Marvin Dayvon Brown v. State ( 2019 )

Affirmed and Majority and Concurring Opinions filed July 18, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00622-CR
MARVIN DAYVON BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 228th District Court
Harris County, Texas
Trial Court Cause No. 1554409
CONCURRING OPINION
I join the court’s judgment but not its opinion. The majority assumes, without
deciding, that appellant preserved error on his second issue and that the trial court
erred.1 The majority concludes that any error was harmless. Because appellant
failed to preserve error as to the complaint in his second issue, the more expeditious
course would be to overrule the second issue on that basis.
1
Ante at 15–16.
Presuming for the sake of argument that appellant obtained an implicit ruling
from the trial court, appellant did not raise in the court below the objection he now
raises on appeal.2 Appellant did not complain in the trial court that it was improper
for Officer Barnes to express an opinion regarding appellant’s credibility. Instead,
appellant stated his objection as “speculation” and “it invades the province of the
jury.” Neither complaint is the same as complaining that Officer Barnes was
improperly expressing an opinion regarding appellant’s credibility. In addition, the
Court of Criminal Appeals has held that “it invades the province of the jury” is no
longer a valid objection to expert testimony.3
Because appellant failed to preserve error as to his second issue, he is not
entitled to appellate review of that point.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan (Hassan, J.,
Majority).
Publish — Tex. R. App. 47.2(b)
2
Wilson v. State, 71 S.W.3d 346, 349–50 (Tex. Crim. App. 2002).
3
Ortiz v. State, 834 S.W.2d 343, 348 (Tex. Crim. App. 1992) (“invading the province of the jury”
no longer valid objection to opinion testimony).
2