COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-08-00304-CR
BRADLEY KELTON CRENSHAW APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 4 OF TARRANT COUNTY
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OPINION ON REMAND
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I. INTRODUCTION
The Texas Court of Criminal Appeals remanded this case to us. See
Crenshaw v. State, 378 S.W.3d 460, 462 (Tex. Crim. App. 2012). In two points,
appellant Bradley Kelton Crenshaw argues that his conviction for driving while
intoxicated (DWI) should be reversed because the State violated his due process
rights by “expanding the scope of the prosecution beyond that noticed to the
defense in the charging instrument.” We will affirm the trial court’s judgment.
II. BACKGROUND
The State charged Crenshaw by information, alleging that he operated a
motor vehicle in a public place while he was intoxicated by “not having the
normal use of his mental or physical faculties by reason of the introduction” of
(1) alcohol or (2) “alcohol, a controlled substance, a drug, a dangerous drug, or a
combination of two or more of these substances into his body.” See Tex. Penal
Code Ann. §§ 49.01 (West 2011), 49.04 (West Supp. 2013).
At trial, Officer Andrew Anderson testified that he stopped Crenshaw
around 2:00 a.m. after witnessing him changing lanes without signaling and
weaving onto the shoulder of the road as he exited the highway. Crenshaw, 378
S.W.3d at 462. Anderson smelled alcohol on Crenshaw’s breath, and he noticed
that Crenshaw had heavy, red, bloodshot eyes and soft, slurred speech.
Anderson also smelled the odor of marijuana on Crenshaw. Id. Crenshaw
admitted to having drunk a bourbon and Coke at 1:00 a.m. and that he had
smoked marijuana a week and a half previously but denied that he had smoked
that night. During field sobriety tests, Crenshaw demonstrated several clues of
intoxication. Thus, under the totality of the circumstances, Anderson “had reason
to believe [Crenshaw] was intoxicated” and arrested Crenshaw for DWI. Id. at
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463. Later, Anderson conducted an inventory search of Crenshaw’s vehicle and
found a marijuana leaf in the center console.
Crenshaw consented to a blood draw, which occurred at 4:01 a.m. Id. In
anticipation of the State’s introduction of his blood-test results and extrapolation
testimony, Crenshaw objected, under Rules of Evidence 401 and 402, that the
evidence would be confusing to the jury and that it was not relevant to whether
he had lost the normal use of his faculties at the time of the alleged offense. See
id.; see also Tex. R. Evid. 401, 402. The trial court overruled the objection and
granted Crenshaw a running objection. Crenshaw, 378 S.W.3d at 463.
Andrew Macey, a forensic scientist at the Texas Department of Public
Safety’s crime laboratory in Garland, testified that the blood sample taken from
Crenshaw contained 0.07 grams of alcohol per 100 mL of blood. Id. Angela
Springfield, chief toxicologist of the Tarrant County Medical Examiner’s Office,
explained that the State of Texas designates a 0.08 blood alcohol concentration
(BAC) as the legal level of intoxication but that the mental or physical changes
resulting from intoxication can be scientifically measured at BAC levels of 0.03
and 0.04. Id. Although Springfield testified that she would need more
information to determine Crenshaw’s exact BAC at the time of driving, she
opined that it was higher than 0.08. For example, she explained that if a person
is 6′1″ and 140 pounds, has had “one or two bourbon and Cokes,” had his last
drink at 1:00 a.m., is stopped by the police at 2:06 a.m., and had a blood draw at
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4:01 a.m. that showed a BAC of 0.07, then that person would have had a BAC of
at least 0.08 at the time he was driving. Id.
During the charge conference, the State objected to the proposed
definition of intoxication, which did not state that a person was intoxicated if he
had a BAC of 0.08 or more. In response, the trial court included the per se
definition in the abstract portion of the jury charge but did not include it in the
application paragraph. Id. The application paragraph tracked the language of
the information. Id. at 463–64.
III. DIRECT APPEAL TO THIS COURT
On direct appeal, Crenshaw argued that the trial court erred by submitting
a charge that instructed the jury on both the subjective and per se definitions of
intoxication when the information alleged only the subjective definition.
Crenshaw v. State, No. 02-08-00304-CR, 2011 WL 3211258, at *3 (Tex. App.—
Fort Worth July 28, 2011) (mem. op., not designated for publication), rev’d, 378
S.W.3d 460 (Tex. Crim. App. 2012). This court agreed, and holding that the error
was harmful, we reversed the trial court’s judgment and remanded the case for a
new trial. Id. at *7. In our opinion, we held that by alleging the subjective
definition of intoxication in this case, the State was bound to prove it, and the jury
charge had impermissibly permitted a conviction on the per se definition. We
also held that the trial court erred by including the per se definition of intoxication,
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concluding that the evidence did not support its inclusion because the retrograde
extrapolation evidence was inadequate. Id. at *4.
The court of criminal appeals reversed these holdings, concluding that
Crenshaw “was convicted under the subjective theory of intoxication as alleged in
the information.” Crenshaw, 378 S.W.3d at 468. The court further held that
“including the per se definition of intoxication in the abstract portion of the jury
charge did not expand the allegations against” Crenshaw. Id.
IV. ON REMAND
Crenshaw presents two points of error on remand. Crenshaw’s first point
of error appears to be the exact point of error he raised in the Texas Court of
Criminal Appeals. Id. at 466. Specifically, Crenshaw argues that “submission of
an uncharged allegation by way of definition, even if the charging paragraph is
correct, constitutes constitutional error when the State uses that definition to
expand the charge beyond that which is alleged in the charging instrument.” This
is the very argument the court of criminal appeals rejected on petition for
discretionary review. See Id. at 465. (“[Crenshaw] responds that the submission
of an uncharged allegation by way of a definition, even if the charging paragraph
is correct, constitutes constitutional error when the State uses that definition to
expand the charge beyond that alleged in the charging instrument.”). We are
bound by the court of criminal appeals’s holdings, and we summarily overrule
Crenshaw’s first point of error. Wiley v. State, 112 S.W.3d 173, 175 (Tex. App.—
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Fort Worth 2003, pet. ref’d) (“[W]e are bound to follow the pronouncements of the
court of criminal appeals.”).
Crenshaw’s second point of error is somewhat difficult to understand. In
the table of contents, Crenshaw argues that his point of error two is, “State v.
Barbernell, 247 S.W.3d 228 does not allow the State to rely on an extrapolation
allowing the jury to consider the testimony prohibited by Mata to determine the
blood alcohol content at the time of driving.” But in the body of his brief,
Crenshaw states that his point of error two is, “State v. Barbernell, 247 S.W.3d
228 does not address the issue of expanding the scope of the prosecution
beyond that noticed to the defense in the charging instrument.” The majority of
Crenshaw’s second point is an exact mirror of his first point. Oddly, his point of
error one discusses Mata v. State, but Crenshaw does not mention Mata at all in
the body of his second point. See 46 S.W.3d 902, 908 (Tex. Crim. App. 2001)
(discussing a trial court’s gatekeeper function regarding evidence of retrograde
extrapolation). But the gist of both of Crenshaw’s points (he repeats it in both
arguments) is that the State failed to notify him of its “theory of prosecution” by
delineating one theory of prosecution (the subjective definition of intoxication)
and yet presenting evidence of another (the per se definition of intoxication). All
of these subsidiary issues were disposed of in the court of criminal appeals’s
opinion. Crenshaw, 378 S.W.3d at 464. Indeed, the Court stated that the State
“went beyond the minimum notice requirement” in its charging instrument. Id. at
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466. The court also overturned our previous holding that “the extrapolation
evidence was inadequate” in this case. Id. at 464. We overrule Crenshaw’s
second point of error.
V. CONCLUSION
Having overruled both of Crenshaw’s points of error on remand, we affirm
the trial court’s judgment.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DAUPHINOT, J., filed a dissenting opinion.
PUBLISH
DELIVERED: February 27, 2014
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