No. 05-09-00417-CR
Opinion filed March 31, 2011. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F08-25940-I.
Before Justices MORRIS, MOSELEY, and LANG.
Opinion By Justice MOSELEY.
On the Court's own motion, we withdraw our opinion of March 16, 2011, and vacate the judgment of that date. The following is now the opinion of the Court. A jury convicted Charles Thomas Zuffante of theft of metals and assessed punishment at eight years' imprisonment and a $1,500 fine. Appellant challenges the denial of his motion to suppress, the factual sufficiency of the evidence supporting his conviction, the admission of certain testimony, and the failure to hold a hearing related to the admission of expert witness opinion. Because we conclude the evidence is legally sufficient to support appellant's conviction, we resolve his first issue against him. We reject appellant's motion to suppress argument and conclude his arguments as to the admissibility of expert testimony are moot. We affirm.
I. BACKGROUND
Appellant was indicted for unlawfully appropriating copper tubing and copper wire having a value of less than $20,000 from the owner, David Clark, without his consent and with the intent of depriving him of the property. The incident giving rise to this case occurred at the site of an apartment complex being demolished to make way for a tollway extension. Clark was an engineer with an engineering firm performing general consulting with the North Texas Tollway Authority. He was responsible for the demolition project and had negotiated the contracts with the demolition companies to demolish the buildings and salvage materials such as copper wiring. Despite no-trespassing signs, there had been thefts of copper from the apartments. On November 28, 2008, about mid-morning, a tow truck driver, John Castle, saw an individual, later identified as appellant, going up and down the stairs of the apartment complex and disappearing like he might have been entering apartments. Castle called the police. Garland police officers Robert McDonald and Jason Lambert responded to a dispatch about a theft in progress at the site. Appellant ran away when he saw them (they were in full police uniform and in a marked squad car), but the officers apprehended him. McDonald testified appellant was "rough looking" and "dirty." Appellant had sheetrock dust on him, and his hands were "filthy." McDonald handcuffed and searched him and found a multipurpose screwdriver with a flashlight on one end, pliers with copper residue, some brass fittings, and a small pocketknife; these items were offered as State's Exhibit 14, which was the subject of a pretrial motion to suppress and admitted over objection. Lambert also testified that appellant's hands were dirty, and there was sheetrock residue and copper residue (Lambert agreed it was "orange discoloration") on his hands, his person, and the articles on his person. They testified that State's Exhibits 1 through 4 showed orange coloration on appellant's hands. Lambert said he investigated apartments 107 and 207 (up-and downstairs apartments) that were "being systematically stripped of copper wiring and pipe." He found pliers and tools used to remove the copper. Appellant was arrested after the search of the apartments. Castle testified he saw police officers carrying boxes of copper and tools from an apartment, and he "saw the copper in the boxes." He later looked inside the complex and saw doors kicked in and breaker boxes and air-conditioning units ripped off the walls. He agreed it looked like a "systematic copper theft." Lambert testified that State's Exhibits 7 through 13 were photographs of items found in apartments 107 and 207. State's Exhibit 7 was a photograph of a bag containing tools; one was a saw which appeared to have sheetrock residue. Lambert explained that "copper wiring" was like "electrical wiring"-in the casing it was covered in plastic and rubber, but outside the casing "it's essentially just raw copper." State's Exhibit 10 was a photograph of a box the officers collected from apartments 107 and 207; Lambert testified it contained copper wire still in its casing, among other items. State's Exhibit 13 was a photograph of another box containing copper wiring and copper pipe; the box was found in apartment 207 by the door. State's Exhibits 11 and 12 were close-up photographs of the contents of the box in State's Exhibit 13, showing the copper pipe and the copper wire after it was stripped, bound, and bundled. Castle and Clark testified to their observations of the material's copper content, which we set forth in more detail below. Appellant did not testify. The jury was charged on theft of metals, specifically, "wire that consists of at least 50 percent copper under the value of $20,000" and on the lesser included offense of theft of property with a value of $50 or more but less than $500. The jury found appellant guilty of theft of metals. At the punishment hearing, appellant pleaded true to two enhancement paragraphs alleging prior state jail felonies. After hearing evidence, the jury assessed punishment, and the trial court pronounced judgment. This appeal followed. II. SUFFICIENCY OF THE EVIDENCE TO PROVE WIRE CONSISTS OF "AT LEAST FIFTY PERCENT COPPER"
In his first point of error, appellant contends the evidence is factually insufficient to support his conviction for theft of metals. Specifically, appellant argues the evidence was insufficient to prove that the wire consisted of "at least fifty percent copper." A. Applicable Law
A person commits a theft offense if he unlawfully appropriates property with intent to deprive the owner of property; as relevant here, appropriation of property is unlawful if it is without the owner's effective consent. Tex. Penal Code Ann. § 31.03(a), (b)(1) (West Supp. 2010). At the time this incident occurred, a theft offense was a state jail felony if the value of the property stolen was less than $20,000 and the property stolen was insulated or noninsulated wire or cable that consists of at least fifty percent copper. Id. § 31.03(e)(4)(F)(iii). B. Standard of Review
In Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.), the Texas Court of Criminal Appeals overruled Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and decided that the Jackson v. Virginia legal-sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.
We will therefore not address appellant's factual sufficiency challenge but will address the legal sufficiency of the evidence in the interests of justice. In reviewing the sufficiency of the evidence to support a conviction, we consider all the evidence in the light most favorable to the verdict to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks, 323 S.W.3d at 899. Our review of all the evidence includes evidence that was properly and improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Viewing the evidence "in the light most favorable to the verdict" under this standard means that the reviewing court is required to defer to the jury's credibility and weight determination because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899 (citing Jackson, 443 U.S. at 319, 326). Thus, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the jury. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, we "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We must presume that the jury resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. However, juries are not permitted to come to conclusions based on mere speculation or factually unsupported inferences or presumptions. Hooper, 214 S.W.3d at 15. An inference is a conclusion reached by considering other facts and deducing a logical consequence from them. Id. at 16. Speculation is mere theorizing or guessing about the possible meaning of facts and evidence presented. Id. A conclusion reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to support a finding beyond a reasonable doubt. Id. We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Wooley v. State, 273 S.W.3d 260, 261 (Tex. Crim. App. 2008); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge "sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Malik, 953 S.W.2d at 240. C. Evidence Regarding Copper Content
The only evidence concerning the nature of the wire and (possibly) its copper content came from the testimony of Clark and Castle. We detail their testimony relevant to this issue as follows. 1. Clark's Testimony
Clark testified that he was a licensed professional engineer with twenty-nine years' experience in "transportation, management and projects" including projects like this apartment demolition. Clark testified that he had experience dealing with copper used in residential buildings for plumbing, heating, and air-conditioning. On direct examination, concerning State's Exhibit 12 (a close-up photograph of the contents of the box found in apartment 207), he was asked, "And based on your training and certification as an engineer here in the State, is this type of copper tubing and copper wiring, is that going to have a content of copper more than 50 percent?" Appellant's counsel then requested a hearing pursuant to rules of evidence 702 and 703. The trial court overruled the request. Clark then answered, "Based on what I'm seeing here in the picture, it appears to be 100 percent copper tubing and wiring." On cross examination, Clark was asked, "Now, the copper that the prosecutor has showed you on these State's Exhibits, have you ever personally tested the content of this copper to see what the percentage is?" Clark answered, "No, sir." 2. Castle's Testimony
Castle testified on direct examination that he had been a tow truck driver for about twelve years but, before that, he had hauled scrap metal, including copper wire and tubing, for a scrap metal business for about a year and had "experience with handling copper." He was asked what "unstripped copper wire" was, and he said, "It's pretty much like insulation wire, electrical wire that's been stripped." He testified he saw the copper in the boxes removed from the apartments. Directing his attention to State Exhibit 11, the following exchange occurred: Q. Now, have you seen this type of material before?
A. Yes, I have.
Q. And this — have you seen these materials while you were working at the scrap metal yard?
A. Yes.
After a discussion of copper pipe and an objection, directed to a hearing on the basis for Castle's expertise, which the trial court overruled, the State directed Castle's attention to part of State's Exhibit 12, and Castle identified the item pictured as copper wire, the kind of wiring "[t]hat's from like electric wiring and all that" and that had been stripped and bundled. Castle was asked if it "would be over 50 percent copper," and he replied, "Yes." He was asked the weight of the copper in the box, which contained copper piping and copper wire. Appellant objected pursuant to rules of evidence 701, 702, and 703 that Castle had "no basis to give any kind of value or percentage as to this copper." The trial court overruled the objection. Castle testified, over objection, that he used to have to weigh the copper, separate it, and haul it, and he thought the copper in the boxes "had to be over — at least over 150 pounds at least. 100, 150." He testified the value "of that kind of copper" was $3 per pound at his scrap yard. On cross examination, it was established that Castle had attended the Criminal Justice College at the University of Texas at Arlington, and that he never took any chemistry, metallurgy, or metal working classes. The following exchange then occurred: Q. Did you ever test the copper to see the exact amount or percentages?
A. No.
Q. And did you ever weigh the boxes?
A. No.
Q. So, basically, you're guessing —
A. Yes.
Q. — correct?. . . .
A. Yes.
Q. I mean, you've never testified in court about the value of copper before, have you?
A. No.
Q. You've never testified as an expert witness —
Q. — that the wire is over 50 percent?
A. Huh-uh.
Q. Is that a no?
A. No. Sorry.
On re-direct examination, the following exchange occurred: Q. But this is the exact type of copper that you deal with in your business —
A. Yeah.
Q. — on a daily basis?
A. I'm sorry. I misunderstood. I'm sorry.
Q. This is the exact type of copper —
A. That's what we dealt with was — was scrap metal, was copper. That's what I hauled.
Q. And this is the type of copper that you were using or distributing —
A. That we were —
Q. — at your business?
A. — that we were cashing — that people would bring to us to cash in.
Q. And based on your year or so of working with this metal, you can identify copper?
A. Yes. I can identify copper, yes. Because that's all I hauled was copper. I transported it.
. . . .
The following testimony was elicited on re-cross examination: Q. Well, when you worked for your former employer, did you ever test copper to see whether it was 50 percent or not?
A. I did not test it. I just delivered it. That's all I did.
Q. I mean, basically, you drove a truck —
A. Yes.
. . . .
On further re-direct examination: Q. Why do you believe this copper here is above 50 percent, I mean, by looking it or what?
A. Just by looking at it and knowing copper.
Q. Because in your business experience, you know that this is the type of copper that has over 50 percent in it?
A. Yes.
(Emphasis added.) On further re-cross examination, Castle again said he had never tested copper but he had "touched it." He was then asked, "[Y]ou can see copper. It looks like copper when I see it, but you really don't know what the percentages are and how — what the concentration of copper is in each one of these little strands, do you?" His answer: "No." D. Discussion
Our inquiry is, considering all the evidence in the light most favorable to the verdict of conviction, whether the evidence is sufficient to support the element of the offense that the copper wire in the boxes consisted of at least fifty percent copper. First, we consider Clark's testimony. Clark testified he could identify the wire as containing at least fifty percent copper by looking at a picture of the wire, not even the wire itself. He testified that his responsibilities involved overseeing the salvage of the building materials, but there is no evidence he knew the salvage value of the copper wire based on its copper content. Nothing connected his "training and certification as an engineer" with the ability to testify to the copper content of the wire. Further, Clark's testimony was undermined by premising his answer on "what I'm seeing here in the picture"-referring to the photograph of the box of copper tubing and wiring-and saying "it appears to be 100 percent copper tubing and wiring." Clark did not clarify he was saying that the box contained copper objects, and not any other metal objects, or that the objects themselves consisted of at least fifty percent copper. See Hooper, 214 S.W.3d at 15 (factually unsupported inferences or presumptions are no evidence). We conclude that Clark's testimony is no evidence that the wire consisted of at least fifty percent copper. See id. at 15-16. Next, we turn our attention to Castle's testimony, particularly on the further re-direct examination italicized above. We consider this testimony in the context of his previous testimony that he had a year's experience handling and hauling copper wire at the scrap metal business; he saw the copper materials in the boxes and they were the "exact type" of copper materials he hauled at the scrap metal business; and he identified the copper wire as "electric wiring." Specifically as to whether the copper wire was "above" fifty percent copper, he said he knew that it was "just by looking at it and knowing copper" and answered "yes" to the question that "[b]ecause in your business experience, you know that this is the type of copper that has over 50 percent in it?" Appellant argues that visual observation of the copper wire-Castle's observation at the scene and of the items in a photograph-is inadequate to establish that the wire consists of more than fifty percent copper. Appellant relies primarily on Curtis v. State, 548 S.W.2d 57, 58-59 (Tex. Crim. App. 1977), in which the court of criminal appeals considered whether there was evidence of probative value to prove whether a white or brown powdered substance was heroin. The court considered a police officer's testimony that he observed the substance and it was his opinion as an expert that the substance was heroin. The court concluded this was no evidence, noting that other controlled and non-controlled substances also appear in white or brown powdered form. The court opined that "[t]he evidence here does not show that even the experienced expert can distinguish one white or brownish powdered substance from another and determine which is heroin." Id. at 59. However, Curtis is distinguishable from this case for two reasons. First, Curtis involved identifying by mere observation an illegal substance from other substances having the same visual characteristics. It is undisputed the wire here was copper, and the issue is identifying whether it consisted of at least fifty percent copper. The facts that Castle "could identify copper" from previous experience with this "exact type" of copper and he identified this wire as electrical and "above" fifty percent copper support the inference that there were visible characteristics that distinguished such wire from other copper wire and that Castle knew those visible characteristics from his business experience, unlike in Curtis. See Hooper, 214 S.W.3d at 16-17. Second, and overlapping with the first difference, unlike in Curtis, more than mere observation is involved in this case. Castle testified he had arrived at his ability to identify this copper wire as "over 50 percent copper" from his experience hauling and handling copper, including copper wire, at the scrap metal business. Thus, Castle's testimony supports the conclusion that he could distinguish copper wire consisting of at least fifty percent copper from any other copper wire by sight based on his experience handling it and knowing its use. Castle did admit on cross examination that he was "guessing" when asked about the composition and weight of the copper wire. But the composition questions on cross, re-cross, and further re-cross examination concerned "testing" to see "the exact amount or percentages" of copper, as in the question on further re-cross: "[Y]ou really don't know what the percentages are and how — what the concentration of copper is in each one of these little strands, do you?" But the percentage of copper-the exact copper concentration in the wire-is not an element of the offense and is irrelevant to our inquiry. The relevant inquiry is whether the wire consists of at least fifty percent copper, which Castle affirmatively stated twice: (1) he was asked if he thought the copper wire "would be over 50 percent copper," replying "yes"; and (2) he was asked "[w]hy do you believe this copper is above 50 percent, . . ." replying "[j]ust by looking at it and knowing copper" "in [his] business experience." In summary, Castle testified that even though he could not specify the exact copper content of the wire, he could tell it was over fifty percent copper. We conclude that Castle's evidence is some evidence that the copper wire consisted of at least fifty percent copper. See id. at 16. Considering all the evidence in the light most favorable to the verdict, we conclude that the jury was rationally justified in finding beyond a reasonable doubt that the wire consisted of at least fifty percent copper. See Brooks, 323 S.W.3d at 895, 899. Accordingly, the evidence was legally sufficient to support the jury's guilty verdict on the theft of metals offense. We decide appellant's first issue against him. III. SUPPRESSION OF EVIDENCE
In his fourth issue, appellant argues "the trial court erred in denying appellant's motion to suppress the fruits of an unlawful frisk." Appellant directs his arguments on appeal to his detention and the search of his pocket, yielding the items comprising State's Exhibit 14. A. Applicable Law
A "stop" and "frisk" by law enforcement personnel amounts to a sufficient intrusion on an individual's privacy to implicate the Fourth Amendment's protections. Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000) (citing United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975), and Terry v. Ohio, 392 U.S. 1, 16 (1968)). Under an exception to the warrant requirement, an officer is generally justified in briefly detaining an individual on less than probable cause for the purposes of investigating possibly-criminal behavior where the officer can "point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion." Id. (quoting Terry, 392 U.S. at 21, and citing Davis v. State, 947 S.W.2d 240, 244 (Tex. Crim. App. 1997)). The information provoking the officer's suspicions need not be based on his own personal observations, but may be based on an informant's tip which bears sufficient "indicia of reliability" to justify a stop. Id. (citing Adams v. Williams, 407 U.S. 143, 146-47 (1972)). In determining the requisites of reasonable suspicion, we take into account the totality of the circumstances, that is, "the whole picture." Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997) (quoting United States v. Cortez, 449 U.S. 411, 417 (1981)). Law enforcement personnel may conduct a limited search for weapons of a suspect's outer clothing, even in the absence of probable cause, where an office reasonably believes that the suspect is armed and dangerous. Carmouche, 10 S.W.3d at (citing Terry, 392 U.S. at 27, and Davis v. State, 829 S.W.2d 218, 220 (Tex. Crim. App. 1992)). The purpose of a such a limited search after an investigatory stop is not to discover evidence of a crime, but to allow the peace office to pursue investigation without fear of violence. Id. (citing Wood v. State, 515 S.W.2d 300, 306 (Tex. Crim. App. 1974)). B. Standard of Review
The defendant in a criminal proceeding who alleges a Fourth Amendment violation bears the burden of producing some evidence that rebuts the presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim. App. 2007). A defendant meets his initial burden of proof by establishing that a search or seizure occurred without a warrant. Id. The burden then shifts to the State to prove that the search or seizure was nonetheless reasonable under the totality of the circumstances. Id. at 672-73. In reviewing a trial court's ruling on a motion to suppress evidence and its determination of the reasonableness of either a temporary investigative detention or an arrest, we use a bifurcated standard of review. Id. at 673. We must give almost total deference to a trial court's determination of the historical facts that the record supports especially when the trial court's fact findings are based on an evaluation of credibility and demeanor. Id. We also afford the same level of deference to a trial court's ruling on application of law to fact questions, or mixed questions of law and fact, if the resolution of those questions turns on an evaluation of credibility and demeanor. Id. We review de novo mixed questions of law and fact that do not depend upon credibility and demeanor. See id. When the trial court does not make explicit findings of fact in ruling on a motion to suppress evidence, we review the evidence in a light most favorable to the trial court's ruling and assume that the trial court made implicit findings of fact supported by the record. Id. C. Discussion
Appellant filed a pretrial motion requesting a hearing outside the presence of the jury to determine the admissibility of physical evidence and suppression of this evidence if the court determined it was obtained in violation of federal or state constitutions or laws. The motion was neither granted nor denied. At the beginning of trial, outside the presence of the jury, appellant's counsel requested a hearing "on a motion to suppress the evidence taken from my client when he was unlawfully arrested." He argued there was no probable cause, no warrant, and no exigent circumstances to arrest appellant, several items were seized from his person, and admission of photographs of those items violated the Fourth Amendment and article 1, section 9 of the Texas Constitution. The trial court said it would hear testimony along with the trial and suggested counsel re-urge the motion when the State concluded its evidence. After further colloquy, counsel agreed. Before the jury, Castle testified he heard a scream, saw appellant going up and down the stairs in an apartment complex posted no-trespassing and being demolished, and reported suspicious behavior to the police. Before the jury, McDonald testified that he and Lambert responded to a dispatch of "a theft in progress" at the site. When they arrived at the scene, Castle pointed them to the back of the building where he had seen appellant going into two apartments. The officers saw appellant look at them and then run away. The officers drove after him, then chased him on foot. When appellant saw the second police car, he stopped, and McDonald "took him into custody" and immediately handcuffed him. McDonald said appellant was "rough looking" and dirty"; he had "[s]heetrock dust on him" and his hands were "filthy." The State said, "And, obviously, you're a police officer. You arrested him. Did you search him for any types of weapons or contraband?" McDonald responded that as soon as he handcuffed appellant, he searched him. Before McDonald testified as to the results of his search, counsel objected that "it's fruit of an unlawful arrest"; "stop and no exigent circumstances"; and "no warrant." The trial court overruled the objection. McDonald testified he found the items shown in the photograph admitted as State's Exhibit 14 in appellant's pockets. When the State offered this exhibit, counsel objected on the same grounds of "unlawful stop, search and arrest." The trial court overruled the objection. McDonald testified he arrested appellant. Appellant argues the fact of his running from the police does not, by itself, support reasonable suspicion. See Stokes v. State, No. 14-95-00335-CR, 1998 WL 66076, at *4 (Tex. App.-Houston [14th Dist.] Feb. 19, 1998, pet. ref'd) (not designated for publication). There, the court noted that flight from a show of authority is a factor in support of a finding that reasonable suspicion exists that a person is involved in criminal activity. See id. However, Stokes supports a finding of reasonable suspicion here because, in addition to appellant's flight, there were other facts supporting the officers' actions in stopping and arresting appellant. Here, there was evidence appellant was in a no-trespassing, abandoned apartment complex, saw Castle and his tow truck, and then saw the police officers in uniform arrive in a marked squad car and ran away from them. Other objective facts supporting reasonable suspicion to stop appellant included Castle's telling the police officers it appeared appellant was entering apartments, and McDonald's observation of dirt and sheetrock dust on appellant. See Carmouche, 10 S.W.3d at 328. We conclude the warrantless stop of appellant was constitutionally justified. We also conclude that McDonald's testimony that he searched appellant for weapons justifies his search of appellant's pockets, revealing the items admitted in State's Exhibit 14. See id.; Wood, 515 S.W.2d at 306. Appellant argues this case is almost identical to Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009). That case involved warrantless search and seizure under the consent exception, where an officer stopped a pedestrian, handcuffed him, and asked where is identification was. The appellant replied it was in his right pants pocket. The police officer "considered that response to constitute permission to reach into appellant's pocket." Doing so, he retrieved a wallet containing a baggie of cocaine. Id. at 370. Baldwin is distinguishable because here "officer safety," rather than consent, justified a limited pat-down search of appellant. See id. at 372; cf. Wood, 515 S.W.2d at 306 ("So long as the officer is entitled to make a forcible stop and has reason to believe that the suspect is armed and dangerous, the officer may conduct a weapons search limited in scope to the purpose of enabling the officer to pursue investigation without fear of violence."). We conclude the undisputed facts support a conclusion that the temporary detention and subsequent frisk of appellant were reasonable. Accordingly, the trial court did not err in overruling appellant's motion to suppress and objections to admission of the items seized from his pocket and admitting the items comprising State's Exhibit 14. We decide appellant's fourth issue against him. IV. ADMISSION OF EXPERT WITNESS TESTIMONY
In his second issue, appellant asserts the trial court erred in permitting Castle and Clark to testify concerning the copper content "in the absence of any scientific testing." Appellant refers us to the following rulings by the trial court on the admissibility of Castle's and Clark's testimony: impliedly overruling appellant's pretrial request for a hearing to determine the qualifications of any expert witness pursuant to rule of evidence 705(b); overruling appellant's objection during Castle's testimony that "if he is going to get into percentages and value, we'd like to have a hearing to show the basis for his expertise before the jury hears it"; and overruling his objection during Clark's testimony that "we'd ask for a hearing outside the presence to test the qualifications of this witness under [rules of evidence] 702 and 703." On appeal, appellant relies on his objections under rules 702 and 703, both of which relate to expert testimony. See Tex. R. Evid. 702 ("Testimony by Experts"), 703 ("Bases of Opinion Testimony by Experts"). He also cites rule 705(b) (also relating to expert testimony), Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), and argues the trial court functions as a gatekeeper, "shielding the jury from expert opinion testimony that has not been shown, by clear and convincing evidence, to be scientifically reliable." However, at oral argument, appellant's counsel conceded that Castle and Clark were not testifying as experts. Consequently, appellant's second issue related to the admissibility of these witnesses' testimony as experts is moot. V. EXPERT WITNESS VOIR DIRE
In his third issue, appellant asserts the trial court erred in denying his request for a hearing "to ascertain the basis for the witness's opinion" under rule of evidence 705(b). See Tex. R. Evid 705(b) (permitting voir dire examination directed to underlying facts or data upon which expert's opinion is based). Again, at oral argument appellant's counsel conceded that Castle and Clark were not testifying as experts. Consequently, appellant's third issue related to the admissibility of their testimony is moot. VI. CONCLUSION
Based on our disposition of appellant's issues, we affirm the trial court's judgment.