*1 underlying sustain the they are based on facts stat Lenoirs’ issue challenging the and, therefore, dismissal of Dr. the affidavit its attachments. Riz Gonski ed re- Conner, part v. verse that of the trial kallah court’s judg- ment (Tex.App. and remand for [1st Dist.] further proceedings — Houston against Dr. Gonski. pet.).
The Lenoirs’ contention the affida- hinge conelusory are does
vits in the
whether there are facts attached the statements support
documents made affidavits. Each these affiants
refers to or attaches them documents attachments
the affidavits. These include accrediting agency regulations, articles of NAVARRO, Appellant Joel incorporation, bylaws, support- other ing support documents documents. The Texas, Appellee The STATE of the assertions made affidavits. See id. NO. 14-13-00706-CR Rather, they contend the affidavits Texas, Court of Appeals “legally conelusory factually are incor- (14th Dist.). Houston despite rect” these affiants’ un- because— Majority derstanding relationship Substitute Huang Dissenting Dr. Opinions July 7, with filed despite the UT entities and what say— the attached documents Lenoir’s le- arguments effectively
gal undone the
employment relationship. explain
These affidavits the interrela-
tionship of the within Sys- entities the UT Huang’s
tem and Dr. role and connection agree
to those entities. We do that an System
explanation of the UT structure simply
becomes inadmissible
party argues that law interpret should facts differently. Because we have
rejected legal the Lenoirs’ contentions
challenging employment, Dr. Huang’s reject
likewise their assertion that conelusory.
statements are
Accordingly, we overrule the Lenoirs’
third issue.
Conclusion challenge
We overrule the Lenoirs’ Huang.
the dismissal Dr. We further
overrule their to the challenge affidavits
attached his motion dismiss. *4 Shearer, Houston, TX, for ap-
R. Scott pellant. Conroe, TX, for Morgan,
Clinton state. consists Frost and Panel Chief Justice Christopher Busby. Justices MAJORITY OPINION SUBSTITUTE Christopher, Tracy Justice opinion May our withdraw dated opinion and we issue this substitute deny in its motion place. We the State’s rehearing. for appeal This from a A is an Class misde- for driving meanor while intoxi- conviction level, cated. At the trial court the State argued finding that a of intoxi- to the theory cation se intoxi- cation based on the alcohol could be con- plasma of tent rather blood. his whole Now State con- point. on that fesses error level, At the trial judge the trial a question failed to submit to the as to appellant’s blood alcohol level was whether support window, at least 0.15 to A Class misde- side apparently because the door meanor conviction. Now the State con- jammed. had been Appellant crawled on point. fesses error on that pavement fiancée, towards his who had ejected been from truck during the level, At the trial court the State con- rollover. unconscious, She severely judge thé trial that a idnced Class mis- injured, lying thirty-five about feet demeanor conviction could based on away from where the truck finally had plasma regard results without stopped. the alcohol concentration of appellant’s blood, and, based the uncon- Appéllant responders told first that he results, verted blood judge the trial driving at the time the accident. made a that appellant an alco- He explained that.he and his fiancée were hol concentration of at least 0.15. Now the arguing truck, inside the grabbed she State confesses error on that point. steering point, one wheel This story gradually overcorrected. Despite misleading both judge the trial changed over Appellant time. later jury, through and the both improper claimed that his feeling sick, fiancée was charge and an improper closing argument, *5 that him, she slid be next to over argues appellant the State that is not enti- that she hit accidentally steering to a tled new trial. The State believes wheel. At another point, appellant report- judgment should be reformed to ed that the happened reflect a conviction for accident a Class B misde- a meanor, and the case tire blew out. should be remanded punishment for a new hearing only. We police The not initially suspect disagree. We reverse judg- and render a fact, accident was alcohol-related. In ment' acquittal of on the Class A misde- the officer who questioned appellant at the meanor, and we remand for a new trial on scene in opined original police his report the Class B misdemeanor. appellant was not intoxicated. intoxication, There was of evidence how-
BACKGROUND According ever. emergency medical Appellant and his fiancée were involved technician, appellant admitted that he had accident, in single-vehicle the cause of at consumed least four on night beers which disputed was at trial. Only one of the accident. There was also blood eyewitness at trial. eyewit- testified The evidence taken more than an hour after ness testified that he was driving down the accident, and the evidence indicated night interstate late at when a truck in that appellant alcohol in system. had front him suddenly of veered the left and struck a concrete barrier. Traffic had The blood was evidence obtained light time, been at the it had not been hospital where appellant and his fiancée raining, and there of an were hospital treated. collected a vial The obstruction in the road that would have appellant’s blood, which was then required an evasive maneuver. placed into a centrifuge. The vial was spun, causing
The truck over to separate rolled three the blood cells times and from upright landed on its plasma. tires. blood When the test of the eyewitness pulled up truck, plasma next to the blood appellant revealed had a appellant climbing saw out of the (“BAC”) driver’s blood-alcohol concentration truck explained The that the be- fiancée 0.158.1 her, longed not appellant. She was eventually brought were Charges truck, possessive allowed over driving intoxi- for while against appellant it appellant occasions. drive rare instrument included charging The cated. photographs of the She observed also that, at or allegation near an additional n accident, truck and said after offense, of the commission time position of the driver’s seat would have “an con- alcohol blood showed appellant, been who is uncomfortable 0.15.” at least level centration a foot taller she is and more than has expert, William Arnold State’s The larger much frame. Department, testified Police the Houston higher of alcohol is that the concentration that it trial instructed than it is whole blood. plasma in blood intoxication in could make a BAC opined that of 0.158 (1) ways: if did not appellant either of two converted to a BAC could or phys- normal use of his mental Assuming that in whole blood. of 0.132 ical reason of the introduction faculties eliminating alcohol appellant been (2) body, into his alcohol it, system, absorbing instead of from his of 0.08 or had an alcohol concentration had a expert believed more. “Alcohol concentration” de- blood at the time of 0.133 whole BAC of “the charge fined in the court’s number accident. grams of alcohol 100 milliliters of trial, testily at but he Appellant did not objected blood.” to this Appellant defini- theories, several one asserted defensive specify tion because did not his fiancée had been driv- which Appellant be whole blood. re- must *6 Appellant occurred. ing the accident when quested that the definition be revised to his to first argued that statements re- grams of read as follows: “the number false, sponders had and that he had been alcohol 100 of whole per milliliters blood.” be- taken the blame for accident request. The trial court denied the duty protect his he felt a fiancée. cause During closing arguments, the issue sup- There was affirmative evidence to again over when blood evidence arose port theory. this The record showed prosecutor that it advised was not appellant was excluded as contributor of type that it limited blood could sample from the a DNA collected driver’s prosecutor consider. The said: bag. partial side air The DNA revealed a belonging profile to a female unknown know, As you we heard a lot origin, who have been fiancée. could lot today heard a about evidence we just today. blood evidence I want to testimony Other evidence included from y’all’s charge, attention to the herself, draw the fiancée who recovered from coma, you given in a the definition what injuries being her after for will.be an alcohol concentration is and nearly a month. The fiancée defi- admitted grams number of alcohol she did not much from the nition is the remember accident, per You she 100 milliliters of blood. won’t but testified there was in in good anywhere chance” that she was find here the law “a the driver. where opinion, 1. In this numerical references denote in each instance whether blood at all expressed grams BAC are in the same units: plasma. blood or issue is whole of alcohol milliliters of blood. 100
693 or plasma reviewing needs be whole blood legal When sufficiency of evidence, This follow. blood. is law we examine all of the evi- /all light dence most favorable to the Appellant to this objected argument as a verdict and determine whether rational explained, of law. He misstatement “The of fact trier could have found the essential requires law blood.” But the trial beyond elements of the offense a reason- objection. court overruled the The prose- State, able Temple doubt. See 390 cutor expanded argument, later her 341, (Tex.Crim.App.2013). S.W.3d saying directly objection and without evidence insufficient when the rec- could find that was in- evidence, ord or merely contains a “mo- solely toxicated based on the testing evidence, probative dicum” of of an ele- plasma. State, ment of the offense. See Garcia v. of driving convicted 683, (Tex.Crim.App.2012). S.W.3d intoxicated, while but it make the Although we everything consider finding additional alcohol he had “an trial, presented at do reevaluate the 0.15,” concentration level of at least as had weight credibility of the evidence or alleged in charging been instrument. judgment our substitute that of the fact The trial court did not submit that issue State, finder. See Williams v. 235 S.W.3d jury charge. (Tex.Crim.App.2007). Because Appellant elected have the trial court judge the sole of the credibility punishment. assess his No new evidence of witnesses and of weight given during phase. offered The trial testimony, any their conflicts or inconsis court began hearing by treating tencies are resolved in allegation charging additional in- favor of the verdict. See Wesbrook v. strument as an enhancement paragraph, 111 (Tex.Crim.App. which the court By found to be true. 2000). properly Our review includes both making that appel- affirmative improperly admitted evidence. See lant had “an alcohol concentration level (Tex. Clayton v. 0.15,” applied range least the court of Crim.App.2007). We also consider both punishment applicable to a Class misde- evidence, direct and circumstantial as well meanor, misdemeanor, of a B instead Class *7 as any may reasonable inferences that be appellant which is what would have faced drawn from the evidence. Id. Circumstan perceived without the “enhancement.” tial probative evidence is as as direct evi actor, in establishing guilt
dence the an SUFFICIENCY OF THE EVIDENCE and circumstantial can evidence alone be guilt. Hooper sufficient to establish See v. Jury’s Finding I. The State, 9, 214 (Tex.Crim.App. S.W.3d 13 Appellant charged was under section 2007).
49.04(a) Code, of the Texas Penal which A. Driver provides: person “A an commits offense if person the is operating Appellant intoxicated while a acknowledges that he ini public place.” motor vehicle in In tially responders admitted to first that he issue, first appellant driving contends that the evi- was the truck at time of the the legally is however, dence insufficient to suggests, show either He accident. that his (1) truck, that he was the disregarded driver or admissions must because (2) that he was actually lying protect intoxicated. he was his fiancée.
694 State, S.W.2d See Wicker v. 667 the admissions lieved. agree that do not 137, Viewing (Tex.Crim.App.1984). was free 143 disregarded. must be statements, most light the favorable original evidence the to believe verdict, a ra- of re- conclude that applicable jury’s standard the under view, must be credited have tional of fact could determined those statements finder support jury’s verdict. they beyond appellant a reasonable doubt because State, 361, 366 driving S.W.3d time of the Guess v. was the truck at the See 2010, d) (holding pet. ref (Tex.App.-Tyler accident. jury was entitled believe B. Intoxicated police that statement to initial defendant’s road). off the who drove was one
he statutory received “intoxicated,” which has two also corrobo- definition are Appellant’s admissions “(A) instance, having meanings: For alternative by evidence.- rated other faculties physical on the driver’s side' head- normal use mental or was found ... col- of alcohol rest, sample reason of introduction but unlike bag, (B) DNA body; having side air into an alcohol from the driver’s lected that a male unknown testing revealed or more.” Tex. concentration 0.08 See 49.01(2). § blood. Because contributed the origin had Penal Code We have de vehicle, male appellant was meanings providing these alter scribed as reasonably believed could person that a is proving native methods contributor, State, v. intoxicated. See Bradford that the blood transferred the headrest 719, (Tex.App.-Houston S.W.3d 721-22 sitting appellant had 2007, because been pet.). The two meth [14th Dist.] known, driver’s seat. impair ods as respectively, are theory per ment of intoxication and the se eyewitness an Additionally, testified theory of intoxication. Id. Because the appellant climbing saw out of the driv proof mutually two are methods immediately er’s side after the window exclusive, per evidence offered under before, For the accident. same reason theory support finding se can also that a have inferred that could person impaired. Crenshaw v. See exiting from side he had (Tex.Crim.App. previously driving. been Dickson Cf 2012). above, proof As indicated (Tex.App. per theory alcohol concen requires se ref'd) (evi pet. [14th Disk] Houston expressed grams of alcohol tration supported dence defen milliliters blood. See Tex. Penal driving when the been a vehicle dant 49.01(1)(B). § Code emerging defendant was seen from the immediately driver’s side after vehicle Appellant contends that *8 stopped). was to intoxicat- insufficient show that was ed, jury multiple out citing points We do not doubt that could reasons. He originally made that opposite finding appel- investigating have first that an officer reported merely passenger appellant lant was at the that was not time intoxicat- track, certainly Along appellant this re- Appellant pro- ed. same accident. testimony sobriety that fact on fers that field tests duced evidence created a issue to him, point. circumstances, this on that he But such it is were administered never slurring not the of this to found been his role court determine was never to have words, jury actually which and that found evidence the should have be- he was immediately after out. But jury be alert and oriented have blown was free to accident. disbelieve evidence and conclude that appellant impaired was by consumption track, appellant On a different asserts of alcohol. We conclude that there is le that failed to meet the blood evidence cer- gally sufficient evidence of in Appellant complains tain that standards. toxication, and that a rational could who cálculated the of his BAC every have found element the offense whole blood conversion ratio based used beyond a reasonable See doubt. Lorenz v. average, on a a con- scientific rather than 176 S.W.3d 495 (Tex.App. of appellant’s sideration individual charac- ref'd) (con [1st -Houston pet. Dist.] points teristics. con- Appellant out that cluding was evidence sufficient to heavily on depend versions health prove when, the defendant’s intoxication person, if his health were shown factors, among other was there evidence average, be outside the then a con- certain that the defendant to having admitted con version would have established that he was portions sumed of three alcoholic bever not intoxicated. ages). testimony expert’s primarily The prove appellant used to intoxicat- Finding II. The Trial Court’s theory. se if ed under the Even brief, In its the State makes a “Confes- were to that the expert’s conclude method- Error,” Unassigned sion of contending inexact, ology was the conviction would is legally that there insufficient evidence to still supported legally there were trial support finding court’s that appel- sufficient evidence offered under the im- “an lant had alcohol concentration level of pairment theory. We conclude that 0.15.” at least The State bases this con- record contains such evidence. authority fession on statutory The appellant heard admitted meaning “blood” is restricted to whole having at least on consumed four beers blood, appellant trial, argued at Thus, night accident. there is there is evidence that the BAC of ap- alcohol proof some was introduced pellant’s whole at least blood was 0.15. into appellant’s body. could have if there Even were legally sufficient evi- reasonably determined that accident dence, the State the trial asserts that occurred because lost the normal not have made should its use of his reason of intro- faculties appellant’s alcohol concentration level was duction. offense, therefore, of an an element it have been should submitted of certain absence environmental guilt-innocence phase during the of trial. factors supports implied finding. The record shows that there were few cars Appellant respond road, raining. and that had not been brief, confession in his reply State’s but we There is also no of an obstacle may unassigned still address an error if it required the road that would have a sud- preserved below. Sanchez See den turn. (Tex.Crim. 120-21 testimony
There was some acci App.2006). Because a defendant need dent could occurred for preserve have reasons error as to claim that the other evi ov- may intoxication: insufficient to prove dence is element of *9 ercorrected, may conducted, for his fiancée acciden which he the offense we wheel, tally steering hit or may Flanary a tire choose to address this issue. See 696 session, B 496, 496, is a Class misde- offense State, Tex.Crim.
v. meanor, a of (1968) reh’g). with minimum term con- (op. on S.W.2d days. of six finement or Enhancement? Element A. (d)If it trial an is shown on the of a first decide whether must analy- that an offense under this section pro level concentration alcohol person’s blood, specimen person’s of a of the sis enhancement, the trial as basis, for a
vides
breath, or urine
an alcohol con-
showed
believed,
as
it functions
or whether
court
level of
or more
centration
0.16
at
of
completely separate
of a
the element
analysis
performed,
time
fense,
appeal.
the State asserts
as
is a
A
offense
Class misdemeanor.
v.
Court
In Calton
§
Code
Tex. Penal
49.04.
explained
differences
Appeals
Criminal
See
and enhancements.
between elements
is
only single
There
a
reference
(Tex.Crim.App.2006). The
alcohol concentration
this statute
“an
of an offense
court
the elements
said
level,”
it is
and
located under Subsection
conduct, the
are
as “the forbidden
defined
(d).
plain reading
A
of that subsection
result,
required culpability, any required
its
is to convert an
reveals
effect
to the
negation
any exception
and the
from
offense
a Class B misdemeanor to a
reviewing
Id.
233. A
offense.”
person
A
a
Class misdemeanor whenever
plain language
must look to the
charged with
driving while intoxicated
discerning
any given
statute when
whether
to have
concentration
shown
“an alcohol
fact constitutes an element of the offense.
of 0.15 or
this
level
more.” Because
con
Id.
represents
change
degree
a
version
enhancement,
contrast,
by
An
is a
offense,
just
enlarge
an
of the
rather
range
fact
the punishment
that increases
punishment
a
range
of the
for
ment
Class
.
a
range
ordinarily
to certain
above what
misdemeanor,
B
agree
we
with
State
prescribed
charged.
for the crime that was
a person’s
concentration level
alcohol
offense,
change
Id.
not
“It does
for
is not a basis
See
enhancement.
Cal-
offense,
degree of.the
of conviction.” Id.
ton,
(an
The word “blood” is not defined in the blood, (includ- “hair or components blood Code, Penal but the Court of Criminal derivatives, ing plasma), blood blood Appeals can only indicated reagents.” has See Tex: Penal Code 48.02(a). In Bigon § mean whole blood. Legislature Because the de- explain, infra, 2. We expert's at note process rights by court violated his due However, wrong. calculations were even if submitting jury. that element to the ExCf. correctly converted the results (Tex.Crim. parte Boyd, 58 S.W.3d plasma testing, there App.2001) (applying Apprendi Jersey, v. New showing would still be no BAC 466, 490, 530 U.S. 120 S.Ct. appellant’s whole was at least 0.15 at event, (2000)).. L.Ed.2d 435 In we need analysis performed. the time the not address this issue because we conclude acquittal is entitled to an Although sepa 3. alcohol concentration is a grounds. Class A misdemeanor on other rate element of the Class A misdemeanor of fense, appellant argued has that the trial *11 698 If does component,” (Tex.Crim.App.2005). error a “blood 743 as plasma
scribed exist, that harm analyze we then error for it- term with “blood” that juxtaposed procedural of Al- framework is a under self, conclude we must State, (Tex.Crim. blood, v. 157 and that the two manza 686 S.W.2d only subset of App.1984). congruent. are not terms understanding to same apply If we Error I. of offense driv- chapter proscribing give trial court must The intoxicated, then “blood” as used ing while distinctly setting forth charge “a written of “alcohol concentration” in definition Tex. applicable law the case.” See oth- plasma” or not mean “blood must art. 36.14. Crim. Proc. The State Code Tex. of blood. See Gov’t “component” er trial court fulfilled this contends 311.011(b) (providing § that words Code duty charge gave its a definition particular a technical or acquired that have exactly “alcohol concentration” that of by legislative definition meaning, whether language 49.01. tracked Section otherwise, accord- or should construed “ charge provided: ‘Alcoholconcentra Instead, it must mean blood with ingly). grams tion’ means number of alcohol which otherwise components, of its all of blood.” milliliters blood.” known as “whole Because is indeed evidence that Appeals there Court of Criminal blood was charge the BAC previously has stated that a or at greater ever 0.15 the time is “a language that tracks the a statute draw, agree con- we with the State’s charge statutory proper issue.” State, 1, (Tex. that the fession error trial court’s find- v. See Riddle 888 S.W.2d by the If ing is unsupported record. This ex Crim.App.1994). has been rule case, in issue we would well, were as settings in other but the pressed judgment trial court’s reform the reflect always has not For court adhered to it. misdemeanor, B a instance, a conviction for Class issue is when the whether which is supported sufficient evidence quashed failing indictment should be above, explained a notice, and remand for new adequate provide the court has held Calton, punishment hearing. See tracking language of the statute State, 233; v. Bowen 374 S.W.3d In may always be sufficient. Haecker 427, (Tex.Crim.App.2012). Appellant State, explained charg that a v. court issues, however, has asserted other and as provide adequate ing instrument does below, explain those require issues if it language notice tracks the new trial. itself statute and the statute is not “com
pletely descriptive the offense.” See INSTRUCTION CHARGE 920, (Tex.Crim.App. [Panel 571 S.W.2d issue, 1978). In Similarly, Mays, his second con v. Op.] State trial tends court that an re committed held indictment will charge error request quire greater specificity when denied a a statute when clarify of “alcohol concentra “an term of definition uses undefined indeterminate expressed tion” so that meaning.” it was terms or variable See 967 S.W.2d blood,” just (Tex.Crim.App.1998). Relatedly, “whole rather “blood.” 407 context, complaint two-step charge recog review this the court has process, considering first should be a defi given whether error nized Ngo acquired exists. See v. nition of that have tech 175 S.W.3d terms A. Not legal meaning. See that I’m aware. nical established 771-72 Q. rephrase. Let me Not that Medford the—it (Tex.Crim.App.2000); see also Middleton require doesn’t it- sample *12 State, 450, (Tex.Crim. 454 125 v. S.W.3d blood, self be whole but law the (plurality op.). App.2003) mandates that the levels of alcohol blood, be to related whole correct? Haecker, principles behind Honor, Objection, STATE: Your guide us when review Mays, and Medford for a legal calls conclusion. ing jury charge. of a Just correctness COURT: Overruled. adequate as the defendant must receive him, charges against jury notice of the A. my It units. Off top dictates understand which law to apply, must and head, I’m I can’t afraid answer re- wording may of a statute not be garding exact statement in the enough. Appeals As the Court of Criminal law. reiterated,
recently not function “It is Q. Okay. You’re familiar with the charge merely avoid misleading of the to term “BAC”? confusing is the function jury: or it A. Yes. charge prevent to to lead and confu Q. And what does stand for? State, Reeves v. sion.” S.W.3d A. BAC can be typically it’s used— (Tex.Crim.App.2013) (quoting for blood alcohol used concentration. (Tex. v. Williams Q. if I Okay. you said to added). And in Texas Crim.App.1977)) (emphasis .08, you the law that is can’t I have prevent will not confusion if charge n milligrams? believe it’s statutory text on which is based has a eyes meaning jury. variable A. grams per It would one be hundred milliliters. alone, Standing the statute here is not Q. So, blood, “Blood,” Okay. whole correct? ambiguous confusing. as that 49.01, is can term used Section Again, A. go I would have to back and meaning, one that meaning is grams per look. It’s .08 100 millili- explained “whole blood” as above. But remember, ters I is what at this trial, during jury not advised point. definition, specific of this and even before So, Q. you’re not even aware whether closing arguments began, the jury received requires in Texas law whole conflicting messages its regarding mean- plasma blood or blood? ing. A. report all Without —we values stand, took When the State’s equiva- blood alcohol whole blood him about cross-examined I lent. know do run serum and proof person needed to establish that a is then convert to them legally intoxicated. The heard the equivalent whole and that following testimony: practice throughout the standard Q. And in law I’m go terms and foren- not going United States. to
sics, requires sample Texas off to say and venture out what blood, correct? specifically Texas law delineates their statutes. Honor, Objection, Your STATE: that’s law. not the received a an- never definitive swer expert, Overruled. from the obfus- COURT: the State any present sugges- relevant factors by objecting other issue cated the is the sole unit record. See Warner tion that whole (Tex.Crim.App.2008). statute. As dis- Even measurement below, sug- also the State though the “some harm” standard is low cussed further closing argument in its threshold, requires gested to the it nonetheless the re- harm, need be the viewing that whole blood actual rather find measurement, trial court and the unit harm. Neither just theoretical Id. ar- objection appeal prove overruled party the burden bears gument. Id. at harm or 462. harmlessness. a case This where Jury Charge A. The *13 an understanding its own to assign to free instruction, single jury received from Kirsch a statute. term undefined Cf. ap- toit whether which asked determine (Tex.Crim. State, S.W.3d v. pellant operate[d] a motor “unlawfully had jury (holding that the should App.2012) public in a while intoxicated.” place vehicle to on its own have free decide wheth- been above, “intoxi- As the definition of stated that the er the showed defendant evidence language of cated” tracked the Section vehicle). a motor “operating” was 49.01, meaning jury was allowed capable only is of one mean- word “blood” appellant impair- convict on either the Code, Penal and the ing the under or theory ment of se per intoxication the of instructed that should have been mean- However, theory of intoxication. the applicable the to the ing it was law to identify theory was which it never asked testimony the jury case. heard Because Thus, used in the event of a conviction. regarding plas- both blood and blood we the found cannot know whether ma, that it we conclude was error refuse that the of appellant lost normal use instruction, appellant’s requested which re- of his consump- as the faculties result by possibility speci- moved of the confusion alcohol, tion of it found that the whether fying type the blood evidence that was in his alcohol concentration blood was available for consideration. legal legally limit under above the charge, or portion flawed whether II. Harm findings Ac- made under both theories. Almanza, Under of harm nec- the level cordingly, turn to the other factors we essary depends on reversal whether erroneous determine whether the denial timely specifically ob- defendant and appellant’s requested might instruction Almanza, jected jury charge. to the See have prejudiced jury’s consideration S.W.2d 171. If defendant did substantially their affected object, not required only then reversal Bagheri deliberations. See egregious the trial court’s error sowas (Tex.Crim.App.2003). created harm that the defendant such not a fair and impartial Closing Arguments trial. Id. B. case proper- Because defendant this Appellant’s theory main was defensive ly objected, required reversal if there During closing not he was the driver. just harm.” “some Id. arguments, appellant spent most of his harm, weigh
To time explaining determine that his fiancée was re- (1) accident, following factors: jury charge sponsible for the and that he had (2) whole; counsel; arguments initially taken the because he want- blame (3) evidence; (4) entirety protect ed to her. 1986); alternative, appellant argued
In the also Kincaid v. intoxicated, point Later, that he 342 (Tex.Crim.App.1976). the State would have been the event relevant magnified ruling further erroneous driving. Appel- to be he found telling appel it could convict just lant the im- argument limited his lant because the his blood BAC pairment theory of intoxication. He asked exceeded 0.15. jury to acquit testimony him because argument The State’s was a misstate- supported responders from the first a find- per ment law.4 Proof se ing impaired. that was theory must be on based evidence of a argued The State was the person’s BAC in whole blood. The trial driver guilty and that he found should on put imprimatur its the improper theory under either of intoxication. As for argument objection by overruling impairment theory, the State recited requires “the law whole blood.” Had the testimony had consumed granted trial court appellant’s requested night several beers accident. instruction, would State have known theory, As for pointed se the State argument, not to its improper make expert’s opinion regarding the alco- *14 jury never would heard those hol appellant’s concentration in whole prejudicial remarks. plasma. blood and blood C. The Evidence Appellant in his third issue asserts that improper closing argu State made an Appellant presented affirmative evi- ment. part We will issue as consider in support dence two defensive theories: harm analysis charge our for error. At (1) driver, (2) that he was not and that beginning closing argument, of its he jury rejected was not The intoxicated. State told the <cYouwon’t jury: find any as evidence it related the first de- in law where here charge] [the theory. fensive The found that appel- it plasma where needs to be whole blood or driver, lant was the we have no and reason y’all blood. This is Ap the law follow.” to suspect byprod- that this was a pellant objected argument to this and as charge uct of the trial error. If court’s blood,” that requires serted the “law whole error at all on the impact jury’s but objection. the trial court overruled deliberations, it affected the manner By overruling objection, appellant’s the tri which assessed evidence al gave impression the incorrect that appellant’s intoxication. a conviction could be had evidence oth blood, thereby impairment theory er than whole Insofar as the magnifying of in- possibility concerned, for harm. toxication See Good v. evidence was (Tex.Crim.App. conflicting. produced 723 S.W.2d The State evidence argument 4. The State contends that its trial of whole blood plas- or the evidence of blood "plainly descrip- an argument was true” and accurate ma. improp- This effect made the charge tion charge. er, of the Because the though grounded by even it was otherwise specify appellant’s did not alcohol con- Myers an accurate of fact. statement Cf. centration must be measured in units (Tex.Crim.App. 20-21 blood, whole believes it be State could not 1978) Op.] (prosecutor [Panel made an im- improper say charge was silent. proper closing argument when a comment disagree. By charge emphasizing that the about an of fact accurate statement created silent, objective was was State's manifest implied an allusion to the indirect defen- convey to the could base a testify). dant’s failure to finding of on either the intoxication expert that the BAC of a admitted The testified impaired: was he higher than beers, blood “serum” is 16% person’s he had consumed several that he Applying BAC of his was no the whole blood.5 system, there in his and alcohol appellant’s that ratio the BAC blood the ac- explaining cause for environmental appellant’s expert opined plasma, a different emphasized Appellant cident. of 0.132 blood had a BAC whole responders the first of the evidence: view of the blood intoxicated, time draw.6 he that he was not believed his slurring speech, examination, the During a voir ex- dire being oriented. alert and described ratio was not conceded his 16% pert suggesting was also evidence There accepted throughout the universally scien- from a could accident have resulted community. that 16% is explained He tific intoxication, an such as other than cause range average, just explana- This alternative overcorrection. “quite depending can be ratios dramatic” jury to question fact for the tion created a gender person. of the If on the health resolve. high has a person blood cell count—for if he example, has leukemia —then the theory, As for the se the evidence can person’s BAC hospital testi- complex. A technician higher or 60% BAC 50% ob- appellant’s sample was fied that whole blood. treatment, solely purposes tained recognized he had “no expert The technician testified that not forensics. apply ratio that there were between idea” what should differences appel- plasma, he could case. never considered blood and blood but characteristics, and how the of alcohol lant’s individual there explain concentrations *15 establishing testimony the two no live whether samples. varied between The was relationship had a count that was explain appellant that blood cell witness who could expert expert, Arnold. normal The ranges.7 was the within ad- State’s William 1.16”). by it between expert provide 5. The did not a ratio as tion The difference the "plas- specifically person's to a expert's relates blood the correct miscalculation and calcu- ma,” recognize differences but we that the lation de minimis. plasma are between blood serum and blood have alcohol con- small. Studies shown that dissenting colleague points out that ap- 7.Our the very centrations are often close between hematologic history pellant’s was checked as same, average samples, not the two if with normal, according report to to a attached his L. approximately variance of See Charles 1%. However, report medical records. Carfagna, Comparison Winek & Plas- Mark of trial, at there is no never discussed indi- ma, Serum, Concen- and WholeBlood Ethanol jury the At the cation that ever saw it. end of trations, Analytical Toxicology 11 J. 267- closing arguments, trial court advised the the (1987) (cited Bigon, approvingly exhibits, requested, that the if would be 6). S.W.3d at 368 n. "I’ll delivered to the room: deliberation re- again you you if want to see mind the 6. appears expert It the miscalculated evidence, any you any can ask for or or all— from 0.158 here. He subtracted (which of 0.158 16% that, all of and we'll send it into the room by multiplying is the same as 0.158 you.” There record that the with is no 0.84), by 0.158 when he should have divided request, did made a and the trial court Jessup 1.16. See No. 13-02-00024- request any docket note a of its sheets. CR, (Tex.App.-Cor- 2004 WL at *3 (mem. if had been 2004) Even the medical records re- op., pus Christi Nov. showing quested, there is that the (reciting no designated publication) expert interpret testimony blood is would known how to them. that the of whole BAC unlikely "dividfing] meaning “hematologic” by concentra- of derived the serum The however, higher jury, the a ters the elimination within phase vised two apply to appellant drink, conversion ratio be- hours of his last but there count, high cause he had a blood cell then indicating appellant when last the BAC of his whole blood would have beverage. an alcoholic consumed Nor was 0.079, per below the se limit. been any of appellant there evidence whether drinking on a or empty had been full stom- testimony, In addition to this conversion By assuming ach. hap- accident expert retrograde extrapo- a provided pened an hour and a before half expert explained that analysis. lation blood draw, alcohol, expert person body that, when a his realize consumes failed information, system will into more absorb the alcohol his without conclusion by During until is eliminated the liver. even could not made absorption of phase, concentration the elimination phase entered time body will alcohol increase at rate at hospital. he arrived factors, number such depends on a D. Other Relevant Factors consumed, many as how were how drinks first note that expert We struggled consumed, they quickly and whether were calculations, perform his which were “on they empty full were consumed fly,” them. described The trial According expert, once all stomach. expert court had excuse from absorbed, fully of the alcohol has been courtroom, and expert returned to give will the alcohol at a con- liver eliminate his calculations after another witness took grams millili- rate of 0.015 stant the stand. per hour. ters (1) two expert assumptions: made that, if appellant also note had been from eliminating alcohol absorption phase at point be- draw, system at time time of tween the the accident and the (2) one the accident occurred draw, then the BAC his whole half hours the blood From before draw.8 blood at time the accident would formula, and his assumptions these stated equal to or have been less the BAC of ap- estimated that the BAC his whole blood the time the blood pellant’s blood at the time This is regardless draw. true the con- *16 accident was 0.133. ratio that is version used. expert explain not in The detail how did Analysis E. figure, pro- at nor he arrived that did It is clear that the assuming ap- a factual for deter vide basis appellant driving, in elimination but pellant phase. was The mined that was it is expert person normally theory a testified en- not under which it clear found that understanding lay lapse. be within testimony, the common of a From live that time we Furthermore, juror. clearly the records de- eyewitness who saw know that the acci- appellant "High” noted that had a count of traveling dent was interstate between cells, presume. "WBC”—white we midnight. eyewitness The p.m. 11:00 and juror seen the con- could have records and testify about time the exact that he saw appellant’s cluded that blood cell count accident, responder but a first testified higher average. "just happened accident before that the mid- night.” point, As for the other the evi- time There is evidence acci- 8. no concrete dence is much a nurse clearer: testified that actually happened dent one a half hours appellant's hospital she drew blood at the The at before the blood draw. was sim- ply analysis assuming his asked to conduct 1:05 a.m. driving for intoxicated. a meanor while There was conflict intoxicated. he was as to this judgment acquittal impairment the- render in evidence under offense, is barred meaning the State conflict was also a There ory. ' Granger, retrying parte from it. See Ex testimony heard theory; per se (Tex.Crim.App.1993). 850 S.W.2d whole blood appellant’s the BAC 0.08, or below de- have been above could support is sufficient There evidence of assumptions sorts pending on which misdemeanor, B conviction for a Class but made. were the trial court because we conclude respect to committed harmful errors with testimony demonstrated expert’s The offense, judg- court’s reverse the must be accounted many variables ment and remand the case for new trial.9 person that a trying to establish when trial But under per se. intoxicated (Frost, C.J., dissenting). law, of the none view court’s erroneous to be needed considered those variables SUBSTITUTE DISSENTING error, charge trial court’s this case. OPINION1 with the improper State’s when combined Frost, Kem Thompson Chief Justice ap- to convict argument, allowed police responded single-vehi- When to a pellant solely on the basis that the BAC of accident, they cle the vehicle’s two limit. found per se his blood exceeded occupants appellant girlfriend— this error We conclude resulted — freeway. in the Both middle were completely some harm because obviated injured. A motorist that he reported jury’s need examine al- defense, highway’s seen truck veer their into and there was ternative affirma- times, median. The truck three support flipped of this tive evidence defense girlfriend ejecting leaving her un- showing that impaired. scene, conscious. At the admit- See Anderson ted officer police to a that he sat down (Tex.App.-Houston [14th Dist.] (erroneous pet.) behind wheel truck and instruction on the se turned key. Appellant theory of intoxication admitted hav- harmful, even later ing five though getting there was sufficient consumed beers before impairment behind the wheel. theory ap- convict under the convicted driving intoxication); pellant while intoxicated Bagheri, cf. (erroneous (“DWI”). Today, the court reverses the 763-64 of retrograde admission harmful, conviction. extrapolation testimony was even though there was sufficient evidence apparent history In first impairment convict under theory majority Texas jurisprudence, holds *17 intoxication). defining the trial court in a term erred using unambiguous
the the lan- same CONCLUSION guage Legislature to the Texas used define in legally establishing The evidence to the term the the is insufficient statute error, charged a a support conviction for Class misde- offense. After the 28, 2015, dissenting opinion May disposition unnecessary 9. This to 1. The makes dated issue, withdrawn, in address which he fourth in opinion is and this is issued its argues imposed court an uncon- trial place. community supervi- stitutional condition of sion.
705 harm, despite plain-meaning of term majority also finds over- the “blood” is whole whelming appellant was evidence that driv- blood the trial court and concludes in erred Seeing ing while intoxicated. neither er- refusing the to substitute term “whole harm, I respectfully ror nor dissent. blood” for the term “blood” because the charge had a meaning “variable” Jury Charge The eyes jury. majority of the The concludes guilt/inno- In for the charge charge a meaning had variable phase, court cence the trial defined “alco- expert State’s witness did not know hol concentration” as “the number of whether the term “blood” meant “whole grams per of alcohol 100 milliliters of legal expert blood” a context. The Appellant objected blood.” requested and testify meant plas- the term blood the trial court to the word insert “whole” expert ma. explained The plas- blood so that the would read “the num- definition ma and whole are blood different per ber of grams of 100 milliliters alcohol Department Houston Police crime lab of whole trial court blood.” The overruled uses whole if it blood available and appellant’s objection refused to submit converts into blood whole blood if form appellant definition re- whole response is not In blood available. quested. question to a asking expert Article 86.14 Code Criminal law required aware whether Texas trial requires provide Procedure court to a plasma, blood or blood stated: charge distinctly a written jury setting forth applicable the case.2 law report all values as Without —we definition the trial submitted tracks equivalent. alcohol whole blood I plain Legislature the Texas language and plasma know we do run serum chose to define “alcohol concentration” in then convert to the them whole blood definition, DWI statute.3 In equivalent practice is standard and that trial applicable court set forth the law through I’m go- the United States. jury charge the case.4 A that tracks the ing go say off venture what language particular a statute is a proper Texas delineates in specifically [l]aw charge statutory issue.5 their statutes.
No Error majority State obfuscat- concludes meaning objecting any ed Citing sug- a leading dictionary and medical n textbook, majority explains gestion that whole the sole unit of (West, 2. acquired See Tex. Proc. art Code Crim. 36.14 the definition of term that has C.S.); Westjaw through State, Casey 3d v. legal meaning. technical or established See S.W;3d (Tex.Crim.App. S.W.3d (Tex. 771-72 Medford 2007). Slate, Crim.App.2000); Middleton v. (Tex.Crim.App.2003) (plural- 49.01(1) § 3. (stating See Tex. Penal Ann. Code But, ity op.). " in neither did the Court of ‘[a]lcohol concentration’ means the Appeals Criminal hold the trial court abused grams number of ... 100 mil- alcohol charging its in not discretion on the blood”) (West, through liliters of Westlaw definition of a term with a technical or estab- C.S.). 2013 3d event, legal meaning. any lished In neither Casey, 4. See parties majority 886-87.. nor the cite cases *18 holding is that "blood” either a technical State, (Tex. 5. See Riddle v. 888 S.W.2d legal term or a term with an established Crim.App.1994). Citing opinions, to two the meaning. majority jury given states that the should be on appeal But, party bears the burden Neither the statute. the under measurement harmlessness.11 prove harm or objections. those court overruled trial whole, jury charge as a assessing the In cite, majority nor the appellant Neither charge re- majority notes that revealed, any Texas not has and research guilty appellant to find quired trial court’s that holding precedent was intoxi- appellant jury determined is er- “alcohol concentration” definition theory impairment an either cated under proffered defi- appellant’s or that roneous majority finds theory. The per or a se has research re- required. Nor nition is charge harm” from “some holding that a precedent any Texas vealed trial disregarded the court’s jury may have submitting jury charge trial court errs found that unambiguous instructions and Texas statute. applicable tracks the solely on intoxicated based appellant was Instead, the not do so. This court should plasma had appellant’s blood trial court conclude court should of 0.08 more. alcohol concentration an appellant’s objec- overruling not err in did closing arguments, analyzing counsel’s In the definition refusing to submit tion and may have notes the majority State Because appellant requested.6 form alleged jury-charge error. emphasized the err, is no need court not there the trial did however, in majority acknowledges, As the analysis. a harm conduct ar- appellant’s argument the balance argument gues he was the driver —an No Harm the evidence rejected —and argu- for the sake of presuming Even impaired show he was in rejecting trial court erred ment that the theory of intoxication. impairment jury charge, the appellant’s error proposed substantial evi- presented The State jury charge If a contains is harmless. was intoxicated under dence error, analyze must appellate theories. The impairment se and both it is harmful.7 error to determine whether appellant’s blood alcohol concentration objected timely to the Because was .158. testified only if charge, this court should reverse that, percent of whole average, on “some harm.”8 In as- appellant suffered material. Accord- consumed cellular standard, sessing harm under expert, plasma does not ing to the (1) jury charge as a weigh court is to material, which means contain whole; counsel; (3) (2) arguments plasma, of blood alcohol concentration (4) evidence; entirety percent higher than the average, is 16 rec- present other factors relevant blood, Us- concentration whole alcohol harm” though calculation, ord.9 Even the “some stan- expert converted ing this threshold, a low find “some concentration of plasma-alcohol dard reviewing harm” court must find actual concentration to whole-blood-alcohol .158 .132, harm, 0.08.12 just harm.10 of well above rather than theoretical 886; Riddle, 10. Id. Casey, 6. See 215 S.W.3d at 8. 11. Id. at 462. (Tex. 7. Ngo 175 S.W.3d Crim.App.2005). 12. Significantly, the extent the part of relying upon the alcohol-concentration 8. See id. “intoxicated,” the definition the evidence to determine whether asked 9. See Warner v. beyond a reasonable doubt (Tex.Crim.App.2008). proved
707 expert’s plasma majority emphasizes blood-alcohol concentration was 50 The percent testimony percentage percent higher a whole 60 than his cellular cell consumed material whole blood-alcohol concentration. blood Con- circumstances, sidering light in- in vary can under certain this evidence of the ex- that, pert’s The on cluding testimony average, cancer. noted blood indi- leukemia, 50 percent the case of to vidual’s blood-alcohol concentration percent higher of an affected individual’s whole is than percent the individual’s concentration, material. The whole could contain cellular blood-alcohol blood leads appellant’s that if blood-cell conclusion majority appellant’s *20 a concrete barrier with sharply into JOHNSON, Appellant JerreJI Shamar three roll truck times.
enough to force shows the circumstances Other evidence suggested it was single-vehicle crash Texas, Appellee STATE on appel- event based an alcohol-related four having to consumed lant’s admission No. 04-14-00557-CR as or five before crash well beers Texas, Appeals Court scene, which at the appellant’s behavior San Antonio. police to officers.17 There lying included factors.18 relevant are other July and Filed: Delivered whole, jury charge as Weighing the counsel, arguments case, concluding
presented factors, no other relevant this
there are error conclude should
the trial court is harmless because of the
overwhelming evidence of
guilt.19
Conclusion jury in charged ac- trial court Texas law. The trial court
cordance with appellant’s request refusing
did not err in language jury charge. add Even refusing the trial court erred in
appellant’s request, error would be of appel-
harmless because the evidence Therefore, guilt overwhelming.
lant’s the trial court should reverse court’s
judgment and remand this case the trial judgment
court to reform reflect a
conviction for the B Class misdemeanor 49.04(a),
under Penal Code section hearing. punishment
conduct newa 17. See appellant's id. concentra- whole-blood-alcohol
tion. expert's
18. The de minimis calculation errors significantly did not the evidence of affect 19. See id. notes of a composition pa- mirrored that cancer blood-alcohol over concentration tient, legal appellant’s theory, then whole-blood-alcohol limit of .08. Under se .079, just been supporting appellant’s concentration would have the evidence convic- But, tion legal appel- limit of .08. is strong. under the composition lant’s blood mirror a The evidence also shows appellant was composition. patient’s blood leukemia impairment intoxicated theory.15 appellant’s paramedic The record evidence contains who arrived the accident Among records.13 them is a scene appellant (1) medical he- testified told him matology report.14 report appellant This contains four had consumed alcoholic bev- (2) complete erages count with appellant reference was the driver ranges. report appellant’s The shows the truck. records into Medical admitted count, level, hemoglobin cell red blood from a include notes social work- notes, platelet count were all within the er. According reference told range only appellant’s and that white the social drinking worker he had been accident; cell count was outside the reference appellant placed before the range. Appellant’s hematologic history consumption count at five beers rather Appellant’s checked as “normal.” para- medical the four he had beers told the contain no of a records notation leukemia medic.16 shows Evidence any or mar- was diagnosis driving other blood bone the truck on the interstate disorder. This evidence weighs highway light good row traffic and condi- against conclusion tions suddenly when the truck veered great- jury blood-alcohol concentration was .08 or It could was. In consider. deter- er; Almanza, was not mining asked make deter- harm under this court must regarding mination an alcohol consider Arrington concentration the entire record. See v. State, 834, higher. of 0.15 or (Tex.Crim.App. 840-44 S.W.3d 2015) (reversing appeals considering error harmful entire rec- without 13. trial court advised that exhib- ord). would be its delivered to room if requested. This instruction accords with Tex- 36.25, 849, Code of Criminal Procedure article 15. See Butler v. 857-58 ref’d) provides (Tex.App.-Houston which exhibits must pet. be fur- Dist.] [1st jury upon jury's request. (holding charge nished to the resulted from error harm relating theory guilt Tex. Code Proc. See Crim. Ann. art. 36.25 to one because evi- (West, C.S.).' through supported guilt theory). Westlaw 3d dence under alternate majority speculates about whether 16. See 14. Atkins 'd) juiy (Tex.App.-Austin pet. (holding went medical records into room and ref (cid:127) jury-charge light whether the what the hema- understood error harmless of evi intoxicated, tology report inquiry relevant dence meant. The includ defendant beers). report ing drinking part multiple whether the of the evidence admission of