Bradley Kelton Crenshaw v. State
2014 Tex. App. LEXIS 2305
| Tex. App. | 2014Background
- Bradley Crenshaw was charged by information with DWI alleging subjective intoxication: lack of the normal use of mental or physical faculties due to alcohol (and alternatively alcohol and/or drugs).
- Officer observed driving indicia of impairment, smelled alcohol and marijuana, arrested Crenshaw, and found a marijuana leaf in the vehicle.
- Blood drawn ~4:01 a.m. showed BAC 0.07; State’s toxicologist testified by retrograde extrapolation that Crenshaw’s BAC likely exceeded 0.08 at time of driving and opined that impairing effects can appear at 0.03–0.04.
- Trial court included the per se (0.08) definition of intoxication in the abstract portion of the jury charge but not in the application paragraph; the application paragraph tracked the subjective theory alleged in the information.
- This court originally reversed, holding the per se instruction expanded the prosecution beyond the information and that extrapolation evidence was inadequate; the Texas Court of Criminal Appeals reversed, holding the conviction was under the subjective theory and that inclusion of the per se definition in the abstract did not expand allegations.
- On remand the appellate majority follows the Court of Criminal Appeals, overruling Crenshaw’s points; a dissent argues the State should be bound by the pleading and criticizes admission/use of extrapolation and marijuana instructions.
Issues
| Issue | Plaintiff's Argument (Crenshaw) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether including the per se (0.08) definition in the abstract jury charge expanded the prosecution beyond the information alleging only subjective intoxication | Inclusion of an unpled theory in the abstract allows conviction on an uncharged theory and thus violates due process/notice | The information provided adequate notice; the abstract definition did not expand the charging allegations and did not permit conviction on an unalleged theory | Rejected Crenshaw’s claim; court follows Tex. Ct. Crim. App. and affirms (no expansion) |
| Whether retrograde extrapolation evidence was admissible and sufficient to support inclusion of the per se theory | Extrapolation testimony was speculative/controversial and lacked vital data, so it was inadmissible/insufficient to support a per se instruction and defendants lacked notice to secure rebuttal experts | State relied on expert extrapolation testimony to argue BAC >0.08 at time of driving; Court of Criminal Appeals found extrapolation/support adequate | Court of Appeals on remand is bound by the higher court’s ruling that extrapolation/support was sufficient and overrules Crenshaw’s complaint |
| Whether submission of jury instructions regarding marijuana/synergistic effect was supported by evidence | No blood test for marijuana; no evidence of amount or effect — instruction and application that included drugs expanded theories without support | State argued evidence (odor, leaf, officer testimony) and charge language were appropriate to let jury consider combined effects | Appellate majority, bound by higher court, overrules Crenshaw’s challenge; dissent criticizes lack of evidentiary support |
Key Cases Cited
- Crenshaw v. State, 378 S.W.3d 460 (Tex. Crim. App. 2012) (court of criminal appeals reversing aspects of the court of appeals and holding abstract per se definition did not expand allegations)
- Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001) (gatekeeper analysis re: retrograde extrapolation reliability and admissibility)
- State v. Barbernell, 257 S.W.3d 248 (Tex. Crim. App. 2008) (holding that an information alleging intoxication need not specify subjective vs. per se theory to give notice)
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (federal standard for admissibility of expert scientific testimony)
- Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992) (Texas framework for expert scientific evidence admissibility)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (standard for assessing harm from jury-charge error)
- Otto v. State, 273 S.W.3d 165 (Tex. Crim. App. 2008) (instruction may not enlarge the offense alleged)