AFFIRM; and Opinion Filed January 30, 2015.
Court of Appeals S In The
Fifth District of Texas at Dallas No. 05-13-00405-CR
SRIHARI AVULA, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 380th Judicial District Court Collin County, Texas Trial Court Cause No. 296-80285-2012
OPINION Before Justices Fillmore and Thomas, Retired 1 Opinion by Justice Fillmore
A jury found appellant Srihari Avula guilty of driving while intoxicated (DWI) with a
child passenger. See TEX. PENAL CODE ANN. § 49.045(a) (West 2011). 2 The trial court assessed
punishment of one hundred eighty days’ confinement, suspended the sentence, and placed Avula
on two years’ community supervision. In seven points of error, Avula contends there was no
admissible proof at trial that a child passenger was present in Avula’s vehicle; the prosecutor’s
comments during voir dire unfairly prejudiced the jury panel; the prosecutor asked the jury panel
to commit to a verdict of guilty if the State proved only one of four elements of the offense; there
1 The Honorable Linda Thomas, Chief Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by assignment. Justice Michael O’Neill was a member of the original panel and participated in the submission of this case; due to his retirement, he did not participate in the issuance of this opinion. See TEX. R. APP. P. 41.1(b). 2 Section 49.045(a) of the penal code provides that “[a] person commits an offense if (1) the person is intoxicated while operating a motor vehicle in a public place, and (2) the vehicle being operated by the person is occupied by a passenger who is younger than 15 years of age.” TEX. PENAL CODE ANN. § 49.045(a). The offense is a state jail felony. Id. § 49.045(b). was insufficient evidence that Avula was intoxicated; the trial court erred in permitting the State
to use an exhibit without a proper predicate; and cumulative error necessitates reversal. We
affirm the trial court’s judgment.
Background
Robert McKenna, a 9-1-1 dispatcher for the Frisco Police Department, testified that
shortly before 8:00 p.m. on October 21, 2011, a call was received reporting a reckless and
possibly intoxicated driver of a vehicle. An audio recording of the 9-1-1 call was played for the
jury. On the recording, the individual making the report provided the license number of a silver
Toyota Camry he was following. The caller stated his belief that the driver of the vehicle may be
intoxicated. He described the vehicle as weaving, moving erratically, and changing speed, and
he stated the vehicle had almost hit the curb numerous times. McKenna dispatched police
officers to the location identified by the 9-1-1 caller, but he believed the vehicle could not be
located.
Sergeant Ryan Moore of the Frisco Police Department testified that upon driving away
from the police station at 8:27 p.m. on October 21, 2011, he was behind a gray vehicle.
Traveling on a two-lane northbound road, he saw the vehicle strike the curb on the left and cross
the lane divider on the right more than once. The vehicle increased its speed to seventy miles per
hour in a fifty-miles-per-hour speed zone. Moore activated his emergency overhead lights and
stopped the vehicle. Moore identified the driver of the vehicle as Avula. Moore asked Avula the
reason for his driving behavior, and Avula said he was sorry. Moore noted there was a small
child in a car seat in the middle position of the back seat of Avula’s vehicle. Moore returned to
his police vehicle to conduct a routine license check, and he received notification from the police
department dispatcher of the earlier 9-1-1 call. While speaking with the dispatcher, Moore noted
–2– Avula making erratic movements and striking himself in the head with his open hand and fist.
Moore requested the dispatcher to send another patrol unit as backup.
Upon arrival at the scene, Officer Thomas Andrew Connell and Corporal Bardwell 3 of
the Frisco Police Department accompanied Moore to Avula’s vehicle, and Moore asked Avula to
step out of his vehicle. When answering Moore’s questions, Moore smelled alcohol on Avula’s
breath. Avula originally denied he had been drinking alcohol, but after Moore advised Avula
that he smelled alcohol on his breath, Avula stated he had a couple of drinks. Based on the
manner in which he had seen Avula’s car driven, the odor of alcohol on Avula’s breath, and
Avula’s admission he had been drinking, Moore decided to perform standardized field sobriety
tests on Avula. Bardwell requested that Moore permit Connell to perform the standardized field
sobriety tests because Connell was in training and Bardwell wanted Connell to have field
experience. Moore permitted Connell to conduct the standardized field sobriety tests.
Connell testified that on October 21, 2011, he was a patrol officer in the third and final
phase of his field training, which entailed acting independently as a police officer accompanied
by a supervisor. Bardwell was Connell’s supervisor on October 21, 2011. Connell was
dispatched to provide backup to Moore on a traffic stop. Upon arrival at the scene, Moore
informed Connell he had observed the suspect engaging in the traffic violations of failing to
maintain the traffic lane, striking a curb, and speeding. Moore told Connell that the behavior of
the driver seemed odd and abnormal. The police officers decided to administer the standardized
field sobriety tests. Connell’s police academy training included a week of instruction by
National Highway Traffic Safety Administration (NHTSA) instructors on how to determine
whether a person is driving while intoxicated. Connell received his State certification to
administer the standardized field sobriety tests when he graduated from the police academy in
3 Corporal Bardwell’s first name is not included in the record.
–3– May 2011. This was Connell’s second DWI investigation. The other investigation occurred
during the second phase of his field training. Connell testified he had conducted more
standardized field sobriety tests since he performed Avula’s tests, and he was “smoother” in
conducting those tests than he was at the time he tested Avula.
Connell testified that the standardized field sobriety tests are a combination of three tests
developed by the NHTSA to determine whether a driver has the cognitive and physical ability to
safely operate a vehicle. In administering each of the tests, one looks for specific areas that
indicate the test is passed or failed. A certain number of areas failed in each test is a “decision
point” indicating the test subject met the criteria for being intoxicated and the test administrator
should proceed to the next stage of testing. The first test is the horizontal gaze nystagmus
(HGN) test. HGN is the involuntary jerking of the eyes when they move along a horizontal
plane and can be caused by ingestion of central nervous system depressants such as alcohol,
marijuana, medications, or inhalants.
Connell testified that before administering the HGN test, bright lights of police vehicles
are turned off and officers do their best to ensure the test subject is not facing oncoming traffic
lights. Connell agreed that the HGN test has to be performed in the exact manner in which he
was trained or the results of test could be compromised. The NHTSA manual indicates that if
the person performing the HGN test deviates from standard test procedures, the results are
compromised. Connell testified that at the time Avula’s HGN test was administered, the strobe
lights of the patrol vehicle were turned off and Avula was facing the intersection of Cotton Gin
Road and both the North Dallas Tollway and the access road. Traffic was not coming toward
Avula, but instead was passing from left to right on the North Dallas Tollway and the access
road, and the traffic was therefore in the left and right fields of Avula’s vision. Connell was
trained to place an HGN test subject in the most secure and optimal position for administering
–4– the test, and in Connell’s opinion, he placed Avula in the position that would best ensure his
safety.
The police videotape of the traffic stop was admitted into evidence and played for the
jury. On the videotape, Avula acknowledges he had been drinking. The videotape also included
the standardized field sobriety tests administered by Connell. On the videotape, the strobe lights
of the patrol vehicle were turned off. A few vehicles passed at some distance from the scene
during the administration of the HGN test, but no vehicles passed adjacent to the scene in a
manner causing headlights to shine directly in Avula’s face during administration of the HGN
test. On the videotape, Avula’s eyes are not visible during the HGN test. Connell testified that
an HGN test could have been performed in the intoxilizer room of the Frisco jail, and the jury
could have had a better vantage point to see Avula’s eyes during an HGN test performed in the
intoxilizer room, however Avula was not transported to the intoxilizer room for HGN testing
because environmental factors, such as inclement weather, did not require indoor testing.
Connell testified that when the HGN test was administered, Avula exhibited positive
response to each aspect of the test. First, Connell checked for “equal tracking,” or ability of the
eyes to follow the stimulus in a smooth pattern without involuntary eye jerking. Connell
observed a lack of “smooth pursuit” in both of Avula’s eyes. Second, Connell performed an
aspect of the test referred to as “distinct and sustained nystagmus at maximum deviation.” This
portion of the test involved positioning the stimulus at “maximum deviation,” and testing for
jerking eye movement when the eye is “looking all the way to one side.” Connell observed
jerking movement in both of Avula’s eyes. The third part of the HGN test involved moving the
stimulus from center vision to about a forty-five degree angle while checking for eye jerking.
Connell observed jerking in one of Avula’s eyes. In other words, Connell observed five of a
possible six “clues” while administering Avula’s HGN test.
–5– Having reached a decision point on the HGN test, Connell believed Avula was a
candidate to continue with the walk-and-turn standardized field sobriety test, a divided-attention
test of cognitive functioning and ability to reason as well as physical functioning and balance.
There are eight clues on the walk-and-turn test, and the decision point is two clues. Connell
observed four signs of intoxication in administering the walk-and-turn test with Avula starting
too soon, stepping off the line during the instruction phase, making an improper turn to his right,
and taking an incorrect number of steps. Connell determined Avula was a candidate for the next
standardized field sobriety test, the one-legged stand test, a divided attention test involving
cognitive and physical components. There are four possible clues of intoxication on this test,
and the decision point is two clues. Connell observed two clues of intoxication when
administering this test. Based on the totality of the circumstances, including Avula’s
performance on the standardized field sobriety tests, conduct of Avula observed by Connell, and
conduct of Avula described to Connell by Moore, including Moore’s statement he smelled
alcohol on Avula’s breath, Connell formed the opinion that Avula was intoxicated and did not
have the normal use of his mental or physical faculties while driving a motor vehicle. Avula was
placed under arrest.
The child sitting in the car seat in Avula’s vehicle is named T.A. 4 A certified copy of
T.A.’s birth certificate was admitted in evidence, indicating T.A. was born on April 28, 2010.
Moore testified that T.A. was one and one-half years of age on October 21, 2011. Moore
obtained the phone number of Avula’s wife and T.A.’s mother and telephoned her to come to the
scene to pick up T.A.
The jury also viewed the police videotape of Avula taken in the intoxilizer room of the
Frisco jail following his arrest. On the videotape, Avula answered questions of a Frisco police
4 To protect the identity of the minor, we identify him by his initials.
–6– officer. Avula stated he last drank alcohol at 3:00 or 4:00 p.m., consisting of two shots of
tequila, and he last ate food around 3:00 p.m. Avula told the police officer he was not ill, had not
been recently injured, was not under a doctor’s care, and did not have a blood disease or
diabetes. Avula voluntarily agreed to provide a blood sample, and he was transported from the
Frisco jail to Centennial Medical Center where Nurse Karen Holzer performed the blood draw.
Holzer testified she performed the blood draw at 9:55 p.m.
Christopher Youngkin, a forensic scientist at the Texas Department of Public Safety
Crime Laboratory in Garland, Texas, testified that he was asked by the Frisco Police Department
to analyze a blood sample from Avula. The crime lab received Avula’s October 21, 2011 blood
sample on November 10, 2011. He retrieved the blood sample from a refrigerator at the crime
lab on November 17, 2011 and performed a blood alcohol analysis of the blood on November 18,
2011. Youngkin testified regarding the manner in which he performed the blood analysis.
Youngkin’s Alcohol Analysis Laboratory Report on the blood alcohol concentration (BAC) in
Avula’s blood sample was admitted into evidence. Avula’s blood sample contained .18 grams of
alcohol per 100 milliliters of blood. Youngkin testified that alcohol diminishes a person’s
mental ability and inhibits a person’s physical ability to operate a motor vehicle. In his opinion,
a person with a .18 BAC would not be able to safely operate a motor vehicle.
Youngkin testified that retrograde extrapolation is a process for calculating a person’s
BAC at a point in time prior to the blood draw. Some amount of alcohol would have dissipated
from Avula’s blood between the time he was stopped by Moore and the time his blood was
drawn. Based on retrograde extrapolation, Youngkin testified it was possible that Avula had a
.21 BAC at the time he was stopped by Moore. For a male weighing approximately 175 pounds,
it would require approximately eleven drinks to reach a BAC of .21. An individual with a BAC
range of .18 to .3 could exhibit signs of confusion, disorientation, mental confusion, dizziness,
–7– exaggerated emotional states, disturbances of vision and of perception of color, form, motion,
and dimension, an increased pain threshold, increased muscular incoordination, staggering,
slurred speech, apathy, and lethargy. Youngkin testified that a person hitting himself in the head
as a result of a traffic stop could be a demonstration of an exaggerated emotional state of rage,
and a vehicle driver hitting the curb multiple times and failing to maintain travel in a single lane
of traffic could be the result of a disturbance of vision and perception or a lack of muscular
coordination.
A jury convicted Avula of driving while intoxicated with a child passenger. See TEX.
PENAL CODE ANN. § 49.045. The trial court assessed punishment of one hundred eighty days’
confinement, suspended the sentence, and placed Avula on two years’ community supervision.
Avula’s motion for new trial was overruled by operation of law. He filed this appeal of his
conviction.
Evidence of the Age of the Child Passenger
To prove the offense of driving while intoxicated with a child passenger, the State must
prove the vehicle operated by the intoxicated defendant in a public place was occupied by a
passenger who was younger than fifteen years of age. TEX. PENAL CODE ANN. § 49.05(a). In his
first point of error, Avula contends his conviction should be reversed because there was no
admissible proof at trial that a child passenger was present in Avula’s car. Avula acknowledges
he did not object to admission of the child’s birth certificate into evidence. However, he argues
it was fundamental error for the trial judge to admit the child’s birth certificate into evidence
because the birth certificate was inadmissible hearsay.
Generally, for a complaining party to preserve error for appellate review, the record must
reflect that the party raised the issue with the trial court in a timely and specific request,
objection or motion. TEX. R. APP. P. 33.1(a)(1). Assuming for the sake of argument that the
–8– challenged evidence is, in fact, hearsay, admission of hearsay evidence is not fundamental error
that can be raised for the first time on appeal. See TEX. R. APP. P. 44.2(b); Johnson v. State, 967
S.W.2d 410, 417 (Tex. Crim. App. 1998) (error in admission of evidence constitutes
nonconstitutional error); Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim. App. 1996) (“[A]ll
existing authority holds the admission of hearsay must be preserved with a timely and specific
objection to the evidence.”); see also Fernandez v. State, 805 S.W.2d 451, 455–56 (Tex. Crim.
App. 1991) (failure to timely object waives error, and hearsay admitted without objection is
probative evidence).
Because Avula failed to object to admission of the child’s birth certificate at trial, he
failed to preserve this point of error for appeal. Accordingly, we resolve Avula’s first point of
error against him.
Prosecutor’s Comment During Voir Dire
In his second point of error, Avula contends his conviction should be reversed under
fundamental error analysis because the prosecutor made a comment during voir dire regarding a
possible effect of the jury’s verdict that unfairly prejudiced the panel. Avula contends the
prosecutor’s comment could have resulted in the venire panel assuming that a conviction would
result in Avula receiving treatment for substance abuse, “which the jury could have logically
concluded would have benefited” Avula and, accordingly, the conviction must be reversed.
During voir dire, the prosecutor asked the venire panel members whether they, a close
friend, or a relative had been arrested for, charged with, or convicted of a DWI charge. A venire
panel member responded that his brother-in-law’s DWI case was pending, stating “I think he’s
still in the process, but he’s been going through a lot of recovery, going through Alcoholics
Anonymous.” The prosecutor stated to the venire panel member, “You’ve seen the rehabilitation
–9– portion of that, and that ultimately, maybe, if that wouldn’t have happened, he never would have
gotten the help that he needs,” and the venire panel member responded, “Absolutely.”
Avula did not object at trial to the purportedly objectionable comment by the prosecutor,
and he now asserts on appeal the comment amounted to fundamental error. Yet appellant
provides no argument explaining how the prosecutor’s comment is a violation of a “waivable-
only” right or denial of an “absolute systemic requirement” warranting treatment as fundamental
error. See Saldano v. State, 70 S.W.3d 873, 886–87 (Tex. Crim. App. 2002). Further, appellant
cites to no authority concluding any similar voir dire comment by the prosecution constitutes
fundamental error.
The prosecutor in this case did not question the venire panel members about their views
on the benefit of rehabilitation that could result from a conviction. The prosecutor merely
inquired about whether venire panel members, their friends, or their relatives, had previously
been arrested for, charged with, or convicted of DWI. The prosecutor’s question was a proper
voir dire question because it sought “to discover a juror’s views on an issue applicable to the
case.” Samaripas v. State, No. PD-135-13, 2014 WL 5247434, at *4 (Tex. Crim. App. Oct. 15,
2014) (citing Barajas v. State, 93 S.W.3d 36, 398 (Tex. Crim. App. 2002)). It was a venire panel
member’s response to the prosecutor’s question that first raised recovery and rehabilitation as a
possible consequence of a DWI arrest. The prosecutor simply responded to the venire panel
member’s answer by commenting that if the DWI arrest had not occurred, the panel member’s
brother-in-law might not have received needed help. The venire panel member then readily
agreed with the prosecutor’s comment. This is not the gist of fundamental error. 5 Fundamental
error is error “calculated to injure the rights of the appellant to the extent that he has not had a
5 Indeed, rehabilitation has long been recognized as a legitimate goal of penal sanctions. See Meadoux v. State, 325 S.W.3d 189, 195 (Tex. Crim. App. 2010) (citing Graham v. Florida, 560 U.S. 48, 49 (2010)).
–10– fair and impartial trial.” Ross v. State, 487 S.W.2d 744, 745 (Tex. Crim. App. 1972). The
prosecutor’s comment did not rise “to such a level as to bear on the presumption of innocence or
vitiate the impartiality of the jury,” see Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App.
2001), and it is not fundamental error of constitutional dimension.
We conclude the complained-of comment of the prosecutor during voir dire was not
fundamental error, and Avula’s failure to object to the purportedly improper comment by the
prosecutor waived the error. We resolve Avula’s second point of error against him.
Request for Jury Panel’s Commitment
In his third point of error, Avula contends his conviction should be reversed because
during voir dire the prosecutor asked the panel to commit to a verdict of guilty if the State proved
only one of four elements of the offense—that Avula was intoxicated. The State responds that
the prosecutor did not attempt to commit the jurors to convict based solely on the element of
intoxication, but rather properly questioned the jurors regarding their ability to convict based on
any of the three definitions of intoxication.
As noted above, generally a complaining party preserves error for appellate review by
making a timely and specific request, objection, or motion in the trial court. See TEX. R. APP. P.
33.1(a)(1). See Halprin v. State, 170 S.W.3d 111, 120 (Tex. Crim. App. 2005) (appellant who
did not object to purportedly improper commitment questions failed to preserve any appellate
claim they were improper); see also Montgomery v. State, 198 S.W.3d 67, 74 (Tex. App.—Fort
Worth 2006, pet. ref’d) (appellant did not object to allegedly improper commitment question
until after venire member had answered question; appellant failed to preserve this complaint for
appellate review). Because Avula failed to object at trial, the alleged commitment questions
must rise to the level of fundamental error to be preserved for appeal. See Cade v. State, 795
S.W.2d 43, 44 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d).
–11– During voir dire, the prosecutor informed the venire panel that to convict Avula of the
charged offense, the State was required to prove beyond a reasonable doubt that Avula was
intoxicated while operating a motor vehicle in Collin County, Texas, and that while he was
operating the vehicle, he had a passenger who was under fifteen years of age. The prosecutor
informed the jury of three statutory definitions of intoxication: not having the normal use of
mental faculties due to the introduction of alcohol, a drug, or a controlled substance; not having
the normal use of physical faculties because of the introduction of alcohol, a drug, or a controlled
substance; or having an alcohol concentration of .08 or greater. See TEX. PENAL CODE ANN.
§ 49.01(2) (West 2011) (definitions of intoxication); Bagheri v. State, 119 S.W.3d 755, 762
(Tex. Crim. App. 2003) (definitions of intoxication in penal code section 49.01(2) set forth
alternate means of committing one offense rather than setting forth separate and distinct
offenses). The prosecutor explained to the venire panel that the jurors did not have to agree on
which of the definitions of intoxication was proven by the State to apply in this case beyond a
reasonable doubt. The prosecutor then inquired of venire panel members whether, if the State
had proved every element of the offense beyond a reasonable doubt, and that the defendant was
intoxicated based on one of the definitions of intoxication, the panel members could convict the
defendant of the charged offense. Those inquiries of the venire panel members are the questions
on appeal that Avula characterizes as improper commitment questions. 6
A commitment question “attempt[s] to bind or commit a prospective juror to a verdict
based on a hypothetical set of facts.” Standefer v. State, 59 S.W.3d 177, 179 (Tex. Crim. App.
2001) (quoting Allridge v. State, 850 S.W.2d 471, 480 (Tex. Crim. App. 1991)). Improper
6 Avula also argues on that appeal that during closing argument, the prosecutor “stressed that the jury need only determine that [Avula] was intoxicated in order to convict [him] of the offense.” We disagree with this characterization of this portion of the prosecutor’s closing argument. Like the questions of the venire panel about which Avula complains on appeal, the prosecutor was reminding the jury of the three definitions of intoxication she discussed with the venire panel and that the jurors did not have to agree upon which one of the definitions the State proved beyond a reasonable doubt.
–12– commitment questions are prohibited to “ensure that the jury will listen to the evidence with an
open mind—a mind that is impartial and without bias or prejudice—and render a verdict based
upon that evidence.” Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005). However,
not all commitment questions are improper. Id.; Standefer, 59 S.W.3d at 181. The court of
criminal appeals has articulated a three-part test for determining whether a voir dire question is
an improper commitment question. Standefer, 59 S.W. at 179–83. First, the trial court must
determine whether the particular question is a commitment question. Id. at 179. A question is a
commitment question if “one or more of the possible answers is that the prospective juror would
resolve or refrain from resolving an issue in the case on the basis of one or more facts contained
in the question.” Id. at 180. Second, if the question is a commitment question, the trial court
must then determine whether it is a proper commitment question. Id at 181 (“When the law
requires a certain type of commitment from jurors, the attorneys may ask the prospective jurors
whether they can follow the law in that regard.”). A commitment question is proper if one of the
possible answers to the question gives rise to a valid challenge for cause. Id. at 182. If the
question does not, then it is not a proper commitment question and it should not be allowed by
the trial court. Id. Third, if the question does give rise to a valid challenge for cause, then the
court must determine whether the question “contain[s] only those facts necessary to test whether
a prospective juror is challengeable for cause.” Id.
Here, the prosecutor informed the venire panel that the State had the burden of proof as to
each of the elements of the charged offense, including the element of intoxication. Assuring
through voir dire questioning that venire panel members could convict a defendant of driving
while intoxicated with a passenger under fifteen years of age if the State proved every element of
the offense beyond a reasonable doubt is not improper commitment questioning. A venire panel
member’s inability to so follow the law could lead to a valid challenge of that panel member for
–13– cause. See id. at 181, 182. Avula has not directed us to any case holding that questions similar
to those of the prosecutor here were fundamentally erroneous.
We conclude the questions by the prosecutor during voir dire cited by Avula were not
improper commitment questions. Accordingly, we do not conclude that the allegedly improper
voir dire questions rose to the level of fundamental error, reviewable without the need for
objection at trial. See Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (error not
properly preserved must be “fundamental,” meaning it was “so egregious and created such harm
that the defendant ‘has not had a fair and impartial trial.’”) (quoting Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1984)). 7 We resolve Avula’s third point of error against him.
Sufficiency of the Evidence of Intoxication
In his fourth point of error, Avula asserts there was insufficient evidence he was
intoxicated because a standardized field sobriety test was improperly performed. According to
Avula, insufficient evidence supports his conviction because the HGN test was improperly
performed with Avula facing traffic and lights on the access road to the Dallas North Tollway.
According to Avula, the fact that an HGN test could have been performed in the intoxilizer room
of the Frisco jail after Avula’s arrest further undermines the reliability of the HGN test procedure
performed at the scene of the traffic stop and the results of that test. In his fifth point of error,
Avula contends there was insufficient proof he was intoxicated because his blood test was
improperly performed. Avula argues the DPS “uses unsound methods to test blood samples.”
Avula further argues the State did not present reliable expert testimony of retrograde
extrapolation and no other evidence “logically raised an inference” Avula was intoxicated when
7 See Phillips v. State, No. 05-08-01654-CR, 2010 WL 297942, at *1 (Tex. App.—Dallas Jan. 27, 2010, pet. ref’d) (not designated for publication); see also Scott v. State, No. 07-12-00375, 2013 WL 4528821, at *1 (Tex. App.—Amarillo Aug. 26, 2013, no pet.) (mem. op.) (not designated for publication) (contentions that the State engaged in improper voir dire questioning did not present fundamental error such that appellate court could review the issue not raised in the trial court).
–14– he was driving. Because the legal analysis is similar, we address points of error four and five
together.
We review the sufficiency of the evidence under the standard set out in Jackson v.
Virginia, 443 U.S. 307 (1979). Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013).
We examine all the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Matlock, 392 S.W.3d at 667. This standard recognizes “the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319; see also Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). As the fact
finder, the jury is entitled to judge the credibility of the witnesses, and can choose to believe all,
some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459,
461 (Tex. Crim. App. 1991); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.
2012) (“The factfinder exclusively determines the weight and credibility of the evidence.”). We
defer to the jury’s determinations of credibility, and may not substitute our judgment for that of
the jury. Jackson, 443 U.S. at 319; Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App.
2014); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal
sufficiency analysis, appellate court “may not re-weigh the evidence and substitute our judgment
for that of the jury”). When there is conflicting evidence, we must presume the factfinder
resolved the conflict in favor of the verdict, and defer to that resolution. Jackson, 443 U.S. at
326; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Evidence is sufficient if
“the inferences necessary to establish guilt are reasonable based upon the cumulative force of all
the evidence when considered in the light most favorable to the verdict.” Wise, 364 S.W.3d at
903.
–15– At trial, the jury heard a 9-1-1 recording of a report identifying a vehicle matching that
driven by Avula which was weaving, moving erratically, changing speed, and almost hitting the
curb numerous times. The jury also heard the testimony of Moore who saw Avula’s vehicle
almost strike the curb on the left, crossing the lane divider a couple of times, and increasing
speed to seventy miles per hour in a fifty-miles-per hour speed zone. Moore observed Avula’s
odd behavior of hitting himself in the head with his open hand and his fist after being stopped.
Moore smelled alcohol on Avula’s breath, and Avula admitted to Moore at the scene that he had
been drinking. The jury heard Connell’s testimony regarding Avula’s poor performance on the
standardized field sobriety tests and viewed the police videotape of Avula’s performance of the
walk-and-turn and the one-legged stand tests. See Compton v. State, 120 S.W.3d 375, 378–79
(Tex. App.—Texarkana 2003, pet. ref’d) (one-legged stand test “allows an individual to
demonstrate his or her ability to remain balanced while standing on only one leg,” and failure to
remain balanced during test or comply properly with officer’s directions may serve as clues of
intoxication). At the Frisco jail, Avula again admitted he had been drinking. The Alcohol
Analysis Laboratory Report admitted in evidence showed Avula’s BAC was .18 grams of
alcohol per 100 milliliters of blood, which was over the legal intoxication level of .08.
Avula’s principal argument concerning the HGN test is that by performing the test at the
scene of the stop in the presence of lights from passing traffic, Connell failed to follow NHTSA
manual instructions for administering the HGN test, which compromised the accuracy of the test
results. Nystagmus is an involuntary rapid oscillation of the eyes in a horizontal, vertical, or
rotary direction. Emerson v. State, 880 S.W.2d 759, 765 (Tex. Crim. App. 1994); Plouff v. State,
192 S.W.3d 213, 218 (Tex. App.—Houston [14th Dist.] 2006, no pet.). HGN refers to the
inability of the eyes to smoothly follow an object moving horizontally across the field of vision,
particularly when the object is held at an angle of forty-five degrees or more to the side. Plouff,
–16– 192 S.W.3d at 218–19. The effect of alcohol on HGN is well-documented. Emerson, 880
S.W.2d at 766. “The DWI Detection Manual’s prefatory language acknowledges that although
the [standardized field sobriety] tests, when administered under ideal conditions, ‘will generally
serve as valid and useful indicators of impairment,’ slight variations from the ideal ‘may have
some affect [sic] on the evidentiary weight given to the results.’” Compton, 120 S.W.3d at 378
(quoting Nat’l Highway Traffic Safety Admin., U.S. Dep’t of Transp., DWI DETECTION AND
STANDARDIZED FIELD SOBRIETY TESTING STUDENT MANUAL). The court of
criminal appeals has noted that “[t]he accuracy of the HGN test has been estimated at various
levels, depending on such factors as testing conditions and the ability and experience of those
conducting the test,” thereby acknowledging an HGN test will not be administered in strict
conformity with an officer’s training every time the officer performs the HGN test. Id. (quoting
Emerson, 880 S.W.2d at 767).
If, indeed, the HGN test administered to Avula varied from the strict NHTSA manual
instructions for administering the test, the deviation in the administration of the HGN test could
have been found by the jury to be slight, and the jury was entitled to consider and determine the
weight to be given the testimony regarding the results of the HGN test. See Plouff, 192 S.W.3d
at 219 (“Slight variations in the administration of the HGN test do not render the evidence
inadmissible or unreliable, but may affect the weight to be given the testimony.”). We defer to
the jury’s role as the sole judge of the weight and credibility to be given to the evidence. See
Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
With regard to the testing of Avula’s blood sample, Avula argues the blood test was
improperly performed. While Avula criticizes the methodology used for testing the blood
sample, he does not cite to any evidence that the test result was compromised. The jury heard
Youngkin’s testimony regarding the handling of the blood sample from the time it was delivered
–17– to the crime lab and the process he utilized in performing the BAC test. Avula introduced no
evidence at trial indicating Youngkin’s testing was “improperly performed” or that the crime lab
uses “unsound methods” of testing blood samples. The jury was entitled to weigh the credibility
of Youngkin’s testimony and the evidence regarding the testing of the blood sample and to
determine the weight to be given that evidence. Avula further argues the State did not present
reliable expert testimony of retrograde extrapolation. See Mata v. State, 46 S.W.3d 902, 908–09
(Tex. Crim. App. 2001) (defining retrograde extrapolation as “the computation back in time of
the blood-alcohol level—that is, the estimation of the level at the time of driving based on a test
result from some later time”). According to Avula, no evidence other than Youngkin’s testimony
regarding retrograde extrapolation of Avula’s BAC “logically raised an inference” Avula was
intoxicated when he was driving. See Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App.
2010) (even absent expert retrograde extrapolation testimony, BAC-test results are often highly
probative to prove both per se and impairment intoxication; BAC-test result, by itself, is not
sufficient to prove intoxication at the time of driving; “There must be other evidence in the
record that would support an inference that the defendant was intoxicated at the time of driving
as well as at the time of taking the test.”). Avula introduced no evidence at trial that Youngkin’s
testimony regarding retrograde extrapolation was unreliable, nor did Avula seek to have
Youngkin’s testimony on that subject excluded as unreliable. See Hepner v. State, 966 S.W.2d
153, 159 (Tex. App.—Austin 1998, no pet.) (defendant did not preserve his complaints that the
State did not prove reliability of random match probability evidence).
Even if the jury chose to give less weight to the results of the HGN test because of the
cross-examination of Connell, during which Avula attempted to discredit the reliability of the
HGN test as it was administered or because an HGN test could have been performed at the
Frisco jail, or to give less weight to the testimony of Youngkin regarding the blood sample
–18– testing or his opinion on Avula’s intoxication level at the time he was stopped based on
retrograde extrapolation, we conclude a rational jury could have reasonably found the essential
elements of the DWI offense beyond a reasonable doubt. After considering Moore’s testimony
concerning the circumstances causing him to stop Avula, listening to a recording of the 9-1-1
telephone call regarding the erratic maneuvering of Avula’s vehicle, viewing the video recording
of the traffic stop, including Avula’s performance of the walk-and-turn and one-legged stand
standardized field sobriety tests, hearing Avula’s admissions at the scene and the Frisco jail that
he had been drinking before operating the vehicle, and considering the BAC test result, we
conclude the fact finder could have reasonably inferred Avula was intoxicated when he was
driving and at the time of the BAC test. See Kirsch, 306 S.W.3d at 745 (evidence logically
raising inference that defendant was intoxicated at the time of driving as well as at the time of the
BAC test includes erratic driving, post-driving behavior such as stumbling, swaying, slurring or
mumbling words, inability to perform field sobriety tests or follow directions, bloodshot eyes,
admissions by defendant concerning what, when, and how much he had been drinking, “in short,
any and all of the usual indicia of intoxication”); 8 see also Plouff, 192 S.W.3d at 224; Smith v.
State, 65 S.W.3d 332, 347 (Tex. App.—Waco 2001, no pet.) (walk-and-turn and one-legged
stand tests “are grounded in common knowledge that excessive alcohol consumption can cause
coordination, balance, and mental agility problems”; sole purpose of the walk-and-turn and one-
legged stand tests “is to reveal clues or symptoms of impairment”).
A rational jury could have reasonably concluded Avula was intoxicated—that is, he did
not have the normal use of mental or physical faculties due to the introduction of alcohol or had
an alcohol concentration of .08 or greater—at the time he was driving as well as at the time his
8 See also Moseman v. State, No. 05-13-00304-CR, 2014 WL 2993826, at *3 (Tex. App.—Dallas June 30, 2014, no pet.) (mem. op.) (not designated for publication).
–19– blood was drawn for the BAC test. See TEX. PENAL CODE ANN. § 49.01(2). Accordingly, we
resolve Avula’s fourth and fifth points of error against him.
Demonstrative Exhibit
In his sixth point of error, Avula argues his conviction should be reversed because the
trial judge improperly permitted the State to utilize a chart as a demonstrative exhibit without
laying the proper predicate. Avula contends the trial court erred by overruling his hearsay
objection to the chart, and the trial court’s ruling “affected the jury’s decision.” Avula argues the
trial court improperly permitted the State’s expert witness, Youngkin, to testify regarding the
chart, because on voir dire examination by Avula’s counsel, Youngkin testified he had no
knowledge about who made the chart, the methodology used in making the chart, or whether the
information in the chart had been peer reviewed.
Youngkin testified that in his education and training about the effects alcohol can have on
the human body, he attended the week-long Borkenstein course on alcohol and traffic safety at
Indiana University. The demonstrative exhibit, a chart entitled “Development of Acute
Tolerance” was a part of the Borkenstein course materials. Youngkin testified he relied upon the
chart to assist the jury by visually representing his testimony that signs of intoxication increase
as BAC increases and signs of intoxication become less apparent as BAC decreases.
“Demonstrative evidence” is “evidence admitted to serve as a visual aid or illustration
that meets the tests of relevancy and materiality, as well as the limitations imposed by Texas
Rule of Evidence 403.” 9 Hartsock v. State, 322 S.W.3d 775, 779 (Tex. App.—Fort Worth 2010,
no pet.). “Demonstrative evidence has no independent relevance to the case but is offered to
help explain or summarize the witness’s testimony or to put events and conditions into a better
9 Rule of evidence 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by “the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” TEX. R. EVID. 403.
–20– perspective.” Id. (citing Torres v. State, 116 S.W.3d 208, 213 (Tex. App.—El Paso 2003, no
pet)). 10 To establish the relevancy of demonstrative evidence, the proponent must first
authenticate it. Torres, 116 S.W.3d at 213. The proponent is then required to establish that the
evidence is “fair and accurate” and that it helps the witness to demonstrate or illustrate his
testimony. Id.; see Simmons v. State, 622 S.W.2d 111, 113 (Tex. Crim. App. [Panel Op.] 1981)
(holding that demonstrative evidence is admissible if it tends to solve some issue in the case and
is relevant, that is, if it sheds light on the subject at hand). Demonstrative evidence must be
properly identified “by showing that the item in question is what its proponent claims as opposed
to any idea of speculation, conjecture, or presumption of what the exhibit represents.” Torres,
116 S.W.3d at 213; see TEX. R. EVID. 901(a) (the required authentication or identification for
admissibility is satisfied by evidence that supports a finding that the matter in question is what its
proponent claims). “Demonstrative evidence has no probative force beyond that which is lent to
it by the credibility of the witness whose testimony it is used to explain.” Hartsock, 322 S.W.3d
at 779.
We review the trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial
court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any
guiding rules or principles. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993). The
trial court does not abuse its discretion unless its determination lies outside the zone of
reasonable disagreement. Martinez, 327 S.W.3d at 736. The trial court’s discretion to permit the
use of visual aids, charts, and video recordings during trial is well established. Baker v. State,
177 S.W.3d 113, 123 (Tex. App.—Houston [1st Dist.] 2005, no pet.); see also Clay v. State, 592
10 See also Pitre v. State, No. 09-95-140-CR, 1997 WL 414976, at *2 (Tex. App.—Beaumont July 23, 1997, no pet.) (not designated for publication) (“Texas courts have not treated demonstrative evidence, whether it be a map, model, drawing, chart, or diagram, as inadmissible hearsay.”).
–21– S.W.2d 609, 613 (Tex. Crim. App. [Panel Op.] 1980) (use of visual aid to illustrate witness’s
testimony is within discretion of trial court).
Youngkin testified the chart was acquired in the course of his education and training
about the effects alcohol can have on the human body when he attended the week-long
Borkenstein course on alcohol and traffic safety at Indiana University. Here, a review of the
record indicates the chart was not used as direct or substantive evidence of a scientific method of
proof that Avula was intoxicated, but to aid the jury in understanding the testimony of the expert,
Youngkin, regarding the increase and decrease in signs of intoxication in relation to increases
and decreases in BAC. Accordingly, as offered by the State, the chart constituted demonstrative
evidence. The trial court properly instructed the jury that the chart was admitted only for the
purpose of aiding the jury as a demonstrative exhibit. We conclude the trial court did not abuse
its discretion in admitting the chart as a demonstrative exhibit. Accordingly, we resolve Avula’s
sixth issue against him.
Cumulative Error
In his seventh point of error, Avula contends his conviction should be reversed under the
cumulative error doctrine. Avula argues the trial was “so permeated with errors to make it
fundamentally unfair,” and errors in the trial, “even if not affording viable grounds for relief
individually, aggregate into a due process violation.”
With regard to Avula’s argument that a number of errors may be found harmful in their
cumulative effect, “a harm analysis is employed only when there is error, and ordinarily, error
occurs only when the trial court makes a mistake.” Archie v. State, 221 S.W.3d 695, 699 (Tex.
Crim. App. 2007) (quoting Hawkins v. State, 135 S.W.3d 72, 76–77 ( (Tex. Crim. App. 2004)).
Having concluded, in resolving Avula’s first six points of error against him, that there was no
error by the trial court, we reject the basis of his seventh point of error and resolve it against him
–22– as well. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (“[W]e are
aware of no authority holding that non-errors may in their cumulative effect cause error.”); see
also Rayford v. State, 125 S.W.3d 521, 534 (Tex. Crim. App. 2003) (citing Chamberlain, 998
S.W.2d at 238, for proposition that “non-errors may not in cumulative effect cause error”). 11
Accordingly, no cumulative error is shown, and we resolve Avula’s seventh point of error
against him.
Conclusion
Having resolved Avula’s points of error against him, we affirm the trial court’s judgment.
/Robert M. Fillmore/ ROBERT M. FILLMORE JUSTICE
Do Not Publish TEX. R. APP. P. 47.2(b)
130405F.U05
11 See also Underwood v. State, No. 05-06-01589-CR, 2008 WL 3117077, at *11 (Tex. App.—Dallas Aug. 7, 2008, no pet.) (not designated for publication) (because the Court “found either no error or no harm in resolving [appellant’s] issues against her,” it rejected appellant’s contention that the cumulative effect of the errors warranted reversal).
–23– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SRIHARI AVULA, Appellant On Appeal from the 380th Judicial District Court, Collin County, Texas, No. 05-13-00405-CR V. Trial Court Cause No. 296-80285-2012. Opinion delivered by Justice Fillmore, THE STATE OF TEXAS, Appellee Justice Thomas (Ret.) participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 30th day of January, 2015.
–24–