## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 0 2

- 23

- 00021

- CR

______ ____ _________________

On Appeal from Criminal District Court No. 2

Tarrant County, Texas Trial Court No. 1523478D

Before Birdwell, Womack, and Wal lach , JJ. Memorandum Opinion by Justice Womack 

### A USTIN 

### K

ENNETH 

### C HURKEY 

### , Appellant

V



### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I
. I NTR ODU CTIO N A jury convict ed Appellant Austin Kenneth Churkey of intoxication manslaughter for a drunk

- driving incident that resulted in the death of Asheta Goins
Holbrook 1 and found true that he had used his vehicle as a deadly weapon. See Tex.
Penal Code Ann. § 49.08. The jury assessed Churkey’s punishment at twelve ye ars’ confinement, and the trial court sentenced him accordingly. In fou r points on appe al, Churkey argues that the State’s indictment contain ed a mat erial variance f rom the evidence presented at trial ; the evidence was insufficient to support the jury ’ s finding of guilt ; the trial court failed to perform its gatekeeping funct ion under Kelly v. State , 824 S.W.2d 568 (Tex. Crim. App. 199 2), when it allowed a witness to testify at the punishment phase of his trial about his violations of his bond conditi ons ; and the trial
court abused its discretio n by admitting that testimony in violation of Ch urkey ’ s confrontation rights. We w ill affir m. I I
. B AC K GRO UND On the evening of October 18, 2017, Asheta took her daughter , Kayla , to a hair salon owned by Asheta’s sister, Tyisha. After spending the evening enjoying one

a nother’s compan y and coloring Kayla’s hair, the three of them lef t the salon a round

1 Several of the individuals involved i n this case have the name “Goi ns” as all or part of their surn a me

—

Asheta Goins Holbroo k, Tyisha Goins, and Kayla Goins. To avoid confusion, we will refer to these individuals by their first name s .3

midnight. Tyisha, who had experienced car trouble with he r sedan earlier in the day,
left the salon in that vehicle

. 2 Asheta, with Kayla as a passenger , left the salon in a sports utili ty vehicle (SUV). Be cause of Tyisha’s car trouble, Asheta told Tyisha that
she would follow her vehicle home. 3 Initially, everything was fine with Tyis ha’s v e h i c l e as it left the salon. However, once Tyisha got onto Interstate 20 travelin g east, her s edan “just wasn’t driving right,” so she pulled over to the right

- hand shoulder of th e highway

. 4 Asheta, who was following T yisha, pull ed her SUV onto the shoulder behind Tyisha ’s sedan

. Asheta
then drove her S UV past Tyis ha’s sedan and turned it around, so that her SUV was
“nose to nose” with Tyisha’s sedan

. According to Tyisha, both her and Asheta ’ s vehicles were s topp ed safely on the highway ’ s shoulder. Asheta and Tyisha then exited their respective v ehicles to begin the pro cess of jump

- starting Ty

isha ’ s sedan. Both women stood o n the shoulder of the highway
between the two vehicles

. Asheta connected a set of jumper cables t o her SUV, and
she and Tyisha started trying to locate the battery of Tyisha ’ s sedan so that they could

2 Tyisha testified that her c ar had started “acting funny” earlier in the day just before she had arrived at the salon

. Be fore leaving the salon for the night, the owner of a nearby business gave her car “a jump” to get it started

.

3 At the time of the incident, Asheta, Kayla, Tyi sh a, and other family members were living toge ther.

4 T yisha believed that the shoulder was a “safe place” to stop, noting that there was grass to the right of the shoulder.4

connect the ju mper ca b les. Unbeknownst to the two women, a truck driven by an
intoxicated Chur key was moving toward them. According to Tyisha, she suddenly heard “a big bang, ” saw a b unch of debris flying, and was knocked to the ground. 5 She woke up 6 to Kayla screaming Ashe ta’s name. When Tyisha got up, she and Kayla started looking for Asheta, but th ey could
not find her. Someone at the scene s uggested t hat they look under Churkey’s truck, and upon looking, they found Asheta. Tyisha stated that she and Kayla started
ba nging on Churkey’s truck, imploring him to help them. According to Tyisha, Churkey responded, “Help with wha t[?]” and “What do y’all want me to do[?]”
Two passing mot orists

—

Timothy Runyan and James Enlo w
— soon arrived at
the scene and offered assistance

. Runyan was driving an 18

- wheeler eas tbound on
Interstate 20 at the time of the collisio n . Moments be fore the collision , Runyan observed Churkey’s truck pass him in the left lane

— at a speed Runyan estimated to be around 75 to 80 miles per hour

— and then it moved in front of Runyan’ s 18

- wheeler and “started swerving from lane to l ane.” According to Runyan, it appeared that Churkey “was trying to keep his lane, but he kept on going over it

. . . and going
back real fast.” Runyan called 911 “ to report a su spicious dru nk driver,” and he saw

5 Tyisha testified that she did not see Churkey ’ s truck coming toward them. She
a lso stated t hat both she and Asheta “ got hit. ”

6 Tyisha indicated that she was briefly rendered unconsc ious as a result of the collision.5

the collision wh ile he wa s on the call. 7 As described by Runyan, it looked like Churkey was going to exit the highway as he came upon Green Oaks Boulevard, but instead, Churkey moved his truck into the shoulder whe re Tyi sha’s sedan and Asheta’s
SUV were loc ated. 8 Runyan did not see Churkey’s truck slow down as it approached the vehicles, nor did he see Churkey take any evasive action. According to Runyan, Churkey then “hit the cars

. ” 9
Run yan got out of his 18

- wheeler to help. He found Asheta “[u]nde rnea th the front wheel and the driver’s side” of Churkey’s truck. Asheta was unresponsive but had a pulse. Runyan approached the passenger ’ s side of Churkey ’ s truck and told him

to turn the truck off because Runyan “ saw a bunch of sp arks coming up from
underneath the hood ” of Churkey ’ s truck and b ecause Churkey was “ trying to actually
move the truck ” while Asheta was still underneath it. 10 Runyan indicate d that he had
tri ed to tell Churkey to shut his tr uck off and stop t ryi ng to move it because Asheta

7 The jury heard audio from Runyan ’ s 911 call. The jury also heard audio from
a different 911 call that another mo t orist ha d made to repor t Ch urkey ’ s suspicious driving

. That caller indicated that there was a “ drunk driver on the road, ” and seconds later, the caller indicated that the suspected drunk driver “ just had a wreck

. ”

8 According to Runyan, T yi sha’s sedan ha d its “emergency flashers” on.

9 Photographs taken of the s cene depict damage to the back passenger ’ s side of Tyisha ’ s sedan , the front of Asheta ’ s SUV, and the front and driver ’ s side of Churk ey ’ s truck. The photographs also reflec t (and Tyisha testifie d ) that Asheta ’ s SUV had rotated so that it was facing eastbound after the wreck.

10 In the audio from Runyan ’ s 911 call, Runyan and others can be heard in the b ackgrou nd frantically a nd repeatedly telling Ch urkey to shut his tru ck off.6

was underneath it , but Chu rkey “ wouldn ’ t understand what [Runyan] was saying. ” Runyan testified that he had “ smelled a lot of booze ” coming from Ch urkey ’ s truck. Enlow was driving westbou nd on Interstate 20 in A rlington w hen he heard the collision on the other side of the highway. He then dro ve to the scene to help

. Enlow testified that Asheta was “tangled up in the exh aust” of Churkey ’s truck and that she was unrespon sive. He asked Churkey se veral times to get out of his truck , but Churkey did not answer . 11 Enlow also indicated that Churkey attempted to start
his truck while Asheta was unde rneath it. Enlow retrieved a floor jack from th e back
of his vehicle an d used it to raise Churkey’s truck so that Runyan and a pol ice officer could pull Asheta out from under the truck. 12 After Asheta was removed from Churkey ’ s truck, sh e was transported to the hospital , where she died. Edward Johns ton, an Arling ton police officer who was a member of the department’s DWI unit in 2 017, testified that he responded to the incident and arrived

to a “very chaotic” scene. 13 Johnston stated that a “ very distraught ” Churke y was outside of his tru ck when Johnst on arrived and that Churkey indicated that he was

11 Enlow t estified that Churkey eventually got out of his truck and walked past him accompanied by police

. Enlow smelled a “ [s] trong ” odor of a lcohol comi ng from Churkey as he passed

.

12 Runyan testified that Churkey remained in his truck while he and the police officer pul led Asheta out from under it

.

13 Johnston indicated that multiple police officers were already on the scene by the ti me he arrived.7

trying to help and did not know that Asheta was under his tru ck

. In describing the wreck, Chur key told Joh ns t on that he had s een brake lights in front of hi m ; that the

car s in fron t of him had s lammed on their brakes; that he had applied his brakes and
had tried to pull off to the side of the highway to get out of the way of the other cars ; and that he had n ot meant for the wrec k to occur . 14 Johnston observed that Churkey had “red, watery, bloodshot eyes” and that “a strong smell of alcohol came from his breath as he spoke.” Accordin g ly, Johnston
administered three standard field sob riety tests on Churkey. Ch urkey met the “decision point” for arrest on each of the tests. 15 Following the administration of
those test s, Johnston arrested Churkey beca use he believed th at Churkey had been driving while intoxicated. Johnston then to ok Churkey to the hospital, where Churkey consented to a blood draw.
Katie Scott

— a forensic toxicolog

ist with the Tarrant County Medical
Examiner’s Offi ce
— analyzed the results of Churkey’s blood draw. Ac cord ing to

14 A crash recons truc tion was not performed in this case because Ch urkey ’ s truc k was moved following the collision in an att empt to save Asheta ’ s life. As explained by an accident reconstructionist who testified at Churkey ’ s trial, “ [ p]art of being able t o do a reconstruction is you have to know without a doubt where the vehicles came to rest after a collisi on. ” That witness also testified that a photogra mmetry program used by Arlington police in 2017 that was supposed to map out crash scene s was “ so rely lacking , ” further preventing efforts to make a reconstruction of the subject wreck

.

15 Johnsto n explained that a subject “[d oes] not pass o r fail” standard field sobriety tests; rather, a subject eit her meets or doe s not meet a “decision p oint ” for arrest with respect to each of the tests.8

Scott, Churke y’s blood alco hol concentration was 0.16 at the time his blood was
drawn

— twice the legal limit in Texas

. See Tex. Penal Code Ann. § 49.01(2)(B)

. Richard Fr ies, the deputy medical examiner for the Tarra nt County Medical
Ex aminer’s Off

ice, perform ed Asheta’s au topsy. Fries observed that Asheta had suffered two lacerations to the right ventricle of her heart, injuries that Fries described
as “fat al.” He opined that those lacerat ions were “consisten t with being hit by a

ve hicle.” Fries also observed that Asheta had suffered tears to her right kidney and right adrenal gland. He stated t hat those tears would have c aused internal b leeding
and been “life

- threate ning.” He testified that those tears “are com mon injuries in
blunt force traum a, particularly in motor vehicle collisions” and that they are “consistent with a pedestria n being struck by a vehicle. ”
Fries also observed that Ash eta had sustained mu ltiple lacerations to he r liver,
multi ple fractured ribs, and a fractured pelvic bon e. He stated that those injuries are “[c]ommon in blunt force trau ma, particularly in auto/pe destrian collisi ons.” He also opined that “many of [Ashe ta’s injuries] would be fatal in and o f themselves, and certainly the combination of those [was] also lif e

- threatening and fatal in this case.” According to Fries, Asheta’s caus e of death was “ multiple blunt force injuries due to a pedestrian being struck by a motor vehicle,” and her manner of death was homicide.9 I I I. D ISCUSSION
A. Churkey ’ s complaints o f material variance and insufficient evidence
In his f irst point, Churkey arg ues that the State’s indictment contained a
materi a l variance from the evi dence presente d at tria l. In his second point, Churkey argues that the evidence was insufficient to sup port his conviction. Because bo th of
these points implicate the sufficiency of th e evidence, we will disc uss them toget her.
See Lyon v. State , No. 02

- 17

- 00195

- CR, 2018 WL 6816209, at *9 (Tex. App.

— Fort Worth Dec. 27, 2018, pet. ref’d) (mem. op. , not desi gnated for publication) (“Under Texas law, a variance between the allegations in t he indictment and the ev idence at
trial is a mat ter of evidentiary sufficiency.”).
1. Standard of review In our evidentiary

- sufficiency review, we view all the evidence in the light most
favorable to the verdict to determine whether any rational factfind er could have found
the crime’s essenti al elemen ts beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Queeman v. State , 520 S.W. 3d 616, 622 (Tex. Crim. App. 201 7). This standard gives full play to the factfind er ’s responsibility to

r esolve conflict s in the testimony, to weigh the evidence, and to draw reas onable
inferences from basic facts to ultimate facts. See Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; Harr

ell v. State , 620 S.W.3d 910, 914 (Tex. Crim. App. 2 021).
The factfinder a lone judges the evidence ’s weight and credibility. See Tex. Code
Crim. Pr oc. Ann. art. 38.04; Martin v. State , 635 S.W.3d 672, 679 (Tex. Crim.10

App. 2 021). We may not re

- evaluate th e evidence’s weight and credibility and
substitute o ur judgment for the fa ctfinder’s. Qu eeman , 52 0 S.W.3d at 622. Instead, we
determine whether th e necessary inferences are reasonable based on the evidence’s
cumulative for ce when viewed in the light most favorable to the verdict. Braughton v.
State , 56 9 S.W.3d 592, 608 (Tex. Crim. App. 2018 ); see Vi lla v. State , 514 S.W.3d 227, 232 (Tex. Crim. App. 2017) (“The court conducting a sufficiency review must not engage in a ‘div ide and conquer’ strategy but mu st consider the cumulative force of all
the eviden ce .”). We must presume that the factfi nder reso lved any conflicting
inferences in favor of the ve rdict, and we must defer to that resolution. Braughton , 569 S.W.3d at 608.
To determine whether the State h as met its burden to prove a defendant’s guilt bey on d a reasonable doubt, we compare the crime’s e lements as defined by a hypothetically correct jur y charge to the evidence adduced at trial. Hammack v. State , 622 S.W.3d 910 , 914 (Tex. Crim. App. 2021); se e also Febus v. State , 542 S.W.3d 568, 572 (Tex. C ri m. App. 2018) (“The es sential element s of an o ffense are determined by state law.”). Such a cha rge is one that accurately sets out the law, is authorized by the
indictment , does not unnecessarily increas e the State’s burden of proof or restrict the
Stat e’ s theories of liabilit

y, and adequate ly descri bes the particular offense for which
the defendant was tried. Hammack , 622 S.W.3d at 914. The law as authorized by the
indic tment means the statutory elemen ts of the offense as modified by the charging
inst ru ment’s allegations. C urlee v. State , 620 S.W. 3d 767, 778 (Tex. Crim. App. 2021);11

see Rabb v. St

ate , 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) (“When the State pleads
a sp ecific element of a penal offens e that has statutory alternatives for that element , the sufficiency of the evidence will be measur ed by the element that was actually pleaded, and n ot any alternative statutory elements.”). Th is standard of review is the

sa me for direct and circumstantial evidence cases; circumstantial evidence is as
pro ba tive as direct evidenc e in establishi ng guilt. Carter v. State , 620 S.W.3d 147, 149 (Tex. Crim. App. 2021), cert. denied , 142 S. Ct. 859 (2022). 2. Applicable law
A varia nce occurs when there is a discr epancy between the allegations in the charging ins tr ument and the proof at trial. Gol l ih ar v. State , 46 S.W.3 d 243, 246 (Tex. Crim. App. 2001). When a variance occurs, the State has proven the defendant guilty
of a crime b ut has proven its commission in a manner that varies from the allegations
in the c ha rging instrument. Id. There are two types of variances i n an evidentiary

sufficiency analysis: material variances and immaterial variances. Thomas v. State , 444 S.W.3d 4, 9 (Tex. Crim. App. 2014). Im material variances do not affect the validity of a c riminal conviction; th us, a hypotheti cally correct jury ch arge need not incorporate allegations that would give rise to only immaterial variances. Id. But a
material vari ance renders a conviction infirm , and the only remedy is to render an acquittal. Id

. A variance is materi al onl y if it p rejudices the defendant ’ s subst antial rights. Lyon , 2018 W L 681 6209, at *9 (citing Gollihar , 46 S.W.3 d at 25 7). A defendant ’ s12

substan tial rights are not prejudiced s o l ong a s the indictment , as written, inform ed
the d efendant of the charge against him su fficiently to al low him to prepare an adequate defense at t rial and so long as the deficiently drafted indictment would not subject the defendant to the risk of being prosecuted later for the same crime. Id. (citing Gollihar

, 46 S.W.3 d at 2 5 7). A person commits intoxication manslaughter if the p erson (1) operates a motor vehicle in a public place, (2) is intoxicated, and (3) by reason o f that intoxication
causes the d eath of another by accident or mistake. Tex. Pena l Code Ann . § 49.08 (a)

. 3. Analysis of Churkey ’ s material

- variance complaint
The State ’ s indictment alleged that Churkey operate d a motor vehicle in a public place while i ntoxicated , and by reason of that intoxi catio n, caused Asheta ’ s death “ by driving s aid motor vehicle into o r against ” her

. On appea l, Churkey argues
that there was “ no proof

” that his truck “ actually drove into or against ” Asheta , and, accordingly, he arg ues that the indictment con tains a material variance f rom the
evi dence presen ted at trial

. We disagree that there is any variance

— material or otherwise

— between the allegations in the indictment and the evidence presented at trial

. The jury heard
substa ntial ev

idence by which they could, at the very leas t, in fer that Churkey ’ s truck
drove “ in to or against ” Asheta. In this regard, Tyisha testified that both she and
Asheta “ got hit. ” Further, Asheta was ultimately found underneath Churkey ’ s tr uck. Runya n stated that Asheta was “[u]nder nea th the front wheel an d the driver’s side” of13

Churkey’s truck , and Enl o w said that Asheta was “ tangled up in the exhaust ” of
Ch urkey ’ s truck. P erhaps more importantly , Fries

— the deputy medical examiner

— testified that the lacerations suf fered to Asheta ’ s right ventric le we re “consistent with [her] being hit by a vehicle.” He also stated that the te ars to her right kidney and right adrenal gland were “consistent with a pedestria n being struck by a vehicle. ” Likewise,
he o pined that the mult

iple laceration s to Asheta ’ s liver, her multiple f ractured ribs,
and her frac tured pel vic bone were injuries that were “[c]ommon in blunt force

trau ma, particularly in auto/pe destrian coll isions.” And u ltimately , Fries con cluded
that As heta ’ s cau se of death was “ multiple blunt force injuries due to a pedestrian being struck by a motor vehicle

. ” A rational juror could infer from all of this evidence that Churkey ’ s tr uck dr ove

“ into or against ” Asheta, and, thu s, there is no variance. 16 See Ru ssell v. State , No. 02

- 20

- 00024

- CR, 2022 WL 1043129, at *5 (Tex . App.

— Fort Worth Apr. 7, 2022, pet.
ref ’ d) (mem. op., not designated for publication) (hold ing that there wa s no va riance

16 Even if th ere was a variance, we fa il to see how it would be material , and Churkey has not explained how the alleged variance prevented him from preparin g a defense or h ow he could be prosecute d ag ain un der the same facts

. See Hilburn v. State , 312 S.W.3d 169, 175 (Tex. App.

— F ort Worth 2010, no pet.) (hold ing that variance, if any, was not material where charging instrument alleged death was caused by def endant driving h is vehicle “ into and aga inst a motor vehicle o ccupied by [the victim] ” while proof at trial sh owed that victim did not die by blunt force trauma but died from his vehicle ca tching on fire); Megas v. State , 68 S. W.3d 234, 241 (Tex. App.

— Hous ton [1st Dist.] 2002, pet. ref ’ d) (holdi ng t hat variance, if any, was not material where char ging i nstrument alleged death was caused by collision with concrete barrier and proof at trial s howed collision caused the vehicle to flip and crush victim).14

between allegation in indictment that defendant “ stood in fro nt of the entry gates ” and proof at trial that defendant was “ part of a group that formed a ‘ human chain ’ ” where jury could have infer red from testimony that “ the human chain necessarily
b locked the gates ” ). We overrule C hurkey ’ s f irst point.
4. Analysis o f Churkey ’ s s ufficiency complaint Churkey argues that “there was insuffic ient evidence to prove that [his] intoxication caused [A sheta ’s] death. ” Churkey points to ev idence that Asheta ’s SUV “was pointing in th e opposite direction of travel ” and had its h ead lights on while facing the eastbound traffic on Interstate 20

. He suggests that “ [ i ] t is entirely possible
that this situation caused [him] to become disoriented and take action to try and avoid

a c oll ision. ”
It is undi sputed that Churkey was operati ng a moto r vehicle in a public place while intoxicated. In this regard, the evidence reflects that Chur key was driving on Interstate 20 in Arlington, that h e smel led of alcohol at the scene of th e crash , that he
met the “ decision point ” for arrest on thre e separate standard field sobriety tests, and
that his blood alcohol concentration was 0 .16 at the time his blood was d rawn. As to whether hi s intoxication caused Asheta ’ s death, the evidence re flects that immediately before the crash, two witnesses were so concerned about Churkey ’ s erratic driving that the y initiated 911 calls

. Runyan testified that Churkey was

“ swerving fr om lane to lane ” and that he was having difficulty maintaining his lane.
Con trary to Churkey ’ s argument that he was disoriented and took action to av oid the15

collision , Runyan testifi ed that he did not see Churkey ’ s truck slow down as it
approac hed Asheta and Tyisha, nor did he see Churkey take any evasive action. As to Churkey ’ s sugg estion that he was disoriented b y Asheta ’ s headligh ts, Tyisha testified
that the hood of her s edan wa s u p, making it “ kind of imp oss ible ” for Asheta ’ s headl ights to have “ blinded ” other d rivers

. And, of course, Churkey did not mention to police officers that he was disoriented by Asheta ’ s headlights; rath er, Churkey told Johns ton that he h ad seen b rake lights in front of him ; that the car s in front o f him
had slamm ed on their brakes; and that he had applied his brakes and had tried to pull
off to the side of the highway to get out of the way of the other c ars . After viewing
all the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found, beyond a reasonable doubt, that Chur key (1) operated a motor vehicle in a public place ; (2) was intoxica ted ; and ( 3) by reason of that
intoxica tion c aused Ash eta ’ s death by accident or mistake. See Tex. Penal Code Ann. § 49.08 (a) ; Jackson , 443 U.S. at 319, 99 S. Ct. at 2789. We overrule Churkey ’ s second point.
B. Churkey ’ s complaint s that the trial court admitted e viden ce in violation of Kelly and his confro ntation righ t s In his t hird point, Churkey argues that t he trial court failed to perform its gatekeeping function under Kelly 17 by permitting a witness to testify at the punishme nt

17 “ Un der K

elly , a tri al judge , upon request, must conduct a ‘ gatekeeping ’ hearing outside the presence of the j ury to determine whether s cientific evidence is sufficiently reliable and relevant to help the jury in reaching an accurate result

. ” Colem an v. State ,16

phase of his trial a bout his v iolat ions of certain bond con ditions

. In his fourth point, Churkey argues that the trial cour t abused its discretion by admitting that testimony
over his confrontation objection. 18
1. The complained

- of testimony and Churkey ’ s object ion During the pun i shment phase of Churkey ’ s trial , Stacy Franco, a senior court probation officer, testified that Churkey had been placed on bon d while awaitin g trial. Churkey ’ s bond cond ition s r equired that he abstain from u sing controlled substanc es , including m arijuana ; that he refrain from dri nking alc ohol ; and t hat an ignition
interlock device be installed on any vehicle that he drove

. Franco stated that Churkey
had committed bond violations while he was awaiting trial.
Churke y ’ s attorney th en took Franco on voir d ire o utside the jury ’ s presence, where Franco indicated that Churkey had consumed al cohol and tested positive for

ma rij uana while on bond. Franco stated that her knowledge of those two infractions

wa s “ primar ily on the basi s of record s created by someo ne else ”

— records that were

not a dmitted at Churkey ’ s trial. Churkey ’ s attorne y objected to Franco testifying about the bond violations, stati ng that she was “ not a p ersonal witnes s to the bond

440 S.W.3d 218 , 226 (Tex. App.

— Houston [14 th Dist.] 2013, no pet.); s ee Kelly , 824 S .W.2d at 572

– 73.

18 In a cr iminal prosecuti on, a defendant ha s a Sixth Amendmen t right to confront adve rse wit nesses. Giles v. Califo rnia , 554 U.S. 353, 357

– 5 8, 128 S. C t
. 2678 , 2682 (2 008) (citing Crawford v. Was hington , 541 U

. S. 36, 68, 124 S. Ct. 1354, 1374 ( 2004)).17

violations ” and that her testimony regarding the bond violations left Churke y with

“ the inability to confront

. . . thos e all egations. ” The trial court overruled Churkey ’ s objection.
B ack before the jury, Franco testified that Churkey had vi olate d his bond in
M ay 20 21 due to a “ positive bl ow ” on his ignition interlo ck device, indicating that he had been drinking alcohol. She also told th e jury that Churkey had violated his bond in May 2019, stating that he had t ested positive for mar ijuana.
2. Churkey ’ s failure to preserve his Kelly complaint The State argues that Churkey did not p reserve his Kelly complaint be cause

“ [ h ] e did not complain [ to the trial court ] a bout the State ’ s alleged failure to sa tisfy the Kelly r equirem ents for the re liabil ity of scientific evidence. ” We ag ree. To preserve a comp laint for our review, a party must have presented to the trial court a timely request, objecti on, or motion sufficiently stating the specific grounds, if

no t apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Montelongo v. Stat

e , 623 S. W.3d 819, 822 (Tex. Crim. App. 2021) . Further, the party must obtain an express or i mplicit adverse trial

- court ruling or object to the trial

cour t’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Dixon v. State , 595 S.W.3d 216, 223 (Tex. Crim. Ap p. 2020)

. An objection preserves only the specific ground cited. Tex. R. App. P. 33.1(a)(1)(

A); Tex. R. Evid. 103(a)(1)(B); Mosley v. State , 983 S.W.2d 24 9, 265 (Tex. Cr im. App. 1998) (op. on reh’g)

.18

Here, Churkey did not object to the admission of Franco ’ s test imo ny on Kelly grounds. Thus, he has failed to preserve his complaint on ap peal that the trial court failed to perform its gatekeeping function un der Kelly

. 19 Se e St raker v. State , No. 08

- 14

- 00111

- CR, 2 016 WL 5845826, at *10 n.10 (Tex. App.

— El Paso Sept. 30, 2 016, no pet.) (not designated for publicati on) ( “ Appellant ap pears to contend th at many, if not all, of [the witness ’ s ] conclusi ons lacked a s ufficient scien tific foundation, and
therefore should not have been a dmitted at trial. Appellant never objec ted to [the
witness ’ s] testimony on this basis at trial, however, and we therefore de cline to address these challenges on a ppeal. ” ); Parker v. Stat e , No. 14

- 09

- 00 104

- CR, 2010 WL 2784428, at *6 n.2 (Tex. App.

— Housto n [14th Dist.] July 15, 2010, pet. ref ’ d) (mem. op., not designated for publication) (noting that “ [s]everal courts of appeals hav e determined that a specific object io n to scientific eviden ce is neces sary to preserve a

corre sponding appellate complaint ” ). We overrule Churkey ’ s third point.

19 In his brief, Churkey references a pre

- trial motion that he filed requesting that the State di sclose the f

acts or data underlying any expert opinions and that he be allo wed to conduct a voir di re e xamination directed to the unde rlying facts or data upon which the opinion was b ased before any e xpert testified before the jury. But that motio n did not alert the trial court or the St ate that Churkey was objecting to Franco ’s t estimony based on Kelly , nor did the trial court ever rule on that motion. Thus, the mere filing of Churkey ’s pre

- trial motion did not preserve his Kelly
co mp laint. See Dixon , 595 S.W.3d at 2 23 (holding that to preserve error, the complaining part

y must obtain a ruling on its objection, or absent a ruling, the complaining party m ust object to the trial court ’ s refu sal to rule); Fierro v. State , 706 S.W.2d 310, 317

– 18 (Tex . Crim. App. 1 986) (holding that a genera l objecti on is insufficient to ap pris e the trial court of complaint urged and thus preserves nothing for review).19

3. C hurkey has not been harmed by the admission of Franco ’ s testimony With respect to hi s confrontation complaint, a ssuming, w ithout deciding, that
th e trial court e rr oneously admitted Franco ’ s testimony regarding Churkey ’ s bond violations, any error was harm less. Error in admitting evidence in v iolation of
confront ation rights is constituti onal error subject to a const itutional harm analysis. Langham v. State , 305 S.W.3d 568, 582 (Tex. Crim. App. 2010) ; see Tex. R. App.
P. 44.2(a). Under this analysis, re v er sal is r equired unless we deter mine b eyond a reasonable d oubt that the trial court ’ s error in the admission of the testim ony did not
contribute t o Churkey ’ s pun ish ment. See Tex. R. App. P. 44.2(a); Wells v. State , 611 S.W.3d 396, 410 (Tex. Crim. App. 20 20)

. Our harmless

- error analysis should not focus on the pr opriety of the trial’s

out come but rather should focus on whethe r the constitutional err or adversely
af fected the integrity of the process leading to the punishment. See Wel ls , 611 S.W.3d
at 410

. To that end, we “should take into account any and every circumstance apparent in the record that logically informs an appe ll ate determination whet her ‘beyond a r easonable doubt [that particular] error did not contribute to the conviction or punishment.’” Snowden v. State , 353 S.W.3d 815, 822 (Tex . Crim. App. 2011) (quoting Tex. R. App. P . 44.2(a)). While the most significan t concern must be the

er ror and its eff

ects, the presence of overwhelming evidence supporting the finding in question can be a factor in the evaluation of harmless error. Well s , 611 S.W.3d at 410.20

We evaluate the ent

ire record in a neutral manner and not in the light most favor able to the pro secution. Id. at 410

– 11. Churkey argues that Franco ’ s testimony was harmful, claiming that Franco ’ s testimony reg ar ding “ the interlock violation was the only evidence that [Ch urkey]
drank alcohol while on bond ” an d that her testimony reg arding “ [t]he p ositive drug test was the only evidence of [Churkey] consuming drugs ” while on bond

. Those

as sertions belie the evid ence . D uring the punishment phase, Churk ey admitted that he “did have th e two times where [he ha d] failed on th e bond part.” When asked to elaborate on those bond violations, Chu rkey testified that he “had had a moment of crisis and a relapse” in May 2021 , where he “had a ba d day” and “end[ed] up drinking alcohol.” As to his
faile d drug test, th e following exchange occurred:

Q. Let’s talk about your drug us e. In the last five

- and

- a

- half years, have you consume d drugs?
A. It was shown that I have had

– I’ve used marijua na. Q. It was shown that you h ad used marijuana. So d id you?
A. I did. Q. Okay. On that one occasion?
A. Yes. Q. Was there a second occasion?
A. No.21

In light of Churkey ’ s admission during the punishment phase of his trial that he
d rank alcohol and used marijuana while on bond , and a fter carefully reviewing the record and performing R ule 44.2(a)’s required harm analysis, we hold beyond a
reasonable doubt that the trial court’s error , if any, in admitti ng Franco ’ s testimony
did not co ntribute to C hurkey ’ s p unishment

. 20 See Tex. R. App. P

. 44.2(a) ; McNac v. State , 215 S.W.3d 420, 424

– 25 (Tex. Cr im. App. 2007) (hold ing that any error in the
trial court ’ s admission of evidence that allegedly violate d the appellant ’ s confron tation rights w as harmless where evidence was c umulative of other uncha lle nged evidence) ; Prit ch ard v. State , No. 2

- 08

- 137

- CR, 2009 WL 112717, at *4 (Tex. App.

— Fort Worth Jan. 15, 2009, pet. ref

’ d) (mem. op., not designated f or pub lication

) (similar)

. We
overrule Churke y ’ s fourth point.
IV. C ONCLUSI O N Having overruled Chur key’s four points, we affirm the trial court’s judgment.

20 Similar ly, even if Churkey ha d preserved his Kelly complaint , we would l ikewise hold that any erro r made by the trial court with respect t o Franco ’ s testimony was harmless due to Churkey ’ s testimony that he had consumed alcohol and used marijuana in violation of his bond conditions

. See Tex. R. App. P. 44.2(b) (requiring us to disregard any nonconstit utional error that d oes not affect an ap pellant ’ s substantial rights) ; Sa ndon e v. State , 394 S.W.3d 788, 794 (Tex. App.

— Fort Worth 2013, no pet.) ( “ The improper admission of evidence is harmless if the same or similar evidence is admitted without objection at another point in the trial. ” ).22 /s/ Dana Womack
Dana Womack J ustice
Do Not Publish Tex. R. App. P. 47.2(b)
Deliver ed : December 14, 2023