### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00448
- CR

Macario Mejia Hernandez , Appellant

v. The State of Texas, Appellee

FROM THE 22ND DISTRICT COURT OF HAYS COUNTY NO. CR -19-0951-A , THE HONORABLE R. BRUCE BOYER, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Following a car accident in which two te e nage girls were killed and three other ind ividuals were injured , appellant Macario Mejia Hernandez was charged with twelve crim inal offenses

— two counts of murder, two count s of intoxication mans laughter, three counts of intoxication assault, two counts of collision causing death, and three counts of collision involving serious bodily injury

. 1 A jury found a ppellant guilty of all charges, and the State abandoned th e two c ounts o f into xication mans laughter before sentencing

. Appellant opted for sentencing by the trial court , which sentenced him to thirty years in prison for each mur der charge, five years for each charge of collision causing bod ily injury, and ten years for each o f the other f ive charges, with the sentences running concurrently. On appeal, appellant argues (1) that

1 See Tex. Penal Code § § 19 .02(b)(3) ( mu rder), 49 .01(2) (definition of “ in t oxica t ed ” ), 49.04(c) (driving while intoxicated), 49.07 (intoxication assault) , 49.09 (enhanced offenses and penalties) ; see also Lomax v. State , 233 S.W.3d 302, 303 (Tex. Crim. App. 2007) ( felony DWI can be underlyin g fe lony required to con vict defen dant of “felony murd er ,” which occ urs if per son causes another’ s death during commission of “ a felony, other than manslaughter ”).2 the trial court abused its discretion in admitting improper retrograde

- extrapolation evidence and ( 2) that the evidence is insufficient to establis h th at he was int oxicated a t the time of the a cc ident.
We affirm the judgments of conviction.

SUMMARY OF THE EVIDENCE At about 9: 0 0 p.m . on April 27 , 2019 , a s eri ous car accident occurred at the inte rsection of Windy Hill and the northbound I

- 35 access ro ad in Kyle

. Exhibit s i ntroduced at trial show that Windy Hill bridges over I

- 35 east to west , intersecting with the highway access roads at traffic lights on either si de ; the speed limit on Windy Hill is fort y miles per hour

. A Honda sedan driven by Mi tc he ll Weissman had ju st entered the eastern intersection driving north when it was struck on the driver ’ s side by a Dodge truck driven by appellant , who was driving
east on W indy Hill

. The accident occurred very close to a gas station, and surveillance v id eo from the gas stat ion was introduced into evidence. T he video show s Weissman driving out of the gas station as his light turns yellow and continuing straight into the in tersection soon after or just as the light turns red

. T he collision occur red almo st i mmediately after Weissman enter ed the intersection. T he State intr oduc ed evidence that appellant had been convicted three other times of driving while intoxicated

— in June 2003 , March 201 0 , and May 2010

. The collision cau sed severe damage to Weissman ’ s c ar, push ing the side of the

car more than twelve inches into the pa ssen ger compartment, especially in the area of th e back seat

. Amanda Johnson, Weis sman ’ s girlfriend , was in the front passenger seat , and his three daughters

— H.W., P.W., an d B .W.

— were i n th e back

. H.W. and P.W., who were sitting on the driver ’ s side and i n the middle , were pronounced dead at the scene ; Weissman , his girlfriend, and
B.W. survived with serious injuries . Weissman suffered fractured ribs and a punctured lung ;3 Johnson suffe re d a severe concussion and cervical and thora ci c fracture s ; and B.W. s u ff er ed a concussion, a lacerated spleen, and a fractured leg

. Jonathan Smucker and his girlfriend were driving home that night when he noticed appellant ’ s tru ck in front of them “ d ri vi ng sort of erratically, bouncing from one line t o the other periodic ally. ” Smucker testified , “ I wouldn ’ t say hard

- core swerving but minor deviations , like going over the double yello w line and then back over the white. ” After h e witnesse d that kind of d r i ving “ multiple times ” over the course of “ a minute, two minu tes , ” he ch ange d lanes to not be behind appellant because Smucker “ just had a guess that it might be d angerous to stay behind. ” Smucker and appellant stopped next to each other at a red light o n the west side of Windy Hill and I

- 35, heading east , and “ a s soon a s ” th e light turned green, “the truck accelerated faster t han ” Smucker, continu ing toward the light on the east side of th e highway

. Smucker knew that with the timing of the lights in t h e a rea , “if you accelerate at a standard pace ” after the first light turn s green, “ the other side will turn green

— green before you get to it. ” Smucker said , however, “It appeared that he would be going to o quick to be able to stop if the lig ht had change d or

— the l i ght was red as he was approaching, but he was going too
q ui ck to stop at that

— that red light. ” Smucker believed that the light was re d when a ppellant entered the intersection and hit Weissman ’ s car
. After watching the surveillance video , Smuck er

a greed that Weissman had driven straight into the intersection from a ri ght

- turn

- only lane and had a red light when he entered the intersec tion

. Dominique Valerio, Smucker ’ s girlfriend, testified that she also noticed appellant several times “ driving out of the border s and then would overcorrect and then go back into t he
l ane , ” saying she was “ worried that [appellant] was a dr unk driver w hen [she] saw that. ” Valeri o
was very familiar with the area and the timi ng of the traffic lights and , b ased on tha t kn owledge4 and the fact that appellant had accelerated “ faster than traf fic normally d oes in that area , ” she

was confident that she r emembered the “ light being red when the truck went through it , ” although she watched the surveillance video and agreed tha t We issman had entered the intersection on a red light. Valerio te s tifie d that she saw appellant pull into the gas st ation an d get out of his truck a fter the accident but did not notice him approach W eissman ’ s car
. Vanessa Tuttle was waiting at the same int ersection when she saw appellant ’ s truck coming “ very , very fast ” and hitting Weissman ’ s car , which “ flew into the air. ” Tuttle testified tha t the truck appeared to be dri ving fast er than traffic in that area normally goes and estimate d that it was g o ing “ at least 40 mil es per hour. ” F ranchesca Hughley was stopped a t the intersection when she noticed “ a really l oud car, truck , ” which “ just flew past us, ” “ going strai ght through the red light. ” She said she initially noticed the truck i n her re ar view mirr or be cause “ I was lik e: Wow , that ’ s a loud tru ck. ” After the a ccide nt, Hughl ey parked and went to see if she could help

. She noticed app ellant ’ s truck parked at the gas station , so s he went over to check on the driver , notic ing that t he truck ’ s “ fro n t pa rt was really bad, ” “ smashed in in the front ” and “ bent on th e insid e. ” No one was in the truck, and no one returned to the vehicle while Hughley was there. Graciela Reyes was also at the intersection and no ticed appellant’s truck, which was ahead o f her , because she heard him rev his engine “ real loud ” while they

w aited for the light to turn green. When the light turned green, he “ peeled off ” and “ sped off quickly

. L ike, not just like a regular move - on
. ” Reyes heard the accident occur , although s h e di d not see it , so she parked and came over to check on the vehic les. She noticed appellant ’ s truck parked nearby and empty. Martin Ebanks did not see the collis ion but was in the a rea and

we nt to try to help

. He saw appellant get out and walk around the front of his vehicle ; t he ne x t time Eb anks looked over, appella nt wa s gone , and Ebank s never saw him again that nig ht

.5 Michael Weissman tes tified that he lived in Frisco and had been driving his family home from San Antonio when the accident occurre d

. H .W. was eighteen, P.W. was sixteen, and B.W. was twelve. He de scrib ed stopping to g et gas and pulling out from the gas station onto the acce ss road. He could not recall everything, but he thought that the intersection

was “ [ p]retty close ” to the dri v eway he used. He also “ recall[ed] the light being green ” as he pul led o ut of the gas station and th ought the light was green as he approached but s aid, “ Possibly could h ave turned yellow. I ’ m not sure. ” He testified that he had watched the video of the acci dent but that his recollection ha d not changed after watching i t. Ann Gonzales was driving northbound at the intersection and saw Weissman ’ s

v ehicle leav ing the gas station . She proceeded through the intersection and heard “ an e ngin e revving kind o f , li ke, real loud like as if somebody was speeding up. And then by the time [she] looked back, the truck had already struck the car. ” Gonzale s ne ver he ard any braking sounds,

“ no a ttempting to stop, no squealing , no slowing down, ” “ [j ]ust straight impac t

. ” Gonzales testified that she had remembered the northbound light as b eing green , but a fter watching the video , she rea lized it ha d turned red shortly before the accident. When Sergeant Jonathan Akers responded to the car accident , witnesses told him
t hat the D odge pickup truck par ked in the nearby lot had struck Weis sman ’ s sedan

. Akers did not find the driver of the truck at the scene and was told by witness es that “ a male subject e xited that vehicle and walked away from it. ” One witness described t h e dr iver as an “ older Hispanic male with long hair pulled back into a po nytail and a long sal t and p epper beard, ” a description that matche d appella nt ’ s appearance on the night he was arrested. Officers could not find anyone in the area matching th e desc r ipti on , so Akers looked in th e truck and found a document addresse d to a ppellant , then looked him up in p ub lic records to find a n address and a phot ograph6 that matched the witness ’ s description of the driver

. A k ers went to the address and took custo dy of appe llant

. Appellant was read his rights and transported to a h osp ital to be check ed for inj u ries from the crash and to ha ve his blood drawn under a search warrant. Aker s ’ s b odycam video shows that when appellant made a mild complaint about his shoulder whil e being handcuffed , Akers responded , “ Well, maybe you shouldn ’ t have killed two kids. ” However, Akers did not ask a pp ellant about the crash, and he did not recall appellant saying anything during the ride. Akers testified that he noticed “ the odo r o f an alcoholic be verage emitting fro m him

— his person ” and that he to l d ano ther officer that appellant “ re eked of

— of booze. ”
Se rgeant James Jones , the crash

- team commander , testified that Akers contact ed
him to report “ a s trong odor of an alcoholic bevera g e co ming from [appellant ’ s] breath. ” Jones sought and obt a ined a warrant for a blood draw based on that information , witness statements about appellant ’ s driving , and the fact that he left the scene. Jones als o interview ed appellant , who admitted to dri n king six beer s between ab out 1:00 p.m . and 6:00 p.m. , when he sa id he stopped drinking. Weissman ’ s possibl e running of a red light did not affect Jones ’ s view of the

c ase . In fact, h e te stified that even if appellant had had a green light , based o n witn e ss

s tatements, appellant ’ s beh avior and state ments when ar r ested , and his blood

- draw resu lts, appellant had been driving wh ile intoxicated and “ caused the death of two people. ” Detective Pedro Carrasco, Jr. interviewed appellant at the hos pital

. Carras c o
te stified that appellant initially asserted that he had b een a sleep all night , that he was not sure what had happened , and that he “ was ju st trying to kind of figure out what was going on. ” A t the beginni ng of the interview, a ppellant s aid that he had d runk about four beer s through out the day before going to b e d at about 8:00 p.m. ; that he “ rarely ” drove his truck “ because he ’ s not supposed to due to not having a dri ver ’ s license ” ; that he had not driven the truck that d ay ; and7 that “ it appeared that so m eone had stolen the vehicle , ” claiming that he always left a key in the vehicle “ due to some type of mechanical error with the ignition

. ” Carrasco then disclosed that
appe llant had been described by witnesses and that Carrasco knew “ there was a little bi t mor e to the story than he was leading on. ” The dete c tive asked, “ Do you remember if your li ght was green or not , ” indicating that it looked like W eissman had run a r ed li ght, and appellant answered, “ Yeah, I had a gr een light

. ” Appellant said that he h a d ha d an argument with his gi rlfriend , so he wen t to t he lo cal Home Depot “ for a brief amount of time. ” On his way home, appellant said that “ he did get on it, ” which Carrasco took to mean that ap pellant “ was driving fast. ” A fter the crash, appellant sa i d , h e parked and g ot ou t of his truck, saw that other peopl e were helping, and ran and hid in the bushes because “ he became scared ” when the police arriv e d

. Maria Calderon , appellant ’ s girlfriend of eleven years, testified that at about
9:00 p.m., she s p oke on the phone to appellant , who said he w as going t o get something to eat. Not lo ng after that , he ca lled and asked her to pick him up “ [b]ecause his truck broke. ” Calderon drove past the accid ent and saw appellant’s truck parked at the gas station w h en s he turned around look ing for him . She found him w alkin g along a road near where the accident had occurred but did not realize that his truck had been in the a ccident

— she “ just thought it was stalled ”

— a nd a ppellant did not tell her he had been involve d in the a ccident

. Bria n Fennell , who has w orked in a uto r epai r for twenty

- five years, examined the vehi cles after t he crash and testified about the severe dam age sustained by Weissman ’ s sedan as shown in photographs introduced into evidence. He said th a t th e C p illar, which conne cts the rear door and the r ear w indow, was “ p ushed into the

— seating area. ” Detective Perry Field , a patrol officer on the night of the c rash , said that Weissman ’ s sedan was “ about 20 or 30 fee t onto Windy Hill , ” facing west on t he e astbound side of the road. “ [T] he driver ’ s side b ack d oor had8 been impacted approximately 27 inches into where this rear pas senger seat was , ” and th e child who had been sitting in that seat was lea ned over the l ap of the child in the middle. Field w a s

as ked whether the surveillance video shows that Wei ss man e ntered the intersection on a red
li ght

. He answered , “ Not when he enters the intersection from my perspective, sir , ” explaining :

The northern most parking lot from the Exxon is very close to tha t int ersection. And coming out of it, from me watch ing the v ideo, it appears that Mr. Weissman enters th e intersection as the light is yellow and then turns red as he ’ s entering into it, like after he ’ s already

— so he ’ s got inside of it. Then it turns red on h im.
Sergeant Daniel Gooding of the K yle Polic e De partm ent is certif ied as a collision reconstructionist

. He testified that skid marks at the scene indicate that the collis ion pushed Weis sman ’ s car sideways at a minimum speed of forty mil es per hour

. On cross - examination , defense counsel asked if , b ecau se We is sman ’ s car spu n around, Goo ding should have us ed a different brake

- efficiency number , which would resu lt in a speed o f thirty

- six miles per hour. Good ing said it was possible the car had done s o , w hich would result in the lower estimate

. A ppell ant ’ s blo od draw was performed at 12:39 a.m., about three hours after the accident

. K endall Stump is a forensic scient ist who testified about the blood

- alcohol testing performed on app ellant ’ s blood sam ple

. She testified that another scientist , who had s ince retired, did an ini tial analysis of the blood sample , so Stump “ went back to the instrument , ” “ got the raw data , ” and “ did [her] own data ana lysis to come up with an alcohol conce ntration separat e f rom his report. ” According to Stump ’ s analysis , appe llant had a blood

- alcohol

c oncentration ( BAC) of 0.108

. Stump testified about how the human body absorbs alcohol, saying , “ There ’ s n ot an average absorption rate. It can differ from person to person , s o it ’ s hard to tell an average and say how

— how quickl y or slowly something will be absorbed. There ’ s so9 many different factors: food in your stomach, how slowly, quickly you ’ r e drinking

. ”
A ppellant ’ s attorney objected , “ We don ’ t know what her experti se is o r isn ’ t. I know what ’ s being set up here, for he r to do a re trograde ex trapolation. ” T he State responded that it was not

as king for a retro grade extrapol ation and that Stump would not testify about her extrapolation of appellant ’ s BAC at the time of the a ccident. The trial court he ld a hear ing , durin g whi ch Stump testified to h er training, knowledge, and experience related to how the human body absorbs alcohol , and defense counsel asked whether an expert in the field had noted that the absorption ph ase can range “anywhere from 14 minutes up to 1 38 min utes ” and that “ short

- term fluc t uations

. . . occur during absorption

. ” St ump ag reed that “even if we take your 138 minutes, ” she could “ confidently say [that] after two, t w o - and

- a - half hours someone is onl y eliminating their alcohol. ” At the conclu sion o f th e hearing, the trial court said it disagreed that Stump wa s going to provide retrog rade extrapolation testimony , stat ing :

She can testify that the body

— the alcohol lev els tend to

— tend to diminish wh en t he body is eliminating alcohol. I mean, tha t ’ s

— th at ’ s a fair

— that ’ s a general principle. But she can ’ t testify as to how much she thought he had to drink when he quit drinking at six o ’ clock or how

— you know, w hat it should have been or what the ex tra pola tion, as you say, would have been as far as, you know, was he .25 or whatever. She can ’ t testify as to that. That would be extrapolation.

But she ’ s not going to be able to

— I ’ m not going to allow her to testif y as to what her opinion was as to ho w muc h he may have had or what the result might hav e been four hours earlier or three hours earlier, whatever it might be. But she can testify that the body

— let ’ s

— I mean, everybody knows that the body metabolizes alcohol. And I ’ m going to let her testify as t o th at

.
Stum p then ex p lain ed to the jury how alc oh ol is absorbed :10 The human body absorbs alcohol differently case by case, person to person. The only thing that we can be sure of is how long after a person ’ s last drink that the body has absorbed al l of the alcohol that has been taken in. And that ’ s usua lly a

bout an hour. We could be liberal with it and say an hour to an hour

- and

- a - half just to be sure, but it ’ s usually within an hour after you sto p drinking your last drink that your body has no mo re al coho l in your stomach to absorb. So by that t ime, a ll th e

— all the alcohol that you have taken in is now circulating through your bloodstream, and your body is working to eliminate it, get rid of it.
In other words, she said, a person will reach the ir “pea k ” a lcohol b lood content about sixty to
nin ety minut es af ter having their last drink. Asked what w ould be ha ppening between 9:00 p.m. and 12:30 a.m. if a person had their last drink at 6:00 p. m. , Stu mp said, “The blood alcohol
concentra tion would be decre asin g as your body eliminates the alcohol. ” S tump w a s as ked whether a BAC of .108 “ for a standar d person , ” “ correlates to about five drinks remaining being processed by

— in the blood , ” and she answere d, “ Yes, approximately five drinks, give or take a littl e b i t on either side. ” She agreed when a sked on cro ss - ex amination whether expe rts in the field had cautioned against relying on “[g]eneral averages ” because there are “fluc t uation[s] from
one person to another

. ” The only point at which appellant obj ected to Stump ’ s testimony was when the State asked wheth er a BAC of .108 told her “ anything about

. . . the amount of drinks remaining in th e body at the time of ” the t est. T he tri al court sustained the objection

. After the State r es ted and the trial court deni ed appellant ’ s motion for directed verdi ct

— argu ing t hat the State had n ot prove n that appellant was into xicated a t the time of the accident

— Br ia n Andrews , who co - owns an accident

- reconstruction company , testified on appellant ’ s behalf

. He explai n ed th at h e modeled the collision after read ing p olice re ports , watch ing the gas - station video , and going to the scene of the accident. According to his model, Weissman was short o f the int ersect ion and in the righ t

- turn

- only lane w hen his light turned re d but stil l proceeded straight into the intersect ion . An drews also testified that from the time11 Weissman ’ s car crossed the “ stop bar , ” the line before an intersection where vehicles are supposed to stop for red lights , it was “ 2.1 seconds to impact. ” Acc ording to Andrews , “ [ Y ] ou have 2.1 seconds from w hen you could see the vehicle to when the impact occurs. And in a scenario like this, the average driver will react in 1.4 to 1.9 seconds. ” Thus, he said, appellant would have had between 0.2 and 0.7 secon ds to brak e or try to steer away from Weissman ’ s car,

“ [a ]nd t he collision would still have occurred , ” meanin g “ the collision is unavoidable for the Dodge under the ini tial circumstances creat ed by the Honda , and the driver ’ s [perce ption response time] had littl e to no effect on the collis ion. ” In other words, he te stified, “ There ’ s no reasonable maneuver an average driver could do to avoid the collision

. ” Andrews also determined that because the lights in that intersection a re timed so that “ every light is red for

one - and

- a - half second s ” during light c hanges, appel lant was “ partially across the stop bar , ” where he should have stopped, but had “ not yet reached the lateral lines of the intersection when his lights turned green. ” H e conceded that appellant would have seen only red lights as he approached the inte rsect io n , that appellant was traveling forty

- five miles an hour as he drove into the intersection , and that he was half way over the stop b ar before his light turned green. Andrews s ummarized his tes timony abo ut whether both appellant and Weissman had cros sed
t heir respective stop bars when they should have stopped as fol low s : “ The testimony is that the Dodge was partially across, and then the Honda has not crossed the stop bar at all. ” He believed
t hat th e Do dge was “ in a bit of a gray area of the traffic code . It ’ s be yond the stop bar , but it’s
not in the intersection. ” During closing arguments, t he trial court sustained appellant ’ s objections to the
State ’ s assertions (1) that appellant ’ s BAC wa s “ eit her more or much more ” than . 108 at the tim e of the acci dent and (2) that “ we know at a minimum his BAC was .108 six hours [sic] afte r the12 accident . We don ’ t know what it was at the time, but we certainly know it was higher

. ” The court also instruc ted th e ju ry to disregard the argument , as reques ted by a ppell ant. The trial cou rt

overr uled appellant ’ s objection to the State ’ s argument that BAC results “ depend on when were you drinking and when were you tested because you know that after you drink th e alco hol doesn ’ t stay in your system fore ver. ” It also overr uled his objection to the State ’ s statement that appellant ’ s BAC “ cou ldn ’ t have been less than . 108. ”

DISCUSSION Appellant raises two issues on appeal: that the trial c ourt abused its d iscreti on by impr operly admitting retrograde

- extrapolat ion testi mony by Stump and that the evidence is insufficient to prove that appellant was intoxicated at the time of the ac cident.
Retrograd e Extrapolation Appellant argues that the trial court abu sed its di screti on b y allowing Stump to testif y that , if a per son ’ s las t drink wa s at 6:00 p.m. and their BAC at 12:30 a. m. was
. 108 , their
BAC at 9:00 p.m. could not have been lower than .108 , characterizing that as i m proper retrograde extrapolation. The State arg ues th at a ppellant did not preserve the error, that Stum p ’ s
t estimony did not amount to re trograde extrapolation, and that any error was harmless. We will

assum e without deciding both that appellant preserved the issue and that Stump did provide retrograd e extr ap ol ation testimony

. O n this record, ho wever, the erro r was harmless. The erroneous admission of retrograde

- extrapolation testimony is not constitutional error. Bagheri v. State , 119 S.W.3d 755, 762

- 63 (Tex. Crim. App. 2003)

. Thus,

we must disre gard t he e rror if , after examining the full r e cord , we h ave “ fair assurance that the error did not influence the jury, or had but a slight effect.” Solomon v. State , 49 S.W.3d 356, 36513 (Tex. Crim. App. 2001) ; see Tex. R. App. P. 44.2(b). T he question is “wheth er t he erroneously admitted testimony m i ght have p rejud iced the jury ’ s consideration of other evidence or substantially affected their deliberations.” Bagheri , 119 S.W.3d at 763. W e do not simply conduct a sufficiency review but instead review the entire rec ord , including testimony, jury inst r uctions, e ach s ide ’ s theories, their closing arguments, and voir dire , if applicable. Id

. We

“ consider whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whe ther i t wa s elicited from an expe rt. ” Id

. S tump was c alled as an expert on blood an alysis, but her status as an expert was

no t o verly emphasized by the State . Moreover, her testimony was cumulative in the sense that there was other significant evidence of ap pell ant ’ s intoxication at the time of the ac cid ent

— his

er ratic driving, his racing across the bridge int o the eastern in tersection , his decision to flee the scene, and his admission of having drunk throughout the day

. See Douthitt v. State , 127 S.W. 3d
327 , 33 8 (Tex. App.

— Austin 2004 , no pet. ) ; see als o Clay v. State , 240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007) (“Evidence of flight evinces a consciousness of guilt.”)

. Although appellant argues that the State placed great emphasis on Stump ’ s
test imony in i ts argument s, the record does not suppor t t hat assert ion. The State did refer t o appellant ’ s BAC level and Stump ’ s testimony in closing arguments , as did defense counsel , but it did not place great emphasis on her testimony , essentially remindin g the jury that appellant tested at ab ove the lega l l imit three hour s after the accident and six hours after he claimed to have stopped drinking. Instead, the State emp hasized the testimo ny given by the various witnesses

— that appellant was seen swerv ing i n his lane , that he revv ed his engi ne at the light , t hat he rac ed ah ead when the firs t light t urned green and a t least started into the second inte rsection on a red light, and that he was going about forty mile s an hour when he crossed in to14 the intersectio n . It not ed that appellant had admitted to drinki ng six beers and c laimed to have stopped drinking three hours before the accident , and it placed heavy emphasis on the fact that appellant fled the scene, hiding in bushes when he saw the p olice and calli ng his g irlf riend to say his truck ha d stalled out a nd to ask her to p ick him up on the side of the road

. And last, the State emphasi zed the fac t that appellant had been convicted of drivi ng while intoxicated three t imes in the past. In addition, the two t imes d urin g closing arguments that the State sa id app ellant ’ s B AC

wo uld have been “ much higher ” tha n .108, appellant objected , and the trial court sustained the objection and instructed the jury to disregard the statements

. Moreover, a ppellant did not pr esent any evidence or argument that he drank anyth ing after the acci dent so as to explain his heig htened BAC results three hours after the

a ccident

— he argued that the State did not prove he was intoxicated at the time of the collision and that the accident was e ntir ely Weissman ’ s fault

. The jury was show n a vi deo of the a ccident , which shows appellant entering the intersection very soon after Weissman ’ s light turned red and going fast enough to cross the intersection and strike the sed an with enough force to dri ve i t sidewa ys at a s peed Gooding estimated as bei ng between thir ty

- six and forty mi les per hour

. Several witnesses estimated that appellant was going forty or fort y - five miles an hour when h e hit Weissman ’ s car, and a ppellant ’ s own expert testified that appe llant was driving forty

- five miles an h our as he approac hed t he intersection, at which time he would have seen a red light , halfway crossing the stop bar before Weissman ’ s lig ht turned red

. As in Douthitt , the challenged testimony came from an expert , “ b ut there is no indication that the juro rs were predispos ed to give such testimony greater weight than the other evidence before them , ” and t he retrograde extrapolation testimony “ was cumulative of other evidence of intoxication and was not given specia l em phasis by the State. ” 127 S.W.3d at 3 39.15 And a lthough the S t ate did remind the jury about Stump ’ s testimony during closing arguments, it

“ did not claim special expertise for [Stump] or suggest that [her] testimony was alone sufficient to convic t. ” I d

. G iven the strength of the State ’ s case and the “relative weak ness of appellant ’ s defen sive theories,” we conclude with fair assurance that the retrograde extrapolation testimony
at most had a slight effect on the jury. See i d. We overrule appel lant ’ s fir st issue on appeal. 2
See Tre vino v. S tate , No . 03

- 16

- 00 017

- C R, 2017 WL 4900496, at *7 (Tex. App.

— Austin
Oct. 27, 2017 , no pet. ) ( mem. op. , not designated for publication ) ; Douthitt , 127 S.W.3d at 339

.
S

ufficiency of the Evidence Appellant argu es tha t th e evidence is insufficient to establish that he was impa ired at th e tim e he was in the accident

. 3 We disagree. In consider ing the sufficiency of the evidence, we ask whether a reasonable juror could have found each element of a criminal offe nse beyo nd a reasonable doubt , defer ring to the jury ’ s det erminati ons as to witne ss credibility , the weight to be given to the evidence, and the

2 Appellant makes an a dditional argument related to the Kyle Police Department ’ s h andling o f bl ood taken from W eissman and ap pellant fo r alcohol and d rug testi ng , which required a box of vials of blood to be relabeled with the correct name , asserting , I t is not known what effect these incidents had on the jury and its deliberations re garding t he r eliability of the Kyle Police Department ’ s handling of t he eviden ce in this case, but the testimo ny of Ms. Stump could have deflected any negati ve impressions left upon the jury by the Kyle Police Department ’ s conduct. However, we fail to s ee how S tum p ’ s test im ony , rela ted solel y to her finding s after te sting the bloo d labeled as appellant s , would have influence d any con cerns t he jury might have had about the separate issue of how the blood samples were handled

.
3 Appellant challenges only the findin g th at he was intoxicated

. See Tex. Penal C ode § 49 .0 1(2) ( defining “ in t oxicat ed ” as “ not having the normal use of mental or physical faculti es by reason of the introduction of alcohol

. . . into the body ” or “ having an alcohol concentration of 0.08 or mo re ” )

.16 resolution of any evidentiary conflicts

. See B rooks v. State , 3 23 S.W.3d 893, 912 (Tex. Crim. App. 2010) ; Clay ton v. S tate , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)

. This st andard

acc ounts for the factfinder ’ s duty “to res olve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Clayton , 235 S.W.3d a t
77 8

. W e consider all of the evidence the jury w as allow ed to cons ider, regardless of whether it was rightly or wrongly admitted ; view that evidence in the light most favorable to the verdict ; and presume that the jury resolved conflicting infere nces and iss ues of credibility in favor of its verdict

. I d

. ; Demo nd v. Stat e , 45 2 S.W.3d 435, 445 (Tex. App.

— Austin 2014 , pet. r ef ’ d )

. We

w ill not overturn a verdict unless we determine t hat it is irrational or not supported by proof beyond a reasonable doubt. Mats on v. State , 819 S.W. 2d 839, 846 (Tex . Crim. App. 199 1).
As n oted above, s everal witnesses testified that appellant swerved in his lane and drove erratically

. Smucker and Valerio were both concerned that appellant might be impaired , and Sm u cker cha n ge d lanes to avoid following appellant, thinking that wou ld be sa fer

. Reyes testified that appellant was revving his engine as he waited at the red light on the west side of the intersect ion , and several w itnesses testified that appellant took of f from t hat light at high sp eed ,

ra cing towa rd the e astern int erse c tion where he collided wit h Weissman, despite those lights being timed so that driving at a moderate speed would allow the second light to safe ly turn green. Smucker, Valerio , and Hughley all test ifie d that appellant entered the int ersectio n on a red ligh t, and appellant ’ s expert conceded that appellan t crosse d the stop bar on a re d and that the light only turn ed green after he was halfway ac ross. Appellant wa s estimated to be driving betw een thir ty

- s ix and forty

- five miles an hour at the t ime he str uck W eissman ’ s car, stri king the car ha rd enough to cave in its side more than a foot into the passenger compartment. Witnesses in the

area did not hear any sounds of braking before the collisi on , nor did the police find evidence that17 ap pellant had tried to sl o w down. A fter a ppellant parked his truck , rather than check ing on th e car he had hit or provid ing law enforcement wit h his information, he fled th e scene on foot, calling hi s gi rlfriend t o pick h im u p but never telling her he had b een in t he acciden t. A lthough no other officers testified that they saw signs that appellant was in toxicated, Akers testified that appellant smelled of alcohol and told another officer that he “ reeked ” of it

. A ppellant adm itted
to the police that he had drunk si x beers du ring the day , although cl aiming that he stopp ed drinking at 6 p. m. , a nd initially denied having driven his truck that day and attempted to tell the police officers that his truck had been stolen

. And t he t est results showing that appella nt ’ s BA C

was over the l egal limit three hours after the accident were relev ant , circumstantial evidence that appellant had consumed a large quantity of alcohol before the accident ; t he test results tend ed to show that ap pell ant was without normal use of his mental or physic al facul ties at th e tim e of the accident due to excessive alcohol consumption, and his erratic driving leading up to the accident and his deci sion to flee the scene also were relevant to that qu estion. See Kirsch v. State , 306 S.W.3d 738, 745 (Tex. Crim

. App .2010) ( even absent retrograde extrapolation testimony, alcohol

- level tests are of ten highly probative to prove both per se and impairment intoxication ) ; State v. Mechler , 153 S.W.3d 435, 440 (Tex. C rim. App. 2005) ; Neale v. State , 525 S.W.3 d 800,
811 (Tex . App.

— Houston [14th Dist.] 2017 , no pet. ) ; Douthitt , 127 S.W.3d at 336

. Any issues related to witness credibility or the resolution of evidentiary conflicts are left to the jury as trie r o f fact, and we will assume that the jury resolved such issue s in favor of its verdict. Clayton , 235 S.W.3d at 778 ; Demond , 452 S.W.3d at 445

. Giv en the full picture of the evidence presente d to the jury, we hold that a reasonable juror could have found b eyond a

reas onable doubt that appellant was into xicat ed at the time of the accident , meaning either that he lacked the normal use of his mental or ph ysical facilitie s due to his having con sum ed alcohol or18 that his alcohol concentration was at least 0.0 8

. See Tex. Pen al Code § 49.01(2) (defining

“ i n toxicated ” )

. We ov errul e appella nt ’ s second issue.

CONCLUSION We have o verruled both of appellant ’ s i ssues. We affirm the judgments of con viction.

________________ __________________________ Darlene Byrne , Chief Justice Before C hief Justice Byrne, Justice s K elly and Theofanis Affirmed Filed: July 1 7 , 20 24
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