Warren Kirtley White v. State
01-15-00652-CR
| Tex. App. | Oct 27, 2016Background
- On Dec. 28, 2013 Sgt. Haver was flagged down about a white BMW driving erratically; she stopped appellant Warren White after observing lane violations.
- Officers detected slurred speech, strong odor of alcohol, bloodshot/watery eyes, and unsteadiness; appellant refused field sobriety and breath/blood tests; officers opined he was intoxicated.
- EMS measured appellant’s blood glucose at 308; appellant is Type 1 diabetic and testified high glucose can cause symptoms like blurry vision and confusion.
- A warrant blood draw 3 hours 48 minutes after arrest showed BAC 0.145; appellant admitted drinking two White Russians earlier that evening.
- Jury convicted appellant of misdemeanor DWI; sentence of 180 days and $1,000 was suspended in favor of one year community supervision.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (White) | Held |
|---|---|---|---|
| Sufficiency of evidence to prove intoxication | Evidence of driving behavior, officer observations (odor, slurred speech, bloodshot eyes, unsteady), refusal to test, and 0.145 BAC supported conviction under per se or impairment theory | BAC test taken nearly 4 hours after arrest required retrograde extrapolation; diabetes could explain symptoms, so evidence was insufficient | Affirmed: Viewing evidence favorably to jury, there was sufficient evidence of intoxication; State need not exclude every alternative like diabetic cause |
| Admission of motorists’ reports (hearsay) | Officer testimony about being flagged down explained why she searched for the vehicle and was admissible as non-hearsay ‘‘information received’’ | Testimony conveyed out-of-court statements identifying appellant’s conduct and was inadmissible hearsay | Affirmed: Court found testimony a permissible general description of information received, not detailed hearsay about defendant’s involvement |
| Denial of new trial for juror’s outside research during deliberations | Trial court’s voir dire of each juror and instruction to disregard cured the issue; jurors said they would follow the instruction | Outside information (juror Googled BAC info) was received by jury and was detrimental; required new trial | Affirmed: Under Bustamante, jurors informed the court and, after individual questioning and instruction to disregard, the outside information was effectively not "received" |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (legal-sufficiency standard: evidence viewed in light most favorable to verdict)
- Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004) (breath/blood tests need not be accompanied by retrograde extrapolation to be relevant to intoxication)
- Kirsch v. State, 306 S.W.3d 738 (Tex. Crim. App. 2010) (officer observations of symptoms can support intoxication finding)
- Poindexter v. State, 153 S.W.3d 402 (Tex. Crim. App. 2005) (distinguishes admissible "information received" from inadmissible hearsay details)
- Bustamante v. State, 106 S.W.3d 738 (Tex. Crim. App. 2003) (jury receipt of outside evidence and when an instruction to disregard cures error)