Hong v. State

Full title: SUNG MO HONG, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jun 23, 2010

No. 05-09-00677-CR (Tex. App. Jun. 23, 2010)

Opinion

No. 05-09-00677-CR

Opinion Filed June 23, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the County Criminal Court Number Nine, Dallas County, Texas, Trial Court Cause No. MB07-33618-K.

Before Justices RICHTER, LANG-MIERS, and MYERS.

OPINION

Opinion By Justice RICHTER.

A jury convicted appellant of driving while intoxicated and the trial court assessed punishment at 120 days confinement in the county jail, probated for twelve months, and a $1000 fine. In a single, two-part issue on appeal, appellant asserts the trial court erred in denying his motion to suppress the results of a breath test administered two hours after his arrest. Specifically, appellant contends the State failed to establish that expert testimony concerning retrograde extrapolation was reliable, and the breath test results were inadmissable under Tex. R. Evid. 403. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.

Background

At 12:35 a.m. on March 3, 2007, Officer Stephen Burres clocked appellant's speed at 81 miles per hour in a 55-mile-per-hour zone. Officer Burres activated his emergency lights and initiated a traffic stop. When Officer Burres spoke to appellant, he detected a strong odor of alcohol and noticed that appellant had bloodshot, glassy eyes. When asked if he had been drinking, appellant initially stated that he had consumed two beers, but then admitted consuming thirty ounces of beer in the thirty-minute period ending at 12:30 a.m. Officer Burres then conducted three standardized field sobriety tests; the horizontal gaze nystagmus ("HGN") test, the walk-and-turn test, and the one-leg stand test. On the HGN test, appellant exhibited six out of six possible clues indicating intoxication. Appellant exhibited four out of eight clues on the walk-and-turn test and two of the four clues on the one-leg stand test. Based on his investigation and observations, as well as his training and experience, Officer Burres formed the opinion that appellant did not have the normal use of his mental and physical faculties as a result of alcohol consumption and arrested appellant for driving while intoxicated. Appellant was placed in the back seat of the patrol car. Before Officer Burres could transport appellant to jail, another vehicle nearly collided with the patrol car, and a chase ensued while appellant was in the back seat. As a result, appellant's jail arrival was delayed and an intoxilyzer breath test was not performed on appellant until 2:40 a.m. The test yielded a blood alcohol concentration ("BAC") result of 0.11 grams of alcohol per 210 liters of blood.¹ Prior to trial, appellant filed a motion to suppress urging the suppression of all evidence of the breath test. The motion was carried with the trial, and the trial court conducted a hearing outside the presence of the jury to determine the admissibility of the breath test and State proffered testimony on retrograde extrapolation. The trial court denied the motion and allowed the admission of the breath test results and the testimony concerning retrograde extrapolation. The jury ultimately convicted appellant of driving while intoxicated and the trial court assessed punishment at 120 days confinement in the county jail, probated for twelve months, and a $1000 fine. This appeal followed.

Discussion

Retrograde Extrapolation

Appellant first argues the trial court erred in allowing Terry Robinson, the State's intoxilyzer expert, to testify concerning retrograde extrapolation. Appellant does not assert Robinson was not qualified to perform retrograde extrapolation; he complains only that Robinson did not have sufficient information about appellant's personal characteristics to reliably apply the technique in his trial. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Tex. R. Evid. 702. We review a trial court's ruling on the admissibility of scientific expert testimony under an abuse of discretion standard. Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). The proponent of scientific evidence must demonstrate to the trial court, by clear and convincing evidence, that the scientific evidence is reliable. The proponent of "hard" scientific knowledge must satisfy three criteria to demonstrate reliability: (1) the underlying scientific theory is valid; (2) the technique applying the theory is valid; and, (3) the technique was properly applied on the occasion in question. Russeau, 171 S.W.3d at 881(internal footnote omitted); see also State v. Medrano, 127 S.W.3d 781, 786 (Tex. Crim. App. 2004); Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992). 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 instructed 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. Mata, 46 S.W.3d at 916. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the period of drinking, the time of the last drink, and how much and what the person had to eat. Id. The court also noted that "[t]he expert's ability to apply the science and explain it to the court is a paramount consideration." Mata, 46 S.W.3d at 916. The expert must also demonstrate some understanding of the difficulties, subtleties and risks inherent in the science, and he must be able to clearly and consistently apply it. Id. Here, as in Mata, the breath test was administered over two hours after the offense. The Mata court observed that such a delay is "significant" and "seriously affects the reliability of any extrapolation." Id. at 917. A single test, conducted some time after the offense, can only result in a reliable extrapolation if the expert has knowledge of "many" personal characteristics and behaviors of the defendant. Id. at 916-17. During his testimony before the jury, which was less detailed than the testimony he gave at the suppression hearing, Robinson provided a definition of retrograde extrapolation. Then, Robinson responded to a hypothetical posed by the prosecutor as follows:

Prosecutor: Now, assume a person had an alcohol concentration of 0.115 grams per 210 liters at 2:41 a.m., and also assume that the person is a male with a weight of 140 pounds, time of the first drink was 12:00 a.m., time of the last drink was 12:30 a.m., time of stop was 12:38, type of beverage consumed 12-ounce beers, based on that information, what would be your opinion regarding the alcohol concentration at the time of driving at 12:38 a.m.?²

Robinson: Before I give my answer, I want — want to tell the jury that there's an assumption I'm making in this particular instance . . . and the assumption I'm making is that the amount of alcohol for one standard drink for a 140 pound male is still in that person's stomach. Now, having made that assumption, its my opinion that person . . . would have been between the alcohol concentrations of 0.10 to 0.14 grams per 210 liters.

Robinson further testified in response to the prosecutor's questions and on cross-examination that based on the same facts, it is possible that the hypothetical person could have been below a .08 at the time of driving. Robinson stated that if one assumes an individual is already at 0.079 grams per 210 liters and consumes an additional two to four standard drinks, the additional alcohol could still be unabsorbed in the stomach, and therefore, it would be possible for the individual to be below a 0.08 at the time of driving.³ Appellant asserts Robinson's testimony was confusing, and based on our review of all of his testimony, we do not disagree. But we need not consider whether the trial court's admission of the retrograde extrapolation testimony was erroneous because even if the trial court erred, the error did not affect appellant's substantial rights. The erroneous admission of retrograde extrapolation evidence does not rise to the level of constitutional error; thus, the error must be disregarded unless appellant's substantial rights are affected. Tex. R. App. P. 44.2(b); Bagheri v. State, 119 S.W.3d 755, 762-63 (Tex. Crim. App. 2003). Substantial rights are not affected "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). This court must consider the entire record, including testimony, evidence, voir dire, closing arguments, and jury instructions to determine whether the jury was affected. Bagheri, 119 S.W.3d at 763; Motilla v. State, 78 S.W.3d 352, 355-56 (Tex. Crim. App. 2002). We should also consider "whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert." Bagheri, 119 S.W.3d at 763. Additional factors include the nature of the evidence supporting the verdict, the character of the alleged error, and how it may be considered in connection with other evidence in the case. Id. In the present case, although the retrograde extrapolation testimony was elicited from an expert, there is no indication the jurors were predisposed to give such testimony greater weight than the other evidence before them. The State was not limited to proving appellant was intoxicated because his BAC was .08 or more; intoxication could also be established by proving appellant did not have the normal use of his mental or physical faculties by reason of his introduction of alcohol in the body. See Tex. Penal Code Ann. § 49.01 (Vernon 2003). Thus, Robinson's testimony was cumulative in the sense that there was other evidence of appellant's intoxication at the time he was driving. See Douthitt v. State, 127 S.W.3d 327, 338 (Tex. App.-Austin 2004, no pet.). The breath test results showing appellant's BAC at .115 were indicative of whether appellant consumed alcohol. See State v. Mechler, 153 S.W.3d 435, 438 (Tex. Crim. App. 2005). And even absent retrograde extrapolation testimony, breath tests are often highly probative to prove both per se and impairment intoxication. Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010). Similarly, the field sobriety tests provided an additional indicator of intoxication. See Douthitt, 127 S.W.3d at 337 ( citing Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim. App. 1994)) (stating field sobriety tests reflect the degree to which the subject's normal mental or physical faculties are impaired by an intoxicant). The arresting officer observed that appellant had bloodshot, glassy eyes, and opined that appellant did not have the normal use of his mental and physical faculties at the time of the stop. Appellant admitted that he had consumed alcoholic beverages. Moreover, the prosecutor did not emphasize the retrograde extrapolation testimony or the expert's credentials, nor did he suggest that the testimony alone was sufficient to convict. Neither the expert nor retrograde extrapolation were mentioned in voir dire. Because the expert's testimony was not as fully developed before the jury as it was during the suppression hearing, the jury was not exposed to a lengthy discourse on the science. The prosecutor did reference a portion of the expert's testimony during his argument, but he only addressed the possibility that appellant's BAC was under .08 at the time of driving. Although the prosecutor argued this possibility was inapplicable to the present case because the breath test showed a .115, he provided no further explanation of the argument. Considering the entire record, we can say with fair assurance that even if the admission of the retrograde extrapolation testimony was erroneous, it had but a slight effect, if any, on the jury. The first part of appellant's issue is overruled.

Admissibility of Breath Test Under Rule 403

Appellant also argues the trial court erred in overruling his rule 403 objection to the results of the breath test.⁴ Specifically, appellant contends "the undue prejudice of a test above the statutory legal limit of alcohol concentration in the blood outweighs any probative value of a test administered two hours after appellant's arrest and not properly related back to the time of his arrest." We disagree. We note at the outset that the relation back of the breath test results to the time of arrest is not germane to the question of admissibility. Mata concerns only the admissibility of expert testimony and does not address the admissibility of breath test results. See Mata, 46 S.W.3d at 910; see also Mechler, 153 S.W.3d at 438) (confirming Mata addresses admissibility of testimony rather than test results). Retrograde extrapolation evidence is not a prerequisite to the admission of breath test results. Stewart v. State, 129 S.W.3d 93, 97 (Tex. Crim. App. 2004). Even without retrograde extrapolation testimony, test results showing a defendant's level well above the intoxication level of 0.08% are probative of his intoxication. See Kennemur v. State, 280 S.W.3d 305, 316 (Tex. App.-Amarillo 2008, pet. ref'd). Therefore, even if the State failed to relate the breath test back to the time of arrest, such a failure affords no basis for the exclusion of the test. As a result, our inquiry is confined to the admissibility of the breath test under rule 403. Rule 403 of the rules of evidence provides, "[a]lthough 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. "Probative value" refers to how strongly evidence serves to make more or less probable the existence of a fact of consequence to the litigation coupled with the proponent's need for that item of evidence. Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). "Unfair prejudice" refers to a tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one. Id. When a rule 403 objection is made and overruled at trial, we review a trial court's decision to admit evidence under an abuse of discretion standard. Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000). A trial court undertaking a rule 403 analysis must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for the evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence admitted. Gigliobianco, 210 S.W.3d at 641-642. The rules of evidence favor the admission of relevant evidence and carry a presumption that relevant evidence is more probative than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996); see also Salazar v. State, 90 S.W.3d 330, 338 (Tex. Crim. App. 2002) (stating in close cases courts should favor the admission of relevant evidence). When determining whether evidence is admissible under rule 403, we do not consider whether the evidence is more prejudicial than probative; instead, we consider whether the probative value is substantially outweighed by the danger of unfair prejudice. Garcia v. State, 201 S.W.3d 695, 704 (Tex. Crim. App. 2006) . Our highest criminal court has cautioned that we should rarely reverse a trial court's judgment under rule 403. Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999). As long as the trial court's ruling is within the zone of reasonable disagreement and is correct under any theory of law applicable to the case, it must be upheld. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). The first factor asks how compellingly the evidence serves to make a fact of consequence more or less probable, and the fourth factor evaluates the potential to distract the jury from the main issue. The ultimate issue at trial was whether appellant was driving while intoxicated. It is axiomatic that the breath test was probative to this fact of consequence and there was no potential for jury distraction. Next, we examine whether the evidence had a tendency to suggest a decision on an improper basis or a tendency to be given undue weight by the jury. We note that while the breath test results were prejudicial, because the evidence relates directly to the charged offense, it was not unfairly prejudicial. See Mechler, 153 S.W.3d at 440-41. Similarly, our review of the record reveals no basis to conclude there was any tendency for this evidence to be given undue weight by the jury. Further, the amount of time spent on the evidence was not unduly lengthy or belabored, particularly since the evidence is directly relevant to the charged offense. Id. at 441. On the other hand, the State's information alleged both loss of normal use and per se intoxication by reason of a BAC of at least .08. Consequently, the State had a considerable need for the evidence. Balancing these factors, we conclude the probative value of the breath test results was not substantially outweighed by the danger of unfair prejudice. Therefore, the trial court's decision to admit the evidence was within the zone of reasonable disagreement and evinced an exercise of legitimate discretion. The second part of appellant's issue is overruled. The trial court's judgment is affirmed.