NUMBER 13-23-00196-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JONATHAN PAUL JONES, Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 144TH DISTRICT COURT OF BEXAR COUNTY, TEXAS
OPINION
Before Chief Justice Contreras and Justices Benavides and Silva Opinion by Justice Benavides
On January 31, 2020, at around 1:00 a.m., appellant Jonathan Paul Jones entered
an exit ramp driving the wrong direction. As he reached the top of the ramp, Jones was
involved in a head-on collision with Taylor McCowan as she exited Loop 1604 in San
Antonio, Texas. McCowan later died from her injuries, and Jones was charged with intoxication manslaughter (Count I) and manslaughter (Count II), both second-degree
felonies. See TEX. PENAL CODE ANN. §§ 19.04, 49.08. The State’s primary theory of
causation at trial involved Jones’s alleged consumption of alcohol prior to the accident:
either he was legally intoxicated under Count I, or he was under the influence and his
decision to drive in that condition was reckless under Count II. The jury acquitted Jones
of intoxication manslaughter but found him guilty of manslaughter. The jury also found
that Jones used his vehicle as a deadly weapon and sentenced him to a term of
imprisonment for eleven years and six months.
Jones raises four issues on appeal: (1) his conviction on Count II after being
acquitted on Count I constituted a double-jeopardy violation; (2) the evidence was
insufficient to support his conviction under Count II because the jury implicitly rejected the
State’s intoxication evidence under Count I and the remaining evidence did not show
recklessness; (3) the trial court erred by excluding certain evidence as hearsay when it
was admissible under the optional completeness rule; and (4) the trial court erred by
excluding expert testimony about the route Jones may have taken before turning the
wrong way onto the exit ramp.1 We affirm.
I. BACKGROUND
Count I of the indictment alleged that Jones caused McCowan’s death by operating
a motor vehicle in a public place while intoxicated. Count II of the indictment alleged that
1 This appeal was transferred to us from the Fourth Court of Appeals in San Antonio pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). We are bound by the precedent of the transferring court to the extent that it conflicts with our own. See TEX. R. APP. P. 41.3.
2 Jones recklessly caused McCowan’s death “by driving and operating a motor vehicle in
the opposite direction of traffic on a highway/roadway; and/or driving and operating a
motor vehicle while under the influence of alcohol.” Finally, the indictment included an
allegation that Jones used his vehicle as a deadly weapon.
As Jones acknowledges in his brief, “there was clearly sufficient evidence that
[Jones] caused the accident that killed [McCowan].” Instead, the primary dispute at trial
was what caused Jones to drive the wrong way up the exit ramp. Jones admitted to an
investigating officer at the scene that he had “two beers” earlier in the evening. The officer
testified that he observed several clues that indicated that Jones was intoxicated,
including the odor of alcohol on Jones’s breath, “unsteadiness,” “a noticeable sway,” and
slow responses to the officer’s questions. According to the same officer, Jones failed each
of the three standard field sobriety tests by exhibiting six out of six clues on the horizontal
gaze nystagmus test, five out of eight clues on the walk-and-turn test, and four clues on
the one-leg-stand test. The officer concluded that Jones was intoxicated and arrested
him. The State also introduced evidence that an involuntary blood draw taken at
approximately 3:00 a.m. showed that Jones’s blood alcohol concentration (BAC) at the
time of the draw was 0.177.
The State also suggested that Jones’s intoxication could be inferred from other
facts. The State introduced evidence that the exit ramp contained a “DO NOT ENTER”
sign visible to someone driving up the ramp and that other traffic control devices should
have alerted Jones to the fact that he could not turn that direction onto the exit ramp. For
example, Jones’s theory at trial was that he traveled up Barshop Blvd. to the frontage
3 road, crossed the frontage road, and turned left onto the exit ramp.2 The State pointed
out that, to travel this route, Jones necessarily crossed three lanes of one-way traffic at a
forty-five-degree angle, drove through a shoulder with solid white lines on either side, and
disregarded a raised concrete divider to his left. There were numerous maps and images
of the area admitted into evidence. The following image shows Jones’s alleged point-of-
view at the intersection of Barshop Blvd. and the frontage road, albeit during the daytime:
One eyewitness also testified that Jones was driving without his headlights on and only
turned them on immediately before the collision.
Finally, two witnesses testified that Jones attempted to flee the scene in his vehicle
but was unable to do so because his vehicle was inoperable. One of these witnesses told
Jones that he could not leave the scene, and the other witness heard Jones respond, “I
2 There were two other possible routes Jones could have taken: he could have been traveling the
correct direction on the frontage road and made a U-Turn onto the exit ramp, or he could have already been traveling the wrong direction on the frontage road when he turned onto the exit ramp.
4 got to get out of here. I got to get out of here.”
Jones acknowledged at trial that he had two beers several hours earlier in the
evening but strenuously disputed that he was intoxicated or that alcohol contributed in
any way to the incident. According to his timeline of events, Jones consumed these two
beers at home while he was having dinner with his family; he later met up with friends at
The Block, a food truck park near the University of Texas at San Antonio; and he spent a
few hours with these friends but did not consume any alcohol during this period. Jones
argued that the collision was nothing more than a tragic yet relatable accident because it
is not uncommon for someone to mistakenly drive the wrong way down a street. On that
score, he called an accident reconstruction expert who testified that there should have
been a one-way sign at the above intersection to apprise Jones that he could not turn left
onto the exit ramp.
Other experts called by Jones testified that the results from the field sobriety tests
and blood draw were not credible. One of those experts testified that it was improper to
administer field sobriety tests to Jones because he had just been involved in a serious
auto accident and was complaining about a head injury. According to that expert, the
results were unreliable because a person with head trauma can exhibit the same clues
that indicate intoxication on the tests. Two other experts testified that the nurse who
conducted the blood draw and the laboratory that tested the sample both made mistakes
that compromised the BAC results. According to these experts, each of those mistakes
could have caused a falsely elevated BAC in the sample. Jones also offered evidence
indicating that his headlights were on the entire trip that night. He also suggested that the
5 police made a rush to judgment and were biased because of a prior unrelated incident
involving Jones’s employer, the U.S. Marshals Service. Finally, Jones sought to shift
blame for the accident to McCowan by presenting evidence that she had a delayed
reaction to the impending accident and implying that she may have been distracted or
impaired.
The State countered with evidence indicating that Jones was not seriously injured
in the accident, and therefore, the results from the field sobriety tests were reliable.
Specifically, Jones did not initially complain about a head injury, only his wrist. When an
officer asked him directly whether his head was injured, Jones initially responded “no”
before changing his answer several minutes later. The State also introduced evidence
that Jones was medically cleared when he was brought before a magistrate that night.
Finally, the State attacked the credibility of the experts who were critical of the blood draw
results.
The jury found Jones not guilty of intoxication manslaughter, but guilty of
manslaughter, and it assessed his punishment as described above. This appeal ensued.
II. DOUBLE JEOPARDY
By his first issue, Jones argues that his conviction under Count II violated his right
to be free from successive prosecutions under the Double Jeopardy Clause. See U.S.
CONST. amends. V, XIV.
A. Applicable Law
“The Double Jeopardy Clause, enforceable against the states through the
Fourteenth Amendment, protects against repeated prosecutions for the same offense
6 (whether following conviction or acquittal at the conclusion of the first prosecution) and
against multiple punishments for the same offense stemming from a single prosecution.”
Ex parte Chaddock, 369 S.W.3d 880, 882 (Tex. Crim. App. 2012) (footnotes omitted).
Thus, there are three kinds of double jeopardy claims: (1) multiple punishments for the
same offense; (2) a second prosecution for the same offense after acquittal; and (3) a
second prosecution for the same offense after conviction. Garfias v. State, 424 S.W.3d
54, 58 (Tex. Crim. App. 2014); Brown v. Ohio, 432 U.S. 161, 165 (1977).
B. Analysis
The parties agree that Count I and Count II were the same offense for double
jeopardy purposes. See Ervin v. State, 991 S.W.2d 804, 817 (Tex. Crim. App. 1999).
(holding that “manslaughter and intoxication manslaughter are the same offense for
double jeopardy purposes when they involve the same victim”). But contrary to Jones’s
suggestion,3 the State was permitted to prosecute Jones for both offenses, see Ex parte
Aubin, 537 S.W.3d 39, 43 (Tex. Crim. App. 2017), and the trial court was authorized to
submit both counts to the jury. See Ball v. United States, 470 U.S. 856, 865 (1985) (“If,
upon the trial, the district judge is satisfied that there is sufficient proof to go to the jury on
both counts [that are the same for double jeopardy purposes], he should instruct the jury
as to the elements of each offense. Should the jury return guilty verdicts for each count,
however, the district judge should enter judgment on only one of the statutory offenses.”).
If the jury had returned guilty verdicts on both counts and the trial court rendered a
3 At oral argument, Jones argued that the eventual double-jeopardy violation began at the charging
stage because the State improperly charged Jones with two offenses that were the same for double- jeopardy purposes.
7 judgment of conviction on both counts, then a double-jeopardy violation would have
occurred, and Jones would be entitled to have the lesser conviction vacated. See id.; Ex
parte Aubin, 537 S.W.3d at 43 (“It is only upon entry of a judgment for multiple offenses,
after sentencing, that a multiple-punishments violation even occurs.”). Or, if the State had
only prosecuted Jones on the intoxication manslaughter count and the jury acquitted him
of that offense, then the State would be precluded from prosecuting him a second time
for manslaughter. See Garfias, 424 S.W.3d at 58; Brown, 432 U.S. at 165. The inverse is
also true: if the State had only prosecuted Jones on the manslaughter count and the jury
convicted him of that offense, then the State would be precluded from prosecuting him a
second time for intoxication manslaughter. See Garfias, 424 S.W.3d at 58; Brown, 432
U.S. at 165. Because none of those circumstances are present here, Jones’s conviction
for manslaughter in the same prosecution where he was also acquitted of intoxication
manslaughter does not implicate his double-jeopardy rights. See Garfias, 424 S.W.3d at
58; Brown, 432 U.S. at 165.
Nevertheless, Jones maintains that we should not disregard the sequence of
events in this case, that because he was first acquitted on Count I, his subsequent
conviction under Count II was tantamount to a successive prosecution. We are aware of
no authority holding that a successive-prosecution violation can arise in a single
prosecution, and Jones has pointed us to none. The double-jeopardy right against
successive prosecutions protects the accused from the “embarrassment, expense and
ordeal of repetitive trials, compelling the accused to live in a continuing state of anxiety
and insecurity, and creating a risk of conviction through sheer governmental
8 perseverance.” Ex parte Chaddock, 369 S.W.3d at 886 (cleaned up) (first quoting Green
v. United States, 355 U.S. 184, 187–88 (1957); and then quoting Tibbs v. Florida, 457
U.S. 31, 41 (1982)). We fail to see how any of those concerns surface in a single trial,
especially when the State acted within its authority to prosecute Jones on multiple counts
that were the same for double jeopardy purposes. See Ex parte Aubin, 537 S.W.3d at 43.
In sum, Jones was neither punished twice for the same offense nor subjected to
the harms of a second prosecution after a conviction or acquittal for the same offense.
Accordingly, his first issue is overruled.
III. LEGAL SUFFICIENCY
Jones next argues that the evidence was legally insufficient to support his
conviction for manslaughter.
A. Standard of Review & Applicable Law
To satisfy constitutional due process requirements, a criminal conviction must be
supported by sufficient evidence. Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.
2009). “Evidence is sufficient to support a criminal conviction if a rational jury could find
each essential element of the offense beyond a reasonable doubt.” Stahmann v. State,
602 S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)). In a legal sufficiency review, “we consider all the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and reasonable
inferences therefrom, a rational juror could have found the essential elements of the crime
beyond a reasonable doubt.” Hammack v. State, 622 S.W.3d 910, 914 (Tex. Crim. App.
2021). We defer to the jury’s role as the factfinder, which includes “resolving conflicts in
9 the testimony, weighing the evidence, and drawing reasonable inferences from basic
facts.” Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). “[A]n inference is a
conclusion reached by considering other facts and deducing a logical consequence from
them.” Anderson v. State, 416 S.W.3d 884, 888 (Tex. Crim. App. 2013) (quoting Hooper
v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007)). We consider “whether the necessary
inferences are reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict.” Murray, 457 S.W.3d at
448 (quoting Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).
We measure the sufficiency of the evidence against “the elements of the offense
as defined by the hypothetically correct jury charge for the case.” Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct 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 restrict its theories of liability, and adequately
describes the particular offense for which the defendant was tried. Id. The hypothetically
correct jury charge in this case would require the jury to find beyond a reasonable doubt
that Jones recklessly caused the death of McCowan. See TEX. PENAL CODE ANN.
§ 19.04(a). “A person acts recklessly, or is reckless, with respect . . . the result of his
conduct when he is aware of but consciously disregards a substantial and unjustifiable
risk that . . . the result will occur.” Id. § 6.03(c); see Britain v. State, 412 S.W.3d 518, 520
(Tex. Crim. App. 2013) (“Manslaughter is a result-oriented offense.”). Further, “[t]he risk
must be of such a nature and degree that its disregard constitutes a gross deviation from
the standard of care that an ordinary person would exercise under all the circumstances
10 as viewed from the actor’s standpoint.” TEX. PENAL CODE ANN. § 6.03(c). Recklessness,
like all culpable mental states, is generally proven through circumstantial evidence. Moore
v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998). This includes inferences drawn from
the acts, words, and conduct of the accused. Id.
Jones contends that, because his alleged intoxication was the State’s primary
theory under both counts and the jury implicitly rejected the State’s evidence of
intoxication by acquitting him on Count I, we should disregard evidence of his intoxication
in assessing whether the evidence was sufficient to show that his conduct was reckless.
According to Jones, this is the only way to harmonize what he views as plainly
inconsistent verdicts. Building on this premise, Jones argues that the remaining evidence
is insufficient to show that he consciously disregarded the substantial danger of driving
the wrong way. He posits that only a suicidal person would knowingly drive the wrong
way on a highway and there was no evidence that he “ever knew, before it was too late,
that he was traveling the wrong way on an exit ramp.” Instead, the evidence only shows
that he made an inadvertent mistake, which is insufficient to show recklessness.
He also argues that even if the jury concluded that he had consumed some alcohol
but was not intoxicated, this would be insufficient to show recklessness because
“consuming alcohol in such a way that one does not become intoxicated implicates no
legal culpability whatsoever.” To hold otherwise, Jones claims, would invade the province
of the Legislature to define criminal culpability for driving while intoxicated. He suggests
that appellate courts, including our own, have perpetuated a “legal fiction” that a
11 defendant who is not legally intoxicated can still be “under the influence of alcohol” or
impaired, and that such a condition can be considered in determining causation in cases
like this one. Jones contends that the Legislature has broadly defined intoxication to
include someone “not having the normal use of mental or physical faculties” by reason of
their alcohol consumption. See TEX. PENAL CODE ANN. § 49.01(2)(A). And given the
broadness of this definition, Jones reasons that a person is either intoxicated or they are
not because the definition leaves no room for a third category of persons who are impaired
but not intoxicated.
To begin, the two verdicts in this case are not inconsistent. As Jones
acknowledges, several courts of appeals, including our own, have recognized that
evidence of impaired driving that does not rise to the level of intoxication can be used to
show recklessness. Turner v. State, 435 S.W.3d 280, 286 (Tex. App.—Waco 2014, pet.
ref’d) (“Driving after consuming alcohol without establishing intoxication can be alleged
as a reckless act in an indictment for manslaughter.”); Rubio v. State, 203 S.W.3d 448,
452 (Tex. App.—El Paso 2006, pet. ref’d) (finding that driving under the influence of
alcohol can be used to show conscious disregard of substantial risk); see also Galvan v.
State, No. 13-14-00059-CR, 2016 WL 1393507, at *5 (Tex. App.—Corpus Christi–
Edinburg Apr. 7, 2016, pet. ref’d) (mem. op., not designated for publication) (same); Elliot
v. State, No. 13-13-00220-CR, 2015 WL 1869472, at *3 (Tex. App.—Corpus Christi–
Edinburg Apr. 23, 2015, no pet.) (mem. op., not designated for publication) (same); Buie
v. State, No. 03-02-00280-CR, 2003 WL 21189757, at *2 (Tex. App.—Austin May 22,
2003, no pet.) (mem. op., not designated for publication) (holding that a jury can
12 determine whether a person’s decision to drive after consuming alcohol shows requisite
degree of risk to establish recklessness without having to consider if the consumption of
alcohol deprived the person of the normal use of their physical and mental faculties as
required to prove intoxication). Of course, we are bound by the precedent of the transferor
court, see TEX. R. APP. P. 41.3, but Jones has not pointed us to any contrary holding from
the Fourth Court of Appeals (or any other court, for that matter). Therefore, until the Texas
Court of Criminal Appeals directs us otherwise, it is entirely possible for a jury, without
being inconsistent, to simultaneously find that the State failed to prove intoxication beyond
a reasonable doubt but that a driver’s consumption of alcohol was nevertheless a
contributing fact that shows recklessness.
Regardless, even if the verdicts in this case were inconsistent, “the law does not
bar inconsistent verdicts.” Guthrie-Nail v. State, 506 S.W.3d 1, 6 (Tex. Crim. App. 2015).
Moreover, our legal sufficiency standard requires us to consider all the evidence in the
record in the light most favorable to the verdict under review. Hammack, 622 S.W.3d at
914. This is true regardless of whether the jury returned an inconsistent verdict on another
count. United States v. Powell, 469 U.S. 57, 66–67 (1984) (holding that a defendant’s
only recourse against inconsistent verdicts is a legal sufficiency review on the guilty
verdict and this “review should be independent of the jury’s determination that evidence
on another count was insufficient” because any attempt to determine the jury’s reasons
for reaching inconsistent verdicts would require pure speculation and involve an improper
inquiry into the jury’s deliberations); Hernandez v. State, 556 S.W.3d 308, 321 (Tex. Crim.
App. 2018) (Richardson, J., concurring) (“Where a multi-count verdict appears
13 inconsistent, our inquiry is limited to a determination of whether the evidence is legally
sufficient to support the count on which a conviction is returned.”); Thomas v. State, 352
S.W.3d 95, 101 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (“Inconsistent verdicts
do not necessarily imply that the jury convicted the defendant on insufficient evidence,
but may simply stem from the jury’s desire to be lenient or to execute its own brand of
executive clemency.”); see also Moore v. State, No. 04-12-00490-CR, 2013 WL 3148650,
at *1 (Tex. App.—San Antonio June 19, 2013, pet. ref’d) (mem. op., not designated for
publication) (“Inconsistent verdicts in prosecutions based on the same evidence do not
require a reversal on the ground of legal insufficiency.”). With these ground rules in mind,
we turn to the record, including evidence that Jones chose to drive after consuming
alcohol.
Viewing the evidence in the light most favorable to the verdict, the record
establishes the following facts: Jones admitted that he consumed two beers earlier in the
evening; approximately thirty minutes after the collision, Jones failed all three field
sobriety tests and exhibited other clues of intoxication; and approximately two hours after
the accident, Jones’s BAC of 0.177 was more than twice the per se level of intoxication.
See TEX. PENAL CODE ANN. § 49.01(2)(B). The jury also received evidence that Jones
disregarded multiple traffic control devices when he drove the wrong way up the exit ramp
and that he was driving with his headlights off until immediately before the accident.
Courts have routinely found this constellation of facts sufficient to show recklessness.
See Griffith v. State, 315 S.W.3d 648, 652 (Tex. App.—Eastland 2010, pet. ref’d) (holding
evidence sufficient to uphold manslaughter conviction where defendant chose to drive
14 despite being intoxicated and failed to control van in a safe manner); see also Sanders v.
State, No. 02-18-00539-CR, 2020 WL 5242436, at *6 (Tex. App.—Fort Worth Sept. 3,
2020, pet. ref’d) (mem. op., not designated for publication) (holding evidence that driver
was under the influence and driving on the wrong side of the road was sufficient to support
conviction for manslaughter even though jury acquitted defendant of intoxication
manslaughter); Galvan, 2016 WL 1393507, at *5 (finding evidence of alcohol
consumption and inattentive driving sufficient to show recklessness); Elliot, 2015 WL
1869472, at *3–4 (finding evidence sufficient to support conviction for manslaughter
where driver admitted that she was intoxicated and distracted when she fatally struck a
pedestrian).
Jones contends that his experts completely destroyed the State’s evidence of
intoxication or impairment. Jones undoubtedly put on a vigorous defense, but it is well
established that the factfinder is entitled to judge the credibility of witnesses and can
choose to believe all, some, or none of the testimony presented. Chambers v. State, 805
S.W.2d 459, 461 (Tex. Crim. App. 1991). Based on the jury’s verdict, we presume the
jury found the State’s evidence more compelling. See Murray, 457 S.W.3d at 448–49
(“When the record supports conflicting inferences, we presume that the factfinder
resolved the conflicts in favor of the verdict, and we defer to that determination.”).
Finally, the State offered evidence of consciousness of guilt; namely, that Jones
attempted to flee the scene in his vehicle and told a witness, “I got to get out of here.” See
Clay v. State, 240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007) (noting that evidence of
flight evinces a consciousness of guilt); see also Longoria v. State, No. 13-22-00222-CR,
15 2023 WL 6631728, at *7 (Tex. App.—Corpus Christi–Edinburg Oct. 12, 2023, pet. ref’d)
(mem. op., not designated for publication) (same). Although Jones offered alternative
explanations for his conduct, we again must defer to the jury’s verdict. See Murray, 457
S.W.3d at 448–49.
Based on the evidence and reasonable inferences drawn therefrom, a rational juror
could have found the essential elements of manslaughter beyond a reasonable doubt.
Jones’s second issue is overruled.
IV. EXCLUSION OF EVIDENCE
By his third and fourth issues, Jones complains about the exclusion of certain
evidence.
A. Standard of Review
We review a trial court’s ruling on the admissibility of evidence for an abuse of
discretion. Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021). Given the
deferential nature of this standard, we will uphold the trial court’s decision if it falls within
the zone of reasonable disagreement. Id. “A party may claim error in a ruling
to . . . exclude evidence only if the error affects a substantial right of the party and . . . a
party informs the court of its substance by an offer of proof, unless the substance was
apparent from the context.” TEX. R. EVID. 103(a)(2); accord TEX. R. APP. P. 44.2(b) (“Any
other error, defect, irregularity, or variance that does not affect substantial rights must be
disregarded.”). Thus, “[t]he erroneous exclusion of evidence offered under the rules of
evidence generally constitutes non-constitutional error and is reviewed under Rule
44.2(b).” Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007). In assessing
16 harm under that rule, we consider “everything in the record, including any testimony or
physical evidence admitted for the jury’s consideration, 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.” Vasquez v. State, 501 S.W.3d 691, 701
(Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (quoting Morales v. State, 32 S.W.3d
862, 867 (Tex. Crim. App. 2000)). “A criminal conviction should not be overturned for non-
constitutional error if the appellate court, after examining the record as whole, has fair
assurance that the error did not influence the jury, or had but a slight effect.” Johnson v.
State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998) (first citing TEX. R. APP. P. 44.2(b);
and then citing King v. State, 953 S.W.2d 266 (Tex. Crim. App. 1997)).
B. Optional Completeness Rule
There were three witnesses to the incident who were traveling behind McCowan
on Loop 1604. These witnesses also stopped to render aid. Two of those witnesses,
Sandtisha and Ti’Anna Gardner, testified at trial, but the third witness, Christopher Avila,
died before trial and was therefore unavailable to testify. The State and Jones agreed that
Avila’s 911 call was admissible as an excited utterance and present sense impression.
See TEX. R. EVID. 803(1), (2). But Jones asked that the trial court also admit Avila’s audio
recorded statement to police, given approximately fifty minutes after the accident, under
the optional completeness rule. Jones explained to the trial court that Avila’s statement
was important “[b]ecause he says things that are absolutely in contradiction with what the
[Gardners] testified to; namely, the lights on [Jones’s] truck were definitely on.” The State
objected to the introduction of Avila’s recorded statement on the basis that it was hearsay
17 and that no exception applied. The trial court agreed with the State and sustained the
objection.
On appeal, Jones contends that the trial court abused its discretion because the
statement was admissible under the optional completeness rule. See TEX. R. EVID. 107
(“If a party introduces part of an act, declaration, conversation, writing, or recorded
statement, an adverse party may inquire into any other part on the same subject. An
adverse party may also introduce any other act, declaration, conversation, writing, or
recorded statement that is necessary to explain or allow the trier of fact to fully understand
the part offered by the opponent.”); Castillo v. State, 573 S.W.3d 869, 877 (Tex. App.—
Houston [1st Dist.] 2019, pet. ref’d) (“The rule of optional completeness is an exception
to the hearsay rule.” (citing Pena v. State, 353 S.W.3d 797, 814 (Tex. Crim. App. 2011))).
He further argues that this error affected his substantial rights because this evidence
supported his defensive theories that he was not intoxicated and that McCowan was
partially to blame for the collision.4
In its opening brief, the State acknowledges that the statement was admissible
under the optional completeness rule but argues that any error in excluding the statement
was harmless because: (1) the statement was cumulative of other evidence in the record
supporting Jones’s contention that his headlights were on; and (2) the question of whether
4 We note that, even if McCowan’s alleged inattentiveness was a contributing factor to the collision,
it would not absolve Jones of criminal culpability. See Cyr v. State, 665 S.W.3d 551, 557 (Tex. Crim. App. 2022) (“Further evidencing § 6.04(a)’s breadth, an actor need not be the sole cause of the harm. Causation is established where the conduct of the defendant is the ‘but for’ cause ‘operating alone or concurrently with another cause.’” (quoting TEX. PENAL CODE ANN. § 6.04(a))). After all, as Jones admits in his brief, “there was clearly sufficient evidence that [Jones] caused the accident that killed [McCowan].” (Emphasis added).
18 Jones had his headlights on was only a minor part of the State’s theory of causation,
which rested largely on Jones’s alcohol consumption and the fact that he was driving the
wrong way. In a supplemental brief, the State additionally argues that, upon further review
of the record, there was no adverse ruling to appeal from because the trial court
subsequently allowed Jones to introduce Avila’s statement that Jones’s headlights were
on through the testimony of Detective Maria Salazar. We agree with the State that Jones
cannot complain about the exclusion of evidence that was later admitted, even if the
evidence was presented through a witness rather than an audio recording.
A trial court is free to revisit a previous ruling on the admissibility of evidence. Black
v. State, 362 S.W.3d 626, 633 (Tex. Crim. App. 2012). After initially disallowing Avila’s
recorded statement on the first day of trial, Jones asked the trial court to reconsider its
decision on the fifth day of trial and allow him to question Detective Maria Salazar about
Avila’s statement because she relied on it in assessing fault for the accident. Over the
State’s continued hearsay objection, the trial court agreed, and Jones questioned
Detective Salazar at length about whether Avila reported seeing Jones’s headlights on.
She confirmed multiple times that Avila did see Jones’s headlights as Jones was driving
up the ramp. In fact, Avila told her that he began honking at McCowan prior to the
accident. Along similar lines, Detective Salazar agreed that whether Jones had his
headlights on was relevant because it could have alerted McCowan “to the danger” of
Jones’s oncoming vehicle and aided her in avoiding the collision. Detective Salazar also
acknowledged that the statements of the three witnesses regarding this fact were
inconsistent because Ti’Anna told her that Jones turned his headlights on immediately
19 before the accident and Sandtisha reported that she was unsure whether Jones’s
headlights were on. Given these inconsistencies, Detective Salazar admitted that she did
not attribute fault to Jones on the basis that his headlights were off; instead, she
concluded in her report that Jones caused the accident because he was intoxicated and
drove the wrong way. We hold that any error in excluding Avila’s statement with respect
to the headlights was rendered harmless by the subsequent testimony of Detective
Salazar. See Robison v. State, 461 S.W.3d 194, 200 (Tex. App.—Houston [14th Dist.]
2015, pet. ref’d) (holding that any error in excluding book of poetry was harmless because
appellant later testified about the contents of the book); Johnson v. State, 925 S.W.2d
745, 749 (Tex. App.—Fort Worth 1996, pet. ref’d) (holding that the exclusion of evidence
is harmless if the nature of the evidence is established through other means); cf. Aguilera
v. State, 75 S.W.3d 60, 68 (Tex. App.—San Antonio 2002, pet. ref’d) (“It is well-
established that the improper admission of evidence does not constitute reversible error
if the same facts are proved by other properly admitted evidence.”).
Nevertheless, Jones argues on appeal that there were other parts of Avila’s
recorded statement that would have aided his defensive theories on causation. For
example, Jones argues that “Avila’s statement also was relevant to rebut the State’s
repeated, speculative claim that Jones was deliberately attempting to flee the scene of
the accident.” But in the recording, Avila told Detective Salazar that Jones “started his
vehicle like he was going to leave, and a whole bunch of fluid started coming out from his
engine.” Avila continued, “I was trying to make sure that he wasn’t leaving. . . . I got him
to turn his car off, and then he turned it back on again. And then I asked him if he would
20 get out.” Therefore, contrary to Jones’s suggestion, Avila’s statement was entirely
consistent with the Gardners’ testimony that Jones attempted to leave the scene in his
vehicle. Avila also disagreed with the idea that McCowan braked at the “last minute,”
saying instead that she slammed on her brakes and tried to avoid the collision by turning
her vehicle. Although he apparently saw Jones’s headlights first and began honking at
McCowan,5 Avila also said that he had been traveling behind McCowan for a while, that
“she was driving perfectly fine,” and that he “had no reason to believe she was impaired.”
The one statement that he did make that was potentially beneficial to Jones was that he
did not smell any alcohol on Jones, but he also qualified his statement by saying that “the
fumes” from the leaking fluids were “very strong.” Simply put, the remainder of Avila’s
statement was not particularly helpful to Jones. Therefore, even if the trial court erred in
not admitting the entire recording, Jones has failed to demonstrate that the error had “a
substantial and injurious effect or influence in determining the jury’s verdict.” See Morales,
32 S.W.3d at 867 (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)),
(explaining what constitutes reversible error under Rule 44.2(b)). Jones’s third issue is
overruled.
C. Expert Testimony
By his final issue, Jones argues that the trial court erred by disallowing his accident
reconstruction expert from testifying about the plausibility that Jones traveled up Barshop
Blvd. prior to the accident. On voir dire, the expert admitted that he was relying on a
5 The fact that Avila began honking at McCowan before the collision was not in dispute as both of
the Gardners testified to this fact.
21 conversation he had with Jones about the route Jones had traveled prior to the collision.
The State objected that Jones was attempting to admit backdoor hearsay, and the trial
court sustained the objection.
On appeal, Jones argues that the trial court erred because experts are generally
allowed to rely on inadmissible evidence in forming their opinions and that “[t]he
appropriate remedy is for the opposing party to cross-examine the witness about the
sources of his opinion, not to exclude the opinion outright.” See TEX. R. EVID. 703 (“An
expert may base an opinion on facts or data in the case that the expert has been made
aware of, reviewed, or personally observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in forming an opinion on the subject, they
need not be admissible for the opinion to be admitted.”); Morris v. State, 123 S.W.3d 425,
428 (Tex. App.—San Antonio 2003, pet. ref’d). Jones acknowledges that his “expert was
later able to discuss the inadequacy of the signage in this general area to apprise a driver
that he cannot turn onto the ramp.” But he claims that “the context of this testimony was
utterly lost because the expert was precluded from explaining why the route from Barshop
[Blvd.] to the exit ramp was a reasonably plausible route for Jon[es] to have taken.”
The State responds that the trial court was within its discretion to disallow the
testimony and points us to analogous federal case law for the proposition that expert
testimony should not be used as a “conduit” for inadmissible hearsay. United States v.
Lundy, 809 F.2d 392, 395 (7th Cir. 1987) (agreeing “that ‘expert’ testimony based solely
on hearsay and third-party observations that are adequately comprehensible to lay people
would be improper to admit under Rule 702.” (citing Salem v. U.S. Lines Co., 370 U.S.
22 31, 35 (1962))). According to the State, the jury was well equipped to judge the plausibility
of traveling from The Block to the accident cite via Barshop Blvd. without the aid of expert
testimony. The State also argues that any error was harmless because other evidence in
the record suggested that Jones took this route, and therefore, the context of the expert’s
testimony was not lost on the jury. We agree with the State that any error in excluding this
testimony was harmless.
First, as a general proposition, we disagree with the idea that the jury was “utterly
lost” without this testimony. The record reflects that the jury was well acquainted with the
Barshop Blvd. route before Jones’s expert testified. During his opening statement, Jones
flatly told the jury that he had traveled along Barshop Blvd. prior to the accident. He
continued to reinforce his defensive theory by cross-examining multiple State witnesses
about the Barshop Blvd. route. Then his expert testified that the signage at the intersection
of Barshop Blvd. and the frontage road was inadequate to apprise Jones that he could
not turn left onto the exit ramp. Obviously, that opinion is only relevant if Jones took the
Barshop Blvd. route, and we are confident that the jury made that connection. Thus,
counter to Jones’s argument, “the context” of the expert’s testimony was readily apparent
to the jury.
In any event, such evidence would have been cumulative. Indeed, as Jones
acknowledges in his brief, “[t]he maps received into evidence demonstrate that Barshop
Blvd. is the most direct route from [T]he Block to the exit on Loop 1604 where the accident
occurred.” He also admits that these maps “supported the inference that Jones had
traveled up Barshop Blvd.” Therefore, any error in excluding the expert’s testimony about
23 the plausibility of this route was harmless. See TEX. R. APP. P. 44.2(b); Robison, 461
S.W.3d at 200; Johnson, 925 S.W.2d at 749. Jones’s final issue is overruled.
V. CONCLUSION
We affirm the trial court’s judgment of conviction.
GINA M. BENAVIDES Justice
Publish. TEX. R. APP. P. 47.2(b).
Delivered and filed on the 19th day of December, 2024.