Joel Garcia v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

JOEL GARCIA, § No. 08-19-00274-CR

Appellant, § Appeal from the

v. § 210th District Court

THE STATE OF TEXAS, § of El Paso County, Texas

Appellee. § (TC# 20150D00100)

OPINION

Following a high-speed collision which caused three fatalities, Appellant Joel Garcia was

indicted and later convicted by a jury of three counts of intoxication manslaughter.1 On appeal,

Garcia challenges his conviction in four issues, three asserting erroneous admission of evidence

while the fourth asserts improper argument by the State. Finding no error, we affirm.

1
In a prior appeal, we sustained the State’s sole point of error challenging the trial court’s suppression of blood alcohol
test results. See State v. Garcia, No. 08-15-00264-CR, 2017 WL 728367 (Tex. App.—El Paso Feb. 24, 2017, pet.
granted) (not designated for publication). The Court of Criminal Appeals reversed that decision, holding the trial court
did not abuse its discretion in suppressing the evidence. State v. Garcia, 569 S.W.3d 142, 159 (Tex. Crim. App. 2018).
This case now returns to this Court following a jury trial.
 I. BACKGROUND

The Collision

On December 24, 2014, at about 1:40 a.m., El Paso police officers Jacob Kiesel and Oscar

Gabaldon, who were then working patrol, received a call reporting a traffic collision involving

vehicles on fire at the intersection of Joe Battle Boulevard and Vista Del Sol. Two women, Jennifer

Loera and Estella Renteria, who were riding together in a non-involved vehicle, witnessed the

collision and reported the incident. Loera testified she stopped and called 911 after seeing a

Camaro “zoom” past her, run a red light, and “T-bone” a white vehicle. Loera’s 911 call was

admitted into evidence and played for the jury. Loera also testified that, while the white vehicle

was engulfed in flames, the driver of the Camaro, who was later identified as Garcia, insisted they

should all leave the scene. In the recorded call, Loera can be heard screaming at Garcia, pleading

that if he has a heart, he should not leave the scene. Loera testified that Garcia looked drunk or

intoxicated. Renteria, the second witness, corroborated Loera’s account of Garcia causing the

collision, wanting to leave the scene, and appearing intoxicated.

In addition to patrol officers, other officers were assigned to the call. Officer Adrian

Armendariz of the special traffic investigations unit (STI) soon arrived on scene to investigate and

collect evidence. The STI unit investigates all fatalities occurring within the city. Officer

Armendariz testified at trial providing his opinion as a crash reconstruction expert. He testified he

formed an opinion as to the cause of the crash based on what he saw at the scene, on interviews he

conducted, on statements he reviewed, and the investigation he performed. He also prepared a

report admitted at trial. Armendariz testified three main factors caused the collision: (1) the

2
intoxicated state of Garcia; (2) the failure to stop at the red light by Garcia; and (3) the speed of

Garcia’s vehicle.

The vehicle struck by Garcia’s was then occupied by Joshua Deal (“Joshua”), Isaiah Deal

(“Isaiah”), and Shannon Del Rio (“Shannon”). On impact, both cars erupted into flames, and

Joshua, Isaiah, and Shannon all perished in the crash—later autopsies revealing all three died of

multiple blunt-force injuries, specifically, transected aortas. At the time of the collision, Garcia

was traveling in a Camaro with Enrique Gaucin, his only passenger. Gaucin testified he recalled

regaining consciousness after the collision, getting out of the burning Camaro, and dragging

Garcia—who was then awake and already out of the car—a distance away from the burning

vehicles which he thought were going to explode.

Patrol Officer Kiesel testified, while he was rendering aid to Isaiah, trying to revive him,

he saw Garcia engage in behavior indicative of a flight risk—Garcia was “constant[ly] moving

and looking around for a place to run . . . .” As a result, Officer Kiesel ordered other officers to

prevent him from leaving the scene. When firefighters and paramedics arrived, Isaiah, still

unresponsive, was given CPR and soon taken to the hospital by ambulance. James Gunther, one

of the firefighter EMTs of the El Paso Fire Department who arrived on scene, also testified.

Gunther testified it took a while before firefighters realized there was more than one car involved

in the collision. Gunther described they were unable to easily extinguish the burning vehicles and

ran out of water—300 gallons were used. It was not until about 15-20 minutes after first responders

arrived that they learned that Joshua and Shannon were still inside one of the burning vehicles.

A battalion chief instructed Gunther to check vitals and render aid to Garcia, who was by

then sitting in a police unit. Gunther recalled Garcia seemed mostly concerned about his car.

3
Gunther asked a series of questions, including whether Garcia felt any pain and if he had anything

to drink. Garcia stated he had foot pain and had “[f]ive beers and three shots.” When asked to

describe Garcia’s physical condition, Gunther testified Garcia had wet, glossy, marble-like eyes

and a strong smell of alcohol on his breath. In response to being asked to scale Garcia’s intoxication

level, Gunther scored Garcia on the night of the collision an eight out of ten. Another firefighter

who treated Garcia at the scene, Adrian Palomo, also testified to his encounter and assessment of

Garcia. Palomo stated Garcia initially complained of foot pain, but he did not want to go to the

hospital. Palomo noted on his assessment report that Garcia had a smell of alcohol on his breath,

slurred speech, and glossy, red eyes. When asked at trial, without objection, whether he formed an

opinion as to whether or not Garcia was intoxicated, Palomo responded, “He was intoxicated.”

Palomo then added that Garcia’s degree of intoxication, on a scale of one to ten, was about an

eight.

Officer Andres Rodriguez of the El Paso Police Department arrived on scene at about 1:52

a.m., and after being debriefed, he took custody of Garcia and placed him in the back of his patrol

unit. Before moving forward with arresting Garcia, Officer Rodriguez wanted more information

to determine whether Garcia was the driver and whether he was intoxicated. Officer Rodriguez

testified Garcia had bloodshot eyes, slurred speech, and a strong alcohol odor. A witness positively

identified Garcia as the driver and after being Mirandized, Officer Rodriguez arrested Garcia and

told him he was under arrest for driving while intoxicated. After being placed under arrest, Garcia

refused to take a breath test, claiming he was not the driver. The paramedics then took custody of

Garcia and asked him about any injuries and whether he had been drinking. Officer Rodriguez was

standing close by and heard Garcia say “yes” in response to being asked whether he had been

4
drinking. Garcia never submitted to a breath test, refused to consent to a blood test, and neither the

standard field sobriety tests, nor the horizontal-gaze-nystagmus (“HGM”) test were administered

due to the chaotic nature of the crime scene and because Garcia was limping and complaining of

foot pain. Garcia was ultimately transported to a hospital.

The Hospital

Garcia was admitted to the emergency room at Del Sol Hospital for treatment. Steven

Anaya, a registered nurse working in the emergency room that night, testified he was “flagged . .

. down” by Garcia on two occasions: once to request a blanket, and a second time for a glass of

water. Anaya testified “the entire room, emanating from the patient, he reeked of alcohol. His

speech was heavily slurred, his eyes were bloodshot.” Anaya testified on a scale of one to ten, he

rated Garcia’s intoxication level at least at a six. Jamie Salcido, a registered nurse assisting with

trauma at Del Sol, testified she stood at the head of the bed while a doctor performed an

assessment; she recalled that Garcia did not have visual injuries on his person. Salcido testified

Garcia’s eyes were red and his breath smelled of alcohol. From a nursing point of view, Salcido

formed an opinion, from observing Garcia, that he appeared intoxicated. Having already

determined that Garcia did not have neurological damage, Salcido testified she believed Garcia’s

slurred speech and behavior was due to intoxication and not from any injury. Sean Petty, also

working a shift as an EMT at Del Sol, assisted with the transfer of Garcia from the ambulance

stretcher to the hospital stretcher. Petty testified he observed that Garcia’s eyes looked “sluggish,”

he had a strong smell of alcohol on his breath, slurred speech, and was very confused and asked

repetitive questions. Eventually, Garcia was released into Officer Rodriguez’s custody and

transported to the police station.

5
 The Trial

At trial, several other law enforcement and medical officials testified. Several employees

of the bars where Garcia was drinking that night, specifically, the waitresses who had served

Garcia, testified to his intoxication and behavior on the night of the collision. Dozens of

photographs of the crime scene and medical record documentation were admitted into evidence,

as were photographs of Joshua, Isaiah, and Shannon, with their respective loved ones, which were

taken before the collision.

Also admitted into evidence were jail phone call recordings, in which Garcia discussed his

ability to “drive well” on prior occasions when he had been intoxicated.

At the close of evidence, the jury found Garcia guilty of three counts of intoxication

manslaughter. The jury assessed punishment on each conviction at sixteen and a half years

confinement. Subsequently, when assessing punishment, the trial court ordered two of the counts

to run consecutively, and the third count to run concurrently. This appeal followed.

II. ISSUES ON APPEAL

Garcia presents four issues on appeal, with the first three challenging evidentiary rulings.

Garcia asserts the trial court erred when it admitted, over his objection, the following evidence:

(1) testimony of a firefighter who quantified his purported level of intoxication at the time of the

collision; (2) a written statement from Loera regarding whether Garcia appeared to be intoxicated

at the scene of the collision; and (3) one of his jail-call statements. In his fourth and final issue,

Garcia asserts he was harmed by the State’s jury argument during closing argument, which he

claims amounted to an improper plea to a juror.

6
 III. DISCUSSION

A. Evidentiary Rulings

In Issues One through Three, Garcia asserts the trial court erred in its admission of certain

evidence over his objections.

1. Standard of Review

A trial court’s decision to admit or exclude evidence is reviewed under an abuse of

discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). In challenges

regarding the admission of evidence, an appellate court will not disturb a trial court’s ruling unless

that ruling falls outside the zone of reasonable disagreement. Id. Accordingly, all three evidentiary

issues, will be reviewed under this standard. See Hammons v. State, 239 S.W.3d 798, 806 (Tex.

Crim. App. 2007) (“[A] trial court’s determination that a prior consistent statement is admissible

because the cross-examination suggested or implied an assertion of recent fabrication or improper

motive is reviewed only for an abuse of discretion.”); see also Knight v. State, 457 S.W.3d 192,

201 (Tex. App.—El Paso 2015, pet. ref’d) (extraneous-offense evidence reviewed for an abuse of

discretion).

The test for abuse of discretion is not whether, in the opinion of the reviewing court, the

facts present an appropriate case for the trial court’s action. Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We are tasked with determining whether the trial court

acted without reference to any guiding rules and principles, or stated otherwise, whether the act

was arbitrary or unreasonable. Id. at 241-42.

2. Issue One: Admission of the firefighter’s assessment of Garcia’s purported level
of intoxication

In his first issue, Garcia asserts the trial court committed error when it admitted testimony

7
from a firefighter who quantified Garcia’s level of intoxication at the time of the collision.

Essentially, Garcia contends the firefighter—a lay witness—should not have been permitted to

testify as to the extent of his purported intoxication, by means of providing a rating on a scale of 1

to 10, which he argues only expert witnesses are permitted to so provide.

a. Applicable Law

Rule 701 of the Texas Rules of Evidence provides that a lay witness may testify in the form

of opinion so long as the opinions are rationally based on the witness’s perception and help in the

determination of a fact in issue. TEX. R. EVID.701. If the witness perceived events and formed an

opinion that a reasonable person could draw from the facts, the first part of rule 701 is met.

Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). If the opinion is helpful for the

trier of fact or aids in the determination of a fact in issue, the second part of rule 701 is met, and

the opinion is admissible. Id. It is well established that the opinions of lay witnesses are admissible

concerning various subjects, including physical condition and intoxication. See Denham v.

State, 574 S.W.2d 129, 131 (Tex. Crim. App. 1978) (noting that lay opinion is admissible

concerning “sanity, insanity, value, handwriting, intoxication, physical condition health and

disease, estimates of age, size, weight, quantity, time, distance, speed, identity of persons and

things”) [emphasis added].

b. Analysis

Garcia asserts the trial court erred by admitting opinion testimony regarding his level of

intoxication because, according to him, a witness cannot testify about a person’s level of

intoxication without first establishing that he or she is an expert. We disagree.

While testifying at trial, El Paso firefighter James Gunther described his involvement in

8
responding to the scene on the night of the collision. When asked to describe his interaction with

Garcia, Gunther stated he initially asked him if he was in pain and if he had anything to drink.

Garcia responded that he had foot pain and that he had consumed “[f]ive beers and three shots.”

When asked to describe Garcia’s physical condition, Gunther testified his eyes “looked like wet

marbles. They were glossy . . . . I could tell that he had some issues going on.” The following

exchange occurred next between the prosecutor and Gunther, which was soon interrupted by

objections from Garcia’s counsel:

Q. [By the State] And based on your observations of [Garcia], did you have
an opinion as to whether or not he was intoxicated?

A. [Gunther] Yes.

Q. And what is your opinion?

A. That he was.

Q. Okay.

A. He was AOB. He had a strong hit -- he had a strong smell of alcohol . . .
. AOB, alcohol on breath . . . .

Q. . . . Say on a scale from one being tipsy or intoxicated to a small degree,
buzzed maybe, and ten being falling over drunk, passed out; how would you
quantify him on a scale of one to ten?

[Defense Counsel]: I’m going to object to this form of question, Your
Honor, as well as under 702, as well as under relevance and 403.

[The State]: May I respond?

[The Court]: Yes.

[State]: Your Honor, this question isn’t being offered under Rule 702. This
isn’t an expert opinion. I’m asking him for his lay opinion. I’m asking him
to the degree that he believes that the Defendant was intoxicated. He’s
already testified that he believed him to be intoxicated. Now, my question
is to what degree, in this witness’s opinion, the Defendant was intoxicated.

9
 [Defense Counsel]: This goes beyond the scope of what’s
permitted under 701 in the case law regarding witness’s ability to
testify as a lay witness, as to their intoxication, as far as a level of
intoxication. There’s nothing to support that.

[The Court]: Overruled.

Go ahead, [the State].

Q. [By the State] And so Firefighter Gunther, again . . . -- zero being sober,
one being somewhat intoxicated and ten being falling over or passed out,
very drunk; how would you quantify it in your opinion?

A. [Gunther] Probably an eight if I had to use that.

Garcia now argues this testimony was inadmissible because Gunther was not a qualified

expert witness, and therefore, should not have been able to testify about his level of intoxication.

Garcia, relying on Emerson, claims opinion testimony “about a person’s precise level of

intoxication must be based upon either a blood test or breath test . . . all of which involve

sophisticated scientific machinery and chemicals.” See Emerson v. State, 880 S.W.2d 759, 768-69

(Tex. Crim. App.), cert. denied, 513 U.S. 931 (1994). In this instance, we disagree with Garcia’s

assertion and find his reliance on Emerson to be misplaced.

In Emerson, the Court of Criminal Appeals analyzed whether the admissibility of testimony

concerning an HGN test qualified as scientific evidence that served as a reliable indicator of

intoxication. Id. at 765. The Court of Criminal Appeals held the HGN test to be a reliable indicator

of intoxication. Id. at 768. However, it could not conclude that the HGN technique was a

sufficiently reliable indicator of precise blood alcohol content (BAC). Id. at 769. Thus, based on

Emerson, an officer may testify concerning a defendant’s performance on an HGN test but may

not correlate such performance to a precise BAC based on the angle of onset of nystagmus. Id.

10
 Responding, the State argues that Emerson is distinguishable, and we agree. Here, not only

was an HGN test never performed on Garcia, but there were also no standard field sobriety tests

(SFST) conducted at all. See Wisdom v. State, 39 S.W.3d 320, 323 (Tex. App.—Waco 2001, no

pet.) (finding Emerson inapplicable where the complained of evidence and testimony did not

attempt to correlate the appellant’s performance on any SFSTs with a precise blood alcohol

concentration). Second, the State argues, which we find compelling, that the use of a numerical

scale as a basis for comparison in how intoxicated Garcia appeared “did not serve to elevate

Gunther’s opinion to that of an expert because the jury would have been fully capable of

understanding his testimony without the assistance of someone with specialized knowledge.” See

Osbourn, 92 S.W.3d at 537 (“It is only when the fact-finder may not fully understand the evidence

or be able to determine the fact in issue without the assistance of someone with specialized

knowledge that a witness must be qualified as an expert.”). Here, Gunther responded to the scene

to render aid, and his testimony was based on what he perceived while treating Garcia based on

his personal experience of having previously observed intoxicated persons. Because intoxication

is an elemental factor of the charged offense, Gunther’s testimony, if believed by the jury, was

helpful in its determination of a fact issue in the case. Gunther’s lay opinion testimony was

admissible, and the trial court did not abuse its discretion in admitting it under Rule 701.

Moreover, error, if any, was cured and therefore harmless. At trial, Adrian Palomo, a

firefighter who also rendered aid to Garcia, testified to his observations. The following exchange

occurred between Palomo and the prosecutor:

Q. . . . Based on your interactions with this defendant, with Mr. Garcia your patient
that evening, did you form an opinion as to whether or not he was intoxicated when
you were interacting with him?

11
 A. Yes.

Q. Okay. And what is your opinion?

A. He was intoxicated.

Q. Okay. How -- to what degree would you say that he was intoxicated?

A. From a scale of one to ten?

Q. Sure.

A. About an eight.

Moreover, Steven Anaya, a registered nurse who interacted with Garcia in the emergency

room, had a similar exchange with the prosecutor:

Q. In the five minutes that you spent with [Garcia], did you have an opportunity to
say or to form an opinion as to whether or not he was intoxicated?

A. That was apparent to me the minute I smelled the alcohol and the odor grew . . .
stronger as I got closer. And as he was speaking with me it was clear that it was on
his breath, and as well as the slurred speech. It was quite apparent.

...

Q. And so on a scale of one to ten . . . how would you quantify his degree of
intoxication in your opinion?

A. I would say it was at least a six.

In our view, the testimony of firefighter Palomo and nurse Anaya are essentially the same

as Gunther’s. Both Palomo and Anaya quantified Garcia’s intoxication on a scale of one to ten,

without objection. Because Garcia failed to object to Palomo’s and Anaya’s testimony as to how

intoxicated Garcia appeared on a scale of one to ten, any error in the admission of Gunther’s lay

opinion was cured, and therefore harmless. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim.

App. 2003) (finding “An error in the admission of evidence is cured where the same evidence

12
comes in elsewhere without objection.”).

Accordingly, Garcia’s first issue is overruled.

3. Issue Two: Admission of witness Loera’s written statement

In his second issue, Garcia asserts the trial court erred when it admitted witness Jennifer

Loera’s on-scene written statement (State’s Exhibit 34), as a prior consistent statement under Rule

801(e)(1)(B) of the Texas Rules of Evidence. We disagree.

a. Applicable Law

Texas Rule of Evidence 801(e)(1)(B) gives substantive, non-hearsay status to prior

consistent statements that are “offered to rebut an express or implied charge against the declarant

of recent fabrication or improper influence or motive.” Hammons, 239 S.W.3d at 804 (citing TEX.

R. EVID. 801(e)(1)(B)). As explained by the Texas Court of Criminal Appeals, this Texas Rule of

Evidence mirrors that of Federal Rule of Evidence 801(d)(1)(B). Id. (citing FED. R. EVID.

801(d)(1)(B)). Consequently, Hammons instructs that federal decisions provide helpful analysis of

Texas Rule of Evidence 801(e)(1)(B) and its federal counterpart. Id. As Hammons notes, the

federal rule has been interpreted by the United States Supreme Court as providing that four

requirements must be met for prior consistent statements to be admissible: (1) the declarant

testifies at trial and is subject to cross examination; (2) there is an express or implied charge of

recent fabrication or improper influence or motive of the declarant’s testimony by the opponent;

(3) the proponent offers a prior statement that is consistent with the declarant’s challenged in-court

testimony; and (4) the prior consistent statement is made prior to the time that the supposed motive

to falsify arose. Id. (citing Tome v. United States, 513 U.S. 150, 156-58 (1995)). With either rule,

there is a minimal foundation requirement of an implied or express charge of fabrication or

13
improper motive; “there need be only a suggestion” that the witness consciously altered his

testimony in order to permit the use of earlier statements that are generally consistent with that

testimony at trial. Id. The fact that there need only be a suggestion of alteration or fabrication

affords the trial court substantial discretion in admitting prior consistent statements under

801(e)(1)(B). Id. at 804-05. Because there is no bright line rule, the ultimate inquiry for an

appellate court is to determine whether the cross-examiner’s questions or the tenor of that

questioning would reasonably imply an intent by the witness to fabricate. Id. at 805.

b. Analysis

Garcia maintains admission of the prior consistent statement was inadmissible hearsay

because it was not offered for the purpose of rebutting a charge of recent fabrication or improper

influence or motive. On the night of the collision, Loera, a witness to the collision, gave two

statements to authorities—a video-recorded interview and a written statement. The recorded

statement was admitted into evidence and played for the jury, and the written statement was also

admitted into evidence and read to the jury.

While still on scene, Loera provided a written statement to authorities in which she stated,

“driver [Garcia] seemed drunk and was worried about his car. . . .” While still on scene and after

providing her written statement, Loera offered a second statement, which was video recorded. In

her recorded statement, Loera did not mention Garcia’s purported intoxication.

On cross-examination, the following exchange between Loera and defense counsel

occurred:

[Defense counsel]: I’d like for you to do me a favor, Ms. Loera. I’d like for you to
look through there [a transcription of her video-recorded statement] and I’d like for
you to find where you say, I saw the driver of the vehicle and he appeared to be
intoxicated. Please find it.

14
 [State]: Your Honor, I’m going to object. He’s missing part of the statement. She
gave two statements that night. This is the other half of her statement.

[Defense counsel]: I’m asking about that right there right now. I’m going to get to
that in a second.

[The Court]: Overruled for now . . . .

...

[Defense counsel]: In that video recorded statement, where do you say that [Garcia]
appeared -- he appeared to me, Jennifer Loera, to be drunk or intoxicated or
borracho?

[Loera]: It’s not on here. They didn’t ask me that.

On re-direct, the State sought to admit Loera’s written statement as a prior consistent

statement under Rule 801(e)(1)(B) of the Texas Rules of Evidence. A bench conference followed,

and the State argued the statement would rebut the impression defense counsel left with the jury

that Loera never told authorities, while on scene, that Garcia was drunk. Defense counsel denied

he had implied Loera changed her testimony and asserted that he only intended to point out that

Loera’s “recollection at that time was flawed.” When questioned by the prosecutor, Loera

confirmed she had formed the opinion that Garcia “looked drunk,” and that is what she said on the

night of the collision.

On appeal, the State counters, arguing defense counsel’s questions asking Loera how many

times she met with prosecutors before trial, whether she had consumed alcohol before giving her

statements, whether she had bought alcohol for Renteria—who was underage—and whether she

thought she was sober enough to drive, all implied that Loera had recently fabricated her trial

testimony because she did not want to be prosecuted for driving while intoxicated or for purchasing

alcohol for a minor. At trial, defense counsel also asked Renteria whether prosecutors had told her

15
she would not be prosecuted for consuming alcohol while underage, and whether she had been

afraid of getting in trouble for consuming alcohol. In his closing argument, defense counsel argued

that the first time Loera stated Garcia appeared intoxicated was at trial—after meeting with

prosecutors.

We agree with the State and find the record supports that Loera’s written statement was

offered to rebut an implied charge of recent fabrication. We find the trial court’s assessment of

defense counsel’s tenor and questioning reasonably deduces that the totality of the cross-

examination implied that Loera’s trial testimony of Garcia seeming intoxicated was a recent

fabrication of her written testimony. We therefore find the trial court did not abuse its discretion

in admitting the written statement. See Hammons, 239 S.W.3d at 808 (finding, although the

questioning was subtle, the force of the cross-examination and the tone and tenor of the

questioning, combined with the purpose of the impeaching party, the surrounding circumstances,

and the interpretation put on them by the trial court, the trial court did not abuse its discretion in

concluding appellant was making an implied charge of recent fabrication during cross-

examination).

We further agree with the State that Loera’s written statement was properly admitted to

correct the false impression that she never told officers at the scene that Garcia appeared

intoxicated. As already established, we find that defense counsel’s cross-examination of Loera

created a false impression that she did not tell authorities that Garcia appeared intoxicated at the

scene. Loera’s written statement, which stated Garcia appeared intoxicated, proved she told

authorities at the scene that Garcia appeared intoxicated, and was thus properly admitted to correct

16
the false impression created by defense counsel during cross-examination.2

The trial court did not abuse its discretion in admitting Loera’s written statement.

Accordingly, Issue Two is overruled.

4. Issue Three

In his third issue, Garcia argues his jail-call statement (State’s Exhibits 72 and 72A) 3

should not have been admitted because it contained improper character evidence and constituted

inadmissible prior bad act evidence pursuant to Texas Rules of Evidence 403 and 404.

a. Applicable Law

Evidence of extraneous offenses or prior bad acts is generally inadmissible during the guilt-

innocence phase to establish a defendant acted in conformity with his character by committing the

charged offense. Knight, 457 S.W.3d at 202. However, evidence of extraneous offenses or prior

bad acts may be admissible for other purposes, such as to prove motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b).

This list is neither mutually exclusive nor collectively exhaustive. See De La Paz v. State, 279

S.W.3d 336, 343 (Tex. Crim. App. 2009). When a defendant raises a defensive theory, he “opens

the door” for the State to offer rebuttal testimony in the form of an extraneous offense if the

extraneous offense has common characteristics with the offense for which the defendant was on

2
We also agree with the State that Loera’s written statement was properly admitted under the rule of optional
completeness. Defense counsel was relying on only half of Loera’s statements to authorities at the scene, and pursuant
to the rule of optional completeness, the State was entitled to correct the false impression by offering the written
statement in which she told police Garcia appeared intoxicated. The rule of optional completeness is a recognized
exception to the hearsay rule that allows the introduction of otherwise inadmissible evidence when that evidence is
necessary to fully and fairly explain a matter “opened up” by the adverse party. TEX. R. EVID. 107; see Walters v.
State, 247 S.W.3d 204, 217-18 (Tex. Crim. App. 2007).
3
State’s Exhibit 72 is a recording of a jail call wherein Garcia and the other participant speak in Spanish, while State’s
Exhibit 72A is a written translation of the call.

17
trial. Rule 404(b) permits the admission of extraneous-offense evidence to prove elemental facts

of the charged offense. See Werner v. State, 412 S.W.3d 542, 549 (Tex. Crim. App. 2013); see

also Hedrick v. State, 473 S.W.3d 824, 830 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“A

defendant’s conduct after the commission of a crime which indicates a consciousness of guilt[] is

admissible to prove that he committed the offense. . . . Texas courts recognize consciousness of

guilt as an exception to rule 404(b)’s general prohibition against evidence of extraneous offenses.”)

[internal quotations omitted].

b. Analysis

Garcia references State’s Exhibits 72 and 72A, arguing his statement that he had driven

drunk in the past contained “zero probative value outside its value as inadmissible prior bad act

evidence.” He further maintains the balancing test for prior bad act evidence is only applicable

when the prior bad act evidence is being offered for some other reason, which in this case, it was

not, because the State offered it as an admission of guilt.

At trial, before opening statements, Garcia objected to the admission of his statement, “I

have been drunk and I still drive well,” contained in a jail phone call recording. The objection was

on the basis of Rules 403 and 404 of the Texas Rules of Evidence, which the court overruled.

Garcia renewed his objections during trial when State’s Exhibit 72—the jail phone call statement,

“I have been drunk and I still drive well,”—was admitted into evidence and published to the jury.

i. Rule 404

The State counters by arguing the statement falls within the exceptions listed in rule 404(b)

and was offered to prove an elemental fact of the charged offense. Additionally, extraneous-

offense evidence may be admissible if the accused, through an opening statement or cross-

18
examination, “opens the door” to the admission of such rebuttal evidence. See De La Paz, 279

S.W.3d at 343. The State, both at trial and now on appeal, maintains the complained-of statement

was in no way used to show Garcia acted in conformity with his character on the night of the

accident. Rather, the State argues, the statement, “I have been drunk and I still drive well,” when

considered in the context with the subsequent statement, “. . . but this time I don’t know why all

of a sudden my mind went blank,” was tantamount to an admission of guilt that he was intoxicated

in this instance—an element of the charged offense.

In this instance, we agree with the State that if the trial court had not admitted the

complained-of statement, the jury would have been prevented from interpreting Garcia’s

admission of being intoxicated this time. We find the complained of statement provided necessary

context to Garcia’s admission of guilt that he was intoxicated this time, which is an element of the

charged offense. See Werner, 412 S.W.3d at 549 (holding that rule 404(b) permits the admission

of extraneous-offense evidence to prove elemental facts of the charged offense); see also Hedrick,

473 S.W.3d at 830 (holding that Texas courts recognize “consciousness of guilt” as an exception

to rule 404(b)’s general prohibition against extraneous-offense evidence).

Furthermore, we also agree that Garcia opened the door to his own admission by suggesting

other, non-intoxication-related causes for the crash, such as Garcia being distracted, falling asleep,

or the possibility of a head injury. See Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008)

(a defense opening statement may open the door to the admission of extraneous-offense evidence

to rebut a defensive theory presented in that opening statement); Wingfield v. State, 197 S.W.3d

922, 925 (Tex. App.—Dallas 2006, no pet.) (finding that vigorous cross-examination can, by itself,

place in issue a non-conformity purpose under rule 404(b)).

19
 ii. Rule 403

Rule 403 also favors admission of the complained-of statement. In a rule 403 analysis,

courts 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 fact

finder from the main issues, (5) any tendency of the evidence to be given undue weight by a fact

finder 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. See Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim.

App. 2006).

The statement was relevant as an admission that Garcia was intoxicated at the time of the

collision and to rebut his defensive theory of other, non-intoxication-related causes for the crash

and visible signs of intoxication that witnesses had testified to. See Zuliani v. State, 903 S.W.2d

812, 824 (Tex. App.—Austin 1995, pet. ref’d) (“a confession is like no other evidence as it comes

from the actor himself and is the most probative and damaging evidence that can be admitted

against a defendant”). Also, it is important to emphasize the State did not argue, or insinuate, that

the jury should convict Garcia because he had driven drunk in the past, but rather, it argued the

statement was necessary to convey to the jury that Garcia admitted he was intoxicated this time.

We find the probative value of the statement did not substantially outweigh any danger of unfair

prejudice.

Even if the trial court erred in the admission of the statement, we further conclude the error

was cured by the admission of essentially the same statement admitted in another jail phone call

20
recording. In State’s Exhibit 72—the complained-of statement—Garcia said, “I have been drunk

and I still drive well . . . but this time I don’t know why all of a sudden my mind went blank.” This

statement was admitted into evidence. In State’s Exhibit 74—the statement we find substantially

similar to the complained-of statement—Garcia said, “That [] day, me [] and Kike went drinking,

and I’m telling you, man I don’t know how . . . I mean . . . I’ve been drunk and I still drive well,

right? . . . I mean, I don’t understand how I blacked out, man. All of a sudden.” This statement was

also admitted into evidence and Garcia did not object to the admission of the similar statement in

his opening briefing on appeal. In Garcia’s reply brief, he argues, for the first time, the fact that he

did not explicitly point to the particular exhibit in his initial brief does not mean the objection was

not referenced and it thus “defies reason” to conclude otherwise. Aside from the absence of an

explicit objection to the similar statement, throughout his initial brief, Garcia repeatedly refers to

the complained-of statement in the singular, and it is not our impression that his appellate objection

referred to both jail phone call statements admitted at trial. See TEX. R. APP. P. 38.1(i) (“The brief

must contain a clear and concise argument for the contentions made, with appropriate citations to

authorities and to the record.”). Nonetheless, because we find the two statements substantially

similar, we find the trial court did not abuse its discretion in admitting either of the jail-call

statements—State’s Exhibits 72, 72A, 74, 74A.

Accordingly, Issue Three is overruled.

B. Improper Jury Argument

In his fourth and final issue, Garcia claims the trial court erred in not sustaining his

objections to improper jury argument. Specifically, Garcia complains he timely objected to the

prosecutor speaking directly to a juror and imploring her to rely upon her own expertise as a nurse

21
(i.e., evidence not received during the trial), as opposed to only the evidence presented at trial.

1. Applicable Law and Standard of Review

“The purpose of closing argument is to facilitate the jury in properly analyzing the evidence

presented at trial so that it may arrive at a just and reasonable conclusion based on the evidence

alone, and not on any fact not admitted in evidence.” Milton v. State, 572 S.W.3d 234, 239 (Tex.

Crim. App. 2019). It is well recognized that proper jury argument falls within four areas: (1) a

summation of the evidence, (2) reasonable deductions from the evidence, (3) answer to argument

of opposing counsel, and (4) a plea for law enforcement. Id.; Hernandez v. State, No. 08-98-00016-

CR, 2001 WL 9929, at *6 (Tex. App.—El Paso Jan. 4, 2001, pet. ref’d) (not designated for

publication). The focus has always been upon encouraging the jury to decide the case on the

evidence in front of it rather than encouraging juries to reach a decision based upon information

outside the record. Milton, 572 S.W.3d at 240.

When examining challenges to jury argument, reviewing courts consider the remark in the

context in which it appears. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988). Counsel

is allowed wide latitude, without limitation in drawing inferences from the evidence, so long as

the inferences are reasonable, fair, legitimate, and offered in good faith. Id. To constitute error, the

jury argument must be extreme or manifestly improper, or inject new and harmful facts into

evidence. Id. Generally, the bounds of proper closing argument are left to the sound discretion of

the trial court. Milton, 572 S.W.3d at 240.

Generally, erroneous rulings related to jury argument are treated as non-constitutional error

within the purview of TEX. R. APP. P. 44.2(b). Martinez v. State, 17 S.W.3d 677, 692 (Tex. Crim.

App. 2000). Improper jury argument is not reversible if it is merely harmless. Mosley v. State, 983

22
S.W.2d 249, 259 (Tex. Crim. App. 1998) (en banc). Because harmless error does not warrant

reversal, we must consider three factors in our analysis, if error is found: (1) the severity of the

misconduct (i.e., the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) the

measures adopted to cure the misconduct (i.e., the efficacy of any cautionary instruction by the

judge); and (3) the certainty of conviction absent the misconduct (i.e., the strength of the evidence

supporting the conviction). Id.

2. Analysis

At trial, evidence was introduced that Garcia generally complained of only foot pain and

those providing aid testified they saw no visible head injuries. Evidence also established Garcia

had a Glasgow Coma Scale (“GCS”) score of 15, which tended to show he had no neurological

deficits or disorientation. Jamie Salcido, a registered nurse who treated Garcia on the night of the

collision, testified that after ruling out neurological damage based on the GCS score, “the only

other way that [Garcia] would be, you know, with unbalanced, slurred speech, smelled of alcohol

is because he’s been drinking.” During closing argument, while referencing Salcido’s testimony,

defense counsel argued, “[a]bout an hour after the accident: Neurologic, alert, oriented times three,

normal speech, no motor deficits. That’s reasonable doubt.” Reading from Garcia’s medical

records and referring to his GCS score, defense counsel further stated, “Motor, normal, sensory,

normal. But if you look right here at the bottom: Gaze, normal. That’s reasonable doubt.”

Responding to defense counsel’s argument during its closing, the prosecutor argued:

[State]: . . . I want to point out the medical records. I want to take you back to Jamie
Salcido’s testimony. She says it. She says -- [defense counsel] is misconstruing her
testimony. And I’m looking at you because I know you’re my nurse. He is
misconstruing her testimony.

[Defense]: Your Honor, I’m going to object to that last comment. She’s inviting

23
 one of the jurors who’s a nurse to draw on her -- things that are not in evidence and
they’re instructed not to do that.

[Court]: Overruled.

On appeal, Garcia argues the trial court erred when it overruled his objection to the

prosecutor’s attempt to appeal to a specific juror, a nurse, to consider her own expertise when

evaluating testimony that came from a witness who was also a nurse. On review of the State’s

closing argument in context, we disagree. Although the prosecutor stated she was looking at one

of the jurors because she knew she was a nurse, the record does not establish the prosecutor advised

the nurse-juror to use her expertise in evaluating the evidence. After the remark was objected to,

the prosecutor focused her argument on Salcido’s testimony, in which Salcido explained that after

ruling out neurological injuries, she believed Garcia’s signs of intoxication were due to him being

intoxicated. Remaining within permissible areas of argument, the prosecutor answered opposing

counsel’s argument referencing medical findings which had ruled out neurological deficits, and

further asserted reasonable deductions from the evidence. See Milton, 572 S.W.3d at 239 (proper

jury argument consists of: (1) summation of the evidence, (2) reasonable deductions from the

evidence, (3) answer to argument of opposing counsel, and (4) plea for law enforcement; and a

trial court does not abuse its discretion in overruling an objection where the complained-of

argument simply calls upon jurors to use their common sense and was a reasonable deduction from

the evidence). The State remained within the bounds of permissible argument by arguing that

defense counsel had misconstrued Salcido’s testimony in an attempt to establish reasonable doubt.

We further conclude that even if the trial court erred in overruling Garcia’s objection, any

such error was harmless. In conducting the harm analysis under Mosley, we find the three factors

favor the State. Mosley, 983 S.W.2d at 259 ((1) the severity of the misconduct (the magnitude of

24
the prejudicial effect of the prosecutor’s remarks); (2) the measures adopted to cure the misconduct

(the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent

the misconduct (the strength of the evidence supporting the conviction)).

a. First Mosley Factor

Again, we find it notable that the prosecutor did not expressly direct the nurse-juror to use

her expertise, and following Garcia’s objection, the remainder of her argument was proper. We

agree with the State and find the prosecutor’s remarks led to, if at all, an ambiguity. See Randolph

v. State, 353 S.W.3d 887, 891 (Tex. Crim. App. 2011) (finding that courts should view the State’s

alleged improper argument from the jury’s standpoint and resolve any ambiguities in the language

in favor of it being permissible). When reviewing the remark in context, the prejudicial effect of

the prosecutor’s remarks was slim to none, considering the prosecutor called upon the jurors to use

their common sense, not their expertise. We do not find the statement extreme enough to warrant

automatic reversal. The first factor does not weigh in Garcia’s favor.

b. Second Mosley Factor

The jurors were repeatedly instructed by the trial court and the State that the only evidence

they were allowed to consider was evidence properly admitted. At the commencement of trial,

after the jury was seated, the court provided the following instruction:

Do not tell other jurors your own personal experiences or other people’s
experiences. For example, you may have special knowledge of something in the
case such as business, technical, or professional information. You may even have
expert knowledge or opinions . . . Do not tell jurors about it. Telling other jurors
about it is wrong because it means the jury will be considering things that were not
admitted in court.

After Garcia objected to the alleged improper jury argument, the prosecutor summarized

Salcido’s testimony, made reasonable deductions from that evidence, and responded to opposing

25
counsel’s argument as follows:

[State]: They are looking for physical, neurological injuries on [Garcia]. And just
like we’ve seen it countless times, our drunk is fine. [Salcido] says that there is no
neurological damage. He doesn’t have injuries that would cause him to be acting
the way he’s acting. She says specifically that the reason he’s acting the way he’s
acting has to be because of something else because it’s not due to his neurological
functions. It’s not due to injuries from the car crash. She’s saying based on his
demeanor, based on his smell, that the only reason he is acting this way is because
he’s intoxicated . . . . There is a difference, what they are evaluating, whereas what
we are evaluating as a criminal system.

Moreover, in its charge to the jury, the trial court instructed as follows:

The evidence consists of the testimony and exhibits admitted in the trial. You must
consider only the evidence admitted to reach your decision. You must not consider,
discuss, or mention anything that is not admitted as evidence in the trial. You must
not consider or mention any personal knowledge or information you may have
about any fact or person connected with this case that is not evidence in the trial.

We find the court provided ample instructions to the jury to cure the error, if any, and the

record contains no evidence to suggest the nurse-juror necessarily relied on her expertise. The

second factor does not weigh in Garcia’s favor.

c. Third Mosley factor

Lastly, we view the evidence of Garcia’s intoxication as being overwhelming, while there

was no contrary evidence supporting any indication of neurological injury. Several witnesses

testified to Garcia’s intoxication, and that he only complained of foot pain—among these witnesses

the record includes: Loera and Renteria, Gunther, Officer Rodriguez, Salcido, as well as other

medical professionals who were involved in Garcia’s treatment, as well as employees who worked

at the bar and testified to having served Garcia alcohol before the collision. The medical records

also prove he suffered no neurological damage—specifically, his GCS score of 15. It was

reasonable for the jury to deduce that Garcia’s bloodshot eyes, slurred speech, and smell of alcohol

26
on his breath, among other signs of intoxication, were due to him being intoxicated on the night of

the collision. On this record, the certainty of conviction absent the purported misconduct is strong.

Thus, the third factor weighs heavily against Garcia.

In sum, even if the trial court erred in overruling Garcia’s objection, any such error was

harmless. Garcia’s fourth issue is overruled.

IV. CONCLUSION

For all the foregoing reasons, we affirm.

GINA M. PALAFOX, Justice
October 20, 2021

Before Rodriguez, C.J., Palafox, and Alley, JJ.

(Do Not Publish)

27