Opinion
No. 05-10-00827-CR
Opinion Filed August 12, 2011. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the County Criminal Court of Appeals No. 2 Dallas County, Texas, Trial Court Cause No. MB0831195M.
Before Justices Bridges, LANG-MIERS, and MURPHY.
OPINION
Marshall Kent Sutton appeals his driving while intoxicated (DWI) conviction. A jury found appellant guilty, and the trial court assessed punishment at a $1000 fine and 150 days' confinement in county jail, suspended the sentence, and placed appellant on community supervision for twenty-four months. In two issues, appellant argues the admission into evidence of the 911 tape violated his right to confrontation, and the trial court erred in admitting retrograde extrapolation evidence. We affirm the trial court's judgment. On November 20, 2008, off-duty Fort Worth police officer Christopher Downs observed appellant's vehicle "swerving in and out of lanes and crossing traffic." Downs called 911 and described what he saw. Downs stayed on the line with the 911 operator and described appellant's vehicle and "the motions of the vehicle and how it was shifting across the lanes of traffic." Downs followed appellant to a house where appellant pulled into the garage and got out of his vehicle. Downs was parked on the street at the end of appellant's driveway, and he asked appellant to come down to where Downs was parked. When appellant complied, Downs asked him to have a seat on the curb, and appellant fell over as he began to sit down. Downs was still on the phone with the 911 dispatcher, and he told the dispatcher appellant did what Downs asked. Grand Prairie police officer John Fuller arrived and spoke with Downs and then appellant. Appellant said he had "three or four beers a couple of hours ago." Fuller believed appellant was intoxicated because his eyes were red and bloodshot, his speech was slurred, and he had the odor of an alcoholic beverage coming from him. Fuller administered field sobriety tests which indicated appellant was intoxicated. Fuller arrested appellant for DWI. A jury subsequently convicted appellant, and this appeal followed. In his first issue, appellant argues his right to confront the witnesses against him was violated because he was denied the right to confront the 911 dispatcher who was working at the time the tape of Downs' 911 call was made. We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Ramos v. State, 245 S.W.3d 410, 417-18 (Tex. Crim. App. 2008). The Confrontation Clause of the Sixth Amendment to the Constitution of the United States provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." This bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 403 (1965); De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). Consistent with the Confrontation Clause guarantee, a testimonial hearsay statement may be admitted in evidence against a defendant "only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Crawford v. Washington, 541 U.S. 36, 59 (2004); De La Paz, 273 S.W.3d at 680. "[T]he Crawford rule reflects the Framers' preferred mechanism (cross-examination) for ensuring that inaccurate out-of-court testimonial statements are not used to convict an accused." Whorton v. Bockting, 549 U.S. 406, 418 (2007) (parenthetical material in original); De La Paz, 273 S.W.3d at 680. The primary focus in determining whether a hearsay statement is "testimonial" is upon the objective purpose of the interview or interrogation, not upon the declarant's expectations. Davis v. Washington, 547 U.S. 813, 822-23 (2006); De La Paz, 273 S.W.3d at 680. Generally speaking, a hearsay statement is "testimonial" when the surrounding circumstances objectively indicate that the primary purpose of the interview or interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Davis, 547 U.S. at 822-23; De La Paz, 273 S.W.3d at 680. In such a situation, the person offering information is literally bearing testimony. De La Paz, 273 S.W.3d at 680. An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the "primary purpose of the interrogation." Michigan v. Bryant, 131 S. Ct. 1143, 1156 (2011). The relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred. Id. Here, appellant objected to the admission of the 911 tape on the basis that "whatever the dispatcher says would violate the confrontation rule." The trial court overruled appellant's objection and admitted the 911 tape. We conclude the trial court did not abuse its discretion in admitting the 911 tape. Downs called the 911 operator. There was no interview or interrogation of the 911 operator, and nothing indicated the 911 operator's questions concerning Downs' observations had a primary purpose of establishing or proving past events potentially relevant to appellant's later criminal prosecution. See id. Rather, Downs was describing an ongoing emergency regarding appellant's condition and a potential criminal offense in progress. Thus, the 911 operator's statements were not "testimonial" within the context of a Confrontation Clause analysis. See id. We overrule appellant's first issue. In his second issue, appellant complains the trial court erred in admitting retrograde extrapolation evidence. Specifically, appellant alleges the trial court allowed the chemist to testify regarding the application of retrograde extrapolation to a hypothetical situation. We review the judge's decision to admit scientific evidence for an abuse of discretion. Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005). Under this standard, we should not disturb the trial court's decision if the ruling was within the zone of reasonable disagreement. Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008). Retrograde extrapolation is the computation back in time of the blood-alcohol level-that is, the estimation of the blood-alcohol level at the time of driving based on a test result from some later time. Mata v. State, 46 S.W.3d 902, 908-09 (Tex. Crim. App. 2001). In Mata, the court of criminal appeals instructed that a trial court considering the reliability of retrograde extrapolation should consider (a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. Id. at 916. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the period of drinking, the time of the last drink, and how much and what the person had to eat. Id. The court also noted that "[t]he expert's ability to apply the science and explain it to the court is a paramount consideration." Id. The expert must also demonstrate some understanding of the difficulties, subtleties and risks inherent in the science, and he must be able to clearly and consistently apply it. Id. The chemist in this case testified two breath samples were obtained from appellant, one .137 and one .133 test result. The chemist explained that retrograde extrapolation is an arithmetical means in which, with certain information, she could potentially calculate back in time what a person's alcohol concentration would have been at the time of driving versus the time of a test. The chemist testified she had done this type of extrapolation on previous occasions and, with sufficient information or a set of hypotheticals, it was possible for her to render an opinion of alcohol concentration at the time of driving. The chemist testified that the factors and assumptions she relied on were generally accepted within the scientific community. The question drawing appellant's objection occurred during the State's direct examination of the chemist. Specifically, the State asked a hypothetical question asking the chemist to assume a person had an alcohol concentration of .133, was male and weighed 200 pounds, was stopped at about 10:30, and said his last drink was about 8:30. Appellant objected that there was no valid, rational basis for asking the hypothetical. Appellant's objection was overruled. The State then asked the chemist also to assume the hypothetical person said he had consumed beer. The chemist stated she needed one additional piece of information and clarified the time of the .133 test result was 12:05 a.m. Appellant again objected that this testimony was speculation. Outside the presence of the jury, appellant argued retrograde extrapolation had been "specifically dismissed." The State responded that appellant stated during an interview what he had had to drink and when he drank it. Still outside the presence of the jury, the chemist testified that the hypothetical person would have had an alcohol concentration range of 0.14 to 0.17 grams of alcohol per 210 liters of breath at 10:30 p.m. and would have had to have had an amount of alcohol equal to six or seven drinks to blow a .133 at 12:05 a.m. The jury returned to the courtroom and the chemist repeated this testimony. Hypothetical questions are sometimes employed to assist the trier of fact to understand the evidence or to determine a fact in issue. See Taylor v. State, 106 S.W.3d 827, 832-33 (Tex. App.-Dallas 2003, no pet.); see also Tex. R. Evid. 702. Additionally, assumptions on which a hypothetical is based need not be limited to those supported by the evidence; counsel may propound questions that assume facts in accordance with the theory of the case. Held v. State, 948 S.W.2d 45, 53 (Tex. App.-Houston [14th Dist.] 1997, pet. ref'd). All the facts in the chemist's hypothetical here were tied to characteristics of appellant that were introduced into evidence during trial or known to the chemist: appellant's weight, the timing of his stop, the timing and results of his breathalyzer test, the timing of his last drink, and the type of alcohol consumed. The breath tests were administered approximately an hour and a half after the offense, and the test indicates the tests were performed within three minutes of each other. The record shows no inconsistencies or error's in the chemist's testimony concerning the retrograde extrapolation. Accordingly, the trial court did not abuse its discretion in overruling appellant's objection and permitting the chemist to testify regarding the hypothetical situation based on the evidence already before the jury. See Mata, 46 S.W.3d at 916; Morales v. State, 32 S.W.3d 862, 866 (Tex. Crim. App. 2000) (reviewing court should, under rule 702, examine expert's testimony to assess whether expert made adequate effort to tie relevant facts of the case to scientific principles about which he testified); see also Jordan v. State, 928 S.W.2d 550, 556 (Tex. Crim. App. 1996) (standard in applying rule 702 is not whether expert addressed every pertinent issue that could be raised by facts but "whether the expert's testimony took into account enough of the pertinent facts to be of assistance to the trier of fact on a fact in issue") (emphasis removed). We overrule appellant's second issue. We affirm the trial court's judgment.