Tarsha Lasha Simmons AKA Tarsha Lasha Thompson v. State ( 2013 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00060-CR
TARSHA LASHA SIMMONS AKA TARSHA LASHA THOMPSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 5th District Court
Cass County, Texas
Trial Court No. 2011F00194
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
At Tarsha Lasha Simmons’ jury trial for felony driving while intoxicated (DWI), 1 there
was strong intoxication evidence, including testimony about Simmons’ behavior, appearance,
smell of alcohol, and abysmal performance on field sobriety tests. On the scene and shortly
thereafter, Simmons claimed to have consumed only “a couple of beers” or “two to three beers.”
Through an expert witness, the State attacked those claims with Simmons’ blood-alcohol
reading, taken one hour and forty minutes after the stop, of between .242 and .259, and the
expert’s opinion testimony that such readings were not possible under normal circumstances for
someone who had consumed only two to three ordinary beers.
On appeal, Simmons argues that the trial court erred in admitting retrograde extrapolation
evidence regarding her blood-alcohol level at the time of the offense and that there is legally
insufficient evidence to support assessing court costs against her for lack of a certified bill of
costs in the record. We affirm the trial court’s judgment because (1) the State did not offer
retrograde extrapolation evidence, and (2) the State supplemented the record with a certified bill
of costs.
A short time after 1:30 p.m., September 12, 2011, Lu Wilson stopped at the home of his
friend, Theodis Jackson, the uncle of Simmons. He saw Simmons there eating a salad and
drinking beer. He did not know how many beers she consumed, but he noticed that her speech
was slurred and she was staggering. Wilson described Simmons’ demeanor as “high” and
“[i]ntoxicated.” Though he did not remember exactly what time he arrived or what time he
1
Simmons was convicted, sentenced to ten years’ confinement, assessed a $7,500.00 fine, and ordered to pay court
costs of $594.00.
2
departed, he remembered being there about forty-five minutes. After Wilson left, he went to
Miracle Mart in Linden, where he saw Simmons drive into the parking lot of the Linden
Elementary School, pick up one of her children, and begin to drive away. Believing her too
intoxicated to drive, Wilson called 9-1-1, described Simmons’ car, and told the dispatcher that
Simmons was drunk. Shortly thereafter, he saw Officer Elvin Hickman pull his patrol car behind
Simmons’ car.
Della Stevens, the dispatcher for the Cass County Sheriff’s Department, testified that she
received a call reporting that, in the parking lot of the E-Z Mart, there were children and an
intoxicated adult female in a green Cougar automobile. Stevens dispatched officers to that
location.
Hickman, of the Linden Police Department, and Eric White, a trooper with the Texas
Department of Public Safety, were separately dispatched to the E-Z Mart to seek “a green
Mercury vehicle sitting at the gas pump with an intoxicated driver.” Around 5:15 p.m., when
Hickman “pulled into the parking lot [, he] observed a green Mercury Cougar sitting at the gas
pump” with the engine running. On approaching the vehicle, Hickman smelled a “strong odor of
alcohol” on Simmons and observed that she had bloodshot eyes, her speech was slurred, and she
was unable to produce her insurance card or driver’s license. She told him that she was going to
pick her children up from school and that then she was on her way home. He testified Simmons
was “unsteady on her feet, [and] had to lean up against the car to keep her balance.” A video
recording of the stop was admitted and played for the jury. Based on his education, training, and
3
experience and the “totality of the [field sobriety] tests performed by Trooper White,” Hickman
opined that Simmons was intoxicated. 2
On cross-examination, Hickman admitted that the smell of alcohol does not necessarily
indicate that a person is intoxicated, when alcohol was last consumed, or whether the alcohol
was mixed with food. Similarly, he testified that other things besides intoxication could cause
someone to have bloodshot eyes.
White, who arrived at the scene shortly after Hickman, testified that Simmons’ speech
was labored and, at times, “quite slurred.” He described her eyes as “somewhat red and watery,”
and he saw that she was “a little bit slower reacting than what would be considered normal,
probably.” During the stop, White said Simmons “always returned to the car for support” and
that she was unable to stand very well when away from the car. Simmons told him that she had
consumed a “couple of beers,” though later during the jail interview, Simmons stated she had
two or three beers, which White stated is the “most common” response DWI defendants give
when asked how much they have had to drink.
White performed the horizontal gaze nystagmus (HGN) and walk-and-turn field sobriety
tests on Simmons. White testified that Simmons exhibited “six out of six” intoxication clues on
the HGN test and “all eight” intoxication clues on the “walk-and-turn” test. Simmons explained
her poor performance to White by saying she had knee problems, had been sick recently, and
was on medication. About one hour and forty minutes after the stop, Simmons voluntarily took a
2
Hickman never saw Simmons drive the car.
4
breathalyzer test on the Intoxilyzer 5000, which showed her to have an alcohol level between
.242 and .259. Simmons was arrested and charged with DWI.
At trial, Rex Swords testified for the State and was qualified, over Simmons’ objection,
as an expert on the Intoxilyzer 5000 and as a person “able to testify about the effects of alcohol
on a person’s mental and physical faculties.” He testified that a person was intoxicated at a .08
reading and that a person with an alcohol concentration of .242 would have lost the normal use
of their mental faculties and would be intoxicated. Swords admitted that the breath test does not
consider a person’s weight, the types of drink the subject consumed, or how much a person has
had to eat.
Swords testified that, from the breath samples taken well after the stop, there was no way
to know what Simmons’ alcohol concentration was at the time she was alleged to have been
driving. However, Swords opined that, generally speaking, if Simmons had nothing to eat or
drink for an hour before the stop, she would have reached the highest alcohol concentration she
was going to achieve “because she had an hour to absorb the alcohol and hadn’t taken any in in
an hour, so you’d think that would be enough time to reach her peak and possibly start to
decrease in alcohol concentration, generally speaking.”
Over Simmons’ objection, Swords was allowed to testify that, “unless there were some
very unusual circumstances,” if Simmons had consumed two or three beers as claimed, the
highest alcohol concentration she could have reached would be .07 and .10, respectively. In
forming that opinion, Swords considered Simmons’ listed weight of 145 pounds and assumed
that (1) the beers she consumed were twelve-ounce beers, (2) the beers had five percent alcohol
5
by volume, and (3) Simmons had a normal “amount of water per pound of body weight.” Based
on those assumptions and barring “some outlier, some conditions,” he did not think it was
possible for a woman of Simmons’ weight to reach a concentration of .242 from two or three
beers. However, on cross-examination, Swords testified that, based on the same assumptions he
made earlier, it would take a minimum of seven beers for Simmons to reach an alcohol
concentration of .24. He said the concentration could be “quite a range” because he did not
know all of Simmons’ physical characteristics.
(1) The State Did Not Offer Retrograde Extrapolation Evidence
In her first point of error, Simmons contends that the trial court erred by allowing
Swords’ testimony because (a) he was not qualified to give retrograde extrapolation testimony—
that is, testimony of what Simmons’ alcohol concentration was at the time of the stop—and
(b) the testimony was unreliable.
Before addressing these questions, we must first ascertain whether the issue before the
Court comports with the objection lodged in the trial court. It is a well understood principal of
appellate law that the objection lodged before the trial court must comport with the issue that is
asserted on appeal. See Martinez v. State, 345 S.W.3d 703, 705 (Tex. App.—Amarillo 2011, no
pet.) (citing Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009)). If the objection at trial
does not comport with the ground asserted on appeal, nothing is preserved for appellate review.
Id.
Here, Simmons objected to Swords’ testimony because it was “[o]utside the area of this
expert’s qualifications” and “[o]utside of this witness’ area of expertise.” Because Simmons
6
failed to object to the reliability of Swords’ opinion, she failed to preserve that issue for our
review. We next address the issue of retrograde extrapolation testimony.
“Retrograde extrapolation is the computation back in time of blood-alcohol level—that is,
the estimation of the level at the time of driving based on a test result from some later time.”
Mata v. State, 46 S.W.3d 902, 908–09 (Tex. Crim. App. 2001). Following this procedure, an
expert possessing sufficient information concerning such variables as an individual’s weight,
age, mental state, drinking pattern, type and amount of alcohol consumed, amount of food in the
stomach, and the time period of alcohol consumption, can reliably estimate a person’s blood-
alcohol concentration at the time of driving. See Kirsch v. State, 306 S.W.3d 738, 744 n.19 (Tex.
Crim. App. 2010).
In this case, Swords testified, based on several assumptions and barring unusual physical
conditions, that it was not possible for Simmons to have an alcohol concentration of .242 if she
had consumed two or three beers, because the maximum she could have reached under those
circumstances was a .10. Swords did not testify as to what Simmons’ alcohol concentration was
at the time of the stop. By definition, his testimony was not retrograde extrapolation. We
overrule this point of error.
(2) The State Supplemented the Record With a Certified Bill of Costs
Simmons also contends that there is legally insufficient evidence to support the award of
court costs of $594.00 against her, because there is no certified bill of costs in the record. After
Simmons filed her appellate brief, the State supplemented the record with a bill of costs totaling
$594.00.
7
If a criminal action is appealed, “an officer of the court shall certify and sign a bill of
costs stating the costs that have accrued and send the bill of costs to the court to which the action
or proceeding is transferred or appealed.” TEX. CODE CRIM. PROC. ANN. art. 103.006 (West
2006). “A cost is not payable by the person charged with the cost until a written bill is produced
or is ready to be produced, containing the items of cost, signed by the officer who charged the
cost or the officer who is entitled to receive payment for the cost.” TEX. CODE CRIM. PROC. ANN.
art. 103.001 (West 2006). The Texas Rules of Appellate Procedure permit supplementation of
the clerk’s record if “a relevant item has been omitted.” See TEX. R. APP. P. 34.5(c)(1).
A certified bill of costs need not be filed at the time the trial court signs the judgment of
conviction or before a criminal case is appealed. See TEX. CODE CRIM. PROC. ANN. arts.
103.001, 103.006. When a trial court’s assessment of costs is challenged on appeal and no bill of
costs is in the record, it is appropriate to supplement the record pursuant to Rule 34.5(c), because
a bill of costs is required by Article 103.006. See TEX. R. APP. P. 34.5(c); TEX. CODE CRIM.
PROC. ANN. art. 103.006.
We recently addressed this issue. See Allen v. State, No. 06-12-00166-CR, 2013 WL
1316965 (Tex. App.—Texarkana Apr. 3, 2013, no pet.). We noted that court costs are not part of
the sentence and that a bill of costs is not evidence, “but rather a governmental record” that is
“merely a documentation of what occurred during the trial.” Id. at *2; see Armstrong v. State,
320 S.W.3d 479, 481 (Tex. App.—Amarillo 2010), rev’d in part by 340 S.W.3d 759, 766–67
(Tex. Crim. App. 2011). The record can be supplemented with a bill of costs.
The substance of the bill of costs is not newly created, only the compilation of the
substance is new. The bill of costs is an “omitted” item because it is only a
8
compilation of records that existed previously. See TEX. R. APP. P. 34.5(c)
(allowing for supplementation of clerk’s record “[i]f a relevant item has been
omitted”).
Allen, 2013 WL 1316965, at *2. Accordingly, we overrule this point of error.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
Date Submitted: November 25, 2013
Date Decided: December 20, 2013
Do Not Publish
9