Full Opinion

In The Court of Appeals Seventh District of Texas at Amarillo No. 07-25-00190-CR DAVONTE FULKS, APPELLANT V. THE STATE OF TEXAS, APPELLEE On Appeal from the 108th District Court Potter County, Texas Trial Court No. 082356-E-CR, Honorable Timothy G. Pirtle, Presiding November 3, 2026 MEMORANDUM OPINION Before PARKER, C.J., and YARBROUGH and PRATT, JJ. Appellant, Davonte Fulks, appeals from his conviction for assault of a public servant.1 By his six issues, he claims the trial court erred by: (1) denying his motion to suppress because there was no probable cause to search his vehicle; (2) denying his motion to suppress because he was illegally detained; (3) excluding his expert witness; (4) unconstitutionally applying the statutory exclusion of his expert witness;2 (5) violating 1 TEX. PENAL CODE § 22.01(a), (b)(1). 2 37 TEX. ADMIN. CODE § 651.7 and TEX. CODE CRIM. PROC. art. 38.35. his constitutional right to present a defense by exclusion of his expert witness; and (6) incorrectly requiring the repayment of attorney’s fees in the bill of costs. We affirm as modified below. BACKGROUND On the evening of January 20, 2022, Corporal Robert West of the Amarillo Police Department was patrolling a hotel parking lot to identify stolen vehicles and prevent burglary of vehicles. An unidentified person approached Corporal West and told him “[he] should check out the other side” of the hotel.3 Upon investigating, Corporal West discovered Appellant, a young black man, in his parked car with his door open and engine running. Corporal West approached Appellant and conversed with him, attempting to identify him and assess what Appellant was doing in the parking lot. When Corporal West asked Appellant for identification, Appellant told him he had none. When Corporal West asked for Appellant’s name, Appellant refused to identify himself. When Appellant asked if he was being arrested, Corporal West responded for the first time Appellant was being detained because he smelled marijuana from the car. Corporal West demanded Appellant step out of the car, to which Appellant stated he was “pleading the fifth,” he said there were no drugs in the car, and he refused permission to search his vehicle. Corporal West repeated his order to step out of the car and informed Appellant he had a drug dog. He also radioed for backup during his questioning. When Appellant refused to comply, without waiting for backup or using his dog, Corporal West suddenly pulled Appellant out of the car and wrestled him to the ground. Corporal West’s 3 After the altercation and Appellant’s arrest, the other officers could not locate this person. Corporal West also subsequently searched for the witness and noted the license plate on the vehicle, but this unknown person was never identified. 2 bodycam footage shows he was on top of Appellant, and Appellant was resisting him. Corporal West also punched Appellant in the head after putting him on the ground. Shortly after the altercation began, the backup officers appeared on the scene, and they assisted Corporal West in putting Appellant in handcuffs. Corporal West made the remark to the other officers, “be careful, he’s a biter” and indicated an injury to his left hand was due to Appellant having bitten him. Corporal West was then treated on the scene for the injury to his hand by a responding EMT, and the other officers charged Appellant with assault. The officers also searched Appellant’s car and found a small plastic bag filled with some substance resembling either marijuana or tobacco, but this was not confirmed. Appellant was indicted for aggravated assault of a public servant by biting. No drug possession charges were brought against him. Before trial, Appellant filed a motion to suppress and argued, because Corporal West lacked probable cause to search or detain Appellant, all the evidence of the assault should not be allowed at trial. The trial court denied this motion, and the parties proceeded to trial. At trial, Appellant attempted to introduce the expert witness testimony of a forensic dentist. The State moved to exclude the expert, and the trial court conducted a pretrial Daubert/Robinson hearing. At the hearing, the expert testified the wound received by Corporal West, based on the digital images and video, did not appear to be from a human bite mark. The State moved to strike based on article 38.35 of the Texas Code of Criminal Procedure and a lack of recognition of bite mark expertise by the Texas Forensic Science Commission (TFSC). The trial court initially ruled in favor of the State and excluded the expert witness. However, at trial, after the State rested, the trial court sua sponte 3 reconsidered its decision to exclude Appellant’s expert based on the photographs, videos, and testimony of the officer’s injuries. After hearing argument again from the State that the expert was prohibited from testifying by statute, the trial court again ruled to exclude him. The jury convicted Appellant of the lesser-included charge of assault of a public servant. Appellant requested his punishment be determined by the trial court, and despite having no prior criminal convictions, the court sentenced him to four years’ imprisonment without community supervision. The trial court also found Appellant to be indigent, ordered him to pay all costs, and a Bill of Costs was attached to the judgment for the costs incurred by the county. Appellant timely filed this appeal. ISSUES ONE AND TWO—DENIAL OF APPELLANT’S MOTION TO SUPPRESS Appellant’s first issue complains the trial court erred by denying his motion to suppress because Corporal West had no probable cause to search his vehicle.4 Similarly, his second issue complains the trial court erred by denying his motion to suppress because his detention was illegal. We disagree. ANALYSIS We review a motion to suppress under a bifurcated standard of review. State v. Ruiz, 577 S.W.3d 543, 545 (Tex. Crim. App. 2019) (citing Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010)). We give almost total deference to the trial court’s findings of fact and review de novo the application of the law to the facts. Id. We view 4 Appellant acknowledges that his first issue is foreclosed by current precedent articulated in Thacker v. State, No. 07-23-00368-CR, 2024 Tex. App. LEXIS 4917, at *3 (Tex. App.—Amarillo July 12, 2024, no pet.) (mem. op., not designated for publication). We decline to reconsider this precedent. 4 the record in the light most favorable to the trial court’s ruling and uphold the ruling if it is supported by the record and is correct under any theory of the law applicable to the case. Id. However, we review questions of law and mixed questions of law and fact that do not turn on an assessment of credibility and demeanor de novo. State v. Organ, 726 S.W.3d 346, 355 (Tex. Crim. App. 2025) (citations omitted). Appellant argues the trial court should have granted his motion to suppress all evidence of the alleged assault under the “exclusionary rule” because the officer illegally detained him.5 The evidence which a defendant seeks to bar must be of a crime that exists and is completed at the time of the illegal activity of the law enforcement officer. See Day v. State, 614 S.W.3d 121, 128–29 (Tex. Crim. App. 2020) (“[T]he exclusionary rule . . . does not provide limitless protection to one who chooses to react illegally to some prior unlawful act by a state agent.”). A person who is stopped or detained illegally is not immunized from prosecution for crimes committed during the detention period. Bryant v. State, 253 S.W.3d 810, 812 (Tex. App.—Amarillo 2008, pet. struck); see also Kelly v. State, No. 07-13-00419-CR, 2014 Tex. App. LEXIS 5835 at *2–3 (Tex. App.—Amarillo May 29, 2014, no pet.) (mem. op., not designated for publication) (“even if the stop of appellant was illegal, appellant remained subject to prosecution for assaulting the deputy. Moreover, the evidence of that assault was not subject to suppression because it did not exist at the time of the initial stop.”). In this case, even assuming arguendo the initial stop or even the subsequent search of the vehicle was illegal, the alleged crime of assault did not exist in that moment. 5 The State did not charge Appellant with possession of marijuana and did not introduce any evidence he possessed marijuana at the time of the incident. Therefore, the only evidence which could be the subject of the motion to suppress is the evidence of the assault. 5 There was no “discovery” of the assault as Corporal West pulled Appellant from his car against his will. Therefore, even if we were to determine the officer lacked probable cause to attempt to detain and search Appellant’s vehicle, the exclusionary rule does not apply to the subsequent evidence of assault resulting from the illegality. Id. Therefore, the trial court did not err in denying his motion to suppress. Appellant’s first and second issues are overruled. ISSUES THREE, FOUR, AND FIVE—EXCLUSION OF BITE MARK EXPERT The next three issues raised by Appellant concern the exclusion of his expert witness. He complains the trial court erred because: • his expert should not have been excluded under the Rules of Evidence; • the exclusion of the expert under the Texas Administrative Code was unconstitutional as applied to Appellant; and • the exclusion of the expert prevented Appellant from presenting a complete defense in violation of his Sixth Amendment rights. ANALYSIS We review a trial court’s ruling on the admission of expert evidence for abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019) (citing Rodgers v. State, 205 S.W.3d 525, 527 (Tex. Crim. App. 2006); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001)). We must uphold the trial court’s ruling if it was within the zone of reasonable disagreement. Wolfe v. State, 509 S.W.3d 325, 335 (Tex. Crim. App. 2017) (internal quotations and citations omitted). And unless the trial court acted arbitrarily or unreasonably or without reference to any guiding rules or principles, its 6 decision must stand. Id. We also must review the trial court’s ruling in light of what was before the trial court at the time the ruling was made. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Further, we will uphold a trial court’s evidentiary ruling if it is correct under any theory of law applicable to the case and reasonably supported by the record, even if the trial court gave the wrong reason for its ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). As the Court of Criminal Appeals has explained, “the mere fact that a correct ruling is given for the wrong reason will not result in a reversal.” Jones v. State, 833 S.W.2d 118, 125 n.15 (Tex. Crim. App. 1992). The admissibility of forensic expert testimony is governed in criminal cases by the Texas Rules of Evidence and the Texas Code of Criminal Procedure. The Rules of Evidence require an expert witness to be: . . . qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. TEX. R. EVID. 702. Before admitting expert testimony, the trial court must be satisfied that (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) (internal quotations and citation omitted). The testimony must also be sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute. Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996) (internal quotations and citations omitted). 7 Here, Appellant sought to admit the testimony of his expert, Dr. Metcalf—a dentist licensed since 1977, who had been trained in and taught forensic dentistry. Dr. Metcalf’s testimony would have given an opinion regarding whether the injury to Corporal West’s hand was caused by a human bite and whether a human bite could dislocate Corporal West’s thumb.6 The trial court held a pretrial Daubert/Robinson hearing to assess Dr. Metcalf’s credentials as an expert witness. The State emphatically argued Dr. Metcalf’s testimony was barred by statute and the TFSC’s administrative rules because forensic odontology—the forensic science of teeth—is currently not an area in which accreditation or exemption is available for pattern comparison of bite marks. The State also argued Dr. Metcalf’s opinion would not be helpful to the jury. Appellant’s counsel countered Dr. Metcalf was not attempting to offer bite mark analysis for the purpose of identifying or excluding a particular person, but rather his analysis was to help the jury determine if the injury to Corporal West’s hand was caused by a human bite. After hearing testimony and argument, the trial court granted the State’s motion to exclude, stating on the record: [Dr. Metcalf,] I think your credentials are impeccable. However, I believe the state of law at this time is that I’m going to exclude the evidence – the bite mark evidence, and also I believe that in this particular case, I don’t believe expert testimony would assist the trier of fact. During trial, the trial court, sua sponte, reconsidered the motion after noting some discrepancies between Corporal West’s testimony of his injuries and the photographic evidence. The State again argued that Dr. Metcalf’s testimony was inadmissible under article 38.35 of the Code of Criminal Procedure and the TFSC’s rules. See TEX. CODE 6 Corporal West could not say in his testimony how or when his thumb was dislocated, only that the thumb was not dislocated before his encounter with Appellant. The indictment also did not mention the dislocated thumb injury, nor did the jury charge. However, the State’s prosecutors argued the evidence demonstrated Appellant’s bite also caused the dislocation of the officer’s thumb. 8 CRIM. PROC. art. 38.35(d)(1); 37 TEX. ADMIN. CODE § 651.7(a)(9). After deliberation, the trial court declined to change its ruling: Before we bring the Jury in, the Court has reconsidered whether or not Dr. Metcalf is going to testify. The Court has looked at this issue extensively and because I can’t find any authority allowing me to let Dr. Metcalf testify in this particular situation, I’m going to stand by my previous ruling and not admit his testimony or allow him to testify. On appeal, both parties devote the bulk of their briefing to article 38.35, which provides that a “forensic analysis of physical evidence . . . and expert testimony relating to the evidence are not admissible in a criminal action if, at the time of the analysis, the crime laboratory conducting the analysis was not accredited by the commission.” TEX. CODE CRIM. PROC. art. 38.35(d)(1); see also id. art. 38.35(a)(1), (4), (5) (defining “crime laboratory,” “forensic analysis,” and “physical evidence”). The State maintains the statute and the TFSC’s rules barred Dr. Metcalf’s testimony because accreditation is not available for forensic odontology. Appellant responds that the statute reaches only the analysis of physical evidence by a crime laboratory—not an individual expert’s review of photographs—and that, if it does reach Dr. Metcalf, its application to him is unconstitutional. The trial court’s comments during trial suggest the statute weighed in its thinking. But the parties’ focus on article 38.35 overlooks that the trial court’s ruling did not rest on the statute alone. At the pretrial hearing, the trial court gave two independent reasons for excluding Dr. Metcalf: its view of “the state of law,” and its separate determination that “in this particular case, . . . expert testimony [would not] assist the trier of fact.” When the trial court revisited the matter during trial, it did not abandon the second ground; it expressly elected to “stand by [its] previous ruling.” Helpfulness was not a theory raised for the first 9 time on appeal—the State urged it at the pretrial hearing, and the trial court expressly ruled on it. The record supports the trial court’s determination. The trial court did not question Dr. Metcalf’s qualifications; it described them as “impeccable.” Its concern was whether his testimony would help this jury decide the question before it. Dr. Metcalf did not examine the wound on Corporal West’s hand at the time of the incident, nor did he meet Appellant in person. His opinions were drawn entirely from photographs of the wound and of Appellant’s teeth.7 The jury, meanwhile, had Corporal West’s testimony, the video of the encounter, and the photographs of his injury to consider. Whether Appellant bit Corporal West, although central to the case, was a question the jurors could resolve by viewing that evidence for themselves and weighing Corporal West’s credibility. Indeed, the discrepancies that prompted the trial court to revisit its ruling were discrepancies between Corporal West’s account and the photographs themselves. These discrepancies would be apparent to a lay observer and available to Appellant in cross- examination without the aid of an expert. The trial court could reasonably conclude that an expert’s interpretation of photographs the jurors could examine themselves would not meaningfully add to their understanding of the evidence. The trial court was entitled to consider the nature of the testimony offered. Dr. Metcalf would have testified as a forensic odontologist interpreting a patterned injury. This was a discipline in which, as the State emphasized, the TFSC presently offers no accreditation for the bite-mark pattern comparison. On this record, the trial court could reasonably conclude that such testimony risked lending an appearance of scientific 7 In fact, no physical evidence was presented at trial by the State. 10 certainty to what was essentially a reading of the same photographs the jurors could evaluate for themselves and was more likely to confuse than to assist the jury. Because the trial court did not abuse its discretion by excluding Dr. Metcalf under Rule 702, we need not decide whether article 38.35 or the TFSC’s rules independently barred the testimony. See TEX. R. APP. P. 47.1; De La Paz, 279 S.W.3d at 344. Therefore, we express no opinion on whether article 38.35 or the TFSC’s accreditation rules apply to an individual expert who reviews photographs but does not test or analyze physical evidence on behalf of a crime laboratory, or on Appellant’s as-applied constitutional challenge to those rules. Appellant’s third, fourth, and fifth issues are overruled. ISSUE SIX—REFORMATION OF JUDGMENT AND BILL OF COSTS Having been found to be indigent, Appellant’s sixth issue argues the Judgment and Bill of Costs should be reformed to eliminate language permitting the assessment of attorney’s fees. The State agrees that the language in the bill of costs allowing for prospective recovery of attorney’s fees should be deleted. An indigent defendant is presumed to remain indigent for the remainder of the proceedings unless a material change in the defendant’s financial circumstances occurs. TEX. CODE CRIM. PROC. art. 26.04(p). Given no finding of changed financial status, the assessment of attorney’s fees must be deleted from the bill of costs. See Woodard v. State, No. 07-23-00377-CR, 2024 Tex. App. LEXIS 4642, at *9–10 (Tex. App.—Amarillo July 2, 2024, no pet.) (mem. op., not designated for publication) (stating that when there is no evidence that a defendant can pay court-appointed attorney’s fees, the proper remedy is to reform the judgment by deleting the provision to repay court-appointed attorney’s fees). Accordingly, the bill of 11 costs shall be reformed to delete references to the requirement to pay attorney’s fees. We sustain Appellant’s sixth issue. CONCLUSION The judgment of conviction is affirmed in part and modified in part. We modify the Judgment of Conviction by Jury and corresponding Bill of Cost [sic] entered in Trial Cause No. 082356-E-CR to delete the following: • “and Order to Pay court appointed attorney” from the sentence “Please Note—other fees may be applied at a later date: Upon this office reviewing . . .”; and • “Attorney fees are not collected until the court find the defendant able to pay, pursuant to TXCCP Art. 26.05 section (g).” As amended, the Bill of Cost in the above identified cause number should reflect Appellant has not been assessed any attorney’s fees and does not owe any attorney’s fees. We also order the District Clerk to prepare an amended bill of costs reflecting the above deletions, and to provide the amended bill of costs to this Court, as well as to Appellant and the Texas Department of Criminal Justice. See Ramos v. State, No. 07-13-00447- CR, 2015 Tex. App. LEXIS 4715, at *6–7 (Tex. App.—Amarillo May 7, 2015, no pet.) (mem. op., not designated for publication). Furthermore, this order of reformation extends to any order to withdraw funds from Appellant’s inmate account. The trial court’s judgment is affirmed as modified. Laura A. W. Pratt Justice Do not publish. 12