NUMBER 13-11-00137-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JAMES EDWARD PEARSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 357th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Rodriguez Appellant James Edward Pearson challenges his conviction by a jury on two
counts of intoxication manslaughter, a second-degree felony that was enhanced to a
first-degree felony as a result of a prior felony conviction. See TEX. PENAL CODE ANN. §§
49.08(a), 12.42(b) (West, Westlaw through 2013 3d C.S.). By six issues, which we reorganize as three, appellant argues that: (1) the trial court erred in denying his motion
to suppress the blood draw evidence collected by police because police lacked exigent
circumstances for the warrantless search; (2) the trial court erred in admitting expert
retrograde extrapolation testimony that appellant contends was unreliable; and (3) the
evidence supporting his conviction was insufficient. We affirm.
I. Background1
Appellant was indicted for two counts of intoxication manslaughter in connection
with his involvement in a 4:00 a.m. car accident on October 26, 2008 in San Benito, Texas
that killed two teenage girls. Appellant pleaded not guilty to the charged offense, and his
case was tried to a jury.
At trial, the State introduced evidence resulting from a blood-draw taken by nurses
at the hospital to which appellant was transported after the accident. Jose Zuniga of the
Texas Department of Public Safety (DPS) Crime Lab testified that he ran the tests on the
blood taken, and those tests showed that appellant had a blood alcohol concentration
(BAC) of approximately .10 at the time the sample was taken, which was at around 10:30
a.m., over six hours after the accident. Zuniga also testified as the State's expert on
retrograde extrapolation. He provided a generalized retrograde extrapolation of
appellant's BAC at the time of the accident, testifying that a hypothetical male weighing
approximately 135 pounds, who had a BAC of .10 at 10:30 a.m. but consumed his last
drink at 2 a.m., and who absorbs and eliminates alcohol from his system at the rate of an
average healthy individual would, at the time of a 4:00 a.m. accident, have a BAC of
1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4. 2 approximately .26. Finally, the State presented the testimony of the various law
enforcement and emergency medical services (EMS) personnel involved in the accident,
who testified that at the time of the accident and at the hospital, appellant smelled strongly
of alcohol. Law enforcement officers and an accident-scene reconstruction expert
further testified that the details of the collision—that appellant was travelling at a high rate
of speed and did not brake before colliding with the victims' vehicle; that appellant veered
into the victims' lane of traffic; car fluids on the road and gauge marks and other road
damage indicative of a high-speed, out-of-control collision; and the extensive damage to
the vehicles involved in the crash—indicated that appellant was intoxicated.
Appellant moved to suppress the BAC evidence and expert testimony on the basis
that the blood draw was warrantless and unjustified by exigent circumstances. Appellant
also objected to the expert testimony, under the rules of evidence, as unreliable. The
trial court denied the motion to suppress and the evidentiary objection.
After the close of evidence, the jury returned a guilty verdict on both counts. The
trial court sentenced appellant to fifty years' incarceration on each count and ordered the
sentences to run concurrently. This appeal followed.
II. Motion to Suppress the Blood Draw
By his first issue, appellant argues that the trial court erred in failing to suppress the
blood draw evidence collected by police.
A. Standard of Review
We review a trial court's ruling on a motion to suppress for an abuse of discretion,
under a bifurcated standard. Hubert v. State, 312 S.W.3d 554, 559 (Tex. Crim. App.
3 2010); Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008); Carmouche v.
State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). The trial court is given almost
complete deference in its determination of historical facts, especially if they are based on
an assessment of credibility and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex.
Crim. App. 2010). The same deference is afforded the trial court in its rulings on the
application of the law to questions of fact and to mixed questions of law and fact, if
resolution of those questions depends on an evaluation of credibility and demeanor. Id.
However, for mixed questions of law and fact that do not fall within that category, a
reviewing court conducts a de novo review. Id.
In ruling on the motion to suppress, the trial court is the exclusive trier of fact and
judge of a witness's credibility. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App.
2002). Accordingly, a trial court may choose to believe or to disbelieve all or any part of
a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
However, a trial court has no discretion in determining what the law is or applying the law
to the facts. State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004). Thus, a failure
by a trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id.
We view all of the evidence in the light most favorable to the trial court's ruling.
State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011). Therefore, the
prevailing party is entitled to "the strongest legitimate view of the evidence and all
reasonable inferences that may be drawn from that evidence." Id. Since all evidence is
viewed in the light most favorable to the trial court's ruling, we are obligated to uphold its
ruling on a motion to suppress if that ruling is supported by the record and is correct under
4 any theory of law applicable to the case. Ross, 32 S.W.3d at 856; Carmouche, 10
S.W.3d at 327; State v. Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999).
B. Applicable Law
The taking of a blood sample is a search and seizure under both the federal and
Texas constitutions. Aliff v. State, 627 S.W.2d 166, 169 (Tex. Crim. App. 1982).
However, under certain circumstances, a blood sample taken without a warrant is not an
unreasonable search and seizure and, therefore, comports with constitutional
requirements. Schmerber v. California, 384 U.S. 757, 770–71 (1966); see U.S. CONST.
amend. IV. Police officers may constitutionally obtain a blood sample without a warrant
or consent if they have probable cause for a warrantless arrest, exigent circumstances,
and a reasonable method of extraction. Schmerber, 384 U.S. at 770–71; see Aliff, 627
S.W.2d at 169–70.2 The natural metabolization of alcohol in the bloodstream does not
present a per se exigency that justifies an exception to the Fourth Amendment's warrant
requirement for all nonconsensual blood testing when intoxication is suspected.
Missouri v. McNeely, 133 S.Ct. 1552, 1556 (2013). Instead, exigency in this context
must be determined on a case-by-case basis considering the totality of the
circumstances, including the well-settled fact that alcohol in the bloodstream begins to
dissipate quickly as a soon as a person stops drinking. Id.; see Aliff, 627 S.W.2d at 169.
C. Analysis
The following relevant facts are undisputed. When Texas Department of Public 2 In Texas, there are also statutory requirements that may apply when a person is arrested for an intoxication-related offense. See TEX. TRANSP. CODE ANN. §§ 724.011-.013, 724.015 (West, Westlaw through 2013 3d C.S.); State v. Laird, 38 S.W.3d 707, 713–14 (Tex. App.—Austin 2000, pet. ref'd). But the Texas Implied Consent and Mandatory Blood Draw Statutes are not applicable in this case because appellant was not under arrest. See TEX. TRANSP. CODE ANN. § 724.011(a); see also State v. Johnston, 336 S.W.3d 649, 661 (Tex. Crim. App. 2011). 5 Safety (DPS) Trooper Ramiro Aguilar arrived at the scene of the accident at around 4:50
a.m., appellant and the remaining survivors of the crash had already been transported to
the hospital. Trooper Aguilar was informed by San Benito Police Officer Jaime Perez
and various EMS personnel that appellant had smelled strongly of alcohol; Officer Perez
told Trooper Aguilar that appellant was "wasted." Appellant told both Officer Perez and
EMS that he had been drinking that night. Trooper Aguilar completed his investigation at
the scene before going to the hospital at approximately 10 a.m. to speak with appellant.
At this time, appellant denied that he had been drinking and refused to consent to a blood
draw. Without a warrant, Trooper Aguilar directed a nurse to take a blood sample from
appellant. Appellant was not arrested at this time.
At trial, Trooper Aguilar testified that he was the only DPS officer on duty that
morning. He was solely responsible for securing the accident scene and preserving and
collecting the evidence at the scene. In his investigation of the scene, Trooper Aguilar
found empty beer cans around appellant's vehicle. Trooper Aguilar testified that when
he arrived at the hospital approximately six hours after the accident, appellant had blood
shot eyes, was speaking slowly, and still smelled strongly of alcohol. Hospital personnel
told Trooper Aguilar that appellant had refused medical treatment. Trooper Aguilar
testified that he did not take the time to secure a warrant at this point because it was a
Sunday, and it would have taken at least three hours to get a warrant at this time. He
testified that because alcohol dissipates rapidly from the blood, he needed to collect a
sample from appellant before any further evidence of his possible intoxication was lost.
When the blood sample came back from the DPS lab showing a BAC in excess of the
6 legal limit, a warrant was issued for appellant's arrest.
Appellant argues that the six-hour delay in taking the blood draw vitiates any
exigent circumstances Trooper Aguilar might have had in not obtaining a warrant. 3
Appellant argues that Trooper Aguilar created the exigency in this case by waiting six
hours to obtain the blood sample. See Kentucky v. King, 131 S.Ct. 1849, 1858 (2011)
(holding that warrantless entry to prevent the destruction of evidence is not allowed where
police "create the exigency by engaging or threatening to engage in conduct that violates
the Fourth Amendment").
We do not believe Trooper Aguilar created the exigent circumstances in this case.
Trooper Aguilar testified that he was the only officer on duty that morning and that he was
solely responsible for securing the scene of the accident. He testified that he traveled to
the hospital as soon as he completed his duties at the accident scene, which were
time-consuming and extensive. Finally, he testified that because it was a Sunday, it
would have taken at least three hours to obtain a warrant from a judge, and because so
much time had already passed since the accident, he could not wait for a warrant before
obtaining a blood sample because the potential evidence of intoxication was rapidly
degrading. The trial court was entitled to credit Trooper Aguilar's version of events.
See Ross, 32 S.W.3d at 855. Under the record before it, the trial court could have
reasonably determined that Trooper Aguilar went to the hospital as soon as was
practicable considering the circumstances of that morning. Moreover, determining
whether an officer impermissibly manufactured an exigency depends on "'the
3 Appellant does not challenge whether Trooper Aguilar had probable cause to arrest him or
whether a reasonable method of extraction was used.
7 reasonableness and propriety of the investigative tactics that generated the exigency.'"
United States v. Rico, 51 F.3d 495, 502 (5th Cir. 1995) (quoting United States v. Duchi,
906 F.2d 1278, 1284 (8th Cir. 1990)). Based on Trooper Aguilar's explanation of the
events of that morning, the trial court could have reasonably concluded that the officer's
investigative tactics were not an attempt to deliberately create exigent circumstances that
would justify a warrantless blood draw. In the end, the foregoing were mixed questions
of law and fact that depended on the trial court's assessment of Trooper Aguilar's
credibility, and we must defer to the trial court's determination of these questions. See
Crain, 315 S.W.3d at 48.
Having considered the totality of the circumstances and viewing the evidence in
the light most favorable to the ruling, we conclude that the trial court did not abuse its
discretion in determining that Trooper Aguilar acted under exigent circumstances in
having appellant's blood drawn without a warrant. See McNeely, 133 S.Ct. at 1556; see
also Castleberry, 332 S.W.3d at 465; see also Aliff, 627 S.W.2d at 169. Therefore, the
evidence resulting from the blood draw—appellant's BAC and the retrograde
extrapolation testimony by Zuniga—was properly admitted on this basis. See
Schmerber, 384 U.S. at 770–71. We overrule appellant's first issue.
III. Retrograde Extrapolation Testimony
Having overruled appellant's Fourth Amendment argument, we now turn to his
second issue, in which he argues that the trial court abused its discretion in admitting
Zuniga's retrograde extrapolation testimony as expert evidence because it was
unreliable.
8 The science of retrograde extrapolation concerns the computation of a person's
BAC at the time of driving based on a test result obtained some time later. See Mata v.
State, 46 S.W.3d 902, 908–09 (Tex. Crim. App. 2001) (en banc). We review a trial
court's ruling on the admissibility of scientific evidence under an abuse-of-discretion
standard. Id. at 908–09. The proponent of scientific evidence has the burden of
demonstrating by clear and convincing evidence that the evidence is reliable. Id. at 908.
This is accomplished by showing the validity of the underlying scientific theory, the validity
of the technique applying the theory, and the proper application of the technique on the
occasion in question. Id.
In assessing the reliability of retrograde extrapolation evidence, in particular, we
consider the following factors relevant to this case:
(a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.
Id. at 916.
The State concedes that, in this case, Zuniga's testimony did not meet Mata's
standards in that the expert did not have knowledge of any individual characteristics of
appellant that might have affected the calculation. Moreover, we note that six hours
elapsed between the accident and the time that the blood draw was administered and that
only one test was administered. See id. Given that all three Mata factors weigh against
9 the reliability of the expert testimony in this case, we conclude that the trial court abused
its discretion in admitting the testimony. We must next decide whether the admission of
that testimony harmed appellant. And we believe that it did not.
The erroneous admission of retrograde extrapolation testimony is
non-constitutional error. Bagheri v. State, 119 S.W.3d 755, 762–63 (Tex. Crim. App.
2003); see also Martinez v. State, 155 S.W.3d 491, 495–96 (Tex. App.—San Antonio
2004, no pet.); Douthitt v. State, 127 S.W.3d 327, 333 (Tex. App.—Austin 2004, no pet.).
Therefore, we must disregard the trial court's error in admitting the State's retrograde
extrapolation testimony unless it affected appellant's substantial rights. See TEX. R. APP.
P. 44.2(b). An appellate court may not reverse a judgment for non-constitutional error if
the court, after examining the record as a whole, has fair assurance that the error did not
influence the jury or had but a slight effect. Solomon v. State, 49 S.W.3d 356, 365 (Tex.
Crim. App. 2001). We must consider the entire record, including testimony, evidence,
voir dire, closing arguments, and jury instructions, to determine whether the jury was
affected. Bagheri, 119 S.W.3d at 763; Motilla v. State, 78 S.W.3d 352, 355–56 (Tex.
Crim. App. 2002). We should also consider the nature of the evidence supporting the
verdict, the character of the alleged error and how it might be considered in connection
with other evidence in the case, whether the State emphasized the error, whether the
erroneously admitted evidence was cumulative, and whether it was elicited from an
expert. Bagheri, 119 S.W.3d at 763.
Here, the theory of retrograde extrapolation was raised by neither party during voir
dire or opening statements. Further, nothing occurred during voir dire or any other stage
10 that indicated any predisposition on the part of the jury toward giving scientific testimony
more weight. Zuniga's testimony comprised approximately forty pages of a hefty
four-volume reporter's record of trial testimony. Of those forty pages, over half of
Zuniga's testimony was devoted not to retrograde extrapolation, but to an explanation of
how he derived appellant's .10 BAC at the time of the blood draw. While the State did
recount the extrapolation testimony in its closing arguments, it also specifically exhorted
the jury to consider all of the evidence, and we cannot say that the State implied that the
extrapolation testimony, alone, was sufficient to show intoxication. During its closing, the
State also pointed to appellant's admission that he had been drinking and his refusal to
take a blood test as evidence of his intoxication. And while it is true that Zuniga was
offered as an expert, having reviewed the entire record, we find it clear that the State's
strategy did not hinge on Zuniga's expert status. Zuniga, himself, readily admitted on
cross-examination that his testimony was a generalized extrapolation based on
hypothetical facts.
But perhaps most importantly, the evidence in addition to the extrapolation
testimony that supported the jury's intoxication manslaughter verdict was overwhelming.
See Douthitt, 127 S.W.3d at 338 (finding no harm in the erroneous admission of
retrograde extrapolation testimony where the testimony was cumulative of other strong
evidence of intoxication); see also Morris v. State, 214 S.W.3d 159, 180–82 (Tex.
App.—Beaumont 2007), aff'd on other grounds, 301 S.W.3d 281 (Tex. Crim. App. 2009)
(finding any error in the introduction of retrograde extrapolation evidence harmless in light
of other overwhelming evidence of intoxication). Multiple witnesses—including EMS
11 personnel and law enforcement officers—testified that appellant smelled strongly of
alcohol at the scene. Officer Perez, in particular, described appellant as "wasted."
Even six hours after the crash, Trooper Aguilar testified that appellant still smelled of
alcohol, was speaking slowly, and had blood-shot eyes. Appellant refused a blood test
at the hospital. Officer Perez and paramedics who were at the scene testified that
appellant admitted to them that he had been drinking prior to the crash. In his
investigation at the scene, Trooper Aguilar found beer cans around appellant's truck.
Trooper Aguilar and a DPS accident reconstruction specialist both testified that the
evidence collected at the scene showed a violent collision that could be explained by
intoxication. Both testified that there were no skid marks on the road, which indicated
that the accident occurred suddenly, without time for anyone to brake. Trooper Aguilar
testified that there were car fluids on the road, gouge marks in the pavement, and
catastrophic damage to the vehicles, all of which was evidence of a violent, high-speed
and high-impact collision. Finally, both testified that it was apparent from the damage to
the vehicles, the debris in the roadway, and other physical details gathered at the scene
that appellant had veered into the on-coming lane of traffic. In short, there was ample
evidence from which the jury could infer that, at the time of the accident, appellant did not
have the normal use of his mental or physical faculties as a result of alcohol. See TEX.
PENAL CODE ANN. § 49.08(a), § 49.01(2) (West, Westlaw through 2013 3d C.S.); see also
Morris, 214 S.W.3d at 180–82; Douthitt, 127 S.W.3d at 338. Zuniga's extrapolation
testimony was cumulative of the foregoing evidence showing appellant's intoxication.
On the record before us, we have fair assurance that the trial court's error in
12 admitting the retrograde extrapolation testimony did not influence the jury or had but a
slight effect. Thus, appellant was not harmed by the error. See Solomon, 49 S.W.3d at
365. We overrule his second issue.
IV. Sufficiency of the Evidence
By his final issue, appellant argues that the evidence was insufficient to prove that
he was intoxicated, an essential element of the charged offense. See TEX. PENAL CODE
ANN. § 49.08(a).
A. Standard of Review and Applicable Law
In a sufficiency review, courts examine the evidence in the light most favorable to
the verdict to determine whether "any rational fact finder could have found guilt beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010) ("[T]he Jackson legal-sufficiency standard is
the only standard that a reviewing court should apply in determining whether the evidence
is sufficient to support each element of a criminal offense that the State is required to
prove beyond a reasonable doubt."). This standard requires reviewing courts to resolve
any evidentiary inconsistencies in favor of the judgment, keeping in mind that the jury is
the exclusive judge of the facts, the credibility of the witnesses, and the weight to give
their testimony. Brooks, 323 S.W.3d at 899; see TEX. CODE CRIM. PROC. ANN. art. 38.04
(West, Westlaw through 2013 3d C.S.) ("The jury, in all cases, is the exclusive judge of
the facts proved, and of the weight to be given to the testimony . . . ."). Appellate courts
do not re-evaluate the weight and credibility of the evidence; they only ensure that the fact
finder reached a rational decision. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.
13 App. 2009). A fact finder may support its verdict with reasonable inferences drawn from
the evidence, and it is up to the fact finder to decide which inference is most reasonable.
Id. at 523.
Legal sufficiency is measured by the elements of the offense as defined by a
hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.
App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Such a charge
is one that accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State's burden of proof or unnecessarily restrict the State's
theories of liability, and adequately describes the particular offense for which the
defendant was tried." Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240.
Here, appellant was intoxicated as defined by the relevant statute if: (1) he did not have
"the normal use of mental or physical faculties by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, a combination of two or more of those
substances, or any other substance into the body"; or (2) had "an alcohol concentration of
0.08 or more." TEX. PENAL CODE ANN. § 49.01(2).
B. Analysis
Appellant argues that without the retrograde extrapolation testimony, 4 the
evidence at trial was insufficient to prove intoxication. He complains that no breath or
blood test or field sobriety test was performed at the time of the accident. He contends
that the only evidence of his intoxication was the testimony that he smelled strongly of 4 We note that in reviewing the sufficiency of the evidence, we must consider all of the evidence before the jury, even erroneously admitted evidence. See Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004). So under the law, we should consider the retrograde extrapolation testimony erroneously admitted by the trial court in this case. However, for the sake of argument and because we ultimately conclude that there is sufficient other evidence of intoxication, we will disregard the extrapolation testimony as appellant has done. 14 alcohol and that he had blood shot eyes and that, in light of testimony by the same
witnesses that appellant was coherent and could respond to questions, this was not
enough.
But as detailed above, there was ample other evidence of intoxication. Officer
Perez testified that appellant appeared "wasted," from which the jury could infer that
appellant was exhibiting signs beyond minor drunkenness. Beer cans were found on the
ground outside appellant's truck. Appellant admitted to Officer Perez and paramedics
that he had been drinking. And appellant refused a blood test at the hospital. See
Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (refusal to take breath test
is relevant evidence of intoxication). Finally, the evidence collected at the scene showed
a violent collision that Trooper Aguilar and a DPS accident reconstruction specialist
testified could be explained by intoxication. The car fluids and gouge marks in the
roadway, the catastrophic damage to the vehicles, and the absence of skid marks on the
road all pointed to a driver who veered into on-coming traffic and did not brake before the
collision.
In his testimony, Officer Perez explained that no breath, blood, or field sobriety
tests were performed at the scene because the paramount concern after the accident
was treating the injuries suffered by those involved in the accident, including appellant.
For instance, Officer Perez testified that it appeared to him that appellant's leg was
injured, and as such, he did not make appellant stand to take field sobriety tests. In the
end, this matter, and whether appellant's apparent coherence after the accident
outweighed the odor of alcohol, were matters of weight and credibility that were within the
15 province of the fact finder and the determination of which we will not disturb on appeal.
See Brooks, 323 S.W.3d at 899; Laster, 275 S.W.3d at 517.
In sum, the physical evidence collected at the scene showing a powerful, violent
collision—combined with the evidence that appellant smelled of alcohol, admitted to
drinking before the accident, and that beer cans were found around appellant's truck at
the scene—would have allowed a rational fact-finder to conclude beyond a reasonable
doubt that appellant had lost normal use of his physical and mental faculties as a result of
alcohol. See Jackson, 443 U.S. at 319; see also TEX. PENAL CODE ANN. §§ 49.01(2),
49.08(a). We conclude that the evidence of appellant's intoxication was sufficient. His
final issue is overruled.
V. Conclusion
We affirm the judgment of the trial court.
NELDA V. RODRIGUEZ Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the 6th day of March, 2014.