Affirm and Opinion Filed May 20, 2021
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01393-CR
CAVIN ONEAL SWINEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F-1840339-H
MEMORANDUM OPINION Before Justices Molberg, Reichek, and Nowell Opinion by Justice Molberg
Appellant was charged by indictment with, and pleaded not guilty to, driving
while intoxicated with two or more previous convictions, a third degree felony. See
TEX. PENAL CODE §§ 49.04(a), (b); 49.09(b)(2). A jury found him guilty and
sentenced appellant to thirteen years in the Texas Department of Criminal Justice’s
Institutional Division, and the trial court entered judgment. Appellant argues the
trial court erred in allowing the State’s expert to provide certain testimony about
blood alcohol concentration and accidents. For the reasons that follow, we affirm
the trial court’s judgment in this memorandum opinion. See TEX. R. APP. P. 47.4. BACKGROUND1
The State called six witnesses in the guilt-innocence phase of trial. Among
them were law enforcement officers Kody Martinez and Preston Hoke, who testified
about their work and their encounters with appellant on February 17, 2018, the date
of the alleged offense as described in the indictment.
Officer Martinez, who arrived first, testified he initially responded to a family
violence call and had a description of a suspect who tried to ram a vehicle belonging
to the suspect’s girlfriend. Appellant met that description. Initially, Officer
Martinez placed appellant at gunpoint,2 and once backup arrived, Officer Martinez
placed appellant in handcuffs to detain him and investigate the offense further.
Officer Martinez searched appellant and found no weapon but did find a car key.
Officer Martinez described appellant’s demeanor as showing signs of intoxication
and stated appellant was lethargic, mumbling, and slurring. He immediately noticed
that appellant had a strong odor of alcohol and bloodshot eyes. Officer Martinez
conducted field sobriety testing of appellant and determined appellant was too
intoxicated to operate a motor vehicle. He placed appellant under arrest, and he read
to appellant the “DIC 24” statutory warning form for permission to take his blood or
1 We recount only those facts necessary to our disposition of this case. 2 Officer Martinez testified that the call involved an aggravated assault and that he was told a gun was involved. He testified he had no officer with him and that it was standard operating procedure to put someone at gunpoint until he had backup because of the severity of the offense and for officer safety. –2– breath and that informed appellant of the consequences of consenting to or refusing
the test. After appellant consented, he was transported to a hospital for a blood draw.
Meanwhile, Officer Hoke had arrived at the scene after being dispatched to a
disturbance involving a car accident. When he came into contact with appellant,
appellant was on one side of an elementary school and his car was on the other side,
and officers had been told by other callers that the suspect had started to run away
from the vehicle. Officer Hoke inspected the car and completed a crash report.
The last witness called by the State in the guilt-innocence phase was Andrew
Macey, a blood alcohol section supervisor at the Texas Department of Public Safety
Crime Laboratory (DPS crime lab). Macey has a bachelor of science degree with a
major in chemistry, a master’s degree in pharmaceutical sciences with a
concentration in forensic drug analysis, and has been with the DPS crime lab for
over twenty years.
Macey testified that he has received continuing training in blood alcohol
determinations throughout his twenty years with the DPS crime lab and has provided
expert testimony in the area of toxicology for blood alcohol determinations on many
prior occasions. Macey defined toxicology for the jury and described the procedures
used for testing blood alcohol concentration generally, and he testified that he
received and tested a vial of blood labeled with appellant’s name. He testified that
the blood sample contained 0.181 grams of alcohol per 100 milliliters of blood and
that, in his opinion, a person with that score was intoxicated. He could not
–3– extrapolate from the test result what appellant’s blood alcohol concentration was
when he was driving because he did not have the necessary information to do so.
Macey testified that, as part of his training and experience, he knows how
alcohol affects motor skills and driving. He explained that driving is a divided-
attention skill, requiring people to pay attention to multiple conditions, such as the
speed limit and whether there are other things in front of or beside them, and that
because alcohol slows down processes in a person’s brain, it slows a person’s
judgment as well, such that it takes longer to decide how fast a person is going and
whether there are other things around them.
Following that testimony, the prosecutor asked Macey about his familiarity
with studies regarding blood alcohol concentrations and accidents. This resulted in
the following exchange that raises the sole issue on appeal:
[PROSECUTOR]: And are you familiar with any studies relating to blood alcohol concentrations and accidents?
[MACEY]: I do know -- I read one. There is one out there.
[PROSECUTOR]: And is that a study done by --
[DEFENSE COUNSEL]: Your Honor, object to this being outside of his area of expertise. THE COURT: Response.
[PROSECUTOR]: Your Honor, this witness has already testified that he is an expert in the area of toxicology. That directly relates to toxicology just as the use of motor skills while operating a motor vehicle. It goes to show how that directly relates to car accidents.
THE COURT: Objection is overruled. Don’t go too deep into this.
–4– [PROSECUTOR]: Based on that study, do you know the blood score which most accidents occur, or a range? [MACEY]: It’s pretty lower than you would think. It’s within -- I think the .08 to .12 is what they add that may be around that range, from what I remember. ISSUE AND ANALYSIS
The sole issue before us is whether the trial court abused its discretion in
allowing Macey to testify about the blood alcohol score range within which most
accidents occur.
We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App.
2019); Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). The trial
court abuses its discretion when it acts without reference to any guiding rules and
principles or acts arbitrarily or unreasonably. Rhomer, 569 S.W.3d at 669. We will
not reverse the trial court’s ruling unless it falls outside the zone of reasonable
disagreement. Johnson, 490 S.W.3d at 908.
Texas Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
TEX. R. EVID. 702.
Free access — add to your briefcase to read the full text and ask questions with AI
Affirm and Opinion Filed May 20, 2021
In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-01393-CR
CAVIN ONEAL SWINEY, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F-1840339-H
MEMORANDUM OPINION Before Justices Molberg, Reichek, and Nowell Opinion by Justice Molberg
Appellant was charged by indictment with, and pleaded not guilty to, driving
while intoxicated with two or more previous convictions, a third degree felony. See
TEX. PENAL CODE §§ 49.04(a), (b); 49.09(b)(2). A jury found him guilty and
sentenced appellant to thirteen years in the Texas Department of Criminal Justice’s
Institutional Division, and the trial court entered judgment. Appellant argues the
trial court erred in allowing the State’s expert to provide certain testimony about
blood alcohol concentration and accidents. For the reasons that follow, we affirm
the trial court’s judgment in this memorandum opinion. See TEX. R. APP. P. 47.4. BACKGROUND1
The State called six witnesses in the guilt-innocence phase of trial. Among
them were law enforcement officers Kody Martinez and Preston Hoke, who testified
about their work and their encounters with appellant on February 17, 2018, the date
of the alleged offense as described in the indictment.
Officer Martinez, who arrived first, testified he initially responded to a family
violence call and had a description of a suspect who tried to ram a vehicle belonging
to the suspect’s girlfriend. Appellant met that description. Initially, Officer
Martinez placed appellant at gunpoint,2 and once backup arrived, Officer Martinez
placed appellant in handcuffs to detain him and investigate the offense further.
Officer Martinez searched appellant and found no weapon but did find a car key.
Officer Martinez described appellant’s demeanor as showing signs of intoxication
and stated appellant was lethargic, mumbling, and slurring. He immediately noticed
that appellant had a strong odor of alcohol and bloodshot eyes. Officer Martinez
conducted field sobriety testing of appellant and determined appellant was too
intoxicated to operate a motor vehicle. He placed appellant under arrest, and he read
to appellant the “DIC 24” statutory warning form for permission to take his blood or
1 We recount only those facts necessary to our disposition of this case. 2 Officer Martinez testified that the call involved an aggravated assault and that he was told a gun was involved. He testified he had no officer with him and that it was standard operating procedure to put someone at gunpoint until he had backup because of the severity of the offense and for officer safety. –2– breath and that informed appellant of the consequences of consenting to or refusing
the test. After appellant consented, he was transported to a hospital for a blood draw.
Meanwhile, Officer Hoke had arrived at the scene after being dispatched to a
disturbance involving a car accident. When he came into contact with appellant,
appellant was on one side of an elementary school and his car was on the other side,
and officers had been told by other callers that the suspect had started to run away
from the vehicle. Officer Hoke inspected the car and completed a crash report.
The last witness called by the State in the guilt-innocence phase was Andrew
Macey, a blood alcohol section supervisor at the Texas Department of Public Safety
Crime Laboratory (DPS crime lab). Macey has a bachelor of science degree with a
major in chemistry, a master’s degree in pharmaceutical sciences with a
concentration in forensic drug analysis, and has been with the DPS crime lab for
over twenty years.
Macey testified that he has received continuing training in blood alcohol
determinations throughout his twenty years with the DPS crime lab and has provided
expert testimony in the area of toxicology for blood alcohol determinations on many
prior occasions. Macey defined toxicology for the jury and described the procedures
used for testing blood alcohol concentration generally, and he testified that he
received and tested a vial of blood labeled with appellant’s name. He testified that
the blood sample contained 0.181 grams of alcohol per 100 milliliters of blood and
that, in his opinion, a person with that score was intoxicated. He could not
–3– extrapolate from the test result what appellant’s blood alcohol concentration was
when he was driving because he did not have the necessary information to do so.
Macey testified that, as part of his training and experience, he knows how
alcohol affects motor skills and driving. He explained that driving is a divided-
attention skill, requiring people to pay attention to multiple conditions, such as the
speed limit and whether there are other things in front of or beside them, and that
because alcohol slows down processes in a person’s brain, it slows a person’s
judgment as well, such that it takes longer to decide how fast a person is going and
whether there are other things around them.
Following that testimony, the prosecutor asked Macey about his familiarity
with studies regarding blood alcohol concentrations and accidents. This resulted in
the following exchange that raises the sole issue on appeal:
[PROSECUTOR]: And are you familiar with any studies relating to blood alcohol concentrations and accidents?
[MACEY]: I do know -- I read one. There is one out there.
[PROSECUTOR]: And is that a study done by --
[DEFENSE COUNSEL]: Your Honor, object to this being outside of his area of expertise. THE COURT: Response.
[PROSECUTOR]: Your Honor, this witness has already testified that he is an expert in the area of toxicology. That directly relates to toxicology just as the use of motor skills while operating a motor vehicle. It goes to show how that directly relates to car accidents.
THE COURT: Objection is overruled. Don’t go too deep into this.
–4– [PROSECUTOR]: Based on that study, do you know the blood score which most accidents occur, or a range? [MACEY]: It’s pretty lower than you would think. It’s within -- I think the .08 to .12 is what they add that may be around that range, from what I remember. ISSUE AND ANALYSIS
The sole issue before us is whether the trial court abused its discretion in
allowing Macey to testify about the blood alcohol score range within which most
accidents occur.
We review a trial court’s decision to admit or exclude evidence under an abuse
of discretion standard. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App.
2019); Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). The trial
court abuses its discretion when it acts without reference to any guiding rules and
principles or acts arbitrarily or unreasonably. Rhomer, 569 S.W.3d at 669. We will
not reverse the trial court’s ruling unless it falls outside the zone of reasonable
disagreement. Johnson, 490 S.W.3d at 908.
Texas Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
TEX. R. EVID. 702. Thus, three conditions must be satisfied to admit expert
testimony: “(1) the witness must be qualified as an expert by his or her knowledge,
skill, experience, training, or education; (2) the subject matter of the testimony must –5– be an appropriate one for expert testimony; and (3) admitting the expert testimony
will actually assist the fact-finder in deciding the case.’” Rhomer, 569 S.W.3d at
665 (quoting Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006)). These
conditions are commonly referred to as (1) qualification, (2) reliability, and
(3) relevance. Rhomer, 569 S.W.3d at 665.
Appellant argues that Macey was not qualified to testify about the range of
blood alcohol concentration and accidents because he only reviewed one study about
the topic. The State argues that the trial court could reasonably conclude that Macey
was qualified to provide the challenged testimony based on Macey’s familiarity with
the study in question and his background, training, and experience on the effects of
alcohol on the human body.
We agree with the State. Based on the record before us, we conclude that the
trial court’s decision to allow Macey’s challenged testimony was within the zone of
reasonable disagreement and that the court did not abuse its discretion in allowing
it. See Rhomer, 569 S.W.3d at 669 (affirming court of appeals’ decision that the trial
court did not abuse its discretion in allowing challenged expert testimony in that
–6– case). Vela, which appellant cites as support,3 is distinguishable and does not compel
a different conclusion.4
CONCLUSION
We overrule appellant’s sole issue and affirm the trial court’s judgment.
/Ken Molberg/ KEN MOLBERG JUSTICE 191393f.u05 Do Not Publish TEX. R. APP. P. 47.2(b)
3 Appellant cites the portion of Vela that stated, “Just as the subject matter of an expert’s testimony should be tailored to the facts of a case, the expert’s background must be tailored to the specific area of expertise in which the expert desires to testify.” Vela, 209 S.W.3d at 132. 4 Vela, a sexual assault case, examined a decision by one of our sister courts that a trial court erred in excluding expert testimony by a certified legal nurse consultant who, based on her general nursing experience, opined that no sexual assault occurred because there was no DNA or physical evidence linking Vela to the alleged rape; she also stated that she had not written, nor was aware of, any published articles supporting that theory. Vela, 209 S.W.3d at 130. The court of criminal appeals vacated the appellate court’s judgment in that case and concluded that the court improperly evaluated the expert’s qualifications, failed to evaluate the reliability of her proposed testimony, and failed to give proper deference to the trial judge who had excluded the testimony. Id. at 136. –7–