1505-15
N0. PD-1505-15
ORIGINAL
IN THE
COURT OF CRIMINAL APPEALS
RECEIVED
OF TEXAS COURT OF CRIMINAL APPEALS
DEC 28 2015
ALFRED LEE RICE, Abel Acosta, Clerk
Petitioner,
V
THE STATE OF TEXAS,
Appellee
PETITION FOR DISCRETIONARY REVIEW FILED IN
COURT OF CRIMINAL APPEALS
on appeal from the liTH AbeJAcoste,Clerk
COURT OF APPEALS,
EASTLAND, TEXAS
CAUSE NUMBER # 11-13-00302-CR
ALFRED LEE RICE
TDCJ-ID NO. # 1888258
ALLEN B. POLUNSKY UNIT
3872 FM 350 SOUTH
LIVINGSTON, TEXAS-77351
ORAL ARGUMENTS REQUESTED
IDENTITY OF JUDGE AND COUNSEL'S
TRIAL JUDGE: HONORABLE GEORGE D. GILLES
142nd DISTRICT COURT
MIDLAND COUNTY, TEXAS
DISTRICT ATTORNEY: TERESA CLINGMAN
500 N. LORRAINE
MIDLAND COUNTY 79701
TRIAL COUNSEL: MARK DETTMAN
415 W. WALL ST.
MIDLAND, TEXAS 79701
APPEAL COUNSEL: WAYNE FROST
203 W. WALL ST. Suite # 205
MIDLAND, TEXAS 79701
TABLE OF CONTENTS
IDENTITY OF JUDGE AND COUNSELS . . . . , _i
TABLE OF CONTENTS ii
INDEX OF AUTHORITIES . iii
STATEMENT REGARDING ORAL ARGUMENT . . . . , _1
STATEMENT OF THE CASE . 1,2
STATEMENT OF PROCEDUAL HISTORY _2
GROUNDS FOR REVIEW:
GROUND NUMBER ONE . 2_
DID THE 11TH COURT OF APPEALS DECISION OF PETITIONER CLAIM THAT
THERE WAS INSUFFICIENT LEGAL EVIDENCE IN CONFLICTING WITH DECISIONS
OF THE COURT OF CRIMINAL APPEALS ON THE SAME ISSUE.
GROUND NUMBER TWO 6
WHETHER THE 11TH COURT OF APPEALS DECIDED AN IMPORTANT QUESTION
OF STATE AND FEDERAL LAW IN A WAY THAT CONFLICT'S WITH APPLICABLE
DECISIONS OF THE COURT OF CRIMINAL PROCEDURE AND THE U.S. SUPREME COURT
GROUND NUMBER THREE 8
WHETHER THE 11TH COURT OF APPEALS DECIDED AN IMPORTANT QUESTION
OF STATE AND FEDERAL LAW ON PETITIONER'S CLAIM THAT THE STATE IM
PROPERLY ENGAGED IN BOLSTERING IN A WAY THAT WITH DECISIONS BY THIS COURT
GROUND NUMBER FOUR .'. . . . . 10
RESTATING GROUND NUMBER THREE
CONCLUSION / PRAYER 12
INMATE DECLARATION 13
CERTIFICATE OF SERVICE 13
11
INDEX OF AUTHORITIES
CASES:
BERGER V. UNITED STATES:
295 U.S. 78 (1935) . 11
CANTU V. STATE:
939 S.W. 2d 627, 633 (Tex. Crim. App. 1994)... 11
COFFEY V. STATE:
435 S.W. 3d 834 (Tex. App. Texarkane 2014) 8
COOK V. STATE,
844 S.W. 2d 687, 727 (Tex. Crim. App. 1998) \2
ESTER V. TEXAS:
381 U.S. 532, 540, 94 S. Ct. 1628, 1631, 14 L. ed. 2d 543 (1965) 10
IN RE WINSHIP:
397 U.S. 358, 364 (1970) 4,6,9,
JACKSON V. VIRGINIA:
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed 2d 560 (1979)
MATA V. STATE:
46 S.W. 3d 902 (Tex. Crim. App. 2001).... 3,4,6,
MOSLEY V. STATE:
348 S.W. 3d 435 (Tex. App. Austin 2011)
MINNESOTA V. CARTER:
529 U.S. 83, 119 S. Ct. 469, 142 L. Ed 2d 378 (1998) 5,6
MISSOURI V. McNEELY:
133 S. Ct. 1552 (2013) 7
MUMPHERY V. STATE:
155 S.W. 3d 651 (Tex. App. Texarkana 2005)
STATE V. WEBER:
347 S.W. 3d 381 (Tex. App. San Antonio (2008)
ROUSSEAU V. State:
855 S.W. 2d 666, 681 (Tex. Crim. App. 1993)..
TEMPLE V. STATE:
342 S.W. 3d 572 (Tex. App. Houston [14TH Dist] 2010) n
TODD V. STATE:
598 S.W. 2d 286 (Tex. Crim. App. 1980) 12
UNITED STATES V. KOJAYAN:
8 F. 3d 1315, 1323 (9TH Cir. 1993) .. 11
iii
INDEX OF AUTHORITIES CONT.
WOOD V. STATE:
13 S.W. 3d 100, 102 (Tex App. Texarkana 2000 pet. Ref'd) 10
TEXAS CONSTITUTION ART. 1, Sect. 9 ... j_. 7
TRANSPORTATION CODE 724.012 7
ABA MODEL RULE OF PROFESSIONAL CONDUCT 3-8 3J.
ABA MODEL RULE OF PROFESSIONAL CONDUCT 4-4,1 11
ill -
NO.
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
ALFRED LEE RICE,
Petitioner,
V.
THE STATE OF TEXAS,
Appellee,
PETITION FOR DISCRETIONARY REVIEW
r
TO THE HONORABLE COURT OF APPEALS:
Petitioner respectfully presents his Petition for Discre
tionary Review (PDR) seeking relief for a decision by the 11TH
Court of Appeals that contrary to decisions by this Court on
the same issue.
STATEMENT REGARDING ORAL ARGUMENT
Petitioner respectfully ask that Oral Arguments be held in
this proceeding in order to amplify the issues presented in
this petition.
STATEMENT OF THE CASE
The facts are as laid out in petition were that on or about
November 16, 2012, petitioner was driving his automobile on
Lamesa Rd. in Midland County, Texas. Also, there was a passenger
1.
in the car by the name of Benita Harmon, who died as a result
from injuries that occurred from an accident when petitioner
struck an automobile at Walnut Lane and Lamesa Rd., when a car
driven by Ivan Hearnes ;(RR 7:102). Hearne was injured, but sur
vived (RR 7:25-26). Petitioner allegedly had a blood-alcohol
level of .271 according to a blood-draw taken at the hospital
without his consent. It alleged that petitioner was traveling 78
miles per hour in a 35 mile per hour zone (RR 7:37, 184). Peti
tioner had the right of way, his head-lights were on, and he had
the right of way regardless of his speed. The accident was actu
ally cause by Hearnes, because there's no evidence of anything
that blocked his view of petitioner's vehicle.
PROCEDUAL HISTORY
Petitioner was charged with "Aggravated Assault with a Deadly
Weapon," in Count One of a Four Count indictment, and "Intoxica
tion Manslaughter in Count Four, the court assessed punishment at
50 years confinement, and 60-years in Count Two. Petitioner
appealed to the 11TH Court of Appeals, Cause # 11-13-00302-CR.
The conviction was affirmed on, Ul_iOLD^A JbU>J^-/)5- No rehearing
was sought, on the \Q day of December. Petitioner forwards
this Petition for Discretionary Review to the Court of Criminal
Appeals in Austin, Texas by First Class U.S. Mail.
GROUND FOR RELIEF NO. ONE
DID THE 11TH COURT OF APPEALS DECISION OF PETITIONER CLAIM THAT
THERE WAS INSUFFICIENT LEGAL EVIDENCE IN CONFLICT WITH DECISIONS
OF THE COURT OF CRIMINAL APPEALS ON THE SAME ISSUE.
Petitioner was arrested for DWI based on contents of (BAC)
results that was illegally taken, he was released two weeks later,
2.
but later arrested and charged with Aggravated Assault with a
Deadly Weapon, and Intoxication Manslaughter using the same
(BAC) test results.
Petitioner argued on appeal that, the law states that to ob
tain a conviction for DWI, there must be proof that at the time
of the accident, was petitioner intoxicated, the State abandoned
the "intentional and knowing" portions of Count One, the aggra
vated assault with a deadly weapon.
The 11TH Court of Appeals overlooked an unassigned fact,
"Actus Non Facit Reum Nisi Mens Sit Rea," an act does not make
the actor guilty unless the mind be guilty; that is unless the
intent be criminal, the intent, and the act must both concur to
constitute the crime, (citing Lord Keyon, CJ. 7. Term 514;
English Common Law).
The appellant counsel failed to challenge that issue, but
focused on the fact that there was no proof to show that peti
tioner was intoxicated at the time of the accident.
There was no evidence to prove that at the time of the acci
dent, whether petitioner was at .08 or below, nor whether it was
greater. In Mata V. State, 46 S.W. 3d 902 (Tex. Crim. App. 2001),
the Texas Court of Criminal Appeals explained "retrograde . extra
polation is the computation back in time of the blood alcohol
level that is, the estimation of the level at the time of driving
based on a test result from some later time." Id. 908. The court
stated that a particular absorption rate depends on a variety of
factors, including inter alia, food in the stomach, gender,
weight, age amount consumed, and period of consumption. Id.
. - . 3.
at 909-10.
The State lacked this vital information which was necessary
to get an accurate extrapolation result. Considering time of the
accident, and the period of time it took before the illegal blood
draw. Such information was vital, yet•the State failed to present
evidence that proved petitioner was intoxicated at the time of
the accident as required by due process. See In Re Winship,
397 U.S. 358, 364 (1970).
The smell of alcohol on petitioner's breath, slurred speach,
or bloodshot eyes only demonstrated a clue of intoxication. Look
ing at the facts of this case show that applicant was just trapp
ed inside of his car. also, he was not consciously aware of thing
at that moment because of the accident. And he was confused as a
result, which didn't mean he lost the normal use of his faculties
as a result of being intoxicated.
The 11TH Court of Appeals erred by not agreeing that the cul
pable mental state related to the conduct elements involved in
this particular offense was not proven because as alcohol is con
sumed, it passes from the stomach and intestines into the blood,
a process referred to as absorption. When the alcohol reaches the
brain and nervous system, the characteristic signs of intoxica
tion begin to show. Mata V. State, 46 S.W. 3d at 909.
Alcohol concentration raises at least more than a hour and a
half after the last drink. In other words a person could possible
be as much as a .06 less than a .09, two hours and ten minutes
earlier, but had a retrograde extrapolation determination been
considered in this case, alone with the requirements to measure
4-
the absorption rate, the results would have shown that petitioner
may have had a drink, but was not intoxicated when the driver
pulled out in front of him, because looking at all the facts, it
clearly show that the driver of the other vehicle more than
likely was doing something that distracted him from seeing peti
tioner approaching the intersection, or possibly sleep. Both
vehicles are equiped with what's known as the black box, which
keeps data to show what occurred (10) seconds before the accident.
This was vital to show if the driver actually stopped at the stop
-sign or to actually determine the speeds both drivers were go
ing. The accident was caused when the driver pulled into the
intersection when petitioner was approaching with his head lights
on. Even though the 11TH Court of Appeals agreed that petitioner's
(BAC) level was consistent with someone being intoxicated while
at the hospital, it does not support a finding that the (BAC) at
the time of the accident was consistent enough to show what his
(BAC) was at the time of the accident. Article 6701, 1-5 § 1
(Vernons).
Petitioner argued on appeal also about voluntariness of the
blood draw, bringing it to the attention of the llTH Court of
Appeals that he never signed a DIC-24 card, nor give consent
for the blood draw.
The llTH Court of Appeals decision should be reversed based on
the fact that it fail to meet the due process requirements that
mandatory by under the Fourteenth Amendment of the United States
Constitution, requiring proof beyond a reasonable doubt, it con
flicts with the Supreme Court's decision in Minnesota V. Carter,
5.
529 U.S. 83. Also the Texas Court of Criminal Appeals decision
in Mata V. State, 46 S.W 3d 902. A careless driver cannot pull in
front of a speeding car, cause an accident, and not be considered
guilty just because the driver of the other vehicle smelled like
alcohol, because even if petitioner had been going the speed
limit, the fact still would remain the same, which is, the driver
was distracted, and pulled out in front of the petitioner causing
the accident, and the llTH Court of Appeals decision should
be reversed.
GROUND FOR RELIEF NO- TWO
WHETHER THE llTH COURT OF APPEALS DECIDED AN IMPORTANT QUESTION
OF STATE AND FEDERAL LAW IN A WAY THAT CONFLICT 'S WITH APPLICABLE
DECISION S OF THE CODE OF CRIMINAL PROCEDURE AND THE U S SUPREME
COURT.
The Court of Appeals erred their review of petitioner's claim
where he challenged the admission of test results of an illegal
blood draw, in which he argues the blood specimans were illegally
drawn.
The Fourth Amendment prohibits unreasonable searches and
seizures. Minnesota V. Carter, 525 U.S. 83, 88, 119 S. Ct. 469,
142 L. Ed. 2d 373 (1998). The Supreme Court has also agreed that
it's a violation of the Fourth, and Fifth Amendment.
Petitioner never agreeded to giving a blood speciman, nor sign
the DIC-24 warning. Petitioner argued that his conviction was
based solely upon the lack of evidence resulting in the denial of
due process as required by the United States Constitution in both
the Sixth and Fourteenth. See In Re Winship, 397 U.S. 358, 364
(1970).
6.
The Court of Appeals was asked whether the blood draw lawful
or nor, citing Missouri V. McNeely, 133 S. Ct- 1552 (2013), where
the court stated that "... where officers can reasonably obtain
a search warrant for a blood draw without significantly undermin
ing the efficacy of the search, the 4TH Amendment mandates they
do so." The officers had sufficient opportunities to obtain a
search warrant prior to obtaining petitioner's blood, because
prior to him being transported by EMS to the hospital, officers
suspected he was intoxicated, and had ample time to seek a warr
ant while he was being transported to the medical facility.
The records show that the defense counsel did object to State
presenting the blood test results (RR 7:200). The objection was
based on the fact that, applicant never consented to a blood draw,
there was no warrant. Also, there was nothing suggesting the
"efficacy" of obtaining a search warrant would undermine the
blood.
Drawing blood from a suspect is search and seizure within the
scope of the Fourth Amendment to the United States Constitution,
and Article 1, Section 9 of the Texas Constitution. V.T.CA.
Transportation Code 724-012 (b)(1).
The records established that petitioner was in the hospital
following the automobile collision when his blood was drawn with
out his affirmative consent, and not being under arrest at the
time his blood was drawn. Mosely V. State, 348 S.W. 3d ,435 (Tex.
App. Austin 2011).
The Court of Appeals in this case failed to consider decisions
made by their sister court's on this issue, and concede to the
7.
fact that the officers could not constitutionally do a blood
draw absent consent, or a warrant. The implied consent law pro
vides a framework for driving-while-intoxicated defendants absent
a search warrant which was not followed here, there was no exi
gent circumstances, there was no arrest at the time, and officers
lacked probable cause to do a blood draw, content (BAC) test
without petitioner consent. Coffey V. State, 435 S-W. 3d 834 (Tex.
App. Texarkana 2014); State V. Weber, 347 S-W. 3d 381 (Tex. App.
San Antonio 2008). The question of whether police employed rea
sonable means, and reasonable procedures in taking petitioner's
blood, the answer would be no, because their actions cannot be
justified requiring the court to reverse the llTH Court of Appeals
decision, base on several fact's including the fact that peti
tioner was not officially charged with aggravated assault with a
deadly weapon, or intoxication manslaughter, he was arrested on
driving while intoxicated, and released two-weeks later. The
penalty for refusing (BAC) testing at that time did not require
or give officers authority to do a blood draw without consent,
it would have resulted in suspension of his driver's license,
or possible jail time.
GROUND FOR RELIEF NO. THREE
WHETHER THE llTH COURT OF APPEALS DECIDED AN IMPORTANT QUESTION
OF STATE AND FEDERAL LAW ON PETITIONER'S CLAIM THAT THE STATE
IMPROPERLY ENGAGED IN BOLSTERING IN A WAY THAT CONFLICT WITH
DECISIONS BY THIS COURT.
Petitioner presented facts to the llTH Court of Appeals suffi
ciently pointing out the claim he made that during closing remarks
the prosecutor began improperly bolstering by testifying as
8.
a fact-witness-.
The records show that in one instance the prosecutor told the
jury that, "when you have all the evidence in front of you the
presumption of innocence goes away as all the evidence continue
to pile up." (RR 9:107), petitioner also argued that the prosecu
tor argued a rhetorical question of whether petitioner was using
and/or exhibiting a deadly weapon, then answered his own question
for the jury stated "absolutely" (RR 9:108).
Petitioner provided case law established by this Court which
states that a prosecutor may not bolster their case during summa
tions, which is fundamental law, also a prosecutor may not give
personal opinions because jurors may assume or infer that such
opinion is based on information hot known to them, but is known
to the prosecutor.
Before a trial begin, most jury members are taunted because
of the shows on television such as law and order; CSI; and tends
to think that because a person has been arrested and charged with
a crime they did something., but in the real world that's not the
case. In this case the prosecutor took advantage of that by impro
perly bolstering, leading the jury to believe petitioner is
guilty absent the proof required by the U.S. Supreme Court in
In Re Winship, 397 U.S. 358 (1970). See also Jackson V. Virginia,
443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed 2d 560 (1979).
The law states that bolstering occurs when one party introduce
evidence for purpose of adding credence or weight to earlier unim-
peached offered by the same party. Mumphrey V. State, 155 S.W. 3d
651 (Tex. App. Texarkana 2005); Rousseau V. State, 855 S.W. 2d
9.
666, 681 (Tex. Crim. App. 1993). See also Wood V. State, 13 S.W.
100, 102 (Tex. App. Texarkana 2000 pet- Ref'd).
GROUND FOR RELIEF NO. FOUR
RESTATE GROUND NUMBER THREE: WHETHER THE llTH COURT OF APPEALS
DECIDED AN IMPORTANT QUESTION OF LAW IN A WAY THAT CONFLICTS
WITH BOTH STATE AND U.S. SUPREME COURT DECISIONS
Petitioner continues to point out the error by the prosecutor
during closin'g argument which cannot be said to had been harmless,
because petitioner presented the llTH Court of Appeals with re
cords, and references showing the misconduct by the prosecutor.
The records shows the prosecutor improperly told the jury that
petitioner was "absolutely" guilty of reckless driving, "no doubt
about it" (RR 9:108-109), he also stated "you're gonna find him
guilty of Count 1." (RR 9:108-109), and "you sure as heck better
find him guilty of regular manslaughter, because he did it."
(RR 9:118) .
Petitioner pointed out those statements in the previous ground
because the error not only bolstering, but improper, because it
highly prejudicial. The prosecutor took the position as a fact
witness by clearly crossing the lines of the four acceptable
parameters of acceptable closing argument stating as a fact,
"He's guilty." (RR 9:118) .
In Ester V. Texas, 381 U.S. 532, 540, 94 S. Ct. 1628, 1631,
14 L. Ed 2d 543 (1965), the U.S. Supreme Court stated "a prosecu
tor should refrain from arguments which would divert the jury
from its duty to decide the case on the evidence," which was a
requirement ignored in this case. Also ignored by the llTH Court
of Appeals. The solemn purpose of endeavoring to ascertain truth
10.
... is the sine qua non of a fair trial.
The summation of the case by the prosecutor cut to the very
heart of the Due Process Clause by diverting the jury's attention
from the ultimate question of guilt/innocence which was the cen
tral concern.
The llTH Court of Appeals as part of the Department of Justice
has an obligation to prevent such prosecutorial misconduct. See,
United States V. Kojayan, 8 F. 3d 1315, 1323 (9th Cir. 1993).
See also, Berger V. United States, 295 U.S. 78 (1935). Their job
is not to just win, but to win fairly, staying within the rules.
Berger, 295 U.S. at 88.
The HTh Court of Appeals decided on a matter of law in a
manner that's contrary to decisions by the United States Supreme
Court on the same issue. The prosecutor in this case acted with
flagrant misbehavior, presenting substantial prejudice to the
outcome of the case violating Model Rule 3.8, and 4-4,1 of the
American Bar Association Model Rules of professional Conduct,
depriving petitioner's Sixth and Fourteenth Amendment rights
guaranteed by the United States Constitution.
The prosecutor's improper arguments which were precipitated by
overzealous prosecution deprived petitioner of substantial rights.
Temple V. State, 342 S.W. 3d 572 (Tex. App. Houston [14TH Dist]
2010). In light of the records as a whole, the arguments by the
prosecutor was extreme, and manifestly improper, violative of a
mandatory statute, the argument was willful and a calculated
effort on the part of the State to deprive petitioner of a fair
and impartial trial. Cantu V. State, 939 S.W. 2d 627, 633 (Tex.
1.1.
Crim. App. 1999); Cooks V. State, 894 S.W. 2d 697, 727 (Tex.
Crim. App. 1992); Todd V- State, 598 S.W. 2d 286 (Tex. Crim.
App. 1980).
Reversal is required in this case as a result of the misconduct
by the prosecutor.
PRAYER
Petitioner pray that the Court sustain the petition base on
the fact that the llTH Court of Appeals decision was wrong because
its clear the blood draw was done prior to charges being formally
filed, and absent consent or a warrant- There was no DIC-24 card
signed agreeing to allow (BCA) testing., which violated peti
tioners Fourth Amendment protection. Also, there's no evidence
that show's petitioner was at fault for the accident, but there
is evidence that proved he T-Boned a vehicle that pulled out in
front of him. Regardless of his speed, the only evidence counsel's
were not seeking was, what distracted the driver causing him to
pull in front of petitioner's vehicle. His phone records, or phone
were examined to determine whether or not he was texting or talk
ing when he pulled away from a stop sign in front of petitioner's
vehicle.
The prosecutor sought to win only, not seek justice which was
shown by the improper argument's conveying his personal belief
that petitioner was guilty to bolster the credibility of his case.
The facts are clear in this case that one, intoxicated or not, it
didn't cause the driver to pull out in front of his vehicle, or
cause him to be distracted, this case should be reversed and
remanded with an order for acquittal.
12.
C&kaA &a. Q&aTM^
Alfred Lee Rice # 188825J
INMATE DECLARATION
I, Alfred L. Rice , an inmate of the Texas Department of Criminal
Justice, presently at the Allen Polunsky Unit, declare on this
the /_£2___ day of December 2015, that all claims presented in
this petitioner are true and correct.
Alfred Lee Rice # 1888258
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Petition for
Discretionary Review (PDR) was sent by First Class Mail to the
HTh Court of Appeals on this the |Q day of December 2015.
^&W?<«^
Alfred Lee Rice # 1888258
Alfred Lee Rice # 1888258
Allen B. Polunsky Unit
3872 FM 350 South
Livingston, Texas 77351
13.
Opinion filed October 30, 2015
In The
eietentj) Court of gapeate
No. 11-13-00302-CR
ALFRED LEE RICE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CR41089
MEMORANDUM OPINION
The jury convicted Alfred Lee Rice of two offenses: aggravated assault with
a deadly weapon and intoxication manslaughter.1 The trial court found two
enhancement allegations for prior felony convictions to be "true" and assessed
punishment at confinement for fifty years for the aggravated assault conviction and
confinement for sixty years for the intoxication manslaughter conviction. The trial
'Each offense had a different victim.
court ordered both terms of confinement to run concurrently and sentenced
Appellant. Appellant raises four issues on appeal. We affirm.
I. The Charged Offenses
The grand jury indicted Appellant for aggravated assault with a deadly
weapon, a motor vehicle. The grand jury alleged that Appellant recklessly caused
bodily injury to "Ivan Hearn[e]"2 when Appellant operated a motor vehicle that
struck Hearne. The grand jury also alleged that Appellant used and exhibited a
deadly weapon, a motor vehicle, during the commission of the offense. A person
commits the offense of aggravated assault with a deadly weapon when he recklessly
causes bodily injury to another person and, in doing so, uses or exhibits a deadly
weapon. Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2014), § 22.02(a)(2)
(West 2011).
The grand jury also indicted Appellant for intoxication manslaughter. The
grand jury alleged that Appellant, while he was intoxicated, operated a motor vehicle
occupied by Benita Harmon and that Appellant, by reason of his intoxication, caused
the death of Harmon when his vehicle collided with Hearne's vehicle. A person
commits the offense of intoxication manslaughter if the person operates a motor
vehicle in a public place while intoxicated and, by reason of that intoxication, causes
the death of another by accident or mistake. Id. § 49.08(a).
II. Evidence at Trial
Appellant drove his vehicle, a Buick Roadmaster, northbound on Lamesa
Road in Midland late one November night, and did so at a high rate of speed that
was well in excess of the posted 35-mile-per-hour speed limit. Around the same
time, Hearne drove his vehicle westbound on Walnut Street where he came to a stop
2We note that the indictmentalleged injury against "Ivan Hearn." At trial, however, Ivan testified
that he spelled his last name "Hearne." We will use the latter spelling throughout the rest of the opinion.
2
sign at the intersection of Walnut Street and Lamesa Road.3 After Hearne came to
a complete stop, a vehicle passed by him as it traveled southbound on Lamesa Road.
After the vehicle passed, Hearne looked both ways again and saw no traffic traveling
from either direction on Lamesa Road.
Hearne began to cross Lamesa Road to continue westbound on Walnut Street,
but he never got through the intersection. As Hearne pulled into the intersection, he
looked to his left and saw headlights very close. The front of Appellant's vehicle
collided with the driver's side of Hearne's vehicle. Hearne next remembered a man
awakening him while Hearne was still in his vehicle. The man told Hearne that
Hearne had been hit by a vehicle that "had to have been going about 100 when [it]
hit [him]." Hearne believed that he did not see the vehicle because it was traveling
so fast. Harmon, a passenger in Appellant's vehicle, sustained injuries in the
collision and died shortly afterward.
Chad Simpson, a sergeant with the Midland Police Department, responded in
less than a minute to the scene of the collision. Another Midland police officer, Juan
Gutierrez, also responded to the scene. Sergeant Simpson testified that, as he neared
Appellant's vehicle, he smelled an odor of alcohol; he also noted that, when he spoke
to Appellant, Appellant's speech was slow and "very slurred." Appellant admitted
to Sergeant Simpson that he had been drinking. Appellant and Hearne both were
taken via ambulance to the hospital, but neither had suffered life-threatening injuries
in the collision. Officer Gutierrez testified that he smelled alcohol on Appellant's
breath when he rode in the ambulance with Appellant.
Once Appellant was at the hospital, Clark Owen, an officer with the Midland
Police Department, interviewed him. Officer Owen testified that Appellant had a
strong odor of alcohol on his breath, that his speech was slurred, and that he appeared
3There was no stop sign on Lamesa Road and no stop light at the intersection.
3
intoxicated. Appellant admitted to Officer Owen that he had been drinking, but
Appellant claimed that he had not consumed enough to get him drunk. While
officers interviewed Appellant at the hospital, Tami Hamill, a nurse, drew six vials
of Appellant's blood.
Hamill testified that the first vial she filled was for the Midland Police
Department. After she filled the first vial, she handed it directly to Officer Gutierrez.
The first vial was sent to Marissa Silva, a chemist with the Texas Department of
Public Safety laboratory in Midland. Silva performed a "whole blood" test on the
blood and testified that Appellant's blood alcohol content was 0.258 grams of
alcohol per 100 milliliters of blood present.
Hamill testified that she drew blood into the other five vials as ordered by
emergency room physicians. These five vials were sent to hospital personnel, who
conducted several tests including a "serum test" on the blood. The results of that
test indicated that Appellant's blood alcohol level was 0.27.4
Richard Moore, an officer with the Midland Police Department and an expert
in traffic collision reconstruction, conducted an investigation ofthe collision. Based
on his investigation and expertise, Officer Moore created a "to-scale" diagram of the
scene of the collision. After Officer Moore had completed his calculations on speed
as part of his reconstruction of the collision, he concluded that, when the two
vehicles collided, the speed of Appellant's vehicle was at least 78.01 miles per hour,
while the speed of Hearne's vehicle was 17.17 miles per hour. Officer Moore further
testified that the posted speed limit on Lamesa Road was 35 miles per hour and that
the posted speed limit on Walnut Street was 30 miles per hour.
4The slightly different results from the blood analyses, as described by Hamill and found in the
medical records of Appellant and as completed by Silva, are attributable to the different types of tests that
were performed. Silva testified that she would expect a serum test, as used by the hospital, to reflect a
slightly higher, but insignificantly different, amount of alcohol present than the "whole blood" test that
Silva used to test Appellant's blood.
At trial, outside the presence ofthe jury, Officer Gutierrez testified that, before
Appellant's blood was drawn, he read Appellant the statutory warnings on the DIC-
24 form5 that outlined the consequences of a refusal to submit to a breathalyzer test
or to give a blood specimen. The record does not explicitly indicate that Appellant
refused, but Officer Gutierrez testified that he relied on the mandatory blood draw
statute6 that directed a draw of Appellant's blood. Officer Gutierrez further testified
that, even though he could have done so, he did not obtain a warrant for the blood
draw. Instead, Officer Gutierrez chose to rely solely on the implied consent
provision of the Transportation Code.
III. Issues Presented
Appellant asserts that there was insufficient evidence to prove that Appellant
was intoxicated at the time of the collision and that, as such, the evidence was
insufficient to support his conviction for intoxication manslaughter. Second, he
asserts that the trial court erred when it admitted evidence of an illegal blood draw
conducted without a warrant or an applicable exception to the warrant requirement.
In his third and fourth issues, he asserts that the State engaged in improper bolstering
during closing argument and made other improper comments during its closing
argument.
IV. Standards ofReview
We review the sufficiency of the evidence under the standard of review set
out in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—
Eastland 2010, pet. refd). Under the Jackson standard, we examine all of the
5A DIC-24 form is a Department of Public Safety form that provides the warnings outlined in
Section 724.015 of the Texas Transportation Code. See TEX. TRANSP. CODE ANN. § 724.015 (West Supp.
2014).
6See id. § 724.012(b) (West 2011).
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010).
We review the admission or exclusion of evidence for an abuse of discretion.
Powers v. State, 165 S.W.3d 357, 359 (Tex. Crim. App. 2005) (citing Green v. State,
934 S.W.2d 92, 101-02 (Tex. Crim. App. 1996)). Under an abuse of discretion
standard, we will reverse a trial court's decision only if the trial court acted
arbitrarily, unreasonably, or without reference to any guiding rules or principles. See
Montgomery v. State, 810 S.W.2d 372, 390-92 (Tex. Crim. App. 1991). We will
uphold the trial court's ruling if it is within the zone of reasonable disagreement. Id.
at 391.
V. Discussion and Analysis
We address Appellant's first and second issues and then collectively address
his third and fourth issues.
A. Issue One: Sufficiency ofthe Evidence
Appellant contends that the State adduced insufficient evidence to convict him
of intoxication manslaughter because there was insufficient evidence that he was
intoxicated at the time he operated his vehicle. Appellant asserts that he never
consented to the blood draw, and he implies that, without that evidence, he could not
have been convicted of intoxication manslaughter. The State asserts that it proved,
with sufficient evidence, a temporal link between Appellant's driving and his
intoxication.
The State correctly notes that it must prove a temporal link between a
defendant's intoxication and his driving. Kuciemba v. State, 310 S.W.3d 460, 462
(Tex. Crim. App. 2010). But "proof of the precise time of the accident or of driving
6
is not the sine qua non of driving while intoxicated." Kennemur v. State, 280 S.W.3d
305, 314 n.8 (Tex. App.—Amarillo 2008, pet. refd) (citing Zavala v. State, 89
S.W.3d 134, 139 (Tex. App.—Corpus Christi 2002, no pet.)). There must be proof
from which the jury can conclude that, at the time of the driving in question, the
defendant was intoxicated. Zavala, 89 S.W.3d at 139. Proof can be from direct or
circumstantial evidence, and the latter is as probative as the former; the standard of
review for both is the same. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App.
2004). And a conviction can be supported solely by circumstantial evidence.
Kuciemba, 310 S.W.3d at 462 (citing Guevara, 152 S.W.3d at 49).
Hearne testified that he stopped at the intersection, looked both ways after a
vehicle passed, and then pulled out into the intersection. Appellant drove his vehicle
at more than twice the legal speed limit and collided with Hearne's vehicle. There
were no skid marks from Appellant's vehicle at the scene of the collision that would
have indicated he braked before the collision. Harmon suffered severe injuries from
the collision, and Dr. Kyungho Scott Choi, an emergency room physician,
pronounced her dead. She had severe damage to a great blood vessel that either
came into or went out of her heart, she had no pulse, and an X-ray showed fluid in
her left chest cavity.
Sergeant Simpson noted that Appellant's speech was slow and "very slurred,"
as did Officer Owen. Sergeant Simpson smelled an odor of alcohol on Appellant,
as did Officer Gutierrez, Officer Owen, and Doctor Choi. Appellant admitted to
Sergeant Simpson and Officer Owen that he had been drinking. Annis v. State, 578
S.W.2d 406, 407 (Tex. Crim. App. [Panel Op.] 1979) (as a general rule, the
testimony of an officer that a person is intoxicated provides sufficient evidence to
establish the element of intoxication for the offense of driving while intoxicated);
Kijfe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet.
refd); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.]
7
2000, pet. refd). And there was additional evidence of intoxication. Hamill testified
that hospital personnel conducted a "serum test" and that the results indicated that
Appellant's blood alcohol level was 0.27, well above the 0.08 limit for proof of
intoxication. Silva performed a "whole blood" test and testified that Appellant's
blood alcohol content was 0.258 grams of alcohol per 100 milliliters of whole blood
present.
A reviewing court may not reevaluate the weight and credibility of the
evidence and substitute its own judgment for that of the factfinder. Dewberry v.
State, A S.W.3d 735, 740 (Tex. Crim. App. 1999). The trier of fact is the sole judge
of the weight and credibility of the evidence. Brooks, 323 S.W.3d at 899 (citing
Jackson, 443 U.S. at 319, 326). We have reviewed the record, and the jury, as the
sole arbiter of the facts, believed the testimony of the police officers and others. We
must presume that the jury resolved any conflicting inferences in favor of the
prosecution and defer to that resolution. Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007). There was sufficient evidence for a rational jury to find beyond
a reasonable doubt that Appellant was intoxicated at the time he operated his vehicle
and collided with Hearne's vehicle. When this occurred, Appellant injured not only
Hearne and himself as a result of his intoxication, but he also injured Harmon, who
later died from those injuries. Therefore, the evidence supports Appellant's
conviction for the offense of intoxication manslaughter. We overrule Appellant's
first issue.
B. Issue Two: Warrantless Blood Draw
Appellant argues that "the search and taking of [his] blood was
unconstitutional and improper" and that the trial court erred when it admitted
evidence derived from that illegal search. If the warrantless mandatory blood draw
violated Appellant's rights under the Fourth Amendment, we must reverse the
judgment unless we determine beyond a reasonable doubt that the error did not
8
contribute to his conviction or punishment. Tex. R. App. P. 44.2(a); see Neder v.
United States, 527 U.S. 1, 15-18 (1999); Chapman v. California, 386 U.S. 18, 23-
24 (1967); Clay v. State, 240 S.W.3d 895, 904 (Tex. Crim. App. 2007) {Chapman
test codified in Rule 44.2(a)); see also Hernandez v. State, 60 S.W.3d 106, 108 (Tex.
Crim. App. 2001) (harmless error review under Rule 44.2(a)); Neal v. State, 256
S.W.3d 264, 284 (Tex. Crim. App. 2008) (harmless error analysis under Rule
44.2(a)).
The goal of the reviewing court is to "calculate, as nearly as possible, the
probable impact of the error on the jury in light of the other evidence." Neal, 256
S.W.3d at 284 (quoting Jones v. State, 119 S.W.3d.766, 777 (Tex. Crim. App. 2003))
(internal quotation marks omitted). Some factors to review may include: (1) the
importance of the inadmissible evidence; (2) whether the inadmissible evidence was
cumulative of other admissible evidence; (3) the strength of the State's case; and
(4) the State's emphasis on the inadmissible evidence. See Clay, 240 S.W.3d at 904;
Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006). The reviewing court
should also consider any factor that may shed light on the probable impact of the
trial court's error on the minds of average jurors. Davis, 203 S.W.3dat852. Another
factor is whether other evidence that is substantially similar to the inadmissible
evidence was admitted at trial. Meggs v. State, 438 S.W.3d 143, 147 (Tex. App.—
Houston [14th Dist.] 2014, pet. refd).
Even if we assume, without deciding, that the blood draw done for the
Midland Police Department, without a warrant, was erroneously admitted into
evidence and that such evidence was both important and emphasized, the error is
nonetheless harmless. See Meggs, 438 S.W.3d at 147. In Meggs, DNA evidence on
the defendant's pants was similar to other DNA evidence found at the crime scene.
Id. There, our sister court held that, even if for the sake of argument there was an
error, such error was harmless beyond a reasonable doubt. Id. Hamill drew
9
Appellant's blood at the hospital at the orders of the emergency room physicians for
the purpose of medical diagnosis and treatment. Appellant's medical records
included the results of the serum blood test conducted by the hospital, and those
records were admitted at the beginning of the trial without objection by Appellant.
Later, Hamill testified, also without objection by Appellant, that the results of the
serum test indicated that Appellant's blood alcohol level was 0.27.
Absent the testimony of Silva, the blood alcohol test results from Appellant's
medical records and the testimony of Hamill, which were both admitted without
objection, were properly before the jury. State v. Hardy, 963 S.W.2d 516, 527 (Tex.
Crim. App. 1997) (blood draw by private actor—hospital— does not violate Fourth
Amendment); see also Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004)
(where inadmissible evidence was admitted without objection by defendant, no
reversible error occurs). With the serum blood test evidence already before the jury
and the other evidence previously outlined, including Appellant's actions and
physical condition at the time ofthe collision as well as his post-collision statements,
we conclude that any error in the admission of Silva's testimony and other evidence
related to the first vial of blood drawn did not contribute to Appellant's conviction
because the result of the trial would have been the same. Therefore, we can say
beyond a reasonable doubt that the blood draw evidence taken for the Midland Police
Department did not contribute to Appellant's conviction. See TEX. R.
App. P. 44.2(a); Meggs, 438 S.W.3d at 147. We overrule Appellant's second issue.
C. Issues Three & Four: Bolstering and Improper Comments
Appellant asserts that the State engaged in improper bolstering of its case in
its closing argument when the prosecutor remarked, "Except for one thing, and that's
that that presumption of innocence stops as soon as we started presenting evidence."
Appellant also complains that the State made additional improper comments in its
closing argument.
10
The State errs when it argues that the jury should believe a witness simply
because the prosecutor does. See Gardner v. State, 730 S.W.2d 675,698 (Tex. Crim.
App. 1987). This type of argument is improper because it attempts to bolster the
credibility of a witness through unsworn testimony by the prosecutor. See
Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App. 1981). But a prosecutor
may argue his opinion concerning a witness's credibility or the truth of a witness's
testimony if the opinion is based on reasonable deductions from the evidence and
does not constitute unsworn testimony. Wolfe v. State, 917 S.W.2d 270, 281 (Tex.
Crim. App. 1996); McKay v. State, 707 S.W.2d 23, 37 (Tex. Crim. App. 1985). In
addition, a prosecutor may argue about the credibility of a witness if the defendant
invited such argument and the prosecutor's arguments respond to the defendant's
argument. Chapman v. State, 503 S.W.2d 237, 238 (Tex. Crim. App. 1974).
To preserve a claim that the prosecutor has injected his or her personal opinion
into the case, the defendant must object. Valdez v. State, 2 S.W.3d 518, 521 (Tex.
App.—Houston [14th Dist.] 1999, pet. refd). Likewise, to preserve any error based
on improper jury argument, the defendant must object to the argument and pursue
the objection until an adverse ruling is made by the trial court. Tex. R.
App. P. 33.1(a); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004);
Hinojosa v. State, 433 S.W.3d 742, 761 (Tex. App.—San Antonio 2014, pet. refd).
The objection must be "a timely, specific objection." Young v. State, 137 S.W.3d
65, 69 (Tex. Crim. App. 2004). Appellant failed to object during the closing
arguments made by the State. Appellant has waived his complaints raised in Issues
Three and Four on appeal. See Tex. R. App. P. 33.1(a); Mendez, 138 S.W.3d at 341;
Hinojosa, 433 S.W.3d at 761. We overrule Appellant's third and fourth issues.
VI. Conclusion
We hold that there was sufficient evidence for a rational jury to find beyond a
reasonable doubt that Appellant was intoxicated at the time he operated a motor
li
vehicle that collided with Hearne's vehicle and that, as a result, he injured Hearne
and killed Harmon. We also hold that, even if the evidence from the blood draw for
the first vial of blood was erroneously admitted, that error is harmless because
Appellant's medical records, which included the hospital's serum blood test, were
admitted at the beginning of trial without objection. In addition, Hamill testified,
without objection, about the results of a serum blood test, a test that was ordered by
physicians for the purpose of medical diagnosis and treatment of Appellant. We
further hold that Appellant waived his complaints about improper bolstering during
closing argument and other improper comments made by the State during closing
argument. Finally, we note that intoxication, is not an element of aggravated assault
with a deadly weapon, and Appellant has not challenged the sufficiency of the
evidence on that conviction. We overrule all of Appellant's issues on appeal.
VII. This Court's Ruling
We affirm the judgments of the trial court.
MIKE WILLSON
JUSTICE
October 30, 2015
Do not publish. See Tex. R. App. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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