IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. PD-0987-09

RICHARD LYNN WINFREY, Appellant v. THE STATE OF TEXAS ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE ELEVENTH COURT OF APPEALS SAN JACINTO COUNTY C OCHRAN, J., filed a concurring opinion, in which W OMACK, J OHNSON and H OLCOMB, JJ., joined.

OPINION Appellant did not object at trial to Deputy Pikett’s “dog scent line-up” testimony.

Therefore, neither the court of appeals nor this Court has had an occasion to review or determine the admissibility of that evidence under either Kelly v. State 1 or Nenno v. State.2

824 S.W.2d 568 (Tex. Crim. App. 1992) (setting out standards for the admissibility of scientific expert testimony under TEX . R. EVID . 702). 970 S.W.2d 549 (Tex. Crim. App. 1998) (setting out standards for the admissibility of non-scientific expert testimony under TEX . R. EVID . 702).

But, as the majority holds, even if Deputy Pikett’s testimony concerning the “dog scent line- up” was properly admissible under Rule 702, the evidence is still legally insufficient to support appellant’s conviction.

With that understanding, I join the majority opinion.

Filed: September 22, 2010 Publish