Ashlee J. Straker v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

ASHLEE J. STRAKER, §
No. 08-14-00111-CR
Appellant, §
Appeal from the
v. §
Criminal District Court No. 3
THE STATE OF TEXAS, §
of Tarrant County, Texas
Appellee. §
(TC# 1310222D)
§

OPINION

Appellant Ashlee Straker was convicted by a jury of intoxication manslaughter and an

accident involving death arising from the failure to stop and render aid following an auto accident,

and was sentenced to concurrent 30 and 20-year prison terms, respectively. 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

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.

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.
2
 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 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

manslaughter involving Kipasa’s death, and one count of failure to stop and render aid to Kipasa.2

2
Appellant was also convicted of intoxication assault involving the injuries suffered by Donte Pierce. Appellant also
appealed that conviction, which we considered separately in Appeal No. 08-14-00112-CR. Appellant filed a single
brief covering both appeals. Appellant’s second issue on appeal relates solely to Appeal No. 08-14-00112-CR, and
we do not address that issue in this opinion.
3
Appellant pled “true” to a repeat offender allegation in the indictment, and the trial court sentenced

Appellant to 30 years in prison on the intoxication manslaughter offense and to 20 years in prison

on the accident involving death offense arising from the failure to stop and render aid, with the

sentences to run concurrently.

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

4
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 manslaughter, “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

5
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 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

6
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 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

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
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

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

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
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

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.).

9
 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.

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

10
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 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

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
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 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.

12
 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,

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

13
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 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 Manslaughter

14
 In Issue One, Appellant contends the evidence was insufficient to support his conviction

for intoxication manslaughter, 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

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).

15
 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 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 manslaughter are that a person operates a motor

vehicle in a public place, is intoxicated, and by reason of that intoxication causes the death of

another by accident or mistake. TEX. PENAL CODE ANN. § 49.08 (West 2011); see also Auldridge

v. State, 228 S.W.3d 258, 260 (Tex.App. – Fort Worth 2007, pet. ref’d) (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 Kipasa’s consequent death.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

7
Appellant claims the State failed to present sufficient evidence that Kipasa died as the result of the injuries he
suffered in the accident. The evidence is undisputed, however, that Kipasa died as the result of the accident. The
investigating officers found Kipasa’s body at the scene of the accident, and the State’s expert explained how he was
partially ejected from the vehicle, run over, and then fully ejected from the vehicle. Further, a forensic pathologist
testified that she conducted an autopsy on Kipasa’s body and determined that Kipasa had died as the result of the
multiple injuries he suffered in the accident.
16
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 referred to as

the “impairment” theory and the “per se” theory, respectively. Kirsch, 306 S.W.3d at 743.

The charge instructed the jury that it could find that Appellant was intoxicated under either

statutory theory of intoxication, and his conviction will 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 it was free to assess Florez’s

credibility and the credibility of the other witnesses at trial, in determining whether Appellant was

21
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 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).
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 (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
23
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 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

24
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

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

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.
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
25
 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).

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

One 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

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
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)).

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).

27
 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, 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.

15
Xanax is a trade name for the generic tranquilizer, alprazolam.

28
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

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

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
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

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

30
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 a death “without giving his name and address to

any person, and without rendering reasonable assistance to Lokuekim Kipasa when it was then

apparent that Lokuekim Kipasa 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

(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

31
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 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.

32
 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 Kipasa, and that he was therefore

under no duty to remain at the scene to either exchange information with Kipasa 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 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

33
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 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

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.
34
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

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 Kipasa 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 Kipasa in the wreckage, all of which would have suggested that Kipasa had been thrown

from the vehicle. Despite all this, Appellant left the scene of the accident and did not seek

assistance for Kipasa 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

35
failed to comply with the provisions in the statute requiring him to render assistance to Kipasa.

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

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

36
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.

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.

37
 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 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

38
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 (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

39
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 (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

40
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, 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.

41
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”).

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

42
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.

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

43
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

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

44
(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 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:

45
“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

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

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.
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.
46
 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

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

47
 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, 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).

48
 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

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.”

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 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

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

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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 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.
20
See Gigliobianco, 210 S.W.3d at 641-42.
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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 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

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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,

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.

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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 STEVEN L. HUGHES, Justice
September 30, 2016

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)

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