Nenno test in Texas

2025App. 2010) (noting that “‘[t]he general principles announced in Kelly (and Daubert)[6] apply’” when soft sciences are at issue but that the specific factors “‘may or may not apply’” and recognizing that the Nenno test is “somewhat more flexible” (quoting Nenno, 970 S.W.2d at 560 )). 2.

2025App. 2010) (noting that “‘[t]he general principles announced in Kelly (and Daubert)[6] apply’” when soft sciences are at issue but that the specific factors “‘may or may not apply’” and recognizing that the Nenno test is “somewhat more flexible” (quoting Nenno, 970 S.W.2d at 560 )). 2.

2011See Winston , 78 S.W.3d at 525–26 (applying Nenno standard to admissibility of dog-scent lineups) ; see also Smith , --- S.W.3d ---, 2011 WL 480600, at *3 (same).

2011See Winston , 78 S.W.3d at 525–26 (applying Nenno standard to admissibility of dog-scent lineups); see also Smith , 335 S.W.3d at 711 (same).

2021App. 1999) (noting that when measuring the reliability of an expert’s opinion in fields within the soft sciences, we consider whether: “(1) the field of expertise is a legitimate one; (2) the subject matter of the expert's testimony is within the scope of that field; and (3) the expert’s testimony properly relies upon the principles involved in that field of study”); see also In re J.R., 501 S.W.3d at 748 (employing Nenno factors in parental termination case to psychologist’s testimony); see also In re A.J.L., 136 S.W.3d 293 , 297–301 (Tex. App.—Fort Worth 2004, no pet.) (applying soft science

2016See Taylor v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641 ,- 650-51 (Tex. App.—Austin 2005, pet. denied); In re A.J.L., 136 S.W.3d 293, 298 (Tex. App.— Fort Worth 2004, no pet.) (applying the Nenno framework- in a -parental-termination case); see also In re Polk, No. 09-10-00127-CV, 2011 WL 662928 , at *4, 2011 Tex. App. LEXIS 1323 at **11-12 (Tex. App.—Beaumont Feb. 24, 2011, pet. denied) (mem. op.) (recognizing that some cases are not susceptible to scientific analysis, and thus, the Robinson factors may *748 not apply; and that the Nenno factors have been applied to analyze

2010In evaluating the first prong of the Nenno test, the court noted that "[t]he ability of certain breeds of dogs, especially bloodhounds, to distinguish humans by scent is well-documented." Id. (citing State v. Roscoe , 700 P.2d 1312 , 1319-20 & n.2 (Ariz. 1984); Roberts v. State , 469 A.2d 442 , 447 & n.5 (Md. 1983)). "[T]hese dogs' superior senses have long been used to aid mankind in a variety of contexts outside the courtroom, including 'to track by scent escaped criminals or lost persons and articles.'" Id. (quoting People v. Price , 531 N.E.2d 367 , 269 (N.Y. 1981)).

2010"Since interpretation of a dog's reaction to a scent lineup is based upon training and experience, and not scientific method, we apply the less rigorous Nenno test in this case." Winston v. State , 78 S.W.3d 522, 526 (Tex. App.-Houston [14th Dist.] 2002, pet. ref'd) (citing Brooks v. People , 975 P.2d 1105, 1106 (Colo. 1999) (holding that canine scent-tracking evidence does not constitute evidence subject to Daubert scientific validation factors but that conventional Rule 702 and Rule 403 analysis should be applied)).

2025Although he points us to the Kelly factors—the test for reliability when an expert’s testimony is based on hard science—Ortiz agrees that the “[e]xpert testimony in the field of psychology is a ‘soft science.’” 25 rigorous standard than hard science expert testimony” and applying Nenno analysis to expert testimony based on specialized knowledge of law enforcement, not scientific knowledge); Coble v. State, 330 S.W.3d 253, 274 (Tex. Crim.

2013See Coble, 330 S.W.3d at 273-74 (applying Nenno test to testimony of forensic psychiatrist regarding future dangerousness); Nenno v. State, 970 S.W.2d 549, 560-61 (Tex.Crim.App.1998), overruled in part on other grounds by, State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999); Ruckman v. State, 109 S.W.3d 524, 529-31 (Tex.App.-Tyler 2000, pet. ref'd) (applying Nenno test to testimony regarding false confessions).

2005In re J.B. , 93 S.W.3d 609, 629-31 ; see also In re A.J.L. , 136 S.W.3d 293, 298 (Tex. App.--Fort Worth 2004, no pet.) (applying Nenno framework in parental termination case); In re G.B. , No. 07-01-0210-CV, 2003 Tex. App. LEXIS 8737 , at *2 (Tex. App.--Amarillo Oct. 10, 2003, no pet.) (same).

2005In re J.B., 93 S.W.3d 609, 629-31 ; see also In re A.J.L., 136 S.W.3d 293, 298 (Tex. App.—Fort Worth 2004, no pet.) (applying Nenno framework in parental termination case); In re G.B., No. 07-01-0210-CV, 2003 Tex. App. LEXIS 8737 , at *2 (Tex. App.—Amarillo Oct. 10, 2003, no pet.) (same).

2019“Soft” sciences, such as psychology, are reviewed under a more flexible standard set out in Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App. 1999) (en banc); see Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000); Holcombe, 2018 WL 6629700 , at *5 (applying the Nenno standard to expert testimony in the area of psychology).

2019“Soft” sciences, such as psychology, are reviewed under a more flexible standard set out in Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App. 1999) (en banc); see Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000); Holcombe, 2018 WL 6629700 , at *5 (applying the Nenno standard to expert testimony in the area of psychology).

2020In fields of study outside the hard sciences, i.e., behavioral sciences and psychology, we apply the more flexible Nenno test to evaluate reliability: “(1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field.” Nenno v. State, 970 S.W.2d 549, 561 (1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim.

2019“Soft” sciences, such as psychology, are reviewed under a more flexible standard set out in Nenno v. State, 970 S.W.2d 549, 561 (Tex.Crim.App. 1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App. 1999) (en banc); see Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000); Holcombe, 2018 WL 6629700 , at *5 (applying the Nenno standard to expert testimony in the area of psychology).

2011See Winston , 78 S.W.3d at 525–26 (applying Nenno standard to admissibility of dog-scent lineups) ; see also Smith , --- S.W.3d ---, 2011 WL 480600, at *3 (same).

2011See Winston , 78 S.W.3d at 525–26 (applying Nenno standard to admissibility of dog-scent lineups); see also Smith , 335 S.W.3d at 711 (same).

2009See Kumho Tire Co., Ltd. , 526 U.S. at 153 ; Henderson v. State , 77 S.W.3d 321, 325 (Tex. App.-Fort Worth 2002, no pet.) (concluding that clinical medicine is not within the hard sciences contemplated by Daubert and therefore applying the Nenno factors instead). 188. 970 S.W.2d at 560 . 189.

2009See Kumho Tire Co., Ltd. , 526 U.S. at 153 ; Henderson v. State , 77 S.W.3d 321, 325 (Tex. App.-Fort Worth 2002, no pet.) (concluding that clinical medicine is not within the hard sciences contemplated by Daubert and therefore applying the Nenno factors instead). 188. 970 S.W.2d at 560 . 189.

2025Thus, this case should be analyzed under the less stringent Nenno test.5 See Rhomer, 569 S.W.3d at 671 ; Kingsbury, 625 S.W.3d at 703; see also Allison v. State, 666 S.W.3d 750 , 759 (Tex. Crim.

2025Thus, this case should be analyzed under the less stringent Nenno test.5 See Rhomer, 569 S.W.3d at 671 ; Kingsbury, 625 S.W.3d at 703; see also Allison v. State, 666 S.W.3d 750 , 759 (Tex. Crim.

2017In employing the Nenno framework, the Court of Criminal Appeals “explicitly refrained from developing rigid distinctions between ‘hard’ science, ‘soft’ sciences, and nonscientific testimony because [the Court] recognized that the distinction between various types of testimony may often be blurred.” Morris, 361 S.W.3d at 654-55 .

2017In employing the Nenno framework, the Court of Criminal Appeals “explicitly refrained from developing rigid distinctions between ‘hard’ science, ‘soft’ sciences, and nonscientific testimony because [the Court] recognized that the distinction between various types of testimony may often be blurred.” Morris, 361 S.W.3d at 654-55 .

2019Under the Nenno standard, the trial court should inquire as to whether: “(1) the field of expertise involved is a legitimate one, (2) the subject matter of the expert’s testimony is within the scope of that field, and (3) the expert’s testimony properly relies upon or utilizes the principles involved in that field.” Tillman v. State, 354 S.W.3d 425, 435-36 (Tex.Crim.App. 2011), citing Weatherred, 15 S.W.3d at 542 .

2019Under the Nenno standard, the trial court should inquire as to whether: “(1) the field of expertise involved is a legitimate one, (2) the subject matter of the expert’s testimony is within the scope of that field, and (3) the expert’s testimony properly relies upon or utilizes the principles involved in that field.” Tillman v. State, 354 S.W.3d 425, 435-36 (Tex.Crim.App. 2011), citing Weatherred, 15 S.W.3d at 542 .

2016See Taylor v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641 ,- 650-51 (Tex. App.—Austin 2005, pet. denied); In re A.J.L., 136 S.W.3d 293, 298 (Tex. App.— Fort Worth 2004, no pet.) (applying the Nenno framework- in a -parental-termination case); see also In re Polk, No. 09-10-00127-CV, 2011 WL 662928 , at *4, 2011 Tex. App. LEXIS 1323 at **11-12 (Tex. App.—Beaumont Feb. 24, 2011, pet. denied) (mem. op.) (recognizing that some cases are not susceptible to scientific analysis, and thus, the Robinson factors may *748 not apply; and that the Nenno factors have been applied to analyze

2016See Taylor v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641 ,- 650-51 (Tex. App.—Austin 2005, pet. denied); In re A.J.L., 136 S.W.3d 293, 298 (Tex. App.— Fort Worth 2004, no pet.) (applying the Nenno framework- in a -parental-termination case); see also In re Polk, No. 09-10-00127-CV, 2011 WL 662928 , at *4, 2011 Tex. App. LEXIS 1323 at **11-12 (Tex. App.—Beaumont Feb. 24, 2011, pet. denied) (mem. op.) (recognizing that some cases are not susceptible to scientific analysis, and thus, the Robinson factors may *748 not apply; and that the Nenno factors have been applied to analyze

2004See id. ; cf. Nenno , 970 S.W.2d at 562 (stating that to the extent factfinder could decide that absence of peer review cast doubt on credibility of testimony, such affects weight of evidence rather than admissibility).

2004See id. ; cf. Nenno , 970 S.W.2d at 562 (stating that to the extent factfinder could decide that absence of peer review cast doubt on credibility of testimony, such affects weight of evidence rather than admissibility).

2002While I believe we have erred in making criminal procedural rules apply to civil termination proceedings, In the Interest of J.F.C., 57 S.W.3d 66 (Tex.App.-Waco 2001, pet. granted) (Gray, J., dissenting) and In the Interest of B.L.D., 56 S.W.3d 203, 211 (Tex.App.-Waco 2001, pet. granted) (Gray, J., dissenting), I generally agree civil and criminal law should be harmonized when appropriate.

2002While I believe we have erred in making criminal procedural rules apply to civil termination proceedings, In the Interest of J.F.C., 57 S.W.3d 66 (Tex.App.-Waco 2001, pet. granted) (Gray, J., dissenting) and In the Interest of B.L.D., 56 S.W.3d 203, 211 (Tex.App.-Waco 2001, pet. granted) (Gray, J., dissenting), I generally agree civil and criminal law should be harmonized when appropriate.

2023See id. at 671 ; accord Mireles v. State, No. 08-19-00221-CR, 2022 WL 3572859 , at *9 (Tex. App.—El Paso Aug. 19, 2022, pet. ref’d) (mem. op., not designated for publication).

2023See id. at 671 ; accord Mireles v. State, No. 08-19-00221-CR, 2022 WL 3572859 , at *9 (Tex. App.—El Paso Aug. 19, 2022, pet. ref’d) (mem. op., not designated for publication).

2021App. 1999) (noting that when measuring the reliability of an expert’s opinion in fields within the soft sciences, we consider whether: “(1) the field of expertise is a legitimate one; (2) the subject matter of the expert's testimony is within the scope of that field; and (3) the expert’s testimony properly relies upon the principles involved in that field of study”); see also In re J.R., 501 S.W.3d at 748 (employing Nenno factors in parental termination case to psychologist’s testimony); see also In re A.J.L., 136 S.W.3d 293 , 297–301 (Tex. App.—Fort Worth 2004, no pet.) (applying soft science

2018App. 2011) (citing Weatherred, 15 S.W.3d at 542 ); see Harris, 424 S.W.3d at 602 (applying the Nenno standard to expert testimony in the area of psychology). 10 Here, Daigle testified he did not speak with Holcombe near the time the offense was committed.

2018App. 2011) (citing Weatherred, 15 S.W.3d at 542 ); see Harris, 424 S.W.3d at 602 (applying the Nenno standard to expert testimony in the area of psychology). 10 Here, Daigle testified he did not speak with Holcombe near the time the offense was committed.

2017See Chavers, 991 S.W.2d at 460 .

2017See Chavers, 991 S.W.2d at 460 .