Opinion
01-20-00034-CR 01-20-00035-CR
01-27-2022
JAMES LELEO, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 176th District Court Harris County, Texas Trial Court Case Nos. 1544687, 1544688
Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
MEMORANDUM OPINION
Veronica Rivas-Molloy Justice
A jury convicted Appellant James Leleo of intoxication manslaughter and failure to stop and render aid and assessed his punishment at eighteen years in prison on the intoxication manslaughter charge and twenty years in prison on the failure to 1 stop and render aid charge, both sentences to run concurrently. Appellant raises eleven issues on appeal. He argues (1) the evidence is legally insufficient to sustain his convictions for intoxication manslaughter and failure to stop and render aid, (2) the trial court abused its discretion when it denied the admission of relevant evidence, (3) the trial court abused its discretion when it denied his motion to suppress his blood toxicology results and DNA, (4) the trial court abused its discretion by allowing the admission of improper and irrelevant victim-impact testimony and a photograph of the decedent during the guilt-innocence phase of the trial, (5) the trial court was biased against him and abused its discretion when it denied his request for a Texas Code of Criminal Procedure Article 38.23 jury instruction, (6) the trial court abused its discretion when it denied his counsel the opportunity to review and provide input in response to jury requests made during the guilt-innocence phase deliberations and when it denied him adequate time to secure the presence of punishment-phase witnesses, (7) the trial court abused its discretion when it denied his request "to question witnesses outside the presence of the jury regarding the chain of custody of the two blood tubes and blood draws," (8) he was denied his Sixth Amendment right to confront two of the State's witnesses, (9) the trial court abused its discretion by not holding a hearing on his motion for new trial, (10) the trial court abused its discretion "when it did not allow Appellant to ask 2 questions of a witness in an offer of proof or in front of the jury," and (11) he is entitled to a new trial because the trial judge was biased against him.
We affirm the trial court's judgment.
Background
Rosalia Padilla ("Padilla") was driving to mass in the early morning on Sunday, March 19, 2017, when the red Toyota Corolla ("Toyota") she was driving was struck by a black Volkswagen Passat ("Volkswagen"). Padilla was ejected from her car during the collision and died at the scene of the accident. The fire department, emergency medical services ("EMS"), and several officers arrived at the scene. Officers spoke to three witnesses and to Appellant James Leleo ("Appellant") and Jonah Lavatai ("Lavatai"), both of whom were riding in the Volkswagen. Appellant and Lavatai had spent the prior night at a bar and had just left an after-hours bar shortly before the accident. Appellant was arrested and charged with intoxication manslaughter and failure to stop and render aid.
A. Deputy A. Aguirre
Deputy A. Aguirre with the Harris County Precinct 4 Constable's Office ("Deputy Aguirre") was the first officer on the scene. During trial, the State called him as its first witness. Deputy Aguirre testified he was on patrol and responded to a call involving a car crash around 7 a.m. on March 19, 2017, at the intersection of Imperial Valley Drive and Forton Drive. The fire department was already at the 3 crash site when Deputy Aguirre arrived. He spotted Padilla's body lying on the northbound lanes of Imperial Valley Drive.
Deputy Aguirre testified there were two vehicles at the scene involved in the crash, and both had extensive damage to them. About fifteen minutes after he arrived, Deputy Aguirre was directing traffic and he saw a man who "wasn't walking normally. He was kind of like staggering." The man, who Deputy Aguirre identified as Appellant, was covered in sweat. "He looked scared. Like I say, he was looking towards the accident. Like I say, he was walking differently, some kind of more inward. And then when I made contact with him, I observed that he had scratches on his hand." Deputy Aguirre testified that Appellant was "about a hundred feet or so" from the scene when he first spotted him. Appellant told Deputy Aguirre that he had been a passenger in the vehicle.
Deputy Aguirre also testified that when he was securing the scene, a female witness told him that two Hispanic males had exited one of the cars involved in the crash. According to Deputy Aguirre, the witness was directed to another sheriff's office deputy. Deputy Aguirre testified he did not know the woman's name or if she had spoken to any other officers on the scene. There is no additional information about the woman in the record and she did not testify at trial.
B. Deputy J. Garcia
The State's second witness was Deputy J. Garcia ("Deputy Garcia") with the Harris County Sheriff's Office. He was also dispatched to the scene of the crash on 4 the day of the collision. The fire department, EMS, and Precinct 4 constables were already at the scene when Deputy Garcia arrived.
Deputy Garcia testified he spoke to witnesses at the scene who told him two Hispanic males had fled from one of the cars involved in the crash. One of the males had a thin build and was wearing a gray shirt and blue jeans and the other male was heavy set and wearing a black shirt and blue jeans. According to Deputy Garcia, the heavyset male, later identified as Jonah Lavatai, had been hiding in the backyard of a nearby home. Deputy Garcia detained Lavatai and brought him back to the scene for further investigation. Deputy Garcia waited until the accident investigators arrived at the scene.
C. Sergeant D. Cheek-McNeal
Sergeant D. Cheek-McNeal ("Sergeant Cheek-McNeal"), an accident investigator with the Harris County Sheriff's Office, also testified for the State. She explained she investigates accidents involving serious bodily injury and death. As part of her investigation, she looks for intoxication in drivers and for evidence of traffic violations.
On March 19, 2017, Sergeant Cheek-McNeal was dispatched to the scene of a major vehicle crash at Imperial Valley Drive and Forton Drive. Upon arriving, she was informed that two parties had fled the scene. According to Sergeant Cheek-McNeal, she observed a two-vehicle crash involving a black Volkswagen four-door 5 vehicle and a red Toyota Corolla. When she first surveyed the crash scene, it appeared to Sergeant Cheek-McNeal that the Toyota had been pulling out from a stop sign and it had been struck by the Volkswagen. It "was a high-velocity crash, a very high-speed collision." She testified there had only been one occupant in the Toyota, Rosalia Padilla, and she was deceased.
Sergeant Cheek-McNeal testified that the first thing she does as part of an accident investigation is to gather statements from individuals identified as occupants of the vehicles involved in the crash and witnesses at the scene. When she arrived at the scene, Deputy K. Price told her there were three witnesses and she spoke to all three. According to Sergeant Cheek-McNeal, the witnesses reported seeing two males running from the Volkswagen, and both men were considered suspects because authorities on the scene did not know who was driving the Volkswagen. At that point, law enforcement only knew that the two identified men had been in the Volkswagen and fled the scene. The two men were later identified as Appellant and Lavatai. On redirect, Sergeant Cheek-McNeal testified 6 she had no reason to believe there were more than two occupants in the Volkswagen when the collision occurred.
Deputy K. Price was one of the first officers to arrive at the scene. Aside from his interaction with Sergeant Cheek-McNeal, there is nothing in the trial testimony regarding his role at the scene. He did not testify at trial.
Although she did not identify them by name at trial, the record reflects that Sergeant Cheek-McNeal spoke to witnesses Luis Perez, Warren Humphrey, and Ronald Dupree. Luis Perez and Warren Humphrey both testified at trial; Ronald Dupree did not.
On recross, Sergeant Cheek-McNeal was not questioned about the existence of any information or evidence indicating a third person had been in the Volkswagen.
The witnesses' statements were not consistent as to which of the two suspects was the driver of the Volkswagen. Sergeant Cheek-McNeal explained that it is not unusual for witnesses to give differing accounts of an accident because accident scenes are very volatile and often people are in shock. After speaking to the three witnesses, Sergeant Cheek-McNeal spoke to Deputy L. Anders ("Deputy Anders"), who had also been dispatched to the scene and arrived after Sergeant Cheek-McNeal.
Sergeant Cheek-McNeal also spoke to Appellant and Lavatai as part of her investigation. Appellant told her that his grandmother owned the Volkswagen. Sergeant Cheek-McNeal testified that she smelled alcohol on Appellant's breath. She determined Appellant had been driving the Volkswagen at the time of the collision based on her interviews of the Appellant, Lavatai, and the three witnesses on the scene. In reaching her conclusion that Appellant was the driver, Sergeant Cheek-McNeal also considered physical evidence, including the presence and location of seatbelt marks on Appellant's and Lavatai's bodies, and the locking position of the seatbelts on the Volkswagen. 7
According to Sergeant Cheek-McNeal, a seatbelt mark is basically bruising. She explained that if a driver presses hard on the brake, the seatbelt will lock in place to stop the occupant from striking something or lunging forward. "If you have a high-velocity crash and you step on [the brake], of course that seatbelt is going to stop you, but the velocity and force is going to cause you to move forward. So as you're moving forward, the seatbelt marks will actually leave bruising on your neck and chest area." She testified that the marks are typically faint because they must go through the clothing and tend to fade quickly. The seatbelt marks Sergeant Cheek-McNeal observed on Appellant and Lavatai suggested Appellant had been seated on the driver side of the Volkswagen and Lavatai on the passenger side at the time of the collision. Sergeant Cheek-McNeal acknowledged that Appellant's seatbelt marks placed him on the driver's side of the Volkswagen, but not necessarily in the driver's seat.
Sergeant Cheek-McNeal also inspected the Volkswagen. The Volkswagen's front seat airbags had been deployed and they were removed to test for the presence of DNA. Sergeant Cheek-McNeal also inspected the Volkswagen's seatbelts and took photographs to document her observations. According to Sergeant Cheek-McNeal, once a seatbelt locks in place, the resulting seatbelt slack in the corresponding seat can reveal whether someone was sitting in that seat during a 8 collision. The amount of seatbelt slack is also a good indicator of the size of the person sitting in the corresponding seat.
Sergeant Cheek-McNeal testified that the locked seatbelt on the front passenger seat of the Volkswagen had a lot of slack whereas the locked seatbelt on the front driver seat had noticeably less slack. The difference in the slack indicated to her that the person who had been sitting in the front passenger seat was larger in stature than the driver. Unlike the driver and front passenger seatbelts, Sergeant Cheek-McNeal testified that she "did not observe any slack in the seatbelts in the rear of the [Volkswagen]." "As far as I remember, one seatbelt was actually buckled and it was still in place. And on the left side, those were in place where they weren't worn. In other words, the back passenger side was actually closed, it was seat-belted. So as far as slack with it being unfastened, there was nothing. It was actually still seat-belted in place." Sergeant Cheek-McNeal also testified that the position of both the driver and front passenger seats suggested Appellant had been sitting in the driver's seat and Lavatai, who was much larger than Appellant, in the front passenger's seat.
After she determined that Appellant had been driving the Volkswagen at the time of the collision, Sergeant Cheek-McNeal conferred with Deputy Anders. Deputy Anders then administered the standard field sobriety tests to Appellant to determine whether Appellant was intoxicated. Meanwhile, Sergeant Cheek-McNeal 9 continued with her investigation by taking measurements of the scene. Based on her measurements, Sergeant Cheek-McNeal determined that the Toyota had come to rest about 75 feet from the point of impact and the Volkswagen had come to rest 235 feet north of the point of impact.
D. Deputy L. Anders
The State's next witness was Deputy Anders with the Harris County Sheriff's Office. He conducted the intoxication investigation at the scene. Sergeant Cheek-McNeal, who arrived at the scene before Deputy Anders, informed him that witnesses at the scene claimed to have seen two males exit the Volkswagen. According to Deputy Anders, Sergeant Cheek-McNeal first identified Lavatai, the larger male, as the potential driver. Deputy Anders administered the standard field sobriety tests to Lavatai. Later, while the investigation was still underway at the scene, Sergeant Cheek-McNeal informed Deputy Anders that she doubted Lavatai was the driver. Deputy Anders testified he had his doubts as well after he noticed the amount of slack in the Volkswagen's seatbelts. He and Sergeant Cheek-McNeal then inspected the front seatbelts in the Volkswagen and checked Appellant and Lavatai for seatbelt marks. Deputy Anders testified that he and Sergeant Cheek-McNeal concluded Appellant was the driver based on their observations and because witnesses reported seeing only two males exit the vehicle, and Appellant and Lavatai were the only males they found at the scene who had been involved in the accident. 10
Deputy Anders conducted standard field sobriety tests ("SFST") on Appellant at around 9 a.m. Deputy Anders testified that there are three SFST-the Horizontal Gaze Nystagmus (HGN) test, the walk-and-turn test, and the one-leg stand. According to Deputy Anders, the HGN test "is testing the eyes for nystagmus as they go from side to side. Everyone has nystagmus to an extent, but you cannot see it-most of the time, you cannot see it with a naked eye. It's more profound with the introduction of alcohol in the system or a certain type of-certain type of drugs." The person is instructed to stand with their feet together, arms down by their side, and hold their head straight. Deputy Anders will then hold a pen about twelve to fifteen inches in front of the person's face and instruct them to focus on the pen and follow the pen with their eyes. Deputy Anders looks for six clues, three for each eye: lack of smooth pursuit, maximum deviation, and an onset of nystagmus prior to 45 degrees. Deputy Anders testified that Appellant exhibited six of six clues on the HGN test, indicating he was intoxicated. 11
Deputy Anders testified that he first checks to make sure the person's pupils are the same size and tracking equally because if they are not, this can indicate brain trauma, in which case the HGN is not an appropriate field sobriety test for this person. Appellant's pupils were the same size and tracked equally. Deputy Anders then tested Appellant's eyes for three clues: lack of smooth pursuit, maximum deviation, and an onset of nystagmus prior to 45 degrees. In addition to the HGN, walk and turn, and one-leg stand tests, Deputy Anders also performed the vertical gaze nystagmus and he determined Appellant did not have vertical gaze nystagmus.
Deputy Anders also instructed Appellant to perform the walk-and-turn test which he described as "a divided-attention test." According to Deputy Anders, Appellant exhibited two out of eights clues on this test. He failed to maintain his balance during the instruction phase and took an extra step during the walking phase. The one-leg stand test is another divided-attention test that requires a person to stand with their feet together, arms down by their side, raise one foot off the ground, and remain in that position until instructed otherwise. Appellant showed zero clues on the one-leg stand.
Deputy Anders testified that Appellant had been seated in the back of a patrol car before he performed the SFSTs and when he opened the patrol car door, "a very strong odor of alcohol emitted from the back of the vehicle where" Appellant was sitting. Deputy Anders observed that Appellant had thick slurred speech, red bloodshot eyes, sluggish movements, and he did not seem to know where he was. Appellant admitted to Deputy Anders that he had consumed two or three alcoholic beverages at an after-hours bar and was too intoxicated to drive. Based on the results of the SFSTs, his observations of Appellant, and his interview of Appellant, Deputy Anders determined that Appellant was intoxicated. Deputy Anders arrested Appellant and asked him to provide a breath or blood sample. Appellant refused. Deputy Anders then turned Appellant over to Deputy W. Zermeno ("Deputy 12 Zermeno") with the Harris County Sheriff's Office, who took custody of Appellant at that time.
Deputy Anders testified Appellant told him that a Caucasian male was driving the Volkswagen when the collision occurred. No one else at the scene mentioned anything about a Caucasian male. Neither Lavatai nor the witnesses on the scene identified a third occupant of the Volkswagen or any third male standing anywhere near the Volkswagen after the collision. Appellant also told Deputy Anders he was sitting in the backseat of the Volkswagen on the driver's side when the collision occurred. Deputy Anders did not believe Appellant because witnesses on the scene had observed only two males exit the Volkswagen and Appellant and Lavatai had seatbelt marks on their bodies indicating Lavatai was sitting on the passenger side of the Volkswagen and Appellant on the driver's side when the collision occurred.
Although Lavatai testified he saw someone running after the collision, Lavatai did not say that the person was near the car or running away from the car, and he reiterated that no one else had been in the car between the time he and Appellant left the after-hours bar and the collision.
Deputy Anders also did not believe Appellant's claim that he had been sitting in the backseat behind the driver, because the lack of slack in the seatbelt corresponding to the seat behind the driver indicated no one in that seat had been wearing a seatbelt during the collision. Deputy Anders testified that if someone had been seating unbuckled in the backseat of the Volkswagen during the highspeed 13 collision, the backseat passenger "would have launched themselves into the front" and likely sustained serious injuries, and there would be damage on the back of the driver's seat. He testified Appellant had not been seriously injured in the collision and the back of the driver's seat was not damaged. The condition of the seatbelts and the position of the seats on the front driver and passenger seats also suggested that a taller, larger person had been sitting in the passenger seat, which supported Deputy Anders' opinion that Appellant, who was smaller in stature than Lavatai, had been the driver at the time of the accident.
After Deputy Anders turned Appellant over to Deputy Zermeno, he mapped the scene using Total Station. Total Station is a "measuring device, kind of like what you see surveyors use when they've got the little tripod with the machine on top. The computer points out evidence in the roadway, vehicles, people, buildings, curved roadways, lane markers."
Appellant recalled Deputy Anders later in the trial. When asked if there had been any information at the scene suggesting that someone other than Appellant might have been driving the Volkswagen, Deputy Anders testified, "Just statements from a witness." Appellant's counsel then asked Deputy Anders if he remembered interviewing Lavatai the morning of the collision. Deputy Anders testified he did. Appellant then tried to introduce a videotaped copy of Lavatai's interview into evidence, but the State objected, and the trial court sustained the objection. 14
Appellant's counsel then asked Deputy Anders whether "[t]here was evidence that somebody other than [Appellant] was driving the vehicle that day." Deputy Anders responded, "Yes."
E. Warren Humphrey
Warren Humphrey ("Humphrey") was one of the witnesses at the scene. He testified he was driving southbound on Imperial Valley Drive when he saw a black Volkswagen, "moving a hell of a lot quicker than normal traffic," on the northbound lane on Imperial Valley Drive, T-bone a red Toyota Corolla that was pulling out of the neighborhood on Forton Drive. According to Humphrey, the Volkswagen "spun out and spun around" and came to rest facing southbound in the northbound lane. The Toyota "popped up, spun around, and landed in the median."
Humphrey parked his truck across two lanes to block traffic and then ran over to the Toyota. It was empty. Humphrey testified that when he turned around, he "noticed the other gentlemen in the black car getting out of the car." According to Humphrey, the two men were standing "[o]n both sides of the [Volkswagen's] doors. Not right next to the doors, but within 10 foot." He clarified that he did not see the men get out of the Volkswagen, he only saw them after they had exited the vehicle. When asked to describe the men, Humphrey testified, "That's this gentleman I saw 15 on the -kind of front corner passenger side of the car. And there was a much bigger guy, longer hair, standing on the other side." Humphrey asked the men if they were okay, but they did not respond. He then found Padilla and stayed with her until the paramedics arrived. According to Humphrey, the two men standing near the Volkswagen did not stay at the scene because "[t]hey weren't there when [he] looked up moments later." He also saw one of the men run to a nearby house.
Humphrey, who denied seeing a third person in or near the Volkswagen, was presumably referring to Appellant.
On cross-examination, Humphrey testified he gave a video statement to police at the scene, but he had not seen the video for several years. A portion of Humphrey's videotaped statement was played for the jury. After reviewing the video, defense counsel asked Humphrey if he had told Sergeant Cheek-McNeal he saw "the passenger door [of the Volkswagen] open up and a skinny Latin guy get out, run, jump." Humphrey answered, "Yes." He also acknowledged that his statement to Sergeant Cheek-McNeal differed from his trial testimony that he had not seen anyone get out of the Volkswagen.
On redirect, Humphrey explained the Volkswagen had spun around 180 degrees during the collision and was "pointed the wrong direction in the northbound lane just after the impact," and it was a very confusing time. The State then asked, "[b]ut through all of that, you never saw more than two people get out of this car, regardless of where they are, you never saw more than two people?" Humphrey answered, "No." "And those two people that got out of that car, did they stay?" 16
"No." When asked if the two people he saw ever came to help or do anything to help Padilla, Humphrey responded, "No."
On recross, defense counsel asked Humphrey if it was possible he might have missed seeing a third person get out of the Volkswagen car and run. Humphrey testified he could not have missed seeing a third person because the Volkswagen's doors were still closed when he parked his truck.
F. Luis Perez
The State's next witness was Luis Perez ("Perez"), another witness at the scene. Perez testified he was driving southbound on Imperial Valley Drive the morning of March 19, 2017, when he saw "a big bunch of smoke." The vehicle in front of Perez's slowed down and pulled off the roadway and Perez did the same. When he pulled over, Perez saw a red Toyota in the median. Perez also saw a smaller car facing south in the northbound lane. He spotted Padilla lying by the side of the roadway. He did not see the collision because the vehicle in front of him had obscured his view. Perez testified he saw a man he later identified as Appellant, exit the driver's side of the black Volkswagen.
And I noticed a gentleman come out of the driver's side and everything, and he looked like he was-staggered a bit and everything. And he went up-that part right here where the plastic fencing is at, he went up that little hill and he grabbed onto the fence and he looked down for a moment and everything. I saw him do that for a second.
And with all the commotion, I looked down and was looking at the other witnesses. There were other people. And then I saw another17
gentleman come out from the passenger side, on the right side. And he was a little bit bigger and everything, and he was walking in front of the vehicle. . . .
The prosecutor showed Perez a photo of Appellant and asked, "Is this the person you saw near the driver's side that day?" Perez answered, "Yes." The prosecutor also showed Perez a photo of Lavatai and asked, "Is this the person you saw near the passenger side that day?" Perez answered, "Yes." When asked to describe the difference between Lavatai and Appellant, Perez testified: "The other guy, he came-that person right there, he came out from the area and he looked like he was dazed, too, and everything. And he was walking around. But he walked towards the -- the fence line and everything, and he was there. But when I looked up, they were both gone . . . ." When asked about the person he saw at the fence, Perez testified, "the skinnier guy went up there and he looked dazed and confused and he looked like he was trying to get his bearings. And all of a sudden, when I looked back-well, I looked away for a minute and then when I looked back up there, he was gone." When asked if he saw Appellant and Lavatai "do anything but 18 get out of the vehicle and be near the fence line," Perez answered, "No." The prosecutor asked Perez if he had seen the two men "near the driver's side and near the passenger side." Perez testified,
A photograph was admitted at trial that depicts the scene of the accident from the perspective of the intersection where the collision occurred, facing northbound on Imperial Valley Drive. Padilla's car is in the median on the left, several feet north of the intersection. Padilla's body is on the right side of the roadway further north, and Appellant's vehicle is the furthest away from the intersection and facing south in the northbound lane. A white fence runs parallel along the right side of Imperial Valley Drive, dividing the roadway from a residential neighborhood. Perez testified that the photograph accurately depicted the accident scene.
I saw the-that gentleman come out from the right-from the driver's side, the left side and everything, because he looked like he was stumbling out and walking out and dazed and confused. And when I saw his other friend come out from the passenger side, because the way the car was facing me, he was coming around the front of it and everything, and he looked-the door was open on the passenger side a bit.
"Did you see more than two people that day?" Perez responded, "No, I did not. I only saw those two gentlemen."
When asked on cross-examination if this was the first time he claimed to have seen Appellant exiting the driver's side door, Perez stated, "Yes, I did, because-the door was open-the door was open on the driver's side of the vehicle and he was coming out from that end. The gentleman on the other side didn't come out until later." When asked the same question again, Perez responded, "[e]xiting the driver's side. He was on the driver's side of the vehicle and everything where the door was open and he was coming out." "Is today the first day, the first time you've ever made this statement?" Perez testified, "That I made that statement of him being on that side, the driver's side? No. He was on that side of-the driver's side of the vehicle." 19
DEFENSE: So, Mr. Perez, you testified earlier that you saw [Appellant] get out of the driver's side of the vehicle. Is that right?
PEREZ: On the passenger-he was on the driver's side of the vehicle. I never said he came out of the vehicle. He was on the driver's side of the vehicle.
DEFENSE: So now you're changing your statement again?
PEREZ: I saw him on the driver's side of the vehicle.
When asked about whether he had made a statement to law enforcement, Perez testified he gave a videotaped statement to Sergeant Cheek-McNeal the day of the accident, but he never provided a written statement. Perez acknowledged he had seen part of his videotaped statement earlier that day, but he denied that anyone told him what to say at trial. After the statement was played for the jury, Perez acknowledged that his testimony at trial was the first time he stated he saw Appellant standing near the driver's side of the Volkswagen.
The exhibit was admitted for impeachment purposes only.
DEFENSE: And you would agree with me that you said I saw a gentleman near the fence line?
PEREZ: Yes.
DEFENSE: And he was grabbing the fence line?
PEREZ: Yes.
DEFENSE: He was a skinny gentleman with a gray shirt?
PEREZ: Yes.20
DEFENSE: And he was grabbing the fence line?
PEREZ: Yes.
DEFENSE: And earlier you testified that you saw him standing next to the driver's side of the car?
PEREZ: He was walking away from the driver's side. He was standing there when he started walking away to the fence line.
DEFENSE: And you're just now testifying to this for the first time today?
PEREZ: Yes, but...
Perez testified he saw no one, other than Appellant and Lavatai, get out of the Volkswagen or near the Volkswagen and he did not look to see if there was a third person who might have exited the vehicle.
DEFENSE: And it's possible that you didn't notice everybody because you didn't see anybody get out of the car, right?
PEREZ: I didn't see anybody-as in who get out of the car? Which cars are we talking about?
DEFENSE: Out of the Volkswagen.
PEREZ: The Volkswagen? His vehicle?
DEFENSE: Yes, sir.
PEREZ: I didn't see him get out of the car. He was right next to his-on the driver's side walking away from it and everything.
DEFENSE: Okay. So you saw somebody walking out of the driver's side and you-did you see a heavyset gentleman?21
PEREZ: Coming out of the passenger side because the door was ajar and he was walking and he walked around the front of it-
DEFENSE: And did you-
PEREZ: -of the vehicle.
DEFENSE: -see anybody else get out of the car or did you see anybody else near the car?
PEREZ: No, I did not.
DEFENSE: Did you look around to see if a third person might have exited the vehicle?
PEREZ: No, I did not.
DEFENSE: And you say the first time when you saw a person in a gray shirt, that he was down the fence line grabbing the fence. That's what you said in the video, correct?
PEREZ: Yes. He grabbed it with both hands like-
DEFENSE: But your testimony-
PEREZ: -he was trying-
DEFENSE: I'm sorry. I didn't mean to interrupt you. I apologize.
PEREZ: He grabbed it with both hands like he was trying to hold himself up and everything, like he was still out of it a bit, yes.
DEFENSE: And the first time you've ever testified that you saw him standing near the driver's side is right here, right now today?
PEREZ: Because he was walking away from there, from the driver's side of the vehicle.22
DEFENSE: But that's the first time you've ever made that statement, right?
PEREZ: Yeah, because that's-with everything happening and everything, that's what I-what I could recollect until- on the video right there what was going on.
DEFENSE: It's also possible, then, that you could have missed maybe somebody else running off in a direction that you didn't see. It's possible, right?
PEREZ: No. Because the gentleman had gotten up-another gentleman went up to the car, checked, and said there was nobody else in there. And I was like okay.
DEFENSE: But that was after you had already-you showed up afterwards, though, right?
PEREZ: I showed up when everything had wrecked and everything and that gentleman walked away from his vehicle to the fence line, grabbed it. The other gentleman came out from the passenger side, I believe, from the right side, walked around. And then everything happened, I looked up, they were gone. And then the guy with-that was helping the lady, got up, looked through the car and everything, said he didn't see anybody else in there. And that was it. I didn't see anybody else running from that vehicle when I got there.
DEFENSE: Right. You didn't see anybody else run?
PEREZ: Except for the two gentlemen there.
On redirect, the prosecutor showed Perez a photograph of Lavatai and asked, "Is this who you saw on the passenger side of the vehicle that day?" Perez answered, "Yes, I did." 23
G. Jonah Lavatai
Lavatai testified he had known Appellant for about two years when the collision occurred. The night before the collision, Appellant drove Lavatai to a bar where they had "a couple of drinks." When the bar closed, Appellant drove them in his grandmother's Volkswagen to an after-hours bar where they danced and had more to drink. Lavatai testified that he and Appellant left when the bar closed around 6:00 or 7:00 in the morning and "[Appellant] was taking me home from there." The prosecutor then asked Lavatai what he remembered about the collision.
STATE: And when [Appellant] was driving you home on that day, do you recall being involved in a crash?
LAVATAI: Yes.
STATE: And tell the jury about that. What do you recall?
LAVATAI: All I can remember was leaning back in the seat. I was- my eyes were closed, I was kind of sleeping. And the next thing you know, all I hear is, oh, shit. Before I could open my eyes, the crash had already happened. I also remember getting out of the car afterwards and stumbling. I don't know where [Appellant] went. Then I seen in the corner of my eye somebody running. So I panicked and started running as well.
STATE: And you mentioned you were reclined in the seat. What seat were you in?
LAVATAI: I was in the passenger seat.
STATE: Who was driving the car?
LAVATAI: [Appellant] was driving the car.24
STATE: Was there anybody else in that car with you at that time?
LAVATAI: No.
STATE: And when you said you saw somebody running, do you know who that was?
LAVATAI: I didn't know who it was, but I followed along because I panicked.
STATE: Was the person running [Appellant] or-
LAVATAI: I-honestly, I couldn't tell who it was that was running.
STATE: Where did you go?
LAVATAI: Ran into one of the backyards of a house.
STATE: And after you left the after-hours bar, there was no one else in that car besides you and [Appellant]-
LAVATAI: No.
STATE: -at any point in time?
LAVATAI: No.
STATE: It was only you and [Appellant]?
LAVATAI: Yes.
STATE: And [Appellant] was driving the black car?
LAVATAI: Yes, he was.
On cross-examination, Lavatai testified he spoke with a deputy at the scene. When asked if he remembered telling the deputy he exited the Volkswagen on the driver's side of the car after the collision, Lavatai testified, "No." Appellant's 25 counsel then tried to introduce into evidence a dashcam video taken of Lavatai when he was sitting in Deputy Garcia's patrol car after the collision (Defendant's Exhibit 3), arguing that the statement was admissible because it was a statement against self-interest, an exited utterance, a prior inconsistent statement, and offered for impeachment purposes. After watching the video outside the presence of the jury, Lavatai admitted that when the officer asked him if he had climbed out of the Volkswagen on the driver's side, he said yes. The State objected to the introduction of the video statement as hearsay, and the trial court sustained the objection. The trial court denied admission of the video statement and instructed the jury to disregard "the defense line of questioning for making a prior inconsistent statement." Appellant entered the video as an offer of proof.
H. Deputy W. Zermeno
Deputy Zermeno with the Harris County Sheriff's Office was dispatched to the scene to transfer Appellant to the hospital for a blood draw following his arrest. After speaking with other deputies at the scene, Deputy Zermeno determined he had enough probable cause to obtain a search warrant to draw Appellant's blood.
In his affidavit, Deputy Zermeno stated he believed Appellant had unlawfully operated a motor vehicle in a public place while intoxicated because he had been dispatched to the scene of a major accident on a major roadway. He averred that
Deputy Cheeks stated that she spoke with the passenger of the defendant's vehicle, [Jonah] Lavatai. Deputy Cheeks found Mr.26
Lavatai credible and reliable. Mr. Lavatai stated to Deputy Cheeks that the defendant was driving a 2014 Volkswagen Jetta [sic] along the 19000 block of Imperial Valley Drive near Forton Street, both public roadways in Harris County, Texas when the defendant collided with a 2003 red Toyota Corolla. The defendant had seatbelt marks that corroborated Mr. Lavatai's statement that it was the defendant who was operating the motor vehicle when he collided with the Corolla.
Deputy Zermeno also stated he smelled an "odor of alcoholic beverage" on Appellant and Appellant "admitted to drinking all night." He stated Appellant exhibited "6/6 clues on HGN, 2/8 clues on Walk and Turn, and 0/4 clues on One Leg Stand." Deputy Zermeno asserted he believed Appellant was intoxicated due to the introduction of alcohol into his system based on the totality of the circumstances.
Although Deputy Zermeno did not testify to this at trial, the record reflects there were two blood draws performed on the day of the collision. After Appellant was arrested, he was transported to the hospital where a nurse drew two vials of blood from Appellant at 10:50 a.m. The blood draw was conducted without a warrant because the officers believed that exigent circumstances necessitated the blood draw. The State stipulated that the first blood draw was a warrantless search and it agreed to suppress the evidence.
Deputy Zermeno later obtained a warrant and presented the warrant to a nurse at the hospital who drew two vials of blood from Appellant at 11:50 a.m. using vials provided by the hospital. A photograph of the two vials was admitted as State's Exhibit No. 83. The vials were labeled with Appellant's name and case number. 27
The date and the time the blood draw occurred (11:50 a.m.) were handwritten on each label. Deputy Zermeno testified that the nurse must have written the notes because it was not his handwriting. Deputy Zermeno submitted the blood vials to the medical examiner's office the same day the blood was drawn.
I. Sandra Christoffersen
Nurse Sandra Christoffersen ("Christoffersen") drew Appellant's blood. She testified that after drawing Appellant's blood, she wrote the date and time on each vial and then handed the two vials to Deputy Zermeno. Outside the jury's presence, Christoffersen explained there were two blood draws, one at 10:50 a.m. and one at 11:50 a.m. She explained the vials could not have been mislabeled because she times, dates, and initials each vial before she leaves a patient's bedside.
J. Arturo Marines
A few days after the collision, Arturo Marines ("Marines"), an investigator with the Harris County District Attorney's office, conducted an investigation to determine where Appellant and Lavatai had been before the collision. Marines testified he found a Jack-In-The-Box receipt (State's Exhibit No. 92) in the Volkswagen. The receipt was dated March 19, 2017, the date of the collision, and had a time stamp of 7:07 a.m. The receipt reflects that the Volkswagen's occupants bought two burritos and two tacos. Marines also retrieved video surveillance from the Jack-In-The-Box location. The State entered the video and still photos from the 28 video into evidence through Marines. Marines identified Appellant's car on the surveillance video and testified the driver appeared to be wearing a light-colored shirt. Marines testified he saw someone in the driver's seat and the front passenger seat, but he could not tell if anyone was sitting in the backseat.
K. Raul Padilla
The decedent's husband, Raul Padilla ("Mr. Padilla"), testified he met Rosalia Padilla in 2002. When the prosecutor asked Mr. Padilla how long he and the decedent had been married, Appellant objected to the testimony as irrelevant. The trial court overruled the objection and instructed the prosecutor to limit her questions. Mr. Padilla did not answer the question. Instead, the prosecutor asked Mr. Padilla about the day of the collision. Mr. Padilla testified he was asleep when the decedent left home that morning, but he knew she was driving to morning mass at 7 a.m. because she told him her plans the night before. He explained that although the decedent normally attended mass later in the day, she had planned to attend the morning service because she was planning to pray a rosary for someone that afternoon. Appellant objected to the line of questioning as irrelevant, and the trial court overruled the objection.
Mr. Padilla identified Rosalia Padilla from an autopsy photograph and a photograph taken of her when she became a U.S. citizen. Appellant objected to the admission of the photographs, but the trial court overruled the objections. 29
L. Toxicologists
In 2017, Andre Salazar ("Salazar") worked as a forensic toxicologist for the Harris County Institute of Forensic Sciences ("HCIFS"). Salazar's primary duties included ethanol quantitation and alcohol and drug testing. Salazar testified he analyzed the blood vials shown in State's Exhibit 83 and generated a report. The two vials had handwritten notations of 11:50 a.m. Appellant objected when the State tendered the blood toxicology report, State's Exhibit 84, into evidence, and asked for a Kelly hearing to "determine the validity of the results." During the 30 hearing, Salazar confirmed that HCIFS received two sets of blood draws for this case. At the end of the Kelly hearing, the trial court held the "witness has met the qualifications and the requirements of law" and "the techniques used in applying the theory was valid and that they were properly applied in this case, and the scientific theory was valid." Appellant renewed his objection to the toxicology report. The trial court overruled Appellant's objection and admitted the toxicology report into evidence.
The Harris County Institute of Forensic Sciences was formerly known as the Harris County Medical Examiner's Office.
Although Salazar did not testify to this point, the second blood draw was performed at 11:50 a.m. Salazar did not testify about the first blood draw at 10:50 a.m. because that evidence had been suppressed.
Texas Rule of Evidence 702, which governs the admissibility of expert testimony, states that "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue." Tex. R. Evid. 702. Texas Rule of Evidence 705 provides that, if the court determines that "the underlying facts or data do not provide a sufficient basis" for the expert's opinion under Rule 702, the opinion is inadmissible. Tex. R. Evid. 705(c). For expert testimony to be admissible under these rules, the proponent of the expert scientific evidence must demonstrate by clear and convincing evidence that the testimony is "sufficiently reliable and relevant to help the jury in reaching accurate results." Kelly v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). In Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992), the Texas Court of Criminal Appeals set forth a three-prong reliability test and identified seven non-exclusive factors courts consider in assessing the reliability of scientific evidence: (1) the extent to which the underlying scientific theory and technique are accepted as valid by the relevant scientific community, if such a community can be ascertained; (2) the testifying expert's qualifications; (3) the existence of literature supporting or rejecting the underlying scientific theory and technique; (4) the technique's potential rate of error of; (5) the availability of other experts to test and evaluate the technique; (6) the clarity with which the underlying scientific theory and technique can be explained to the court; and (7) the experience and skill of the person or persons who applied the technique on the occasion in question. Id. at 573.
The State then resumed its direct examination. Salazar confirmed that State's Exhibit 84 was the report generated from the analysis done of the blood vials shown in State's Exhibit 83. Based on the toxicology report, Salazar testified that Appellant's blood alcohol concentration ("BAC") when drawn at 11:50 a.m. was 0.122. The legal limit is 0.08.
Dr. Teresa Gray ("Gray"), the chief toxicologist at the HCIFS, testified about the effect alcohol has on the body. Gray explained that alcohol affects people differently depending, in part, on how familiar someone is with alcohol. "When an individual is exposed to alcohol or drugs repeatedly over time, they start to develop different mechanisms to deal with that repeated exposure." As a result, a heavy 31 drinker may not exhibit as many outward signs of intoxication compared to someone who rarely drinks. She estimated that someone of Appellant's height and weight would need to consume at least four-and-a-half alcoholic drinks to achieve a blood alcohol concentration of 0.122. Gray testified that the effects of intoxication on driving, include "confusion, not paying attention, not focusing. . . not anticipating risks that might be present on the roadway, poor judgment in terms of speed control." "It could be the handling of the vehicle itself, the pressing of the brake, the gas pedal as quickly as one might be able to if they had not been drinking. It could be a little bit slower."
When asked how quickly alcohol is eliminated from the body, Gray explained that "typically most individuals fall between .01 and .02 gram per 100 millimeters per hour. So in an hour's time, they reduce by a .01 to a .02." On cross-examination, Gray testified that it was "possible" that someone with a BAC of 0.122 could have had a BAC below 0.8 four or five hours earlier.
On redirect, Gray explained that retrograde extrapolation is a process used to calculate what a person's BAC would have been at an earlier time. To perform a retrograde extrapolation, she would need to know "when the last drink occurred, when the incident of interest is, and when the blood draw was." According to Gray, if a collision occurred at 7 a.m., and no alcohol was consumed after, the person's body would not be absorbing alcohol at 11a.m.; it would only be eliminating alcohol. 32
When asked if it was possible that the person's "blood alcohol level was also above .08" at 7 a.m., Gray answered, "[t]hat depends on what the drinking scenario was prior to 7 [a.m.]." Similarly, Gray testified that a loss of function seen at 9 a.m. does not necessarily mean that an individual would have loss of function at 7 a.m. because it depends on the drinking pattern.
M. DNA Experts
Mario Galioto ("Galioto"), a DNA analyst for the HCIFS, testified as the State's DNA expert. Defense counsel asked to take Galioto on voir dire shortly after he took the stand. Outside the jury's presence, Galioto testified that the laboratory work in the case was performed by other analysts, and he reviewed the forensic reports. Galioto testified that a blood sample from Appellant was submitted to the laboratory on March 19, 2017, four airbags were submitted on April 10, 2017, and a known saliva sample from Lavatai was submitted on June 25, 2018. According to Galioto, the evidence submission form reflected that the blood sample submitted on March 19, 2017, consisted of two blood vials submitted in a sealed box. Galioto later clarified that two sets of blood vials were submitted to HCIFS. One set of two vials was submitted in a box and another set was submitted in a plastic bag. When asked how the lab obtains DNA in a format usable for analysis, Galioto testified that the blood from the vial is deposited onto a bloodstain card. When asked if the bloodstain card involved in the case had been taken from the blood vials in the box 33 or the vials in the plastic bag, Galioto testified he did not know because he did not perform the test himself. The State argued, "[w]e have suppressed the blood that was labeled 10:50 [and w]e've admitted the blood" labeled 11:50.
When the jury returned, the State resumed its direct examination of Galioto. Galioto testified that the HCIFS lab received four pieces of evidence from the Volkswagen: the driver's front airbag, the driver's side airbag, the front passenger front airbag, and the front passenger side airbag. The DNA found on those items was compared to DNA samples obtained from Appellant, Lavatai, and Padilla. According to Galioto, the driver's front airbag contained DNA from two individuals-Appellant and an unknown individual. Lavatai was excluded as a contributor to this mixture. The front driver's side curtain airbag had at least three contributors, but Galioto could not make a reliable comparison. The front passenger front airbag had DNA from two individuals-Lavatai and an unknown individual. The front passenger side curtain airbag had a mixture of DNA from Lavatai and two other individuals. Galioto could not include or exclude Appellant as a contributor to the DNA on the front passenger front airbag or front passenger side curtain airbag.
On cross-examination, Galioto was asked, "if someone drives a car every day that it's-their DNA could be there, even if they're not even in the car, because their DNA is on things that could be secondary transfer." Galioto responded, "I think it's reasonable to suppose that someone could be a trace contributor just because they're 34 the driver of the car, yes." When asked if that person could be "a major contributor because fresh DNA can transfer," Galioto responded, "[f]resh DNA can transfer. I would say in my opinion, it's unlikely that the person would be the major contributor if they weren't the driver, in my opinion." Galioto also testified that a deployed driver's airbag could get transfer DNA from the steering wheel. Galioto testified that the DNA analyst swabbed the entire front of the Volkswagen's driver's front airbag, and therefore, he could not identify the exact location on the airbag where the DNA was deposited. At the end of his cross-examination, Appellant's counsel released Galioto, subject to recall.
Dr. Robert Benjamin ("Benjamin"), Appellant's DNA expert, testified that forensic DNA analysis is the process where you try to identify the source of DNA recovered from an item. Benjamin testified he reviewed a wide range of materials in this case, including laboratory files, forensic DNA reports, laboratory policies and procedures, DNA laboratory methodology, background information, police reports, and photographs. The information he reviewed included chain-of-custody logs for the evidence, as well as evidence submission forms. He also reviewed email and other written communications between HCIFS's DNA lab and toxicology lab and between the DNA lab and law enforcement, as well as internal communications for the DNA lab. Based on his review of the information provided, Benjamin testified he had concerns over chain-of-custody on the airbags because it appeared that some 35 item numbers had been changed. Benjamin testified that the only items from the Volkswagen that were tested for DNA were the front seat airbags. The rear seat airbags were not tested.
Benjamin testified that a sample of Appellant's blood was submitted to the lab and a bloodstain card was made from that blood for purposes of DNA analysis.Benjamin testified he did not see a search warrant for Appellant's DNA in the materials provided to him. According to Benjamin, the reports reflected that Appellant's DNA and DNA from an unknown person were found on the driver's front airbag. He could not determine where on the airbag Appellant's DNA was located because the entire airbag had been swabbed. He explained that specific localization is important to determine how DNA was deposited.
Benjamin could not determine the day the blood stain card was made, and based on his review of the file, he was concerned that Appellant's reference DNA sample may not have been obtained from the right blood tube. The prosecutor objected to the line of questioning stating it was a "[v]iolation of the motion in limine and previous rulings of this Court in regards to referenced suppressed blood. This witness just referenced that the blood card was made from the vials of suppressed blood." The question and testimony from Benjamin about his concerns over the bloodstain were stricken from the record.
Benjamin testified that most of the DNA on the airbag was consistent with Appellant's DNA profile, indicating that Appellant was a major contributor to the DNA found on the item. He explained that the mere fact that Appellant was a major contributor was not dispositive with respect to the identity of the driver at the time 36 of the collision. Benjamin explained that when a driver's front airbag deploys it normally hits the driver in the face and the face, excluding the mouth, "is not necessarily a great source of DNA." "I've seen airbags deploy that didn't seem to pick up anybody's DNA. I mean, when they tested it, they just don't get anything."
Benjamin testified that, based on his experience, the unknown person whose DNA profile was also found on the driver's side airbag could be the driver. Benjamin could not say with a high degree of scientific certainty who was driving the Volkswagen at the time of the accident based on the DNA evidence he reviewed.
On cross-examination, Benjamin agreed it was "possible that [Appellant's] DNA on the airbag could be a secondary transfer because it's his car." Benjamin testified, "It's certainly possible. Again, you'd have to know more details about the amounts of his DNA on items in that car and whether those items were likely to give it up and whether they'd transfer." He also acknowledged that there was about twenty times more of Appellant's DNA on the airbag than DNA from the unknown person but cautioned that twenty "times [is] not a whole lot." When asked if the fact that Appellant "was the major contributor to the driver airbag, is consistent with [Appellant] being-sitting in the driver's seat at that time that airbag deployed," Benjamin responded, "It would be one of the possible outcomes of sitting there, yes."
After Benjamin testified, the State called Galioto back for an "offer of proof" for the blood stain card made from Appellant's blood sample. Galioto testified that 37 the blood stain card was developed from an evidence item listed as 001-A, which was described in the evidence tracking software as blood drawn from Appellant at 11:50 a.m. on March 19, 2017.
N. Accident Reconstruction Experts
Deputy B. Wilbanks ("Deputy Wilbanks"), an accident investigator with the Harris County Sheriff's Office, testified as the State's crash expert. Deputy Wilbanks testified he performed an accident reconstruction, which means he used information to determine how fast the Toyota and Volkswagen were traveling at the point of impact. To determine the vehicles' pre-impact speeds, he needed to know the weight of the vehicles, the after-impact speeds of the vehicles, each vehicle's angle of approach prior to impact, and the angles of departure. After he determined the weight of each vehicle, he calculated the after-impact speeds of the vehicles, based on the distance the vehicle traveled after impact and the drag factor. The drag factor is the friction between the roadway and the tire of a vehicle.
Deputy Wilbanks did not visit the crash scene. He acquired his data "[o]ff the After Crash Situation Map that was measured with the total station," both of which were created by other officers at the scene.
The Harris County Sheriff's Office measures the distance travelled by each vehicle by measuring the distance between the center of mass at the point of impact and the center of mass at the point the vehicle came to rest. Deputy Wilbanks testified that Appellant's car had a post-impact distance of 248 feet and the Toyota's 38 post impact distance was 90 feet. Using that information, Deputy Wilbanks calculated the longitudinal drag factor of each vehicle, which accounted for several factors including whether the tires were spinning and whether the road was straight. The Volkswagen's front left tire locked at impact, causing the car to spin around 524 degrees after the collision and come to rest facing the point of impact. The Toyota spun around "700 degrees, which is two complete turns, while traveling across the roadway, then it hit the grass, and it went up to-on the median and basically traveled straight for the last 16 feet." After calculating the longitudinal drag factor, Deputy Wilbanks used a formula to calculate the effective drag factor with side slip to account for the vehicle rotating. He used that information to calculate each vehicle's post-impact speed. According to Deputy Wilbanks' calculations, the Volkswagen was traveling 61.5 miles per hour after impact and the Toyota was traveling about 36.85 miles per hour.
Deputy Anders, who took measurements at the scene using the Total Station, created an After Situation Accident Map (State's Exhibit No. 80) that was drawn to scale and depicts the roadway, skid marks, and resting places for each car. Deputy Wilbanks used Deputy Anders' map to create his own After Situation Accident Map. Deputy Wilbanks testified he did not change any of the roadway marks, or otherwise modify the map except to add in more detail. Deputy Anders' map only depicts where the vehicles came to rest whereas Deputy Wilbanks' map shows each car at 39 the point of impact, the rotation of the car between the point of impact and its resting spot, and the angles he calculated for each vehicle at every point in between. He used his map to show the jury the direction the cars were traveling when they collided, the point of impact, where the Volkswagen struck the Toyota (the left quarter panel), the direction the vehicles traveled after impact, and the rotations each vehicle made before they finally came to a stop.
After determining the after-impact speeds for each car, Deputy Wilbanks determined each vehicle's approach angle by looking at the damage to each vehicle, doing a damage analysis, and putting them together at first contact and maximum engagement. Based on his calculations, Deputy Wilbanks determined that the Volkswagen had an approach angle of 0 degrees on a 360-degree scale going counterclockwise and the Toyota had a 92-degree approach angle, which means the Volkswagen hit the Toyota broadside. Deputy Wilbanks used photographs of the cars to illustrate the damage caused and explain what the car's damage told him about the collision. The Volkswagen had a departure angle of one degree and the Toyota had a nine-degree departure angle. He used that information and the conservation of momentum formula to calculate the impact speeds of the vehicles. Based on his calculations, Deputy Wilbanks determined that the Volkswagen was traveling 88 miles per hour at the time of impact and the Toyota was traveling 7.2 miles per hour. 40
Deputy Wilbanks testified that the unusual change in the Toyota's speed from 7.2 miles per hour at the point of impact to 36.85 miles per hour post-impact was because some of the Volkswagen's energy transferred to the Toyota at the point of impact causing the Toyota to accelerate. Deputy Wilbanks then performed a sensitivity study in which he varied the angles five degrees each way to see how much it changed the car's speed. When asked if he saw a "very significant change," he testified, "Nothing great."
Deputy Wilbanks also performed a time and distance analysis. He determined that Appellant was at least 286 feet-and possibly twice that far-away when Padilla's car entered the intersection, yet Appellant did not brake to avoid hitting her car. Had Appellant been driving only 79 miles per hour-still more than twice the speed limit-as opposed to 88 miles per hour, the wreck would not have happened. According to Deputy Wilbanks, it would have been a near-miss. Based on his review of the evidence, Deputy Wilbanks determined that the main contributing factor in the collision resulting in Padilla's death was the "excessive speed of the Volkswagen.".
On cross-examination, Deputy Wilbanks testified that he did not visit the scene and instead relied on information generated by the Total Station that Deputy Anders performed the day of the collision to determine the distances the cars traveled post-impact. He agreed the crash site had tangible reference points he could have 41 used to make his own measurements had he gone to the scene, but he believed that it was better to rely on the information generated by the Total Station the day of the accident because roadway conditions change, and skid marks and other evidence can change or be obscured over time. He acknowledged that Sergeant Cheek-McNeal's post-impact measurements were different from his measurements, but he reiterated that he relied on his own measurements for purposes of his analysis, not Sergeant Cheek-McNeal's measurements. Deputy Wilbanks acknowledged that if the data provided to him was incorrect, then his data would also be wrong.
Deputy Wilbanks testified that accurate post-impact distances are important to calculate crash speeds. He agreed an incorrect drag factor will affect post-impact speeds. The drag factor he used for his reconstruction was from the wrong location. He did not have any evidence in his file to show the Toyota stopped at the stop sign. He cannot know from his calculations if the Toyota stopped.
Robin Wright ("Wright"), Appellant's accident reconstruction expert, testified that "seat belts sometimes lock into position when they're in use, and sometimes they do not." He was not able to inspect the vehicles personally and could not determine from the file whether the rear passenger seatbelts were being used at the time of the accident. Wright visited the site three times. He went to the scene for the first time in January 2019, right after he was hired. He also performed his own accident reconstruction using roadway landmarks to determine the post- 42 impact location of the two vehicles and he used concrete scrapes to identify impact location. Wright calculated post-impact vehicle distances were 76 feet for the Toyota and 228 feet for the Volkswagen. His measurements were not as long as Deputy Wilbanks' measurements. Wright explained why he considered his measurements to be more accurate and largely attributed the differences to human error associated with use of the Total Station. Like Deputy Wilbanks, Wright explained the importance of accurately calculating the weight of the vehicles, and the approach and departure angles.
Wright also used two exhibits to explain his findings and methodology to the jury, both of which were admitted into evidence. Defendant's Exhibit 43 is a map that Wright created that shows an arial view of the intersection where the collision occurred. Defendant's Exhibit 44 is the same map as Exhibit 43, but the map in Exhibit 44 is placed over a Google image of the accident location, which shows the stop bar and the crosswalk marks in the intersection where the collision occurred. The post-impact length traveled by both cars and where the cars came to rest are depicted on both exhibits, as well as the distance between the stop bar and the impact point, which is 24 feet. Exhibit 44 also labels the Toyota's departure angle, which Wright calculated as 18.5 degrees.
Based on his calculations, Wright concluded that Appellant was driving 79 miles per hour and Padilla 14 miles per hour at the time of impact. Wright also 43 performed a time-and-distance analysis and he testified that, based on his calculations, Padilla's vehicle could not have been traveling 14 to 16 miles per hour at the point of impact if she had stopped at the stop sign. Wright opined that Padilla caused the collision. When asked why he did not attribute the cause to the 79 miles per hour at which the Volkswagen was traveling, Wright explained, "Ms. Padilla was required to stop and yield right-of-way to the stop sign. I feel like she did not do either one of those. And the crash speed that [Appellant's] Volkswagen was traveling wouldn't have been material had she stopped and yielded the right-of-way."
Towards the end of Wright's testimony, Appellant tried to admit a CGI video of the wreck based on Wright's reconstruction as a demonstrative exhibit. The State objected to this exhibit on several grounds, including that the video was misleading because it was not to scale, and the speeds did not appear to be accurate. The State further asserted that "there is nothing really that's complicated about the jury understanding that someone goes through an intersection and is hit. I think they have a pretty good idea about that. This particular demonstrative, it's just going to be confusing and misleading because it's not to scale and it doesn't accurately represent the speeds, as well as it being more prejudicial than probative." The trial court sustained the State's objections, and the demonstrative exhibit was not admitted. 44
On cross-examination, the State asked Wright if Padilla had slowed down but never came to a complete stop, and saw another car a "football field away, isn't it reasonable for someone to conclude they have time to cross that intersection when the speed limit is 35 miles per hour?" Wright answered, "I would say yes."
O. Forensic Pathologists
Dr. Amanda Grossberg ("Grossberg"), Appellant's forensic pathologist, agreed with the State's expert, Dr. Merrill Odom Hines, III, that Padilla's cause of death was multiple blunt force trauma to the head. Grossberg testified that Padilla was not wearing her seatbelt when the collision occurred and that the fatal injuries to the head would not have occurred had she been wearing a seatbelt.
P. Jury Deliberations
The jury began its deliberations at 4:05 p.m. on October 10, 2019. At 4:36 p.m., the jury requested to see the Jack-In-The-Box video stills, Deputy Anders' testimony, Luis Perez's testimony, and Warren Humphrey's testimony. The trial judge discussed the request with defense counsel and the prosecution on the record that afternoon. The trial judge informed the attorneys that the court had a standard instruction for requests for testimony that informs the jury that if they disagree as to a statement of any witness, they may request that such portion be read back to them, and the form would be submitted to the jury. Neither the State nor Appellant's counsel objected to the proposed form. 45
For the Jack-in-the-Box video stills, the parties and trial court engaged in discussions that afternoon to determine what specifically the jury was requesting and how best to send it to the jury. The trial court stated:
So State's Exhibit No. 81 will be submitted. Testimony, they will have to-we will have to have them to fill out the form. They did ask for three-testimony of three different people. Do you guys want me to put in the names that they have asked so that they will know, one, this is Anders, this would be Luis? And then we will let them figure out- fill all this out themselves. Okay. Very good.
The parties then engaged in further discussion over which video stills to submit to the jury. At the end of this discussion, the trial judge stated:
All right. So I will submit this back to the jury. However, we're going to-I'm going to submit this to them and then I'm going to have them brought out and they can review this on tomorrow and we're going to conclude for today, but I'm going to give them this first. And I will let them fill this part out so that would give you time enough-you need- because you're going to have to find what they're requesting. Okay. Thank you.
At 5:28 p.m. that same day, the jury was seated and instructed to return at 9 a.m. the next day to continue their deliberations. The copy of the jury's request for materials included in the clerk's record states that in response to the request for the video stills, that "State's Exhibit 81 will be submitted." The record does not reflect whether the video stills or the form for testimony was submitted to the jury.
The next day, the jury resumed deliberations at 9:33 a.m. and returned a guilty verdict at 10:06 a.m. 46
Q. Punishment
The same day the jury returned a guilty verdict, the punishment phase of the trial began at 10:11 a.m. Before commencing, the trial court first took a thirty-minute break to allow additional time for witnesses to arrive. The State then began its case. After the State rested, Appellant's counsel informed the court that Appellant's witnesses were stuck in traffic and counsel asked the court to give the witnesses more time to arrive. The trial judge denied the request, noting that the court had taken a break after the verdict came in and Appellant had two hours to get his witnesses to the courthouse. Appellant testified and called one more witness before he rested his case.
The jury assessed Appellant's punishment at eighteen years in prison on the intoxication manslaughter charge and twenty years in prison on the failure to stop and render aid charge, both sentences to run concurrently. This appeal followed. 47
We further note that throughout his briefing, Appellant argues that the prosecutor acted improperly during his trial. To the extent Appellant is attempting to raise a prosecutorial misconduct argument, Appellant has not provided any case law or analysis on this issue. See Tex. R. App. P. 38.1. Appellants raises eleven issues on appeal. A multifarious issue embraces more than one specific ground. State v. Frias, 511 S.W.3d 797, 806 (Tex. App.-El Paso 2016, pet. ref'd) (citing Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim. App. 2010)). By combining more than one contention in a single issue, an appellant risks rejection on the ground that nothing is presented for review. See Wood v. State, 18 S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000) (refusing to address multifarious issues). TheCourt, however, has the discretion to address contentions presented in a multifarious issue if they are (1) sufficiently developed in the brief such that we can determine with reasonable certainty the nature of the complaining party's point of error and (2) preserved for our review. Id. While many of Appellant's issues are multifarious and could be overruled on that basis, to the extent possible, we attempt to address the merits of Appellant's contentions.
Sufficiency of the Evidence
In his first issue, Appellant argues the evidence is legally insufficient to sustain his convictions for intoxication manslaughter and failure to stop and render aid.
A. Standard of Review
We review an appellant's challenge to the legal sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). We examine all the evidence in the light most favorable to the jury's verdict to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319; Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Our review includes all the evidence introduced, whether it be properly or improperly admitted. See Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013).
"The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses." Merritt, 368 S.W.3d at 525 (citing Jackson, 443 U.S. at 319). As the sole factfinder, the jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses, disbelieve any or all of the evidence or 48 testimony proffered, and weigh the evidence as it sees fit. See Canfield v. State, 429 S.W.3d 54, 65 (Tex. App.-Houston [1st Dist.] 2014, pet. ref'd). We afford almost complete deference to the jury's determinations of credibility. See id. (citing Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)). In the event of conflicting evidence, we presume the jury resolved conflicts in favor of the verdict and defer to that determination. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Canfield, 429 S.W.3d at 65. Circumstantial evidence is as probative as direct evidence in establishing guilt, and circumstantial evidence alone can be sufficient. See Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).
B. Applicable Law
A person commits the offense of intoxication manslaughter if the person operates a motor vehicle in a public place, is intoxicated, and by reason of that intoxication causes the death of another, by accident or mistake. Tex. Penal Code § 49.08(a). "Intoxicated" means "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 those substances, or any other substance into the body," or "having an alcohol concentration of 0.08 or more." Tex. Penal Code § 49.01(2)(A)-(B). To support a finding that a defendant was intoxicated while operating a motor vehicle, a temporal link must exist between the defendant's intoxication and his driving. Kuciemba v. State, 310 S.W.3d 460, 462 49 (Tex. Crim. App. 2010). Such a finding can be supported by direct or circumstantial evidence. Id.
Section 550.023 of the Texas Transportation Code, the "failure to stop and render aid" statute, provides that the "operator of a vehicle involved in an accident that results or is reasonably likely to result in injury to or death of a person shall:"
(1) immediately stop the vehicle at the scene of the accident or as close to the scene as possible;
(2) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident;
(3) immediately determine whether a person is involved in the accident, and if a person is involved in the accident, whether that person requires aid; and
(4) remain at the scene of the accident until the operator complies with the requirements of [Transportation Code] Section 550.023.50 Tex. Transp. Code § 550.021(a). To convict a defendant of failure to stop and render aid, the State must prove beyond a reasonable doubt that the defendant was a driver of a vehicle involved in an accident resulting in injury or death of any person and the driver intentionally and knowingly failed to stop and render reasonable assistance. McGuire v. State, 493 S.W.3d 177, 205 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd).
Section 550.023 of the Texas Transportation Code requires a driver involved in an accident resulting in the injury or death or damages to a vehicle driven or attended to by a person to:
(1) give the operator's name and address, the registration number of the vehicle the operator was driving, and the name of the operator's motor vehicle liability insurer to any person injured or the operator or occupant of or person attending a vehicle involved in the collision;
(2) if requested and available, show the operator's driver's license to a person described by Subdivision (1); and
(3) provide any person injured in the accident reasonable assistance, including transporting or making arrangements for transporting the person to a physician or hospital for medical treatment if it is apparent that treatment is necessary, or if the injured person requests the transportation.Tex. Transp. Code § 550.023.
C. Analysis
Appellant argues the evidence is legally insufficient to support his convictions for intoxication manslaughter and failure to stop and render raid because the State failed to prove beyond a reasonable doubt that (1) he was driving the Volkswagen when the collision occurred; (2) he was intoxicated when the collision occurred, or (3) his intoxication caused the collision.
1. Evidence Appellant Was Driving the Volkswagen
There is direct and circumstantial evidence supporting the jury's determination that Appellant was driving the Volkswagen when the collision occurred. Lavatai testified unequivocally that Appellant was driving the car when the collision occurred and that no one else was in the car with them. Lavatai's testimony alone is sufficient to support the jury's finding that Appellant was the driver. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (holding testimony of single eyewitness was sufficient to support jury's verdict); see also 51 Gibbs v. State, 555 S.W.3d 718, 728 (Tex. App.-Houston [1st Dist.] 2018, no pet.) ("Identity may be established by the testimony of a single eyewitness."); Shah v. State, 414 S.W.3d 808, 812 (Tex. App.-Houston [1st Dist.] 2013, pet. ref'd) ("It is well-established that the testimony of a sole witness to an offense may constitute legally sufficient evidence to support a conviction."). Appellant suggests Lavatai was not credible, but it is the sole province of the jury to evaluate a witness' credibility and we cannot revaluate that decision on appeal. See Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017) ("The jury is the sole judge of the credibility of witnesses and the weight to be given to their testimonies, and the reviewing court must not usurp this role by substituting its own judgment for that of the jury.") (citing Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012)); see also Merritt, 368 S.W.3d at 525 (citing Jackson, 443 U.S. at 319).
Appellant also argues Lavatai testified he was sleeping when the collision occurred, he did not know where Appellant was after the collision, and he saw someone running away from the car. While true, this does not alter the fact Lavatai also testified Appellant was driving the car when the collision occurred and that no one else was in the car with them:
STATE: And you mentioned you were reclined in the seat. What seat were you in?
LAVATAI: I was in the passenger seat.
STATE: Who was driving the car?52
LAVATAI: [Appellant] was driving the car.
STATE: Was there anybody else in that car with you at that time?
LAVATAI: No.
Even if Lavatai's testimony could somehow be considered contradictory, it was the jury's role to resolve any conflicts in the testimony and we presume the jury resolved such conflicts in favor of the verdict and defer to that determination. See Isassi, 330 S.W.3d at 638; Canfield, 429 S.W.3d at 65.
Beyond Lavatai's testimony, there is additional evidence supporting the jury's finding that Appellant was the driver. Perez, who witnessed the aftermath of the crash, testified that after the collision, he saw Appellant exit the driver's side of the Volkswagen and Lavatai exit the passenger side. He did not see anyone get out of the car or near the car except for Appellant and Lavatai. When asked if it was possible that he "could have missed maybe somebody else running off in a different direction, Perez answered, "No."
Sergeant Cheek-McNeal also testified that the presence and location of seatbelt marks on Appellant and Lavatai indicated Appellant was seated on the driver's side of the Volkswagen and Lavatai on the passenger side at the time of the collision. The position of the driver's seat and the front passenger's seat also indicated that Appellant was sitting in the driver's seat and Lavatai, who was much 53 larger than Appellant, in the front passenger's seat. Appellant also informed Sergeant Cheek-McNeal that his grandmother owned the Volkswagen.
Appellant told Deputy Anders he was in the back seat of the Volkswagen at the time of the accident and that a Caucasian male was driving the car. But no other witness testified they saw anyone other than Lavatai and Appellant in or near the Volkswagen. And as noted, Lavatai testified that only he and Appellant were in the car. There was also a receipt from Jack-in-the Box indicating that someone in the vehicle had purchased two burritos and two tacos minutes before the collision.
With respect to Appellant's claim that he was sitting in the backseat of the car behind the driver, Sergeant Cheek-McNeal testified that the lack of slack in the seatbelt corresponding to the seat directly behind the driver's seat indicated no one was seated there and wearing a seatbelt when the collision occurred. Deputy Anders also testified he did not believe Appellant's claim that he was sitting in the seat behind the driver because the seatbelt in the backseat indicated that no one was wearing the seatbelt during the collision. He further testified that if someone had been sitting unbuckled in the backseat of the car during the highspeed collision, the backseat passenger "would have launched themselves into the front" and likely sustained serious injuries and there would be damage on the back of the driver's seat. He testified that Appellant was not seriously injured in the collision and the back of the driver's seat was not damaged. 54
Humphrey, who also witnessed the collision, testified he saw Appellant standing on the passenger side of the Volkswagen after the collision and "a much bigger guy, longer hair, standing on the [driver's] side." Humphrey saw no one get out of the car or near the car except for Appellant and Lavatai. He testified he saw only two men, Appellant and Lavatai, and neither tried to help Padilla. When asked if it was possible he might have missed a third person get out of the black car and run, Humphrey testified that he could not have missed seeing a third person because the Volkswagen's doors were still closed when he parked his truck. To the extent Humphrey's testimony that Appellant was standing on the passenger side of the Volkswagen while Lavatai was standing on the driver's side conflicts with Lavatai's testimony that he was the passenger and Appellant was driving, and with Perez's testimony that he saw Appellant exit the driver's side and Lavatai the passenger's side, it was the jury's role to resolve any conflicts in the testimony. We presume the jury resolved conflicts in favor of the verdict and defer to that determination. Isassi, 330 S.W.3d at 638; Canfield, 429 S.W.3d at 65.
The same is true for any inconsistencies in Perez's testimony.
Appellant also argues that the driver seen in Jack-In-The-Box's surveillance video clearly was not him because the driver was wearing a light-colored short-sleeve shirt. But it was up to the jury to assess how much weight to give the images 55 from the surveillance video and decide for themselves whether the driver appeared to be Appellant.
The State's DNA analyst, Galioto, testified that Lavatai was a contributor to DNA found on the front passenger front airbag and the front passenger side airbag. Lavatai was excluded as a contributor to DNA found on the driver's front airbag. Galioto testified that the driver's front airbag contained DNA from Appellant and an unknown person. Appellant's DNA expert, Benjamin, also testified Appellant was a major contributor to the DNA found on the driver's front airbag. He acknowledged on cross-examination that there was approximately twenty times more of Appellant's DNA on the airbag than DNA from the unknown person, although he stated that was "not a whole lot." When asked if the fact that Appellant was a "major contributor to the driver airbag, [was] consistent with [Appellant] being-sitting in the driver's seat at that time that airbag deployed," Benjamin responded, "It would be one of the possible outcomes of sitting there, yes."
Viewing the evidence in the light most favorable to the verdict, we conclude a reasonable jury could conclude that Appellant was driving the car when the collision occurred. See Aguilar, 468 S.W.2d at 77; see also Gibbs, 555 S.W.3d at 728. 56
2. Evidence Appellant Was Intoxicated
Appellant argues there is insufficient evidence to support the jury's finding that he was intoxicated when the collision occurred because the 11:50 a.m. blood draw and 9 a.m. SFST were performed well after 7:15 a.m., when the collision occurred. He argues that Gray's testimony merely proves that his BAC was 0.122 as of 11:50 a.m. and further that Gray admitted Appellant's BAC at 11:50 a.m. was not indicative of his BAC at any time prior to the blood draw and she has no idea what Appellant's BAC was at 7:15 a.m. According to Appellant, Gray testified it is possible Appellant's BAC was below the legal limit of 0.08 four or five hours earlier, when the collision occurred. Last, Appellant argues Gray testified that loss of function seen at 9 a.m. does not mean that an individual would have loss of function at 7 a.m.
In Kirsch v. State, 306 S.W.3d 738 (Tex. Crim. App. 2010), the Court of Criminal Appeals stated that "BAC-test results, even absent expert retrograde extrapolation testimony, are often highly probative to prove both per se and impairment intoxication." Id. at 745. However, a blood-alcohol test result, without more, is insufficient to prove intoxication at the time of driving. Id. "There must be other evidence in the record that would support an inference that the defendant was 57 intoxicated at the time of driving as well as at the time of taking the test." Id. "Other evidence" suggesting that a defendant was intoxicated at the time of driving-as well as at the time of the blood draw-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, any admissions by the defendant concerning when and how much he had been drinking, in short, any and all of the usual indicia of intoxication." Id.; Kinnett v. State, 623 S.W.3d 876, 900 (Tex. App.-Houston [1st Dist.] 2020, pet. ref'd).
Gray explained the concept of retrograde extrapolation to the jury, but she did not use it to calculate Appellant's BAC at the time of the collision.
Appellant admitted to Deputy Anders that he had been drinking and was too intoxicated to drive. See Kirsch, 306 S.W.3d at 745 (stating any admissions by defendant concerning when and how much he had been drinking are indicia of intoxication). In addition, Deputy Anders and Sergeant Cheek-McNeal both testified that Appellant smelled strongly of alcohol. Deputy Anders noted Appellant had thick slurred speech, red bloodshot eyes, sluggish movements, and he did know where he was. He also did not know Lavatai's name, even though he and Lavatai had known each other for two years and had spent the entire night together. See Zill v. State, 355 S.W.3d 778, 785-86 (Tex. App.-Houston [1st Dist.] 2011, no pet.) (listing factors constituting evidence of intoxication-including "slurred speech, bloodshot or glassy eyes, unsteady balance, a 'staggering gait,' and the odor of alcohol on the person or on her breath"-and stating that "[t]he testimony of a police 58 officer regarding the defendant's behavior and the officer's opinion that the defendant is intoxicated provides sufficient support to uphold a jury verdict").
The field sobriety tests Deputy Anders conducted approximately two hours after the collision also support the jury's finding that Appellant was intoxicated when the collision occurred. Deputy Anders observed six clues on the HGN, namely, lack of smooth pursuit, maximum deviation, and an onset of nystagmus prior to 45 degrees, and two clues on the walk-and-run test; specifically, he failed to maintain his balance during the instruction phase, and he took an extra step during the walking phase, indicating Appellant was intoxicated. See Williams v. State, 525 S.W.3d 316, 322 (Tex. App.-Houston [14th Dist.] 2017, pet. ref'd) (stating failing HGN is evidence of intoxication). Deputy Anders who conducted the field sobriety tests on Appellant concluded he was intoxicated. Id. Deputy Anders, who had been certified to perform SFSTs over twenty years when the collision occurred, is also a certified SFST instructor.
Appellant also had a BAC of 0.122 as of 11:50 a.m., which is well over the legal limit of 0.08. Gray estimated that someone of Appellant's height and weight would need to consume at least four-and-a-half alcoholic drinks to achieve a blood alcohol concentration of 0.122. Although Gray admitted that Appellant's BAC at 11:50 a.m. was not necessarily indicative of his BAC at any time prior to the 11:50 a.m. blood draw and that loss of function seen at 9 a.m. does not mean that an 59 individual would have loss of function at 7 a.m., she explained that if a collision occurs at 7 a.m., and no alcohol is consumed after, the person's body would not be absorbing alcohol at 11a.m.; it would only be eliminating alcohol.
Lavatai also testified that he and Appellant had been drinking at a bar the night before the collision and when the bar closed, they went to an after-hours bar where they continued to drink, and they stayed there until the after-hours bar closed around 6 a.m. or 7 a.m. The collision occurred at approximately 7:15 a.m. Perez, one of the witnesses at the scene, testified that Appellant "looked dazed and confused and he looked like he was trying to get his bearings" after the crash.
While the BAC test results in this case, standing alone, are insufficient to prove Appellant was intoxicated when the collision occurred, such evidence coupled with Appellant's admission that he had been drinking and was too intoxicated to drive, Lavatai's testimony that he and Appellant had been drinking all night, Deputy Anders' and Sergeant Cheek-McNeal's observations of Appellant after the accident, and the fact Appellant failed the HGN test, supports an inference that Appellant was intoxicated when the collision occurred. See Kirch, 306 S.W.3d at 745; see also Kennemur v. State, 280 S.W.3d 305, 314-15 (Tex. App.-Amarillo 2008, pet. ref'd) (considering blood-alcohol test result among other factors indicating intoxication even though blood draw occurred seven hours after defendant was in car accident and stating that test result "tend[ed] to make it more probable that he was intoxicated 60 at the time of the collision because [it] provided evidence that he had introduced alcohol into the body prior to the accident" and no evidence in record indicated that defendant consumed alcohol after leaving bar or following car accident).
Viewing the evidence in the light most favorable to the verdict, we hold a reasonable jury could conclude that Appellant was intoxicated at the time of the collision. See Kirch, 306 S.W.3d at 745; see also Kennemur, 280 S.W.3d at 314- 15.
3. Evidence Appellant's Intoxication Caused the Collision
Appellant argues there is insufficient evidence to support the jury's finding that his intoxication caused the collision. He further asserts there were other intervening factors that caused or contributed to the collision, namely, that Padilla ran a stop sign and failed to yield the right of way.
To prove intoxication manslaughter, the State had to prove that Appellant drove while intoxicated and, "by reason of that intoxication cause[d] the death of another by accident or mistake." Tex. Penal Code § 49.08(a)(2). The State did not have to prove, however, that Appellant's intoxication was the sole cause of the collision. Section 6.04 of the Texas Penal Code provides that a "person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." 61 Tex. Penal Code § 6.04. When concurrent causes are present, the "but for" requirement is satisfied when either "(1) the accused's conduct is sufficient by itself to have caused the harm, or (2) the accused's conduct coupled with another cause is sufficient to have caused the harm." Matamoros v. State, 500 S.W.3d 58, 64 (Tex. App.-Corpus Christi 2016, no pet.).
The State's accident reconstructionist, Deputy Wilbanks, testified that although Appellant's car was at least 286, possibly even 587, feet away when Padilla's car entered the intersection, Appellant never hit his brakes to avoid hitting her car. He was traveling 88 miles per hour in a 35-mile-per-hour zone at the time of impact. Deputy Wilbanks testified that if Appellant had been driving only 79 miles per hour-still more than twice the speed limit-the wreck would not have occurred. Common sense dictates that had Appellant been driving the speed limit of 35 miles per hour, Padilla's car would have cleared the intersection, regardless of whether she came to a complete stop at the stop sign.
The fact that Appellant was driving at least 40 miles per hour over the speed limit in a residential neighborhood, and there were no skid marks showing an attempt to brake before the collision is evidence of intoxication. See Kuciemba, 310 S.W.3d at 463 (stating "driver's failure to brake also provides some evidence that the accident was caused by intoxication"); see also Hale v. State, 194 S.W.3d 39, 40 (Tex. App.-Texarkana 2006, no pet.) (stating driving while intoxicated at high rate 62 of speed "cannot possibly be characterized as being insufficient conduct to cause the accident") (quoting Martinez v. State, 66 S.W.3d 467, 470 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd)). During her testimony, Gray explained the effects of intoxication on driving, include "confusion, not paying attention, not focusing. . . not anticipating risks that might be present on the roadway, poor judgment in terms of speed control." "It could be the handling of the vehicle itself, the pressing of the brake, the gas pedal as quickly as one might be able to if they had not been drinking. It could be a little bit slower."
Deputy Anders also testified that Appellant exhibited signs of intoxication after the accident, including a strong smell of alcohol, thick slurred speech, red bloodshot eyes, sluggish movements, and not knowing his whereabouts or his friend's name, and Sergeant Cheek-McNeal testified that Appellant smelled strongly of alcohol. See Kuciemba, 310 S.W.3d at 462 ("Being intoxicated at the scene of a traffic accident in which the actor was a driver is some circumstantial evidence that the actor's intoxication caused the accident. . .").
We hold that, when viewing the evidence in the light most favorable to the verdict, a reasonable jury could conclude that Padilla's death would not have occurred but for Appellant's driving while intoxicated, operating either alone or concurrently with another cause. See Wooten v. State, 267 S.W.3d 289, 296 (Tex. App.-Houston [14th Dist.] 2008, pet. ref'd) (holding that when intoxicated driver 63 alleged that other road conditions caused accident, "even if other factors contributed in some way to the accident, these factors were not clearly sufficient to cause the fatalities in this case").
We overrule Appellant's first issue.
Admission of Evidence
In his second issue, Appellant argues the trial court abused its discretion when it denied the admission of relevant evidence.
A. Standard of Review
A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court does not abuse its discretion unless its ruling lies outside the zone of reasonable disagreement. Id. If a trial court's ruling is correct under any theory of applicable law and is reasonably supported by the record, it should be upheld. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).
B. Ronald Dupree's Out-of-Court Statement
Ronald Dupree ("Dupree") witnessed the collision and gave a recorded statement to Sergeant Cheek-McNeal. He told Sergeant Cheek-McNeal that he saw someone matching Lavatai's description in the driver's seat and saw him get out of the driver's side. Dupree, who refused service of a trial subpoena, did not testify at trial. When Appellant tried to introduce Dupree's statement into evidence, the State 64 objected that the statement was inadmissible hearsay. The trial court sustained the objection.
On appeal, Appellant does not appear to dispute that Dupree's statement is hearsay. Rather, citing to Chambers v. Mississippi, 410 U.S. 284 (1973), Appellant argues the trial court abused its discretion by excluding Dupree's out-of-court statement on hearsay grounds because his "constitutional right to present a defense trumps application of the hearsay rule." To complain on appeal about a trial court's exclusion of evidence, the proponent "must have told the judge why the evidence was admissible" and must have brought to the trial court's attention the same complaint that is being made on appeal. Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005) (discussing Tex.R.App.P. 33.1).
In response to the State's hearsay objection, Appellant argued only that Dupree's statement was admissible because it satisfied two exceptions to the hearsay rule. He argued the statement was admissible as a present sense impression and for the effect the statement had on Sergeant Cheek-McNeal. See Tex. R. Evid. 803. He also argued the statement was admissible for purposes of impeaching Sergeant Cheek-McNeal. Appellant did not argue to the trial court that the statement was admissible because his "constitutional right to present a defense trumps application of the hearsay rule," as he now argues on appeal. Therefore, Appellant did not preserve this issue for our review. See Reyna, 168 S.W.3d at 177. 65
C. Jonah Lavatai's Statement
On direct examination, Lavatai testified he exited the Volkswagen after the wreck, but he did not say which door he used. On cross-examination, Appellant's counsel tried to admit a recorded statement taken at the scene where, according to Appellant's counsel, Lavatai told a deputy that he exited the driver's side of the vehicle.
Although Appellant argued in the trial court that Lavatai's statement met several exceptions to the hearsay rule and was admissible as a statement against self-interest, an exited utterance, a prior inconsistent statement, and for impeachment purposes, Appellant does not appear to be raising these same challenges on appeal. Rather, Appellant raises the same argument on appeal he raised with respect to Dupree's statement, namely, that his "constitutional right to present a defense trumps application of the hearsay rule." Because Appellant did not argue to the trial court that Lavatai's statement was admissible because Appellant's "constitutional right to present a defense trumps application of the hearsay rule," as he now argues on appeal, Appellant did not preserve this issue for our review. See Reyna, 168 S.W.3d at 177. 66
Appellant also asserts that exclusion of Lavatai's statement violated his right to confront Lavatai as guaranteed by the Confrontation Clause. He does not provide any analysis or authority in support of his argument with respect to this issue. Moreover, Appellant did not object to the exclusion of this evidence based on the Confrontation Clause, and therefore, he has not preserved this issue for our review. See Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (to preserve error for Confrontation Clause violation, defendant must have objected at trial on that basis).
D. Demonstrative Exhibit - CGI video
Appellant's accident reconstructionist Robin Wright prepared a reconstruction of the collision showing Appellant was driving 79 miles per hour and Padilla 14 miles per hour at the time of impact. According to Wright, Padilla's speed established she ran the stop sign and thus she was the at-fault driver. Towards the end of Wright's testimony Appellant tried to admit an animated video of the wreck based on Wright's reconstruction as a demonstrative exhibit (Defense Exhibit 46). Defense Exhibit 46 contained two files depicting the collision from different angles. Each file reflected two versions of the collision. The first part of the file illustrates Padilla being ejected from her car during the collision and the second shows what Wright believes would have happened if Padilla had been wearing a seatbelt.
The State objected to this exhibit on several grounds, including that the video was more prejudicial than probative because it was not to scale and it "physically shows [Padilla] flying out of the car and landing on the pavement." Appellant's counsel told the trial judge that if she thought the video was prejudicial, "the defense would suggest that we just show the one where there is no ejection." The State objected to that version as well, arguing "there is nothing really that's complicated about the jury understanding that someone goes through an intersection and is hit. I 67 think they have a pretty good idea about that. This particular demonstrative, it's just going to be confusing and misleading because it's not to scale and it doesn't accurately represent the speeds, as well as it being more prejudicial than probative."
The State argued that the animation was also misleading because it "is not to scale in that it's showing the defendant to be a certain distance back, which is not to scale to the testimony about how many feet back he was when [the decedent] entered the intersection [and] it's going to put a false idea in the jury's mind about what that looked like when she entered into that intersection." "And all it does is show a crash. The jury knows what a crash looks like. This is not going to help them understand a crash. It's just going to confuse them as far as the distances and what that would have looked like in real life." Appellant responded that the animation was to scale and "[a]s far as the distance, he never gave a distance. The distances came from their witness, which is contrary to what Mr. Wright's testimony was. This is a good representation of what Mr. Wright's testimony is." After viewing the video in camera, the trial court sustained the State's objection.
1. Error Analysis
Demonstrative evidence is admissible "to aid the jury in understanding oral testimony adduced at trial." See Fletcher v. State, 902 S.W.2d 165, 167 (Tex. App.-Houston [1st Dist.] 1995, pet. ref'd) (citing Simmons v. State, 622 S.W.2d 111, 113-14 (Tex. Crim. App. 1981). Demonstrative evidence has "no independent 68 relevance to the case but it is offered to help explain or summarize the witness's testimony or to put events and conditions into a better perspective." Torres v. State, 116 S.W.3d 208, 213 (Tex. App.-El Paso 2003, no pet.). Demonstrative evidence is admissible to serve as a visual aid or illustration if it meets the tests of relevancy and materiality, as well as the limitations imposed by Rule 403 of the Texas Rules of Evidence. See Baker v. State, 177 S.W.3d 113, 123 (Tex. App.-Houston [1st Dist.] 2005, no pet.); see also Simmons, 622 S.W.2d at 113 (stating visual, real, or demonstrative evidence is admissible in criminal case if it sheds light on subject at hand). A trial court's admission of demonstrative evidence is reviewed under an abuse-of-discretion standard. See Simmons, 622 S.W.2d at 114; see also Onwukwe v. State, 186 S.W.3d 81, 85 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (holding trial court did not abuse its discretion in admitting demonstrative evidence).
To determine whether to admit or exclude evidence which might have a tendency to mislead the jury or otherwise cause unfair prejudice, the trial court must look to Rule 403 and balance: (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that 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 69 of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); see also Airheart v. State, No. 08-11-00037-CR, 2012 WL 1431762, at *5-6 (Tex. App.-El Paso Apr. 25, 2012, pet. ref'd) (not designated for publication) (applying Gigliobianco factors in determining whether to admit allegedly misleading exhibit). "[Rule 403] envisions exclusion of evidence only when there is a 'clear disparity between the degree of prejudice of the offered evidence and its probative value.'" Hammer v. State, 296 S.W.3d 555, 568-69 (Tex. Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)).
The CGI video has some probative force because it depicts the collision.Appellant, however, did not need the CGI video because he admitted two other maps created by Wright to explain how he calculated the speed of both cars at the time of impact. Defendant's Exhibit 44 is the same map as Defendant's Exhibit 43, but the map in Exhibit 44 is placed over a Google image of the accident location, which shows the stop bar and the crosswalk marks in the intersection where the collision occurred. Furthermore, the basic aspects of the collision are easy to understand: one car pulls out into an intersection and is struck broadside by another car. A jury does 70 not need a video to understand the concept of a car running a stop sign. Moreover, as the State argued, the video could have confused or distracted the jury because it shows the Volkswagen approaching the intersection when the Toyota is driving by the stop sign, but Wright did not calculate that measurement and did not testify how far away Appellant's car was when Padilla's car entered the intersection. Thus, the video did not give the jury an accurate assessment of the collision.
For purposes of appeal, we limit our discussion to the version of the video depicting Padilla staying in her car. Appellant's counsel told the trial judge that if she thought the video was prejudicial, "the defense would suggest that we just show the one where there is no ejection."
Appellant argued that the animation was to scale and "[a]s far as the distance, he never gave a distance. The distances came from [the State's] witness, which is contrary to what Mr. Wright's testimony was."
Each file is only sixteen seconds long (eight seconds excluding the version depicting Padilla's body being ejected from her car). Although Wright's testimony regarding the video likely would not have consumed an inordinate amount of time, it would have merely repeated evidence already admitted about his opinion that Padilla caused the collision by running a stop sign. Considering the Gigliobianco factors, we conclude the trial court did not abuse its discretion by excluding the CGI video from evidence.
2. Harmless Error
Even if the trial court abused its discretion by excluding the CGI video, such an error would not entitle Appellant to a new trial because the error is harmless. "Generally, the erroneous admission or exclusion of evidence is nonconstitutional error . . . ." Melgar v. State, 236 S.W.3d 302, 308 (Tex. App.-Houston [1st Dist.] 71 2007 pet. ref'd). When conducting a harm analysis of non-constitutional error flowing from the exclusion of relevant evidence, "an appellate court need only determine whether or not the error affected a substantial right of the defendant." Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000) (quoting Llamas v. State, 12 S.W.3d 469, 471 & n.2 (Tex. Crim. App. 2000)). In assessing the likelihood that the jury's decision was affected adversely by the error, an appellate court should 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. Id.
According to Appellant, the CGI video (Defense Exhibit 46) "was designed to help the jury understand the issue of causation." As previously discussed, there is sufficient evidence that Appellant's intoxication caused the collision, in part, because it slowed his reaction time and impaired his judgment, as demonstrated by the fact he was driving over twice the legal speed limit in a residential neighborhood. The jury could have reasonably concluded that were it not for Appellant's intoxication he would have either been driving slower or would had reacted when Padilla's car entered the intersection.
Moreover, the CGI video was not the only exhibit created to accompany Wright's testimony. Wright also created two maps that showed the approach and 72 departure angles of the vehicles, the point of impact, and the distances and direction each vehicle traveled after impact. Defendant's Exhibit 44 is the same map as Defendant's Exhibit 43, but the map in Exhibit 44 is placed over a Google image of the accident location, which shows the stop bar and the crosswalk marks in the intersection where the collision occurred. After examining the entire record, we have fair assurance that the error did not influence the jury, or it had only a slight effect. Morales, 32 S.W.3d at 867.
Appellant further argues that the exclusion of this evidence deprived him of due process. Appellant did not raise this issue below and therefore he has not preserved it for appeal. See Reyna, 168 S.W.3d at 177.
We overrule Appellant's second issue.
Victim-Impact Evidence
In his fourth issue, Appellant argues the trial court abused its discretion when it allowed the State to introduce improper and irrelevant victim-impact testimony and a photograph of Padilla when she was alive at the guilt-innocence phase of the trial. The decedent's husband, Raul Padilla, testified at trial to identify the decedent. Mr. Padilla testified that he met the decedent in 2002. When the 73 prosecutor asked Padilla how long he and the decedent had been married, Appellant objected to the testimony as irrelevant. The trial court overruled the objection and instructed the prosecutor to limit her questions. Mr. Padilla, however, did not answer the question.
At trial, Appellant argued that both photographs were "more prejudicial than probative." On appeal, Appellant does not cite to Rule 403 or provide any analysis on this point. He argues only that the photographs and Mr. Padilla's testimony were improper victim-impact statements.
The prosecutor then asked Mr. Padilla about the day of the collision. He testified that he was asleep when Padilla left home that morning, but he knew that Padilla was driving to morning mass at 7 a.m. because she told him her plans the night before. Mr. Padilla explained that although Padilla normally attended mass later in the day, she attended the morning service because she was planning to pray a rosary for someone that afternoon. Appellant objected to the line of questioning as irrelevant, and the trial court overruled the objection.
The prosecutor showed Mr. Padilla an autopsy photograph of Padilla's face (State's Exhibit 91) and he identified the woman in the photograph as his wife. The prosecutor then showed Mr. Padilla a second photograph and he explained it was a photograph of his wife when she obtained her United States citizenship. (State's Exhibit 121). When the State offered Exhibit 121 into evidence, Appellant objected that the photograph was irrelevant and "more prejudicial than probative." Appellant argued that the photographs were "only going towards emotional responses from the jury and they're irrelevant." The trial court overruled Appellant's objections. 74
On appeal, Appellant argues the trial court abused its discretion by admitting Padilla's testimony and the photograph of Padilla on the day she became a U.S. citizen because such victim-impact testimony does not tend to make more or less probable the existence of any fact of consequence with respect to guilt or innocence and it is thus irrelevant at the guilt-innocence phase of a trial. Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990); Love v. State, 199 S.W.3d 447, 456- 57 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd); Tex. Evid. R. 401.
The Court of Criminal Appeals' opinion in Matchett v. State, 941 S.W.2d 922 (Tex. Crim. App. 1996) is instructive on this point. In Matchett, the decedent's widow testified that she had been married to the decedent for twenty-five years, they had five children, and her husband was home alone the night of the murder. She also identified her husband in a photograph of him with friends. Id. at 931. The court held that neither the widow's testimony nor her identification of the photograph constituted victim-impact testimony because it did not address the physical, psychological, or economic effect of the crime on the decedent's family. Id.; see also Reynolds v. State, 371 S.W.3d 511, 526 (Tex. App.-Houston [1st Dist.] 2012, pet. ref'd) ("'Victim-impact' evidence, therefore, is evidence concerning the effect of the crime after the crime occurs."); DeLarue v. State, 102 S.W.3d 388, 403 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (stating victim-impact testimony is testimony about physical, psychological, or economic effects of crime on 75 complainant or complainant's family). As in Matchett, Mr. Padilla's testimony that he was the decedent's husband, that he met Padilla in 2002, and his explanation as to why the decedent was driving the morning of the collision does not constitute victim-impact testimony. It did not touch upon the physical, psychological, or economic effects of the crime on Mr. Padilla or the decedent's family. See Matchett, 941 S.W.2d at 931; see also Mukherjee v. State, No. 01-17-00884-CR, 2019 WL 7341673, at *15 (Tex. App.-Houston [1st Dist.] Dec. 31, 2019, pet. ref'd) (mem. op.) ("Rodriguez's sister's testimony about the details of their last breakfast together is not victim-impact testimony because there was no discussion of how the offense affected Rodriguez's family after her death."). Mr. Padilla's identification of the decedent from the photograph taken on the day she became a citizen also does not constitute victim-impact testimony for the same reasons. See Matchett, 941 S.W.2d at 931.
Appellant argues the trial court abused its discretion by allowing the State to admit the photograph of the decedent when she was alive to prove identity. When the State introduced the challenged photograph, Appellant objected that the photograph was irrelevant because the State had already introduced Padilla's autopsy photograph. The admission of photographs depicting victims before their death has been upheld as probative of the identity of the victim. See Fails v. State, 999 S.W.2d 144, 145-47 (Tex. App.-Dallas 1999, pet. ref'd) (holding photograph 76 had some probative value in establishing identity of murder victim even though another photograph had already been admitted). We overrule Appellant's fourth issue.
Suppression of Evidence
In his third issue, Appellant argues the trial court abused its discretion when it denied the suppression of his blood toxicology results and DNA.
A. Blood Alcohol Toxicology Results
Appellant raises two arguments with respect to the suppression of his blood-alcohol toxicology results. First, he argues the trial court abused its discretion when it denied his motion to suppress the blood alcohol toxicology results because the State did not establish a proper chain of custody for the blood sample used for the test and thus, the State failed to prove that it analyzed the correct blood sample. The State argues Appellant did not preserve this issue for our review because he did not object to the admission of the blood-alcohol toxicology results based on the State's failure to establish a chain of custody or otherwise obtain a ruling on any such objection.
If, on appeal, "a defendant claims the trial judge erred in admitting evidence offered by the State, this error must have been preserved by a proper objection and a ruling on that objection." Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003) (quoting Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991); see 77 Tex. R. App. P. 33.1 (to preserve complaint for appellate review, record must show "the complaint was made to the trial court by a timely request, objection, or motion" on which trial court ruled or refused to rule). When the State moved to admit a photograph of two blood vials (State's Exhibit 83) during Deputy Zermeno's testimony, Appellant objected and requested a hearing outside the jury's presence. Appellant argued that there had been two blood draws, the first of which had been suppressed because it was performed without a warrant, and he raised concerns over whether the State had tested the correct blood vials. The record reflects that Appellant was concerned Deputy Zermeno would be testifying about the results of the blood alcohol test that had been performed. When the State clarified that it was only admitting the blood vial photograph through Deputy Zermeno and would not elicit testimony about the results of the test through Deputy Zermeno, Appellant's counsel stated, "If we're not going to go there, then we're okay."
Later, when the State offered the toxicology report with Appellant's blood-alcohol test results (State's Exhibit 84) into evidence through Salazar, Appellant did not object to the admission of the evidence based on any alleged failure to establish a chain of custody. Rather, Appellant objected that the test results were inadmissible because Salazar had not conducted a valid, scientific analysis. After conducting a Kelly hearing off the record "to determine the validity of the [toxicology] results," the trial court held that the "witness has met the qualifications and the requirements 78 of law" and "the techniques used in applying the theory was valid and that they were properly applied in this case, and the scientific theory was valid." The court denied Appellant's objection on the record and the toxicology report was admitted into evidence. To the extent Appellant attempted to object to the admission of State's Exhibit 84 based on the State's alleged failure to establish a chain of custody, that objection was not articulated to the trial court and the trial court never ruled on any such objection. Appellant thus failed to preserve the issue. See Reyna, 168 S.W.3d at 177.
Second, Appellant contends the trial court abused its discretion when it denied his motion to suppress the blood alcohol toxicology results because although the State obtained a search warrant to extract his blood, the State did not obtain a second warrant to analyze the blood sample, which Appellant argues is required before the State can analyze the private contents of his blood. After Appellant filed his brief, the Court of Criminal Appeals resolved this issue in Crider v. State, 607 S.W.3d 305 (Tex. Crim. App. 2020). Appellant acknowledges in his reply brief that Crider resolved this issue and thus the State was not required to obtain a new warrant before testing his blood sample for the presence of alcohol. See id. at 307 (holding magistrate "who has approved a search warrant for the extraction of a blood sample, based upon a showing of probable cause to believe that a suspect has committed the 79 offense of driving while intoxicated, has necessarily also made a finding of probable cause that justifies chemical testing of that same blood").
We overrule Appellant's challenge to the suppression of his blood alcohol toxicology results.
B. DNA
Appellant raises two arguments for the suppression of his DNA. He argues the trial court abused its discretion when it denied the suppression of his DNA because even though the State had a warrant for his blood draw, the State failed to obtain a second warrant to obtain a DNA sample from his blood sample. He also argues the State failed to establish a chain of custody with respect to the blood sample used to obtain the DNA.
Even if the trial court abused its discretion by admitting evidence of Appellant's DNA, we hold the admission of this evidence was harmless. When a trial court erroneously denies a motion to suppress and admits evidence obtained in violation of the Fourth Amendment, the error is constitutional and subject to the harmless-error analysis under Rule of Appellate Procedure 44.2(a). See Tex. R. App. P. 44.2(a); Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001). Constitutional error is harmful unless the reviewing court determines, beyond a reasonable doubt, that the error did not contribute to the conviction or punishment. Tex.R.App.P. 44.2(a). When applying the harmless error test, we must "ask 80 whether there is a 'reasonable possibility' that the error might have contributed to the conviction." Love v. State, 543 S.W.3d 835, 846 (Tex. Crim. App. 2016). The analysis should not focus on the propriety of the outcome at trial. Id.; see also Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007) ("[T]he question for the reviewing court is not whether the jury verdict was supported by the evidence."). Rather, "the question is the likelihood that the constitutional error was actually a contributing factor in the jury's deliberations in arriving at that verdict-whether, in other words, the error adversely affected 'the integrity of the process leading to the conviction.'" Scott, 227 S.W.3d at 690 (quoting Harris v. State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989)). In doing so, we must ask ourselves "whether there is a reasonable possibility that the . . . error moved the jury from a state of non-persuasion to one of persuasion on a particular issue." Scott, 227 S.W.3d at 690; see also Love, 543 S.W.3d at 846 (stating reviewing court "should calculate as much as possible the probable impact [of the error] on the jury in light of the existence of other evidence"). "A ruling that an error is harmless is, in essence, an assertion that the error could not have affected the jury." Wells v. State, 611 S.W.3d 396, 410 (Tex. Crim. App. 2020) (citing Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000)); see also Wall v. State, 184 S.W.3d 730, 746 (Tex. Crim. App. 2006).
When deciding whether an error of constitutional dimension contributed to the conviction or punishment, courts consider non-exclusive factors, such as, the 81 nature of the error, whether the error was emphasized by the State, the probable implications of the error, and the weight the jury would likely have assigned to the error during its deliberations. Snowden v. State, 353 S.W.3d 815, 822 (Tex. Crim. App. 2011). Further, "the presence of overwhelming evidence supporting the jury's verdict can also be a factor in the harmless error calculation." Wells, 611 S.W.3d at 410 (citing Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002)). Reviewing courts should consider any and every circumstance apparent in the record that logically informs the harmless error determination, and the entire record is to be evaluated in a neutral manner and not in the light most favorable to the prosecution. Love, 543 S.W.3d at 846.
Because the error Appellant urges relates to the admission of evidence, we specifically consider whether the record contains other properly admitted evidence that supports the material fact to which the inadmissible evidence was directed. See Wall, 184 S.W.3d at 746 ("Although the most significant concern is the error and its effect, the presence of other overwhelming evidence that was properly admitted which supports the material fact to which the inadmissible evidence was directed may be an important factor in the evaluation of harm."). The State offered Appellant's DNA evidence through Galioto, who testified that Appellant's DNA was on the Volkswagen's driver's front airbag. We thus begin our analysis by 82 reviewing other evidence showing Appellant was driving the Volkswagen when the collision occurred.
Viewed in isolation, other evidence Appellant was driving when the collision occurred is strong. The most damning evidence is Lavatai's unequivocal testimony that Appellant was driving the Volkswagen at the time of the collision and there was no one else in the car when they left the after-hours bar. Lavatai testified that he and Appellant had gone out drinking the night before the collision. Appellant drove them to the first bar in the Volkswagen, which was Appellant's grandmother's car. When the bar closed, Appellant again got behind the wheel of the Volkswagen and drove Lavatai to an after-hours bar where the two continued to drink until the bar closed around 6 a.m. or 7 a.m. Lavatai testified, "[Appellant] was taking me home from there." According to Lavatai, he was sitting in the passenger seat and Appellant was driving the car. When asked if there was "anybody else in that car with you at that time," Lavatai responded, "No."
STATE: And after you left the after-hours bar, there was no one else in that car besides you and [Appellant]-
LAVATAI: No.
STATE: -at any point in time?
LAVATAI: No.
STATE: It was only you and [Appellant]?
LAVATAI: Yes.83
STATE: And [Appellant] was driving the black car?
LAVATAI: Yes, he was.
While Appellant told Deputy Anders that a Caucasian male was driving the car when the collision occurred, no one saw this alleged male either in or near the car, or anywhere at the scene. Lavatai, Humphrey, and Perez all testified consistently that no third male was in or near the car. And none of the officers on the scene reported seeing this third male.
Although Lavatai testified that he saw someone running after the collision, Lavatai did not say that the person was near the car or running away from the car, and he reiterated that no one else had been in the car between the time he and Appellant left the after-hours bar and the collision.
In addition to direct testimony placing Appellant behind the wheel, physical evidence also indicated Appellant was driving the car. The amount of slack in the Volkswagen's seatbelts and the position of the driver and front passenger seats support Lavatai's testimony that Appellant was driving the car. Sergeant Cheek-McNeal also testified that Appellant and Lavatai had seatbelt marks on their bodies suggesting both men were wearing seatbelts at the time of the collision, and that Appellant was seated on the driver's side of the car, while Lavatai was seated on the passenger side. She also testified that the seatbelt on the front passenger seat had a lot of slack whereas the driver's seatbelt had noticeably less slack, indicating to her that the person who was sitting in the front passenger seat was larger in stature than 84 the driver. The evidence reflected Lavatai is larger in stature than Appellant. Sergeant Cheek-McNeal testified that unlike the front seat seatbelts, the seatbelt corresponding to the seat directly behind the driver did not have any slack and there was no evidence "consistent with anybody being in the back seat" when the collision occurred. According to Sergeant Cheek-McNeal, if anyone had been sitting in the back seat wearing a seatbelt when the collision occurred, the seatbelt would have had some amount of slack.
Sergeant Cheek-McNeal also measured the amount of legroom in the driver and front passenger seats and determined that the distance from the brake pedal to the edge of the driver's seat was 20 inches and the distance from the floorboard to the edge of the from passenger's seat was 25 inches. Thus, the position of the driver's seat and the passenger's seat also suggested that Appellant was sitting in the driver's seat and Lavatai, who was much larger than Appellant, was seated in the front passenger's seat.
Deputy Anders agreed with Sergeant Cheek-McNeal that Appellant's and Lavatai's seatbelt marks suggested Lavatai was on the passenger side of the vehicle and Appellant on the driver's side when the collision occurred. According to Deputy Anders, the amount of slack in the seatbelts and the position of the driver and front passenger seats also indicated that the person sitting in the front passenger's seat was taller and larger in stature than the driver. He also testified that the lack of slack in 85 the seatbelt corresponding to the seat directly behind the driver indicated that no one was wearing the seatbelt during the collision. And if someone was sitting unbelted behind in the back seat, Deputy Anders testified the backseat passenger "would have launched themselves into the front" during the highspeed collision and likely sustained serious injuries and there would be damage on the back of the driver's seat.
There is also testimony from eyewitnesses at the scene immediately after the collision, including Perez who testified that he saw Appellant "come out" of the driver's side of the Volkswagen after the collision and Lavatai "come out" of the passenger side afterwards. Although there were some discrepancies in Perez's and Humphrey's testimony over whether Perez saw Appellant actually get out of the driver's side door, and which side of the car Appellant and Lavatai were standing near after the collision, Perez and Humphrey were adamant that they did not see more than two men near the Volkswagen. When asked if it was possible that he "could have missed maybe somebody else running off in a different direction," Perez answered, "No." Similarly, when Humphrey was asked if it was possible that he might have missed seeing a third person get out of the Volkswagen and run, 86 Humphrey testified that he could not have missed seeing a third person because the Volkswagen's doors were still closed when he parked his truck.
Any apparent discrepancies can also be explained by evidence at trial indicating the chaotic nature of the accident scene and the fact that the Volkswagen had spun around 180 degrees during the collision and was "pointed the wrong direction in the northbound lane just after the impact."
Thus, the evidence overwhelmingly demonstrated that Appellant and Lavatai were the only men in the Volkswagen when the collision occurred. Both men were wearing seatbelts and the slack in the front seatbelts indicated that Appellant was sitting on the driver's side and Lavatai on the passenger's side. There was no slack in the backseat seatbelts that indicated that no one was sitting there when the accident occurred and, if anyone had been sitting there unbuckled, they would have been seriously injured in the high-speed collision. Neither Appellant nor Lavatai were injured, and both had seatbelt marks, indicating that they were buckled in when the collision occurred and sitting in the front.
Although Appellant argued that the amount of slack in the passenger side seatbelt could have been the result of someone sitting forward in the seat when the collision occurred, this would not explain how Lavatai, who is larger in stature than Appellant, could have been sitting in the driver's seat, given that the seatbelt had significantly less slack and there was less leg room than the passenger's seat. Moreover, Appellant never told any of the officers on the scene that Lavatai was the driver. Thus, the evidence also overwhelmingly demonstrates Lavatai could not have been the driver. 87
As previously discussed, Lavatai's testimony alone is sufficient to support the jury's finding that Appellant was the driver, but the question before us for purposes of harmful-error analysis is not whether the jury's verdict is supported by the evidence. See Scott, 227 S.W.3d at 690. The question we must decide is whether the erroneous admission of Appellant's DNA evidence "was actually a contributing factor in the jury's deliberations in arriving at that verdict-whether, in other words, the error adversely affected 'the integrity of the process leading to the conviction.'" Id. (quoting Harris, 790 S.W.2d at 587).
The type of error alleged here was the erroneous admission of evidence. Although the evidence in question is DNA, which could suggest that a jury may give it more weight than other evidence, there is significant testimony in the record undermining the value of the DNA evidence with respect to whether it demonstrates Appellant was the driver of the car when the collision occurred. It is undisputed that the Volkswagen belongs to Appellant's grandmother, and further that Appellant drove the car to two bars before the collision. One would thus expect to find Appellant's DNA on the steering wheel. As Galioto testified, "I think it's reasonable to suppose that someone could be a trace contributor" if they have driven the car.
There was also testimony that Appellant's DNA could have transferred from the steering wheel to the deployed airbag when the front driver airbag touched the steering wheel. Moreover, because the State analyst swabbed the entire face of the 88 driver's front airbag, it was impossible for the State expert to identify where on the airbag Appellant's DNA had been deposited. The DNA undoubtedly places Appellant in the car-a fact that is not in dispute. Although Appellant was a "major contributor to the [DNA found on the] driver airbag," Appellant's expert testified he could not definitively say with a high degree of scientific certainty who was driving the car at the time of the accident based on the DNA evidence. Moreover, there was evidence that the driver's front airbag also contained DNA from an unknown individual. The side curtain airbag for the backseat behind the driver was not removed and never tested for DNA and the driver's side front seat curtain airbag had DNA from three contributors, but there was not enough information for Galioto to draw any conclusions as to the identity of the contributors.
The State mentioned the DNA evidence in closing, but it was not the focus of the argument. Appellant's DNA was only one piece of the evidence indicating Appellant was the driver. The State gave equal, if not more time, to the other evidence, including Lavatai's testimony. We further note that the erroneous admission of DNA evidence has been held harmless in other cases. See Meggs v. State, 438 S.W.3d 143, 147 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd) (holding erroneous admission of DNA evidence was harmless when other physical and DNA evidence established defendant was at murder scene and defendant conceded he was at murder scene); see also Freeman v. State, No. 01-18-00610-CR, 89 2020 WL 894453, at *7 (Tex. App.-Houston [1st Dist.] Feb. 25, 2020, pet. ref'd) (mem. op.) (holding erroneous admission of DNA evidence was harmless when there was ample evidence of defendant's guilt and admission of defendant's DNA profile played minor role in case).
With respect to the weight the jury would likely have assigned to evidence of Appellant's DNA during its deliberations, the record indicates that during its deliberations, the jury asked to see the Jack-In-The-Box video stills and testimony from Deputy Anders, Perez, and Humphrey. The jury did not request testimony or evidence regarding the DNA found in the Volkswagen. Compare Johnson v. State, 899 S.W.2d 250, 252-53 (Tex. App.-Houston [14th Dist.] 1995, no pet.) (reviewing admission of evidence of seizure of ten dollar bill from defendant for constitutional harm and stating that given that jury had requested copies of testimony regarding ten dollar bill, "we cannot say the jury did not rely on or consider the ten dollar bill in reaching the verdict. It seems clear that the erroneous admission of the ten dollar bill prejudiced the jurors' decision-making process and disrupted their orderly evaluation of the evidence").
Viewing the record in a neutral, impartial, and even-handed manner, we conclude beyond a reasonable doubt that the trial court's error, if any, in not suppressing evidence of Appellant's DNA obtained from Appellant's blood sample was harmless. See Tex. R. App. 44.2(a); Love, 543 S.W.3d at 846. 90
We overrule Appellant's second issue with respect to the suppression of his DNA.
Jury Instruction
In his fifth issue, Appellant argues the trial court was biased against him and abused its discretion when it denied his request for an Article 38.23 jury instruction.
Article 38.23 of the Texas Code of Criminal Procedure provides that "[n]o evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or law of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case." Tex. Code Crim. Proc. 38.23(a). The purpose of an Article 38.23 instruction is to enable the jury to disregard unlawfully obtained evidence. See Dao v. State, 337 S.W.3d 927, 940 (Tex. App.-Houston [14th Dist.] 2011, pet. ref'd).
To be entitled to an Article 38.23(a) instruction, "the defendant must show that (1) an issue of historical fact was raised in front of the jury; (2) the fact was contested by affirmative evidence at trial; and (3) the fact is material to the constitutional or statutory violation that the defendant has identified as rendering the particular evidence inadmissible." Robinson v. State, 377 S.W.3d 712, 719 (Tex. Crim. App. 2012). When a disputed, material issue of fact is successfully raised, the terms of the statute are mandatory, and the jury must be instructed accordingly. Id. 91 Evidence to justify an Article 38.23(a) instruction can derive "from any source," even if the evidence is "strong, weak, contradicted, unimpeached, or unbelievable." Id. (quoting Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004)). However, to raise a disputed fact issue warranting an Article 38.23(a) jury instruction, there must be some affirmative evidence that puts the existence of that fact into question. Id. When the issue raised by the evidence at trial does not involve controverted historical facts, but only the proper application of the law to undisputed facts, that issue is properly left to the determination of the trial court. Id.
Appellant requested an Article 38.23 instruction during the charge conference. Although the State initially agreed to the instruction, the State later retracted its agreement and objected to inclusion of the instruction in the charge. The trial court then asked Appellant to articulate any factual disputes warranting inclusion of the Article 38.23 instruction.
On appeal, Appellant claims there was a fact issue "regarding who was operating the vehicle" and "whether or not the proper blood was analyzed." But those were not the fact issues Appellant described to the trial court. Appellant argued there were three fact questions that should be submitted to the jury under the Article 38.23 instruction. 92
Appellant's counsel first argued there was a fact question as to whether the State had obtained a "DNA warrant" and "whether the toxicology warrant itself will suffice to get DNA from the blood." But it is evident from the record that the alleged dispute was not over whether a separate DNA warrant existed. Indeed, defense counsel later acknowledged that no witness had testified that a "DNA warrant" existed. Rather, the dispute was over whether the State needed such a warrant to begin with, or whether the State could rely on the "toxicology warrant" to get a DNA sample from Appellant's blood. That is a legal question for the trial court and not a factual issue warranting the requested Article 38.23 instruction.
The "toxicology warrant" refers to the warrant Deputy Zermeno obtained to draw Appellant's blood.
Appellant's counsel also argued there was a factual dispute as to whether there was evidence to suggest a third person was in the Volkswagen because Sergeant Cheek-McNeal testified there was no such evidence and "[s]he used that fact to determine whether there was probable cause to arrest [Appellant]." Appellant argued Deputy Anders testified "there was evidence to suggest a third person was in the vehicle" because Appellant told him a third person was driving, and thus there was a fact issue as to the "legality of the arrest." As the State points out, however, it was Deputy Anders who arrested Appellant, not Sergeant Cheek-McNeal. There 93 was no factual dispute as to whether Deputy Anders knew there was evidence to suggest a third person was in the vehicle when he arrested Appellant.
Because Appellant did not raise a disputed, material issue of fact warranting an Article 38.23 instruction, the trial court did not abuse its discretion by refusing to include the instruction in the charge.
We overrule Appellant's fifth issue.
Appellant further contends that the trial court's denial of his request for a jury instruction under Article 38.23 is evidence of judicial bias. We address this argument in Appellant's eleventh issue.
Questioning Witnesses About Chain of Custody
In his seventh issue, Appellant argues the trial court abused its discretion when it denied his request "to question witnesses outside the presence of the jury regarding the chain of custody of the two blood tubes and blood draws." The blood was analyzed to determine Appellant's BAC, as set forth in the toxicology report, and to extract DNA to allow the laboratory to compare Appellant's DNA to DNA found in the Volkswagen. As previously discussed in Appellant's third issue, Appellant did not preserve his complaint regarding the admission of the toxicology report based on chain-of-custody arguments. The report was admitted without objection. With respect to the DNA evidence extracted from the blood vial, we also held in Appellant's third issue that any error in allowing the DNA evidence into evidence was harmless. 94
Moreover, as the State argues, Appellant's seventh issue is multifarious and inadequately briefed. In his opening brief, Appellant argues the trial court abused its discretion "[t]hroughout the entire trial" by preventing him from questioning several of the State's witnesses outside the presence of the jury to "properly document the chain of custody on the blood" and determine whether the State analyzed the non-suppressed blood. Appellant then provides a string cite to over 100 pages of the reporter's record, spanning over five volumes. These portions of the record include among other things, arguments on Appellant's motion to suppress his DNA, what Appellant characterizes as a subsequent oral motion to suppress his DNA, Appellant's motion for mistrial, Kelly hearings, and Appellant's attempts to question two of his own experts in front of the jury. These pages encompass multiple rulings on multiple grounds, including objections from the State on relevance, speculation, lack of authentication, and lack of predicate, and arguments from Appellant that certain evidence was admissible for purposes of impeachment.
One of these expert witnesses is Amanda Culbertson, who Appellant does not mention in his brief.
The issue is multifarious. State v. Frias, 511 S.W.3d 797, 806 (Tex. App.- El Paso 2016, pet. ref'd) (citing Mays v. State, 318 S.W.3d 368, 385 (Tex. Crim. App. 2010)) (stating multifarious issue embraces more than one specific ground). It is well established that by combining more than one contention in a single issue, an 95 appellant risks rejection on the ground that nothing is presented for review. See Wood v. State, 18 S.W.3d 642, 649 n.6 (Tex. Crim. App. 2000) (holding two separate arguments combined in single issue were inadequately briefed and multifarious); Foster v. State, 101 S.W.3d 490, 499 (Tex. App.-Houston [1st Dist.] 2002, no pet.) (holding three separate arguments combined into single issue were inadequately briefed and multifarious).
Moreover, although Appellant argues the trial court abused its discretion by preventing him from questioning certain witnesses during the Kelly hearings-who are not identified in this issue-he does not cite to any relevant authority with respect to a trial court's ability to limit questioning during one of these types of hearings or any authority showing that his lines of questioning were appropriate in each instance. In his reply brief, Appellant attempts to clarify that the issue attempts to raise concerns regarding the trial court's "refus[al], as briefed, to allow Appellant to discuss the suppressed blood tube outside the presence of the jury for the purpose of the appellate record." Three of cases he cites address a party's right to cross-examine witnesses in the presence of the jury to expose a witness' bias, motive, or interest to testify. Furthermore, most of Appellant's record citations relate to his attempts to question witnesses outside the jury's presence, and the two witnesses that Appellant attempted to question in front of the jury were his own expert witnesses. 96
Because Appellant has presented a multifarious argument without proper citation to the record or relevant authority, this issue has been inadequately briefed and we decline to address it. See Tex. R. App. P. 38.1(i) (brief must contain "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"); see also Lawton v. State, 913 S.W.2d 542, 554 (Tex. Crim. App. 1995) ("Appellant leaves us to find error and argue his case for him; this is inadequate briefing, and as such, it presents nothing for our review."), overruled on other grounds by Mosley v. State, 983 S.W.2d 249(Tex. Crim. App. 1998).
We overrule Appellant's seventh issue.
Sixth Amendment
In his eighth issue, Appellant argues he was denied his Sixth Amendment right to confront Salazar and Galioto, both of whom testified for the State.
A. Salazar
Appellant argues he was denied his Sixth Amendment right to confront Salazar because Salazar returned to his home in Indiana after testifying for the State and he was unavailable for recall during Appellant's defense case. The State responds that Appellant did not preserve this argument for appeal because he did not request a writ of attachment for Salazar.
Under both the United States and the Texas Constitution, a defendant has a right to compulsory process to call witnesses to testify on the defendant's behalf. 97 U.S. Const. amend. VI; Tex. Const. art. I § 10; Etheridge v. State, 903 S.W.2d 1, 7 (Tex. Crim. App. 1994); Campbell v. State, 551 S.W.3d 371, 377 (Tex. App.- Houston [14th Dist.] 2018, no pet.). Under the Texas Code of Criminal Procedure, a defendant must properly serve a subpoena on a witness before the defendant has a right to compulsory process to compel the witness' attendance at trial if the witness failed to appear. Clark v. State, 305 S.W.3d 351, 355-56 (Tex. App.-Houston [14th Dist.] 2010, aff'd 365 S.W.3d 333, 340 (Tex. Crim. App. 2012). The issuance of a subpoena inures to the benefit of the opposing party if the opposing party desires to call or examine the witness. Gentry v. State, 770 S.W.2d 780, 785 (Tex. Crim. App. 1988); Campbell, 551 S.W.3d at 377-78.
The Court of Criminal Appeals has established a three-step procedure for preserving error when a subpoenaed witness does not appear for trial. Sturgeon v. State, 106 S.W.3d 81, 85 (Tex. Crim. App. 2003) (citing Erwin v. State, 729 S.W.2d 709, 714 (Tex. Crim. App. 1987), superseded by statute on other grounds as stated in Burks v. State, 876 S.W.2d 877 (Tex. Crim. App. 1994)); Kinnett v. State, 623 S.W.3d 876, 905 (Tex. App.-Houston [1st Dist.] 2020, pet. ref'd). First, the party must request a writ of attachment, which the trial court must deny. Sturgeon, 106 S.W.3d at 85; Kinnett, 623 S.W.3d at 905. Second, the party must show what the witness would have testified to. Sturgeon, 106 S.W.3d at 85; Kinnett, 623 S.W.3d at 905. Third, the testimony that the witness would have given must be relevant and 98 material. Sturgeon, 106 S.W.3d at 85; Kinnett, 623 S.W.3d at 905. If all three requirements are met, reversible error exists unless the error made no contribution to the conviction or the punishment. Sturgeon, 106 S.W.3d at 85; Kinnett, 623 S.W.3d at 905.
Appellant does not dispute that he did not request a writ of attachment for Salazar. Rather, Appellant contends that Sturgeon is distinguishable because that case involved a defense witness who was held over by the court for a future court hearing, whereas "Salazar was a State witness, who lived in Indiana, that absconded the county after being instructed to remain subject to recall; he did not fail to answer his subpoena." Appellant's argument is not persuasive because, as Appellant acknowledges in his reply brief, the State subpoenaed Salazar. See Gentry, 770 S.W.2d at 785 ("One disobeys a subpoena if he fails to appear on the date noted in the subpoena or fails to be present any day subsequent thereto.") (emphasis added). Even if Salazar was not properly subpoenaed as Appellant contends in his reply brief, this does not alter the fact that Appellant never requested a writ of attachment. See Belle v. State, 543 S.W.3d 871, 877 (Tex. App.-Houston [14th Dist.] 2018, no pet.) ("The record does not demonstrate Scott was properly subpoenaed. Even so, appellant never requested a writ of attachment. Accordingly, nothing is preserved for our review."). Because Appellant did not request a writ of attachment, and the 99 trial court thus did not rule on any such request, we hold Appellant did not preserve this issue for our review.
We further note that Appellant was able to cross-examine Salazar when he testified during the State's case in chief. Appellant's complaint is that he was unable to recall Salazar later during trial.
B. Galioto
In the second part of his eighth issue, Appellant argues his Sixth Amendment right to confront witnesses was also violated "when the trial court allowed the State to put [Galioto] on the witness stand under the guise of an 'offer of proof, '" to prevent Appellant from cross-examining him and eliciting adverse testimony. Appellant contends that the State's offer of proof "was nothing more than a well-planned ruse by [the prosecutor] to attempt to cure her chain of custody issues regarding the blood." He further contends, "Because [the prosecutor] used this elaborate ruse to prevent Appellant from subjecting Galioto to the crucible of rigorous cross examination, Appellant was denied his right to confront a witness against him." Appellant does not explain or provide any authority as to how the court's decision to allow the State to make an allegedly improper offer of proof violated his rights under the Confrontation Clause. See Tex. R. App. 38.1(i) (stating appellate briefs "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"). Therefore, Appellant waived this issue for our review. See id. 100
We further note that even if Appellant had not waived this issue, he would not be entitled to relief because, as previously discussed in Appellant's third issue, Appellant did not preserve his challenge to the admission of the blood toxicology report and any error with respect to the admission of the DNA evidence was harmless.
C. Other Witnesses
Appellant further contends:
As briefed supra in ISSUE FIVE, Appellant was also denied his right to confront multiple witnesses outside the presence of the jury and in front of the jury regarding the chain of custody and whether or not the blood entered into evidence for Appellant's BAC and DNA was from the correct blood draw. Because Appellant was denied this constitutional right, as briefed supra, he was harmed and this Court should reverse and remand for a new trial.
Appellant's fifth issue addresses the trial court's denial of Appellant's request for an Article 38.23 instruction. As the State points out, Appellant is most likely attempting to refer to his seventh issue. Even so, Appellant has not provided any argument or analysis with respect to why his alleged inability to question unidentified witnesses violated his Sixth Amendment rights. It is not the court's role to construct such an argument for Appellant. See Tex. R. APP. 38.1(i) (stating appellate briefs "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"). 101
As is the case with Appellant's inability to question Galioto during the State's offer of proof, even if Appellant had not waived his argument with respect to the unidentified witnesses, Appellant would not be entitled to relief because Appellant did not preserve his challenge to the admission of the blood toxicology report and any error with respect to the admission of the DNA evidence was harmless.
We overrule Appellant's eighth issue.
Punishment Witnesses and Jury Deliberation
In his sixth issue, Appellant argues the trial court abused its discretion when it denied his counsel the opportunity to review and provide input in response to jury requests made during the guilt-innocence phase deliberations and when it denied him adequate time to secure the presence of punishment-phase witnesses. Appellant argues the trial court denied him due process because it did not provide Appellant with a copy of communications sent to the jury in violation of Article 36.27 of the Texas Code of Criminal Procedure.
Article 36.27 states
When the jury wishes to communicate with the court, it shall so notify the sheriff, who shall inform the court thereof. Any communication relative to the cause must be written, prepared by the foreman and shall be submitted to the court through the bailiff. The court shall answer any such communication in writing, and before giving such answer to the jury shall use reasonable diligence to secure the presence of the defendant and his counsel, and shall first submit the question and also submit his answer to the same to the defendant or his counsel or objections and exceptions, in the same manner as any other written instructions are submitted to such counsel, before the court gives such102
answer to the jury, but if he is unable to secure the presence of the defendant and his counsel, then he shall proceed to answer the same as he deems proper. The written instruction or answer to the communication shall be read in open court unless expressly waived by the defendant.
All such proceedings in felony cases shall be a part of the record and recorded by the court reporter.Tex. Code Crim. Proc. art. 36.27. Appellant has the burden of presenting a record reflecting the error requiring reversal based on a trial court's alleged error in communicating with the jury. See Word v. State, 206 S.W.3d 646, 651-52 (Tex. Crim. App. 2006). When a silent record is presented, a presumption the trial court complied with the statutory requirements of Article 36.27 is created. Id.; see Moore v. State, 278 S.W.3d 444, 452 (Tex. App.-Houston [14th Dist.] 2009, no pet.); see also Diehl v. State, No. 04-07-00608-CR, 2008 WL 2260833, at *2 (Tex. App.- San Antonio June 4, 2008, no pet.) (stating presumption applies "even when the record is silent as to whether the appellant was aware of the communication between the trial court and the jury").
Absent a timely objection on the trial court's compliance with Article 36.27, nothing is preserved for appellate review. See Word, 206 S.W.3d at 651-52 (holding that absent affirmative indication in record establishing that defendant raised Article 36.27 violation at trial, objection is procedurally barred). Because Appellant raises 103 this issue for the first time on appeal, we hold Appellant preserved nothing for our review. See id.
We note the record does not reflect that anything was submitted to the jury during deliberations. Rather, the record reflects the jury requested still images of the Jack-in-the-Box video and certain testimony during its first day of deliberations. The trial court discussed these requests with the State and Appellant's counsel on the record. The trial court then called the jury back and dismissed them for the day. The next morning, the jury deliberated for another half hour and then returned a guilty verdict without waiting for the materials they had requested.
Appellant also argues the trial court abused its discretion when it did not delay the punishment phase of trial to allow witnesses to arrive at the courthouse. After the State rested its case during the punishment phase of the trial, Appellant's counsel informed the court that Appellant's witnesses were stuck in traffic due to rain. He requested that the court give the witnesses more time to arrive. The trial judge denied the request, noting the court had taken a break earlier that day after the verdict came in and Appellant had two hours to get his witnesses to the courthouse.
To preserve a complaint about a trial court's denial of a continuance for a missing witness, a defendant must advise the trial court, at a minimum, who the missing witnesses are and what their testimony will be. Harrison v. State, 187 S.W.3d 429, 433-35 (Tex. Crim. App. 2005) (holding motion for continuance requesting additional time to locate witness, explaining information counsel hoped to obtain from that missing witness was sufficient to advise trial court of defendant's request and grounds therefor and therefore preserved error for appellate review). 104
While Appellant's counsel informed the court that "[w]e have witnesses on the way. They're stuck in traffic. We have to give them time to get here, Your Honor," he did not identify any of the missing witnesses or inform the court what they would testify to when they arrived. Appellant thus preserved nothing for our review. See id.
We note Appellant testified during the punishment phase of the trial and also called another witness to testify. Thus, Appellant was able to introduce some mitigating evidence during the punishment phase of the trial.
We overrule Appellant's sixth issue.
Hearing on Motion for New Trial
In his ninth issue, Appellant argues the trial court abused its discretion by not holding a hearing on his motion for new trial. The purpose of a hearing on a motion for new trial is to decide whether the cause should be retried and to prepare a record for appeal. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). Such a hearing is not an absolute right. Id. To be entitled to a hearing, the movant must raise matters not determinable from the record and establish reasonable grounds showing he could be entitled to relief. Id. at 339. The motion must be supported by an affidavit specifically setting out the factual basis for the claim. Id. Affidavits that are conclusory in nature and unsupported by facts do not provide the requisite notice of the basis for the relief claimed. Id. We review a trial court's denial of a hearing on a motion for new trial for an abuse of discretion. Id. We reverse only 105 when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Id.
On appeal, Appellant asserts that he raised four issues in his motion for new trial that are not determinable from the record: (1) whether the correct blood was analyzed, (2) whether a proper search warrant was obtained for Appellant's DNA, (3) jury misconduct in deliberations, and (4) whether Appellant's demonstrative exhibit was to scale. Appellant does not explain in his appellate briefing or his motion for new trial why these issues required further factual determination. The other issues Appellant identified on appeal as warranting a hearing on his motion for new trial relate to adverse trial rulings and the correctness of those rulings is determinable from the record.
Appellant's motion for new trial and attachments are more than 600 pages long.
As concerns Appellant's allegations of jury misconduct, when such issue is raised in a motion for new trial, the complaining party must support the allegation with an affidavit from a juror, or an adequate excuse for why he could not do so. See McIntire v. State, 698 S.W.2d 652, 658 (Tex. Crim. App. 1985); State v. Sanders, 440 S.W.3d 94, 105 (Tex. App.-Houston [14th Dist.] 2013, pet. ref'd) (reversing trial court's grant of new trial where defendant alleged juror misconduct but failed to provide affidavit from juror). The only affidavit Appellant submitted in support of his claim of juror misconduct was from Appellant's counsel. Because Appellant 106 did not support his juror misconduct allegation with an affidavit from a juror or provide an adequate excuse for why he could not do so, the trial court did not err by not holding an evidentiary hearing on Appellant's motion for new trial on this issue. See McIntire, 698 S.W.2d at 658; Sanders, 440 S.W.3d at 105. We overrule Appellant's ninth issue.
Questioning of Sergeant Cheek-McNeal
In his tenth issue, Appellant argues the trial court abused its discretion "when it did not allow Appellant to ask questions of a witness in an offer of proof or in front of the jury." Appellant argues the trial court prevented him from impeaching Sergeant Cheek-McNeal in front of the jury and further limited Appellant's questioning of a witness during an offer of proof. He points to the following exchange in support:
Although Appellant only identifies the Court's first statement, we have included additional statements for context.
COURT: No questions about the seat belt, no questions about the third person, but it will be very limited as to, I think, the mass. But I do think-State, of course, you can-when you cross or-here is the Court's concern. I don't want the jury to be misled-
DEFENSE: Absolutely.
COURT: -that they relied on her measurements, that the deputy relied on her measurements.
DEFENSE: And I'll make that very clear when I put that in direct, that he didn't rely on them. I just wanted to see how she did107
her measurements, especially when it comes to the center of mass of the vehicle.
COURT: All right. So I'll go ahead and allow those, just those questions, limited questions.
Sergeant Cheek-McNeal did not testify in front of the jury after this discussion.
In his briefing Appellant does not identify the questions he was prevented from asking Sergeant Cheek-McNeal in front of the jury, identify the State's objections to the testimony, or address the propriety of the trial court's rulings on the objections. He therefore waived this issue. See Tex. R. App. P. 38.1(i) (stating appellate brief must contain "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record").
Appellant also contends that the "[t]he trial court significantly limited the testimony [during the offer of proof] to prevent Appellant from getting the matters on the record for appellate purposes by sustaining the State's objections." Appellant does not cite to any authorities in support, identify the State's objections, or address the propriety of the trial court's rulings on the specific objections. See id.
Appellant then contends he "was denied due process when the trial court abused its discretion and would not let Appellant impeach Cheek-McNeal in front of the jury and then limited the scope of Appellant's offer of proof." Other than citing to the Fifth and Fourteenth Amendments, however, Appellant does not cite to any authority supporting his claim that the limitations the trial court imposed 108 deprived him of due process. See Tex. R. App. P. 38.1(i) (stating appellate brief must contain "clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"). Therefore, Appellant has waived this issue for our review. See id.
We overrule Appellant's tenth issue.
Judicial Bias
In his eleventh issue, Appellant argues he is entitled to a new trial because the trial judge was biased against him.
A. Standard of Review
The federal and state constitutions guarantee a defendant the right to an impartial judge. See Abdygapparova v. State, 243 S.W.3d 191, 208 (Tex. App.- San Antonio 2007, pet. ref'd) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), and Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006)). When a claim of judicial bias is raised, we review the record to determine whether it shows the judge's bias or prejudice denied the defendant due process. Abdygapparova, 243 S.W.3d at 198. Absent a strong showing to the contrary, we presume the trial judge was neutral and impartial. Id. Unfavorable rulings do not alone show judicial bias or prejudice. Instead, the judicial ruling must "connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to 109 possess . . . or because it is excessive in degree." Id. (quoting Liteky v. United States, 510 U.S. 540, 550 (1994)); see also Avilez v. State, 333 S.W.3d 661, 675 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd).
B. Analysis
Appellant argues he is entitled to a new trial because the trial judge was biased against him as evidenced by the fact the trial judge "foreclosed the opportunity for Appellant to cross examine witnesses outside the presence of the jury, made all critical rulings in favor of the State, did not provide Appellant a hearing on his motion for new trial, did not let Appellant cross examine witnesses in an offer of proof, and reversed her ruling on the 38.23 jury instruction." According to Appellant, the trial judge's bias is best illustrated by the court's denial of his request to include an Article 38.23 instruction in the jury charge. Appellant points to the following exchange
The record reflects that the trial court did not "reverse" her ruling on the Article 38.23 instruction. Although the State initially agreed to the instruction, it later retracted its agreement and objected to the instruction. The trial court then heard arguments from both parties and denied Appellant's request for an Article 38.23 jury instruction. Although the trial court's reasoning changed, its ruling did not. The trial court denied the request.
COURT: …Okay. Here is the Court's ruling. After careful consideration, the Court is going to-okay. At this time, the Court will-it will deny the 38.23 jury instruction based on the fact that any contradicted testimony is a fact. And I think that there was contradicted testimony with the Officer Cheek, Officer Anders, and of course regarding the expert testimony. So with that being said, was there110
anything else before we prepare the final charge so that we can read it to the jury?
STATE: Just a clarification. Did you deny it?
COURT: I denied it. That's what I said.
DEFENSE: Your Honor, just to be clear, what you just said was the reason for inclusion, not the reason for denial. If you agree with the - that there's a fact issue in dispute, then that means you should allow it.
COURT: Okay. All right. Then let me restate it because-right, because there were-right. So the Court is going to deny it because my understanding is that you-that the defense is saying that there is fact issues. That's correct, right?
DEFENSE: Yes, Judge.
COURT: So then the Court is saying that there is not any fact issues and that I am going to deny it.
"'Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion,' and a trial court's opinion would not constitute bias unless it derives from 'an extrajudicial source . . . [or] reveals[s] such a high degree of favoritism or antagonism as to make fair judgment impossible.'" Avilez, 333 S.W.3d at 675 (quoting Liteky, 510 U.S. at 555-56). In this case, there is no such evidence. The trial judge was clear that she was denying the requested instruction, although she misstated the reasons. The State asked for clarification because the ruling and the initial reasoning for the ruling were contradictory. Nothing about this exchange reflects "such a high degree of favoritism or antagonism as to make fair judgment impossible," Avilez, 333 S.W.3d at 675, and the ruling does not "connote a favorable 111 or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess . . . or because it is excessive in degree." Abdygapparova, 243 S.W.3d at 198 (quoting Liteky, 510 U.S. at 550). At most, the trial court gave the wrong reason for the right ruling and then corrected her misstatement. Appellant's other complaints of bias are also based on unfavorable rulings, none of which demonstrates bias against Appellant. See id.
We conclude the record does not clearly demonstrate bias or a violation of Appellant's due process rights and we hold Appellant has not overcome the presumption that the trial court acted correctly.
We overrule Appellant's eleventh issue.
Conclusion
We affirm the trial court's judgment. 112