Aaron Trevino v. State
03-16-00017-CR
Tex. App.Oct 27, 2017Background
- At ~3:30 a.m. on May 12, 2013, Deputy Ryan Carpenter stopped Aaron Trevino after observing the vehicle travel ~28 mph in a 65 mph zone, weave, cross lane lines, and drive left of center into a gas station parking lot.
- Carpenter detected a strong odor of alcohol, observed glazed eyes and slurred speech, and Trevino admitted drinking earlier; Trevino appeared disoriented about time and location.
- Carpenter administered field sobriety tests: 6/6 HGN clues, 4/8 walk‑and‑turn clues, and 1/4 one‑leg‑stand clues; Trevino was arrested and a warrant blood draw showed BAC .097 (> .08).
- Trevino was convicted by a jury of misdemeanor DWI, sentenced to 90 days (suspended) and nine months’ community supervision; this was his third trial after two mistrials.
- On appeal Trevino raised four issues: (1) insufficient evidence/reasonable suspicion for the stop, (2) insufficient evidence/probable cause for arrest, (3) trial court erred by refusing an Article 38.23 (illegal‑evidence) jury instruction, and (4) trial court abused discretion in admitting expert retrograde‑extrapolation testimony.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Trevino) | Held |
|---|---|---|---|
| 1. Lawfulness of traffic stop / sufficiency for that element | Officer had specific, articulable facts (very slow speed, weaving, crossing lines, late night) supporting reasonable suspicion to stop | Stop lacked reasonable suspicion (radar calibration questioned; driving alone under limit not necessarily suspicious) | Court held totality of undisputed facts gave reasonable suspicion; sufficiency review deferred to jury; issue overruled |
| 2. Probable cause for arrest / sufficiency of proof of intoxication | Officer observed odor, slurred speech, glazed eyes, admissions of drinking, poor FST performance, and corroborating dashcam; blood test > .08 | Officer lacked probable cause; FSTs not conducted per NHTSA and other explanations existed | Court held undisputed facts provided probable cause; cumulative evidence sufficient to support conviction |
| 3. Request for Article 38.23 jury instruction (suppress‑and‑disregard) | No instruction required because disputed facts were not essential to lawfulness; undisputed facts supported stop and arrest | Instruction was required because material facts (radar calibration, FST administration) were contested | Court held prerequisites for Article 38.23 not met: disputed facts were not essential to admissibility; refusal was proper |
| 4. Admissibility of phlebotomist testimony on retrograde extrapolation | Expert’s limited testimony (it would not be possible that two beers produced .097 five–six hours later) was admissible or, if erroneous, harmless given other evidence | Testimony was unreliable retrograde extrapolation and should have been excluded as expert opinion without sufficient basis | Court held any error admitting that limited testimony was nonconstitutional and harmless under the whole record; issue overruled |
Key Cases Cited
- Murray v. State, 457 S.W.3d 446 (Tex. Crim. App. 2015) (Jackson‑standard sufficiency review explained)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (standard for sufficiency of evidence beyond a reasonable doubt)
- Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) (circumstantial and direct evidence standards)
- Douthitt v. State, 127 S.W.3d 327 (Tex. App.—Austin 2004) (retrograde extrapolation discussion)
- Bagheri v. State, 119 S.W.3d 755 (Tex. Crim. App. 2003) (retrograde extrapolation error analyzed for harm)
- Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) (admissibility and reliability standard for expert scientific evidence)