### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00060- CR

Juan O rtiz , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 426 TH JUDICI AL DISTRICT NO. 734 83, H ONO RAB LE F ANCY H. JEZEK, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N A jury convicted appellant J uan Ortiz of intox ication manslaug hter, see Tex. P enal Code § 49.08; found that he had used or exhibi ted a deadly wea pon in the commission of the offe nse,

see id

. § 1.07(17) (def

ining “dea dly wea

pon”); and assessed his punishment at conf i n em en t for
sevente en y ear s in the I nstitut ional Division of t he Tex as Department of Criminal J ustice. I n two issues, appellant complains about the trial court’s denial of his re q u es t fo r the appointment of an expert and the admission of evidenc e reg arding the aver ag e elimination rate of alcohol. Finding no

reve rsible er

ror, we aff

irm.BACK GR OUND 1 The evidenc e at trial conce rning what happene d was larg ely undisputed. Appellant spent much of the evening on J une 6, 2014, at a bar where Ashley Pekare k worke d. Around 2:00

a.m. on J une 7, 2014, appellant drove awa y from the bar on his motorcy cle with Pekare k as a passeng er. A short time later, appellant beg an driving the wrong way on a highw ay and then had a head- o n co l l ision with another vehicle. Both appellant and Pekare k wer e seriously injured in the

acc ident and transporte d by helicopter s to a hospital. Pekare k had no pulse when she arr ived at the hospital and died fr om the “blunt forc e injuries” tha t she suffe red in the acc ident. Appellant, who

was wea ring a helmet at the time of the acc ident, did not suffe r a con cu s sion but broke his leg

. During the flig ht transporting appellant to the hospit al , appellant was g iven “50 microg rams of fentan y l , wh i ch is a pain medication,” and fluid that is known as “L acta ted Ringe r’s solution.” Be fore rec eiving medication in the emer g ency room and approximately one hour afte r the acc ident, appellant’ s blood was draw n and then tested for its blood alcohol conce ntration. The results of the
test s h o we d alcohol of “218 milli g rams per deciliter,” which, acc ording to expert testimony , translated to a

blood alcohol conc entra tion of 0.18. I n October 2014, appellant was char g ed by indictment wi th th e o f f e n s e o f in to xic ation manslaug hter and appointed counsel. I n October 2015, the State g ave appellant notice that the State would seek an aff

irmative finding that during the commission of the offe nse that appellant “did then

Be cause the par

ties are familiar with the facts of t he case, it s proce dural hist ory , and the 1 evidenc e adduce d at t ri al, we provide only a g ener al overvie w of the fac ts of the case here

. We provide additional fac ts in the opinion as nece ssary to advise the parties of the Court’s decision and t he basic rea sons for it. See Tex. R. App. P. 47.1, 47.4. The fac ts rec ited are taken from the testimony and other evidenc e pre sented a t trial. 2and there use and exhibi t a deadly wea pon, to-wit: a vehicle.” Around the same time, the trial court g rante d appellant’ s ex parte motions for the appointment of ex perts, including an expert who was a for ensic toxi colog ist, to assist in the defe nse’s investig ation and pre paration for trial.

Shortly befor e the jury trial occur red in J anuar

y 2016, appellant soug ht a continuance based on notification from the prosec utor that one of the State’s experts h ad “f o u n d some pre- admittance [m edica l] rec ords” showing that appellant was g iven fluids and “50 microg rams of fenta ny l” while being transporte d to the hospital. Appellant arg ued that he n ee d ed m o re time to consult with an expert conce rning these rec ords. Following a hear ing, the trial court deni ed t he motion. The trial court also held an ex parte hear ing during trial to addre ss appellant’ s reque st to obtain a particula

r expert in fore nsic tox icolog y to evalua te the pre- ad m i t t ance rec ords. The trial court de nied appe llant’s reque st for this particular expert. The State prese nted evidenc e at trial to support its theories that, at the time of the

acc ident, appellant was intox icated be cause he did not have “ the normal use of mental or phy sical fa cu l t ies by rea son of the introduction of alcohol” and had “an alcohol conce ntration of 0.08 or more.” See Tex. Penal Code § 49.01(2) (def in i n g “intox icated” ). The State’s witnesses at trial included: (i) responding office rs and other emer g ency medical personne l who wer e at the scene of the acc ident; (ii) a phy sician and a nurse who trea ted appellant in the emer g ency room; (iii) the chief of clinical chemistry at the hospital; (iv) numerous individuals who witnessed appellant, including when he was at the bar drinking alcohol, on his motorcy cle driving awa y from the bar car

ry ing Pekare k as a passeng er, on his motorcy cle g oing the wrong way on the highw ay , and at the scene of the acc ident; (v) the driver of the other vehicle involved in the head- on collision; and (vi) experts—a

3fore nsic scientist and a fore nsic patholog ist. The State’s exhibi ts included audio rec ording s of 9-1-1

calls from individuals who either witnessed appellant driving the wrong way on the highw ay prior to the acc ident or who wer e at the scene of the acc ident, videos and photogr aphs from the scene of the ac cident, and the labora tory results from the te sting of a ppellant’s blood at the hospital. The defe nse’s theory was that the State did not meet its burden to prove that appellant

was intox icated at the time of the acc ident. The defe nse cha l l eng ed the adequa cy of the police investiga tion, the au t h en t i ci t y and acc urac y of the hospital’s blood alcohol test results, and the

acc urac y and cre dibilit y of witness testimony about the amount of alcohol that appellant consumed in the hours immediately befor e the acc ident and signs of intox ication that he exhibi ted during that time period. The defe nse focuse d on appellant’ s ability to operate his motorcy cle, including maintaining the balance n ec es s ar y to ride it. The defe nse’s witnesses included an ag ent from the Texas Alcoholic Be vera g e Commi ssion who was involved in a rela ted administrative investiga tion,

an emer g ency medical technicia n who was at the scene of the acc ident, and the flig ht nurse who was

on the helicopter that transporte d appellant from t h e s ce n e o f t h e acc ident to the hospital. The defe nse did not call an e x pert.

The jury found appellant g uilty as char g ed in the indictment and that he had used or exhibi ted a deadly wea

pon in the commission of the offe nse. The same jury assessed his punishment at conf inement for se ventee n y ear s. This appea l followed.

4ANALYSIS

Appoin tm ent of Exp ert

I n his first issue, appellant arg ues that the trial court abused its discretion and denied him due proce ss by deny ing his reque st for the appointment of an expert afte r the State notified him that it intended to offe r medical rec ords from the air ambulance that transporte d him to the hospital. Be cause the rec ords showed that he was g iven fenta ny l and “L acta ted Ringe r’s solution” during the helicopter flig ht to the hospital, appellant contends that an expert—specific ally a fore nsic
tox icolog ist—was neede d to d et er m i n e whether the pain medication or fluid aff ecte d him or the blood alcohol test results, which wa s a “c ritical issue at trial.”

“[D]u e p ro ce s s may require that an indige nt defe ndant be g rante d acc ess to expert assistance if ‘the expert can pr ovide assistance which is “likely to be a signific ant fac tor”a t tr ial.’” E x parte Jimene

z , 364 S.W .3d 866, 876 (Tex. Crim. App. 2012) (quoting Ake v. Oklahoma , 470 U.S. 68, 74 (1985))

. Courts balanc e three i n t er es t s i n deter mining whether the State must provide acc ess to an expert: (1) the private interest that will be aff ecte d by the State’s action; (2) the “g overnme ntal interest that will be aff ecte d if the safe g uard is to be provided” ; and (3) the “proba ble value of the additional or substitut e proce du ra l s afe g uards that are soug ht, and the risk of an

err oneous depriva tion of the aff ecte d i n t er es t i f those safe g uards are not protec ted.” Ex parte Jimene z , 364 S.W .3d at 876 (citing Ake , 470 U.S. at 77). “This a naly sis is conducted with a view towards whether failing to provide the defe ndant with the expert help he claims is nece ssary cre ates ‘a high risk of an inacc urate verdic t.’” Id. (citing Busby v. State , 990 S.W .2d 263, 271 (Tex. Crim. App. 1999)). An indige nt d ef en d ant, howeve r, is not “entitled to choose an expert of his own

5persona l liking or one who will ag ree with his defe nsive theory .” Id. at 877 (citing Griffit h v. State ,

983 S.W .2d 282, 286 (Tex. Crim. App. 1998)); see Griffit h , 983 S.W .2d at 286 (obser ving that “the purpose of the appointm ent is to level the play ing f ield; to give a defe ndant access to a competent expert who ca

n assist in the evaluation, pre paration, and prese ntation of the def ense” ). I n O c tobe r 2015, the trial court approve d appellant’ s three pre- trial reque s ts f o r e xp e r t assistance , and one of the appointed experts was a fo re n sic tox icolog ist. I n his pre- trial ex parte 2 motion, appellant’ s stated rea son for the appointment of the fore nsic tox icolog ist wa s “to examine the evidenc e to include the lab results on the blood draw .” At t h e ex parte hear ing during trial, appellant soug ht assistance from a differ ent fore nsic tox icolog ist than the one that the trial court had alre ady approve d in October 2015. Appellant also filed a motion for continuance shortly befor e the trial occur

red, seeking more time to evalua te the pre- admittance rec ords, but he does not challeng e the trial court’s ruling on the motion for continuance

. Appellant further did not ref ere nce or explain why the alre ady approve d fore nsic tox icolog ist was not capa ble of providing competent assistance

co n ce rni ng any eff

ect that the pain medication and fluid might have had on him or on the blood alcohol test results. See Ex parte Jimene z , 364 S.W .3d at 877 (obser ving that trial court may deny further expert assistance if court has al r e a d y appointed expert and defe ndant reque sts differ ent expert “unless the defe ndant proves that the orig inal appointed expert could not adequately assist the defe ndant” and that “a defe ndant who relies on public funds for expert assistance must be satisfied with a competent expert”); see also Busby , 990 S.W .2d at 271 (conc luding that trial court could have

rea sonably found that appointment of additional expert was unnece ssary beca use alre ady appointed

The other

two experts were an ac cident-r econstruc tion ex pert a nd a priva te investig ator. 2 6expert could adequa tely assist defe ndant). Appellant also failed to file a wr i t t en motion for the appointment of an additional expert. See Ex parte Jimene z , 364 S.W .3d at 881 (stating that “indig ent defe ndant will not be entitled to funding for e x perts abse nt adequa te fa ctual support in the written motion that he presents to the trial judg e”)

.

On this rec ord, we cannot conclude that the trial court’s denial of appellant’ s reque st for the appointment of an additional expert cre ated “‘a high risk of an inacc urate verdic t.’” See id.
at 876 (quoting Busby , 990 S.W .2d at 271). Thus, we conclude that the trial court did not abuse its discretion or violate appellant’ s due proce ss rig hts by denying his reque st for the appointment of an expert. We overrule appellant’ s first issue.

Adm ission of E vidence

I n his second issue, appellant chall en g es the trial court’s admission of evidenc e reg arding the aver ag e elimination rate for alcohol, arg uing that it was not rele vant. See Tex. R. Evid. 401. Specifica lly , appellant challeng es the rele vancy of the following testimony : (i) the emer g ency

room phy sician’s testimony that “the body proce sses alcohol ‘at a rate of about 25 units per hour’” and that “most n o rm al humans” excrete alcohol at about this rate , and (ii) the fore nsic scientist’s testimony reg ard i n g “the absorption rate ” and “the rang e of elimination rate s repor ted for human being s,” which is a decr ease betwee n .01 and .03 per hour. Appellant asser ts that this evidenc e was irrele vant beca

use the State did not offe r testimony on retrog rade extrapolation. See Mata v. State , 46 S.W .3d 902, 908–09, 916 (T e x. Cr im. App. 2001) (desc ribing scienc e of retrog rade extrapolation, which is “computation back in time of the blood-alcohol level—that is, the estimation of the leve l at the time of driving based on a test result from some late r time”).

7Stand ard of Review We revie w a trial court ’s d ec i s i on to admit or exclude evidenc e for an abuse of discretion. Henley v. State , 493 S.W .3d 77, 82–83 (Tex. Crim. App. 2016). “An abuse of discretion does not occur unless the t rial court acts ‘ar bitrarily or unreasonably ’ or ‘without ref ere nce to any g uiding rules and principles.’” State v. Hill , 499 S.W .3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State , 810 S.W .2d 372, 380 (Tex. Crim. App. 1990)). Fur ther, we may not r ever se the trial court’s ruling unless the deter mination “fa lls outside the zone of rea sonable disag ree ment.” Johnson v. State , 490 S.W .3d 895, 908 (T ex . C rim. App. 2016); see Henley , 493 S.W .3d at 83 (“B efor e a revie wing court may reve rse the trial court’s decision, ‘it must find the trial court’s ruling

was so clea

rly wro n g as t o lie outside the zone within which rea sonable people might disag ree .’” (quoting Taylor v. State , 268 S.W .3d 571, 579 (Tex. Crim. App. 2008)))

. An evidentiar y ruling will be upheld if it is corr ect on a ny theory of law a pplicable to the c ase. Henley , 493 S.W .3d at 93.

Relevance of Ch allenged Evi dence “Evidenc e need not by itself prove or disprove a particula r fact t o be re l ev an t ; it is sufficie nt if the evidenc e provides a small n u d ge t o ward proving or disproving some fac t of conseque n ce.” Kirsch v. State , 306 S.W .3d 738, 743 (Tex. Crim. App. 2010) (quoting Stewart

v. State , 129 S.W .3 d 93, 96 (Tex. Crim. App. 2004)). Her e the evidenc e showed that appellant’ s blood sample was draw n approximately one hour afte r the acc ident, and the results from the blood alcohol testing showed a blood alcohol conce ntration over twice the leg al numerica l limit

. Appellant does not dispute that the blood alcohol test results wer e admissible, s ee i d

. at 744–45 (obser ving court’s prior holding that results of bre ath testing taken “ 75 minutes afte r driving” had “proba tive
8value in proving both per se and impairment intox ication at the time of driving ”). And the primary

disputed fac t of conseque nce was whether appellant was intox icated at the time of the acc ident. The char g e to the jury also included both statutory definitions of intox ication: (1) “not having the normal

use of mental or ph y s i ca l fa cu l t i es by rea son of the introduction of alcohol,” and (2) “having an alcohol conc entra tion of 0.08 or more.” See Tex. P enal Code § 49.01( 2).

I n this context, the trial court could have rea sonably deter mined that the evidenc e of the aver ag e elimination rate of alcohol was probative of a fac t of conseque nce—tha t it was a piece in “the evidentiar

y puzz le for the jury to consider” in deter mining whether appellant was intox icated
at t he ti me of the accident. See Stewart , 129 S.W .3d at 97; see a l s o i d

. at 97–98 (conc luding that brea th test results wer e rele vant and observing that jury did not have to deter mine defe ndant’s exact blood alcohol conce ntration at time defe ndant was driving but only that it was over leg al limit or that defe ndant failed to have normal use of mental or phy sical fac ulties beca use of introduction of alcohol in sy stem); Christ v. State , No. 09-05-00291- CR , 2 0 0 6 Tex. App. L EXI S 6585, at *8–10 (Tex. App.—B eaumont J uly 26, 2006, pet. ref ’d) (mem. op., not desig nated for publication) (finding that testimony conce rning test results from blood sample draw n over two hours afte r acc ident, including testimony about “g ener al theory

of human alcohol absorption and elimination r ates,” was re levant without evidenc e of retrog rade extrapolation and holding that trial court did not abuse its discretion by admitting testimony). Rule 403 Analysis Appellant further asser

ts that, even if the evidenc e of the aver ag e elimination rate had

some slight probative value, s u ch v alue was substantially outweig hed by the dang er of unfair
9prejudice

. See Tex. R. Evid. 403. Appellant arg ues that the evidenc e “ser ved only to i n v i t e the jurors to perf

orm their own c rude e x trapolation ca lculations.” “[A] trial court, when undertaking a Rule 403 analy sis, must balanc e (1) the inhere nt probative forc e of the proff ere d item of evidenc e along with (2) the proponent’s need fo r that evidenc e ag ainst (3) any tendenc y of the evidenc e to sug g est decision on an improper basis, (4) any tendenc y of the evidenc e to confuse or distract the jury from the main issues, (5) any tendenc y of the evidenc e to be g iven undue weig ht by a jury that has not been equipped to eval u at e the probative forc e of the evidenc e, and (6) the likelihood that prese n t at i o n o f t he evidenc e will consume an inordinate amount of time or mere ly repe at ev i d en ce alre ady admitted.” Gigliobianco v. State , 210 S.W .3d 637, 641–42 (Tex. Crim. App. 2006); see State v. Mec hler , 153 S.W .3d 435, 440 (Tex. Crim. App. 2005) (discussing fac tors in rule 403 analy sis). “[T] hese fac tors may well blend toge ther in prac tice.” See G igliobianco , 210 S.W .3d at 642.

Considering the rele vant fac tors, the trial court could have rea sonably conclude d that
t h e p ro b ative value of t he challeng ed evidence was not substantially outweig hed by the dange r of unfair prejudice

. See id. ; Mec hler , 153 S.W .3d at 439 (obser ving that court has “long held that a trial
court is entitled to broad discretion in ruling on a Rule 403 objection”)

. The evidenc e of the aver ag e elimination rate direc tly rela ted t o the offense of intox ication m anslaught er and tended to make it

more probable that appellant was intox icated at the time of the acc ident—the centr al dispute at trial. The evidenc e g ave contex t t o t h e test results from appellant’ s blood sample that was draw n approxi mately one hour afte r the acc ident. See Mec hler , 153 S.W .3d at 440–42 (conc luding that evidenc e of intox ilyzer results was admissible without extrapolation te stimony beca use “they tend

10to make it more probable that [t he defe ndant] was intox icated at the time of driving under both the

per se and impairment definitions of intox ication” and their probat i v e value outweig hed risk of unfair prejudice under rule 403). The testim ony conce rning the ave rag e elimination rate also was minimal. The emerg ency room phy sician’s testimony on the subject c overe d about three pag es of testimony and the fore nsic scientist’s testimony on the subject cover ed about two pag es of testimony

.

Thus, we conclude that the trial court did not abuse its discretion in its rule 403 deter mination. See Gigliobianco , 210 S.W .3d at 642; see also Stewart , 129 S.W .3d at 97 (re jecting arg ument that admission of breath test results invited jury t o eng ag e in “its own crude retrog rade extrapolation”); Morales v. State , No. 04-11-00363- CR, 2012 Tex. App. L EXI S 3634, *20–23 (Tex. App.—San Antonio May 9, 2012, no pet.) (mem. op., not desig nated f or publication) ( concluding trial court did not abuse its discretion in rule 403 deter mination and admission of evidenc e, including testimony of standard elimination rate of alcohol, without opinion evidenc e about “ra ng e of alcohol

conce ntration at the time of driving ” and observing that “admission of the blood te st r esult did not

nece ssarily encour ag e the jury to eng ag e in its own cr u d e retrog rade extrapolation beca use, under
t h e i m p ai rm ent definition of intox ication submitt ed to them, the jury did not need to establis h [defendant]’s exact blood alcohol conce ntration at the time that he drove” ); Guardiola v. S tate , No. 03-08-00399- CR, 2010 Tex. App. L EXI S 2071, at *11–13 (Tex. App.—Austin Mar. 23, 2010,

no pet.) (mem. op., not desig nated for publication) (conc luding that testimony about “alc ohol absorption and elimination rate s” was not improper retrograde extrapolation testimony and that trial
court c ould rea sonably

have c oncluded that test re sults were not unfa irly prejudicia l).

11Harm Analysis Fur ther, even if we wer e to conclude that the trial court err ed by admitting evidenc e of the aver ag e elimination rate of alcohol, we would conclude that the err or did not aff ect appellant’ s substantial rig hts. See Tex. R. App. P. 44.2(b). The evidenc e of appellant’ s intox ication at the time of the acc ident was overw helming. Although the total amount of alcohol that appellant consumed prior to the acc ident was not established definitively , witnesses testified that appellant consumed a larg e amount of alcohol in the hours immediately befor e the acc ident, the emer g ency room phy sician testified that the level of blood alcohol in a patient such as appellant was “an important number” beca use it was neede d for trea tment purposes, and the test results fro m appellant’ s blood sample

wer e twice the leg al numeric al limit. See Tex. P enal Code § 49.01( 2)(B ).

Other evidence also supported a finding tha t appellant did not have the normal use of his mental fac ulties immediately befor e and at the time of the acc ident. See i d

. § 49.01(2)( A). Appellant wa s driving the wrong way on the hig hway

at the time of the a ccide nt despite rec eiving numerous vis ible war

nings not to do so. The evi d en ce s h o we d that appellant drove past multipl e ref lective signs warning “Wrong Way ” and “ Do Not Enter” while t rave ling the wrong way on the highw ay prior to the accident. A witness, who wa s a passe ng er in a vehicle tha t was t rave ling the

corr ect way on a stretch of the highw ay close to the scene of the acc ident and s h o rt l y befor e the

acc ident occur

red, testified that his vehicle ended up in the g rass on the side of the highw ay to avoid

a collision with a motorcy cle that had two people on i t

. He t es tified that the motorcy cle was trave ling in the wrong direc tion “coming at us in the same lane” and that t h e m otorcy cle did not appea r to brake , take evasive action to avoid a collision, or stop afte r the near miss with the witness’s

12vehicle. Simi larly the driver of t he other v eh i cl e i nvolved i n the head-on colli sion with appellant

testified that he did not see appellant try to swerve or slowdown to avoid the a ccide nt. Evidence further showed that appellant smelled of alcohol and was not coher ent afte r the ac cident. Witnesses at the sce ne of the acc ident and the hospital testified t hat t hey smelled the odor of alcohol coming from appellant and that they could not un d er s t and him. For example, a volunteer firef

ighte r at the scene of the acc ident testified that she could understand “[m] ay be about half of” what appellant was say ing and that “[t] here was a distinctive and strong odor of metabolizing alcohol that was coming from his breath rathe r strong ly .” The emer g ency room phy sician at the hospital simil arly testifi ed about appellant’ s “odor of alcohol,” “mumbling,” inability to answe r questions, and his lack of aler tness. The phy sician also testified that he “would
not expect someone to be confuse d or decr ease d in their level o f al ertne ss to the deg ree we saw” based on the dose of the pain medication given pre- admittance, descr ibed the dose to be “ver y small,” and answe red “No” when asked if, in his clinical prac tice, he had “found those lactate Ringe r’s to [have] interfer ed or a ffe cted the a lcohol test that y ou [have] rece ived.”

Ex amining the rec ord as a whole, we have fair assuran ce that any err or in the admission of evidenc e about the aver ag e elimination rate of alcohol did not influence the jury or had b u t a slight eff

ect. See Bagheri v. State , 119 S.W .3d 755, 763 (Tex. Crim. App. 2003) (“In considering non-constitutional error , an appe llate cour t must di sreg ard the err or if the court, ‘a fter examining the rec ord as a whole, has fair assura nce that the err or did not influence the jury , or had but a slight eff

ect.’ ” ); Armijo v . State , No. 02-11-00430- CR, 2013 Tex. App. L EXI S 9667, at *11 (Tex. App.—For

t Worth Aug

. 1, 2013, no pet.) (mem. op., not desig nated for publication) (holding

13that “er

roneous admission of the ret ro gra d e extrapolation testimony did not aff ect Appellant’s substantial rig hts to a fair trial or substantially aff ect or in any way undermine confide nce in the jury ’s verdic t in the felony DWI case and was there fore harmless” ). Thus, we conclude that any

err or in the admission of the cha lleng ed evide nce w as har mless. Be cause we conclude that the trial court did not abuse its discretion in admitting the evidenc e of the aver ag e elimination rate and that, even if it did, such err or did not aff ect appellant’ s substantive rig hts, we over rule a ppellant’s sec ond issue.

CONCLUSION Having overr

uled appe llant’s issues, we a ffirm the judg ment of convic tion.

__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Bour land Affir med Filed: Jul y

20, 2017 Do Not Publish

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