Oral Argument Requested

Nos. PD-0545-16 and PD-0546-16 ___________________________________________________

In the Court of Criminal Appeals of Texas

___________________________________________________

Matthew Ryan Arbanas

Appellant

v.

State of Texas

Appellee

___________________________________________________

Court of Appeals of Texas, Fifth District

Case Nos. 05-14-01376-CR and 05-14-01377-CR 

219th Judicial District Court, Collin County

Cause Nos. 219-82622-2012 and 219-82623-2012 

___________________________________________________

Appellant’s Petition for Discretionary Review

___________________________________________________

Matthew J. Kita

Texas Bar No. 24050883

P.O. Box 5119

Dallas, Texas 75208

(214) 699-1863 (phone)

(214) 347-7221 (facsimile)

matt@mattkita.com

Counsel For Appellant

PD-0544&0545-16

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 6/20/2016 12:00:00 AM

Accepted 6/21/2016 2:41:52 PM

ABEL ACOSTA

CLERK
- i -

Identity of Judge, Parties, and Counsel

Trial Judge: Hon. Scott J. Becker

219th Judicial District Court

Collin County, Texas

Appellant: Matthew Ryan Arbanas

Appellate Counsel: Matthew J. Kita

P.O. Box 5119

Dallas, Texas 75208

Trial Counsel: Phillip Hayes

3300 Oak Lawn Avenue

Dallas, Texas 75219

Appellee: State of Texas

Appellate Counsel: Emily Johnson-Liu

Collin County District Attorney’s Office

2100 Bloomdale Road

McKinney, Texas 75071

Trial Counsel: Cynthia Walker

Geetangali Singletary

Collin County District Attorney’s Office

2100 Bloomdale Road

McKinney, Texas 75071
- ii -

Table of Contents

Identity of Judge, Parties, and Counsel .....................................................................i

Index of Authorities ................................................................................................iii

Statement Regarding Oral Argument.......................................................................v

Statement of the Case .............................................................................................vi

Statement of Procedural History............................................................................vii

Questions Presented for Review ...........................................................................viii

Argument................................................................................................................. 1

I. This Court should adopt the majority interpretation of the double-jeopardy 

clause, and prohibits the State from charging the jury on multiplicitous 

offenses. ......................................................................................................... 1

II. This Court should require the State to sponsor a witness who can provide a 

scientific explanation for the reliability of machine-generated, non-forensic 

medical records.............................................................................................. 5

III. This Court should confirm that Texas Rule of Evidence 705 does not require 

expert witnesses to disclose all of their opinions during their initial voir dire 

examination....................................................................................................8

Conclusion and Prayer ............................................................................................11

Certificate of Compliance ...................................................................................... 12

Certificate of Service.............................................................................................. 12
- iii -

Index of Authorities

Cases

Ball v. United States, 

470 U.S. 856 (1985)......................................................................................... 3, 4

Cichos v. Indiana, 

385 U.S. 76 (1966)...............................................................................................3

Ervin v. State, 

991 S.W.2d 804 (Tex. Crim. App. 1999)......................................................... 1, 4

Kelly v. State,

824 S.W.2d 568 (Tex. Crim. App. 1992).............................................................6

Stanley v. State, 

No. 14-11-00679-CR, 2012 WL 4848762 

(Tex. App.—Houston [14th Dist.] Oct. 9, 2012, no pet.) ...................................6

Thornton v. State, 

37 S.W.3d 490 (Tex. App.—Texarkana 2000, pet. ref'd)...................................8

United States v. Anderson, 

39 F.3d 331 (D.C. Cir. 1994)................................................................................2

United States v. Clarridge, 

811 F. Supp. 697 (D.D.C. 1992) ..........................................................................2

United States v. Duncan,

850 F.2d 1104 (6th Cir. 1988)..............................................................................2

United States v. Emly, 

747 F.3d 974 (8th Cir. 2014) ...............................................................................2

United States v. Hinojosa, 

No. 2:14-CR-00038-RWS, 2015 WL 999893 (N.D. Ga. Mar. 6, 2015) ...............2

United States v. Johnson, 

130 F.3d 1420 (10th Cir. 1997) ............................................................................2
- iv -

United States v. Morrow, 

No. 04-CR-355-01, 2015 WL 1955462 (D.D.C. Apr. 30, 2015) ...........................2

United States v. Reed, 

639 F.2d 896 (2d Cir. 1981).................................................................................2

United States v. Williams, 

527 F.3d 1235 (11th Cir. 2008))...........................................................................2

Rules

Tex. R. Evid. 705......................................................................................................9

Constitutional Provisions

U.S. Const. amend. V............................................................................................... 1
- v -

Statement Regarding Oral Argument

This petition presents three issues of first impression for this Court, namely, 

(a) whether the double-jeopardy clause bars trials of multiplicitous offenses; (b) the 

State’s evidentiary burden when seeking to admit non-forensic data; and (c) the 

proper procedure for disclosing and challenging expert opinions elicited for the first 

time during trial. Because these issues will necessarily turn on detailed analysis of 

case law and public policy concerns, Appellant respectfully submits that oral 

argument will aid the court in its analysis.
- vi -

Statement of the Case

Nature of the 

Case:

Arbanas was charged with three felony offenses in two 

indictments. In the first indictment, he was charged with 

intoxication manslaughter and manslaughter.1 In the 

second indictment, he was charged with failure to stop 

and render aid following a motor-vehicle accident 

resulting in death.2

Course of 

Proceedings:

A jury convicted Arbanas on all three offenses,3 and 

sentenced him to 18 years imprisonment with a $10,000 

fine for the intoxication manslaughter and manslaughter 

offenses,4 and 10 years imprisonment with a $10,000 

fine for the failing-to-stop-and-render-aid offense.5

Following the jury’s announcement of its punishment 

verdict, but before the trial court signed its judgment, 

the State abandoned the manslaughter count.6

Disposition: The trial court signed judgments sentencing Arbanas to 

18 years imprisonment for intoxication manslaughter 

and 10 years imprisonment for failure to stop and render 

aid, with the sentences to run concurrently.7 It also 

ordered Arbanas to pay a $10,000 fine in each case and 

all costs of court.8 The court of appeals affirmed the 

judgments.

 1 C.R. (82622) 18–19.

2 C.R. (82623) 14.

3 C.R. (82622) 188–89; C.R. (82623) 101.

4 C.R. (82622) 195–96.

5 C.R. (82623) 107.

6 10 R.R. 8:20–23; 11:3–4.

7 10 R.R. 11:9–18; 12:15–17; C.R. (82622) 197; C.R. (82623) 109.

8 10 R.R. 11:18–19; C.R. (82622) 197; C.R. (82623) 109.
- vii -

Statement of Procedural History

The court of appeals issued its opinion and judgment on April 20, 2016. On 

May 18, 2016, Appellant timely filed a motion in this Court to extend his deadline 

to file this Petition by thirty days. This Court granted the motion and extended 

Appellant’s deadline to today, June 20, 2016.
- viii -

Questions Presented for Review

1. Although this Court recently held that manslaughter and intoxication 

manslaughter are “the same offense” for double-jeopardy purposes, the 

courts below permitted the jury to convict and sentence Appellant for both 

offenses, and then accepted the State’s “abandonment” of its manslaughter 

count before signing the judgment. A majority of federal courts have held 

that this practice is unconstitutional because it may have a psychological 

effect that improperly prejudices a jury. Should Texas also prohibit this 

practice? 

2. The hospital that treated Appellant analyzed a sample of his blood using a 

non-forensic test. At trial, the State’s witnesses admitted that they were not 

qualified to testify about the scientific principles behind this technique that 

produced the test results. There is no dispute that such admissions would 

render these witnesses unqualified to support the admission of forensic blood 

testing. Should Texas law impose the same reliability standards for nonforensic data as it does for forensic data?

3. The trial court granted the State’s request for a Rule 705 hearing on one of 

Appellant’s experts. The State then asked him questions on crossexamination that went beyond the scope of the topics covered at the hearing. 

When Appellant attempted to elicit testimony on the same topic during 

redirect, the trial court refused to allow him to answer, concluding that all of 

the expert’s opinions had to have been disclosed in the initial Rule 705 

hearing. The court of appeals affirmed, applying a previously unused 

balancing test to determine if a second hearing was warranted. Given that 

these requirements are not stated in the rule itself, did the Courts below err 

in their interpretation of it?
- 1 -

Argument

I. This Court should adopt the majority interpretation of the doublejeopardy clause, and prohibits the State from charging the jury on 

multiplicitous offenses.

This Court should grant this petition to address an issue of first impression, 

namely, whether charging a jury on multiplicitous offenses violates the Fifth 

Amendment’s double-jeopardy clause.9 In its 1999 opinion in Ervin v. State, this 

Court held that manslaughter and intoxication manslaughter are the same offense 

for double-jeopardy purposes when they involve the same victim.10

Notwithstanding this holding, the trial court permitted the State to try Appellant 

for both offenses, submit both offenses to the jury, and obtain convictions on both

offenses.

11 Although the trial court eventually accepted the State’s “abandonment” 

of its manslaughter conviction,

12 it cannot be disputed that it put Appellant “in 

jeopardy” of bring convicted twice for the same offense. Appellant argued to both 

the trial court and the court of appeals that this action does not cure the potential 

harms that its error imposed, but the court of appeals concluded, “Even if the State 

 9 U.S. Const. amend. V (“...nor shall any person be subject for the same offence to be twice put 

in jeopardy of life or limb...”).

10 Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App. 1999).

11 8 R.R 10:16–20:8; C.R. (82622) 188–89, 195–96; C.R. (82623) 101, 107.

12 10 R.R. 8:20–23; 11:3–4.
- 2 -

may obtain some strategic advantage by prosecuting the defendant under multiple 

statutes, this advantage does not rise to the level of a constitutional violation.”13 In 

so holding, the court of appeals created a conflict between state and federal law. 

The court of appeals holding on this issue is based solely on two footnotes

from the Supreme Court’s 1985 opinion in Ball v. United States.

14 Since Ball was 

decided, however, federal courts throughout the country have been critical of the 

practice of charging a jury on multiplicitous offenses. These courts have recognized 

that doing so may have a psychological effect that improperly prejudices a jury by 

suggesting that a defendant has committed not one but several crimes,

15 unfairly 

increasing a defendant’s exposure to criminal sanctions,

16 giving the jury numerous 

opportunities to convict the defendant for the same offense,

17 and increasing the 

risk that the jury will be diverted from a careful analysis of the conduct at issue.18

 13 Opinion, p. 6.

14 Ball v. United States, 470 U.S. 856, 860 nn. 7 & 8 (1985).

15 See, e.g., United States v. Morrow, No. 04-CR-355-01, 2015 WL 1955462, at *8 (D.D.C. Apr. 30, 

2015); United States v. Emly, 747 F.3d 974, 980 (8th Cir. 2014); United States v. Johnson, 130 F.3d 

1420, 1426 (10th Cir. 1997); United States v. Duncan, 850 F.2d 1104, 1108 n. 4 (6th Cir. 1988); 

United States v. Reed, 639 F.2d 896, 904 (2d Cir. 1981).

16 See, e.g., Morrow, 2015 WL 1955462 at *8 (citing United States v. Anderson, 39 F.3d 331, 353–54 

(D.C. Cir. 1994), rev’d en banc, 59 F.3d 1323 (D.C. Cir. 1995) (en banc)

17 See, e.g., United States v. Hinojosa, No. 2:14-CR-00038-RWS, 2015 WL 999893, at *7 (N.D. Ga. 

Mar. 6, 2015) (citing United States v. Williams, 527 F.3d 1235, 1241 (11th Cir. 2008)).

18 See, e.g., United States v. Clarridge, 811 F. Supp. 697, 702 (D.D.C. 1992).
- 3 -

In other words, the prevailing view of the double-jeopardy clause among 

federal courts today is not the dicta from Ball’s majority opinion that the court of 

appeals followed, but rather, it is the reasoning expressed by Justice Stevens in his

concurring opinion to that same case:

I see no reason why this Court should go out of its way to encourage 

prosecutors to tilt the scales of justice against the defendant by 

employing such tactics. ...When multiple charges are brought, the 

defendant is ‘put in jeopardy’ as to each charge. To retain his 

freedom, the defendant must obtain an acquittal on all charges; to put 

the defendant in prison, the prosecution need only obtain a single 

guilty verdict. The prosecution’s ability to bring multiple charges 

increases the risk that the defendant will be convicted on one or more 

of those charges. The very fact that a defendant has been arrested, 

charged, and brought to trial on several charges may suggest to the 

jury that he must be guilty of at least one of those crimes. Moreover, 

where the prosecution’s evidence is weak, its ability to bring multiple 

charges may substantially enhance the possibility that, even though 

innocent, the defendant may be found guilty on one or more charges as 

a result of a compromise verdict. The submission of two charges 

rather than one gives the prosecution ‘the advantage of offering the 

jury a choice-a situation which is apt to induce a doubtful jury to find 

the defendant guilty of the less serious offense rather than to continue 

the debate as to his innocence.’19

But because Texas courts permit this practice, the State is able to ask the trial court 

to commit plain error that can potentially work to its advantage, and the trial court 

can then absolve itself of the error simply by allowing the State to “abandon” one 

 19 Ball v. United States, 470 U.S. 856, 867–68 (1985) (Stevens, J, concurring) (citing Cichos v. 

Indiana, 385 U.S. 76, 81 (1966) (Fortas, J., dissenting from dismissal of certiorari)).
- 4 -

of the charges.20 The defendant, in the meantime, has no remedy because he cannot 

show any harm by the time the case is subject to appellate review. As Justice 

Stevens correctly noted, however, the purpose of the double-jeopardy prohibition 

is to protect the accused. Permitting the charge-and-abandon practice effectively 

guts these protections, while giving the State an easier path to securing a 

conviction, effectively turning the Fifth Amendment on its head.

In sum, by addressing the merits of this Constitutional issue in his favor, this 

Court can ensure that trial courts and prosecutors throughout this State honor both 

the letter and the spirit of this Court’s holding in Ervin. Put otherwise, in the 

absence of an actual remedy, Ervin is simply dicta—providing a passing reference 

to a frowned-upon practice, without doing anything more than frowning. This 

Court, therefore, should take the bold step of discouraging such procedural 

chicanery and protecting the Constitutional rights of the accused by vacating 

Arbanas’s conviction for intoxication manslaughter and rendering a judgment of 

acquittal.

 20 Unlike in Ball—where the statutes at issue had not previously been determined to constitute 

“the same offense” for double-jeopardy purposes, 470 U.S. at 859, the State and the trial court 

were both aware well aware that this Court had already addressed this very issue for exactly the 

same offenses. Ervin, 991 S.W.2d at 817; 8 R.R 10:16–20:8.
- 5 -

II. This Court should require the State to sponsor a witness who can 

provide a scientific explanation for the reliability of machine-generated, 

non-forensic medical records.

This Court should grant this petition for discretionary review to clarify the 

State’s evidentiary burden when it seeks to use data from non-forensic medical 

records as proof of a defendant’s guilt. Here, the trial court excluded the State’s 

forensic blood test, having concluded that the blood was acquired as part of an 

unreasonable seizure,

21 but admitted the results of a non-forensic test, without 

requiring a sponsoring witness who was qualified to opine on its reliability.22 By 

affirming this practice, the court of appeals has provided the State with incentive to 

obtain convictions using less reliable evidence, while simultaneously preventing 

defendants from challenging that evidence with effective cross-examination. 

Appellant respectfully submits that such a result is contrary to the fundamental 

goals of the criminal justice system, and warrants this Court’s review.

In its seminal 1992 opinion in Kelly v. State, this Court held that in order for 

scientific testimony to be considered “reliable,” (a) the underlying scientific theory 

must be valid; (b) the technique applying the theory must be valid; and (c) the 

 21 C.R. (82622) 150.

22 See 7 R.R. 130:21–131:6 (“Nobody in forensic work considers [EMIT] reliable for forensic 

work. It’s a medical test. But in a forensic test, when you’re not constrained by time, you give up 

time to get accuracy.”).
- 6 -

technique must have been properly applied on the occasion in question.23 And four 

years ago, this Court held in Somers v. State that the blood test at issue in this 

case—the enzyme-multiplied immunoassay technique (EMIT)— has a sufficiently 

sound basis in scientific methodology to satisfy the first two prongs of the Kelly 

test. It specifically reaffirmed, however, that “the third Kelly prong must 

necessarily be decided on a case-by-case basis.”24

With regard to the third prong of the Kelly analysis, the Fourteenth Court of 

Appeals held in its 2012 opinion in Stanley v. State that the State has the same 

burden when it seeks the admission of blood-test results as it does when it seeks the 

admission of breath-test results:

The necessary predicate that the State must prove for admission of 

such evidence is the use of properly compounded chemicals; the 

existence of periodic supervision over the machine used; operation by 

one who understands the scientific theory of the machine; and proof of 

the result of the test by a witness or witnesses qualified to translate 

and interpret such results so as to eliminate hearsay.25

 23 Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).

24 Somers, 368 S.W.3d at 537 (citing Hartman v. State, 946 S.W.2d 60, 64 (Tex. Crim. App. 

1997)).

25 Stanley v. State, No. 14-11-00679-CR, 2012 WL 4848762, at *4 (Tex. App.—Houston [14th 

Dist.] Oct. 9, 2012, no pet.).
- 7 -

Notwithstanding this requirement, both of the State’s sponsoring witnesses in this 

case admitted that they did not understand that they understand the scientific 

theory of the instrument.26 Accordingly, when Appellant attempted to undermine 

the reliability of the EMIT data before and during trial, he was unable to do so 

because neither of the State’s witnesses could answer his questions. Instead, all 

they could do was bolster the credibility of the instrument that performed the 

testing, while lacking any capacity to acknowledge its weaknesses.27

For obvious reasons, the reliability of the State’s evidence is of paramount 

importance to the criminal-justice system. Accordingly, given the fact that nonforensic data is inherently less reliable than forensic data, Appellant asks this Court 

to grant this petition for discretionary review, and hold that that the State’s 

sponsoring witnesses for the former must be as qualified—if not more so—as its 

witnesses for the latter. 

 26 5 R.R. 161:13–162:3; 216:17–217:4; 6 R.R. 

27 See 5 R.R. 169:8–10 (Jones described the machine by saying, “It’s wonderful.”)
- 8 -

III. This Court should confirm that Texas Rule of Evidence 705 does not 

require expert witnesses to disclose all of their opinions during their 

initial voir dire examination.

The trial court and court of appeals erroneously concluded that concerns for 

judicial efficiency trump an accused’s right to present expert testimony on an issue 

first raised by the State during cross-examination. Because their decisions are 

contrary to the text of the Rules of Evidence or in the common law interpreting 

same, this Court should grant this petition for discretionary review to clarify the 

procedure by which new expert opinions may be disclosed and challenged during 

trial.

As this Court is certainly well-aware, a trial court in criminal cases generally 

cannot order discovery of the defendant’s witnesses,

28 and it certainly did not do so 

in this case. Accordingly, Appellant had no duty to “disclose” his expert’s 

opinions until trial, and the State’s ability to challenge the opinions of a 

defendant’s expert is governed by Rule 705. At the time of the trial in this case,

29

Texas Rule of Evidence 705(b) provided:

Prior to the expert giving the expert’s opinion or disclosing the 

underlying facts or data, a party against whom the opinion is offered upon 

request in a criminal trial shall...be permitted to conduct a voir dire 

 28 See, e.g., Thornton v. State, 37 S.W.3d 490, 493 (Tex. App.—Texarkana 2000, pet. ref'd).

29 In March 2015, the Texas Supreme Court and this Court made slight modifications to the 

wording of this Rule. These differences are irrelevant for the purpose of the issue presented.
- 9 -

examination directed to the underlying facts or data upon which the 

opinion is based. This examination shall be conducted outside the 

hearing of the jury.30

Here, the trial court granted the State’s request for a hearing under Rule 705 

of one of Appellant’s experts.31 During the hearing, the expert identified several of 

his opinions.32 The trial court concluded that he was qualified to testify.33 During 

the State’s cross-examination, however, it asked him a question that was outside 

the scope of the topics identified during the Rule 705 hearing.34 When Appellant 

attempted to elicit such an opinion on cross-examination, the trial court refused, 

stating that the expert was limited to the opinions previously disclosed.35 Appellant 

offered to allow the State an opportunity to conduct a second Rule 705 hearing, but 

the trial court would not allow one.36 The court of appeals affirmed this decision 

and concluded—without citation to any authority—that “the delay caused by a 

 30 Tex. R. Evid. 705(b) (emphasis added).

31 7 R.R. 121:23–122:20.

32 7 R.R. 125:21—131:6.

33 7 R.R. 131:23–25.

34 7 R.R. 155:10–20.

35 7 R.R. 158:2, 7.

36 7 R.R. 164:11–19; 165:1–10.
- 10 -

second [Rule 705] hearing must be balanced against the probative value of the 

evidence sought to be admitted.”37

Appellant respectfully submits that the lower courts erred in their 

interpretation of Rule 705, and that their errors warrant the attention of this Court. 

Nowhere in the Rule is there any suggestion that the expert may only offer opinions 

that are elicited at such a hearing. Instead, the rule makes clear that the “party 

against whom the opinion is offered” has the burden to request a hearing under 

Rule 705 if it seeks to challenge the expert’s qualifications. By requiring Appellant 

to elicit all opinions during the initial hearing—including those that were not 

expected to be at issue because they arose for the first time during the State’s 

cross-examination—the lower courts impermissibly grafted new requirements and 

limitations into the rule that—for good reason—do not exist. Because these courts 

are not permitted to re-write the Rules of Evidence (and apply them retroactively 

to Appellant), this Court should grant this petition for discretionary review to 

correct their erroneous interpretation.

 37 Opinion, p. 10.
- 11 -

Conclusion and Prayer

This case presents three legal issues that have not been squarely addressed 

by this Court: (a) whether the double-jeopardy clause bars trials of multiplicitous 

offenses; (b) the State’s evidentiary burden when seeking to admit non-forensic 

data; and (c) the proper procedure for disclosing and challenging expert opinions 

elicited for the first time during trial. Because the answers to these questions are 

important to the jurisprudence of this State, Appellant respectfully requests this 

Court to grant his petition for discretionary review.

Respectfully submitted,

s/ Matthew J. Kita

Matthew J. Kita

Texas Bar No. 24050883

P.O. Box 5119

Dallas, Texas 75208

(214) 699-1863 (phone)

(214) 347-7221 (facsimile)

matt@mattkita.com

Counsel for Appellant
- 12 -

Certificate of Compliance

This petition complies with Texas Rule of Appellate Procedure 9.4(i) 

because it contains 2,459 words (excluding the parts of the brief exempted by this 

rule).

Signed this 19th day of June, 2016.

s/ Matthew J. Kita

Matthew J. Kita

Certificate of Service

The undersigned certifies that a copy of this brief was served on the 

following counsel via ProDoc in accordance with Texas Rule of Appellate 

Procedure 9.5 and this Court’s Local Rules on June 19, 2016.

Counsel for Appellee:

Emily Johnson-Liu

Collin County District Attorney’s Office

2100 Bloomdale Road

McKinney, Texas 75071

s/ Matthew J. Kita

Matthew J. Kita
AFFIRMED; Opinion Filed April 20, 2016.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-14-01376-CR

No. 05-14-01377-CR

MATTHEW RYAN ARBANAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 219th Judicial District Court

Collin County, Texas

Trial Court Cause Nos. 219-82622-2012 and 219-82623-2012

MEMORANDUM OPINION

Before Justices Francis, Evans, and Stoddart

Opinion by Justice Evans

Matthew Ryan Arbanas appeals the trial court’s judgments sentencing him to 18 years’ 

imprisonment with a fine of $10,000 for intoxication manslaughter and 10 years’ imprisonment 

with a $10,000 fine for failing to stop and render aid. Appellant argues his conviction violates 

the constitutional protections against double jeopardy and the evidence is legally insufficient to 

support his convictions. We disagree with appellant’s contentions and affirm the trial court’s 

judgments.

BACKGROUND

In the early morning hours of June 12, 2012, Billy Barnes was driving east on the 

President George Bush Turnpike, a multi-lane highway. The evening was clear and dry. Video 

from immediately before the accident shows that the rear taillights on Barnes’s car were 
–2–

operational. At approximately 2:20 a.m., Barnes’s car was struck from behind by a blue 

Mercedes travelling at a much higher rate of speed in the same direction. The impact had 

sufficient force to push the backseat of Barnes’s car into his head. Barnes’s car impacted a wall

and spun around so that it was facing in the opposite direction.

About a minute later, a car being driven by Kun “Ben” Yuk also collided with Barnes’s 

car before swerving into a ditch at the side of the road. A bystander stopped, approached Yuk’s 

car and asked if he should call 9-1-1. Yuk replied “yes.” Yuk got out of his car and went over to

Barnes’s car. From where he was standing by Barnes’s car, Yuk could see inside the Mercedes. 

Yuk noted aloud to the bystander that there was no one in the Mercedes and asked what 

happened. Yuk did not see anyone leaving the scene.

The first DPS officer to arrive at the crash site was highway patrol officer Gina Stone. 

Stone testified that when she arrived, Barnes was unconscious in the driver’s seat of his car and 

appeared to be seriously hurt. According to Stone, there was significant damage to the rear of 

Barnes’s car and to the front of the Mercedes. The backseat of Barnes’s car had blood on it from 

its impact with Barnes’s head.

Stone also examined the Mercedes. She stated the driver’s side of the windshield was 

cracked and there was hair and human tissue on it. The driver’s side airbag had deployed and 

there was blood on it as well as on the driver’s seat and door. Inside the Mercedes, Stone found 

a black bag and a prescription bottle with the name “John Arbanas” on it. Stone also noticed an 

odor of alcohol in the car as if someone had spilled a drink, but found no open containers. 

Another prescription bottle with John Arbanas’s name and some blood on it was found a short 

distance away. While she was inspecting the Mercedes, a cell phone in the car rang. Stone 

answered the phone and it was John Arbanas, appellant’s father. Appellant’s father told Stone 

that his car had been stolen.
–3–

At approximately 4:00 a.m., Richardson police received a call about a suspicious person 

lying in an apartment complex parking lot about a third of a mile away from the accident scene. 

Officer Samantha Lee went to investigate and found appellant lying with his head on a curb 

surrounded by a large amount of blood. Appellant was unresponsive and emergency services 

was called.

Appellant was taken to the hospital where he was treated in the emergency room by Dr. 

Michael Carrasco. Appellant was still unconscious when he arrived. A nurse drew blood for 

testing and the results showed a blood-alcohol concentration of .22. Appellant had an abrasion 

on his forehead and Dr. Carrasco ordered a CT scan. The scan showed no significant trauma to 

appellant’s head. Because of the high alcohol content in appellant’s blood and the absence of 

any significant head trauma, Dr. Carrasco concluded that appellant’s lack of consciousness was 

due to alcohol intoxication and appellant was placed on alcohol withdrawal protocol.

Dr. Carrasco also treated Barnes when he was brought to the emergency room. Barnes 

came in unresponsive and unable to breath on his own. Dr. Carrasco stated that Barnes was 

bleeding from the back of his head. Despite treatment, Barnes ultimately died. The medical 

examiner testified that, in addition to a laceration on the back of his head that extended to the 

bone together with a brain hemorrhage, Barnes also had other injuries including lacerations of 

the liver and fractured ribs.

A state trooper who had been dispatched to the accident scene, officer Kevin Rhodes, was 

notified that a suspect had been found by the Richardson police and taken to the hospital. When 

Rhodes arrived at the hospital, he found appellant with a head injury consistent with the damage 

on the driver’s side of the Mercedes. According to Rhodes, appellant had a “heavy odor of an 

alcoholic beverage like he’d been drinking.” In addition, the “nurse notes” in appellant’s 
–4–

medical records state that appellant was “foul smelling from alcohol.” Appellant finally regained 

consciousness approximately twenty-four hours after he was found in the parking lot.

The State indicted appellant for the offenses of manslaughter, intoxication manslaughter, 

and failure to stop and render aid following a motor vehicle accident. At trial, appellant’s father 

testified that he and appellant had gone out to dinner on the evening before the accident and 

returned to the father’s house. According to the father, appellant did not have a car and stayed 

either with him or with his mother at night. Appellant had been complaining about an abscessed 

tooth and the father told him they could go somewhere to take care of it in the morning. The 

father went to sleep around 10:30 or 11:00. Next to his pillow was a black bag containing 

prescription medication, the keys to his Mercedes, and his house keys.

Appellant’s father woke up a few hours later to find appellant, the black bag, and his car 

gone. The father called 9-1-1 to report the car stolen and then called appellant’s cell phone. 

When officer Stone answered appellant’s phone, he told her that the car had been stolen. 

Appellant’s father testified that neither he nor his son had any alcohol to drink during dinner and 

he kept no alcohol at his house.

Appellant also presented the testimony of Erica Deal, the younger sister of his former 

girlfriend. According to Deal, appellant telephoned her house several hours before the accident 

and told her mother that he was in the hospital because he “had some issues going on.” Records 

showed that appellant went to the hospital complaining of pain in his teeth, abdominal pain, and 

bowel leakage. Deal stated that appellant had recently been diagnosed with HIV. Although Deal 

was only fifteen at the time, her mother dropped her off at the hospital to help appellant. Deal 

testified that appellant had been given some prescriptions at the hospital and she helped him look 

for the hospital pharmacy to have them filled. When they discovered the pharmacy was closed, 

appellant called several people and finally found someone to come pick them up. Deal said 
–5–

appellant’s friend dropped her off at her house around 1:30. Deal further stated that appellant 

did not seem intoxicated and did not have anything to drink while they were together.

After hearing the evidence, the jury convicted appellant of all three offenses. Before the 

trial court signed the judgments, the State abandoned the manslaughter charge and judgments

were entered only as to the intoxication manslaughter and failure to stop and render aid charge. 

Appellant then brought this appeal.

ANALYSIS

A. Double Jeopardy

In his first issue, Appellant contends his conviction for intoxication manslaughter must be 

reversed because the fact that the jury was allowed to convict him of both intoxication 

manslaughter and manslaughter is a violation of the constitutional protections against double 

jeopardy. Appellant relies on the case of Ervin v. State in which the Texas Court of Criminal 

Appeals held that the offenses of intoxication manslaughter and manslaughter are the same 

criminal act for the purposes of double jeopardy when they involve the same victim. See Ervin 

v. State, 991 S.W.2d 804, 817 (Tex. Crim. App. 1999). The State responds that its abandonment 

of the manslaughter count before the trial court rendered judgment eliminated any double 

jeopardy violation. We agree.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, 

made applicable to the states through the Fourteenth Amendment, protects a defendant against a 

second prosecution for the same offense and multiple punishments for the same offense. See 

Evans v. State, 299 S.W.3d 138, 140-41, (Tex. Crim. App. 2009). When the State seeks to 

punish the same criminal act twice under two distinct statutes, a double jeopardy claim based on 

multiple punishments arises. See Shelby v. State, 448 S.W.3d 431, 435 (Tex. Crim. App. 2014). 

The prohibition on multiple punishments does not, however, prevent the State from 
–6–

simultaneously prosecuting the defendant under more than one statute when the same act violates 

multiple criminal statutes. See Ball v. U.S., 470 U.S. 856, 860 nn.7 & 8 (1985). If the jury 

returns a guilty verdict under more than one statute for the same criminal act, the trial court may 

only render judgment on one of the statutory offenses. Id. at 865. If the trial court renders 

judgment and imposes punishment for only one statutory offense, there is no double jeopardy 

violation.

In this case, although the jury found appellant guilty of both manslaughter and 

intoxication manslaughter, the trial court rendered judgment and imposed punishment only for 

the intoxication manslaughter offense. Appellant argues that, despite the fact that the Double 

Jeopardy Clause has been held to prohibit only multiple punishments for the same criminal act, 

we should conclude that multiple charges also violate the constitutional protections against 

double jeopardy because “a multiplicitous jury charge may have a psychological effect that

improperly prejudices a jury.” Even if the State may obtain some strategic advantage by 

prosecuting the defendant under multiple statutes, this advantage does not rise to the level of a 

constitutional violation. Id. at 860. We resolve this issue against appellant.

B. Sufficiency of the Evidence

Appellant next contends the evidence is legally insufficient to support his conviction. He 

argues the only evidence that he was intoxicated was the results of the blood test administered by 

the hospital that treated him for his injuries. Appellant asserts various reasons why this evidence 

should either not have been admitted or cannot support the judgment against him. He further 

argues the trial court erred in excluding evidence he sought to offer on the physical effects of 

intoxication. We first address appellant’s arguments that the blood test results should not have 

been admitted.
–7–

1) Admissibility of Hospital’s EMIT Blood Test Results

Appellant contends the trial court erred in admitting the results of the blood test because 

the State presented no evidence that the test was properly applied and it failed to present 

witnesses qualified to testify about the scientific theory used in the testing or to translate or 

interpret the results. We review the trial court’s admission of scientific evidence under an abuse 

of discretion standard. See Griffith v. State, 983 S.W.2d 282, 287 (Tex. Crim. App. 1998). To 

be considered reliable, the proponent of scientific evidence must show that: (1) the underlying 

scientific theory is valid; (2) the technique applying the theory is valid; and (3) the technique was 

properly applied on the occasion in question. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. 

App. 1992). In some cases, the first two prongs of the test may be determined by judicial notice. 

See Somers v. State, 368 S.W.3d 528, 536 (Tex. Crim. App. 2012). “Once the validity of a 

scientific theory or technique has been widely accepted in a sufficient number of trial courts 

through adversarial gatekeeping hearings, future courts may take judicial notice of the validity of 

that theory or technique based upon the process, materials and evidence produced at those prior 

hearings.” Id.

The blood test administered to appellant in this case was the enzyme-multiplied 

immunoassay technique (EMIT) test. The Texas Court of Criminal Appeals has already 

determined that “the reliability of even a single unconfirmed EMIT test has been sufficiently 

established that it meets the first two Kelly prongs.” Id. at 545. Accordingly, we examine only 

whether the test was properly applied in this case.

At trial, the State presented the testimony of Sandra Jones, a lab technician, and Diane 

McClurg, the lab director for the hospital. McClurg testified regarding the use of the EMIT 

machine at the hospital, the quality control procedures, the protocol when a test result falls 
–8–

within the critical range (as appellant’s did), and the fact that the proper procedures were 

followed in appellant’s case. Jones testified about how the blood test was performed by the 

EMIT machine, the quality control procedures, that she personally received the results of 

appellant’s test from the EMIT machine, how she interpreted those results, and facts showing 

that the test was properly conducted.

Appellant contends the State’s witnesses could not show that the test was properly 

applied because “they did not understand the scientific theory of the instrument.” Both women 

testified, however, regarding the enzymatic process used by the machine and how the results are 

interpreted. Although McClurg and Jones may not have been able to answer several questions 

posed by appellant’s counsel regarding some of the more detailed aspects of the scientific 

process, their testimony was sufficiently specific to establish the proper application of the test.1 

Cf. Wooten v. State, 267 S.W.3d 289, 301 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) 

(trial court did not abuse discretion in admitting blood test results even though expert could not 

explain how enzymes interacted with alcohol).

Appellant further contends the test was not properly applied because an alcohol swab was 

used on his arm when the blood sample was taken. The use of a cleansing solution containing 

alcohol when conducting a test for blood-alcohol content merely goes to the weight of the 

evidence, not its admissibility. See Kennemur v. State, 280 S.W.3d 305, 317 (Tex. App.—

Amarillo 2008, pet. ref'd). Appellant suggests McClurg and Jones were not capable of 

establishing the reliability of the test because they could not testify about how the machine 

accounted for interferents such as isopropyl alcohol that may have contaminated the blood 

 1 Appellant suggests that, because McClurg and Jones could not answer all of his questions on crossexamination, they were not competent sponsoring witnesses for his medical records–specifically his blood test 

results. Appellant argues that it was a violation of his Sixth Amendment right to confront adverse witnesses for the 

State to fail to provide a competent sponsoring witness. Appellant did not raise an objection under the Sixth 

Amendment at trial and, therefore, this issue has not been preserved for our review. See Holland v. State, 802 

S.W.2d 696, 700 (Tex. Crim. App. 1991).
–9–

sample. But McClurg testified that any interferents present in large enough quantities to affect 

the test results would be flagged. While appellant disagreed with McClurg and attempted to 

establish through cross-examination that isopropyl alcohol could affect the results of the test 

without registering as an interferent, this does not render her testimony insufficient to establish 

that the EMIT test was properly applied. Again, the potential effect of the alcohol swab on the 

blood test results goes to its weight, not its admissibility. See Kennemur, 280 S.W.3d at 317. 

Appellant was able to cross-examine the State’s witnesses as to his theory and presented his own 

expert testimony concerning the potential inaccuracies of the blood test results. We conclude the 

trial court did not abuse its discretion in admitting the blood test results.

2) Exclusion of Testimony on Physical Effects of Alcohol

Appellant contends the trial court erred in excluding the testimony of his expert on the 

physical effects of alcohol. When appellant’s counsel initially called his expert to testify, the 

State requested a hearing outside the presence of the jury under Rule 705 of the Texas Rules of 

Evidence to conduct a voir dire examination on the subject matter of the opinions the expert

intended to offer. See TEX. R. EVID. 705(b) (before expert states opinion or discloses underlying 

facts or data, adverse party in criminal case must be permitted to examine expert about 

underlying facts or data outside presence of jury). At the hearing, appellant’s counsel elicited 

testimony about the expert’s opinion on the possible contamination of appellant’s blood sample 

with isopropyl alcohol. Appellant’s counsel then stated, “outside of that opinion you have no 

intention of conveying any other opinions to the jury here today aside from the fact that there are 

certain contaminants that can cause problems with the enzymatic test.” The expert responded, 

“no, I have nothing to add to this. I will be guided strictly by what you’ve already discussed with 

me here. . . . I have no intention of introducing anything or going beyond that.”
–10–

During his examination of the expert in front of the jury, appellant’s counsel began to ask 

questions regarding the physical effects of alcohol at various blood-alcohol content levels. The 

State objected contending the questions went beyond the scope of what was presented in the rule 

705 hearing. The trial court sustained the objection. Appellant offered to submit his expert for a 

second rule 705 hearing to allow the State to examine him on the topic of the physical effects of 

alcohol. The trial court refused to reopen the examination of the expert under rule 705 stating 

that appellant should have revealed all the opinions the expert intended to offer in the original 

hearing. Appellant made an offer of proof in which his expert testified that, even if appellant’s 

blood-alcohol level was as high as alleged by the State, that level of intoxication would not have 

caused appellant to be unconscious as stated by Dr. Carrasco. The expert’s opinion was based on 

a chart developed by a forensic toxicologist.

Appellant contends the trial court erred in excluding his expert’s testimony. As stated 

above, we review the trial court’s decision on the admission of scientific evidence for an abuse 

of discretion. See Griffith, 983 S.W.2d at 287. A court may exclude relevant evidence if its 

probative value is substantially outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting 

cumulative evidence. TEX. R. EVID. 403. In this case, a second hearing under rule 705 to 

determine the admissibility of the expert’s testimony would have required not only an 

examination of the expert’s qualifications on the new subject, but the reliability of the chart upon 

which he intended to rely. The delay caused by a second hearing must be balanced against the 

probative value of the evidence sought to be admitted. The excluded evidence was probative 

only to refute Dr. Carrasco’s testimony that appellant was unconscious when he arrived at the 

hospital because of his level of intoxication rather than any head trauma he suffered in the 

accident. The evidence would not show, as appellant suggests, that appellant was not intoxicated 
–11–

at the time of the accident. At best, it would show only that the blood-alcohol level reflected in 

the blood test results was not, by itself, sufficient to cause him to black-out after the accident 

occurred. Given that appellant specifically stated his expert would not opine on topics other than 

those covered in the original rule 705 hearing, the extent of the delay a second hearing could 

cause, and the fact that the excluded evidence was not probative of appellant’s defensive theory, 

we conclude the trial court did not abuse its discretion in excluding the evidence.

3) Legal Sufficiency of Evidence of Intoxication Manslaughter

Having addressed appellant’s complaints regarding the admission and exclusion of 

evidence, we now address his contention that the evidence was legally insufficient to support his 

conviction. When reviewing a challenge to the legal sufficiency of the evidence supporting a 

criminal conviction, we view the evidence in the light most favorable to the verdict and 

determine whether a rational trier of fact could have found the essential elements of the offense 

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lucio v. State, 351 

S.W.3d 878, 894 (Tex. Crim. App. 2011). We do not resolve conflicts of fact, weigh evidence, 

or evaluate the credibility of the witnesses as this is the function of the trier of fact. See 

Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead we determine whether 

both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence 

admitted at trial in the light most favorable to the adjudication. Adelman v. State, 828 S.W.2d

418, 422 (Tex. Crim. App. 1992). Each fact need not point directly and independently to the 

guilt of the appellant as long as the cumulative force of all the incriminating circumstances is 

enough to warrant conviction. See Kennemur, 280 S.W.3d at 313. Circumstantial evidence is as 

probative as direct evidence and can be sufficient alone to establish an accused’s guilt. Id.

Appellant contends the evidence was legally insufficient to show that he was intoxicated 

at the time of the accident. Taken in the light most favorable to the verdict, the evidence shows
–12–

that, on an open section of dry, multi-lane highway, appellant drove his car into the rear of 

another vehicle at a sufficiently high rate of speed to push the rear seat of the vehicle into the 

back of the other driver’s head. Then, despite the fact that he was injured, appellant fled the 

scene. An officer who inspected appellant’s car shortly after the accident stated it had a strong 

odor of alcohol. Appellant was found a short distance away from the accident in an apartment

complex parking lot lying in a pool of blood. No containers of alcohol were found nearby. 

Appellant was taken to the hospital where a nurse noted that he was “foul smelling from 

alcohol.” A police officer that checked on appellant several hours after the accident also noted 

that appellant had a strong odor of alcohol. Blood test results showed that appellant had a bloodalcohol concentration of .22 more than two hours after the accident.

Appellant contends that this evidence is legally insufficient because there was no 

retrograde extrapolation testimony to show his blood-alcohol concentration at the time of the 

accident. Appellant’s blood test results are probative of intoxication even in the absence 

extrapolation testimony, however. See id. at 316. The State need not prove appellant’s exact 

blood-alcohol concentration at the time of the accident, but only that his mental or physical 

faculties were impaired by reason of the introduction of alcohol into his body. Id. at 313. The 

evidence of alcohol in appellant’s system combined with the fact that he drove full speed into the 

back of a car with working taillights while on an open stretch of multi-lane highway in good 

weather is sufficient to show that appellant’s faculties were impaired by the ingestion of alcohol.

Appellant further argues that the only direct evidence of his activities that night came 

from his father and the young sister of his former girlfriend. Both witnesses testified that 

appellant did not drink alcohol that evening. Accordingly, appellant argues the State needed to 

show that he ingested enough alcohol in the roughly one hour period between the time he was 

last seen by his ex-girlfriend’s sister and the time of the accident to have a blood-alcohol 
–13–

concentration of .22 several hours later. Appellant contends the evidence does not negate the 

possibility that he consumed the alcohol after the accident occurred.

Although appellant’s witnesses testified they were with appellant on the night of the 

accident and that he did not consume alcohol, the jury was free to disbelieve this evidence. See 

Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). A rational juror could 

conclude it was more likely appellant consumed alcohol before the accident occurred than

afterwards when he was found less than half a mile from the accident scene unconscious and 

bleeding with no containers of alcohol nearby. After reviewing the evidence in the light most 

favorable to the verdict, we conclude the evidence is legally sufficient to support the conviction.

4) Legal Sufficiency of Evidence of Failing to Stop and Render Aid

Appellant contends the evidence is legally insufficient to show that he had the culpable 

mental state required to convict him for failing to stop and render aid. The culpable mental state 

required for the offense is that the accused had knowledge of the circumstances surrounding his 

conduct, i.e., had knowledge that an accident had occurred. See Goss v. State, 582 S.W.2d 782, 

785 (Tex. Crim. App. 1979). An accused’s lack of knowledge due to voluntary intoxication is 

not a defense. See McCown v. State, 192 S.W.3d 158, 163 n.2 (Tex. App.—Fort Worth 2006, 

pet ref’d).

Appellant contends the State had the burden to show that someone who sustained a head 

injury of the type he suffered would have been aware of his surroundings immediately 

afterwards. The State presented evidence, however, that a CT scan taken soon after the accident 

revealed no significant trauma to appellant’s head. Furthermore, appellant’s knowledge that an 

accident occurred can be established by inference from the circumstantial evidence. See Jaynes 

v. State, 673 S.W.2d 198, 201 (Tex. Crim. App. 1984) (overruled on other grounds). The 

amount of damage done to the vehicles involved, and the injuries sustained by appellant,
–14–

combined with the fact that appellant immediately fled the scene, is legally sufficient to show he 

knew that an accident had occurred. We resolve this issue against appellant.

CONCLUSION

Based on the foregoing, we affirm the trial court’s judgments.

 

 

Do Not Publish

TEX. R. APP. P. 47.1

141376F.U05

/David Evans/

DAVID EVANS

JUSTICE
–15–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

MATTHEW RYAN ARBANAS, Appellant

No. 05-14-01376-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 219th Judicial District 

Court, Collin County, Texas

Trial Court Cause No. 219-82622-2012.

Opinion delivered by Justice Evans. Justices 

Francis and Stoddart participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 20th day of April, 2016.
–16–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

MATTHEW RYAN ARBANAS, Appellant

No. 05-14-01377-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 219th Judicial District 

Court, Collin County, Texas

Trial Court Cause No. 219-82623-2012.

Opinion delivered by Justice Evans. Justices 

Francis and Stoddart participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 20th day of April, 2016.