COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00267-CR
DENNIS WAYNE BLANCHARD APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
MEMORANDUM OPINION 1
I. Introduction
A jury convicted Appellant Dennis Wayne Blanchard of intoxication
manslaughter. In five issues, Appellant asserts that the trial court erred by
allowing a State’s expert to testify to certain opinions that were “beyond his area
of expertise” and by admitting State’s Exhibit 75C. We affirm.
1 See Tex. R. App. P. 47.4. II. Procedural and Factual Background
At Appellant’s jury trial, Thomas Roberts testified that he was a fifty-seven-
year-old Vietnam veteran. He and Appellant lived in Briar, Texas, in April 2009
and were acquaintances. At approximately 8:00 a.m. on April 21, 2009, Roberts
went to Appellant’s parents’ house to ask Appellant for a ride to collect some
money owed to Roberts for yard work. When Roberts arrived, Appellant was
cooking breakfast and drinking a beer. While there, Roberts and Appellant
smoked marijuana, and Appellant agreed to give Roberts a ride.
Eventually, Appellant and Roberts left in a Lincoln Town Car that belonged
to Appellant’s mother. At first, Appellant drove the speed limit and had no trouble
controlling the car. After unsuccessful attempts to collect money, Appellant and
Roberts went to a liquor store, and Appellant bought Roberts a half-gallon bottle
of eighty-proof Kentucky Deluxe Whiskey. In the car, Appellant opened the
bottle, and he and Roberts both drank “a couple [of] good slugs” from the bottle.
Appellant and Roberts went to Appellant’s house for a short time before
heading out again. Appellant filled a small drinking glass with whiskey, but
Roberts did not see Appellant drink from it at that time. In the car, Appellant and
Roberts smoked Appellant’s marijuana, and Appellant began driving at speeds of
“70 or better.” When Roberts threatened to jump out of the car, Appellant slowed
down. Appellant and Roberts then picked up Roberts’s girlfriend, Jeri, and drove
them to Roberts’s house. On the way, Appellant drove “[l]ike an idiot,” and he
“gunned it,” reaching speeds of eighty-five miles per hour on thirty-mile-an-hour
2 roads. When Appellant dropped off Roberts and Jeri around noon, Roberts kept
the bottle of whiskey, which was about one-third empty. That was the last time
Roberts saw Appellant that day.
Steve Barto testified that in April 2009, he lived on Briar Road in Azle.
During the afternoon of April 21, 2009, he was in his front yard when he heard
what sounded like a car going at least one hundred miles per hour. When he
looked up, he saw a Lincoln Town Car “excessively going past” him and headed
east toward a “serious S curve” in the road. Seconds later, he heard a loud
boom. Barto ran in the direction of the car and saw it wrapped around a utility
pole. He called 911. He saw two people pinned inside the car.
Firefighter and paramedic Paul Bales testified that he and others were
dispatched to the accident around 2:20 p.m. When he arrived he saw a
“horrendously damaged” vehicle wrapped around a telephone pole. Bales went
to the driver’s side of the vehicle, and his partner, paramedic John Reed, went to
the passenger’s side. Bales found the driver, later identified as Appellant, not
breathing, unconscious, and not wearing a seatbelt. Bales opened Appellant’s
airway, and Appellant began breathing but remained unconscious. Bales and
others eventually removed Appellant from the vehicle, and he was transported by
helicopter to John Peter Smith hospital (JPS). Bales did not have contact with
the deceased female passenger, later identified as Denise Montague. 2 When
2 Dr. Lloyd White testified that he performed forty-seven-year-old Montague’s autopsy. Dr. White determined the cause of Montague’s death to be
3 Appellant arrived at JPS, he tested positive for cannabinoids, also known as
marijuana. He had a blood-alcohol concentration of .20, two and one-half times
the legal limit of .08.
James McDonald testified that he was a sergeant and an accident
investigator with the Tarrant County Sheriff’s Office. Sergeant McDonald was the
primary investigator for the instant offense, and he was assisted by others,
including Deputy Melton Kuser and Tim Lovett. Investigators determined that
Appellant’s car had traveled eastbound at seventy-five miles per hour and
crossed the westbound lane before going onto the north shoulder of the roadway,
striking a metal mailbox pole, spinning back across the roadway, and striking a
utility pole on the passenger side of the car at a speed of sixty-nine miles per
hour. Sergeant McDonald testified that posted signs on Briar Road in the
direction Appellant had been traveling warned of the S-curve ahead and reduced
the speed limit from thirty-five miles per hour to thirty miles per hour. There was
no evidence that Appellant ever applied the brakes. The investigators and
reconstruction experts ruled out any malformation of the road or car malfunction
as explanations for the accident.
The jury found Appellant guilty of intoxication manslaughter, and following
the punishment phase, the jury found the State’s deadly weapon allegation to be
“cranial-cervical dislocation -- in other words, [a] broken neck, essentially, . . . due to a motor vehicle fixed object collision.”
4 true and assessed punishment at twenty years in prison. The trial court
sentenced Appellant accordingly.
III. Admission of Evidence
In his fifth issue, Appellant asserts that the trial court erred by admitting
State’s Exhibit 75C—a bag containing a green leafy substance found in
Appellant’s pocket at the hospital—as marijuana without evidence that it was, in
fact, marijuana. In support, Appellant relies on rule of evidence 901, which
provides in pertinent part that “[t]he requirement of authentication or identification
as a condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.” Tex.
R. Evid. 901. Rule 901(b) provides various examples of authentication or
identification conforming with the rule’s requirements, including the testimony of a
witness with knowledge that a matter is what it is claimed to be. Tex. R. Evid.
901(b)(1); Manuel v. State, 357 S.W.3d 66, 74–75 (Tex. App.—Tyler 2011, pet.
ref’d).
We review a trial court’s evidentiary rulings using an abuse of discretion
standard. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). As long
as the trial court’s ruling is “within the zone of reasonable disagreement,” we will
not disturb the ruling. Id. (quoting Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1991) (op. on reh’g)).
5 A. Relevant Facts
Registered nurse Kellie Bunch testified that Appellant arrived as a trauma
patient at the emergency department of JPS on April 21, 2009. She testified that
a baggie of “what appear[ed] to be marijuana” was found in one of Appellant’s
pockets during his initial intake. Bunch turned over the baggie to Officer Jay
Taylor with the Tarrant County Hospital District Police Department. Bunch
testified that as a nurse in the emergency department, she had had a few
occasions to come in contact with marijuana on patients and was familiar with the
smell, appearance, and texture of marijuana. When the prosecutor asked Bunch
whether “what [she] handed over to Officer Taylor [was] in fact marijuana,” the
trial court sustained Appellant’s objection that the prosecutor had not established
that Bunch was qualified to testify to what she had found.
Officer Taylor testified that after he was dispatched to JPS on April 21,
2009, Bunch handed him a “clear bag with a green leafy substance in it.” In
Officer Taylor’s prior experience as a police officer, he had come across
marijuana on many occasions. He testified that he had received police academy
training on, and was familiar with, marijuana’s appearance, smell, and texture.
When the prosecutor asked the officer whether the substance Bunch handed him
was marijuana, the trial court sustained Appellant’s objection that Officer Taylor
was not qualified to offer that testimony. When the prosecutor asked Officer
Taylor whether he “suspect[ed] [the substance] to be something else other than
marijuana,” the officer responded without objection, “No, sir.”
6 Officer Taylor testified that State’s Exhibit 75A was an evidence bag that
contained the items Bunch had given him at the hospital: two photocopies of
Appellant’s driver’s license (State’s Exhibit 75B) and a Ziploc bag containing a
green leafy substance (State’s Exhibit 75C). Officer Taylor testified without
objection that the photocopies of the driver’s license were given to him “at the
[same] time that [the] marijuana was also given to [him].” Officer Taylor testified
that he did not open State’s Exhibit 75A but placed State’s Exhibit 75C inside
State’s Exhibit 75A, which he then placed in the property room, and it was
eventually turned over to the Tarrant County Sheriff’s Office.
Tarrant County Sheriff’s Deputy C. Dearing testified that he went to the
police station at JPS on April 22, 2009, and that a sergeant gave him a plastic
bag that contained a resealable plastic bag and two pieces of paper. Deputy
Dearing took the bag intact to the south patrol office, typed his report, completed
a property card, and submitted the items into an evidence locker in the sheriff’s
department property room. He testified that State’s Exhibit 75 was the sheriff
department’s property bag containing the evidence he had received from the
hospital district police, which was the same evidence marked as State’s Exhibits
75A, 75B, and 75C. Deputy Dearing testified that the only time the evidence was
removed from the evidence locker was “[f]or medical examiner testing of the
substance, the marijuana substance.” He testified that he obtained Exhibit 75
from the evidence locker and brought it to court.
7 When the State offered State’s Exhibits 75, 75A, 75B, and 75C into
evidence, Appellant objected that “[i]t’s not admissible without scientific predicate
or it’s not relevant without scientific predicate.” The trial court overruled the
objection and admitted the exhibits into evidence. The State published the
exhibits to the jury, stating that “State’s Exhibit 75B [was] a driver’s license” of
Appellant’s and that “State’s Exhibit 75C [was] a green leafy substance inside of
a small sandwich baggie.”
B. Analysis
Appellant cites no authority for his argument that State’s Exhibit 75C was
inadmissible under rule of evidence 901(b)(1) because there was no evidence
that the green leafy substance in Appellant’s pocket was actually marijuana. The
case Appellant relies on is one in which the appellant challenged the sufficiency
of the evidence to support his conviction for marijuana possession, and in which
the appellant asserted that the evidence was legally insufficient to establish that
the substance he possessed was “in fact marijuana.” See Tarrant v. State, 1998
WL 423484, at *1 (Tex. App.—Dallas July 29, 1998, no pet.) (not designated for
publication). In Tarrant, the court of appeals held that
[a]n experienced police officer may be qualified to testify that a substance is marijuana. Rutledge, a police officer of four years, testified that an officer’s training includes learning to recognize the smells, textures, and appearances of different narcotics and drugs. . . . Rutledge also testified that he has “had the opportunity to deal with the substance marijuana and later [had] it confirmed through testing to be marijuana.” Rutledge examined the substance in this case and determined that it was marijuana. Rutledge’s
8 testimony is sufficient to prove beyond a reasonable doubt that the substance was marijuana.
Id. at *3 (citations omitted). Relying on Tarrant, Appellant asserts, “In contrast,
Deputy Jamie Glenn Taylor testified that his identification of substances as
marijuana had never been confirmed by chemical or forensic test.”
Appellant’s argument is not persuasive. The State did not charge
Appellant with marijuana possession and therefore did not have to prove beyond
a reasonable doubt that Appellant possessed marijuana as an element of the
offense, and Bunch, Officer Taylor, and Deputy Dearing each referred without
objection to the green leafy substance in State’s Exhibit 75C as marijuana or
what appeared to be marijuana. We also note that Appellant’s complaint on
appeal that the green leafy substance was not authenticated under rule of
evidence 901(b)(1) is not the same as his objection at trial that State’s Exhibit
75C was “not admissible without scientific predicate or it’s not relevant without
scientific predicate.” 3 See Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim.
App. 2009) (“A complaint will not be preserved if the legal basis of the complaint
raised on appeal varies from the complaint made at trial.”).
Even considering Appellant’s rule 901(b)(1) appellate complaint, the
combined effect of rule 901(a) and (b)(1) permits authentication of evidence by
testimony of a witness “that the matter in question is what its proponent claims.”
Tex. R. Evid. 901(a), (b)(1); see also Garner v. State, 939 S.W.2d 802, 805 (Tex.
3 Appellant did not assert a rule 901 objection at trial.
9 App.—Fort Worth 1997, pet. ref’d) (“Rule 901 does not require the State to prove
anything.”). The proponent must only produce sufficient evidence that a
reasonable fact finder could properly find genuineness. Manuel, 357 S.W.3d at
74. The State introduced State’s Exhibit 75C as the baggie found in Appellant’s
pant pocket containing a green leafy substance that appeared to be marijuana.
The State authenticated the exhibit by proving through the testimonies of Bunch,
Officer Taylor, and Deputy Dearing that it was what it purported it to be; that is,
that it was the baggie found in Appellant’s pant pocket containing a green leafy
substance that appeared to be marijuana. For all of these reasons, Appellant
has not shown that the trial court abused its discretion by admitting State’s
Exhibit 75C into evidence, and we overrule Appellant’s fifth issue.
IV. Expert Testimony
In his first four issues, Appellant asserts that the trial court erred by
allowing the State’s collision reconstruction expert Tim Lovett to express opinions
allegedly beyond his area of expertise, specifically (1) whether Appellant
“consciously disregarded a substantial and unjustifiable risk,” (2) whether
Appellant’s intoxication caused Montague’s death, (3) whether Appellant’s
operation of his vehicle was a “gross deviation” from a normal standard of care,
and (4) whether Appellant used his vehicle as a deadly weapon.
A. Applicable Law and Standard of Review
Rule of evidence 702 allows a witness qualified by knowledge, skill,
experience, training, or education to testify on scientific, technical, or other
10 specialized subjects if the testimony would assist the trier of fact in understanding
or determining a fact issue. See Tex. R. Evid. 702. Three separate inquiries
must be met before a trial court admits expert testimony: (1) the witness qualifies
as an expert by reason of his knowledge, skill, experience, training, or education;
(2) the subject matter of the testimony is an appropriate one for expert testimony;
and (3) admitting the expert testimony will actually assist the factfinder in
deciding the case. Davis v. State, 329 S.W.3d 798, 813 (Tex. Crim. App. 2010),
cert. denied, 132 S. Ct. 128 (2011). These conditions are commonly referred to
as (1) qualification, (2) reliability, and (3) relevance. Id. (citing Vela v. State, 209
S.W.3d 128, 131 (Tex. Crim. App. 2006)). These three requirements raise
distinct questions and issues, and an objection based on one requirement does
not preserve error as to another. Shaw v. State, 329 S.W.3d 645, 655 (Tex.
App.—Houston [14th Dist.] 2010, pet. ref’d). Only the first condition is at issue in
this case. 4
The court of criminal appeals has held:
Qualification is a two-step inquiry. A witness must first have a sufficient background in a particular field, and a trial judge must then determine whether that background goes to the matter on which the witness is to give an opinion. The proponent must establish that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on that particular subject.
4 In his brief, Appellant states, “[W]e are concerned only with qualification.”
11 Davis, 329 S.W.3d at 813 (citations omitted); see Vela, 209 S.W.3d at 131–32.
The focus is on the fit between the subject matter at issue and the expert’s
familiarity with it, and not on a comparison of the expert’s title or specialty with
that of the defendant or competing expert. Vela, 209 S.W.3d at 133. “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.” Id.
“Because the spectrum of education, skill, and training is so wide, a trial
court has great discretion in determining whether a witness possesses
appropriate qualifications as an expert on a specific topic in a particular case.”
Davis, 329 S.W.3d at 813 (citing Vela, 209 S.W.3d at 136). “[W]hen a trial judge
determines that a witness is or is not qualified to testify as an expert, ‘appellate
courts rarely disturb the trial court’s determination.’” Vela, 209 S.W.3d at 136
(quoting Rodgers v. State, 205 S.W.3d 525, 528 n.9 (Tex. Crim. App. 2006)).
B. Relevant Facts
Tim Lovett testified that he is an employee of Crash Dynamics, a
consulting and training firm in the area of collision reconstruction, and a retired
Hurst police officer. Regarding his qualification as an expert, Lovett testified that
he began his law enforcement career in 1975, graduated from the police
academy in 1982, and retired from the Hurst police department after twenty-three
years. As a police officer, Lovett received training from the National Academy for
Professional Driving about how to drive at high speeds and how to control
12 vehicles in pursuit and in day-to-day driving. This included training on avoidance
maneuvers and how to present a vehicle when faced with an inevitable collision.
For several years, Lovett was part of a selective traffic-enforcement program
aimed at hazardous violations and DWIs, and he was an intoxilyzer operator.
During his career, he had worked about 500 intoxication manslaughter cases.
Lovett testified that, as a Hurst police officer, he conducted collision
investigations, also referred to as accident reconstructions. He responded to
between 4,000 and 5,000 wrecks and did several hundred reconstructions. He
did not know how many reconstructions he had done since leaving the Hurst
police department. When the State asked Lovett what training qualified him to
testify as an expert in district court, Appellant stated, “Your Honor, we will
stipulate that he’s an expert and he’s qualified to testify.”
When asked whether the S-curve on Briar Road was particularly difficult
for an average, experienced, and sober driver to navigate when driven at the
posted thirty-mile-per-hour speed limit, Lovett replied, “No, sir.” When the State
asked whether the S-curve on Briar Road was “one that a person operating a
motor vehicle close to 75 miles per hour would be able to navigate safely,” Lovett
replied, “No, sir.” When the State asked Lovett whether he would characterize
driving down that stretch of roadway and coming up on that S-curve at seventy-
five miles per hour as “a dangerous thing to do,” Lovett responded, “Yes, sir,
extremely.”
13 When the State asked Lovett questions about whether Appellant had acted
recklessly, whether his vehicle was a deadly weapon, and whether intoxication
had a role in the collision, the trial court sustained Appellant’s objections. When
the State again asked Lovett whether, based on all of the documents he had
reviewed in the case, as well as his training, experience, and knowledge about
intoxication, he would say that intoxication had a role in this collision, the trial
court sustained Appellant’s objection.
The next day during the State’s redirect examination of Lovett, the
prosecutor asked additional questions regarding his qualifications. Lovett
testified that he had previously testified on many occasions in Tarrant County
district courts as an expert in accident reconstruction and on many occasions in
the district courts of other counties in Texas, in courts of other states, and in
federal court. He further stated that he had testified on many previous occasions
in Tarrant County district courts about his opinion of the causation of a collision,
whether a vehicle was used as a deadly weapon, and whether the vehicle was
being driven in a reckless manner. Lovett testified that he had had specific
training in detecting signs of intoxication and intoxication behavior in humans
who have been driving. Lovett then testified to the following:
Q. [State]: Mr. Lovett, do you have an opinion as to the causation of the collision in this case?
A. Yes, sir.
Q. Now, in your opinion, at that speed, 75 miles per hour that you previously testified about, on that stretch of roadway, would a
14 person operating a motor vehicle be consciously disregarding a substantial and unjustifiable risk of losing control and thereafter causing the death of himself and another?
[Defense Counsel]: I object, Your Honor. Ask -- ask the witness to speculate about the mental state of another person. And he hasn’t been qualified [to] do that.
THE COURT: Overruled.
A. [Lovett]: Absolutely.
Q. [State]: In your opinion, Mr. Lovett, at that speed on that stretch of roadway, would a person operating a motor vehicle in that regard be engaging in a gross deviation from the standard of care that an ordinary person would exercise?
[Defense Counsel]: Objection, again, Your Honor. Witness hasn’t -- witness hasn’t been qualified to answer this question.
A. [Lovett]: Yes. It’s a gross deviation from what’s normal.
....
Q. [State]: In your opinion, Mr. Lovett, do you have any reason to suspect, based on your review of the evidence and your expertise and knowledge, that this collision was due to any external factors, such as the roadway or otherwise, not having to do with the conduct of the Defendant?
A. There’s no evidence that anything outside the vehicle itself and the speed it was driving, and there’s no external factors, no.
Q. [State]: Mr. Lovett, what is your opinion, your professional opinion as to the causation of the death of Denise Montague?
15 [Defense Counsel]: Objection, Your Honor. I -- I object the witness is not -- is not the medical examiner. The -- the cause of death has already -- there’s -- there’s already been testimony as to cause of death. And the witness is not -- is not an expert for this -- for this issue. And I -- I’m not sure on Thursday afternoon we want to re-litigate the case through Mr. Lovett.
A. [Lovett]: Yes, I do have an opinion. What we see in these driving facts is consistent with what we see from intoxicated driving, and that coupled with the speed is the causation of her death.
Q. [State]: . . . In your opinion, is the manner in which the vehicle was being driven on the -- at the time and day of the collision such that it was being driven or being used as a deadly weapon?
[Defense Counsel]: I object. I object again, Your Honor. Calls for legal conclusion. Witness hasn’t been qualified.
A. [Lovett]: Without a doubt.
Q. [State]: Was it capable of causing death or serious bodily injury?
Q. And, in fact, it did cause death in this case?
[Defense Counsel]: Continuing objection, Your Honor.
A. [Lovett]: Yes.
THE COURT: I’ll grant your -- I’ll allow you to have a continuing objection to that. Overruled.
[State]: Your Honor, I’ll pass the witness.
16 C. Analysis
We begin by recalling that Appellant stipulated that Lovett is a qualified
expert witness. Appellant’s counsel stated on the record during Lovett’s
testimony that “we will stipulate that he’s an expert and he’s qualified to testify.”
We also observe that although an expert “may not testify to his opinion on a pure
question of law,” it is permissible for an expert to “state an opinion on a mixed
question of law and fact as long as the opinion is confined to the relevant issues
and is based on proper legal concepts.” 5 Anderson v. State, 193 S.W.3d 34, 38
(Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). “[A] mixed question of law and
fact [is] one in which a standard or measure has been fixed by law and the
question is whether the person or conduct measures up to that standard.”
Blumenstetter v. State, 135 S.W.3d 234, 248 (Tex. App.—Texarkana 2004, no
pet.). For example, whether the factual circumstances surrounding an accused’s
drinking meet the legal standard of intoxication is a mixed question of law and
fact, as is the question of whether a certain object could be used as a deadly
weapon. Id.; see Anderson, 193 S.W.3d at 38.
The State asked Lovett for his opinion as to whether Appellant
“consciously disregard[ed] a substantial and unjustifiable risk,” whether
Appellant’s operation of his vehicle was a “gross deviation” from a normal
standard of care, whether Appellant used his vehicle as a deadly weapon, and
5 Appellant does not contend that Lovett’s testimony was not relevant or based on proper legal concepts.
17 whether Appellant’s intoxication caused Montague’s death. Other than whether
Appellant’s intoxication caused Montague’s death, the questions asked Lovett for
his opinions on mixed questions of law and fact because they asked him to opine
whether the facts and circumstances revealed by his investigation measured up
to a standard of legal culpability. See Anderson, 193 S.W.3d at 38;
Blumenstetter, 135 S.W.3d at 248. The questions were proper because they did
not ask Lovett to give his opinion on a pure question of law such as whether
Appellant’s conduct constituted intoxication manslaughter. Compare Anderson,
193 S.W.3d at 38 (noting that whether an object could be used as a deadly
weapon is a mixed question of law and fact), with Jones v. State, No. 05-08-
00925-CR, 2009 WL 3366559, at *3–4 (Tex. App.—Dallas Oct. 21, 2009, pet.
ref’d) (not designated for publication) (holding that whether acts constituted
capital murder was improper question for expert because it was a pure question
of law that “decided the issue of guilt for the jury”), cert. denied, 131 S. Ct. 296
(2010). Instead, the questions asked Lovett to apply his investigation and
knowledge of the facts to legal standards. As to whether Appellant’s intoxication
caused Montague’s death, rules of evidence 702 and 703 permit a qualified
expert witness to express opinions based on the facts or data “perceived by,
reviewed by, or made known to the expert at or before the hearing.” Tex. R.
Evid. 702, 703; see Vasquez v. State, No. 02-04-00214-CR, 2006 WL 133462, at
*3 (Tex. App.—Fort Worth Jan. 19, 2006, no pet.) (mem. op., not designated for
publication) (noting that Vasquez had stipulated to expert’s qualifications and
18 holding that expert could express opinions on the cause of the victim’s injuries
based on expert’s “knowledge, experience, and status as an expert witness”).
Lovett answered that intoxication and speed caused Montague’s death and did
not attempt to give a medical opinion on her precise cause of death such as that
offered by the medical examiner.
Appellant understandably limits his appellate complaint to Lovett’s
qualifications because Appellant objected at trial that Lovett was not qualified to
express the opinions at issue. See Lovill, 319 S.W.3d at 691–92 (“A complaint
will not be preserved if the legal basis of the complaint raised on appeal varies
from the complaint made at trial.”). However, each of the questions was a proper
topic for expert testimony, and Appellant stipulated at trial to Lovett’s
qualifications as an expert witness. Appellant’s conclusory discussion of his first
four points does not establish why Appellant should be permitted to complain on
appeal about Lovett’s qualifications in light of Appellant’s trial stipulation that
Lovett was a qualified expert witness and Lovett’s testimony, set forth above,
concerning his qualifications as an accident reconstructionist and police officer
with experience investigating DWI and intoxication manslaughter cases. See
Kastick v. State, No. 04-98-00556-CR, 1999 WL 734811, at *4–5 (Tex. App.—
San Antonio Sept. 22, 1999, no pet.) (not designated for publication) (overruling
challenge to expert qualifications because Kastick, despite initially objecting,
stipulated at trial to expert’s qualifications); see also Taylor v. State, No. 03-03-
00624-CR, 2006 WL 1649037, at *6–7 (Tex. App.—Austin June 16, 2006, pet.
19 ref’d) (mem. op., not designated for publication) (noting that appellant’s trial
counsel said “okay” at motion to suppress hearing when trial court accepted
witness as expert based on qualifications established in prior motion to suppress
hearing and stating that “[a]ppellant is not in a position to complain on appeal
about the absence of sufficient evidence concerning the qualifications of the
officers as witness”); Vasquez, 2006 WL 133462, at *3 (holding expert could
testify to opinion on cause of injuries based on knowledge and experience and
noting that Vasquez had stipulated to expert’s qualifications); Solis v. State, No.
14-87-00773-CR, 1990 WL 93230, at *2 (Tex. App.—Houston [14th Dist.] July 5,
1990, pet. ref’d) (not designated for publication) (noting that Solis stipulated to
experts’ qualifications and overruling challenge to evidence sufficiency because
experts testified that substance was marijuana). We cannot therefore say that
Appellant has shown that the trial court abused its discretion by permitting Lovett
to express the opinions at issue in his first four issues.
Even if there were any error in admitting Lovett’s opinions, such
nonconstitutional error was harmless. See Taylor v. State, 268 S.W.3d 571, 592
(Tex. Crim. App. 2008) (error in admitting evidence is nonconstitutional error and
reviewed under rule of appellate procedure 44.2(b)). Under rule of appellate
procedure 44.2(b), we must disregard nonconstitutional error that does not affect
a defendant’s “substantial rights,” that is, if upon examining the record as a
whole, there is a fair assurance that the error did not have a substantial and
injurious effect or influence in determining the jury’s verdict. Tex. R. App. P.
20 44.2(b); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010), cert.
denied, 131 S. Ct. 3030 (2011). If the improperly admitted evidence did not
influence the jury or had but a slight effect upon its deliberations, such
nonconstitutional error is harmless. Id. In making this harm determination we
examine the entire record and calculate the probable impact of the error upon the
rest of the evidence. Id.
Appellant was found guilty of intoxication manslaughter, which required the
jury to find that Appellant operated a motor vehicle in a public place, while
intoxicated, and by reason of that intoxication caused the death of another by
accident or mistake. See Tex. Penal Code Ann. § 49.08 (West 2011); Strickland
v. State, 193 S.W.3d 662, 665 (Tex. App.—Fort Worth 2006, pet. ref’d). The
State introduced evidence that in the hours leading up to the fatal accident,
Appellant had been drinking beer and whiskey and smoking marijuana. As to the
accident, the State introduced evidence that at the time Appellant’s car left the
roadway in the S-curve of Briar Road, it was traveling about seventy-five miles
per hour, which was two and one-half times the posted speed limit. Appellant’s
car struck a utility pole on the passenger side of the car at a speed of sixty-nine
miles per hour, killing Montague instantly. Appellant never applied the brakes.
Upon his arrival at the hospital, Appellant’s blood-alcohol concentration was .20,
two and one-half times the legal limit of intoxication.
Additionally, the jury heard other evidence by which it could reach the
same conclusions as Lovett’s opinions at issue. Susan Howe, the crime lab
21 director for the medical examiner’s office, discussed the effects of alcohol and
marijuana consumption on a person’s body and behavior and testified that
significant speeding, failing to negotiate a turn, and decreased reaction time to an
upcoming turn or to a demand for navigation are consistent with a high level of
intoxication. Appellant’s own expert, Gary Wimbish, testified without objection on
cross-examination by the State that alcohol can affect a person’s abilities to
perform complex tasks. Wimbish agreed that at Appellant’s blood-alcohol
concentration as of his arrival at the hospital, the tasks associated with driving a
vehicle safely would be very difficult to perform. Ample evidence supported the
jury’s guilty verdict. Indeed, Appellant does not challenge the sufficiency of the
evidence establishing his guilt. See Motilla v. State, 78 S.W.3d 352, 356 (Tex.
Crim. App. 2002) (recognizing that overwhelming evidence can be a factor to be
considered in conducting a rule 44.2(b) harm analysis).
After examining the record as a whole and in light of all the evidence, we
have a fair assurance that the alleged error—permitting Lovett to give opinions
concerning whether Appellant consciously disregarded a substantial and
unjustifiable risk, whether Appellant’s intoxication caused Montague’s death,
whether Appellant’s operation of his vehicle was a gross deviation from a normal
standard of care, and whether Appellant used his vehicle as a deadly weapon—
did not influence the jury, but had at most only a slight effect. See Tex. R. App.
P. 44.2(b). Because we conclude that Appellant has not established that the trial
court abused its discretion by admitting the expert witness testimony at issue and
22 that, in any event, any alleged error was harmless, we overrule Appellant’s first
four issues.
V. Conclusion
Having overruled Appellant’s five issues, we affirm the trial court’s
judgment.
ANNE GARDNER JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: April 25, 2013