In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-22-00154-CR NO. 09-22-00155-CR __________________
JEFF TAYLOR BELL, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 359th District Court Montgomery County, Texas Trial Cause Nos. 20-06-06597-CR (Count I) and 20-06-06597-CR (Count II) __________________________________________________________________
MEMORANDUM OPINION
Fabian Ramirez died after a motor vehicle collision on June 2, 2020. A grand
jury indicted Appellant Jeff Taylor Bell (“Appellant,” “Jeff,” “Bell,” or “the
defendant”) on two counts: (1) accident involving personal injury or death, for
failing to stop and render aid at the scene of the accident, and (2) intoxication
manslaughter, for driving while intoxicated and causing Ramirez’s death. See Tex.
Penal Code Ann. § 49.08(a); Tex. Transp. Code Ann. § 550.021(a). Bell pleaded not
1 guilty, but a jury found him guilty and, after a hearing on punishment, the jury
assessed punishment at twenty years of confinement on each count. The trial court
ordered the sentences to run concurrently. Bell appealed. In two issues, Bell argues
that the trial court erred by denying the admission of evidence of the victim’s blood
alcohol content and in denying a jury instruction on the law of concurrent causation.
We affirm as modified.
Pretrial Hearing
Prior to trial, the State filed a motion in limine seeking, in relevant part, to
exclude from evidence “[a]ny statements during the guilt/innocence phase of trial
concerning Fabian Ramirez consuming alcohol prior to the crash or any evidence
concerning his blood alcohol concentration[]” because “[t]hese statements are not
relevant to guilt or innocence.” At a hearing on the motion, the prosecutor told the
trial court that the defendant had bypassed a light and failed to yield right-of-way,
which caused the crash involving Bell’s vehicle and Ramirez’s motorcycle, and there
was no evidence that the driver of the motorcycle was at fault. The prosecutor also
stated that although Ramirez’s speed “could potentially be an issue[,]” any evidence
of his possible intoxication was not relevant. Defense counsel responded that not
allowing evidence of Ramirez’s blood alcohol content would deny the defendant due
process and the right to present a defense. The defense also argued that evidence of
Ramirez’s intoxication was relevant to causation. The trial court granted the motion
2 in limine and stated that evidence of Ramirez’s blood alcohol content should not be
mentioned without a discussion at the bench.
Evidence at Trial
Testimony of Alex Collier
Alex Collier testified that he was inside a gas station in Grangerland near the
intersection of FM 2090 and FM 3083 on June 2, 2020, when he heard a loud noise.
Collier ran outside, where he saw a motorcycle on the ground and a man lying to
one side who did not look good, and he saw a woman lying on the ground about fifty
yards away. Collier also observed scattered pieces of the motorcycle. Collier recalled
that he saw a front bumper and a man standing by the vehicle with the missing
bumper, and Collier said to him, “I think you killed him.” Collier identified the
defendant as the man he saw standing by his vehicle that day. Collier testified that
about two minutes after the crash, the defendant then drove off, Collier yelled at him
to stop, but the driver “just kept driving as fast as he could.” Collier did not see the
defendant call for assistance, provide his information or license, nor make any
attempt to render aid. Collier stayed at the scene for several hours, and he did not
see the defendant return.
Testimony of William Wayne
William Wayne testified that he was at the Exxon station in Grangerland on
June 2, 2020, at about 7 p.m. when he heard “the sound of two vehicles smacking
3 into something.” When Wayne ran outside, he saw that a motorcycle had run into a
trailer and a man and a woman were lying on the ground. Wayne recalled that a gray
car was involved in the crash, a white male had gotten out of the car and was looking
at the scene, the man said either, “I’m so sorry or I messed up[,]” and then the man
ran to his car and left the scene, but the bumper of the car was left behind. Wayne
testified that he stayed at the gas station for a couple of hours, and he did not see the
white male give his information to anyone, attempt to call for emergency assistance,
render aid, nor return to the scene.
Testimony of Iftikhar Mehboob
Iftikhar Mehboob testified that he is the manager of the Exxon store in
Grangerland on FM 3083. He testified he had known Roy Bell for some time, Jeff
Bell had just moved back to the area shortly before the crash, and Jeff became a
“regular customer” at his store and came to the store three to four times a day.
Mehboob identified the defendant as Jeff Bell. Mehboob recalled that sometime in
the early afternoon of June 2, 2020, Jeff Bell had come to his store, and Mehboob
believed that Jeff was intoxicated based on his body language and he asked Jeff to
go home and sleep. He also told Jeff not to drive. Mehboob testified that Jeff had
bought beer at the store before. Mehboob also testified that he did not see Jeff drink
that day.
4 Testimony of Roy Bell
Roy Bell (“Roy”), the defendant’s father, testified that he lived very near the
location where the accident happened, and that his son Jeff goes to the Exxon station
to buy sodas and beer. According to Roy, Jeff arrived at his house early on June 2,
2020 driving a small passenger car he had just bought. Roy testified that Jeff had
two 24-ounce beers on the table, and Roy saw Jeff drink one of the beers. Roy
recalled that about 7 p.m., Jeff left to get a haircut, and Roy went to the store, where
he heard ambulances, he saw a motorcycle lying on the ground and a bumper that
looked like Jeff’s bumper. According to Roy, when he was at the scene of the
accident, he told law enforcement that Jeff had been drinking. Roy testified that he
said Jeff had three or four beers because he considers one 24-ounce beer to be two
beers, and he had seen two 24-ounce beers at the house that day. Roy agreed that, at
the time of the accident, Roy stated that Jeff “didn’t act drunk, but I assumed that he
was drunk because he took off, and [] I just couldn’t understand all that.” According
to Roy, Jeff has mental health issues, and he observed Jeff to be having
“bipolar/schizophrenic episodes” the day of the accident.
Testimony of Maria Montano
Maria Montano testified that she owns a hair salon at the intersection of FM
2090 and FM 3083, where she was working on June 2, 2020. According to Montano,
a man came into the salon after her closing time of 5 p.m. that day and asked for a
5 haircut, and she asked him to come back the next day. Montano testified that she had
not seen the man before, he was “a little bit nervous and kind of stumbling[,]” and
she thought maybe he was drunk or under the influence of something. Montano
identified the defendant as the man who came into her salon that day after closing
time.
Testimony of Kevin Culver
Kevin Culver, a Captain Paramedic with Montgomery County Hospital
District, testified that he responded to a serious motor vehicle crash on June 2, 2020,
just south of the intersection of FM 2090 and FM 3083 in front of an Exxon gas
station. Culver recalled that the paramedic team arrived at the scene at 7:56 p.m.,
and they identified two patients—a man and a woman, and the woman was lying
about thirty feet from the man. Culver testified that he treated the man, who was
unconscious, had signs of internal hemorrhage, abrasions, a severe wound to his
back, and signs of brain trauma. According to Culver, the woman’s injuries were not
as severe as the man’s. Culver testified that the paramedics were very worried about
whether the man might die and they did not try to assess the man for alcohol or
drugs.
The patient care records for the man and the woman were admitted into
evidence. The man’s patient care report states that bystanders reported that the
motorcycle was struck by a car, the motorcycle lost control and went off the road,
6 where it struck the back of a utility trailer, and both riders on the motorcycle were
thrown from the bike. The woman’s patient care report states that the woman told a
paramedic, “we nearly got hit with a car. And my husband swerved into the parking
lot to avoid a crash.”
Testimony of Trooper Andrew Evans
Andrew Evans, a trooper with the Department of Public Safety (“DPS”),
testified that he was called to investigate a crash scene in Grangerland on June 2,
2020. Evans identified several photo exhibits that showed the roadway and accident
scene, and he testified that the photos show marks for gouges, skid marks, and body
slide marks that are later used to scale and measure the scene. On cross-examination,
Evans did not agree that the evidence showing the long distance the woman on the
motorcycle traveled in the accident suggested that the motorcycle was traveling at a
high rate of speed.
Testimony of Trooper Benjamin Polansky
Benjamin Polansky testified that he was a trooper with DPS and had attended
six levels of crash school and a motorcycle-pedestrian reconstruction class. Polansky
became involved in this case two days after the accident and assisted in
measurements used for a scaled diagram. Polansky testified, that based on
measurements at the scene, the post-impact speed of the motorcycle was between 56
7 and 64 miles an hour, and the speed limit on FM 3083 is 50 miles an hour, but that
post-impact speeds do not indicate how fast the motorcycle was going before impact.
Polansky testified that a person on the roadway would have the right-of-way
over a person coming out of the private drive at the convenience store, and the person
leaving the private drive would be responsible to determine if there is enough space
to exit onto the road. According to Polansky, if a person pulling out of a private drive
caused an accident because someone on the road could not stop in time, the person
leaving the drive would get a ticket. Polansky testified that the line of sight on the
roadway is “pretty far[]” with nothing blocking a driver’s view for about a mile and
the improved shoulder where FM 3083 meets the convenience store private drive is
“relatively large.” Polansky agreed that a driver exiting the convenience store private
drive could pull “pretty far forward” into the road without crossing the fog line.1
On cross-examination, Polansky agreed he did not know how fast the
motorcycle was going at the time of the accident. He testified that the woman had
travelled a little over 142 feet past where the motorcycle was after the accident. He
also testified that the defendant caused the crash by failing to yield the right-of-way
on a private drive.
1 Trooper Polansky explained that the “fog line” is the white line at the far right of the road that separates the road from the shoulder. 8 Testimony of Sergeant Jason Smith
Jason Smith, a sergeant with the Montgomery County Precinct 2 Constable’s
Office, testified that he is a mental health peace officer and has received training in
detecting whether persons are under the influence of alcohol or controlled
substances. He agreed he responded to an accident at the intersection of FM 2090
and FM 3083 on June 2, 2020, where the shoulder of the road was “wide enough for
a vehicle to be able to pull off onto the shoulder and be completely out of the moving
lane of traffic.” Based on paint on the tire of a trailer that was parked at the gas
station, Smith determined that “the motorcycle had made impact with the trailer.”
Smith testified that he ran the license plate of a detached car bumper found at the
scene and learned it belonged to a 1999 Honda Accord. Smith also found a helmet
and protective motorcycle vest for the male victim and a jacket and helmet for the
female victim. According to Smith, it was not dark at the time of the collision. Based
on the evidence he collected and interviews he conducted, Smith determined that an
offense had occurred—failure to stop and render aid resulting in serious bodily
injury to Fabian Ramirez.
Smith testified that Roy Bell identified himself to Smith at the scene, and
Smith took Roy’s statement. According to Smith, he heard a conversation between
Jeff and Roy because Jeff had called Roy at about 9:23 p.m. while Roy was still at
the scene, and Roy had the speaker of his phone on. Smith testified that he heard Jeff
9 ask if the victim was deceased, make comments about wanting to harm himself, and
sounding anxious, excited, and “very slurry when he talked.”
Smith testified that he was not able to locate Jeff Bell that night, but he later
learned that Jeff Bell was in the Wharton County Jail. Smith got an offense report of
Bell’s arrest in Wharton County from DPS, and he also learned that Bell’s vehicle
had been towed. Smith identified photos he took of Bell’s vehicle, which show the
vehicle is missing the front bumper cover and the right front headlight was broken,
and Smith testified that the damage to Bell’s vehicle was consistent with what Smith
found at the crash scene.
Smith testified that he met with Jeff Bell at the Wharton County Jail the day
after the crash and a DVD copy of the video of his interview with Bell was admitted
into evidence and played for the jury. Smith testified that the defendant told him that
“after the crash” he got out and looked at the victim and saw that he had “pretty bad”
injuries and got scared and left the scene and just started driving. Bell told Smith he
had stopped at a store in the “Wharton area” and purchased one big beer. Smith
testified he understood that Bell initially went to the Grangerland post office to get
a haircut and was told that the hair salon was around the corner, however according
to Smith, Bell did not remember being at the post office the day of the crash or why
he was there, and Smith thought that was significant because “it’s not like [] there
had been such a time period that you wouldn’t remember going to the post office[]”
10 and it could be a sign of intoxication. Bell told Smith that he was driving from the
store onto FM 3083. Bell also told Smith that he drank the beer early in the day, but
then he went to sleep. At one point in the interview, Bell told Smith that he was
“buzzed” on the afternoon of the crash, he went to sleep, and he was dehydrated
when he woke up. When asked whether he had concerns about the defendant saying
he had slept the afternoon of the crash, Smith replied, “yes[,]. . . [b]ecause somebody
that’s been drinking to an extent that was described to me, becoming tired or sleepy
or sleeping . . . at that time of day, the alcohol could be a factor in that.” Smith agreed
that he formed an opinion that Bell was intoxicated on the night of the crash based
on the totality of the circumstances learned during his investigation.
According to Smith, Bell had the legal duty to stop at the scene, to provide his
identification and insurance, to render aid to the victim by calling EMS for assistance
or to provide aid himself to the best of his ability, but based on his investigation,
Smith testified that Bell did not do this. Smith testified that it was “[a]bout 90 to 95
miles[]” from the crash scene to the location where the defendant was arrested in
Wharton County at about 9:45 p.m. As a result of his investigation and interviews,
Smith concluded that the defendant caused the crash
. . . because the defendant failed to yield the right-of-way resulting in the motorcycle striking his vehicle; and the motorcycle occupants being ejected from the vehicle; and then the deceased victim further striking the trailer that was parked at the gas station.
11 Smith further testified that the defendant violated the traffic code by intentionally
bypassing the traffic light at the intersection and cutting through a parking lot. Smith
also testified that intoxication was a factor because it impairs judgment and slows
reaction time.
Smith also testified that the traffic light by the intersection near where the
crash happened was working on the day of the crash, that the skill level of the driver
of the motorcycle could affect determination of the cause of the crash, and that the
distance between the point of impact and where the female passenger lay did not
necessarily mean the motorcycle was going at an extremely high speed. Smith
testified that Neftali Ramirez—Fabian Ramirez’s wife and a passenger on the
motorcycle at the time of the crash—told him the traffic light was green when they
drove through the intersection, but that Bell had a duty to yield right-of-way whether
the light was red or green.
Testimony of Neftali Ramirez
Neftali Ramirez testified that Fabian Ramirez was her husband, that he bought
a motorcycle on the day of the accident, but he had been riding motorcycles since he
was fourteen years old. Neftali also testified that she and Fabian had motorcycle
jackets and helmets because they had “driven bikes before.” According to Neftali,
Fabian drank a beer after work at about 3 p.m. on the day of the crash, but when they
got on the motorcycle later to go to dinner, she did not believe Fabian was
12 intoxicated. Neftali recalled that Fabian was driving at a reasonable speed that night,
the traffic light at the intersection was green, and Fabian moved the bike to the right
because a vehicle on the left side of the road was coming toward them. According
to Neftali, the car did not have the right-of-way, it was not supposed to be traveling
in their lane, and they were not able to get the motorcycle out of the way. Neftali did
not remember anything that happened right before or after the collision. Neftali
testified there was nothing Fabian could have done to avoid the collision.
Testimony of Trooper Glen Taft
Glen Taft testified that he works for the highway patrol in Wharton County,
and he encountered Jeff Bell at about 9:35 p.m. on June 2, 2020, on Highway 59
while on routine patrol. Taft noticed Bell’s vehicle had a defective headlamp, and
when he prompted Bell to pass him, it took a while for the car to stop. According to
Taft, the vehicle pulled over to the left side of the road at the center median, and
when Taft used his PA system to tell the driver to pull over on the right side of the
road, the driver did not do so. Bell testified that he pulled his vehicle next to Bell’s
and he “noticed right away his [] expression on his face and his red glassy eyes[,]”
and Taft thought “this person looks like they could be intoxicated.” Taft recalled that
when he approached Bell’s vehicle, Bell’s hands were outside the window, Bell’s
eyes were red and glassy, he looked disheveled, and some kind of liquid was on his
shirt. According to Taft, as soon as Bell stepped outside his car, Bell’s balance was
13 unsteady. Taft testified that Bell told him he was coming from Houston and that he
was going to Surfside, which stood out to Taft because Bell was “substantially off
course from going to Surfside.” According to Taft, Bell told him he had drunk three
beers. Taft recalled that when Bell flicked his cigarette into the grass, Taft noticed
an open container of beer in the grass a few feet away and Bell told him it was his
beer. Taft testified that when he picked up the can, he noticed it was still cold, and
that meant “somebody had an open container in the vehicle with him while they were
operating a motor vehicle.” Taft testified that Bell admitted he had thrown out the
beer, and Taft recalled that it looked like it was larger than a 12-ounce beer. Taft
also testified that, while he was in his patrol car running Bell’s information through
dispatch, Bell “took off running on foot[,]” Taft then ran after him and took Bell into
custody. When Taft did an inventory of Bell’s vehicle, he noticed there was damage
to the front and no front license plate.
Taft agreed he was qualified to conduct standardized field sobriety tests,
which he conducted with Bell at the Wharton County jail. According to Taft, Bell
displayed six of a possible six clues on the horizontal gaze nystagmus test, four out
of a possible eight clues on the walk-and-turn test, and three out of a possible four
clues on the one-leg stand test. Based on these test results and the way Bell looked
and acted, Taft formed an opinion that Bell was intoxicated, and he placed Bell under
arrest for driving while intoxicated. Taft also asked Bell to provide a breath
14 specimen, but Bell refused, so Taft filled out an affidavit for a blood warrant that
was issued at 12:11 a.m. on June 3, 2020. According to Taft, he sealed the blood
specimen in an evidence box and delivered it to the DPS crime lab in Houston on
June 5, 2020.
According to Taft, Bell never mentioned to him the crash that occurred in
Montgomery County. Taft identified State’s Exhibit 78 as a recording of the DWI
and evading arrest investigation he did on Jeff Bell on June 2, 2020, and the exhibit
was admitted and played for the jury. In the recording, at one point Bell tells Taft
that he has had three beers, and at another point, Bell tells Taft he had five beers.
Testimony of Jack McKelvy
Jack McKelvy testified that he works as a paramedic, and that in June 2020,
he was working in Wharton. McKelvy agreed he performed a blood draw on Jeff
Bell and created a report and that Bell was initially agitated and said they were not
going to draw his blood, but that he later calmed down and allowed the blood draw.
McKelvy recalled that he arrived at the Wharton County Jail at about 12:42 a.m. and
left at 1 a.m.
Testimony of Cheryl Szkudlarek
Cheryl Szkudlarek testified that she is a forensic scientist with the DPS crime
lab where she has worked for more than eight years analyzing controlled substances
and blood or urine samples for alcohol concentration. She agreed she analyzed a
15 blood sample from Jeff Bell and that Glen Taft submitted the sample on June 5,
2020. According to Szkudlarek, if a blood sample sits in an officer’s vehicle for two
days before submitting it to the lab, it does not have an effect on her analysis and
“[t]he most likely effect that you would see by it not being refrigerated is a decrease
in the ethanol concentration[]” so that any change in the sample would only benefit
the defendant.
Szkudlarek testified that she uses “headspace gas chromatography with flame
ionization detection[]” in her analysis, and that this method has been around for
many years and is widely accepted by the scientific community. Szkudlarek
identified State’s Exhibit 80 as her report on Bell’s blood sample, and her analysis
showed “0.238 grams of alcohol per 100 milliliters of blood.” Szkudlarek also
testified that the legal limit in Texas is 0.08 grams of alcohol per 100 milliliters of
blood, and that “just under 12 standard drinks[]” would produce the blood alcohol
content results observed in this case.
Testimony of Dr. Alex John
Dr. Alex John testified that he is a forensic pathologist and works for the
Montgomery County Forensic Services Department, and he performed an external
examination of Fabian Ramirez. Dr. John testified that the death certificate admitted
16 into evidence is for “Fabian Ramirez Sierra AKA Raymond Raul Sanchez Planas.”2
The doctor testified that Ramirez was a thirty-year-old Hispanic male who was taken
to HCA Houston Healthcare Conroe after a motor vehicle-motorcycle collision
where he was diagnosed with “multiple fractures, including rib fractures and other
injuries, including lumbar fibular fractures and head trauma.” According to the
doctor, hospital personnel “worked on him for about two days” and Ramirez was
pronounced dead on June 4, 2020. Dr. John determined that Ramirez’s cause of death
was multiple blunt-force trauma, consistent with being in a motor vehicle crash and
the manner of death was accident.
On cross-examination, the defense sought to introduce evidence of Ramirez’s
blood alcohol content. The State objected that no proper foundation for the evidence
had been established. After argument to the bench, the trial court denied admission
of a toxicology report for Ramirez, and the defense withdrew Dr. John’s report
because it included a reference to “toxicology.”
The jury found Bell guilty on both counts and, after a hearing on punishment,
the jury assessed punishment at twenty years of confinement on each count. The trial
court ordered the sentences to run concurrently. Bell timely filed his notice of appeal
in both cases.
2 Although the defense challenged the identity of the victim at trial, the victim’s identity is not an issue on appeal. 17 Admission of Evidence
In his first issue, Appellant argues that the trial court erred in excluding
evidence of Ramirez’s blood alcohol level at the time of the accident. According to
Appellant, there was evidence that Ramirez was traveling faster than the speed limit
and was found to have a blood alcohol level more than 0.08 when tested at the
hospital. Appellant argues that Ramirez would have had an impaired response time
due to his blood alcohol level that “could have made a difference between collision
and no collision.” For this reason, Appellant argues that Ramirez’s blood alcohol
content was “quite relevant[]” and the trial court erred by sustaining the State’s
motion in limine and excluding the evidence at trial.
We review a trial court’s ruling on the admission of evidence under an abuse
of discretion standard of review. Gonzalez v. State, 616 S.W.3d 585, 594 (Tex. Crim.
App. 2020). A trial court abuses its discretion when it acts without reference to any
guiding rules and principles or acts arbitrarily or unreasonably. Rhomer v. State, 569
S.W.3d 664, 669 (Tex. Crim. App. 2019). “As long as the trial court’s ruling is
within the ‘zone of reasonable disagreement,’ there is no abuse of discretion, and the
trial court’s ruling will be upheld.” De La Paz v. State, 279 S.W.3d 336, 343-44
(Tex. Crim. App. 2009) (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex.
Crim. App. 1991) (op on reh’g)); State v. Mechler, 153 S.W.3d 435, 449-40 (Tex.
Crim. App. 2005). If the trial court’s decision is correct on any theory of law
18 applicable to the case, we will uphold the decision. De La Paz, 279 S.W.3d at 344;
Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).
The erroneous admission or exclusion of evidence is generally reviewed under
the standard for non-constitutional error contained in Rule 44.2(b) of the Texas
Rules of Appellate Procedure if the trial court’s ruling merely offends the rules of
evidence. See Walters v. State, 247 S.W.3d 204, 218-19 (Tex. Crim. App. 2007);
Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). Under Rule 44.2(b),
even if the trial court erred in admitting the evidence, we may not overturn a criminal
conviction for non-constitutional error if, after examining the record as a whole, we
have fair assurance that the error did not have a substantial and injurious effect or
influence in determining the jury’s verdict. Casey v. State, 215 S.W.3d 870, 885
(Tex. Crim. App. 2007). In our determination of whether error adversely affected
the jury’s decision, we consider everything in the record, including testimony,
physical evidence, jury instructions, the State’s theories, any defensive theories,
closing arguments, and voir dire. Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim.
App. 2014).
Evidence is relevant if it has any tendency to make the existence of any fact
of consequence more or less probable than it would be without the evidence.
Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018) (citing Tex. R. Evid.
401). Relevant evidence is generally admissible. See Tex. R. Evid. 402; Gonzalez,
19 544 S.W.3d at 370. Even if the evidence is relevant, a trial court may determine that
it is not admissible because the danger of unfair prejudice outweighs the evidence’s
probative value. See Tex. R. Evid. 403.
The Rules of Evidence require that evidence must be authenticated or
identified, and “the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.” Tex. R. Evid. 901(a). Authentication
may be accomplished by testimony from a witness with knowledge that the item is
what it is claimed to be. See id. 901(b)(1).
To establish the facts necessary to admit the results of a blood test, the
proponent must show proof of a proper chain of custody of the blood sample that
shows the beginning and end of a chain of custody, including proof that the sample
came from the person the proponent alleged. See Stoker v. State, 788 S.W.2d 1, 10
(Tex. Crim. App. 1989), abrogated on other grounds by Leday v. State, 983 S.W.2d
713 (Tex. Crim. App. 1998) (Proof of the beginning and end of a chain of custody
will support the admission of the evidence in the absence of any evidence of
tampering or alteration.); Brown v. State, 240 S.W.2d 310, 311 (Tex. Crim. App.
1951) (blood test results were not admissible where there was no evidence that the
specimen taken by a nurse at the hospital was the same specimen forwarded for
analysis); Dugar v. State, 629 S.W.3d 494, 502 (Tex. App.—Beaumont 2021, pet.
ref’d) (chain of custody was satisfied where there was “evidence showing where the
20 chain of custody began, with the nurse, and where it ended in the lab[]”); Martinez
v. State, 186 S.W.3d 59, 62 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (stating
that chain of custody is proved when the proponent has shown the beginning and the
end of the chain of custody, particularly when the chain ends at a laboratory).
Business records may be admissible if there is some “indicia of reliability”
and “fundamental trustworthiness[.]” See Burleson v. State, 585 S.W.2d 711, 713
(Tex. Crim. App. 1979). A business record may be authenticated when presented by
an affidavit from the business’s custodian of records that complies with Rules of
Evidence 803(6) or (7) and 902(10). See Tex. R. Evid. 803(6), (7), 902(10). “Rule
803(6) allows an affidavit in lieu of calling a witness to authenticate the records,
without which the documents become merely inadmissible hearsay.” Venable v.
State, 113 S.W.3d 797, 800 (Tex. App.—Beaumont 2003, pet. ref’d).
A document prepared by a third party may be admissible under Rule 803(6) if: (1) it is incorporated and kept in the course of the testifying witnesses’ business; (2) that business typically relies upon the accuracy of the contents of the document; and (3) the circumstances otherwise indicate the trustworthiness of the document.
Bell v. State, 176 S.W.3d 90, 92 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d).
Scientific evidence—such as results of blood testing at issue here—must be
reliable to be admitted, and the reliability of scientific evidence requires that “(a) the
underlying scientific theory must be valid (b) the technique applying the theory must
be valid and (c) the technique must have been properly applied.” Bekendam v. State,
21 441 S.W.3d 295, 303 (Tex. Crim. App. 2014) (citing Kelly v. State, 824 S.W.2d 568,
573 (Tex. Crim. App. 1992)); see also Schard v. State, No. 09-16-00291-CR, 2018
Tex. App. LEXIS 2390, at **16-19 (Tex. App.—Beaumont Apr. 4, 2018, no pet.)
(mem. op., not designated for publication) (applying the Kelly factors when
considering the admissibility of blood test results).
In this case, the defendant sought to admit Ramirez’s blood test results during
cross-examination of Dr. John, the forensic pathologist who examined Ramirez’s
body after death. The doctor testified on voir dire that his report included a
toxicology section that stated a sample of blood was received from the hospital. Dr.
John did not know who drew the blood sample for Ramirez. Outside the presence of
the jury, the defense questioned Dr. John about the toxicology report which showed
that Ramirez had a blood alcohol concentration of 0.081.
The defense also sought to admit a Toxicology Report from NMS Labs in
Horsham, Pennsylvania, that reflected blood test results for Raymond Sanchez,
showing a blood alcohol concentration of 0.081. Dr. John testified that he asked for
a toxicology report on the blood, and the report from NMS Labs was a copy of the
report he requested. No business records affidavit from NMS Labs accompanied the
Toxicology Report. The NMS Labs report states the source of the blood specimen
was “001 - Hospital Blood” and the analysis was “Headspace GC[.]”
22 Dr. John testified that he regarded the NMS Labs report as trustworthy. When
asked if he knew who drew the hospital blood that was sent to NMS Labs, Dr. John
replied, “No.” He also testified that he did not draw the blood personally. Dr. John
testified he did not have to rely on the NMS Labs report for his findings. No witness
from NMS Labs testified about the origin of the sample or the methodology or
procedures used in the toxicology analysis.
The State objected to the toxicology report and the reference to toxicology in
the doctor’s report because there was no proper foundation. The State argued that
Dr. John, the witness through whom the evidence was offered, did not draw the
blood, and the defense did not have a witness to testify about who performed the
blood draw. The State also argued that there was no business records affidavit for
the lab report and that the defense could not say who drew the blood that was tested.
In denying admission of the NMS Labs report, the court stated that there was
no indication who drew the blood, that no witness was available to testify that the
blood samples were properly drawn, labeled, and tested, and that the lab report did
not have the required indicia of trustworthiness. 3 After the trial court did not allow
3 The trial court also questioned whether the probative value of the toxicology results would be substantially outweighed by the danger of unfair prejudice, however we do not read the record to say that the trial court denied admission expressly on this basis. 23 the NMS Labs report to be admitted, the defense withdrew its Exhibit 8, Dr. John’s
report, that included a reference to “Toxicology[.]” 4
The trial court’s ruling excluding the report is within the zone of reasonable
disagreement. We cannot say the trial court abused its discretion in excluding the
blood test results of the NMS Labs report. See Gonzalez, 616 S.W.3d at 594. No
business records affidavit accompanied the report, as required by Rule of Evidence
803(6). See Tex. R. Evid. 803(6). There was no evidence of who drew the blood
specimen and no testimony about the chain of custody. See Dugar, 629 S.W.3d at
502. No witness from NMS Labs testified about the method used to analyze the
blood specimen and whether the method was performed accurately. See Bekendam,
441 S.W.3d at 303; Kelly, 824 S.W.2d at 573. Dr. John testified that he did not rely
on the NMS blood test results to make his findings. The trial court could have
reasonably determined that the defense did not lay the proper foundation and did not
properly authenticate the NMS Labs report or its toxicology results. See Tex. R.
Evid. 901. Therefore, the trial court did not err by excluding it. Because we conclude
that the trial court did not abuse its discretion in excluding the blood alcohol report,
we do not address whether the report was relevant or whether any relevance was
4 The trial court stated that Dr. John’s report could be admitted provided the reference to “toxicology” was redacted, but the defense objected to the redaction. 24 outweighed by the danger of unfair prejudice. See Tex. R. App. P. 47.1. We overrule
Appellant’s first issue.
Concurrent Causation Instruction
In his second issue, Appellant contends that the trial court erred by failing to
include a jury charge instruction on concurrent causation under section 6.04(a) of
the Texas Penal Code. According to Appellant, there was evidence that Ramirez’s
excessive speed may have contributed to his death, and Appellant also argues that
evidence of Ramirez’s intoxication was relevant to causation. Appellant argues that
the failure to include a jury instruction on concurrent causation was harmful,
constitutional error that resulted in an unfair trial.
Where an appellant raises jury charge error on appeal, the degree of harm
necessary for reversal depends on whether the appellant preserved error by a timely
objection at trial. Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015).
When, as here, the defendant fails to object or states in the trial court that he has no
objection to the charge, we will not reverse for jury-charge error unless the record
shows “egregious harm” to the defendant. See State v. Ambrose, 487 S.W.3d 587,
595 (Tex. Crim. App. 2016) (“[U]npreserved jury-charge error does not require a
new trial, even when the error is complained of in a motion for new trial, unless the
error causes ‘egregious harm.’”); Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim.
App. 2005). In reviewing claims of jury charge error, we use a two-step process.
25 First, we determine whether error exists in the charge. Ngo, 175 S.W.3d at 743. If
error exists, we then determine whether it was “egregious harm” using the
framework outlined in Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)
(op. on reh’g). See Villarreal, 453 S.W.3d at 433.
We review a trial court’s refusal to include a defensive issue in the charge for
an abuse of discretion. Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App.
2000). An accused is entitled to an instruction on every defensive issue raised by the
evidence. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987). This is true
whether the evidence is strong or weak, unimpeached or contradicted, and regardless
of what the trial court may think about the credibility of the evidence. Hamel v. State,
916 S.W.2d 491, 493 (Tex. Crim. App. 1996). We must view the evidence in the
light most favorable to the defendant’s requested submission. Bufkin v. State, 207
S.W.3d 779, 782-83 (Tex. Crim. App. 2006).
Section 6.04(a) of the Penal Code states, “A person is criminally responsible
if the result would not have occurred but for his conduct, operating either alone or
concurrently with another cause, unless the concurrent cause was clearly sufficient
to produce the result and the conduct of the actor [was] clearly insufficient.” See
Tex. Penal Code Ann. § 6.04(a). To be entitled to such an instruction, the defendant
must specifically show that (1) a force or agency in addition to the actor was a “but
for” cause of the result charged, and (2) some evidence demonstrates the defendant’s
26 conduct was clearly insufficient to cause the harm and the other, concurrent cause
was clearly sufficient to cause the harm. Cyr v. State, 665 S.W.3d 551, 557-58 (Tex.
Crim. App. 2022).
“The scope of causation under the Texas Penal Code is broad, allowing courts
to find causation where ‘the result would not have occurred but for [the] conduct,
operating either alone or concurrently with another cause.’” Id. at 557 (quoting Tex.
Penal Code § 6.04(a)). However, if a concurrent cause other than the defendant’s
conduct “was clearly sufficient to produce the result and the conduct of the actor
clearly insufficient[,]” then causation is not established. Tex. Penal Code § 6.04(a);
see also Quintanilla v. State, 292 S.W.3d 230, 234 (Tex. App.—Austin 2009, pet.
ref’d).
Appellant argues that “[t]he trial court failed to include an application
paragraph following the criminal responsibility paragraph, paragraph III, [] which
should have explained the concept of concurrent causation.” The record does not
reflect that Appellant made such an objection at trial. In addition, the record does
not include a proposed jury charge submitted by the defense nor a motion for new
trial. Therefore, we first determine whether there was error in the jury charge, and if
there was, whether the defendant suffered egregious harm. See Lozano v. State, 636
S.W.3d 25, 29 (Tex. Crim. App. 2021); Villarreal, 453 S.W.3d at 433.
27 The trial court must charge the jury on the law applicable to the case. Tex.
Code Crim. Proc. Ann. art. 36.14. Paragraph III of the jury charge actually submitted
to the jury reads,
III. A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the Defendant clearly insufficient. IV. Now bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about the 2nd day of June, 2020, in Montgomery County, Texas, the Defendant, Jeff Taylor Bell, did then and there operate a motor vehicle in a public place while the Defendant was intoxicated, and by reason of that intoxication, cause the death of Fabian Ramirez Sierra, by accident or mistake, and you find from the evidence beyond a reasonable doubt that the death of Fabian Ramirez Sierra would not have occurred but for the Defendant’s conduct, operating either alone or concurrently with another cause, and you find that the concurrent cause was not clearly sufficient to produce the result or that the conduct of the Defendant was not clearly insufficient to produce the result, then you will find the Defendant guilty of intoxication manslaughter as charged in Count II of the Indictment.
The jury instruction in paragraph III tracks the language of section 6.04(a) of the
Penal Code. See Tex. Penal Code Ann. § 6.04(a). Paragraph IV applies the law stated
in paragraph III to the facts in this case. Appellant has not identified how the jury
charge actually given was inadequate. See Tex. R. App. P. 38.1(h), (i) (requiring an
appellate brief to contain a “succinct, clear, and accurate statement of the arguments”
and to provide appropriate citations to the record and to authorities).
28 Appellant cites to Saenz v. State, 474 S.W.3d 47, 53 (Tex. App.—Houston
[14th Dist.] 2015, no pet.), wherein the Houston Fourteenth Court concluded that the
trial court erred by not including an application paragraph on concurrent causation.
In Saenz, the defendant was convicted of “intoxication manslaughter and accident
involving injury or death.” Id. at 49. The evidence suggested that the victim, Torres,
was likely struck by the defendant’s truck. Id. at 50. A toxicology report showed that
Torres had a blood alcohol concentration of .172 when he died and that he had also
used marijuana and cocaine at some point before he died. Id. The trial court excluded
the toxicology report, which the defendant sought to admit as evidence that Torres’s
behavior was a concurrent cause sufficient to have caused his own death. Id. Other
evidence showed that Torres was walking in the road and was “likely somewhere
between the shoulder line and the middle of the lane when he was struck[.]” Id. at
52. The jury also heard evidence that Torres was dressed in dark clothes, that there
was no evidence that the defendant’s vehicle left the roadway, and that the highway
shoulder was very narrow with little room to walk on the shoulder. Id. On appeal,
the Fourteenth Court explained,
there was at least some evidence before the jury that appellant’s intoxication did not necessarily cause the collision and Torres’s resulting death. Equally important, the jury heard some testimony that it was essentially Torres’s actions that caused his death, and that it would have been difficult for any driver, sober or intoxicated, to avoid hitting Torres.
29 Id. The Houston Fourteenth Court of Appeals found the trial court erred in failing to
include a concurrent causation instruction, but the court did not explain or state what
the application paragraph applying the law of concurrent causation to the facts of the
case should state.
We find Saenz factually distinguishable from this case. In Saenz, there was
testimony that many drivers would have had a hard time seeing Torres in time to
avoid hitting him and there was evidence before the jury that appellant’s intoxication
did not necessarily cause the collision. Here, there is no testimony or evidence in our
case that drivers would have had a hard time seeing Ramirez. Although there was
some testimony that Ramirez was traveling faster than the speed limit, Appellant
points to no testimony that Ramirez’s speed alone was sufficient to have caused the
accident. The jury heard Neftali testify that Ramirez had a beer after work, and
although the trial court excluded the toxicology results, and there was no testimony
that Ramirez’s drinking or blood alcohol concentration was sufficient on its own to
have caused the accident. Unlike in Saenz, Appellant also fails to identify any
“evidence before the jury that appellant’s intoxication did not necessarily cause the
collision and [the victim’s] resulting death.” See id. He only argues that evidence of
Ramirez’s excessive speed and of intoxication “should have been considered within
a construct of concurrent causation” and that “harmful, constitutional error” resulted.
Appellant identifies no evidence showing that Ramirez’s conduct was “clearly
30 sufficient” to cause the accident and his death and no evidence that Bell’s conduct
was insufficient. See Tex. Penal Code Ann. § 6.04(a). Without such evidence, the
trial court had no obligation to include an application paragraph on concurrent
causation in the jury charge. See id. at 52-53; see also Cyr, 665 S.W.3d at 557-58
(requiring a defendant to produce evidence to support an instruction on concurrent
causation). Also, even if the trial court was required to include an instruction on
concurrent causation, Appellant does not identify how the instruction actually given
was inadequate or deficient. See Tex. R. App. P. 38.1(h), (i). Because we find the
jury charge given in this case was not in error, we need not determine whether harm
resulted. See Ngo, 175 S.W.3d at 743. We overrule Appellant’s second issue.
Even though we have overruled both of Appellant’s issues, we note that the
section of the judgment on Count I entitled “Statute for Offense[]” recites
“550.021(a) Penal Code[.]” However, the indictment for the underlying offense lists
the offense as “Accident Involving Personal Injury or Death” and tracks the language
of section 550.21 of the Texas Transportation Code. This Court has the authority to
reform the trial court’s judgment to correct clerical errors. See Tex. R. App. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App. 1993). We therefore
reform the judgment on Count I to reflect that the “Statute for Offense” for Count I
is “550.021(a) Transportation Code[.].”
31 Having overruled both of Appellant’s issues, we affirm the trial court’s
judgment on Count I as modified, and we affirm the trial court’s judgment on Count
II.
AFFIRMED AS MODIFIED; AFFIRMED.
LEANNE JOHNSON Justice
Submitted on May 22, 2023 Opinion Delivered September 13, 2023 Do Not Publish
Before Golemon, C.J., Johnson and Wright, JJ.