IN THE
TENTH COURT OF APPEALS
No. 10-09-00387-CR
AARON ZANE SOMERS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 08-00910-CRF-272
MEMORANDUM OPINION ON REMAND
Aaron Somers appealed from his conviction for intoxication manslaughter, for
which he was sentenced to twelve years in prison. TEX. PEN. CODE ANN. § 49.08 (West
2011). On original submission, this Court affirmed the judgment of the trial court.
Somers v. State, 333 S.W.3d 747 (Tex. App.—Waco 2010, pet. granted) ("Somers I"). The
Court of Criminal Appeals reversed our decision in part on the only ground before it
and determined that an enzyme-multiplied immunoassay technique, or EMIT test, is
scientifically reliable. Somers v. State, 368 S.W.3d 528 (Tex. Crim. App. 2012) ("Somers
II"). That Court remanded this proceeding to this Court to determine whether the trial
court abused its discretion by excluding the expert testimony regarding the results of
the EMIT test of the victim's blood. Because we find that the trial court did not abuse its
discretion, we affirm the judgment of the trial court. The scope of this opinion is limited
to the issue remanded from the Court of Criminal Appeals. See Somers II, 368 S.W.3d at
545. Because we resolved Somers's other issues in our prior opinion, we will not
address them here. See, generally, Somers I, 333 S.W.3d at 747.
Admission of Evidence
Somers complains that the trial court abused its discretion by refusing to admit
expert testimony regarding the results of the EMIT test conducted on the victim's blood
because the results of the EMIT test would have aided his defense, which was that the
victim was already deceased at the time of the collision due to a heart attack from
cocaine use. The State contends that the testimony setting forth and explaining the
results are not relevant or that even if it was relevant, the potential for undue prejudice
is substantially greater than the probative value. Because the facts were set forth at
length in prior opinions, we will not restate them here except as necessary to our
disposition.
Standard of Review
An appellate court may not disturb a trial court's evidentiary rulings absent an
abuse of discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). As
Somers v. State Page 2
long as the trial court's decision was within the zone of reasonable disagreement and
was correct under any theory of law applicable to the case, it must be upheld. Id. (citing
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en banc) (op. on
reh'g)). The exclusion or admission of evidence does not result in reversible error
unless it affects a substantial right of the accused. See TEX. R. APP. P. 44.2(a), (b).
Relevance
Before admitting expert testimony, the Texas Rules of Evidence require a trial
judge to make three separate inquiries: qualification, reliability, and relevance. See Vela
v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); see also TEX. RS. EVID. 104(a), 401,
402, & 702. Pursuant to relevance, the inquiry is whether admitting the expert
testimony will actually assist the fact finder in deciding the case. See Vela, 209 S.W.3d at
131. Rules 401 and 402 render testimony admissible only if it "tend[s] 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." TEX. R. EVID. 401; see
Vela, 209 S.W.3d at 131.
Analysis
In her dissent to the majority's opinion in Somers, Judge Johnson of the Court of
Criminal Appeals stated:
Both [experts] testified that EMIT testing could not reveal when
cocaine was ingested, how it was ingested, how much was ingested, how
many times the user had used cocaine, whether the user was a frequent
user, or whether the user had overdosed. Even considering the
Somers v. State Page 3
unconfirmed results of the EMIT test, the complainant could have
ingested cocaine 10 minutes or four days before the collision.
The cause of death, blunt force trauma, does not correlate to use of
cocaine, but it does correlate to a violent collision between two
automobiles. The state's collision reconstruction witness testified that the
complainant's car was struck from the rear while it was in gear and
stopped on the shoulder of the road with the left tires on or close to the
white fog line. With its tires pointing straight ahead and traveling at
about 60 miles per hour, the right front of appellant's truck struck the left
rear of the complainant's car with no indication of any avoidance
maneuvering or hard braking before the point of impact. About half the
width of each vehicle was within the zone of impact. Even if the
complainant had ingested cocaine just before impact, it could have no
relevance in a crash in which appellant literally ran up the complainant's
tailpipe, causing her car to violently rotate 180° and his car to use her left
rear quarter panel as a spring board with enough force to launch his 5000-
pound truck into a double layout somersault with a full twist. In the face
of such evidence, cocaine use at some indeterminate time in some
indeterminate amount had no relevance or probative value. The trial
judge correctly ruled that the unconfirmed EMIT test would not be
admitted, and that ruling should be affirmed.
Somers II, 368 S.W.3d 528, 549 (Tex. Crim. App. 2012) (Johnson, J. dissenting).
We agree with Judge Johnson's dissent that the evidence was not relevant. The
record contains no evidence that Briggs was dead from a cocaine-induced heart attack
prior to the collision caused by Somers. Briggs sustained severe spinal cord injuries in
the accident and blunt force trauma was ruled to be the cause of death. There was no
damage to Briggs's heart or other sign of a cocaine-induced heart attack found in the
autopsy. We find that the trial court's decision to exclude the testimony and the results
of the EMIT test were within the zone of reasonable disagreement and therefore the trial
Somers v. State Page 4
court did not abuse its discretion. We overrule issue two from Somers's original
submission.1
Conclusion
Having found that the trial court did not abuse its discretion in the exclusion of
the evidence, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed August 1, 2013
Do not publish
[CR25]
1 Based on arguments made at the oral argument in this cause post-remand, in our review of Somers's
argument that the victim was already dead as the result of a cocaine-induced heart attack at the time of
the collision, we asked the parties to brief the issue of concurrent causation and the resuscitation of the
victim. Given our disposition of the issue we now find it unnecessary to address that argument.
Somers v. State Page 5
Aaron Zane Somers v. State
Combined Opinion