Lewis v. State, 2014 WL 7204708 (Ct. App. Tex. 2014)

Appellant argues that the expert was not reliable because he had never testified about this specific type of toolmark before (magazines), could not recreate marks since the gun was never recovered, his procedures were controlled by investigators, and the articles submitted to trial court were not admitted into evidence so there was no evidence supporting his expert opinion. The court disagreed with all arguments. First, the court holds that the expert has sufficient experience in firearms identification and has done this type of identification at least 5 times, has published papers, and is sufficently educated and trained. Second, the court notes that the expert explained that it is unnecessary to have the recovered firearm in order to conclude that the bullets came from the same, unkown firearm. Third, the court holds that additional testing despite the investigator's statement that only one test bullet was necessary would not have had any impact on the expert's conclusion about the first cartridge. Finally, the court says that failing to admit the articles into evidence after submitting them to the court and being cross-examined on their contents was not enough to tip the scales away from reliability. The court distinguishes this case from Sexton by explaining that here, the expert submitted his testimony and powerpoint and thoroughly explained his conclusions compared to Sexton, where a treatise was submitted refuting the expert's asseretions.