C O U R T O F A P P E A LS EI GHTH D I STRI CT OF TEXAS ELPASO, TEXAS
VA L E R I E M
. HE R

NAND E Z, Ap pe lla nt,
v.
TH E ST AT E O F TE XA S, Appellee
. § § § § § § No . 0 8- 09 -0 01 11 -C R

Appea l from the County Court at L aw No. 12 of B e xar County , T e xas (TC# 254392)

O P I N I O N Va le ri e He rn and e z wa s c onvic te d o f d ri vin gwh ile int oxic ate d, se c on d, and se nte nc e d to one y ear in jail. On appea l, she cha lleng es the trial c ourt’s dec ision to admitevidenc e of he r blood alcohol conc entration (BAC) w ithout retrog rade extrapolation. J erime Phoenix, a detention offic er w ith the Be x ar County Sheriff’ s Offic e, testified that on the nig ht of J anuar

y 13, 2008, he wa s travelingeastbound on I H-35 whe n he sawa spar k from the ca r in front of him. The car turned ha rd into the guardr ail and ca me to a stop in a g rassy

are a abutting the fre ewa

y . Phoenix pulled over be hind the vehicle a nd started to ca ll 911. He attempted to assist the driver , Appellant, but could not g et a r esponse. He opened the door and asked A ppellant if she c ould ge t out. She had “kind of slurre d speec h” and w as “kind of incoher ent” a

nd Phoenix could not make out any thing she was say

ing. Phoenix helped her

g et out of the vehic le. Phoenix testified that as he moved her to the curbe d are a, she c ould not control her

footing . Her

ey es we re r ed, g lossy , and almost sleepy . There was a lso a very faint smell of alcohol. Phoenix asked Appellant if she ha d been dr inking, a nd she admitted to having-2-

three or four

drinks. When other off

icer s arr ived at the sc ene, Phoenix observed that Appe llant
wa s v e ry ne rv ou s. On

c ro ss- e xami natio n, Pho e nix a dmi tte d th at mu c h o f t he inf or matio n in his te sti mony re g ard ingAp pe lla

nt’ s p os t- a c c ide nt b e havio r w a s n ot i nc lud e d in his a c c ide nt r e po rt . J arr od Evans, a pa

rame dic with the San Antonio Fire Depa rtment, testified that he responde d to the acc ident involving Appe llant. Evans did a hea d-to-toe tra uma inspection of Appellant but did not find any life-thre ateninginjuries. Appellant only complained that she was dizzy and ha d a he a da c he . E va

ns te sti fi e d th at App e lla

nt w a s n ot g ivi ngno rm a l, a pp ro pr iate response s to his questions and was not talking ve ry much. Evans notice d some slurred spe ech and alc ohol on her bre ath. Appellant de nied havingalcohol or doingdrug s at the time. Tommy J ohnson, an off

icer with the San Antonio Poli ce D epar tment, testified that he
came into contact with Appellant shortly following the ac cident. Johnson t estified that Appe llant had bloodshot, g lossy

ey es. She g ave of

f a strongodor of a lcohol when she spoke. Appe llant was not aske d to do any

field sobriety

tests beca

use the off

icer s’ main conc ern w as her safe ty and well-be ing. Johnson testified that the office rs wer e initially treating the c ase a s one for intox ication manslaug hter, but the investig ation chang ed to one f or DWIbeca

use the victim was walkingin a roa dway

and ac tive traff

ic lane. At the e me rg e nc y

ro om, Ap pe lla

nt u nd e rw e nt b oth

a “ me dic a l” blo od

dr aw a nd a “ le g a l” blood draw. Ronald Ly

nch, an e merg ency

room nurse, te stified that he did the medica l blood draw at 2:20 a.m. and the le g al blood drawat 3:39 a.m. Ly nch said that Appe llant was ver y quiet and he c ould smell alcohol on her. The medic al blood draw , taken a pproxi mately

51 minutes after

the ac cident, showe d a BA C of 0.192. The leg al blood draw , taken a pproxi mately

two hours af

ter the a ccide nt, showed-3-

a B AC of 0.14. Rod McCutcheon, c hief toxi colog ist with t he B exar County Medica l Office , te sti fi e d a bo ut t he bo dy ’s pr oc e ss o f m e ta bo lizin ga lc oh ol. In Appellant’s sole point of e rror , she ar g ues that the trial c ourt abused its discre tion and Texas Rules of Evidence Rule 702 and Rule 403 by admitting the B AC evidenc e without extrapolating ba ck to the time of the of fense
. A trial cour

t’s ruling on the admission or exclusion of evidence , including e x pert testimony , is reviewe d under a n abuse of

discretion standa

rd. Pe na v . S

tate , 155 S.W .3d 238, 243 (Tex.App.--El Paso 2004, no pet.) . An abuse of discre tion ex ists when the trial cour t’s decision is so clea

rly wrongthat it lies outsi de the zone of r easona ble disag ree ment. Id . The trial
c ourt a bu se s it s d isc re tio n if

its de c isi on

is a rb itr ary , unr e a so na

ble , a nd ma de wi tho ut r e fe re nc e to any g uiding r ules or princ iples. Id . at 243-44. The Court of Criminal Appea ls has held that bre ath tests are admissible without the use of retrograde extrapolation evidence
. Ste war t v . S tate , 129 S.W .3d 93, 97 (Tex.Crim.App. 2004). A jury is not required to e stablish the defe ndant’s blood alcohol leve l at the time of the a ccide nt to convict a pe rson of DWI
. Id . Instead, the jury need only

believe be y ond a re asonable doubt that e ith e r: (1 ) t

he de fe nd ant’ s b loo d a lc oh ol l e ve l w a s . 10 or mor e ; or (2 ) t he de fe nd ant f

a ile d to have the no rm a l us e of

he r m e nta l or

phy sic a l f

a c ult ie s b y

re a so n o f i ntr od

uc tio n o f a lc oh ol i nto her body at the time she drove
. Id
. Appellant ar g ues that the Ste war t c a se on ly fo c us e s o n r e le va

nc y . Sh e ur g e s th is C ourt to conduct a Rule 403 analy sis and weig h the re levanc y value a g ainst the prejudicia l value. Ap pe lla nt c ite s State v. Me chler

to support her a

rgument. In Mec hler , the Court of Criminal Ap pe a ls h e ld t

hat bl oo d a lc oh ol r e su lts we re a dmi ssi ble wi tho ut r e tr og ra de e xtra po latio n b e c a

us e-4-

they made it more pr obable that the de fenda nt was intox icated while driving , and the pr obative value outwe ighe d the risk of unfa ir prejudice under Rule 403. 153 S.W.3d 435, 440 (Tex.Crim.App. 2005). In acc ordanc e with Mec hler , we must there fore conduct a Rule 403 analy sis to determine whe ther the tria l court abuse d its discretion in allowing the BA C evidence
. In Mec hler , the Court used four fac tors in its Rule 403 ana ly sis: (1) the probative value of the e vidence ; (2) the potential to impress the jury in some irrational yet indelible way ; (3) the time neede d to develop the e vidence ; and (4) the proponent’s ne ed for the evidenc e. Id . The Court determined that the intox ilyzer results indicated that Mechler had consume d alcohol and tended to make it more probable that he wa s intox icated at the time of driving
. Id . There fore , the first fa ctor we ighe d in favor of admissibili ty . The Court conc luded that the B AC was not irrational be cause it related dire ctly to the char g ed off

ense. A ccor dingly , the sec ond fac tor weig hed in favor of a dmissibi lity
. Id . at 440-41. The third fac tor also weighed in favor of admissibili ty

beca use pre senting the evidenc e would not take undue amounts of time to expl ain, since the r esults bore dire ctly on the cha

rg ed off ense. Id . at 441. Fina lly , the Court deter mined that the fourth f

actor weig hed in favor of e x clusion beca use the State ha d other probative evidenc e to establish Mec hler’s intoxi cation. Id . The Court conc luded that the sum of the fac tors weig hed in favor of a dmissibi lity
. Id . at 442. In th is c a se , App e lla

nt c on c e de s th at it

is w e ll s e ttl e d th at a

B AC do e s te nd

to m ake it more likely

that at the time of the e vent a DWI defe ndant had a

n illega l amount of alcohol in her b l o o d
. T h e r e f

o r e , th e f i r s tf a c t o r w e i g h s i nf

av o r o f a dm i s s i b i l i ty. F or the se c on d f

a c tor , App e lla

nt p oints o ut t

hat th e B AC e vid e nc e wa s intr od uc e d in
c on jun c tio n w ithe vid e nc e that th e re wa s a de ath i nv olv e d w iththe a c c ide nt. Th e State c or re c tly-5-

points out t hat the pede strian victim was mentioned to establish how Appe llant came into conta ct with the police. The BA C results spoke direc tly to the char g ed off

ense. The ref

ore, the second fa c tor we ig hs in f

avo r o f a dmi ssi bil ity

and did no t im pa c t th e jur

y in a n ir ra tio na l and ind e lib le
w ay. For

the third fac tor, Appellant a rgues that the State’s e x pert c onfused a nd distracted the jury with testimony

explaining the mac hinery and the c omplex math neede d to determine what the B AC was in the medica l draw. H oweve r, the blood test re sults relate dire ctly to the char g ed offe nse and c ould not have distrac ted the jury awa y from the c harg ed off

ense r eg ardle ss of the t i m e r e qu i r e d

t o p r e s e n tth e r e s u l t s . T h e th i r d f a c t o r w e i g h s i nf

av o r o f a dm i s s i b i l i ty. For the fourth f

actor , Appellant ar g ues that the State did not have sufficie nt need f or the evidenc e bec ause it had othe r probative evidenc e, i.e. , the testimony reg ardingAppellant’s slurred spe ech a

nd odor of a lcohol and her admission to having “ three or four drinks.” We ag ree with the State that even though there was other evidenc e of intoxi cation, the ne ed for the B AC evidenc e wa s still substantial beca use of Appe llant’s argument that her indications of int oxic atio n ma

y have be e n s y

mpt oms fr om t

he c ar c ra sh . T he te st r e su lts he lpe d th e State establish that the sy

mptoms were due to intox ication and not the a ftere ffe cts of the c rash. Additionally , Appellant wa s not asked to per form any field sobriety

tests due to the fa ct that she was involved in a ma

jor cra sh. The four

th fac tor weig hs in favor of admissibili ty . After applying the four f

actor s under Rule 403, we conclude that they weig h in favor of admissibili ty

and that the tria l court did not abuse its discre tion in allowing the B AC evidenc e. We o ve rr ule Ap pe lla

nt’ s so le po int

of e rr or and a ff ir m th e jud g me nt o f t

he tr ia l c ourt .-6-

April 27, 2011 DAVI D WEL L I NGTONCHEW, C hief Just ice B e f o r e C h e w , C
. J. , M c C l ur e , a n d R i v e r a , JJ. (Do Not Publish)