Opinion issued July 26, 2012.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00696-CR ——————————— STEVEN HENRY YOUNG, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1296511
MEMORANDUM OPINION
A jury found Steven Young guilty of driving while intoxicated as a third
offender, a third-degree felony. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2)
(West & Supp. 2011). The trial court assessed his punishment at thirty years’ confinement. In a single issue, Young contends on appeal that the trial court erred
in admitting the retrograde extrapolation testimony of the State’s expert, Tina
Taylor, which the State introduced as proof of Young’s blood-alcohol level.
Finding that any error did not affect Young’s substantial rights, we affirm.
Background
Officer J. Hill, a sixteen-year veteran of the Deer Park Police Department,
was on patrol in the early morning hours when saw a black Chevrolet Suburban
make a wide right turn in violation of state traffic law. Officer Hill pulled the truck
over. Young, the driver, explained that he was driving a friend home from a
saloon. Officer Hill noted that Young smelled of alcohol and had slurred speech,
and red, glassy eyes. Young submitted to some field sobriety testing, but after a
couple of tests, he began to give excuses for not continuing, saying that he was too
nervous and that he was injured. Young’s results for the tests he completed were
consistent with those of a person impaired by alcohol intoxication. Officer Hill
arrested Young for driving while intoxicated, placed him in the back of his patrol
car, and drove to the jail.
At the jail, Young agreed to submit to a breath test. Tina Taylor, the
technical supervisor in charge of Deer Park’s breath test program testified about
the data retrieved by the breath testing instrument and its interpretation for
estimating a defendant’s blood alcohol level:
2 STATE: If knowing that someone is .11 at 3:57 a.m., is there a calculation that you can do that would determine whether or not it is physically capable for them to be underneath a .08 at 3:00 a.m.
TAYLOR: We can make that estimation, yes, ma’am. STATE: Would you tell the jury how you make those estimations?
TAYLOR: Using some known elimination rates and absorption times that are acceptable in the scientific field, we can make some estimations of the range within which the subject could have been.
STATE: Based on your training and experience, do you have an opinion as to what the range would have been for a person weighing approximately 200 pounds with these breath test results at this time? TAYLOR: Yes, ma’am.
STATE: What is that opinion? TAYLOR: It would have been between .09 —
DEFENSE COUNSEL: Your honor, I object to this under Mata.1 She has to have more factors than just the weight to extrapolate back to driving time. COURT: Overruled.
DEFENSE COUNSEL: I’m sorry? COURT: Overruled.
STATE: What is that opinion.
TAYLOR: Between a .097 and a .137.
1 Defense counsel refers to Mata v. State. 46 S.W.3d 902, 917 (Tex. Crim. App. 2001) (holding that trial court erred in admitting testimony of state’s expert, who, in applying retrograde extrapolation analysis, failed to consider sufficient factors to obtain reliable result). 3 STATE: Just so we’re clear for the record, that calculation is not what is considered retrograde extrapolation, correct.
TAYLOR: Correct. These are just an estimation.
STATE: In order to conduct retrograde extrapolation, you would actually need more information, correct? TAYLOR: Yes, ma’am.
Q. From the person who gave the subject? TAYLOR: Correct.
STATE: I’m sorry. The subject who gave the test. TAYLOR: Correct. Yes ma’am.
STATE: What was the range in this case based on your calculation?
TAYLOR: The range was .097 to .137. Young’s sole issue on appeal concerns this testimony.
Discussion
Young complains that the trial court erred in admitting Taylor’s testimony
because it did not satisfy the reliability requirement for expert testimony under
Texas Rule of Evidence 702. The State contends that Young’s failure to object to
the State’s second question asking Taylor for the range she calculated resulted in
his waiver of this complaint. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim.
App. 2003). Even assuming that Young had preserved this complaint, however, no
reversible error occurred.
4 Retrograde extrapolation is the computation back in time of the blood-
alcohol level—that is, the estimation of the blood-alcohol level at the time of
driving based on a test result from some later time. Mata v. State, 46 S.W.3d 902,
908–09 (Tex. Crim. App. 2001). In Mata, the Court of Criminal Appeals reversed
the trial court’s denial of the defendant’s motion to suppress the State’s proffered
retrograde extrapolation opinion testimony, because the expert testimony proffered
under the guise of the test was unreliable. The Court declared that a trial court
considering the reliability of retrograde extrapolation should consider (a) the length
of time between the offense and the test(s) administered; (b) the number of tests
given and the length of time between each test; and (c) whether, and to what
extent, any individual characteristics of the defendant were known to the expert in
providing his extrapolation. Id. at 916. In the case before it, the Court held that
the retrograde extrapolation opinion was unreliable because the single test occurred
more than two hours after the defendant’s arrest, and the expert did not consider
any of the defendant’s personal characteristics, such as whether he had eaten, how
much he had to drink, when he had his last drink, the length of his drinking spree,
or his weight. Id. at 917.
The erroneous admission of retrograde extrapolation testimony is non-
constitutional error. Bagheri v. State, 119 S.W.3d 755, 762–63 (Tex. Crim. App.
2003). Error in the admission of evidence is non-constitutional error subject to a
5 harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. TEX.
R. APP. P. 44.2(b) (West 2003); Jabari v. State, 273 S.W.3d 745, 754 (Tex. App.—
Houston [1st Dist.] 2008, no pet); see Johnson v. State, 967 S.W.2d 410, 417 (Tex.
Crim. App. 1998). Under that analysis, we disregard any non-constitutional error
that does not affect substantial rights. TEX. R. APP. P. 44.2(b). A substantial right
is affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.
App. 2000) (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)).
Appellate courts should not overturn a criminal conviction for non-constitutional
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Opinion issued July 26, 2012.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00696-CR ——————————— STEVEN HENRY YOUNG, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 174th District Court Harris County, Texas Trial Court Case No. 1296511
MEMORANDUM OPINION
A jury found Steven Young guilty of driving while intoxicated as a third
offender, a third-degree felony. See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2)
(West & Supp. 2011). The trial court assessed his punishment at thirty years’ confinement. In a single issue, Young contends on appeal that the trial court erred
in admitting the retrograde extrapolation testimony of the State’s expert, Tina
Taylor, which the State introduced as proof of Young’s blood-alcohol level.
Finding that any error did not affect Young’s substantial rights, we affirm.
Background
Officer J. Hill, a sixteen-year veteran of the Deer Park Police Department,
was on patrol in the early morning hours when saw a black Chevrolet Suburban
make a wide right turn in violation of state traffic law. Officer Hill pulled the truck
over. Young, the driver, explained that he was driving a friend home from a
saloon. Officer Hill noted that Young smelled of alcohol and had slurred speech,
and red, glassy eyes. Young submitted to some field sobriety testing, but after a
couple of tests, he began to give excuses for not continuing, saying that he was too
nervous and that he was injured. Young’s results for the tests he completed were
consistent with those of a person impaired by alcohol intoxication. Officer Hill
arrested Young for driving while intoxicated, placed him in the back of his patrol
car, and drove to the jail.
At the jail, Young agreed to submit to a breath test. Tina Taylor, the
technical supervisor in charge of Deer Park’s breath test program testified about
the data retrieved by the breath testing instrument and its interpretation for
estimating a defendant’s blood alcohol level:
2 STATE: If knowing that someone is .11 at 3:57 a.m., is there a calculation that you can do that would determine whether or not it is physically capable for them to be underneath a .08 at 3:00 a.m.
TAYLOR: We can make that estimation, yes, ma’am. STATE: Would you tell the jury how you make those estimations?
TAYLOR: Using some known elimination rates and absorption times that are acceptable in the scientific field, we can make some estimations of the range within which the subject could have been.
STATE: Based on your training and experience, do you have an opinion as to what the range would have been for a person weighing approximately 200 pounds with these breath test results at this time? TAYLOR: Yes, ma’am.
STATE: What is that opinion? TAYLOR: It would have been between .09 —
DEFENSE COUNSEL: Your honor, I object to this under Mata.1 She has to have more factors than just the weight to extrapolate back to driving time. COURT: Overruled.
DEFENSE COUNSEL: I’m sorry? COURT: Overruled.
STATE: What is that opinion.
TAYLOR: Between a .097 and a .137.
1 Defense counsel refers to Mata v. State. 46 S.W.3d 902, 917 (Tex. Crim. App. 2001) (holding that trial court erred in admitting testimony of state’s expert, who, in applying retrograde extrapolation analysis, failed to consider sufficient factors to obtain reliable result). 3 STATE: Just so we’re clear for the record, that calculation is not what is considered retrograde extrapolation, correct.
TAYLOR: Correct. These are just an estimation.
STATE: In order to conduct retrograde extrapolation, you would actually need more information, correct? TAYLOR: Yes, ma’am.
Q. From the person who gave the subject? TAYLOR: Correct.
STATE: I’m sorry. The subject who gave the test. TAYLOR: Correct. Yes ma’am.
STATE: What was the range in this case based on your calculation?
TAYLOR: The range was .097 to .137. Young’s sole issue on appeal concerns this testimony.
Discussion
Young complains that the trial court erred in admitting Taylor’s testimony
because it did not satisfy the reliability requirement for expert testimony under
Texas Rule of Evidence 702. The State contends that Young’s failure to object to
the State’s second question asking Taylor for the range she calculated resulted in
his waiver of this complaint. See Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim.
App. 2003). Even assuming that Young had preserved this complaint, however, no
reversible error occurred.
4 Retrograde extrapolation is the computation back in time of the blood-
alcohol level—that is, the estimation of the blood-alcohol level at the time of
driving based on a test result from some later time. Mata v. State, 46 S.W.3d 902,
908–09 (Tex. Crim. App. 2001). In Mata, the Court of Criminal Appeals reversed
the trial court’s denial of the defendant’s motion to suppress the State’s proffered
retrograde extrapolation opinion testimony, because the expert testimony proffered
under the guise of the test was unreliable. The Court declared that a trial court
considering the reliability of retrograde extrapolation should consider (a) the length
of time between the offense and the test(s) administered; (b) the number of tests
given and the length of time between each test; and (c) whether, and to what
extent, any individual characteristics of the defendant were known to the expert in
providing his extrapolation. Id. at 916. In the case before it, the Court held that
the retrograde extrapolation opinion was unreliable because the single test occurred
more than two hours after the defendant’s arrest, and the expert did not consider
any of the defendant’s personal characteristics, such as whether he had eaten, how
much he had to drink, when he had his last drink, the length of his drinking spree,
or his weight. Id. at 917.
The erroneous admission of retrograde extrapolation testimony is non-
constitutional error. Bagheri v. State, 119 S.W.3d 755, 762–63 (Tex. Crim. App.
2003). Error in the admission of evidence is non-constitutional error subject to a
5 harm analysis under Rule 44.2(b) of the Texas Rules of Appellate Procedure. TEX.
R. APP. P. 44.2(b) (West 2003); Jabari v. State, 273 S.W.3d 745, 754 (Tex. App.—
Houston [1st Dist.] 2008, no pet); see Johnson v. State, 967 S.W.2d 410, 417 (Tex.
Crim. App. 1998). Under that analysis, we disregard any non-constitutional error
that does not affect substantial rights. TEX. R. APP. P. 44.2(b). A substantial right
is affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict. Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim.
App. 2000) (quoting King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)).
Appellate courts should not overturn a criminal conviction for non-constitutional
error if the court, after examining the record as a whole, has fair assurance that the
error did not influence the jury, or had but slight effect. See Johnson, 967 S.W.2d
at 417. The improper admission of evidence does not constitute reversible error if
other properly admitted testimony proves the same facts. See Brooks v. State, 990
S.W.2d 278, 287 (Tex. Crim. App. 1999).
Here, the officer took Young’s first breath sample less than an hour after the
traffic stop, and took another sample less than five minutes after the first. The
results of the samples showed Young’s blood-alcohol level at 0.137 and 0.117,
both well over the legal limit of 0.08. A breath test result showing an alcohol
concentration above the legal limit can be probative evidence of an impairment of
faculties. See Maxwell v. Sate, 253 S.W.3d 309, 317 (Tex. App.—Fort Worth
6 2008, pet. ref’d); Garcia v. State, 112 S.W.3d 839, 850–51 (Tex. App.—Houston
[14th Dist.] 2003, no pet.); see Verbois v. State, 909 S.W.2d 140, 142 (Tex. App.—
Houston [14th Dist.] 1995, no pet.) (test results showing alcohol concentration of
0.11 two-and-a-half hours after driving were relevant to prove defendant consumed
alcohol prior to driving). In addition, Young admitted to having had beer. When
he stopped Young, Officer Hill testified, Young smelled of alcohol and had glassy
eyes and slurred speech. Officer Hill recounted that the field sobriety tests showed
that Young was intoxicated, and the jury was able to see the signs of Young’s
impairment on the videotape of the stop taken from Officer Hill’s patrol car.
The jury charge instructed that “intoxicated” means
(A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of these substances, or any other substance into the body; or (B) having an alcohol concentration of 0.08 or more. . . .
Under this instruction, the jury need not have considered the retrograde
extrapolation testimony at all; other evidence amply supports a finding that Young
did not have the normal use of his mental or physical faculties as a result of
consuming alcohol.
7 Conclusion
We hold that the trial court’s admission of the retrograde extrapolation
testimony did not affect Young’s substantial rights. We therefore affirm the
judgment of the trial court.
Jane Bland Justice
Panel consists of Justices Keyes, Bland, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).