535 S.W.3d 217
Tex. App.2017Background
- On March 9, 2014, Beth M. Branum caused a fatal collision after leaving a bar; post-accident testing and hospital diagnostic serum showed elevated alcohol levels and multiple warrant blood draws later confirmed BAC above the legal limit.
- Witnesses (bar patron, bar manager, officer, nurse) described Branum as intoxicated; accident reconstruction showed she ran a red light and was driving well above the limit.
- Branum was indicted for intoxication manslaughter (with a deadly-weapon finding) and later reindicted to add manslaughter as a count; jury convicted and assessed a 20-year sentence for intoxication manslaughter with a vehicle.
- Pretrial, Branum sought production of the victim’s cellphone contents and a TABC-recorded statement from the bar manager; the trial court inspected some materials in camera and denied further production under article 39.14(a).
- The State supplemented expert disclosures less than 20 days before trial to add the county medical examiner; trial court permitted the late-disclosed MEO witness to testify over Branum’s objection.
- Branum objected to admission of her hospital serum-blood diagnostic result and to the jury charge’s handling of concurrent-cause instruction; trial court admitted the records and overruled the charge objection.
Issues
| Issue | Plaintiff's Argument (Branum) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Trial court erred by refusing to order production of victim’s cellphone and bar manager’s TABC statement under Tex. Code Crim. Proc. art. 39.14(a) | Cellphone and TABC recording were material and could show distraction/location/speed; nonproduction prejudiced defense | Court reviewed materials in camera; produced phone records and found no material evidence; bar manager’s recorded statement not shown to add new facts | No abuse of discretion: evidence was not shown to be material or, as to TABC statement, any nondisclosure was harmless given overlapping testimony |
| Admission of hospital diagnostic serum-blood result | Serum result unreliable and lacked hospital instrument calibration/quality-control proof; should be excluded | Admission goes to weight, not admissibility; later MEO testimony corroborated serum result | No reversible error: other reliable BAC evidence and corroborating testimony show no substantial harm from admission |
| Allowing late-designated expert (MEO) to testify (art. 39.14(b)) | Untimely designation violated discovery rules and warranted exclusion or continuance | Late notice due to unavailability of previously disclosed MEO; no bad faith; defendant could anticipate MEO testimony; no continuance requested | No abuse of discretion: no bad faith, predictable witness type, and failure to request continuance renders any error harmless |
| Jury charge failed to properly apply concurrent-causation instruction | Application paragraph authorized conviction before paragraph permitting acquittal on concurrent-cause theory, risking partial consideration | Abstract concurrent-causation definition and two application paragraphs together applied the law; charge must be read as whole and was read to jury in full | No reversible error: charge viewed as whole authorized jury to consider concurrent causation and was not misleading |
Key Cases Cited
- Ehrke v. State, 459 S.W.3d 606 (Tex. Crim. App. 2015) (timely request triggers compulsory production of material evidence under article 39.14)
- Nobles v. State, 843 S.W.2d 503 (Tex. Crim. App. 1992) (factors for evaluating late disclosure of witnesses and abuse-of-discretion review)
- Martinez v. State, 867 S.W.2d 30 (Tex. Crim. App. 1993) (defendant may reasonably anticipate MEO-type testimony in homicide/forensic cases)
- Barnes v. State, 876 S.W.2d 316 (Tex. Crim. App. 1994) (failure to request continuance after late disclosure bears on harm analysis)
- Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (harm analysis for erroneously admitted evidence: substantial and injurious effect on verdict required)
- Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991) (admission of cumulative testimony can render other evidentiary error harmless)
- Saenz v. State, 474 S.W.3d 47 (Tex. App.—Houston [14th Dist.] 2015) (jury-charge error where abstract causation instruction not applied in application paragraph)
- Mallard v. State, 162 S.W.3d 325 (Tex. App.—Fort Worth 2005) (absence of application paragraph incorporating concurrent causation can prevent conviction on that theory)