Ashlee J. Straker v. State ( 2016 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ASHLEE J. STRAKER, §
No. 08-14-00112-CR
Appellant, §
Appeal from the
v. §
Criminal District Court No. 3
THE STATE OF TEXAS, §
of Tarrant County, Texas
Appellee. §
(TC# 1310230D)
§
OPINION
Appellant Ashlee Straker was convicted by a jury of intoxication assault and accident
involving serious bodily injury arising from a failure to stop and render aid following an auto
accident, and was sentenced to concurrent 20-year prison terms. On appeal, Appellant argues (1)
the trial court erred in admitting evidence of blood test results without any retrograde
extrapolation analysis, (2) the evidence was insufficient to support both convictions, (3) the trial
court erred in admitting hearsay evidence and evidence of Appellant’s prior marijuana use, (4)
the trial court erroneously allowed the prosecutor to ask its expert an improper hypothetical
question, (5) the prosecutor engaged in improper jury argument, and (6) cumulative error
requires reversal. We affirm.1
1
This case was transferred from the Fort Worth Court of Appeals, and we apply the precedent of that Court to the
extent required by Tex. R. App. P. 41.3.
BACKGROUND
On the evening of November 20, 2012, Appellant borrowed a Jeep Cherokee from his
girlfriend, Leslie Florez, to attend a party with two of his friends, Lokuekim Kipasa and Donte
Pierce. After leaving the party early the next morning, Appellant was driving with Kipasa and
Pierce as passengers, when Appellant lost control of the Jeep on a gentle curve in the roadway in
a construction zone. The Jeep struck several construction barrels and the curb of the roadway,
causing the vehicle to roll over several times, ultimately landing on its roof in a field, over 200
feet from the roadway. Kipasa was partially ejected from the vehicle and run over before he was
fully ejected. Pierce was also ejected from the vehicle and landed over 100 feet away from the
point he was ejected. Kipasa died at the scene, and Pierce was seriously injured.
Around 2:44 that morning, passers-by reported seeing debris on the roadway near the
accident site, and Grand Prairie Police Officers arrived at the scene shortly thereafter. The
officers found the Jeep in the field on the side of the highway, flipped over onto its roof, and
soon found Kipasa’s body and the severely-injured Pierce, who was transported to the hospital
by air ambulance. Appellant was nowhere to be found, but the investigating officers located
Appellant’s cell phone in the wreckage and used it to contact Florez. Florez confirmed the
phone belonged to Appellant, that she was the owner of the Jeep, and that she had loaned the
Jeep to Appellant the night before.
Appellant had managed to crawl out of the wreckage through the back window of the
Jeep and had left the scene of the accident before the police arrived. Appellant obtained a ride
from a passing motorist to his mother’s house where Florez was waiting nearby for him.
Appellant, who was clearly injured and bleeding, informed Florez that he had been in an accident
2
and that he had been unable to find Kipasa and Pierce in the wreckage. Shortly thereafter, two
officers arrived at the residence to interview Appellant. Appellant informed the officers that he
had been at a party with Kipasa and Pierce, and that he was driving them home because he was
the “better off of the three[.]”
The officers suspected Appellant had been intoxicated, based in part on Appellant’s
statements about having been at a party and that he was driving since he was the “better off of
the three,” and because the accident was a one-car rollover, and Appellant had left the accident
scene and failed to call for help. Appellant was transported to the hospital for treatment, where
he voluntarily consented to a blood draw. Appellant’s blood was drawn by an emergency room
nurse approximately three hours after the accident. The blood specimen tested positive for
alcohol, THC (marijuana), and alprazolam (a tranquilizer). The State’s expert witness testified
about the synergistic effects of combining two controlled substances with alcohol and opined
that the combination of drugs would have rendered Appellant intoxicated, making it unsafe for
him to drive due to the “multiplication of negative side effects from all three substances.”
Appellant was subsequently indicted and found guilty of one count of intoxication assault
involving Pierce’s injuries, and one count of accident involving serious bodily injury arising
from the failure to stop and render aid to Pierce.2 Appellant pled “true” to a repeat offender
allegation in the indictment, and the trial court sentenced Appellant to 20 years in prison on the
intoxication assault offense and to 20 years in prison on the failure to stop and render aid offense,
with the sentences to run concurrently.
2
Appellant was also convicted of intoxication manslaughter involving the death of Kipasa. Appellant also appealed
that conviction, which we considered separately in Appeal No. 08-14-00111-CR. Appellant filed a single brief
covering both appeals. Appellant’s first issue on appeal relates solely to Appeal No. 08-14-00111-CR, and we do
not address that issue in this opinion.
3
Appellant’s Blood Test Results were Scientifically Reliable
In Issues Seven, Eight, and Ten, Appellant argues the trial court erred in admitting the
evidence of his blood test results, which indicated the presence of marijuana and alprazolam in
his bloodstream following the accident. Appellant asserts the State failed to demonstrate the test
results were scientifically reliable or based on sound scientific theory.
Standard of Review
A trial court’s ruling admitting evidence will not be reversed on appeal absent a clear
abuse of discretion. Jordy v. State, 413 S.W.3d 227, 231 (Tex.App. – Fort Worth 2013, no pet.)
(citing Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App. 2011)). The trial court does not
abuse its discretion in admitting evidence unless its determination lies outside the zone of
reasonable disagreement. Id. The trial court’s ruling will be upheld if it is reasonably supported
by the record and is correct under any theory of law applicable to the case. Id. (citing Ramos v.
State, 245 S.W.3d 410, 418 (Tex.Crim.App. 2008)).
Applicable Law
In order for scientific evidence to be admissible at trial, it must be “considered
sufficiently reliable as to be of help to a jury[.]” Reynolds v. State, 204 S.W.3d 386, 390
(Tex.Crim.App. 2006). Scientific evidence must typically meet three criteria to be admissible:
(1) the underlying scientific theory must be valid; (2) the technique applying the theory must be
valid; and (3) the technique must have been properly applied on the occasion in question. Id. In
the context of breath and blood test evidence, however, the analysis had been modified by
Section 724.064 of the Texas Transportation Code. Section 724.064 provides that at the trial of
offenses under Chapter 49 of the Penal Code, which includes intoxication assault,
4
“evidence of the alcohol concentration or presence of a controlled substance, drug, dangerous
drug, or other substance as shown by analysis of a specimen of the person’s blood, breath, or
urine or any other bodily substance taken at the request or order of a peace officer is admissible.”
TEX. TRANSP. CODE ANN. § 724.064 (West 2011). By enacting Section 724.064, “the
Legislature has already determined that the underlying science is valid, and that the technique
applying it is valid as long as it is administered by individuals certified by, and using methods
approved by the rules of [The Department of Public Safety].” Reynolds, 204 S.W.3d at 390; see
also Mireles v. Texas Dept. of Pub. Safety, 9 S.W.3d 128, 131-32 (Tex. 1999) (the Legislature
has statutorily recognized the scientific theory and technique behind breath tests). Consequently,
both breath and blood specimen test results are “admissible even without proof that the
underlying scientific theory is reliable.” Garcia v. State, 112 S.W.3d 839, 848 (Tex.App. –
Houston [14th Dist.] 2003, no pet.) (citing Slagle v. State, 570 S.W.2d 916, 921 (Tex. Crim.
App. 1978) (concluding the State need not establish a predicate that a breathalyzer examination
is a scientifically reliable test)).
Nevertheless, the State must show that the blood specimen was taken by a qualified
person, such as a “registered professional nurse” or a “licensed vocational nurse,” and that it was
taken in a “sanitary place.” TEX. TRANSP. CODE ANN. § 724.017 (West Supp. 2016); see Garcia,
112 S.W.3d at 848 (for evidence of blood-alcohol concentration to be admissible, there must be
evidence showing compliance with Section 724.017). Also, in order to meet the requirements of
Rule 702 of the Texas Rules of Evidence, the State must demonstrate that “the specimen was
taken and analyzed by individuals who are certified by, and were using methods approved by the
rules of [the Department of Public Safety]” and that the technique was properly applied in
5
accordance with the department’s rules on the occasion in question. Reynolds, 204 S.W.3d at
390-91. These requirements may be met by evidence that the person who performed the test
“knows the protocol involved in administering the test and can testify that he followed it on the
occasion in question, [but] he need not also demonstrate any personal familiarity with the
underlying science and technology.” Id. at 391.
Analysis
Both before and during trial, Appellant objected to the admission of any evidence that he
had ingested marijuana and alprazolam prior to the accident, based in part on the argument that
the test results lacked a sound and reliable foundational basis. The trial court overruled the
objections, and allowed the State to introduce evidence of the test results themselves, together
with the testimony of witnesses from the Tarrant County Medical Examiner’s Office. The State
presented the testimony of Tiffany Flowers, a senior toxicology analyst at the medical
examiner’s office, and Joyce Ho, a now-retired lab manager in that same office, who testified
that they performed the laboratory tests on Appellant’s blood specimen and determined that
Appellant had “17 nanograms per mil” of alprazolam in his blood at the time of his blood draw, a
blood THC level of 5.8 nanograms per mil, and a blood alcohol concentration (BAC) level of
0.07%. Both Flowers and Ho testified to their qualifications to conduct the tests, both witnesses
provided detailed testimony indicating they were familiar with the protocols involved in
administering the tests, and Flowers testified that the test methods used were commonly used and
accepted within the scientific community.
Appellant’s arguments are not entirely clear from his briefing. We interpret his
arguments in accordance with his trial objections, which focused solely on the State’s alleged
6
failure to demonstrate that the blood test results were “scientifically reliable” and based on sound
scientific theory. As discussed above, however, the Legislature has already deemed blood tests
to be scientifically sound and reliable, and we therefore reject Appellant’s claim that the State
was required to present any foundational evidence on that particular point. Reynolds, 204
S.W.3d at 390.
Moreover, Appellant did not raise any specific objections to the qualifications of the
emergency room nurse at the hospital who took Appellant’s blood specimen, nor did Appellant
contend that the hospital was not a “sanitary” place to take the specimen, as required by Section
724.017 of the Transportation Code. Similarly, Appellant failed to make any specific objections
to the qualifications of either Flowers or Ho to perform the tests, and never specifically
challenged the methods they used to conduct the tests or their knowledge of those methods.3
Therefore, we conclude Appellant has waived any challenges to the State’s alleged failure to
provide adequate foundational evidence prior to the admission of the test results. See State v.
Esparza, 413 S.W.3d 81, 86-87 (Tex.Crim.App. 2013) (unless the opponent raises an objection,
the State, as the proponent of breath test results, was not required to present any foundational
evidence to establish its reliability). Issues Seven, Eight, and Ten are overruled.
The Unextrapolated Test Results were Properly Admitted
In his Issue Nine, Appellant argues the trial court erred in admitting the blood test results
showing the presence of THC and alprazolam, because Dr. Robert Johnson, the Chief
3
The State made clear that it intended Flowers and Ho to testify only regarding the manner in which the test results
were conducted, and to have their supervisor, Dr. Robert Johnson, the Chief Toxicologist, interpret the results and
explain to the jury how those results applied to Appellant’s case. Nevertheless, Appellant attacks the testimony of
Flowers and Ho because they did not explain the relevance of the test results to Appellant’s intoxication at the time
of the accident. Because neither Flowers nor Ho was assigned that task, we address the relevance of the test results
in the next issue, in which Appellant challenges the adequacy of Dr. Johnson’s testimony.
7
Toxicologist, could not provide any retrograde extrapolation analysis testimony to demonstrate
that the test results were relevant to Appellant’s intoxication at the time of the accident.4 In a
related argument, Appellant contends the lack of retrograde extrapolation testimony rendered the
test results more prejudicial than probative, and that the trial court should have excluded them
under Rule 403 of the Texas Rules of Evidence.5 We review each argument separately.
Standard of Review and Applicable Law
Evidence is relevant if it has any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence. Henley v. State, 493 S.W.3d 77, ___ (Tex.Crim.App. 2016); TEX. R. EVID.
401. Only relevant evidence is admissible, and the trial court’s decision whether to admit
evidence is reviewed under an abuse of discretion standard. Id.; see also Torres v. State, 71
S.W.3d 758, 760 (Tex.Crim.App. 2002). However, “[e]vidence need not by itself prove or
disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge
toward proving or disproving some fact of consequence.” Stewart v. State, 129 S.W.3d 93, 96
(Tex.Crim.App. 2004).
Under Rule 403, a “court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the
jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403. In a Rule
403 analysis, a trial court “must balance (1) the inherent probative force of the proffered item of
4
Retrograde extrapolation is the computation back in time of a blood test result to estimate the level of alcohol or
other substances in a defendant’s body at the time he was driving. Price v. State, 59 S.W.3d 297, 300 n.1 (Tex.App.
– Fort Worth 2001, pet. ref’d) (citing Mata v. State, 46 S.W.3d 902, 908–09 (Tex.Crim.App. 2001)).
5
Appellant does not make a similar argument regarding the admissibility of the BAC test results. However, he does
raise that issue tangentially in his argument that the evidence of his intoxication is insufficient—an issue we address
next.
8
evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse
or distract the jury from the main issues, (5) any tendency of the evidence to be given undue
weight by a jury that has not been equipped to evaluate the probative force of the evidence, and
(6) the likelihood that presentation of the evidence will consume an inordinate amount of time or
merely repeat evidence already admitted.” Gigliobianco v. State, 210 S.W.3d 637, 641-42
(Tex.Crim.App. 2006).
A trial court is entitled to broad discretion in ruling on a Rule 403 objection, and great
deference is given to the trial court’s decision to admit or exclude evidence under Rule 403. See
Powell v. State, 189 S.W.3d 285, 288 (Tex.Crim.App. 2006); State v. Mechler, 153 S.W.3d 435,
439 (Tex.Crim.App. 2005). Under the abuse of discretion standard, we will not overrule a trial
court’s decision under Rule 403 if the trial court’s decision is within the zone of reasonable
disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (opin. on
reh’g). The party objecting under Rule 403 has the burden to show that the probative value is
substantially outweighed by the danger of unfair prejudice. Runnels v. State, 193 S.W.3d 105,
107 (Tex.App. –Houston [1st Dist.] 2006, no pet.).
Retrograde Extrapolation Testimony was not a Prerequisite to Admission
Dr. Johnson testified that he was unable to perform a retrograde extrapolation analysis
that would have indicated the level of THC and alprazolam in Appellant’s blood at the time of
the accident. Appellant contends that without retrograde extrapolation testimony, the test results
were not relevant to whether he was intoxicated at the time of the accident. We conclude the test
results were admissible.
9
Appellant is correct that the State must prove a defendant was intoxicated at the time of
his offense, and not just at the time his blood was drawn. Kirsch v. State, 306 S.W.3d 738, 745
(Tex.Crim.App. 2010); Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App. 2010) (state
must establish a “temporal link between the defendant’s intoxication and his driving”).
However, it is well-settled that retrograde extrapolation testimony is only one method of
providing this temporal connection, and therefore, the Court of Criminal Appeals has repeatedly
made it clear that retrograde extrapolation testimony is not required in order to prove a temporal
connection. See, e.g., Stewart, 129 S.W.3d at 97; Kirsch, 306 S.W.3d at 743-45; see also Torres
v. State, 109 S.W.3d 602, 606 (Tex.App. – Fort Worth 2003, no pet.) (noting that the Court of
Criminal Appeals has never required retrograde extrapolation evidence as a condition of the
admissibility of BAC test results).
Further, courts have recognized that unextrapolated test results based on blood or breath
samples taken after a defendant’s arrest are relevant in cases in which a defendant is accused of
DWI and causing an accident due to intoxication because those results make it more probable
that the defendant was intoxicated at the time that he or she drove. See, e.g., Manning v. State,
114 S.W.3d 922, 927 (Tex.Crim.App. 2003) (test results indicating the presence of cocaine
metabolite in defendant’s bloodstream following the accident were “strong evidence” that
defendant had consumed cocaine prior to the accident, rendering the evidence relevant and
admissible at trial); Kirsch, 306 S.W.3d at 745 (unextrapolated BAC results are often “probative
to prove both per se and impairment intoxication”); Mechler, 153 S.W.3d at 440 (intoxilyzer
10
results are probative whether a defendant consumed alcohol before driving, and are therefore
admissible at trial without retrograde extrapolation testimony)).6
Accordingly, we reject Appellant’s contention that retrograde extrapolation analysis
testimony was required prior to admitting evidence of Appellant’s test results.
The Test Results were Admissible under Rule 403
Appellant next contends that even if the blood tests results were admissible without
retrograde extrapolation testimony, the trial court should have excluded the results under Rule
403 because they were more prejudicial than probative. In making this argument, however,
Appellant continues to focus on the State’s failure to present any retrograde extrapolation
testimony, contending that without this evidence, the jury had no means of evaluating the
probative force of the blood test evidence, which in turn, may have confused the jury and caused
it to make a decision on an improper basis.
The Court of Criminal Appeals rejected an almost identical argument in Gigliobianco,
210 S.W.3d at 640-43. In Gigliobianco, the defendant was charged with intoxication
manslaughter and similarly argued that his unextrapolated breath test results were more
6
See also Williams v. State, 307 S.W.3d 862, 868 (Tex.App. – Fort Worth 2010, no pet.) (unextrapolated intoxilyzer
test results were “highly probative” to demonstrate whether a defendant was intoxicated at the time he was driving);
State v. Esparza, 353 S.W.3d 276, 283-84 (Tex.App. – El Paso 2011), aff’d, 413 S.W.3d 81 (Tex.Crim.App. 2013)
(breath test results administered several hours after the alleged offense were admissible, even in the absence of
retrograde-extrapolation testimony, because the results tended “to make it more probable that he was intoxicated at
the time of driving”); Leblanc v. State, No. 01-10-00251-CR, 2011 WL 3556952, at *7-8 (Tex.App. – Houston [1st
Dist.] Aug. 11, 2011, no pet.) (mem. op., not designated for publication) (evidence of unextrapolated blood test
results indicating that defendant had a cocaine metabolite and THC in his system at the time of the blood draw was
probative of the defendant’s intoxication at the time of the accident, despite expert witness’s inability to determine
the exact level of the substances in the defendant’s blood at the time of the accident); Dunn v. State, 176 S.W.3d
880, 883 (Tex.App. – Fort Worth 2005, no pet.) (blood test results demonstrating that the defendant had
amphetamine and methamphetamine were relevant to the charged offense of intoxication manslaughter, and were
admissible at trial despite the State’s failure to specifically tie the presence of the substance to the defendant’s lack
of normal use of his facilities at the time of the accident); Owen v. State, 905 S.W.2d 434, 438–39 (Tex.App. –
Waco 1995, pet. ref’d) (the lack of retrograde analysis testimony does not affect the admissibility of the evidence,
and is instead merely a factor that goes to the weight of the evidence for the jury to consider).
11
prejudicial than probative because they may have confused or misled the jury and allowed the
jury to give the results undue weight. In concluding the trial court did not abuse its discretion in
admitting the unextrapolated test results, the Court noted that the test results demonstrated that
the defendant had consumed a substantial amount of alcohol thereby tending to “make more
probable appellant’s intoxication at the time he was driving” and that the State had a
“considerable” need for the admission of the breath test results, because the State’s evidence did
not clearly demonstrate that the defendant was in fact intoxicated at the time of his arrest. Id. In
balancing these two factors against the possibility of unfair prejudice, the Court concluded that
because the test results directly related to the charged offense, they could not have distracted the
jury from the main issue in the case whether the defendant was intoxicated while he was driving.
Id. at 641. Similarly, in light of the clear relevance of the evidence to the issue of appellant’s
guilt, the time spent by the State in admitting the evidence did not result in undue delay or a
needless presentation of cumulative evidence. Id. More importantly, the Court determined that
because the State’s witness had explained that the test results “could not be used to determine
what appellant’s breath alcohol concentration was at the time he was stopped,” the jury was not
misled concerning the purpose of the evidence, and instead, could have “reasonably concluded
that the jury was equipped to evaluate the probative force of the breath test results.” Id. at 642.
As in Gigliobianco, we find that the test results in the present case were highly probative
to Appellant’s intoxication at the time of the accident, despite the absence of any retrograde
extrapolation testimony, because they were based on a blood draw that took place less than three
hours after the accident, with no evidence that Appellant imbibed any alcohol or took any other
controlled substance between the time of the accident and the blood draw. See Verbois v. State,
12
909 S.W.2d 140, 142-43 (Tex.App. – Houston [14th Dist.] 1995, no pet.) (unextrapolated breath
test results based on test conducted two and one-half hours after an accident were relevant to
whether appellant consumed alcohol prior to accident and not unduly prejudicial); see also
Kirsch, 306 S.W.3d at 745 (unextrapolated BAC test results based on a blood draw taken 80
minutes after the defendant’s arrest were highly probative on the question of the defendant’s
intoxication); Mechler, 153 S.W.3d at 440 (unextrapolated intoxilyzer results based on test
conducted 90 minutes after defendant was arrested for DWI were relevant to his intoxication at
the time he was driving); Stewart, 129 S.W.3d at 96-97 (unextrapolated intoxilyzer test results
based on test conducted approximately 80 minutes after defendant’s arrest for DWI were
probative of defendant’s intoxication at time she was driving).
In addition, we conclude the State had a substantial need to have the test results admitted
into evidence, particularly because the only witness who could have testified regarding
Appellant’s conduct before the accident, Donte Pierce, testified that due his injuries, he could not
recall the details of what occurred on the morning in question, including whether Appellant
smoked any marijuana or was driving before the accident, and Florez, who was the first witness
to see Appellant after the accident, testified that Appellant did not appear to be intoxicated at the
time. In light of this conflicting evidence and the lack of any eyewitnesses to the offense, the
State’s need for the jury to hear evidence of the test results was “great,” as Appellant
acknowledges.
Moreover, we conclude there was no danger that the jury would have been distracted by
the admission of this evidence, because as in Gigliobianco, the test results related to the main
issue whether Appellant was intoxicated at the time of the accident. In addition, given the
13
importance of this evidence to the State’s case, the trial court could have reasonably concluded
that the time spent on the admission of the evidence did not consume an inordinate amount of
time or result in the admission of cumulative evidence.
Most importantly, although Dr. Johnson provide a detailed description of the effects
combining THC, alprazolam, and alcohol would have on an individual, he also testified that he
could not perform a retrograde analysis on the test results and that he therefore could not provide
the jury with an exact estimate of how much THC or alprazolam Appellant had in his system at
the time of the accident. Dr. Johnson also did not suggest to the jury that the test results
themselves were conclusive proof of the defendant’s intoxication. The trial court therefore could
have reasonably concluded that the jury was not misled on how the test results should be utilized
and that no undue danger existed that the jury would misuse or be misled by the evidence.
Accordingly, we conclude the trial court could have reasonably determined that the
probative value of Appellant’s blood tests results were not substantially outweighed by the
countervailing factors specified in Rule 403, and that the trial court did not abuse its discretion in
admitting the evidence. Issue Nine is overruled.
The Evidence was Sufficient to Support Appellant’s Conviction
for Intoxication Assault
In Issue Two, Appellant contends the evidence was insufficient to support his conviction
for intoxication assault, asserting that the State failed to present evidence from which a rational
jury could have found that he was intoxicated at the time of the accident or that his alleged
intoxication caused the accident. We disagree.
Standard of Review
14
We review sufficiency complaints under the legal-sufficiency standard enunciated in
Jackson v. Virginia. See Fernandez v. State, 479 S.W.3d 835, 837 (Tex.Crim.App. 2016);
Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) (citing Jackson v. Virginia, 443
U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The relevant inquiry is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443
U.S. at 319, 99 S.Ct. at 2789. The jury is the sole judge of credibility and weight to be attached
to the testimony of witnesses. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). It
is the fact finder’s duty “to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” See Clayton v. State, 235 S.W.3d 772,
778 (Tex.Crim.App. 2007) (quoting Jackson, 443 U.S. at 319, 99 S. Ct. 2781). When the record
supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the
verdict, and we defer to that determination. Dobbs, 434 S.W.3d at 170; see also Jackson, 443
U.S. at 319, 99 S.Ct. at 2789. If a rational fact finder could have found the defendant guilty, we
will not disturb the verdict on appeal. Fernandez, 479 S.W.3d at 838; see also Temple v. State,
390 S.W.3d 341, 363 (Tex.Crim.App. 2013) (affirming judgment where evidence was legally
sufficient to support a conviction).
Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone may be sufficient to establish guilt. Dobbs, 434 S.W.3d at 170;
Carrizales v. State, 414 S.W.3d 737, 742 n.20 (Tex.Crim.App. 2013) (citing Hooper v. State,
214 S.W.3d 9, 13 (Tex.Crim.App. 2007)). Each fact need not point directly and independently to
15
the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction. Dobbs, 434 S.W.3d at 170; Hooper, 214 S.W.3d at 13.
The elements of the offense of intoxication assault are that a person operates a motor
vehicle in a public place, is intoxicated, and by reason of that intoxication causes serious bodily
injury to another by accident or mistake. TEX. PENAL CODE ANN. § 49.07 (West 2011); see also
Ex parte Watson, 306 S.W.3d 259, 265 (Tex. Crim. App. 2009) (discussing elements of the
offense). Appellant does not deny that he was operating the Jeep Cherokee in a public place at
the time of the accident. The only issue is whether the evidence was sufficient to allow a rational
jury to conclude that (1) Appellant was intoxicated at the time of the accident, and (2) that his
intoxication was the cause of the accident and Pierce’s consequent injuries.7 We examine each
element separately.
The Evidence Supported a Finding of Intoxication
The term “intoxicated ” is defined by statute as either: (1) not having the normal use of
mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a
drug, a dangerous drug, a combination of two or more of those substances, or any other
substance into the body; or (2) having a blood alcohol concentration level of 0.08% or more.
TEX. PENAL CODE ANN. § 49.01(2)(A, B) (West 2011). These two definitions of intoxicated are
7
Appellant claims the State failed to present sufficient evidence that Pierce’s injuries resulted from the accident,
contending that his injuries—and his brain injuries in particular—may have resulted from Pierce drinking too much
at the party prior to the accident. The evidence is undisputed, however, that Pierce suffered substantial bodily
injuries as the result of the accident. The investigating officers found Pierce’s injured body at the scene of the
accident and determined that he had been ejected from the vehicle and had been “airborne” until he landed 117 feet
from the point he was ejected. The investigating officers believed Pierce was so badly injured that they called for
medical evacuation by helicopter. The State presented evidence that Pierce was hospitalized for a week after the
accident, with swelling in his brain and cuts throughout his body. Moreover, Appellant never argued at trial that
Pierce had not been injured in the accident, or that his injuries were caused by his ingestion of alcohol. To the
contrary, Appellant’s trial attorney expressly stated that he did not intend to introduce any evidence of the levels of
alcohol or other intoxicants found in Pierce’s body following the accident, thereby indicating that he did not intend
to make Pierce’s intoxication an issue at the trial for any purpose.
16
referred to as the “impairment” theory and the “per se” theory, respectively. Kirsch, 306 S.W.3d
at 743.
The jury was instructed that it could find that Appellant was intoxicated under either
statutory theory of intoxication, and his conviction will therefore be upheld as long as sufficient
evidence was presented to prove either of the alleged theories. See Bagheri v. State, 119 S.W.3d
755, 761 n.5 (Tex.Crim.App. 2003) (the definitions contained in Section 49.01 set forth alternate
means by which the State may prove intoxication); see also Kirsch, 306 S.W.3d at 743 (the two
Penal Code definitions of intoxication are not mutually exclusive, and as long as there is
evidence that would support both definitions, both theories are submitted to the jury); Lerma v.
State, No. 13-13-00369-CR, 2015 WL 1869444, at *5 (Tex.App. – Corpus Christi April 23,
2015, pet. ref’d) (mem. op., not designated for publication) (jury was authorized to convict if it
found that defendant was intoxicated under either the “impairment” or “per se” definitions in the
statute).
Appellant contends the State failed to present any “direct evidence” that his BAC was at
0.08% or more at the time of the accident to support a conviction on a “per se” theory. In
particular, Appellant points out that his test results only placed his BAC level at 0.07%, and that
the State was unable to provide any retrograde extrapolation testimony that would have allowed
the jury to convict him on the “per se” theory. We need not decide whether the evidence
supported a finding of intoxication on a “per se” theory, however, since there was ample
evidence to support a verdict on an “impairment” theory by showing Appellant did not have
normal use of mental or physical faculties.
17
The State presented evidence not only that Appellant had a BAC level of 0.07% at the
time his blood was tested, but also that he had substantial amounts of marijuana and alprazolam
in his blood three hours after the accident. Dr. Johnson explained in detail both the individual
and cumulative effects these substances would have on a person, which included drowsiness,
dizziness, confusion, and sedation. Moreover, despite being unable to provide any retrograde
extrapolation analysis, Dr. Johnson testified that in the absence of any evidence that Appellant
ingested any alcohol after the accident, the lowest percentage of alcohol in his body at the time
of the accident was 0.07%, which would have rendered the vast of the population unable to drive
safely, despite Texas having set the “per se” level of intoxication at 0.08%.8 In addition, Dr.
Johnson also testified that even though the level of alprazolam Appellant had in his bloodstream
at the time of the blood draw was at a therapeutic level, this would have affected his ability to
drive. He also further opined that the vast majority of individuals with even half of Appellant’s
level of THC in their bloodstream would be “unsafe to drive[.]”
8
Appellant acknowledges that Dr. Johnson estimated that Appellant’s BAC level could have been anywhere from as
low as 0.07% to as high as 0.11% at the time of the accident, based on the fact that an average male would typically
eliminate about .04 of alcohol from his body over the three-hours that elapsed between the time of the accident and
Appellant’s blood draw. Appellant contends that to the extent that Dr. Johnson was attempting to establish that his
BAC was above the legal limit of 0.08%, his testimony amounted to pure “speculation,” because he could not
perform an appropriate retrograde extrapolation analysis. Appellant did not challenge Dr. Johnson’s estimate at trial
as being scientifically unsound, nor does he argue on appeal that Dr. Johnson should not have been permitted to
provide this estimate at trial. Consequently, we do not address the admissibility of Dr. Johnson’s testimony itself.
Instead, our review is limited to determining whether the evidence, as presented to the jury, was sufficient to support
a finding of guilt. See generally Moff v. State, 131 S.W.3d 485, 489–90 (Tex.Crim.App. 2004) (distinguishing
between challenges to the admission of evidence and the sufficiency of the evidence); see also Thurman v. State,
No. 04-13-00463-CR, 2014 WL 1390490, at *1-3 (Tex.App. – San Antonio April 9, 2014, no pet.) (mem. op., not
designated for publication) (because defendant did not challenge the admissibly of the State’s retrograde
extrapolation testimony at trial, court of appeals only considered whether the State presented sufficient evidence to
uphold the defendant’s DWI conviction); Killian v. State, 2002 WL 1938650, at *7 (Tex.App. – El Paso Aug. 22,
2002, pet. ref’d) (not designated for publication) (defendant’s failure to object to expert witness’s retrograde
extrapolation testimony waived issue of admissibility of evidence on appeal).
18
More importantly, Dr. Johnson testified concerning the synergistic effects of taking all
three of these substances would have on a person’s physical and mental faculties. Dr. Johnson
explained that taking two or more drugs in combination, such as alcohol and alprazolam which
have the same negative side effects, multiplies those negative effects.9 He also explained that
alcohol “increases the negative side effects of THC,” so that the user may become even more
tired and confused. He expressed his opinion that given the levels and the combination of
substances Appellant had in his bloodstream, it “would have made it unsafe for him to drive,”
and would have rendered him “intoxicated.”10
In addition, the evidence indicated that no witnesses, including Florez, observed
Appellant drinking or taking any narcotics after the accident. Therefore, the test results were
highly probative whether Appellant was intoxicated at the time of the accident. See Stewart, 129
S.W.3d at 96 (where there was no evidence that defendant consumed alcohol after driving, her
breath test results, although inconclusive, tended to make it “more probable” that defendant was
intoxicated at the time she drove).
We recognize that unextrapolated test results are not conclusive proof of a defendant’s
intoxication at the time of an accident, and the State is required to come forward with “other
evidence in the record that would support an inference that the defendant was intoxicated at the
time of driving as well as at the time of taking the test.” Kirsch, 306 S.W.3d at 745; see also
9
The court instructed the jury on the synergistic effects of narcotics and alcohol. Such instructions are deemed a
proper application of the law to the facts of the case when the evidence demonstrates the defendant ingested multiple
substances prior to driving. See Gray v. State, 152 S.W.3d 125, 128, 133-34 (Tex.Crim.App. 2004).
10
Appellant appears to contend that many, if not all, of Dr. Johnson’s conclusions lacked a sufficient scientific
foundation, and therefore should not have been admitted at trial. Appellant never objected to Dr. Johnson’s
testimony on this basis at trial, however, and we therefore decline to address these challenges on appeal. See
Esparza, 413 S.W.3d at 86-87 (defendant waived objection to admissibility of scientific evidence by failing to object
to its scientific reliability at trial).
19
Kuciemba, 310 S.W.3d at 462; Stewart, 129 S.W.3d at 97 (test results are but one piece “in the
evidentiary puzzle,” and other evidence must be presented from which a jury could infer that a
defendant was intoxicated at the time of an accident in order to complete the puzzle).
In determining whether there is sufficient “other evidence” in the record to support a
finding of intoxication, a reviewing court may look to a variety of factors, such as whether the
defendant admitted to consuming alcohol or other intoxicating substances prior to driving;
whether the defendant appeared intoxicated at the time of his arrest, and whether the nature of
the accident suggested that the defendant was intoxicated. See, e.g., Crenshaw v. State, 378
S.W.3d 460, 467-68 (Tex.Crim.App. 2012) (evidence was sufficient to support a finding of
intoxication under an impairment theory where the defendant’s BAC level was 0.07% at time of
blood draw, which together with other evidence of the defendant’s intoxication, including his
appearance at the time of his arrest and his admission that he drank and smoked marijuana prior
to driving, made it “more probable that Appellant was subjectively impaired at the time he was
driving, thereby supporting the theory alleged in the information and applied to the facts in the
charging instrument”).11
In the present case, the State presented ample “other evidence” from which the jury could
have reasonably inferred that Appellant was intoxicated at the time of the accident. The State
presented undisputed evidence that Appellant had been at a party prior to the accident and that
11
See also Aldrich v. State, 296 S.W.3d 225, 230-31 (Tex.App. – Fort Worth 2009, pet. ref’d) (evidence was
sufficient to support conviction were blood specimen taken more than two hours after accident showed a BAC of
0.07%, and where there was ample other evidence to support the conviction, including the defendant’s testimony
that he had consumed three twelve-ounce beers sometime prior to the accident, and numerous witnesses testified at
trial that the accident occurred at a well-lit and clearly-marked crosswalk); Blanchard v. State, No. 05-05-01194-CR,
2006 WL 2440777, at *3 (Tex.App. – Dallas Aug. 24, 2006, no pet.) (not designated for publication) (the evidence
was sufficient to sustain the defendant’s DWI conviction, despite conflicting nature of urinalysis test results, where
the defendant’s test results detected a metabolite of marijuana in his system of an unknown quantity, and the
defendant admitted that he had recently smoked marijuana two to three hours earlier).
20
Pierce had observed Appellant drinking alcohol at the party. In addition, although he did not
recall whether Appellant had been smoking marijuana at the party, Pierce acknowledged that
there was marijuana present at the party. Appellant also admitted to the investigating officers
that he had been at a party prior to the accident, and that he was the “better off” of the three to
drive, indicating that he recognized that he had some level of intoxication and impairment when
leaving the party. Further, Appellant informed Florez when she met him after the accident that
he had been falling asleep in the car being driven by the motorist who picked him up after the
accident, which the jury could have inferred was the result of his intoxication, particularly in
light of the sedative effects of tranquilizers as described by Dr. Johnson. And finally, the
officers who investigated the accident, as well as the State’s accident reconstructionist, testified
that, based on their training and experience, they believed Appellant was intoxicated at the time
of the accident because Appellant had been driving on a clear evening on a dry roadway, along a
stretch of road with a “sweeping” gentle curve, which an alert, sober driver would have been able
to easily navigate. Although this “other evidence” was virtually all circumstantial, an
intoxication finding may be supported entirely by circumstantial evidence. See Kuciemba, 310
S.W.3d at 462.
Appellant points to what he believes is conflicting evidence in the record, including the
fact that the investigating officers did not testify that they reached any conclusions whether
Appellant appeared to be intoxicated when they spoke to him after the accident, and Florez’s
testimony that she did not perceive Appellant to be intoxicated at that time. Conflicting
evidence, however, does not render the jury’s verdict insufficient. At most, it creates a fact
question for the jury to decide. The jury was entitled to resolve all conflicts in the evidence, and
21
it was free to assess Florez’s credibility and the credibility of the other witnesses at trial, in
determining whether Appellant was intoxicated at the time of the accident. See Margraves v.
State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000) (jurors were free to believe or disbelieve any
part or all of a witness’s testimony and reconcile inconsistencies as they saw fit); Williams v.
State, 307 S.W.3d 862, 867 (Tex.App. – Fort Worth 2010, no pet.) (defendant’s testimony that
he was ill, rather than intoxicated, which caused him to drive erratically, did not render the
evidence factually insufficient to support the jury’s verdict).
We reject Appellant’s argument that our decision is controlled by the Court of Criminal
Appeals’ decision in Leal v. State, 338 S.W.2d 443, 444-46 (Tex.Crim.App. 1960), where, in
reversing an intoxication murder case for lack of evidence, the Court found it significant that no
witness testified that the defendant was intoxicated, virtually every witness at the scene testified
that the defendant did not appear to be intoxicated, and the State’s expert witness was unable to
testify with any certainty from the urinalysis test results that the defendant would have been
intoxicated at the time of the accident. Id. at 445. Unlike Leal, in the present case only one
witness, Appellant’s girlfriend, affirmatively testified that Appellant did not appear to be
intoxicated. Further, unlike Leal, the State presented testimony from the investigating officers,
as well as expert witnesses, that the circumstances surrounding the accident and nature of the
accident itself suggested that Appellant was intoxicated. Moreover, unlike Leal, Appellant made
incriminating statements to the investigating officers and to Florez after the accident.12
12
The holding in Leal appears to be a bit of an anomaly. In the 56 years since it was decided, Leal has only been
cited twice, and both of those cases distinguished Leal and upheld the jury’s verdict involving deaths caused by
intoxicated drivers. See, e.g., Cotten v. State, 406 S.W.2d 452, 454, 455 (Tex.Crim.App. 1966) (upholding
defendant’s conviction for murder where witnesses disagreed on whether the defendant appeared to be intoxicated
following an accident, where defendant admitted to drinking before the accident, and where liquor bottles were
found in the defendant’s car at the time of the accident); Kennemur v. State, 280 S.W.3d 305, 315 (Tex.App. –
Amarillo 2008, pet. ref'd) (upholding the defendant’s conviction where the evidence demonstrated that the defendant
22
Viewing the evidence in the light most favorable to the verdict, we conclude that the jury
could have reasonably found beyond a reasonable doubt that Appellant was intoxicated at the
time of the accident, thereby satisfying the first element of the offense. We therefore turn to
whether the State presented sufficient evidence that Appellant’s intoxication was the cause of the
accident.
The Evidence Supported a Finding of Causation
Under the Texas Penal Code, “[a] person is criminally responsible” for a particular result
“if the result would not have occurred but for his conduct, operating either alone or concurrently
with another cause, unless the concurrent cause was clearly sufficient to produce the result and
the conduct of the actor clearly insufficient.” TEX. PENAL CODE ANN. § 6.04(a) (West 2011);
Garcia v. State, 112 S.W.3d at 852-54. This “but for” causation must be established by
providing evidence of a connection between an accused’s conduct and the resulting harm. See
Robbins v. State, 717 S.W.2d 348, 351 (Tex.Crim.App. 1986); see also Glauser v. State, 66
S.W.3d 307, 313 (Tex.App. – Houston [1st Dist.] 2000, pet. ref’d) (in an intoxication
manslaughter case, the State is required to prove not only that the defendant was intoxicated, but
that there was a causal connection between the defendant’s intoxication and the death of the
victim).
When concurrent causes are present, the “but for” requirement is satisfied when either the
accused’s conduct is sufficient by itself to have caused the harm, or the accused’s conduct
coupled with another cause is sufficient to have caused the harm. Bell v. State, 169 S.W.3d 384,
395 (Tex.App. – Fort Worth 2005, pet. ref’d) (citing Robbins v. State, 717 S.W.2d 348, 351
had been at a bar drinking prior to the accident, had been driving in a reckless manner, smelled of alcohol, and had a
BAC of 0.098% hours after the accident).
23
(Tex. Crim. App. 1986)). Thus, as we have previously recognized, the State is not required to
prove that intoxication was the sole cause of the accident. Carrillo v. State, No. 08-01-00471-
CR, 2003 WL 1889943, at *8 (Tex.App. – El Paso April 17, 2003, pet. ref’d) (not designated for
publication). Whether a causal connection exists between a defendant’s intoxication and the
cause of an accident is a question of fact for the jury to decide. See Hardie v. State, 588 S.W.2d
936, 939 (Tex.Crim.App. 1979).
Appellant contends the State did not meet its burden of proving “but for” causation
because no witnesses testified at trial concerning the manner in which Appellant was operating
the Jeep prior to or at the time of the accident, and that the only possible witness to the event was
Pierce, who testified that he could not recall how Appellant was driving, due to the injuries he
sustained in the accident. The State, however, was not required to present any “direct” evidence
of the manner in which Appellant was driving his vehicle prior to the accident in order to
establish that his intoxication was the cause of the accident. See Mitchell v. State, 419 S.W.3d
655, 663-64 (Tex.App. – San Antonio 2013, pet. ref’d) (rejecting defendant’s argument that
evidence was insufficient to support conviction for intoxication manslaughter were there were no
witnesses to the accident or the manner in which defendant was operating his vehicle at the time
of the accident, because the State’s evidence otherwise established that defendant was
intoxicated when he struck a pedestrian who was walking on the side of the road). To the
contrary, circumstantial evidence may be used to establish a causal connection between a
defendant’s intoxication and the cause of an accident. See, e.g., Garcia, 112 S.W.3d at 852-54;
see also Killian v. State, No. 08-01-00032-CR, 2002 WL 1939156, at *5 (Tex.App. – El Paso
Aug. 14, 2002, pet. ref’d) (not designated for publication) (circumstantial evidence was sufficient
24
to provide a causal connection between the intoxication and the victim’s death, where the
evidence established that the defendant, who was clearly intoxicated, ran a red light causing the
accident).
We have already determined there was sufficient evidence from which the jury could
have inferred that Appellant was intoxicated at the time of the accident. Further, the
investigating officers and the State’s accident reconstruction expert testified that Appellant lost
control of the Jeep on a curve that was not considered dangerous and could have been negotiated
easily by an “alert and sober” driver.13 We conclude this evidence was sufficient to show
causation. See, e.g., Glauser, 66 S.W.3d at 313 (finding sufficient evidence to support finding
that defendant’s intoxication was the cause of an accident, where, among other things, accident
occurred in a well-lit area with no visible obstructions, and the investigating officer expressed his
opinion that a driver in full command of his mental and physical faculties driving at the speed
limit would have been able to stop and avoid hitting the victim’s disabled vehicle); Garcia, 112
S.W.3d at 852-54 (finding sufficient evidence that the defendant’s intoxication caused the
accident that claimed the victim’s life, where State’s accident reconstructionist expressed his
expert opinion that the accident would not have occurred but for the defendant’s intoxication).
Appellant finds it significant that he presented an alternate theory that the Jeep he was
driving may have had defective tires that caused the Jeep to “spin out” of control on at least one
prior occasion. Appellant further points out that one of the tires found in the wreckage appeared
13
Appellant presented testimony from a Grand Prairie Police Officer indicating that there were six or seven other
accidents in a six-month period on the same stretch of highway. However, on cross-examination, the officer
explained that none of those accidents were single-car accidents where the driver had failed to negotiate the curve,
but rather all involved multiple-car collisions that arose from unsafe lane changes or other “fender-bender” type
situations.
25
to have a large “gash” or “hole” in it following the accident, which would support his theory that
the tire blew out prior to the accident. The State, on the other hand, presented the expert witness
testimony of an accident reconstruction expert, who testified that the gash in the tire was caused
by the accident itself when the Jeep’s tires hit the curb due to “operator error,” and that the
accident was not caused by any pre-existing tire or other mechanical defect.14
At most, Appellant’s alternate theory raised a fact issue concerning the cause of the
accident, which was for the jury to resolve. In fact, Appellant’s own expert witness refused to
conclude that the condition of the tire was the sole cause of the accident, and instead conceded
that he did not “think anybody can give an opinion as to why [the Jeep] started skidding in the
first place.” Consequently, the jury was free to reject the defendant’s alternative explanation for
the accident. See Cotten v. State, 406 S.W.2d 452, 454 (Tex.Crim.App. 1966) (jury was free to
reject Appellant’s testimony that he struck an oncoming vehicle, not because he was intoxicated,
but because his car had “slick” tires, and suffered from mechanical issues that caused the car to
weave and pull); Wooten v. State, 267 S.W.3d 289, 295-97 (Tex.App. – Houston [14th Dist.]
2008, pet. ref’d) (jury was free to reject defendant’s explanation that he swerved to avoid hitting
a motorcycle, and to instead believe the State’s theory that the defendant’s intoxication was the
cause of the accident in which he struck and killed three pedestrians).
14
Appellant is critical of Lovett’s testimony in several respects, claiming that Lovett did not adequately explain how
the defect could “possibly have been the result of the crash,” or why he believed that the accident did not occur as
the result of a tire blowout. This, however, is not accurate. Lovett explained that when a tire blows out, it leaves a
“distinctive mark” on the pavement, and that no such mark appeared in the photographs taken at the accident scene.
In addition, he testified that based on his inspection of the tire, there was no evidence that the rim of the tire came
into contact with the road, as would be expected if the tire had blown out. Lovett further explained that, although
there was some wear on the tire, there was still “serviceable tread life” left, and that there was no side wall damage
to the tires, as one would expect if the tire had blown out.
26
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that
the evidence was sufficient to show Appellant’s intoxication was the cause of the accident. Issue
Two is overruled.
The State did not Engage in Improper Jury Argument
In Issue Eleven, Appellant contends the trial court erred in allowing the State to argue in
closing that Appellant had consumed alprazolam and marijuana during the four-hour period
between the time he left his mother’s residence and the time of the accident. Appellant asserts
the argument was not a proper summary of the facts presented at trial and instead injected new
facts into evidence that were not supported by the record. The State contends the prosecutor’s
argument was based on a reasonable deduction from the evidence. We agree with the State.
Standard of Review and Improper Jury Argument
Proper jury argument includes four areas: (1) summary of the evidence presented at trial;
(2) reasonable deductions drawn from that evidence; (3) answers to opposing counsel’s
arguments; and (4) pleas for law enforcement. Jackson v. State, 17 S.W.3d 664, 673
(Tex.Crim.App. 2000). A prosecuting attorney is permitted in his argument to draw from the
facts in evidence all inferences which are reasonable, fair and legitimate, and is allowed wide
latitude in drawing inferences from the evidence as long as the inferences drawn are reasonable
and offered in good faith. Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App. 1997).
However, the prosecutor may not use the jury argument to get before the jury, either directly or
indirectly, evidence which is outside the record. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim.
App. 1990) (citing Jordan v. State, 646 S.W.2d 946, 948 (Tex.Crim.App. 1983)).
27
In order to constitute reversible error, a jury argument must have been manifestly
improper or must have injected new, harmful facts into the proceedings. Jackson, 17 S.W.3d at
673-74; see also Borjan, 787 S.W.2d at 57 (an improper jury argument constitutes reversible
error when, in light of the record as a whole, it is extreme or manifestly improper, violates a
mandatory statute, or injects new facts harmful to the accused into the trial proceedings). A trial
court’s erroneous overruling of a defendant’s objection to improper jury argument is a non-
constitutional error reviewed under the standard of TEX. R. APP. P. 44.2(b). Maxwell v. State, 253
S.W.3d 309, 318 (Tex.App. – Fort Worth 2008, pet. ref’d).
Analysis
During closing argument, defense counsel argued there was insufficient evidence that
Appellant was intoxicated at the time of the accident, pointing out that his blood-alcohol level at
the time of the blood draw was 0.07, which was below the legal limit, and that the evidence was
inconclusive regarding whether he had sufficient amounts of marijuana and tranquilizers in his
system to impair the normal use of his faculties. In particular, defense counsel argued that the
State had failed to present a sufficient timeline of when he had ingested any of the substances in
question, or the levels of any of the substances in his system at the time of the accident, in order
to prove beyond a reasonable doubt that he was intoxicated at the time of the accident. In
response, the State pointed out that Florez had testified that she had been with Appellant all day
prior to the accident, and that she did not observe him ingesting any alcohol or narcotics before
he left for the party at 11 p.m. the night before the accident. The State therefore asked the jury to
consider what happened during the four-hour period of time between the time he left for the
party at 11 p.m. and the time the accident occurred at approximately 2:44 a.m. the next morning,
28
submitting that Appellant had been “drinking E&J, like [Pierce] told you, he’s smoking
marijuana, and he’s popping Xanax pills.”15 Defense counsel immediately objected that those
facts were not “in evidence,” but the trial court overruled that objection.
Appellant contends there was no evidence presented at trial to support the prosecutor’s
statements. In particular, Appellant points out that although Pierce testified that he saw
Appellant drink alcohol at the party, he did not recall seeing him smoke marijuana. Appellant
further points out that no one testified that they observed Appellant take any tranquilizers prior to
the accident. Appellant contends that the prosecutor therefore improperly used her closing
argument to get evidence before the jury that was “outside the record and prejudicial to the
accused.”16
Initially, we note that the prosecutor never stated or implied that any witnesses had
observed Appellant ingest the drugs, and instead, as she clarified to the jury following
Appellant’s objection, her argument was based primarily on the fact that Appellant’s test results
established that Appellant had both marijuana and alprazolam in his blood approximately three
hours after the accident. Therefore, the fact that no witnesses directly observed Appellant ingest
these substances is not relevant to our analysis.
Instead, we conclude that the prosecutor’s statement was a reasonable deduction from the
evidence presented at trial. In particular, we note that Florez testified that she had been with
15
Xanax is a trade name for the generic tranquilizer, alprazolam.
16
Appellant also argues that this was improper evidence of “extraneous offenses,” but as the State points out,
whether Appellant was intoxicated by virtue of having both alprazolam and marijuana in his system was an element
of the offense as charged. See Manning, 114 S.W.3d at 927 (where indictment charged that defendant committed
manslaughter by recklessly consuming a controlled substance prior to a fatal accident, the evidence of a cocaine
metabolite in the defendant’s bloodstream “was not an extraneous offense—it was evidence of the charged
offense”).
29
Appellant the entire day before he left for the party at 11 p.m., and that she did not see him ingest
any narcotics at that time. Further, Florez also testified that she did not observe Appellant take
any narcotics after he arrived at the residence following the accident. When considering the
blood test results in conjunction with Florez’s testimony, the prosecutor was able to make a
reasonable deduction from this evidence that Appellant consumed the narcotics found in his
bloodstream in the intervening period of time between leaving the residence and the time of the
accident.
Further, as the prosecutor pointed out, Dr. Johnson testified at trial that the active THC
metabolite in marijuana, which was found in Appellant’s bloodstream, is only detectable for a
six-hour period of time. Since Florez did not observe Appellant smoke any marijuana before he
left for the party or after he arrived at the residence following the accident, Dr. Johnson’s
testimony supported a reasonable inference that the marijuana was ingested sometime in that
intervening four-hour period.
We therefore conclude that the prosecutor’s argument was a reasonable deduction from
the evidence and did not inject new facts or evidence into the record. Berry v. State, 233 S.W.3d
847, 860 (Tex.Crim.App. 2007) (prosecutor’s argument, although “aggressive” in nature, was a
reasonable deduction from the evidence). Accordingly, we overrule Issue Eleven.
The Evidence was Sufficient to Support Appellant’s Conviction
for Failure to Stop and Render Aid
In Issue Three, Appellant contends the evidence was insufficient to support his
conviction for failure to stop and render aid, arguing primarily that the statute making his
conduct a crime did not apply to the facts of his case. We disagree.
Applicable Law
30
Section 550.021 of the Texas Transportation Code provides, among other things, that the
“operator of a vehicle involved in an accident that results or is reasonably likely to result in
injury to or death of a person shall: . . . (3) immediately determine whether a person is involved
in the accident, and if a person is involved in the accident, whether that person requires aid; and
(4) remain at the scene of the accident until the operator complies with the requirements of
Section 550.023.” TEX. TRANSP. CODE ANN. § 550.021 (West Supp. 2016). In turn, Section
550.023 provides that the operator of the vehicle involved in any such accident must, among
other things, give his name, address, registration and insurance information “to any person
injured or the operator or occupant of or person attending a vehicle involved in the collision[,]”
and “provide any person injured in the accident reasonable assistance, including transporting or
making arrangements for transporting the person to a physician or hospital for medical treatment
if it is apparent that treatment is necessary, or if the injured person requests the transportation.”
TEX. TRANSP. CODE ANN. § 550.023 (West 2011).
The indictment alleged Appellant violated Section 550.021 when he intentionally or
knowingly left the scene of an accident involving serious bodily injury “without giving his name
and address to any person, and without rendering reasonable assistance to Donte Pierce when it
was then apparent that Donte Pierce was in need of medical treatment.”
Analysis
Although Appellant frames his argument in terms of sufficiency of the evidence, his
argument centers on his belief that the provisions in the Transportation Code (hereinafter the
“accident statutes”) did not apply to him in light of his pre-existing friendship with Kipasa.
Appellant’s argument appears to rely on the holding in State v. Stevenson, 958 S.W.2d 824
31
(Tex.Crim.App. 1997). In that case, the defendant driver was involved in a single-car accident in
which his wife was injured. The defendant remained at the scene, and spoke with an officer who
arrived at the scene to conduct an accident investigation. In response to the officer’s questions,
the defendant falsely told the officer that his wife had been driving. At some point in their
conversation, the officer noted that the defendant smelled of alcohol and placed him under arrest
for driving while intoxicated.
The defendant sought to have his statements to the investigating officer suppressed as the
product of a custodial interrogation. Defendant argued that because the accident statutes
required him to remain at the scene and subjected him to criminal penalties if he did not, any
questioning that occurred while he remained at the scene was a custodial interrogation, thereby
invoking the protections of Miranda. The Court rejected this argument for two reasons. First,
the Court noted that the accident statutes only required the driver to do two things: (1) provide
contact information to someone at the scene (the reporting provision); and (2) render reasonable
assistance to any injured persons. Id. at 827. The Court found it significant that the accident
statutes did not require a driver to give any information to law enforcement officials, and
therefore imposed no duty on the driver to answer the officer’s questions at the scene of the
accident. Id.
Although the Court could have ended its analysis there, it also expressed its opinion that
the reporting provisions in the accident statutes did not, under the circumstances of that
particular case, require the defendant to remain at the scene of the accident. In this regard, the
Court noted that the defendant was married to his injured passenger, and that she would have
already been privy to the information required to be exchanged by the statutes. Id. The Court
32
concluded that the statute’s reporting provision did not apply when “all the injured parties
already possessed the requisite information.” Id. Although the Court clearly recognized the
accident statutes also required a defendant to stop and render aid to an injured party, the Court
did not discuss whether the defendant would have been obligated to stay and render aid to his
injured wife. Id. at 826 n.2 (referring to the stop and render aid provision in the accident
statutes). In any event, the Court concluded that the accident statutes imposed no duty on the
defendant “to remain at the scene under the circumstances of this particular accident,” and that
he was instead only required to remain at the scene pursuant to an “investigative stop” being
conducted by the officer at the scene, which did not invoke the protections of Miranda. Id. at
828. As such, the Court concluded that the accident statutes had no bearing on whether the
defendant’s Miranda rights were violated. Id.
Appellant relies on Stevenson to argue that the accident statutes’ requirements should not
be applied to him, in light of his pre-existing relationship with Pierce, and that he was therefore
under no duty to remain at the scene to either exchange information with Pierce or to render aid
to him. In effect, Appellant believes that Stevenson barred his prosecution and conviction for
this offense. We do not interpret Stevenson so broadly.
First, the Court in Stevenson did not address whether the State was barred from
prosecuting the defendant for failing to comply with the accident statutes. Instead, the Court’s
sole focus was on whether the accident statutes had any bearing on the defendant’s Miranda
rights. Any language used by the Court to indicate that the accident statutes’ reporting provision
did not apply to drivers when “all the injured parties already possessed the requisite
33
information,” must be applied in that context, i.e., to cases involving whether a defendant’s
Miranda rights were invoked. Id. at 827.
Further, even if we were to apply that language to the question whether a defendant could
be prosecuted, the defendant would still have to demonstrate that the injured party “possessed the
requisite information,” which includes not only the driver’s name and address, but the driver’s
registration and insurance information as well. While a court might be able to presume that the
wife of a defendant driver would have this information, we do not believe that a defendant driver
would be entitled to this same presumption merely because the driver was in a pre-existing
friendship with the injured party.
More importantly, the Court in Stevenson did not specifically address whether the stop
and render aid provision of the accident statutes would apply to a case in which the injured party
was related to or friends with the driver. In fact, it is unclear from the opinion whether the
defendant’s wife needed any such aid or if aid had already been provided to her. As such, there
is nothing in the Stevenson opinion that would cause us to conclude that the Court intended to
hold, as Appellant apparently contends, that a defendant driver is required by the accident
statutes to remain at the scene to assist a total stranger, but is allowed to flee the scene if he has
injured a family member or friend.
There is nothing in the statute that would lead us to this absurd conclusion. To the
contrary, the plain language of the statute contemplates that an individual involved in an accident
must remain at the scene to provide assistance to “any person injured in the accident,” without
any stated exceptions for family members or friends. TEX. TRANSP. CODE ANN. § 550.023.
Thus, to construe the statute in the manner suggested by Appellant would not only lead to an
34
absurd result, but would contravene the Legislature’s clear intent in serving the public interest by
requiring all drivers to remain at the scene to assist “any person” they have injured. See
McCown v. State, 192 S.W.3d 158, 162-63 (Tex.App. – Fort Worth 2006, pet. ref’d)
(recognizing that accident statutes were adopted as a matter of “public interest”). This we
decline to do. See Stevenson, 958 S.W.2d at 827 (if the language of a statute is unambiguous, we
give effect to its plain meaning unless doing so would lead to absurd results).
Moreover, Appellant has not cited any cases, and we are aware of none, in which courts
have cited Stevenson for the proposition that a driver may not be prosecuted under the accident
statutes merely because of a pre-existing relationship with an injured party.17 To the contrary,
courts analyzing the sufficiency of evidence to support a defendant’s conviction for failing to
stop and render aid, focus only on the key elements of the offense, including whether the driver
should have been aware that an injured party required medical assistance and whether the driver
fulfilled that requirement. See, e.g., Stewart v. State, 70 S.W.3d 309, 312-13 (Tex.App. – Waco
2002, pet. ref’d) (concluding the evidence sufficient to uphold the defendant’s conviction for
failing to remain at the scene of a single-car accident when it should have been apparent to the
driver that his passenger required medical assistance).
And finally, we note that the driver’s knowledge that a party may have been injured in an
accident may be inferred from the nature of the accident itself, and from the conduct of the driver
after the accident. Id. (defendant’s knowledge that passenger was injured could be inferred from
17
Instead, Stevenson seems to have been cited almost exclusively in cases involving questions of when a defendant
may be considered in custodial interrogation following a traffic accident or a traffic stop. The only mention of
Stevenson’s discussion of the accident statutes is found in the dissenting opinion of Justice Dauphinot in which she
opined that a driver who left the scene of an accident after an ambulance had already been called and where a nurse
was at the scene of the accident had done more to render reasonable assistance to an injured individual than the
driver in Stevenson did. McCown, 192 S.W.3d at 166-67 (Dauphinot, J. dissenting). Justice Dauphinot concluded
that although the driver in that case was properly convicted for leaving the scene of the accident under the applicable
statutes, she believed that such a holding clearly conflicted with the “clear mandate in Stevenson.” Id.
35
the fact that the witnesses observed defendant running from the scene, looking back at the scene
of the accident while bystanders were yelling at him to stop); McCown, 192 S.W.3d at 162-64
(defendant’s knowledge that others may have been hurt in the accident could be inferred from
the evidence demonstrating that the accident involved a significant head-on collision with
another driver, making it unreasonable to assume that the driver would not have known that an
injury was possible). In the present case, there was sufficient evidence from which the jury
could have reasonably inferred that Appellant was aware that Pierce required medical attention,
in light of the severe nature of the accident, the fact that Appellant himself was injured, and the
fact that he could not find Pierce in the wreckage, all of which would have suggested that Pierce
had been thrown from the vehicle. Despite all this, Appellant left the scene of the accident and
did not seek assistance for Pierce until he arrived at his mother’s residence.
Therefore, regardless of whether Appellant was required to comply with the reporting
provisions of the statute, the evidence presented clearly supported an inference that Appellant
failed to comply with the provisions in the statute requiring him to render assistance to Pierce.
Because the State charged Appellant was violating both provisions in the statute, it was required
only to demonstrate that he violated one of those provisions. See St. Clair v. State, 26 S.W.3d
89, 97-99 (Tex.App. – Waco 2000, pet. ref’d) (where defendant was charged with violating both
provisions in the Transportation Code, for failing to report and for failing to stop and render aid,
the jury’s verdict would stand where the evidence was sufficient to support a finding that he
violated at least one provision in the statute). Because the State met that burden, Issue Three is
overruled.
The Trial Court’s Erroneous Admission of Hearsay Evidence was Harmless
36
In Issue Four, Appellant contends the trial court erred in admitting certain statements that
a witness overheard Florez make to a friend, in which she repeated potentially incriminating
statements that Appellant had made to Florez on the morning of the accident. We agree this
evidence constituted inadmissible hearsay, but we find the admission of the evidence harmless.
Standard of Review
Hearsay is a statement, other than one made by the declarant while testifying at trial,
offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d); see also
Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). Hearsay is not admissible except
as provided by statute or the rules of evidence. TEX. R. EVID. 802; Willover, 70 S.W.3d at 845
(“hearsay evidence is inadmissible unless if falls within one of the many exceptions” to the
general rule). Whether an out-of-court statement is admissible under an exclusion or exception
to the general hearsay rule is a matter within the trial court’s discretion. Zuliani v. State, 97
S.W.3d 589, 595 (Tex.Crim.App. 2003). The trial court’s decision will be reversed only if it is
“outside the zone of reasonable disagreement.” Salazar v. State, 38 S.W.3d 141, 151
(Tex.Crim.App. 2001); see also Pena v. State, 353 S.W.3d 797, 814 (Tex.Crim.App. 2011).
Analysis
The Testimony was Inadmissbile Hearsay
As the State was questioning Florez about the events following the accident, the
prosecutor asked if Appellant had told her that he had been in a fight in order to explain his
injuries following the accident, and if Appellant had asked her to tell law enforcement that she
had been driving the Jeep at the time of the accident. Florez replied in the negative to both
questions, and the prosecutor asked no additional questions about the matter.
37
Subsequently, the State asked Pierce’s grandmother, Maude Woods, if she had overheard
Florez tell a friend while they were visiting Pierce at the hospital in the days following the
accident, that Appellant “wanted her to say that she was driving” on the night of the accident.
Appellant objected, arguing that it was inadmissible hearsay. In response, the State contended
that because Appellant had made the original statement, it was admissible as the admission of a
party-opponent. The State also argued that it was submitting Woods’ testimony to impeach
Florez’s earlier testimony in which she had denied that Appellant had asked her to say she was
driving. The defense once again objected, asserting that it was improper for the State to attempt
to impeach its own witness on that basis. The trial court overruled the objection, and allowed
Appellant to make a “running objection” to the testimony. Woods thereafter testified that she
had overheard Florez tell her friend that Appellant had asked her to tell law enforcement that she
had been driving the Jeep when the accident occurred, and that Appellant had initially told Florez
that he had been in a fight shortly after the accident occurred in order to explain his injuries.
Appellant correctly points out that Woods’ testimony contained “double hearsay,”
involving not only the statements that Appellant allegedly made to Florez, but also the
statements that Florez made to her friend, which Woods overheard. When double or multiple
hearsay is involved, to be properly admissible, each level of hearsay must be analyzed separately
and must fall under an exception. See Crane v. State, 786 S.W.2d 338, 354 (Tex.Crim.App.
1990); Trussell v. State, 585 S.W.2d 736, 738 (Tex.Crim.App. 1979); see also Davis v. State,
696 S.W.2d 494, 498 (Tex.App. – El Paso 1985, no pet.) (for the State to overcome a double
hearsay objection, “each separate identifiable increment of hearsay must be distinctly justified
under some recognized exception to the hearsay rule”); see also TEX. R. EVID. 805 (“[h]earsay
38
within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule”).
Analyzing the first layer of hearsay, we agree with the State that Appellant’s alleged
statements to Florez, which were made following the accident, may be classified as admissions
of a party-opponent and are excluded from the hearsay rule under Rule 801(e)(2)(A) of the Texas
Rules of Evidence, which “plainly and unequivocally states that a criminal defendant’s own
statements, when being offered against him, are not hearsay.” See Trevino v. State, 991 S.W.2d
849, 853 (Tex.Crim.App. 1999); see also TEX. R. EVID. 613(a)(5) (excepting admissions of a
party opponent under Rule 801(e)(2) from the application of its foundational requirements
concerning prior inconsistent statements). Florez clearly could have testified concerning
statements Appellant made to her after the accident because they were not hearsay. The State,
however, has failed to address the second layer of hearsay—whether the statements that Florez
made to her friend, which Woods overheard, constituted hearsay evidence, and if so, whether the
statements fall within any exclusion or exception to the hearsay rule.
In analyzing this question, we note that the statements Florez made to her friend—
advising her of potentially incriminating statements made by Appellant—were hearsay because
they were an out-of-court statements offered to prove the truth of the matter asserted. TEX. R.
EVID. 801(d); see also Hughes v. State, 4 S.W.3d 1, 2-3, 6 (Tex.Crim.App. 1999) (CPS workers’
testimony that defendant’s wife described defendant’s confession to them was inadmissible
hearsay; although the confession itself would have been admissible as an admission of a party-
opponent if the wife had provided the testimony, the wife’s statement to the caseworkers was
hearsay that did not come within any exception); see also Robison v. State, 35 S.W.3d 257, 261
39
(Tex.App. – Texarkana 2000, pet. ref’d) (trial court erred in admitting testimony of a police
officer who testified that defendant’s wife had informed him that the defendant had confessed to
her, because the police officer had no firsthand knowledge of the defendant’s confession, and his
testimony was not independently admissible at trial under any exception to the hearsay rule).
Therefore, we must analyze Florez’s out-of-court statements to her friend to determine if they are
independently admissible under any exclusion or exception to the hearsay rule.
While the State has failed to present any argument on this issue on appeal, the State
argued at trial that Woods’ testimony was admissible to “impeach” Florez’s earlier testimony in
which she denied that Appellant had made the two statements to her on the morning of the
accident. See Reyna v. State, 168 S.W.3d 173, 178 (Tex.Crim.App. 2005) (“In order to have
evidence admitted under a hearsay exception, the proponent of the evidence must specify which
exception he is relying upon.”). As Appellant points out, there are at least two Rules of Evidence
that we must examine to determine whether the statement was admissible to “impeach” Florez.
First, Rule 801(e)(1) provides that a declarant-witness’s prior statement is not considered
hearsay if the declarant testifies and is subject to cross-examination about a prior inconsistent
statement made by the declarant-witness. However, in a criminal case, this rule requires that the
prior statement must have been given “under penalty of perjury at a trial, hearing, or other
proceeding—except a grand jury proceeding—or in a deposition[.]” TEX. R. EVID.
801(e)(1)(A)(ii). As Appellant points out, Florez’s prior statements, which were made to her
friend at the hospital, were not given under penalty of perjury, and they do not fit within any of
the scenarios listed in Rule 801. Therefore, we conclude that Rule 801(e)(1)(A)(ii) is
inapplicable. See Martinez-Salinas v. State, No. 04-14-00565-CR, 2015 WL 6736795, at *4
40
(Tex.App. – San Antonio Nov. 4, 2015, pet. ref’d) (mem. op., not designated for publication)
(concluding that Rule 801(e)(1)(A)(ii) was inapplicable to statements made by a witness during
an interview with the witness’s employer and attorney, where those statements were not made
under oath in any of the proceedings enumerated in the Rule).
Second, Rule 613 of the Texas Rules of Evidence provides a separate exception to the
hearsay rule, allowing under certain circumstances the admission of extrinsic evidence of a
witness’s prior inconsistent statement to impeach the witness, even if the statement was unsworn.
However, Rule 613 further provides that extrinsic evidence of such a statement is only
admissible if the proponent of the evidence first examines the witness about the statement and
only if the witness “fails to unequivocally admit making the statement.” TEX. R. EVID.
613(a)(4). In particular, as a “foundation requirement,” the Rule requires the proponent to tell
the witness the contents of the statement, the time and place the statement was made, and the
person to whom the witness made the statement. TEX. R. EVID. 613(a)(1)(A)(B)(C). Further, the
Rule provides that the witness must be given the opportunity to explain or deny the prior
inconsistent statement. TEX. R. EVID. 613(a)(3); see Huff v. State, 576 S.W.2d 645, 647
(Tex.Crim.App. 1979) (discussing proper predicate for impeachment by prior inconsistent
statement); see also McGary v. State, 750 S.W.2d 782, 786 (Tex.Crim.App. 1988).
In the present case, the State failed to provide any such foundational requirements, and
therefore we conclude that any extrinsic evidence of Florez’s prior statements was not admissible
under this exception. Because in response to Appellant’s hearsay objections, the State only
asserted that the statements were admissible as admissions of a party opponent and as
impeachment, and because the State has not advanced any other basis for admission on appeal,
41
we restrict our review to only those two grounds as a basis for admission. See Reyna, 168
S.W.3d at 177 (requiring the proponent of the hearsay evidence to specify which exception he is
relying on for admission). Accordingly, we conclude the trial court abused its discretion in
admitting Woods’ testimony at trial.
The Error was Harmless
However, our analysis must not stop here. We must also conduct a harm analysis to
determine whether the admission of Woods’ testimony constitutes reversible error. In
determining whether harm resulted from the erroneous admission of hearsay evidence at trial, we
apply the standard for non-constitutional error found in TEX. R. APP. P. 44.2(b), which provides
that a court must disregard any errors that do not affect the defendant’s “substantial rights.”
Hughes v. State, 12 S.W.3d 166, 167-68 (Tex.App. – Fort Worth 2000, no pet.) (citing Mosley v.
State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on reh’g)); see also Johnson v. State, 967
S.W.2d 410, 417 (Tex.Crim.App. 1998) (evaluating error in admission of hearsay testimony
under the standard for non-constitutional error). A “substantial right is affected when the error
had a substantial and injurious effect or influence on the jury’s verdict.” Hughes, 12 S.W.3d at
168 (citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)). We review the record as
a whole in determining whether the admission of erroneously-admitted hearsay evidence had a
substantial and injurious influence on the jury. Id.; see also Davis v. State, 268 S.W.3d 683, 709
(Tex.App. – Fort Worth 2008, pet. ref’d) (when evaluating the harm caused by erroneously
admitted hearsay, a reviewing court "must deem the error harmless if, after reviewing the entire
record, the court is reasonably assured the error did not influence the jury’s verdict or had but a
slight effect”).
42
Appellant contends that the admission of Woods’ testimony substantially affected the
jury’s verdict, in part because it allowed Woods to testify about how she felt when she overheard
Florez make those statements, which, in turn, Appellant believes unduly aroused the sympathy of
the jury. The record, however, does not support this assertion. To the contrary, when the
prosecutor asked Woods how she felt when she overheard Florez’s comment that Appellant had
told her that he had been in a “fight” following the accident, Woods stated only that she did not
believe that his statement “correspond[ed] with what happened, with him leaving the accident.”
The State’s attorney then asked Woods how that made her feel, but Woods never directly
answered that question. Instead, Woods testified that she did not understand how Appellant
could have left his friend (Pierce) behind at the scene of the accident. Woods’ comment on
Appellant’s failure to remain at the scene was a non sequitur, as it had nothing to do with
whether Appellant had lied to Florez after the accident. Consequently, while the admission of
the hearsay evidence could have potentially opened the door to inflammatory comments from
Woods that could have aroused the jury’s sympathies, Woods never made any such comments in
response to that evidence.
Appellant argues that the admission of the hearsay statements significantly damaged his
case, because the hearsay statements served to impeach Florez’s earlier testimony, which in turn
may have caused the jury to doubt her credibility. Appellant points out that Florez’s testimony
was critical to his defense, since Florez was virtually the only witness at trial who testified that
she did not believe that Appellant was intoxicated following the accident. Appellant therefore
contends that the jury’s guilty verdict finding on intoxication manslaughter “only makes sense”
if the jury chose to disbelieve Florez’s testimony.
43
The State, however, never focused on the conflict between the testimony given by Woods
and the testimony given by Florez, and did not argue to the jury that it should disbelieve Florez’s
testimony on that basis. Instead, in its closing argument, the State focused on the overwhelming
evidence it presented to establish that Appellant was in fact intoxicated at the time of the
accident, including his toxicology results, and that the accident was not caused by the condition
of the vehicle, the road, or the intersection.
Moreover, because the evidence of Appellant’s guilt was overwhelming, the admission of
the hearsay statements, although potentially incriminating, had only a minor influence, if any, on
the jury’s verdict. See Hughes, 12 S.W.3d at 168 (concluding that the admission of hearsay
statements pertaining to the defendant’s confession did not have a substantial and injurious
influence on the jury’s verdict in light of the overwhelming evidence of the defendant’s guilt
independent of those hearsay statements). We therefore conclude that the trial court’s erroneous
admission of Woods’ hearsay statements did not affect a substantial right of Appellant.
Accordingly, Issue Four is overruled.
The State Asked its Expert a Proper Hypothetical Question
In Issue Six, Appellant contends the trial court erred in allowing the State to ask its expert
witness an improper hypothetical question regarding whether the Jeep may have spun out of
control when operated by a driver under the influence of marijuana, contending that the
hypothetical improperly assumed facts not in evidence. We agree with the State that the
hypothetical properly tracked the evidence presented at trial.
Standard of Review
44
The trial court’s decision in determining whether to allow an expert witness to provide a
response to a hypothetical question is reviewed for an abuse of discretion. Tillman, 354 S.W.3d
at 442. A reviewing court will not reverse the trial court’s determination to admit or deny such
evidence unless it is outside the zone of reasonable disagreement. Id.
Analysis
An expert witness may offer an opinion based solely on hypothetical questions posed at
trial. Tillman, 354 S.W.3d at 439 (citing Jordan v. State, 928 S.W.2d 550, 556 n.8
(Tex.Crim.App. 1996)). However, a hypothetical question posed to an expert witness must be
based on facts established by the evidence at trial. McBride v. State, 862 S.W.2d 600, 609
(Tex.Crim.App. 1993); see also Pyles v. State, 755 S.W.2d 98, 118 (Tex.Crim.App. 1988) (citing
Holloway v. State, 613 S.W.2d 497 (Tex.Crim.App. 1981)) (the assumptions of the hypothetical
must be based on facts within the personal knowledge of the witness, or facts assumed from
common or judicial knowledge, or facts supported by evidence); Tillman, 354 S.W.3d at 440
(expert witness testimony must be “sufficiently linked to the facts of the case”). If a hypothetical
question fails to echo any particular “event” that “occurred in that particular case,” it would
result in expert testimony that is not relevant for purposes of Rule 702 because it does not “fit”
the facts of the case and therefore cannot help the jury. Blasdell v. State, 384 S.W.3d 824, 830
(Tex.Crim.App. 2012); see also TEX. R. EVID. 702 (an expert witness testimony must “help the
trier of fact to understand the evidence or to determine a fact in issue”).
At trial, both Florez and Pierce testified about two prior occasions when they were
driving Florez’s Jeep and it allegedly spun out of control, in an apparent attempt to support
Appellant’s theory that the accident was caused by events other than his intoxication. Pierce
45
testified, without objection, that he and Appellant had smoked marijuana on one of the days that
the Jeep had spun out of control. The State subsequently asked its expert witness, accident
reconstructionist Timothy Lovett, if he believed it was possible that the Jeep may have skidded
on those prior occasions because the road was wet. The following dialogue then occurred:
Lovett: Just on its own?
Prosecutor: Just on its own.
Lovett: No.
Prosecutor: And if there was testimony that the person operating a vehicle had
previously smoked marijuana prior to driving this vehicle … could the vehicle
have just spun out on its own?
Defense counsel objected that the question assumed facts not in evidence. The State
responded that the facts were in evidence based on Pierce’s prior testimony, apparently referring
to Pierce’s testimony that he and Appellant had smoked marijuana prior to driving the Jeep when
it had spun out of control. The trial court overruled the objection, and allowed Lovett to testify
that: “In the hands of a sober driver, this vehicle has the ability to stay in track and negotiate
turns,” and “[o]n dry pavement, in the hands of a sober, non-smoked (sic) person, [the Jeep]
should go straight. It’s not going to just willy nilly on its own flip around.”
Appellant argues there was no evidence that the driver of the Jeep on the prior occasion
when the Jeep spun out of control had smoked marijuana, and therefore no factual basis for the
hypothetical question.18 Appellant further contends that the prosecutor’s hypothetical question
18
Although his argument is not entirely clear, Appellant also apparently contends the State failed to establish that
Pierce’s testimony was “of a type reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject.” In support, Appellant cites Ramirez v. State, 815 S.W.2d 636, 651 (Tex.Crim.App.
1991), in which the court held it was improper for a party to cross-examine an expert witness about scientific
treatises not introduced into evidence without a showing that they were “recognized authorities” in the field. Id. at
652. In the present case, Lovett’s testimony raised no such concerns.
46
only served as a “subterfuge” to get inadmissible evidence of Appellant’s prior marijuana use
before the jury. We disagree.
At trial, Pierce testified that he and Appellant were traveling in the Jeep on a prior
occasion when it spun out of control and admitted, without objection, that they had been
smoking marijuana that day. Appellant argues that this did not show that the driver of the
vehicle was smoking marijuana. In his testimony, however, Pierce indicated that only two
individuals were in the car—Appellant and himself—and that both of them had smoked
marijuana. Since one of them had to be driving the vehicle, the only logical conclusion from
Pierce’s testimony is that the driver of the vehicle—whether it was Appellant or Pierce—had
smoked marijuana the day the car spun out of control. Further, the evidence presented at trial
also established that Appellant had marijuana in his bloodstream at the time he was driving the
Jeep on the morning of the accident.19
The prosecutor’s hypothetical question asked whether the use of marijuana could have
affected the operation of the Jeep by causing it to spin out of control. The question was therefore
based on facts already in evidence, and did not, as claimed by Appellant, simply serve as a
subterfuge for getting evidence of his prior marijuana use before the jury. That information had
already been imparted to the jury by the testimony of both Pierce and Florez as well as the results
of the blood test conducted on Appellant after the accident. Moreover, the hypothetical question
directly related to Appellant’s defensive theory that the Jeep may have spun out of control on the
morning of the accident due to circumstances beyond Appellant’s control. Accordingly, the
question clearly “fit” the facts of the case. See Blasdell, 384 S.W.3d at 830; see also Pyles, 755
19
Appellant also confusingly refers to the fact that Pierce never testified that Appellant smoked marijuana at the
party they attended prior to the accident. This is irrelevant, because the objected-to question concerned only to the
prior incidents in which Florez and Pierce claimed the Jeep had spun out of control.
47
S.W.2d at 118 (party is entitled to propound hypothetical questions that “assume facts in
accordance with his theory of the case”).
We therefore conclude the trial court did not abuse its discretion in allowing the
prosecutor to ask its expert witness the hypothetical question. See McBride, 862 S.W.2d at 609
(trial court did not err in allowing the prosecutor to ask its expert witness a hypothetical question
based on facts established by the evidence at trial). Issue Six is overruled.
The Trial Court did not Err in Admitting Evidence of Appellant’s Past Marijuana Use
In Issue Five, Appellant contends the trial court erred in allowing Florez’s testimony that
Appellant had used marijuana in the past, arguing that it constituted evidence of an extraneous
offense not relevant to the charged offense and that it was highly prejudicial to his case. We
agree with the State, however, that Appellant opened the door to this testimony during his cross-
examination of Florez.
Standard of Review
We review the admission of extraneous-offense evidence for an abuse of discretion. De
La Paz v. State, 279 S.W.3d 336, 343 (Tex.Crim.App. 2009); Knight v. State, 457 S.W.3d 192,
201 (Tex.App. – El Paso 2015, pet. ref’d). A trial court does not abuse its discretion if the
decision to admit or exclude the evidence is within the “zone of reasonable disagreement.”
Montgomery, 810 S.W.2d at 391; Knight, 457 S.W.3d at 201. A trial court’s determination on
the admissibility of extraneous-offense evidence typically falls within the zone of reasonable
disagreement if the evidence shows: (1) that an extraneous transaction is relevant to a material,
non-propensity issue, and (2) the probative value of that evidence is not substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. De La Paz,
48
279 S.W.3d at 344; Knight, 457 S.W.3d at 201-02. If the trial court’s evidentiary ruling is
correct on any theory of law applicable to that ruling, we will not disturb it even if the trial court
gave the wrong reason for the correct ruling. De La Paz, 279 S.W.3d at 344; Knight, 457
S.W.3d at 202.
Analysis
Evidence of extraneous offenses or prior wrongful acts is generally not admissible during
the guilt-innocence phase as evidence that a defendant acted in conformity with his character by
committing the charged offense, unless it is admissible “for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” TEX. R. EVID. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex.Crim.App. 2004);
Montgomery, 810 S.W.2d at 386 (opin. on reh’g); Moses v. State, 105 S.W.3d 622, 626
(Tex.Crim.App. 2003); Knight, 457 S.W.3d at 202. But, “otherwise inadmissible evidence may
be admitted if the party against whom the evidence is offered ‘opens the door.’” Schutz v. State,
957 S.W.2d 52, 71 (Tex.Crim.App. 1997).
A party opens the door by leaving a false impression with the jury that invites the other
side to respond. Hayden v. State, 296 S.W.3d 549, 554 (Tex.Crim.App. 2009); Williams v. State,
301 S.W.3d 675, 687 (Tex.Crim.App. 2009) (assuming evidence of the defendant’s prior crimes
was inadmissible under Rule 404(b), the trial court did not abuse its discretion by admitting the
evidence where defense counsel opened the door by deliberately asking a witness about the
crimes). However, the party offering the evidence may not “stray beyond the scope of the
invitation.” Schutz, 957 S.W.2d at 71; Hayden, 296 S.W.3d at 554; see Knight, 457 S.W.3d at
202 (“By raising a defensive theory, the defendant ‘opens the door’ for the State to offer rebuttal
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testimony regarding an extraneous offense if the extraneous offense has characteristics common
with the offense for which the defendant was on trial.”).
On cross-examination by defense counsel, Florez testified she did not observe anything to
make her believe Appellant was intoxicated when he arrived at his mother’s residence following
the accident, and that he appeared to have the normal use of his mental and physical faculties at
that time. On redirect, the prosecutor sought to inquire if Florez had been in Appellant’s
presence on prior occasions when he had imbibed alcohol or smoked marijuana, in an attempt to
ascertain how he appeared on those occasions. Appellant objected to the question on relevance
grounds, and the State argued that defense counsel had “opened the door” by having Florez
testify that Appellant did not appear to be intoxicated on the morning of the accident. Over
Appellant’s objection, Florez was allowed to testify on redirect that she had been in Appellant’s
presence on previous occasions after he had smoked marijuana, and that Appellant acted “pretty
much the same” after smoking marijuana, and that he did not “act much differently than he does
normally.”
Appellant contends that he did not open the door to having his prior marijuana use
admitted, asserting that Florez’s testimony did not leave a “false impression with the jury that
could be dispelled by evidence of Appellant’s marijuana use.” Appellant appears to be
contending that the only way he could have “opened the door” to his prior marijuana use was if
he had elicited testimony from Florez that he did not use marijuana, thereby creating the false
impression that he was not a marijuana user. We disagree.
As the State points out, the evidence was not elicited from Florez to clear up a false
impression whether Appellant used marijuana, but how Appellant acted when he was under the
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influence of marijuana. And, the evidence was used to clear up the false impression that Florez’s
testimony may have given to the jury that merely because Appellant appeared to have the normal
use of his faculties on the morning of the accident, that necessarily meant he had not ingested
intoxicating substances prior to the accident. The State argues that Florez’s testimony regarding
how Appellant normally appears while under the influence of marijuana or other intoxicating
substances was not only relevant but necessary to clear up that false impression. We agree with
the State.
On cross-examination, Florez testified that Appellant did not appear to have lost the
normal control of his faculties after the accident, and that he was able to speak to her and the
investigating officers as if he were sober. Defense counsel never asked Florez if she knew how
Appellant typically acted when he was under the influence of alcohol or drugs. Therefore, the
jury may have labored under the false impression that Appellant acted differently when he drank
or took drugs, such as marijuana. Accordingly, the trial court could have reasonably concluded
that it was necessary for the State to question Florez to clear up any potentially false impression.
See Daggett v. State, 187 S.W.3d 444, 452 (Tex.Crim.App. 2005) (where a defendant testifies to
a blanket statement of good conduct or character, he may “open the door” by leaving a false
impression with the jury about a relevant act or character trait, and thereby allow the admission
of evidence of extraneous acts that tend to rebut such testimony to impeach the defendant).
Appellant correctly points out, however, that even if the evidence was relevant to clear up
a false impression, the trial court still had the discretion to exclude the evidence under Rule 403
if it found the evidence was more prejudicial than probative. See, e.g., Hayden, 296 S.W.3d at
554 (unless a witness’s testimony created a false impression that was “directly relevant to the
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offense charged,” allowing a party to delve into the issue beyond the limits of cross examination
may nevertheless be prejudicial if it wastes time and confuses the issues). Applying the
Gigliobianco analysis,20 Appellant argues that whether he smoked marijuana on prior occasions
was not relevant to the charged offense, because that evidence would not establish that he was
under the influence of marijuana at the time of the accident, thereby rendering the evidence of
little or no probative value. Florez’s testimony that Appellant appeared normal even after he had
smoked marijuana in the past was relevant, however, because it could assist the jury in resolving
whether Appellant was intoxicated at the time of the accident, rendering the evidence probative
on a key element of the charged offense. Further, as explained above, the question whether
Appellant was intoxicated was highly disputed by Appellant at trial. Therefore, the State had a
great need to clarify any false impression Florez’s testimony may have had on the issue of
Appellant’s intoxication.
Appellant argues that regardless of its probative value, the evidence of his prior
marijuana use may have confused or otherwise misled the jury on why the evidence was being
admitted. Appellant believes the jury may have considered the evidence to conclude that
Appellant was a “habitual user of marijuana or that he had smoked marijuana that night prior to
driving.” In support of his argument, Appellant cites Hankton v. State, 23 S.W.3d 540, 543
(Tex.App. – Houston [1st Dist.] 2000, pet. ref’d), a cocaine possession case in which the
appellate court concluded that the trial court erred in admitting evidence of two prior extraneous
offenses in which defendant was found to have possessed large amounts of cocaine and cash. Id.
at 543. The court held that the evidence was more prejudicial than probative, finding it
significant that the State spent a significant amount of time developing the facts relating to the
20
See Gigliobianco, 210 S.W.3d at 641-42.
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extraneous criminal offenses, in a clear attempt to paint the defendant as an “established drug
dealer,” and to cause the jury to “react from a moral or emotional basis instead of from a rational
and logical basis” in determining the defendant’s guilt. Id. at 547-48.
In the present case, however, Appellant acknowledges that the State did not spend an
inordinate amount of time developing the facts of his marijuana use, and instead, only asked
Florez a short series of questions regarding Appellant’s prior use and how it affected him.
Further, unlike in Hankton, the prosecutor in the present case never attempted to paint Appellant
as a chronic marijuana user, and never implied that he was involved in any ongoing criminal
activity related to his alleged marijuana use. In fact, the prosecutor never once mentioned
Appellant’s prior marijuana use during her closing argument, and never urged the jury to
consider Appellant’s prior drug use as being indicative of his intoxication at the time of the
accident. Instead, the prosecutor’s sole focus in questioning Florez was on Appellant’s typical
countenance when he was under the influence of marijuana. Under these circumstances, we
conclude the jury would have been misled or confused regarding the reason for the evidence’s
admission, or that the jury would have given it undue weight.21
Moreover, for similar reasons, even if the admission of this evidence were erroneous, it
would not have affected Appellant’s substantial rights. In particular, the jury would not have
been unduly influenced by Florez’s passing reference to Appellant’s prior marijuana use, not
only in light of the overwhelming evidence of Appellant’s guilt, but also because Pierce testified,
21
Appellant also contends that the jury may have been confused about why the evidence was being admitted
because the trial court never gave the jury a limiting instruction to only consider the evidence for this limited
purpose. It was Appellant’s burden to request a limiting instruction, however, which he failed to do. See Abdnor v.
State, 808 S.W.2d 476, 478 (Tex.Crim.App. 1991) (where evidence is admissible for a limited purpose and the court
admits it without limitation, the party opposing the evidence has the burden of requesting a limiting instruction).
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without objection, that he and Appellant had smoked marijuana together on a prior occasion.
Issue Five is overruled.
No Cumulative Error
In Issue Twelve, Appellant contends that if this Court agrees that the trial court
committed more than one error at trial, but found those errors to be harmless in isolation, we
should consider whether Appellant was nevertheless harmed by the cumulative effect of those
errors. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999) (“It is
conceivable that a number of errors may be found harmful in their cumulative effect.”).
However, we have concluded the trial court erred in only one respect and found that error to be
harmless. Accordingly, the cumulative error doctrine does not apply. See id. (concluding the
cumulative error doctrine was not applicable where it found no error in the record). Issue
Twelve is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
STEVEN L. HUGHES, Justice
September 30, 2016
Before McClure, C.J., Rodriguez, and Hughes, JJ.
(Do Not Publish)
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