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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-18-00077-CR

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GARRETT WILLIAM NEE, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 9th District Court

Montgomery County, Texas

Trial Cause No. 16-09-10494-CR

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MEMORANDUM OPINION

A police pursuit of a person evading arrest or detention ended with a motor 

vehicle collision involving the pursuing patrol vehicle and a sport utility vehicle 

containing seven members of the Hilario family returning from a Father’s Day 

celebration. Sergeant Stacey Baumgartner perished from injuries he sustained in the 
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collision.1 Garrett William Nee appeals a judgment of conviction and fifteen-year 

sentence for evading arrest or detention with a motor vehicle resulting in death. In 

four issues, Nee complains the evidence is legally insufficient to support the jury’s 

verdict finding him guilty, the trial court erred by allowing guilt-phase admission of 

evidence of Nee’s intoxication at the time of the offense because the evidence 

concerned an uncharged extraneous offense, the trial court erred by allowing guiltphase admission of retrograde extrapolation testimony that failed to consider how 

much food Nee consumed, and Nee suffered egregious harm from the omission of 

an article 38.23 jury charge instruction concerning Sergeant Baumgartner’s violation 

of the Transportation Code during his pursuit of Nee. We affirm the trial court’s 

judgment.

Background

Sergeant Baumgartner responded to a call that a man was exposing himself to 

teenagers in a gas station parking lot. An observer directed the officer to Nee, who 

 1 The Montgomery County grand jury presented four indictments that alleged 

Nee evaded arrest with a motor vehicle resulting in death or serious bodily injury. 

The indictments differed in that they alleged that Sergeant Baumgartner and Adan 

Hilario Jr. died as a direct result of the attempt by the officer to apprehend Nee while 

he was in flight and that Andrea Hilario and Joel Santos suffered serious bodily 

injury as a direct result of an attempt by the officer to apprehend Nee while he was 

in flight. The trial court vacated three of the judgments and proceeded to punishment 

on the case that is the subject of this appeal. 
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was sitting in his vehicle. Nee admitted he had been drinking alcohol. When the 

observer directed Sergeant Baumgartner to a spot in the parking lot where Nee 

urinated in public, Nee sped away in his vehicle. Sergeant Baumgartner returned to 

his patrol car and pursued Nee’s vehicle in a high-speed chase. The patrol car’s 

emergency overhead lights and siren were activated as the vehicles approached an 

intersection. Nee’s vehicle proceeded through the intersection without incident, but 

the Hilario family’s sport utility vehicle collided with Sergeant Baumgartner’s patrol 

car. The crash rolled the patrol vehicle and pushed it into a concrete light pole, and

children from the Hilario family’s vehicle were ejected upon impact. 

According to the State’s accident reconstruction expert, Trooper Joseph 

Taska, data recovered from the patrol vehicle’s computer system revealed the officer 

was travelling over sixty miles-per-hour twenty seconds before impact and fifty-five 

miles-per-hour just before impact. The recorded throttle reduced from 93.5% about

two seconds before the accident to 5% on impact, which in Trooper Taska’s opinion 

reflected that Sergeant Baumgartner applied the brakes before impact.

Nee’s accident reconstruction witness, Cam Cope, testified that he used crash 

data retrieval to conclude that Sergeant Baumgartner’s vehicle was travelling sixtysix miles-per-hour. According to Cope, Sergeant Baumgartner died as a result of the 

impact of his head on the passenger door. Cope offered his opinion that Sergeant 
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Baumgartner would have remained in his seat if he had been wearing his seat belt. 

According to Cope, the Hilario’s vehicle would not have struck the patrol car if 

Sergeant Baumgartner had braked slightly before he entered the intersection.

Dr. Katheryn Pinneri, a forensic pathologist, testified that Sergeant 

Baumgartner suffered multiple injuries that could have independently caused his 

death. According to Dr. Pinneri, the transection of his aorta would have occurred 

even if the officer was wearing a seatbelt.

Department of Public Safety Trooper Christopher Lucchesi investigated the 

accident. He identified Nee as the person on the scene who identified himself as the 

person Sergeant Baumgartner had been chasing. Trooper Lucchesi read Nee his 

Miranda rights before questioning him. Nee explained that he had been out drinking 

because he had marital issues. Nee exhibited all six clues on the horizontal gaze 

nystagmus test. Nee refused to perform a field sobriety test and he was arrested for 

driving while intoxicated. Trooper Lucchesi then obtained a search warrant for a 

sample of Nee’s blood. Trooper Lucchesi stated that the factors he identified in his 

initial crash report included Nee evading in a motor vehicle, Sergeant Baumgartner 

disregarding a red light, and Hilario failing to yield right of way to an emergency 

vehicle.
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A toxicology chemist, Heidi Christensen, testified without objection that 

Nee’s blood sample test results revealed a blood alcohol concentration of 0.161. 

Presented with a hypothetical situation in which a subject who claimed to have 

consumed only light beer provided a sample measuring .161 blood alcohol 

concentration at 10:00 p.m., Christensen replied that she would need additional 

information, including the subject’s gender, weight and height, to determine the 

approximate number of drinks he had consumed. Provided a hypothetical 6’3” male 

weighing 230 pounds, Christensen stated the subject would have had to have 

approximately ten to eleven light beers in his system at the time of the blood draw. 

She added that for the subject to have been below .08 blood alcohol concentration at 

7:30 p.m., at the time of the stop, he would have had to drink six to ten of those beers 

in the thirty minutes just prior to the stop. On cross-examination, Christensen stated 

that she was told that Nee ate a pork sandwich at lunchtime, and she opined that 

information would not impact her calculations.

Sufficiency of the Evidence

Nee’s first issue claims the evidence is legally insufficient to support his 

conviction for evading arrest or detention resulting in death to another. “A person 

commits an offense if he intentionally flees from a person he knows is a peace officer 

or federal special investigator attempting lawfully to arrest or detain him.” Tex. 
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Penal Code Ann. § 38.04(a). Evading arrest or detention is a felony of the second 

degree if “another suffers death as a direct result of an attempt by the officer or 

investigator from whom the actor is fleeing to apprehend the actor while the actor is 

in flight[.]” Id. § 38.04(b)(3)(A). Nee limits his challenge to the sufficiency of the 

evidence supporting the jury’s finding of the facts that elevate the degree of the 

offense under section 38.04(b)(3)(A), and he does not challenge the sufficiency of 

the evidence supporting the elements of the offense under section 38.04(a).

When there is a challenge to the sufficiency of the evidence, we review the 

evidence in the light most favorable to the verdict to determine whether any rational 

factfinder could have found the essential elements of the offense beyond a 

reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)

(citing Jackson v. Virginia, 443 U.S. 307 (1979)) (concluding the Jackson standard 

“is the only standard that a reviewing court should apply” when examining the 

sufficiency of the evidence); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 

2007). “[We] must evaluate all of the evidence in the record, both direct and 

circumstantial, whether admissible or inadmissible.” Dewberry v. State, 4 S.W.3d 

735, 740 (Tex. Crim. App. 1999). The jury is the sole judge of the witnesses’

credibility and weight to be given to their testimony. Tate v. State, 500 S.W.3d 410, 

413 (Tex. Crim. App. 2016). Juries may draw multiple reasonable inferences from 
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facts so long as each inference is supported by the evidence presented at trial. Id. 

“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 sufficient to 

support the conviction.” Hooper, 214 S.W.3d at 13. Accordingly, we must defer to 

the jury’s determinations of weight and credibility of the witnesses. See Brooks, 323 

S.W.3d at 899.

Generally, in a sufficiency review, the appeals court is required to uphold the 

jury’s verdict “unless a reasonable juror must have had a reasonable doubt as to at 

least one of the elements of the offense.” Runningwolf v. State, 360 S.W.3d 490, 494 

(Tex. Crim. App. 2012). 

[W]hen the evidence is deemed legally insufficient to support a 

person’s conviction for a greater offense, but the analysis as to 

insufficiency raises the possibility that the record establishes the person 

is nevertheless guilty of some lesser-included offense, the appellate 

court should consider reforming the judgment to a lesser-included 

offense before rendering a judgment of acquittal.

Lang v. State, 561 S.W.3d 174, 184 (Tex. Crim. App. 2018).

Nee argues Sergeant Baumgartner’s death occurred, not as a direct result of 

Sergeant Baumgartner’s attempt to apprehend Nee while Nee was in flight, but 

because of what Nee argues is Sergeant Baumgartner’s negligent and illegal act of 

not slowing down at the red light. Nee argues that, but for Sergeant Baumgartner not 

slowing or stopping at the intersection when he had the red light, the accident that 
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claimed his life would not have occurred. Nee contends Sergeant Baumgartner’s 

death is the direct result of the officer’s disregard of section 546.001 of the Texas 

Transportation Code, not as a direct result of Nee fleeing Sergeant Baumgartner. See

Tex. Transp. Code Ann. § 546.001.

Generally, “[a] person is criminally responsible if the result would not have 

occurred but for his conduct, operating either alone or concurrently with another 

cause, unless the concurrent cause was clearly sufficient to produce the result and 

the conduct of the actor clearly insufficient.” See Tex. Penal Code Ann. § 6.04(a).

If concurrent causes are present, two possible conditions exist to satisfy 

the “but for” requirement: (1) the defendant’s conduct may be sufficient 

by itself to have caused the harm, regardless of the existence of a 

concurrent cause; or (2) the defendant’s conduct and the other cause 

together may be sufficient to have caused the harm.

Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986). 

Nee claims he cannot be held criminally responsible for an accident caused 

by Sergeant Baumgartner failing to enter the intersection safely. Even so, the issue 

is not whether the accident could have been avoided if Sergeant Baumgartner had 

slowed more before entering the intersection, but whether Sergeant Baumgartner 

died as a foreseeable consequence of his pursuit of Nee while Nee was in flight from 

lawful arrest or detention. Nee ignores the fact undisputed at trial, that at the time 

Sergeant Baumgartner entered the intersection, the officer was actively trying to 
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apprehend Nee, while Nee was fleeing to avoid arrest or detention. Section 

38.04(b)(3)(A) describes the circumstances under which the act for which Nee is 

criminally responsible—intentionally fleeing from a person he knew to be a peace 

officer attempting lawfully to arrest or detain him—is elevated to a second-degree 

felony. See Tex. Penal Code Ann. § 38.04(a), (b)(3)(A). Nee was not convicted of 

causing the death of Sergeant Baumgartner; Instead, Nee was convicted of evading 

arrest or detention, and the grade of offense is greater because Sergeant Baumgartner 

died as a direct result of trying to lawfully arrest or detain Nee. The undisputed 

evidence at trial established that Sergeant Baumgartner was actively engaged in 

pursuing Nee when the collision between the patrol car and the Hilario vehicle 

occurred. The jury could rationally find that Nee intentionally fled from Sergeant 

Baumgartner, a person Nee knew was a peace officer attempting lawfully to arrest 

or detain Nee, and that Sergeant Baumgartner died as a direct result of his attempt 

to apprehend Nee while Nee was in flight. We conclude the evidence is legally 

sufficient to support the conviction. We overrule issue one.

Evidence of Intoxication

Nee’s second issue complains that the trial court erred in allowing unfairly 

prejudicial testimony of extraneous offenses during the guilt/innocence phase of the 

trial. See generally Tex. R. Evid. 403, 404(b). Nee admits that Trooper Lucchesi and 
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other witnesses testified without objection to Trooper Lucchesi’s investigation of 

potential intoxication offenses and reckless driving by Nee. Nee failed to preserve 

the issue for appellate review. See Tex. R. App. P. 33.1(a). We overrule issue two.

Retrograde Extrapolation Evidence

In his third issue, Nee claims the trial court erred by allowing Christensen to 

perform a retrograde extrapolation analysis without considering the quantity and 

type of food that Nee consumed. He argues Christensen “clearly did not take into 

account the quantity and type of food consumed by Appellant.” Nee’s argument is 

unsupported by the record, which shows that Christensen considered Nee’s most 

recent meal and disregarded it because he had eaten it too long before his drinking 

to impact her analysis. And Christensen identified in her hypothetical several factors 

that were in the record, including Nee’s sex, age, height and weight, as well as the 

blood test result showing his blood alcohol concentration of 0.161.

To preserve error for appellate review, “the point of error on appeal must 

comport with the objection made at trial.” Wilson v. State, 71 S.W.3d 346, 349 (Tex. 

Crim. App. 2002). During trial, Nee objected that the witness had not been qualified 

as an expert on retrograde extrapolation. The trial objection to the witness’s 

qualifications does not match the argument raised for the first time in this appeal, 

that the witness’s testimony is unreliable because she failed to identify whether and 
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what any individual characteristics of the defendant were known to the expert. See 

Mata v. State, 46 S.W.3d 902, 916 (Tex. Crim. App. 2001). Nee failed to preserve 

the issue for appellate review. See Tex. R. App. P. 33.1(a). We overrule issue three.

Illegally Obtained Evidence

In his fourth issue, Nee argues the trial court erred by failing to include an 

article 38.23 instruction in the jury charge when there was a factual dispute about 

whether the accident was proximately caused by Sergeant Baumgartner’s illegal act 

of disregarding section 546.001 of the Texas Transportation Code and so all 

evidence of death resulted from a violation of law. See Tex. Code Crim. Proc. Ann. 

art. 38.23; see also Tex. Transp. Code Ann. § 546.001. Nee argues he suffered 

egregious harm because the jury could consider and convict him for a second-degree 

felony offense of evading arrest resulting in death instead of a third-degree felony 

offense of evading arrest in a motor vehicle. See Madden v. State, 242 S.W.3d 504, 

513 (Tex. Crim. App. 2007) (applying egregious harm standard because the 

appellant never presented a proposed jury article 38.23 instruction).

Article 38.23 provides:

No evidence obtained by an officer or other person in violation 

of any provisions of the Constitution or laws of the State of Texas, or 

of the Constitution or laws of the United States of America, shall be 

admitted in evidence against the accused on the trial of any criminal 

case.
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In any case where the legal evidence raises an issue hereunder, 

the jury shall be instructed that if it believes, or has a reasonable doubt, 

that the evidence was obtained in violation of the provisions of this 

Article, then and in such event, the jury shall disregard any such 

evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a).

“A defendant’s right to the submission of jury instructions under Article 

38.23(a) is limited to disputed issues of fact that are material to his claim of a 

constitutional or statutory violation that would render evidence inadmissible.” 

Madden, 242 S.W.3d at 509–10. Article 38.23(a) does not apply to every violation 

of law. Wilson v. State, 311 S.W.3d 452, 459 (Tex. Crim. App. 2010). “Article 

38.23(a) may not be invoked for statutory violations unrelated to the purpose of the 

exclusionary rule or to the prevention of the illegal procurement of evidence of 

crime.” Id.

In Miles v. State, the appellant argued article 38.23(a) required the suppression 

of evidence obtained by a tow truck driver who admitted to committing several 

traffic violations during a citizen’s arrest. 241 S.W.3d 28, 42 (Tex. Crim. App. 

2007). The Court of Criminal Appeals held that the exclusionary rule does not apply 

to traffic violations that do not infringe on the defendant’s property or privacy rights. 

Id. at 44. The Court recognized that “there might be situations in which the conduct 

of the police officer or citizen in making an arrest is constitutionally unreasonable[.]” 
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Id. at 45. In Nee’s case, however, it is undisputed that Nee evaded police pursuit in 

a high-speed chase. Furthermore, under article 38.23(a), evidence obtained in 

violation of the law “contemplates that a crime has been committed; that evidence 

of that crime exists; and that officers violate the law in attempting to obtain evidence 

of the previously committed crime.” State v. Mayorga, 901 S.W.2d 943, 945–46 

(Tex. Crim. App. 1995). The evidence Nee argues should have been excluded did 

not exist at the time Sergeant Baumgartner entered the intersection. We conclude the 

trial court did not err by failing to charge the jury on article 38.23(a). We overrule 

issue four and affirm the trial court’s judgment.

AFFIRMED.

_________________________

 CHARLES KREGER

Justice

Submitted on June 3, 2019

Opinion Delivered November 13, 2019

Do Not Publish

Before Kreger, Horton and Johnson, JJ.