that Leal’s opinion was not admissible. See
Wyatt, 23 S.W.3d at 27. We overrule Appellant’s sole issue.
This Court’s Ruling
We affirm the judgment of the trial court.

JOHN M. BAILEY
CHIEF JUSTICE

December 19, 2024
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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