*1 KIRSCH, Appellant, Brian Thomas of Texas.
The STATE No. PD-0379-09. Texas. Appeals Court Criminal 10, 2010. Feb. *2 Houston, Peters,
Amanda for Appellant. Houston, Kugler, Atty., Eric Dist. Asst. Austin, VanHorn, Jeffrey L. for the State.
OPINION J.,
COCHRAN, opinion delivered the KELLER, J., the Court in which P. JOHNSON, WOMACK, KEASLER, HOLCOMB, JJ., joined. HERVEY and A of driving convicted (DWI) while intoxicated and sentenced him 78,000-pound caused trailer to skid days Appellant contends that jail. to 45 rest, sideways. came to a After trailer upholding erred appeals the court investigate Mr. Gomez hurried charge court’s submission trial *3 appellant impact, of the discovered cause by having an alcohol se intoxication car, patrol his and called unconscious in when in of 0.08 or more content his blood blood alcohol the evidence a pursuant limiting admitted
level was appellant took Responding paramedics with the court of agree We instruction.1 Hospital to Ben Taub for treatment of a (1) judge’s that oral appeals They injury. signs head did notice (2) improper, but the total- instruction was impairment appellant on of intoxication or permit sufficed to ity evidence unconscious, para- but one because he was appellant that had an conclude in appellant’s medic smelled alcohol blood. more concentration 0.08 or appellant alcohol the hospital, regained At con- time he We therefore sciousness, was belligerently. but behaved ap- judgment personnel affirm the of the court of Emergency-room ap- described pellant “lethargic, uncoopera- peals. slurring, tive, and unresponsive.” His medical rec- I. arrival, “upon patient ords that was stated obviously intoxicated.” Those records also 18, approximately May At 3:00 a.m. on combative, appellant as destruc- described County a Harris appellant, deputy tive, control, exhibiting poor impulse and sheriff, was in an acci- involved automobile and had physician per- revealed a dent with tractor-trailer north Hous- “up mitted a for “4-point restraint” to 8 Appellant working an extra ton. had hours total if patient unaccepta- [exhibited] job, patrolling neighbor- the Pine Shadows ble behavior.” patrol appel- in a car. As night hood Becker, center-chief, right-hand Dr. emergency lant drove southbound road, thought appellant’s aggressive behav- freeway frontage lane of the Jesse Gomez, tractor-trailer, consumption ior was the result of his 18-wheel rather appellant than head trauma because appellant, preparing ahead of to make a understand, seemed intentionally but at the right-hand turn Airtex intersection. disregard, and questions, requests, com- vehicle, Because the size of his Mr. mands. Dr. Becker ordered a blood-alco- right a wide turn from Gomez made a.m., hol at 4:28 a revealed that, center lane. He testified 0.123, serum-alcohol concentration of turning, checked his mirrors and saw (BAC) translated to a blood-alcohol level patrol car about 300 feet be- 0.10. him. Deciding patrol hind car away, was a safe Mr. Gomez distance Investigating officers downloaded infor- on right-turn signal, turned his slowed to patrol mation from the car’s “black box”— approximately m.p.h., began 15 a device that stores data about car’s Mid-turn, turn. Gomez impact Mr. felt an functions five prior air-bag for seconds deployment.2 to the of the trailer The data portion appel- side-rear showed states, Appellant’s ground sole for review instruclion and there was no evidence that appellant was intoxicated Appeals permit- The First Court erred driving he was the automobile. ting jury charge se intoxication appellant's Technically, when blood alcohol it an data “event retrieval pursuant level was admitted to a module.”
741 m.p.h. four prefer just lant seconds State: I’d keep simple collision one m.p.h. just before the sec- particular to that time be- posted speed ond before the crash. The things may cause think change. m.p.h. patrol limit was car left skid Court: Of course. pavement,
marks on the black box State: But going I’m not to be able to indicated no brake application, suggesting you ask say, later to comment and applied his brakes less Now things changed; are can you now one impact. Deputies than second before use results. two also found Smirnoff vodka bottle caps *4 I Court: want one they instruction that patrol car. go can that with will fit with writ- Appellant filed a pretrial motion to sup ten they’ll get instructions that press argued the blood-test results and trial, of close that will include the produce State could not retro says instruction that the State extrapolation grade testimony.3 The trial to prove beyond has it a reasonable court suppress, denied motion to doubt that alcohol level was .08 said that he to intended admit BAC- greater at driving.... the time of limiting test result with a instruction until State: Okay. you’ll say So then at this extrapolation the State offered evidence.4 particular trial, point evi- dence is for the— State When the started to elicit testimo- Court: ny purpose Limited of about BAC-test result dur- trial, ing the individual who was tested had in- judge pro- discussed his gested posed limiting prior alcohol some time to insti’uction outside the the test. presence jury: State: All right. proviso With the
Court: I think wise to it’s instruct them Court is adamant at the time it comes in that it is particular understands it’s at this purposes offered limited at this trial, time that’s what for. it’s certainly time. It’s admissible on the issue of or not whether the individual Right. Court: And say nothing more ingested had ... alcohol and it’s in acceptable you than that. Is that system. them all? Well, 3. See Mata v. put S.W.3d 908-09 Court: he's allowed to test (Tex.Crim.App.2001) (“Retrograde extrapola- result show that alcohol was somewhat involved, I believe.... computation tion is the back in time of the Judge, is, State: both the Stewart and [Mechler] blood-alcohol level—that the estimation of casefsj recently have been decided all and level at on a of based test the evidence shows that alcohol has been time"; noting some later that a ingested and also to show loss of normal particular absorption depends rate on a vari- physical use of mental and faculties. factors, alia, ety including, of inter food in the limiting Court: ... [There will] have be a stomach, gender, weight, age, amount con- if instruction ... it come into evi- does sumed, period consumption). So, give dence. the Court will admitted, if instruction at the time that’s it colloquy hearing
4. The at that was as follows: is admitted. time, point State: At this I feel don't that I any problem State: Sure. I have don't extrapolation per- sufficient facts to going anticipate that. the Defense is retrograde extrapolation.... form the give extrapola- call that will me witnesses Defense: Without ... we certainly move admissi- approach I’ll tion facts. But bility of the evidence is irrelevant. Court before that. reentered, motion denied tion. When the agreed. All statutory following instruc- on both gave charged tion: of intoxication.6 definitions tell going I’m jury, Members closing the issue During arguments, off—will be now that the result you the BAC-test how could consider for the limited by the Court received again. Defense counsel stat- result arose showing that the individual ed: tested
who was the time of the too much I hate —I don’t want talk only purpose that will That is test. ... the machine this blood because only purpose for offered and the And, again, that can make mistakes.... it at this time you should receive a half later is still an hour and in this trial. con- there’s no evidence blood alcohol laboratory supervisor then The Ben Taub And centration at the time of *5 level was that BAC testified leap make the of faith you cannot minutes after acci- eighty 0.10 some Judge’s limit- there.... Remember dent. you ing got as to when instruction
During hearing go anywhere on motion can’t else. a evidence? You verdict, the trial court ex- for directed rebuttal, prosecutor a differ- offered whether there was pressed concern about ent interpretation: a on support charge sufficient to evidence specifics. in- Let’s focus on the The definition of intoxication.5 “per se” got BAC- you [the struction when that, given Appellant argued in, to instruction, given test came result] insufficient there was evidence particular to you on consider that permit per a conviction defini- " 49.01(2)(B), put § 'In- that I believe has been to rest with Mata Under Tex. Penal Code Stewart, having an and means: alcohol concen- Mechler and that the breath toxicated' get or more." This BAC level is [in]. tration 0.08 test result comes We submit breath, blood, paragraph a or urine test. entire use .08 measured loss normal elect, Concerning per they jury. se definition intoxi- to the And have to don't stated, cation, judge they get just the trial decide the evidence.... we just to be of that Court: I want sure being Court: I'm concerned about there suffi- tomorrow, go okay? forward support general cient evidence a verdict go I’ll State: Sure. and find those. goes in paragraph if the in the test application paragraph in the instruc- pertinent portion application The of the tions, there is no evidence of ex- because paragraph read: trapolation I back to the time of beyond if you ... believe the evidence any evidence at all.... I'm con- don't see ... a reasonable doubt the Defendant jury were to with cerned—if the come back intoxicated, namely, having did verdict, while guilty know which a we would not physical use of his mental and normal they para- on. And on paragraph relied .08 faculties due to the introduction of alcohol enough graph, I don't see evidence on body, operate a in a motor vehicle at to show that he an .08 .08 public place; OR [of at the time offense!.... you beyond If believe from the evidence your is. I understand what concern State: know, ... reasonable doubt that the Defendant pretty case law is clear that You intoxicated, namely, having an did while extrapolate get the don’t have to breath least in his paragraph. alcohol concentration 0.08 in or breath test test results So, blood, operate public appel- a motor vehicle we’ve had this hullabaloo now, guilty. years place, you will find Defendant late courts for about four or five definitions, time in the trial. That particular at that both both gone instruction is now. theories are submitted in the jury charge.10 Appellant objected, noting that the trial admissibility We first address the had not withdrawn the oral probative value of BAC-test evidence and instruction; judge agreed, ex- propriety then the per trial court’s plaining, “It’s not the written instruc- charge se intoxication and the limiting in- tions, but it is an oral instruction that the struction. required by.” is still to abide The Admissibility A. of BAC-test results. general guilty. returned a verdict of claimed, I. The law. The of appeals proper- court appeal, appellant
On direct
in-
ly analyzed several recent
alia,
cases which
ter
that the trial
erred in sub-
we held that intoxilyzer
results
mitting jury
instructions on the
were
that,
admissible and
se intoxi-
argued
definition of intoxication. He
cation even
retrograde extrapola-
without
because the blood-alcohol evidence was ad-
testimony.11
tion
In Stewart v.
permitted
mitted
an
intoxilyzer
defendant took an
approxi-
to consider the evidence for the
mately 80 minutes after she had been driv-
limited
ing.12
trial court admitted the
point prior
test,
of 0.154 as some evidence that her
to the
should not have
legal
was over the then
limit of 0.10 while
charged
se intoxication because
*6
However,
driving.
the court of appeals
to prove
there was insufficient evidence
that, by admitting
reasoned
the breath
at the time he
drove.7
test,
encouraged
the court had
appeals
The court of
concluded that
“conduct its own retrograde extrapolation
jury charge
proper, although
the limit-
and to decide
case based on facts not
ing instruction was not.8
in evidence.”13
held that
the results
It
were irrelevant to show she was intoxicat-
II.
ed at the time she drove.14 We reversed
statute,
the Texas
in
Under
DWI
explained,
proven
toxication
in either of two
prove
Evidence need
itself
or
(1)
ways:
loss
normal use of mental or
relevant;
particular
a
disprove
fact to be
(2)
physical faculties or
alcohol concentra
provides
it is sufficient if the evidence
blood, breath,
tion in the
or urine of 0.08
nudge
proving
disprov-
small
toward
or
more.9 The
first definition is the “im
ing
consequence.
some fact of
pairment” theory, while the
second is
“per
theory. They
mutually
se”
are not
The issue here is whether Stewart
exclusive, and, as
there
long as
is evidence
was intoxicated at the time she drove.
State,
579,
(Tex.
Kirsch,
7. Kirsch v.
589
276 S.W.3d
276 S.W.3d
589-91.
11.
2008).
App.-Houston [1st Dist.]
State,
93,
(Tex.
12. Stewart v.
129 S.W.3d
95
Id. at 591.
Crim.App.2004).
49.01(2).
9. Tex Pen.Code
§
(citing
96
Stewart v.
Id. at
103
483,
(Tex.App.-San
486
Antonio
S.W.3d
Mechler,
435,
10. See State v.
153 S.W.3d
2003)).
Mechler,
(citing
(Tex.Crim.App.2005)
State v.
(Tex.App.-Houston
[14th
2003)).
Id.
Dist.]
granted
and the trial court
testimony,
tended to
test results
breath
Stewart’s
that she was
probable
it more
v. State.18
make
based on Mata
motion
drove under
at the time she
intoxicated
Mata,
expert extrapolation
held that
we
because
of intoxication
definition
either
only if certain fac
testimony is admissible
that she had con-
they provided
known,
length
“the
are
such as
tors
And,
no evi-
there is
alcohol.
sumed
drink,
time of the last
drinking spree, the
alcohol after
that she consumed
dence
19 However, in
person’s weight.”
driving.15
Mechler,
ap
court of
we affirmed the
the test result
stated that
Although we
that Mata addressed
peals’s holding
of the defen
“conclusive” evidence
was not
testimony, not
admissibility
expert
time she was
dant’s intoxication
admissibility of the test results.20 We
and,
coupled
driving,
probative
it was
were ad
that the BAC results
concluded
could suffice
the other
extrapo
in Mechler even without
missible
time she was
intoxication at the
per se
(1)
testimony
“they
because
tend
lation
driving.16
defen
probable
[the
make it more
Mechler,
the defen-
Similarly, in State
of driv
intoxicated at the time
dant]
intoxilyzer-test
indicated
dant’s
impairment
under
se and
ing
both
approximately 90 minutes
of 0.165
(2) their
of intoxication” and
definitions
Mechler moved to
after he had driven.17
un
outweighed
value
the risk of
the State was
suppress the result because
extrapolation
under Rule 403.21
retrograde
prejudice
offer
fair
unable to
omitted).
(footnotes
concerning
weight,
an individual's
formation
15. Id.
state, drinking pattern, type and
age, mental
16. Id. at 97. We noted:
consumed,
food
amount of alcohol
amount of
stomach,
period
pieces
were
in the
and the time
of alcohol
The breath test results
evidentiary puzzle
reliably
person's
consumption,
for the
to consider
estimate that
determining
whether Stewart was intoxi-
Id. at 916. But
BAC at the
experts say
pro-
cated at the time she drove.
we
noted that
that "the
*7
also
issue,
variable,'
'highly
evidence to decide that
such as
absorption
other
cess of alcohol
arresting
testimony
officer's
about
pitfalls
limitations and
associated
and ‘the
driving patterns
pulled
retrograde extrapolation
Stewart's
are often not
"
over,
field sobri-
her
the results of Stewart's
by laymen
appreciated
and the courts.'
Id.
tests,
ety
Stewart's admission to the officer
Eugene
(quoting Richard Watkins &
at 910
couple
Adler,
had a
of beers at
con-
Absorp-
that she
Food on Alcohol
Effect of
cert,
Patterns,
statement that she "couldn't
Stewart's
and Elimination
38 J. of Foren-
tion
sober,”
I.Q.
sobriety
the offi-
(1993)).
tests]
do
field
[the
test
Just as
sic Science
events,
videotape recording these
cer's
a
results are not an exact measurement of
level, so, too,
the breath tests were conduct-
the fact that
person's intelligence
the "stan-
twenty
after Stew-
ed an hour and
minutes
"average” extrapolation
BAC-test
dard” or
of
stop.
art's traffic
driving
exact
results back to the time of
is not
("The
properly
test results were
Id.
breath
unless numerous variables are accounted for.
IQ tests,
evidence to consider with all of tire
admitted
may
probative
be
Like
retardation,
if
other evidence of intoxication to determine
results
mental
so
BAC-test
was intoxicated at
the time she
Stewart
fact
intox-
probative of an ultimate
such as
be
drove.”).
driving,
while not a
ication at the
precise measure of that fact.
17.
746 * shortly of alcohol his blood the odor taking at the well as driving as accident; after the the test. * (but caps of vodka bottle presence case, the evidence was this In¾. bottles) car; patrol no charge on the support sufficient * hospital and belligerence at the his Applying intoxication. “per se” with intoxi- consistent other behavior case, appel we find that the law to this cation; indicated a result —which lant’s BAC-test * appearance “obviously intoxicated” minutes after approximately 0.10 BAC room, according emergency at the admissible to probative he drove—was personnel. ER drove, even while his BAC level Appellant testimony. extrapolation absent that the contention Appellant’s from our this case attempts distinguish unextrapolat- rely only on have had cases, that, in those by arguing prior cases of a se support ed BAC-test support an was other evidence there inaccurate. We conviction is intoxication definition, such on the together that this conclude in symptoms of driving, physical result, erratic submission supported the BAC-test toxication, consump of alcohol admission intoxication and charge of a defendant, and failed field so by the tion theory. conviction on He contends briety tests. that, be Appellant argues also case, support was no such additional there trial admitted BAC- cause the not The record does ing evidence. instruction, the limiting test result with ev The heard appellant’s contention. considering the precluded from jury was idence of evidence of result as BAC-test * m.p.h. driving almost He contends per se intoxication. limit to the acci- speed prior over the limiting instruction and the “[t]he dent; contradictory were instructions charge * hitting an and avoid erroneous, his failure see given together, when that were that was turn- tractor-trailer 18-wheel Appellant is correct confusing.”27 ahead of distance ing confusing, a substantial instruction was him; jury from consid prevent did * in “per se” ering whether than one to brake until less his failure time he was toxicated at the impact;26
second before * immediately after his unconsciousness instruction. B. accident, any in- precluded Rule 105 of the Texas Rules be- that he alcohol and
ference
drank
provides
“[w]hen
Evidence
driving;
after he was
came intoxicated
person, who was
undistracted
26. See Sierra
*9
limit,
("Looking
mile-per-hour speed
the evi-
(Tex.Crim.App.2009)
thirty-five
at
light
prose-
dence
cution,
favorable to the
seventy-one
most
the car.
stopped
feet before
permitted
a rational fact-finder
Therefore,
the col-
could have avoided
Sierra
driving recklessly or
that Sierra was
conclude
lision,
so,
though he
he failed to do
even
was no
dangerously while intoxicated. There
hitting
stop
opportunity to
before
ample
attempted
be-
evidence that Sierra
to brake
car.”)
though
impact,
he told Officer
fore the
even
away
the car
he
247 feet
from
Ertons that was
Appellant's Brief at 3.
27.
Sierra's
spotted it. Based on
when he first
normal,
account,
that a
the evidence showed
party
fully
one
or
which is admissible as to
admissible.
‘“Texas
are
courts
for-
as to an-
purpose
instructing
one
but not admissible
bidden from
the jury
any
on
party or
purpose
presumption
other
for another
is ad-
or evidentiary-sufficiency rule
mitted,
”30
court, upon request,
shall re-
that does
statutory
not have a
basis.’
proper scope
the evidence to
an
strict
its
and Such
instruction
an improper
is
com-
Thus,
jury accordingly.”28
weight
instruct
ment
of the evidence.31
statute,
evidence,
judicial
when a
rule of
or
case,
In this
instructed
certain
precedent stipulates that
jury
that it could consider appellant’s
may be
a specific,
admissible for
limited
BAC-test result “for
the limited
purpose,
jury
should
instructed as
showing that the individual tested had in-
that purpose
and told not to consider
gested
alcohol
some point
other,
improper, pur-
that evidence for
the time of
Obviously,
the test.”
the BAC-
is, however,
statute,
no
pose. There
Texas
result
was relevant to show that ap-
evidence,
precedent
judicial
rule
or
pellant had ingested enough alcohol at
jury’s
limits the
of an
consideration
other-
before the time of the test to
wise admissible
result. Our
BAC-test
de-
by
become intoxicated
the time of the test.
Mata, Stewart, Mechler,
cisions
and Gi-
itBut was
also
show that he
A
gliobianco
opposite.
state the
BAC-test
was intoxicated at
the time was driving,
is taken within
reasonable
even though
by
it was not sufficient
itself
period
time after the defendant has
intoxication at
time of driving.
he was
shows
above
Thus, the instruction was misleading as
legal
limit of
at the
intoxication
time of
well as an improper comment on the
taking the
probative although
test is
not
—
weight of the evidence.
conclusive—of
se intoxication at the
time of
The BAC test
But the judge’s limiting instruction did
intoxication at the
prevent
test must be not
considering
supported by some other evidence that BAC-test result
as evidence
his
indicates intoxication
time of driving
intoxication at the
of driving;
it told
well. But
judicially imposed
re-
proba-
it could be considered
quirement
sufficiency
deals with the
tive of
or
ingestion
intoxication
admissibility
not
“only
or use of
at some point before the time of the
test,”
requires
evidence. Absent
statute that
necessarily time of driv-
ing.
to be
about the suffi-
argument, appellant
instructed
contends
ciency
jurors
of certain
“only
are not
could
]
consider!
evidence,29
instructed on such issues or limited in blood test
alcohol consump-
establish
their consideration of evidence otherwise
tion.”
That
is not what
the limiting
105(a).
mit
theft
arises from
nonconsensual
Tex.R.
28.
Evid.
nighttime entry
building.
of a home
But
See, e.g.,
Tex.Code Crim. Proc. art. 38.14
legal
an
"pre-
on this
(Testimony
Accomplice).
sumption”
improper
an
comment
on the
weight of the evidence.
(Tex.
30. Brown v.
omitted).
(footnote
Id. at 800
Crim.App.2003).
explained:
We
appellate
both
courts
trial
meas-
Id. at
sufficiency
ure the
of evidence
resort to a
*10
judicial
jury
presumption,
the
but
cannot be
Appellant’s
Brief at 7.
presumption
told of that
or rule. For ex-
ample,
presumption
the
of an intent to com-
test
at the time he
But the
says.33
“only”
The word
modi-
and
drove.
instruction
phrase
point
“when”
some
improper
fies the
instruction was an
comment on
—“at
the test” —not
the
the time of
evidence,
before
the
the
and it
weight of
was
ingested alcohol.”
phrase
“what”
susceptible
because was
misleading
—“had
is,
is
appellant’s argument
premised
That
misunderstanding.
trial
belief
the
mistaken
upon
sum,
properly
In
the trial
in-
jury
told
limiting instruction
judge’s
intoxication
jury
per
structed the
on the
se
it could
the BAC evidence
consider
theory because there was sufficient evi-
“for the limited
dence, in
to the 0.10 BAC-test
addition
only ingested
individual
tested
result obtained 80 minutes after
acci-
before the time of
dent,
was
appellant
to conclude
mentally
Appellant
misplaced
the test.”
intoxicated at
time of
accident.
court of
fol-
appeals
the modifier.34 The
The trial
erred in giving
it, too,
wake,
may
in his
and
lowed
instruction,
simply
but
instruction
in-
misreading
in-
of the
accepted
that,
itself,
jury
formed the
the test
struction.35
appel-
prove
result did not
more than that
Technically,
judge’s limiting
the trial
in-
(and
lant ingested alcohol
became intoxi-
legally
incorrect:
struction
not
a BAC
cated) “only at
some time before
person
not
a
does
tell us when
became
test
This
improp-
the test.”
instruction was
person
neces-
intoxicated
was
misleading,
prohibit
er
not
it did
the time
sarily
intoxicated at
result,
using
the BAC-test
that,
needs some
For
additional
along
the rest
of the
evidence;
case,
there
ample
this
was
appellant
conclude that
se intoxi-
that appellant
additional evidence
at the
cated
driving.36
intoxicated
at the time was
quoted
colloquies
misplaced
easy just
33. From
the text
modifier is
move it
—
7,
only
have been
it modifies:
footnote
what
before what
‘Annette ate
two
”).
say,
judge intended
but diat is
what he
cookies.'
say.
presume
And
did
we must
that the
actually giv-
Kirsch,
that was
followed
35. See
The that the contends was no to give limiting basis instruc- instruction informed the that it could tion in this case. is perhaps That the most consider BAC evidence as evidence important point, a jurisprudential from of the at time he standpoint, to be from taken the Court’s driving, could only consider it as opinion today. some Our case law does not re- evidence that the appellant quire had consumed retrograde evidence of extrapolation quantity some of can support before BAC evidence submis- specimen blood theory his was taken sion of the intoxication in construed, at the hospital. Thus limit- so charge again, long as there is — ing other, instruction would render the evidence circumstantial the case of the in import BAC similar which a could infer rationally alcohol; evidence that his breath smelled of that BAC at the of was at say, it is to is relevant to the issue least or say .08 above.1 This not to intoxication, itself, but hardly, by determi- always BAC evidence must be admitted. native. having import only, Evidence may certain cases that the BAC contends, the appellant cannot support evidence should be excluded under Rule submission of intoxi- 403.2 Such evidence substan- [thalj think, therefore, time mention the blood judge results” until We intended judge admissibility had decided the admissibility oral written and Thus, prosecutor BAC-test result. when the evidence of the BAC-test result be considered later together offered into ap- records and that the "[sjubject previ- ply admitted them to the to both. presence ous discussion outside the (Tex. jury.” Ben Taub chemist later testified to Stewart they BAC-test results as were Crim.App.2004). contained report. the written It was this time that gave instruction. 2. Tex.R. Evid. 403.
750 any evidence whatsoever probative if the dence as than prejudicial more tially BAC, the whether at appellant’s evidence does not actual circumstantial attendant an inference was taken or at the specimen time the compellingly at least of was Instead, at time BAC the the should encouraged be .08, jury may the because odor alco- regard it like evidence of the of at time infer a BAC the of uncritically to breath; is, is to hol on the it relevant justified by the is not well driving that show, prove, itself to but insufficient evidence is thus BAC evidence.3 When If per theory. the se intoxication under 403, presume Rule we excluded under judge the trial this had been what evidentiary no there is hold that would think the jury, told the then I actually theory of intoxi- to submit the basis argument would be well taken. Here, the trial jury charge. in cation the (or no at There would be evidence BAC exclude the BAC evidence on judge did not BAC) all, point at qua any least BAC potential preju- for unfair the basis that its time, in no basis submit- therefore value, its under overcame dice in the ting the intoxication Moreover, imagine I cannot on Rule jury charge. case that he would have facts of this the Nor, doing so. as the justified actually instructing it to But when came any was there basis for explains, Court jury, judge say pre- the the trial did impact the limiting evidentiary BAC cisely going say. he he was to what said agree therefore trial evidence.4 I that, by adding The the modi- Court holds given limiting never have judge should (and by adding it “only” particularly, fier place. give But it in the first instruction did), he place the sentence where did, it. And if and he never rescinded he actually limita- judge expressed the trial right import, about its is much upon tion the BAC evidence it it to me that would be if then seems than he I dis- narrower what intended. excluded BAC evi- the trial court had it, view, my agree. way you parse jury charge under Rule 403—a dence what the trial told the consti- would unwarranted. se intoxication expression tutes of a limitation that depends, it therefore seems Everything prohibited using would have from me, limiting to on what instruction qua evidence. actually Putting aside for the instructed. says con- Court judge actually said moment what struction of the actual instruction to instruc- giving by making “misplaced has the modifier” tion, he made clear on record that “only” modify phrase the word the “what” convey was that what meant alcohol”) (“ingested rather than the jury’s BAC evidence consideration (“at “when” phrase exclusively “showing should be limited test”).5 important It individual who tested had recognize that the trial did not need at some time prior “only” modify any phrase an plainly prohib- This language test.” his intended considering get BAC evi- order 637, opinion Majority 3. Gigliobianco v. 746-47. 643 Mechler, (Tex.Crim.App.2006); State (Coch (Tex.Crim.App.2005) S.W.3d Id. at 747-48. ran, J., concurring). adding receive it across.6 I concede should at this time in
meaning *13 (and moving) changes po- the modifier the trial.” But it meaning of the sentence. tential jury This instruction informed the that its regardless to me that of whether seems consideration of the BAC evidence was sentence, to the one adds a modifier limited to tendency its to show that the it, the in- happens place
wherever one alcohol, appellant ingested had and that he prohibiting the effect of struction still has alcohol, all, ingested had if at only at some the evi- jury considering BAC (as point before the time of the test op- evidence. qua dence BAC time, posed to at some point other such Here is what the trial meant test). time of the Whatever after jury: tell the instruction,7 else be said about this by received The BAC evidence will be plainly prohibits jury from considering purpose the Court for the limited any purpose, BAC evidence for other showing that the individual who was including qua Any BAC evidence. instruc- ingested had alcohol at some tested tion that evidence has been received for a point before the time of the trial. That (ie., “limited” or “only”) purpose exclusive only purpose is the for which it will be necessarily means that it has not been only purpose offered and any received for purpose expressly not you at time in should receive it this language embraced within the of limita- trial. tion. Here what he told the actually is (with modifier): Moving the emphasis added on the modifier does not fundamen- tally change exclusionary character of evidence “will be received BAC instruction —at least purpose for the limited Court respect question to the of whether it would
showing the individual who was only permit to consider the evi- ingested tested had at some qua dence Here point before the time of the test. That BAC evidence. is how only purpose moving that will be offered the instruction would read only purpose you “only” and the for which word so that it modifies the “what” [sic] intent, express "ingested appellant In order to best his obvious had alcohol at some need not have added a modifier prior period. time to the It would not test" — all, simply but should have told the authorize, reasonably nor could have thing attorneys going same he told the he was authorize, construed it to consideration jury, to tell the that the BAC evidence viz: qua BAC evidence BACevidence. purpose was "received for the limited showing that the individual who was tested upon jury’s 7. A limitation consideration ingested prior had alcohol at time to the some prove the BAC evidence to its relevance to going "only” test." If he was to use as a consequence occurring some fact of all, sensibly modifier at he most would have test, necessarily while not inac- after express used it to that the BAC evidence was misleading, wholly curate or is trivial and purpose "received for the limited unnecessary. readily ap- It showing that the individual who was tested parent to the without an instruction that prior had alcohol at some time whatever relevance of the BAC jury given A test.” either of these instructions (whether qua merely understanding would have had no trouble "ingested show that alco- that it was not to the BAC evidence consider time), hol” at some it was to as evidence of what the BAC actual- accused's occurring consequence the test fact of ly any at the time of the test or at other time, was taken. including driving. It the time of simply some evidence relevant to show that emphasis using with added on the the BAC evidence as evidence of (again, phrase modifier): BAC, either at the time of the test or at the time he was evidence “will received
The BAC for the limited by the Court reason, agree appel- For this with the the individual who was lant that the evidence did not sub- only ingested alcohol at some tested had of intoxication mission of the time of the test. That point before *14 in jury appel- the DWI instructions. only purpose is the that will be offered objected theory lant to the of this inclusion only you and the for [sic] jury charge, and so the error calls in receive it at this time should reversal of the conviction if the record trial.” admits “some” harm.9 Given there radar, jury’s instruction would have informed the was evidence on the This BAC jury theory its consideration of the inclusion of the of intoxi- BAC tendency jury charge may evidence is limited to its to show cation in the have caused alcohol, appellant jury ignore alcohol, only any rely upon qua the exclusion and the BAC evidence BAC (or only though other(cid:127) substance that he had “in- even it had been plainly evidence alcohol, gested” something very and not done not to. At the told least the inclusion it), at else with before the time of the of intoxication in the jury charge may engendered of the test.8 Whatever it is that this mani- confu- festly ambiguous respect instruction would author- sion in the to whether it consider, plainly ignore ize the it continues could the limiting instruction. Un- circumstances, prohibit from considering just der the it is more than evidence for in- purpose, jury gave BAC other conceivable that the short shrift cluding qua evidence. obligation BAC to its to consider whether the guilty only theory under the short, efficacy of the instruction (loss physical of normal or mental facul- preclude considering from ties) is, properly (properly, qua evidence BAC BAC evidence does not light limiting instruction that was indeed, logically dependent is not turn — given, erroneously also however gratu- any way -upon placement of the (gra- — itously) submitted. I would therefore re- tuitous) If anything, modifier. the addi- the judgment appeals verse of the court of modifier, tion of the wherever it appears and remand the cause for a new trial. sentence, actually serves to increase not, respectfully Because the Court does (albeit illogical inconsequential dissent. ways) placed upon the limitation the jury’s
use of the evidence. It does not
expand the universe of available uses to which the put. Any BAC evidence it,
way you prohibited cut Indeed, placing tendency even the modifier before the be limited to whatever it has to alcohol," phrase "ingested alcohol, "what” it is still appellant ingested possible, perhaps preferable, if to read it that he did so at some time modify phrase. the "when” Much could (as time). opposed to some other depend upon judge’s inflection when giving jury might an such instruction. A rea- (Tex. 9. Warner v. sonably construe the instruction to mean that Crim.App.2008). its consideration of the