Lauren Olsen v. State ( 2020 )

Opinion issued April 14, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00281-CR
———————————
LAUREN OLSEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 16th District Court
Denton County, Texas1
Trial Court Case No. F17-2202-16
OPINION
A jury convicted appellant, Lauren Olsen, of driving while intoxicated with
a child passenger. See TEX. PENAL CODE § 49.045. The trial court sentenced Olsen
1
The Texas Supreme Court transferred this appeal from the Court of Appeals for
the Second District of Texas. See TEX. GOV’T CODE § 73.001 (authorizing transfer
of cases between courts of appeals).
to one year in a state jail facility. In two issues on appeal, Olsen asserts that the
trial court erred by denying her request for a jury instruction under Article 38.23 of
the Texas Code of Criminal Procedure and by denying her motion for a new trial
based on newly discovered evidence. We affirm.
Background
On a spring evening, Officer C. Brown with the City of Lewisville Police
Department noticed a disabled vehicle stopped in a turn lane as he was patrolling
South Valley Parkway. Brown parked behind Olsen’s vehicle, which was still
running, activated his lights, and approached the driver’s side to offer assistance.
He noticed Olsen talking on the phone. He also noticed two young children in car
seats behind her.
While assessing the situation, Brown learned that Olsen had left a barbecue
in Lewisville over an hour earlier but had only traveled two miles. Olsen told him
that she was driving to her home in Sherman, but her car was pointed in the
opposite direction. She said she was familiar with Lewisville as she had lived there
before. Olsen then told Brown that her tires had blown out. He confirmed that two
tires on the left side of her vehicle were flat. There was no other damage to the
vehicle. When Brown inspected the tires, he noticed a ring of chalky white residue
on them, which appeared to be marks from contact with the painted curb. The
rubber pointed outward from the holes in the tires. Olsen got out of her car and
2
bent down to inspect the tires. When Brown asked Olsen whether she had
consumed alcohol at the barbecue, she denied it.2
A tow truck driver arrived at the scene. The tow truck driver noticed the
damage to Olsen’s tires and told Brown that he believed that the car had forcefully
hit the curb. The tow truck driver believed the car had hit the curb, rather than had
its tires slashed, because the side walls of the tires were ripped, the rims had bent,
and there was rubber debris on the curb where it appeared that Olsen’s car had hit
it.
What began as a community caretaking stop evolved into a criminal
investigation. Brown began to suspect that Olsen was intoxicated, but he was not
sure whether alcohol or another substance was the cause. He came to this
conclusion based on the totality of the circumstances, including (1) Olsen was
driving in the opposite direction of her stated destination; (2) she made other
inconsistent statements about who she was talking to on the phone; (3) her eyes
were red and watery; (4) her tires appeared to have white residue on them from
hitting the curb; and (5) the tow truck driver told Brown that Olsen’s tires were flat
because she hit the curb.
2
At trial, Brown testified that a few months after the initial arrest, he was
summoned to a family hearing involving Olsen. At this hearing, Olsen testified
under oath that she had consumed “three beers while [she] was at the party.”
3
Brown eventually conducted three field sobriety tests and concluded that
Olsen’s performance on all tests showed intoxication. Brown administered the
horizontal gaze nystagmus test, and Olsen exhibited six clues of intoxication. After
performing the walk-and-turn test, Olsen exhibited three clues of intoxication.
Finally, Olsen performed the one-leg-stand test and exhibited two clues of
intoxication. Brown then arrested Olsen for driving while intoxicated with child
passengers.
Brown noticed that Olsen had a faint odor of alcohol on her after he
concluded the DWI investigation and was placing her in the back seat of his patrol
car. Brown asked Olsen if she would consent to a blood draw, and she orally
agreed and later consented in writing. Brown then transported Olsen to a hospital
and requested a qualified technician to draw her blood. The lab results revealed
that Olsen’s blood-alcohol concentration was above the legal limit at 0.135. A
person is intoxicated if they have a blood-alcohol concentration of 0.08 or higher.
See TEX. PENAL CODE § 49.01(2)(B).
After the close of evidence and based on Brown’s testimony about the
circumstances that gave him probable cause to arrest Olsen, Olsen requested the
following exclusionary rule instruction under Article 38.23(a):
If you believe, or have reasonable doubt, that the evidence was
obtained in violation of the provisions of this Article [38.23], then and
in such event, the jury shall disregard any such evidence so obtained.
Specifically, if you believe that [Olsen] did not exhibit clues on the
4
standardized field test consistent with intoxication according to the
Standardized Field Sobriety Test, did not have bloodshot or watery
eyes, did not have damage to her car consistent with impact caused by
impairment, and was not confused about which person she called from
the site of the arrest, or have a reasonable doubt thereof, you shall
disregard the blood alcohol test results.
The trial court denied the requested jury instruction. The jury found Olsen guilty of
the charged offense and sentenced her to one-year confinement in the Texas
Department of Criminal Justice State Jail Division.
Olsen filed a motion for new trial based on newly discovered evidence.
Specifically, Olsen discovered that the pipette3 used in analyzing her blood sample
failed an external test and was taken out of use. The trial court held a hearing on
the motion for new trial regarding the pipette’s failure. N. Kumar, a forensic
scientist at the Texas Department of Public Safety, testified as a designated expert
about his testing of Olsen’s blood sample. Kumar had also testified during Olsen’s
criminal trial.
At the hearing on the motion for new trial, Kumar testified that he became
aware that the pipette failed verification approximately three months before
Olsen’s trial. After the jury returned a guilty verdict, Kumar provided the District
Attorney’s Office with the failed verification log. The removal of the same amount
of blood is necessary to treat all unknown samples the same as calibration samples.
3
A pipette is a mechanical device used to pick up samples of blood from a blood
tube and place them in a vial when testing blood-alcohol concentration.
5
Accuracy means that the pipette removes the prescribed amount of liquid.
Precision means removing the same amount of liquid every time, regardless of
whether it is accurate. Precision is more important than accuracy, according to
Kumar. Failure to remove the same amount of blood causes a significant variation
in the test results. However, even if the accuracy of the pipette failed but the
pipette was still precise, the results would still be the same because the unknown
blood samples are being treated the same as the calibration samples. Kumar then
confirmed that he had no reason to notify the trial court of any issues with the
testing of Olsen’s blood sample or the entire batch. Stated differently, Olsen’s
blood-alcohol concentration of 0.135—exceeding the legal limit in Texas—was
unaffected by the results of the slight variation of the defective pipette testing.
The trial court then questioned Kumar on how he would have known
whether a pipette was malfunctioning. Kumar explained, “If there is any issue with
the pipette or any issue with the testing in general, it would have been reflected in
those known ethanol standards that are run throughout the entire batch.” However,
in the testing of Olsen’s blood sample, the calibration curve did not show any
glaring issues with the known ethanol standards.
B. Welch, a toxicology chemist at the Southwestern Institute of Forensic
Science, also testified at the hearing on the motion for new trial. Welch did not
6
testify at trial. Welch was responsible for retesting Olsen’s blood sample for its
alcohol concentration before the trial.
By explaining the verification procedure of the pipette, Welch stated that if a
pipette subsequently failed a verification, the lab could still rely on internal
standards and quality control measures that are contained within each batch tested
to determine whether the pipette worked properly in testing the batch. In this case,
Welch explained that there was a malfunction with the pipette months after Olsen’s
blood was tested, and, for this reason, the result of the trial would not change
because the malfunction did not affect Olsen’s blood test or the batch in which her
blood was tested. Welch stated that issues with the retested batch would not be
reported as problematic unless the results reflected a difference of more than 0.007
grams per milliliters. After Welch retested Olsen’s blood sample, nothing indicated
that there were any significant issues to report. In fact, when Welch conducted a
separate examination of Olsen’s blood sample, the results only reflected a
difference of 0.006 grams per milliliters, which was within an acceptable tolerance
for quality control.
After considering the evidence, the trial court denied the motion for new
trial. Olsen appealed.
7
Claim of Jury-Charge Error
In her first issue, Olsen asserts that the trial court erred by failing to submit
an instruction to the jury on illegally obtained evidence under Article 38.23. Olsen
contends that an Article 38.23 instruction was required because Brown did not
have probable cause to arrest her in light of the totality of circumstances.
Therefore, Olsen argues the jury charge should have included the text of Article
38.23, an explanation of probable cause, and an instruction to disregard the blood-
alcohol test results if the jury believed that Olsen did not exhibit certain signs of
intoxication.
A. Standard of review
The trial court must provide the jury with a written charge “that accurately
sets out the law applicable to the specific offense charged.” Oursbourn v. State,
259 S.W.3d 159, 179 (Tex. Crim. App. 2008); TEX. CODE CRIM. PROC. art. 36.14.
We review a claim of alleged charge error by determining whether the charge was
erroneous, and if it was, we conduct a harm analysis. Celis v. State, 416 S.W.3d
419, 423 (Tex. Crim. App. 2013).
B. Trial court did not err by refusing the exclusionary rule instruction
Article 38.23 provides: “No evidence obtained by an officer . . . in violation
of any provisions of the Constitution or laws of the State of Texas, or of the
Constitution or laws of the United States of America, shall be admitted against the
8
accused on the trial of any criminal case.” TEX. CODE CRIM. PROC. art. 38.23(a).
When an issue exists as to whether the evidence was obtained illegally, the jury
must be instructed that “if it believes, or has a reasonable doubt, that the evidence
was obtained in violation of the provisions of [Article 38.23], then . . . the jury
shall disregard such evidence so obtained.” Id.
The trial court must issue an Article 38.23 instruction if the defendant
establishes that: (1) the evidence heard by the jury raises an issue of fact; (2) the
evidence on that fact is affirmatively contested; and (3) the contested factual issue
is material to the lawfulness of the challenged conduct in obtaining the evidence.
Madden v. State, 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). The trial court
must provide the jury with an Article 38.23 instruction when an issue of fact is
raised as to each factor supporting probable cause. Id. To raise a fact issue, the
facts relied upon to establish probable cause must be in controversy. Rose v. State,
470 S.W.2d 198, 200 (Tex. Crim. App. 1971) (explaining that a fact issue for
probable cause can be raised by adducing testimony of other witnesses to
controvert the testimony of the officers on each issue); Shpikula v. State, 68
S.W.3d 212, 217 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (affirming trial
court’s refusal to issue Article 38.23 instruction when appellant failed to raise an
issue of disputed fact because “there was no evidence to controvert the deputies’
testimony”). Simply raising the issue through cross-examination is insufficient to
9
create a factual dispute for purposes of an Article 38.23(a) instruction, although the
witness’s answers to those questions might. Oursbourn, 259 S.W.3d at 177 (“This
factual dispute can be raised only by affirmative evidence, not by mere cross-
examination questions or argument.”); Madden, 242 S.W.3d at 514 (“It is only the
answers that are evidence and may create a dispute. Even the most vigorous cross-
examination implying that Officer Lily is the Cretan Liar does not raise a disputed
issue. There must be some affirmative evidence of “did not speed” in the record
before there is a disputed fact issue.”).
“The facts are in controversy if the issue of their validity is raised by the
evidence.” Ashley v. State, No. 13-01-00418-CR, 2002 WL 34230837, at *2 (Tex.
App.—Corpus Christi June 27, 2002, no pet.) (mem. op., not designated for
publication) (citing Jordan v. State, 562 S.W.2d 472, 472 (Tex. Crim. App. 1978));
see also Madden, 242 S.W.3d at 511 (“The disputed fact must be an essential one
in deciding the lawfulness of the challenged conduct.”). That is, in the absence of
conflicting testimony or evidence, the trial court does not err in omitting the
instruction. See Lackey v. State, 638 S.W.2d 439, 454 (Tex. Crim. App. 1982) (en
banc).
Probable cause to arrest a person for driving while intoxicated with a child
passenger exists if the officer finds the arrestee in circumstances indicating that the
arrestee committed the offense, even though the officer did not witness the arrestee
10
driving a vehicle. State v. Rudd, 255 S.W.3d 293, 300 (Tex. App.—Waco 2008,
pet. ref’d) (citing Dyar v. State, 125 S.W.3d 460, 468 (Tex. Crim. App. 2003)). A
warrantless arrest of a person for driving while intoxicated is valid as long as the
officer had probable cause to arrest for public intoxication. Reynolds v. State, 902
S.W.2d 558, 560 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (citing Segura
v. State, 826 S.W.2d 178, 185 (Tex. App.—Dallas 1992, pet. ref’d)).
Brown’s testimony revealed several factors supporting probable cause to
believe Olsen was intoxicated: (1) Olsen’s vehicle was pointed in the opposite
direction of her destination; (2) Olsen had been driving for an hour but was only
two miles from the barbecue; (3) she had bloodshot, watery eyes; (4) she was
confused about who she called from the scene; (5) the damage to her tires was
consistent with hitting the curb forcefully due to impairment; and (6) she exhibited
clues of intoxication during field sobriety tests. Olsen asserts that she raised fact
issues about probable cause to challenge the appearance of her eyes, her confusion
about who she called, and the tire damage.
The purpose of the Article 38.23 instruction is to enable the jury to disregard
unlawfully obtained evidence. See Dao v. State, 337 S.W.3d 927, 940 (Tex.
App.—Houston [14th Dist.] 2011, pet. ref’d). In determining whether the trial
court was required to submit an Article 38.23 instruction, we consider whether
these disputed fact issues were material to the determination of whether Brown had
11
probable cause to arrest Olsen for driving while intoxicated with a child passenger.
See Madden, 242 S.W.3d at 510; Rocha v. State, No. 03-07-00579-CR, 2009 WL
1364347, at *7 (Tex. App.—Austin May 12, 2009, no pet.).
Probable cause for a warrantless arrest exists when the arresting officer
possesses reasonably trustworthy information sufficient to warrant a reasonable
belief that an offense has been committed. See Amador v. State, 275 S.W.3d 872,
878 (Tex. Crim. App. 2009). Probable cause requires more than “bare suspicion”
but “less than . . . would justify . . . conviction.” Brinegar v. United States, 338
U.S. 160, 175 (1949). “The test for probable cause is an objective one, unrelated to
the subjective beliefs of the arresting officer, and it requires a consideration of the
totality of the circumstances facing the arresting officer.” Amador, 275 S.W.3d at
878 (citing Maryland v. Pringle, 540 U.S. 366, 371 (2003)).
Olsen alleges three instances where cross-examination revealed
inconsistencies in Brown’s testimony. First, Olsen contends that she raised a fact
issue regarding the appearance of her eyes. At trial, Brown initially testified that
Olsen’s eyes were red and watery. On cross-examination, Brown conceded that
there may have been a possibility that Olsen’s eyes were red and watery due to the
stressful situation.
Second, Olsen asserts that she raised a fact issue about her alleged confusion
and inconsistent statements about her telephone call. One of the reasons Brown
12
concluded that Olsen was intoxicated according to his testimony was that she
provided inconsistent answers to questions about who she was talking to on the
phone when he initially encountered her. Specifically, Olsen stated that she called
one of her children’s grandparents to come assist her and her children after her
tires blew out but then seemed surprised when a grandparent showed up at the
scene. On cross-examination, Olsen’s counsel asked Brown to explain the
inconsistencies of Olsen’s statements that he attributed to her intoxication. Brown
stated that he could not identify exactly who Olsen was talking to on the phone
because she vaguely told him that she was speaking to one of her children’s
grandparents. Brown acknowledged that the children have two maternal
grandparents and two paternal grandparents and testified that there was a
possibility that she could have been speaking to one of four individuals. Brown
later testified that Olsen appeared confused because she stated that “I don’t know
why she’s here” and “I don’t want her to be here” when her children’s paternal
grandmother arrived on the scene. At the conclusion of his explanation of Olsen’s
inconsistencies, Olsen’s counsel asked Brown, “And you think that that’s evidence
of her intoxication and not because she’s got two grandmothers?” Brown
responded, “No.”
Finally, Olsen argues that she raised a fact issue about the appearance and
condition of her tires. Brown testified at length that he believed her flat tires were
13
caused by her impairment. He came to this conclusion because the “white paint
marks would be consistent with rubbing a curb.” Despite this observation, neither
Brown nor the tow truck driver took pictures of the tires and thus, no pictures were
introduced into the record. Later in the trial, on cross-examination, Brown
confirmed that Olsen told him that she had tire blowouts.
To prevail though, Olsen had to do more than raise fact issues as to three
probable cause factors: she had to challenge all material facts. See Merriweather v.
State, 501 S.W.2d 887, 891 (Tex. Crim. App. 1973) (holding that, when specific
facts used by court to determine existence of probable cause were uncontested,
defendant was not entitled to jury instruction concerning other facts—which were
contested—that did not defeat finding of probable cause); see also Rocha, 2009
WL 1364347, at *7 (rejecting a disputed fact because it was “not ‘essential’ to the
determination” of the issue of probable cause); 40 George E. Dix & Robert O.
Dawson, Texas Practice: Criminal Practice and Procedure § 4.194 (2d ed. 2001)
(“Jury submission, then, is only required when facts are raised that are necessarily
determinative of the admissibility of the challenged evidence.”). The probable
cause facts that Olsen did not challenge are fatal to her claim.
On appeal, Olsen did not contest that she exhibited “clues on the
standardized field test[s] consistent with intoxication.” Her results on the
horizontal gaze nystagmus test (HGN), the walk-and-turn test, and the one-leg
14
stand test all were consistent with intoxication. Moreover, one of the field sobriety
tests, the HGN, involves involuntary eye movement, thus it was unaffected by the
officer’s subjective perception of Olsen’s physical and mental faculties. See, e.g.,
Kamen v. State, 305 S.W.3d 192, 194 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d).
Brown’s statement at one point that Olsen appeared to have the normal use
of her physical and mental faculties based on his observation of Olsen’s condition
does not contradict the clues of intoxication she showed on the standardized field
sobriety tests. The dissent mistakenly equates Brown’s subjective perception of
Olsen’s physical and mental faculties with her performance on the standardized
field sobriety tests. Although subjective perceptions, such as whether a driver is
stumbling or slurring her words, and standardized field sobriety tests can both help
an officer determine whether someone has lost the normal use of their physical and
mental faculties due to substance use, they are not the same thing.
Brown’s subjective perception of Olsen’s physical and mental faculties is
not a fact supporting probable cause in this case. Olsen’s performance on the
standardized field sobriety tests that are administered throughout the United States,
however, is a material fact supporting probable cause for Olsen’s arrest. And it is
one she did not contest at trial or on appeal. Because Olsen did not challenge the
administration of any of the field sobriety tests or her performance on those tests,
15
particularly the HGN, she failed to contest all facts material to the probable-cause
determination. Compare Serrano v. State, 464 S.W.3d 1, 7 (Tex. App.—Houston
[1st Dist.] 2015, pet. ref’d) (evidence raised a fact issue about whether the officer
complied with the 15-minute observation requirement for breath test), with Rocha,
2009 WL 1364347, at *8 (appellant failed to present contradicting evidence to
contest each fact supporting the officer’s probable-cause determination); see also
Rose, 470 S.W.2d at 200 (considering the totality of the circumstances and
concluding that an Article 38.23 instruction was not required because appellant
called no witnesses “to controvert the testimony of the officers.”). Olsen’s
performance on the field sobriety tests alone supported probable cause to arrest
her, see Alvarado v. State, 468 S.W.3d 211, 219 (Tex. App.—Houston [1st Dist.]
2015, no pet.), and was not contested.
The dissent’s approach arbitrarily limits the probable cause factors to a
subset of the totality of the circumstances. Instead, probable cause is objective,
looking to the totality of the circumstances, not restricted by the subjective
motivations of the officer.4 The Court does not assess probable cause facts in
4
The dissent cites no case stating that the probable cause inquiry is limited to the
facts subjectively relied upon by the officer, particularly where the officer lists
several factors on direct examination, then in cross-examination lists one. The
Court of Criminal Appeals decision in Middleton v. State, 125 S.W.3d 450 (Tex.
Crim. App. 2003) (en banc), is not to the contrary. In Middleton, the issue was
only whether the defendant stopped at a stop sign, not whether, over time, the
defendant showed signs of intoxication that were confirmed by standardized field
16
isolation, using a divide-and-conquer approach. See Minassian v. State, 490
S.W.3d 629, 639 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (finding probable
cause based on totality of record despite argument that gas-station visits were
consistent with innocent conduct). In addition to the standardized field sobriety test
results, there were other facts Olsen did not challenge that supported probable
cause, including that she drove an hour but had only traveled two miles from the
barbecue and that she was headed away from Sherman, her stated destination,
despite being familiar with Lewisville. Because Olsen failed to contest all facts
material to the lawfulness of her arrest in this case, we conclude that Olsen has not
raised a fact issue essential to the determination of probable cause. Therefore, the
trial court did not err by denying Olsen’s request to submit an Article 38.23
instruction to the jury. See Madden, 242 S.W.3d at 510; Rocha, 2009 WL 1364347,
at *7. We overrule Olsen’s first issue.
Motion for New Trial
In her second issue, Olsen contends that the trial court abused its discretion
when it denied Olsen’s motion for new trial. Olsen contends that a material fact—
a defective pipette used in analyzing her blood sample—was not disclosed to her
until after the trial. Olsen argues that if the trial court would have granted her
sobriety tests. Id. at 454. Indeed, the determination of probable cause is an
objective one, analyzing whether the arrest was reasonable given the totality of the
circumstances. See, e.g., Whren v. United States, 517 U.S. 806, 814 (1996).
17
motion for new trial, then “the jury would potentially have [had] the opportunity to
hear from two separate blood evidence witnesses and consequently two separate
toxicology screens, two separate practices of blood evidence testing, and two
separate practices that are used in conducting verification and calibration testing.”
Stated differently, Olsen contends that she should be granted a new trial so that the
jury could hear testimony from the witness who retested her blood but did not
testify during the trial.
A. Standard of review
We review a trial court’s decision to deny a motion for new trial by
determining whether there has been an abuse of discretion. Wallace v. State, 106
S.W.3d 103, 108 (Tex. Crim. App. 2003) (en banc). A trial court abuses its
discretion if its decision to deny the motion for new trial was arbitrary or
unreasonable. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995) (en banc).
We view the evidence in the light most favorable to the trial court’s ruling and will
not overturn a trial court’s decision to deny a motion for new trial unless “decision
falls outside the zone of reasonable disagreement.” Henley v. State, 493 S.W.3d 77,
83 (Tex. Crim. App. 2016). The trial court has broad discretion to evaluate the
credibility of witnesses and weigh the evidence to determine whether the new
evidence will bring about a different result in a new trial. Colyer v. State, 428
S.W.3d 117, 122 (Tex. Crim. App. 2014); Lewis, 911 S.W.2d at 7.
18
B. The trial court did not abuse its discretion by denying the motion for
new trial
Article 40.001 of the Texas Code of Criminal Procedure governs new trials
based on material evidence. This statute states, “A new trial shall be granted an
accused where material evidence favorable to the accused has been discovered
since trial.” TEX. CODE CRIM. PROC. art. § 40.001. For a defendant to be entitled to
a new trial based on newly discovered evidence, these four prongs must be
satisfied:
(1) the newly discovered evidence was unknown or unavailable to the
defendant at the time of trial;
(2) the defendant’s failure to discover or obtain the new evidence was
not due to the defendant’s lack of due diligence;
(3) the new evidence is admissible and not merely cumulative,
corroborative, collateral, or impeaching; and
(4) the new evidence is probably true and will probably bring about a
different result in a new trial.
State v. Arizmendi, 519 S.W.3d 143, 149 (Tex. Crim. App. 2017). Thus, the failure
to establish one of these prongs would support the trial court’s denial of the motion
for new trial. It is undisputed that Olsen has established the first two prongs.
Olsen argues that she is entitled to a new trial under Article 40.001 of the
Texas Code of Criminal Procedure and contends that the failed verification of the
pipette used to extract Olsen’s blood is not cumulative, collateral, or impeaching
because Kumar—the State’s designated expert who tested Olsen’s blood—failed to
19
disclose during the trial any issues related to the mechanical device, and thus Olsen
argues that there is a reasonable probability that the result would have been
different. Although the State acknowledges that Kumar notified the State of this
defective device after the trial and the State immediately disclosed this information
to Olsen, the State argues that the evidence was immaterial impeachment evidence
that would not have changed the result.
Impeachment evidence is any evidence, including evidence that can be used
to impeach the State’s witnesses, that “disputes or contradicts other evidence.” Ex
parte Lalonde, 570 S.W.3d 716, 724 (Tex. Crim. App. 2019) (quoting Harm v.
State, 183 S.W.3d 403, 408 (Tex. Crim. App. 2006) (en banc)). “[E]ven if the
newly-discovered evidence impeaches a witness, the evidence may still warrant a
new trial if it is ‘material and competent independent of its impeaching tendency.’”
Pinson v. State, No. 11-17-00003-CR, 2018 WL 6722294, at *7 (Tex. App.—
Eastland Dec. 21, 2018, pet. ref’d) (mem. op., not designated for publication)
(quoting Hale v. State, 51 S.W.2d 611, 613 (1932)).
At the hearing on the motion for new trial, two witnesses testified about
testing procedures and the acceptable standards for any variation of the results
from those tests. The record reflects a difference between the initial test and the
second test that was within the testing standard. Olsen argues that if the trial court
would have granted her motion for new trial, then “the jury would potentially have
20
[had] the opportunity to hear from two separate blood evidence witnesses and
consequently two separate toxicology screens, two separate practices of blood
evidence testing, and two separate practices that are used in conducting verification
and calibration testing.” While this is true, Olsen fails to show how providing this
information would have resulted in a different verdict given that the difference in
the testing of the defective pipette did not change the results of her blood-alcohol
concentration of 0.135. The malfunction of the pipette occurred months after
Olsen’s blood was tested. Thus, the verification malfunction did not affect Olsen’s
blood test or the batch in which her blood was tested. We cannot conclude that the
evidence regarding the minor variation in the verification and calibration testing of
the defective pipette would have likely produced a different outcome, independent
of its impeachment potential.
For these reasons, we conclude that the trial court could have reasonably
determined that the strength of the State’s case was such that the new evidence
identified by Olsen, even if true, was not compelling enough to probably bring
about a different result in a new trial. See Wallace, 106 S.W.3d at 108–09
(affirming trial court’s denial of a motion for new trial because the new evidence,
even if true, was not compelling enough to overcome the strength of the
prosecution’s case); see also Burdick v. State, 474 S.W.3d 17, 23 (Tex. App.—
Houston [14th Dist.] 2015, no pet.) (holding there was no reasonable probability
21
that newly discovered evidence impeaching officer’s history of professionalism
would have changed jury’s assessment of appellant’s intoxication). Viewing the
evidence in the light most favorable to the trial court’s ruling, we hold that the trial
court did not abuse its discretion by denying Olsen’s motion for new
trial. See Colyer, 428 S.W.3d at 122. We overrule Olsen’s second issue.
Conclusion
Having overruled both of Olsen’s issues on appeal, we affirm the trial
court’s judgment of conviction.
Sarah Beth Landau
Justice
Panel consists of Justices Lloyd, Goodman, and Landau.
Justice Goodman, dissenting.
Publish. TEX. R. APP. P. 47.2(b).
22