Opinion issued November 21, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00029-CR
———————————
JIMMY HAROLD GREEN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Case No. 10CR3171
MEMORANDUM OPINION
The jury found appellant guilty of the third-degree felony offense of driving
while intoxicated.1 Appellant waived his right to a contested punishment hearing
and pleaded true to two felony enhancement allegations. Once the trial court
accepted the plea, appellant’s punishment status was changed to that of a habitual
1
See TEX. PENAL CODE ANN. §§ 49.04, 49.09 (Vernon Supp. 2012).
offender. As a result, the punishment range increased to imprisonment for life or a
term of not more than 99 years or less than 25 years.2 Appellant agreed to 25 years
in prison, and the trial court sentenced him accordingly.
In three issues, appellant challenges the sufficiency of the evidence to
support the judgment of conviction for the primary offense of felony driving while
intoxicated and complains of two evidentiary rulings by the trial court.
We affirm.
Background Summary
At around 2:00 a.m. on October 17, 2010, Marcus Taylor arrived at his
League City home. As he pulled into his driveway, Taylor noticed a motorcycle
and a man lying in the street next to the motorcycle. The motorcycle was lying on
its side. Taylor observed that the motorcycle’s headlight was turned on, and the
motorcycle’s back wheel was spinning. Taylor walked over to check on the man,
who was later identified as appellant. Taylor saw that appellant was alive but
appeared disoriented. Taylor called 9-1-1.
Within five minutes, the ambulance arrived. League City paramedic Tiffany
Lester treated appellant at the scene. When she arrived at the scene, Lester saw
appellant sitting on his motorcycle. While treating him, Lester noted that appellant
had an abrasion on his left elbow. Lester also observed, and later testified, that
2
See TEX. PEN. CODE ANN. § 12.42(d) (Vernon 2011).
2
appellant’s “speech was slurred,” “his gait was a little altered,” “his pupils were
irregular,” and “he smelled like alcohol.” Based on her training and experience as
a paramedic, Lester believed that appellant was intoxicated.
Approximately five minutes after the ambulance had arrived, League City
police officer G. Yates reached the scene. Officer Yates saw appellant sitting on
his motorcycle and asked him to get off the motorcycle. Officer Yates assisted
appellant in walking over to the ambulance to be treated.
After appellant was treated, Officer Yates spoke with appellant. Appellant
told Officer Yates that a black SUV had cut him off, causing him to lose control of
the motorcycle. The officer asked appellant how much he had to drink. Appellant
responded, “Too much.” In observing appellant, Officer Yates formed the belief
that appellant was intoxicated. The officer later testified that he could smell the
odor of alcohol on appellant’s breath. Officer Yates observed that appellant’s eyes
were red and bloodshot and that his pupils were of unequal size.
Officer Yates asked appellant whether he would undergo field sobriety tests.
Appellant refused to perform the tests. Officer Yates took appellant into custody
for the offense of driving while intoxicated. Officer Yates’s patrol car had a video
and audio recording device, which recorded a portion of what had occurred at the
scene and also what transpired after appellant was placed in the patrol car. Officer
3
Yates informed appellant of his Miranda and statutory rights before transporting
appellant to city jail.
Once at the jail, Officer Yates requested appellant to give a breath sample
for alcohol-concentration analysis. Appellant refused to give a sample. The
officer informed appellant of the consequences of refusing to give a specimen.
Officer Yates ran a criminal history on appellant. It was determined that,
under state law, appellant was required to give a blood sample because he had two
prior convictions for driving while intoxicated.3
A blood sample was taken from appellant approximately five-and-one-half
hours after he had been found lying in the street by his motorcycle. The blood
sample was sent to the Texas Department of Public Safety Crime Lab in Houston
where it was analyzed by forensic scientist Robert Prince. Prince determined that
the sample taken from appellant contained 0.19 grams of alcohol per 100 milliliters
of blood.
Appellant was indicted for the offense of felony driving while intoxicated.
The indictment also contained two enhancement paragraphs, alleging that appellant
had been previously convicted of two separate felony offenses of burglary.
3
See TEX. TRANSP. CODE ANN. § 724.012(b)(3).
4
Appellant stipulated that he had been convicted of two prior offenses of
driving while intoxicated, elevating the instant offense to a felony. The jury was
informed of the stipulation.
During the guilt-innocence phase, the State offered the testimony of Marcus
Taylor. He described for the jury how he found appellant lying in the street next to
his motorcycle. Taylor testified that the motorcycle’s headlight was on and that
the back wheel of the motorcycle was spinning. He said that appellant appeared
disoriented.
Officer Yates testified for the State. Through Officer Yates, the State
offered the patrol-car video recording, which showed, inter alia, appellant’s
demeanor and other events that had transpired at the scene and in the patrol car
following appellant’s arrest. Appellant objected to the portions of the recording
depicting statements he made after he had been read his Miranda rights. Appellant
asserted that, due to his intoxication, he was not able to knowingly and voluntarily
waive those rights.
Following a hearing, the trial court overruled the objection and the videotape
was published to the jury. On the videotape, appellant can be heard to state that he
was cut off by a black SUV, causing him to hit the curb. He also admits to Officer
Yates that he has had too much to drink to be driving.
5
Paramedic Tiffany Lester also testified, stating that she believed appellant
was intoxicated. She described appellant’s physical condition and demeanor
supporting her belief. The State also introduced the testimony of League City
police officer G. Rivas, who had arrived at the scene after Officer Yates had
arrived. Like Officer Yates and Paramedic Lester, Officer Rivas provided a
description of appellant’s demeanor and actions indicating that he was intoxicated.
Officer Rivas stated that appellant had slurred speech and poor balance. She
observed that appellant appeared confused and had difficulty answering questions.
She testified that Officer Yates had to repeat his questions several times before
appellant would answer.
Through forensic scientist Robert Prince, the State introduced the results of
the analysis conducted on appellant’s blood sample collected five-and-one-half
hours after appellant was found by Taylor in the street. Prince told the jury that the
blood sample showed that, at the time of collection, appellant’s blood contained
0.19 grams of alcohol per 100 milliliters. Prince explained to the jury that the State
of Texas designates a 0.08 blood alcohol concentration as the legal level of
intoxication. Prince also explained how the average person metabolizes alcohol.
The State then asked Prince a hypothetical question regarding retrograde
extrapolation calculation if a blood sample were taken, as here, at least five and
one-half hours after a certain time. Appellant objected to the question on the basis
6
that such testimony would not be relevant because Prince did not know when
appellant had his last drink, information necessary to conduct a retrograde
extrapolation analysis. After conducting a hearing on the issue, the trial overruled
appellant’s objection and permitted Prince to testify regarding the hypothetical
scenario.
At trial, appellant did not dispute that he was intoxicated at the time he was
treated by Paramedic Lester or when he interacted with Officer Yates. Instead,
appellant asserted that there was no evidence to show that he was intoxicated when
he was operating the motorcycle. In his opening statement, appellant told the jury
that the evidence would show that he became intoxicated after he overturned his
motorcycle. He stated that the evidence would show that, after he was run off the
road, he walked to the store and bought a 40 ounce malt liquor that he drank at the
scene before being found by Marcus Taylor. Appellant elicited testimony from
Taylor indicating that a gas station was nearby the scene that sold alcohol.
However, appellant never offered any other evidence to show that he had gone to
the store, purchased alcohol, and then drank it at the scene.
The jury implicitly rejected appellant’s theory when it found him guilty of
the felony offense of driving while intoxicated. Appellant pleaded true to the
indictment’s two enhancement allegations making him a habitual offender for
sentencing purposes. Appellant waived his right to a contested punishment
7
hearing. In accordance with an agreement reached with the State, the trial court
sentenced appellant to 25 years in prison.
Appellant now appeals. He presents three issues.
Sufficiency of Evidence
In his first issue, appellant contends that the evidence was insufficient to
show that he was guilty of the offense of driving while intoxicated.
A. Standard of Review
This Court reviews sufficiency-of-the-evidence challenges applying the
same standard of review, regardless of whether an appellant presents the challenge
as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49,
53–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority
holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)). This
standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 2789 (1979). See id. Pursuant to this standard, evidence is
insufficient to support a conviction if, considering all the record evidence in the
light most favorable to the verdict, no rational fact finder could have found that
each essential element of the charged offense was proven beyond a reasonable
doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S.
358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex.
Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
8
We can hold evidence to be insufficient under the Jackson standard in two
circumstances: (1) the record contains no evidence, or merely a “modicum” of
evidence, probative of an element of the offense, or (2) the evidence conclusively
establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n. 11, 320, 99
S.Ct. at 2786, 2789 n. 1, 2789; see also Laster, 275 S.W.3d at 518; Williams, 235
S.W.3d at 750.
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443
U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). An appellate court presumes that the fact finder resolved any conflicts
in the evidence in favor of the verdict and defers to that resolution, provided that
the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
In viewing the record, direct and circumstantial evidence are treated equally;
circumstantial evidence is as probative as direct evidence in establishing the guilt
of an actor, and circumstantial evidence alone can be sufficient to establish guilt.
Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point directly and
independently to the guilt of the appellant, as long as the cumulative force of all
the incriminating circumstances is sufficient to support the conviction.” Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
9
B. Law of the Offense
A person commits the offense of driving while intoxicated (“DWI”) “if the
person is intoxicated while operating a motor vehicle in a public place.” TEX.
PENAL CODE ANN. § 49.04(a) (Vernon 2011). If a person has two previous DWI
convictions, the offense is a felony of the third degree. Id. § 49.09(b)(2). As
mentioned, appellant stipulated that he had two prior DWI convictions. As
relevant to this case, “intoxicated” is defined in the Penal Code to mean “not
having the normal use of mental or physical faculties by reason of the introduction
of alcohol . . . or any other substance into the body” or as “having an alcohol
concentration of 0.08 or more.” Id. § 49.01(2)(A)–(B) (Vernon 2011).
C. Analysis
The Penal Code requires the State to prove that a defendant was intoxicated
at the time he was operating the motor vehicle in a public place. See Warren v.
State, 377 S.W.3d 9, 14 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing
PENAL CODE ANN. § 49.04(a)). On appeal, appellant contends that there was no
direct evidence showing he was intoxicated at the time he was operating the
motorcycle.
The Court of Criminal Appeals has recognized that “in order for the
evidence to be sufficient to support a conviction for driving while intoxicated,
10
there must be a temporal link between a defendant’s intoxication and his driving.”
Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). In other words,
there must be some evidence showing a temporal connection between the time of
the defendant’s intoxication and the time of his driving. See Stoutner v. State, 36
S.W.3d 716, 721 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d); Weaver v.
State, 721 S.W.2d 495, 498–99 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d).
Nonetheless, a conviction for driving while intoxicated may be supported solely by
circumstantial evidence, which is as probative as direct evidence. Kuciemba, 310
S.W.3d at 462.
Here, the State presented evidence that appellant had been driving the
motorcycle. The evidence also showed as follows: (1) appellant owned the
motorcycle; (2) appellant told Officer Yates that he had been cut off by a black
SUV, and as a result, had hit the curb with his motorcycle; (3) when Officer Yates
hit the curb with his patrol car while turning around, appellant commented that
Officer Yates had hit the curb just as he had done earlier; and (4) Marcus Taylor
found appellant lying next to the motorcycle; and (5) appellant lived on the other
side of Houston from where the incident occurred.
From this evidence, the jury reasonably could have inferred that appellant
was operating the motorcycle when it hit the curb and overturned in the street. See
Weems v. State, 328 S.W.3d 172, 177 (Tex. App.—Eastland 2010, no pet.)
11
(concluding that evidence was legally sufficient to show appellant was driving
vehicle when it was a vehicle he typically drove and he had it on the night of the
accident, he was found four-tenths of a mile from accident in rural area, and police
officers and EMS personnel did not see anyone else at the accident scene or in
surrounding area); Turner v. State, 877 S.W.2d 513, 515–16 (Tex. App.—Fort
Worth 1994, no writ) (holding sufficient evidence that appellant drove vehicle
when he was found standing next to vehicle within minutes of city power outage
caused by damage to transformer in path of vehicle; steam was spewing from
under hood of vehicle, indicating accident had just happened; and accident
happened late at night so that there were no other possible drivers seen in the area).
The evidence was also sufficient to show that appellant was intoxicated. In
this case, the jury was authorized to find that appellant was intoxicated if his blood
alcohol concentration was 0.08 or more or if he did not have the normal use of his
mental or physical faculties by reason of the introduction of alcohol into his body.
See TEX. PENAL CODE ANN. § 49.01(2).
The State offered the following evidence showing that, at the scene,
appellant did not have the normal use of his mental or physical faculties by reason
of the introduction of alcohol into his body: (1) Paramedic Lester testified that
appellant’s “speech was slurred,” “his gait was a little altered,” “his pupils were
irregular,” and “he smelled like alcohol”; (2) Officer Yates testified that he smelled
12
alcohol on appellant’s breath, observed that appellant’s eyes were red and
bloodshot, and that his pupils were of unequal size; (3) Officer Yates also testified
that when he asked appellant how much he had to drink, appellant responded, “Too
much”; (4) Officer Rivas testified that appellant had slurred speech, poor balance,
appeared confused, and had difficulty answering Officer Yates’s questions,
needing them to be repeated before answering; (5) appellant refused to perform
field sobriety tests; and (6) on the videotape, appellant admits that he has had too
much to drink to be driving. From this evidence, the jury could have reasonably
inferred that appellant was intoxicated at the time the paramedics and police
arrived at the scene shortly after Taylor had found appellant lying in the street next
to his motorcycle. See Cotton v. State, 686 S.W.2d 140, 142–43 & n.3 (Tex. Crim.
App. 1985) (noting evidence of intoxication may include, among other things,
slurred speech, bloodshot eyes, the odor of alcohol on the person, and unsteady
balance or a staggered gait); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—
Houston [1st Dist.] 2000, pet. ref’d) (“The testimony of a police officer that an
individual is intoxicated is probative evidence of intoxication.”).
We now turn to the significant issue in this case: whether the State offered
sufficient evidence to temporally link appellant’s intoxication with his operation of
the vehicle. Relevant to this issue, the evidence showed as follows: (1) Taylor
found appellant lying in the street next to appellant’s motorcycle; (2) although he
13
did not remember if its engine was running, Taylor observed that the motorcycle’s
back wheel was spinning and its headlight was on; (3) Taylor immediately called
9-1-1; (4) Paramedic Lester arrived at the scene about five minutes after Taylor’s
call; (5) as described supra, Lester testified regarding appellant’s physical
demeanor, indicating he was intoxicated; (6) approximately five minutes after
Lester arrived, Officer Yates arrived and observed appellant exhibiting signs of
intoxication, as discussed supra; and (7) Officer Rivas arrived soon after Officer
Yates arrived and also noted that appellant was exhibiting signs of intoxication.
Additionally, the Court of Criminal Appeals has explained that “[b]eing
intoxicated at the scene of a traffic accident in which the actor was a driver is some
circumstantial evidence that the actor’s intoxication caused the accident, and the
inference of causation is even stronger when the accident is a one-car collision
with an inanimate object.” Kuciemba, 310 S.W.3d at 462. Here, Officer Yates
testified that appellant said that “a black SUV had cut him off and that he had
wrecked the motorcycle, laid the motorcycle over.” Appellant can be heard in the
videotape making a similar statement. Officer Yates also stated that appellant had
indicated to him that appellant had hit the curb with his motorcycle. The evidence
also showed that the motorcycle’s signal light was damaged and that appellant had
an abrasion on his elbow.
14
In short, the evidence indicated that appellant had been in a minor accident
with his motorcycle. The only evidence that another vehicle had been involved
was appellant’s statement to Officer Yates. The jury was free to disbelieve the
statement and infer that it was a single vehicle accident. In any event, appellant’s
intoxication at the scene of the accident is circumstantial evidence that he was
intoxicated when the accident occurred and evidence that his intoxication caused
the accident. See id.
Appellant also points to evidence in the record that he asserts undermines an
inference that he was intoxicated at the time he was operating the motorcycle. He
points out that Officer Yates initially claimed that he saw appellant trying to start
the motorcycle at the scene, but then the officer acknowledged that he only saw
appellant sitting on the motorcycle. Appellant cites evidence in the record that the
key to appellant’s motorcycle was never found. And he points to testimony
indicating that the back wheel of a motorcycle can spin even when the
motorcycle’s engine is off, if the motorcycle is in neutral.
While such evidence may have aided appellant’s defense, ample evidence,
as discussed supra, exists in the record to support a finding that appellant operated
the motorcycle while he was intoxicated. Evidence in the record indicates that the
accident had just occurred. Specifically, the back wheel on the motorcycle was
still spinning and the headlight was turned on. Appellant was lying in the street
15
next to his motorcycle. He appeared confused but was conscious. Approximately
five minutes later Paramedic Lester arrived, and approximately 10 minutes later
Officer Yates arrived. A few minutes later Officer Rivas arrives at the scene. All
three gave testimony indicating that appellant did not have normal use of his
mental and physical faculties; that is, appellant was intoxicated.
It was the jury’s responsibility to weigh the evidence pertinent to whether
appellant operated a motor vehicle while intoxicated and to draw reasonable
inferences from that evidence. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. We
cannot conclude that the jury’s implied finding that appellant operated the
motorcycle while intoxicated is irrational. Rather, such a finding is a reasonable
inference that could have been drawn from the evidence.
Moreover, the State was not required to refute appellant’s theory that he
became intoxicated after the accident by drinking alcohol at the scene before he
was found by Taylor. The State is no longer required to exclude all reasonable
hypotheses except that of a defendant’s guilt when a conviction is based on
circumstantial evidence. See Geesa v. State, 820 S.W.2d 154, 160–61(Tex. Crim.
App. 1991) overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573
(Tex. Crim. App. 2000). In any event, the State offered evidence showing that no
alcohol containers were found at the scene.
16
Viewing all the evidence in the light most favorable to the jury verdict, we
conclude that a rational fact finder could have found, beyond a reasonable doubt,
all of the essential elements of the charged offense of driving while intoxicated.
See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. More precisely, the jury could
have found, beyond a reasonable doubt, a temporal link between appellant’s
intoxication and his operation of the motorcycle. See Kuciemba, 310 S.W.3d at
462. We hold that the evidence is sufficient to support the judgment of conviction.
We overrule appellant’s first issue.
Suppression of Statements in Videotape Made After Miranda Warnings
In his second issue, appellant contends that the trial court abused its
discretion when it did not suppress his statements in the videotape following
Officer Yates’s informing appellant of his Miranda rights. Appellant contends that
he did not knowingly and intelligently waive those rights because he was
intoxicated. The trial court conducted a hearing outside the presence of the jury to
determine this issue. Officer Yates and appellant testified. The trial court also
viewed the videotape.
Officer Yates testified that appellant indicated that he understood the rights
that had been read to him. Officer Yates also testified that appellant appeared
coherent. In contrast, appellant testified that he did not understand the rights that
had been read to him because he was “inebriated.”
17
The videotape shows Officer Yates informing appellant of his rights while
appellant is seated in the back of the patrol car. Appellant interrupts the officer
several times stating that he had never, in the past, had these rights read to him.
Appellant tells Officer Yates that he does not need to read him his rights. When
Officer Yates finishes informing appellant of his rights, appellant indicates that he
understood them.
After reading appellant his rights, Officer Yates informs appellant about how
his motorcycle and belongings will be handled. The two discussed how nice the
motorcycle looks, and the officer tells appellant that it appears only the signal
indicator light on the motorcycle has been damaged. Appellant asks Officer Yates
if he may smoke, and the officer tells appellant that he may not smoke now that he
is in handcuffs. Appellant asks the officer what he is “getting him for.” Before
Officer Yates answers, appellant blurts out that he was not riding the motorcycle.
Officer Yates then asks appellant whether he had not stated earlier that an SUV
had cut him off. Appellant indicates that he had not said that. Officer Yates tells
appellant he has a witness that saw him “leaned over” on his motorcycle. Officer
Yates informs appellant that he has been arrested for driving while intoxicated.
Officer Yates states that he has several witnesses who saw appellant driving the
motorcycle. Appellant does not respond to the officer’s statement. Appellant asks
where he is being taken, and the officer says that he is being taken to jail.
18
Appellant also asks the officer to give him a “break.” Officer Yates says that he
cannot do that.
In Miranda v. Arizona, the United States Supreme Court held, “[T]he
prosecution may not use statements, whether exculpatory or inculpatory, stemming
from custodial interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against self-incrimination.”
384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966). The Texas Legislature has
codified these procedural safeguards in the Code of Criminal Procedure. See TEX.
CODE CRIM. PROC. ANN. art. 38.22. Specifically, article 38.22, section 3 prohibits
admission of an accused’s oral statement made as a result of custodial interrogation
unless, among other requisites, the Miranda warnings and one additional warning
set out in article 38.22 were given, and the accused knowingly, intelligently, and
voluntarily waived any rights set out in the warnings. See id. § 3(a).
Regardless of whether appellant was prevented from knowingly and
intelligently waiving his rights due to his intoxication, the only statement that can
be construed to result from interrogation after he was informed of his rights is
appellant’s denial that he had previously told Officer Yates that he was cut off by
an SUV. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689–90
(1980) (defining “interrogation” for Miranda purposes as “express questioning” or
“any words or actions on the part of the police (other than those normally attendant
19
to arrest and custody) that the police should know are reasonably likely to elicit an
incriminating response”).
Assuming, without deciding, that the admission of this statement was
admitted in violation of appellant’s Miranda rights, we conclude that the trial
court’s failure to suppress the statement was harmless error. When confronted
with a constitutional error, such as this, a reviewing court must reverse the
judgment unless it can conclude, while taking into account any and every
circumstance apparent in the record, that the error did not contribute to the
defendant’s conviction or punishment beyond a reasonable doubt. Snowden v.
State, 353 S.W.3d 815, 818, 822 (Tex. Crim. App. 2011) (citing TEX. R. APP.
PROC. 44.2(a)).
Our harm review for constitutional errors is controlled by the Court of
Criminal Appeals’s analysis in Snowden, 353 S.W.3d at 822. We consider (1) the
nature of the error, (2) the extent it was emphasized by the State, (3) the probable
implications of the error, and (4) the weight the jury would likely have assigned to
it in the course of the deliberations. See id. These factors are not exclusive; other
considerations may logically inform our harm analysis. See id. The Snowden
court emphasized, “At bottom, an analysis for whether a particular constitutional
error is harmless should take into account any and every circumstance apparent in
the record that logically informs an appellate determination whether beyond a
20
reasonable doubt [that particular] error did not contribute to the conviction or
punishment.’” Id. (quoting TEX. R. APP. P. 44.2(a)).
Applying these factors, we conclude beyond a reasonable doubt that the
admission of appellant’s statement denying that he had earlier told Officer Yates
that he had been cut off by an SUV did not contribute to his conviction. At the
beginning of the tape, appellant is heard telling Officer Yates how a black SUV
caused him to hit the curb and fall over on his motorcycle. Appellant’s denial that
he had previously told Officer Yates that he had been cut off the road by a black
SUV was not relied on by the State. To the contrary, the State used appellant’s
statement that he had been cut off by an SUV to show that appellant had been
operating the motorcycle. In its closing statement, it is the defense who references
appellant’s denial that he had been driving the motorcycle and points out that
Officer Yates was not being truthful when he told appellant that he had “several
witnesses” who saw appellant driving. If anything, this portion of the videotape
may have helped appellant’s defense because it allowed the defense to highlight
that no one saw appellant operating the motorcycle.
In any event, we can ascertain no meaningful implications of admitting
appellant’s denial that he had earlier told Officer Yates that an SUV ran him off the
road. Such statement may have affected how the jury viewed appellant’s
credibility. However, appellant had voluntarily and spontaneously denied being on
21
the motorcycle before Officer Yates asked him whether he had earlier stated that
an SUV caused the accident. In fact, this spontaneous denial is what prompted
Officer Yates to ask appellant about what he said earlier regarding the SUV. In
other words, appellant had already denied operating the motorcycle before Officer
Yates questioned him about it. When read in context, it is unlikely the jury
assigned much weight to appellant’s denial of his earlier claim regarding the SUV.
Assuming that the trial court erred by overruling appellant’s request to
suppress appellant’s post-Miranda statements in the videotape, we conclude that
any error did not move the jury from a state of non-persuasion to a state of
persuasion on any material issue in the case. See Snowden, 353 S.W.3d at 825
(citing Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010)). Nor is
such error “reasonably likely to have caused such prejudice as to distract the jury
or divert it from its proper fact-finding role.” See id. We are persuaded to a level
of confidence beyond a reasonable doubt that it made no contribution to the jury’s
determination that the appellant was guilty of driving while intoxicated. See id.
We hold that any error by the trial court in denying appellant’s motion to suppress
was harmless error. See TEX. R. APP. P. 44.2(a).
We overrule appellant’s second issue.
22
Retrograde Extrapolation
In his third issue, appellant contends that the trial court abused its discretion
when it permitted Robert Prince, the State’s forensic scientist, to testify regarding
the application of retrograde extrapolation to a hypothetical situation.
Retrograde extrapolation is the computation back in time of the blood
alcohol level; that is, it is the estimation of the blood alcohol level at the time of
driving based on a test result from some later time. Mata v. State, 46 S.W.3d 902,
908–09 (Tex. Crim. App. 2001). In Mata, the Court of Criminal Appeals
explained that a trial court considering the reliability of retrograde extrapolation
should consider (1) the length of time between the offense and the test(s)
administered; (2) the number of tests given and the length of time between each
test; and (3) whether, and to what extent, any individual characteristics of the
defendant were known to the expert in providing his extrapolation. Id. at 916.
These characteristics and behaviors might include, but are not limited to, the
person’s weight and gender, the person’s typical drinking pattern and tolerance for
alcohol, how much the person had to drink on the day or night in question, what
the person drank, the duration of the period of drinking, the time of the last drink,
and how much and what the person had to eat. Id. The court noted that “[t]he
expert’s ability to apply the science and explain it with clarity to the court is a
paramount consideration.” Id. The expert must also demonstrate some
23
understanding of the difficulties, subtleties and risks inherent in the science, and he
must be able to clearly and consistently apply it. Id.
Hypothetical questions are sometimes employed to assist the trier of fact to
understand the evidence or to determine a fact in issue. See, e.g., Taylor v. State,
106 S.W.3d 827, 832–33 (Tex. App.—Dallas 2003, no pet.); see also TEX. R. EVID.
702. Assumptions on which a hypothetical is based need not be limited to those
supported by the evidence; counsel may propound questions that assume facts in
accordance with the theory of the case. Held v. State, 948 S.W.2d 45, 53 (Tex.
App.—Houston [14th Dist.] 1997, pet. ref’d).
Here, the evidence showed that Taylor found appellant lying in the street
next to his motorcycle shortly after 2:00 a.m. Appellant’s blood sample was drawn
later that same morning at 7:45 a.m. An analysis of appellant’s blood revealed that
appellant had blood alcohol content of 0.19 grams of alcohol per 100 milliliters at
that time. The time of appellant’s last drink was not known.
During its direct examination of Prince, the State asked the following
hypothetical question:
[I]f a person took their last drink, hypothetically speaking, at 12:00
noon then 5 1/2 hours later at 5:30 in the evening their blood alcohol
level—their blood was taken and determined to be 0.19, can you say
using the methods you’ve described what their blood alcohol level
would have been at noon when they stopped drinking or an hour after
they stopped drinking, after they reached their maximum?
24
Appellant objected to the question on relevancy grounds because the time of
appellant’s last drink was not known.4 A hearing was held outside the presence of
the jury. At the conclusion of the hearing, the trial court denied appellant’s
objection. The trial court noted that, from the testimony of the State’s witnesses,
the time of appellant’s last drink was known to be before 2:00 a.m.
When the jury returned, the following exchanged occurred between the State
and Prince:
Q. I’m saying, hypothetically, if a person stops drinking at 12:00
noon and then 5 1/2 hours later at 5:30 their blood alcohol level is .19
grams of alcohol per 100 milliliters of blood.
A. Okay.
Q. Okay. So how much alcohol would have been eliminated in
those intervening 5 1/2 hours?
A. It would be a range of approximately .07 to .09.
On re-direct, the State clarified that, in the hypothetical, the person’s blood
alcohol level would have been between 0.26 and 0.28 five-and-one-half hours
earlier.
Assuming, without deciding, that the admission of Prince’s testimony
regarding the hypothetical was an abuse of discretion, we conclude that such error
was harmless error. The erroneous admission of retrograde extrapolation
4
In the trial court, appellant did not argue that other factors identified in Mata
specific to appellant were not considered.
25
testimony is non-constitutional error subject to a harm analysis. Bagheri v. State,
119 S.W.3d 755, 762–63 (Tex. Crim. App. 2003); see also Douthitt v. State, 127
S.W.3d 327, 337 (Tex. App.—Austin 2004, no pet.).
We must disregard the trial court’s error in admitting Prince’s retrograde
extrapolation testimony unless it affected appellant’s substantial rights. See TEX.
R. APP. P. 44.2(b). An appellate court may not reverse a judgment for non-
constitutional error if the court, after examining the record as a whole, has fair
assurance that the error did not influence the jury or had but a slight effect.
Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). We must consider
the entire record, including testimony, evidence, voir dire, closing arguments, and
jury instructions to determine whether the jury was affected. Bagheri, 119 S.W.3d
at 763. We should also consider the nature of the evidence supporting the verdict,
the character of the alleged error and how it might be considered in connection
with other evidence in the case, whether the State emphasized the error, whether
the erroneously admitted evidence was cumulative, and whether it was elicited
from an expert. Id.
Here, retrograde extrapolation evidence was not mentioned or alluded to in
voir dire. In its voir dire, the State discussed the different ways in which
intoxication may be proven, including a showing of a blood alcohol content of 0.08
or greater. The State also discussed impairment with the jury, asking the venire
26
members what types of behavior and physical signs indicate a person is
intoxicated.
In its opening statement, the State told the jury, “And you will hear from the
forensic scientist, Robert Prince, about the results that I told you about, that the
results of the blood alcohol content were .19 which, as you know, is more than two
times over the limit.” However, the State makes no mention of retrograde
extrapolation in its opening statement.
Significantly, in his opening statement, appellant expressly stated that he did
not deny that he was intoxicated. To the contrary, he posited to the jury that the
evidence would show that he became intoxicated after he was run off the road by
the SUV. He told the jury that the evidence would show that, after being run off
the road, he walked to a nearby store and bought a 40 ounce can of malt liquor.
Appellant stated that he then drank the liquor in the next 40 minutes and, by the
time of his encounter with the police, he was intoxicated. During trial, however,
appellant did not offer evidence to establish this defense.
The charge permitted the jury to find intoxication by impairment. As
discussed, to show impairment, the State offered the testimony of the Paramedic
Lester, Officer Yates, and Officer Rivas, who each testified regarding appellant’s
demeanor and physical condition. The State also offered the videotape in which
appellant is heard to say that he has had too much to drink to drive.
27
With respect to showing intoxication based on blood alcohol concentration,
the jury heard, without objection, that appellant’s blood alcohol concentration was
0.19, approximately five-and-one-half hours after he was found by Marcus Taylor.
Prince described for the jury, without objection, how the average person
metabolizes alcohol. He testified that most people “reach their maximum
concentration of alcohol . . . approximately one hour after their last drink. At that
point then you will stop absorbing and then strictly start eliminating.” He
explained that the average elimination is 0.02 grams of alcohol per hour. The State
asked, “[I]f a person reached their maximum—hypothetically speaking, reached
their maximum concentration at .08, it would take the average person four hours to
eliminate that alcohol?” Prince responded, “Approximately, correct.” Thus, the
jury also had this hypothetical information from which to extrapolate past blood
alcohol content.
It is also noteworthy that, on cross-examination, appellant elicited testimony
from Prince making it clear that his testimony was describing a hypothetical
situation. He acknowledged that he had not prepared a retrograde analysis
extrapolation with regard to this particular case. Prince responded affirmatively
when asked whether his hypothetical analysis was “off the cuff” and had not been
prepared before he was presented with the hypothetical fact scenario. Prince also
responded affirmatively when asked, “You didn’t go to the lab and do any sort of
28
analysis to come up with this opinion. . . . [Y]ou’re just kind of taking a
hypothetical and doing the best you can.”
With respect to closing argument, the State discussed the evidence showing
intoxication by impairment. It also discussed the evidence showing intoxication by
blood alcohol content, including the hypothetical conclusions reached by Prince.
Thus, evidence supporting a showing of intoxication under both theories was
emphasized.
What is significant in this case, however, is that appellant’s primary defense
was not lack of intoxication. Rather, his defense was that he was not intoxicated
while he was operating his motorcycle. The hypotheticals posed to Prince had
little effect on the presentation of this defense.
On direct examination, the State did ask Prince if a person who consumed
only 40 ounces of beer could have a blood alcohol content of 0.19 five-and-one-
half hours later. Over the defense’s objection, Prince responded in the negative.
However, when asked whether he knew the alcohol content of malt liquor, rather
than beer, Prince said he did not.
On cross-examination, Prince acknowledged that, if the alcohol consumed
had a higher percentage of alcohol than beer, the outcome of his analysis would be
affected. In addition, if the person had something else to drink before the beer, that
would also affect his analysis. Lastly, he acknowledged that changing the timeline
29
for when the alcohol had been consumed would also change the outcome. Thus,
given the totality of Prince’s testimony on direct and cross-examination, the
hypotheticals heard by the jury likely had little, if any, bearing on appellant’s
defense in this case.
In summary, the retrograde extrapolation testimony in this cause was elicited
from an expert, but there is no indication that the jurors were predisposed to give
such testimony greater weight than the other evidence before them. The retrograde
extrapolation testimony was cumulative of other evidence of intoxication.
Although the prosecutor did remind the jurors of Prince’s testimony during its
closing arguments, it did not claim that his testimony was alone sufficient to
convict. Given the strength of the State’s case and the relative weakness of
appellant’s defensive theory—including his failure to develop the evidence that he
claimed in his opening statement he would show—we can state with fair assurance
that the erroneous admission of the retrograde extrapolation testimony had, at
most, a slight effect on the jury. See TEX. R. APP. P. 44.2(b); see also Douthitt, 127
S.W.3d at 339.
We overrule appellant’s third issue.
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Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).
31