Michael Douglas Castor v. State ( 2011 )

NUMBER 13-10-00543-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MICHAEL DOUGLAS CASTOR, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 221st District Court
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Vela, and Perkes
Memorandum Opinion by Justice Perkes
Appellant, Michael Douglas Castor, appeals his conviction for driving while
intoxicated (―D.W.I.‖) when he had two prior D.W.I. convictions, a third-degree felony.1
See TEX. PENAL CODE ANN. §§ 49.04, 49.09(b)(2) (West Supp. 2010). After a jury trial,
1
Pursuant to a docket-equalization order issued by the Supreme Court of Texas, this case is
before us on transfer from the Ninth Court of Appeals in Beaumont, Texas. See TEX GOV'T CODE ANN. §
73.001 (West 2005).
appellant was found guilty and sentenced to a term of eight years of confinement in the
Texas Department of Criminal Justice, Institutional Division. By a single issue, appellant
argues the trial court reversibly erred by admitting retrograde extrapolation testimony
from a witness who was not qualified to provide the testimony. We conclude the trial
court erred by admitting the testimony from an unqualified witness, but the error was
harmless when considered in light of the entire record. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the early morning hours of December 19, 2009, appellant fell asleep in his truck
while stopped in the drive-through lane of a Whataburger restaurant in Porter, Texas. At
the time, appellant’s truck was stopped between the two drive-through windows of the
restaurant, blocking the drive-through lane. Deputy Cy Gamble, an off-duty constable
providing security for Whataburger, leaned out of the building window and saw appellant
awaken, drive out of the drive-through without placing an order, and drive into the
connected parking lot of a Kroger grocery store. Next, appellant approached an exit at
the far end of the parking lot, then reversed, turned around and returned to the
Whataburger parking lot, where he parked and fell asleep again. At approximately 2:10
a.m., while watching appellant, Deputy Gamble reported the incident to the Montgomery
County Sherriff’s dispatch operator. Deputy Brad Curtis of the Montgomery County
Sheriff’s Department arrived within fifteen minutes.
Deputy Curtis approached appellant, who was slumped over and asleep in his
truck. The driver’s window of appellant’s pickup was open even though it was a cold
night. After several attempts, Curtis was able to wake appellant. Curtis noticed a faint
2
odor of alcohol emanating from the cab of the pickup and the odor became stronger once
appellant spoke. Appellant had difficulty removing his driver’s license from his wallet and
kept removing items other than his driver’s license. After his third attempt to remove it,
appellant presented his driver’s license to Curtis. Appellant initially told Curtis he was
―just hanging out.‖ Appellant later explained to Curtis that he was on his way home from
a bar where he had consumed alcohol, and that he was now waiting for some food.
Appellant, however, had not placed an order at the restaurant.
Curtis asked appellant to exit the vehicle and noticed that his balance was
unsteady, though he always managed to catch himself before he fell, and his eyes were
―very bloodshot.‖ Curtis also noticed appellant’s top eyelid appeared very heavy and
that appellant was not able to keep his eyes completely open while speaking. Appellant
had difficulty understanding and responding to questions, and he was difficult to
understand because his speech was ―extremely slurred.‖ Curtis testified appellant’s
answers to questions were delayed and slow.
Based on his belief that appellant may have been intoxicated, Curtis administered
three standardized field sobriety tests. On the walk and turn portion, appellant exhibited
each of the four possible clues. Appellant also performed poorly on the one-leg stand
test. Deputy Curtis testified that he believed he administered the horizontal gaze
nystagmus test incorrectly and did not assign any clues to that portion of the test. Based
on appellant’s demeanor and poor performance on the tests, he was arrested for driving
while intoxicated.
Video of appellant performing the field sobriety tests was admitted into evidence at
3
trial. The video was consistent with Curtis’s description and showed appellant sitting or
resting on a patrol car when he was not attempting to participate in the sobriety tests.
Deputy Gamble testified that when he first exited his pickup, appellant was bent over,
resting his forearms on the tailgate of the pick-up truck.
After appellant’s arrest, it became apparent that he was a felony offender and
subject to a mandatory blood draw. 2 The blood draw was performed at Memorial
Hermann Hospital in The Woodlands, Texas at approximately 4:30 a.m., more than two
hours after appellant was seen driving. The test showed appellant had a blood alcohol
content of .15 grams of alcohol per 100 milliliters of blood, nearly twice the legal limit.
Robert Prince, the DPS lab technician who analyzed the blood, testified that,
based on the general characteristics of ―most people,‖ he was ―very confident‖ that a
hypothetical person in the same scenario as appellant, would have had a blood alcohol
concentration above .08 at the time deputy Gamble observed him driving in the parking
lot. Prince’s testimony was admitted over appellant’s objection that Prince was not
qualified to provide retrograde extrapolation testimony.
II. DISCUSSION
We review a trial court’s ruling on the admissibility of scientific evidence under an
abuse-of-discretion standard. See Mata v. State, 46 S.W.3d 902, 908 (Tex. Crim. App.
2001) (en banc). The science of retrograde extrapolation concerns the computation of a
person’s blood-alcohol content at the time of driving based on a test result obtained some
time later. Id. at 908–09. The proponent of scientific evidence has the burden of
2
Section 724.012 of the Texas Transportation Code lists several situations in which a person
must give a breath or blood specimen if arrested for D.W.I. See TEX. TRANSP. CODE ANN. § 724.012 (b), (c)
(West Supp. 2010).
4
demonstrating by clear and convincing evidence that the evidence is reliable. Id. at 908.
This is accomplished by showing the validity of the underlying scientific theory, the validity
of the technique applying the theory, and the proper application of the technique on the
occasion in question. Id.
The State concedes Prince’s testimony is likely inadmissible retrograde
extrapolation testimony because the record does not show that Prince was familiar with
the nuances of retrograde extrapolation or that he based his testimony on appellant’s
personal characteristics. We agree that Prince’s testimony—that based on a blood
alcohol concentration of .15 approximately two hours after driving, a person in appellant’s
position would have had a blood alcohol concentration above .08 at the time of
driving—was retrograde extrapolation evidence, subject to the Mata standard for
admissibility. See Mata, 46 S.W.3d at 908–09; see also Burns v. State, 298 S.W.3d 697,
702 (Tex. App.—San Antonio 2009, pet. ref’d) (concluding expert testimony, given in
response to the State’s hypotheticals, that signified criminal defendant’s blood alcohol
level would have been at least .10 while driving was retrograde extrapolation evidence
subject to Mata analysis). Thus we review the testimony under the Mata standard to
determine whether the trial court erred in admitting it and if so, whether the error was
harmful.
A. Did the Trial Court Err by Admitting Prince’s Retrograde Extrapolation
Testimony?
In Mata, the Texas Court of Criminal Appeals examined the issue of the
admissibility of retrograde extrapolation evidence. See Mata, 46 S.W.3d at 908–14.
The court explained critical concepts in retrograde extrapolation including the absorption
5
and elimination phases of alcohol concentration in the blood and the elimination rate of
blood alcohol. See id. at 908–09. The court concluded that the clarity with which an
expert could explain and apply retrograde extrapolation was significant to determining the
reliability of the evidence:
We believe that the science of retrograde extrapolation can be reliable in a
given case. The expert's ability to apply the science and explain it with
clarity to the court is a paramount consideration. In addition, the expert
must demonstrate some understanding of the difficulties associated with a
retrograde extrapolation. He must demonstrate an awareness of the
subtleties of the science and the risks inherent in any extrapolation.
Finally, he must be able to clearly and consistently apply the science.
Id. at 916.
The Mata Court reviewed the retrograde extrapolation testimony before it and
explained that the expert witness had failed to explain the theory of retrograde
extrapolation to the trial court with any clarity, his opinion was self-contradictory, and he
seemed unaware of the subtleties inherent in any retrograde extrapolation calculation.
Id. at 914. Most notably, the expert did not explain the basis of the blood alcohol
elimination rate he applied to conclude the defendant was intoxicated at the time of
driving, and the rate he applied was greater than the generally accepted average
elimination rate. Id. at 914–15.
Here, as in Mata, Prince demonstrated an inability to apply and explain retrograde
extrapolation with clarity and did not show an appreciation of the subtleties inherent in
extrapolation. In the State’s hypothetical, the person left a bar at 2:00 a.m. and was seen
driving at about 2:10 a.m. with a single blood draw about two hours later. Prince
admitted he knew no personal characteristics of the driver or the circumstances of his
alcohol consumption. Prince admitted that, as a result, he could not determine the
6
person’s exact blood alcohol concentration at the time of driving because he lacked
sufficient information. Moreover, in explaining his conclusion that the person must have
had a blood alcohol concentration over .08 at the time of driving, Prince made no
reasoned allowance for the fact that the hypothetical person could have been in an
absorption phase at the time he was seen driving, with an increasing blood alcohol
concentration, rather than a decreasing blood alcohol concentration. Specifically, Prince
testified ―most people‖ reach their maximum concentration about an hour after consuming
the last drink and then the body starts to eliminate alcohol. He then opined that, ―based
on the information I was given and what is written on the submission form, a two-hour
difference between twice the legal limit and working two hours backwards, it doesn’t seem
realistic for an individual to be below a .08.‖ Finally, Prince offered no testimony on the
rate at which alcohol is eliminated from the body.
Under Mata, we hold Prince’s testimony was not reliable because Prince was not
able to properly apply and explain the science of retrograde extrapolation in this case.
See id.; see also Burns, 298 S.W.3d at 703 (holding trial court erred by admitting
retrograde extrapolation testimony based on speculative premise that the defendant’s
blood alcohol concentration must have been decreasing between time of driving and
subsequent breath test). We agree with appellant that the State did not demonstrate
Prince was qualified to render the retrograde extrapolation opinion he provided.
B. Was the Trial Court’s Error Harmful to Appellant?
The erroneous admission of retrograde extrapolation testimony is
non-constitutional error subject to a harm analysis. Bagheri v. State, 119 S.W.3d 755,
7
762–63 (Tex. Crim. App. 2003); see also Martinez v. State, 155 S.W.3d 491, 495–96
(Tex. App.—San Antonio 2004, no pet.); Douthitt v. State, 127 S.W.3d 327, 333 (Tex.
App.—Austin 2004, no pet.). Therefore, we must disregard the trial court’s error in
admitting Prince’s retrograde extrapolation testimony unless it affected appellant's
substantial rights. See TEX. R. APP. P. 44.2(b). An appellate court may not reverse a
judgment for non-constitutional error if the court, after examining the record as a whole,
has fair assurance that the error did not influence the jury or had but a slight effect.
Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001). We must consider the
entire record, including testimony, evidence, voir dire, closing arguments, and jury
instructions to determine whether the jury was affected. Bagheri, 119 S.W.3d at 763;
Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002). We should also
consider the nature of the evidence supporting the verdict, the character of the alleged
error and how it might be considered in connection with other evidence in the case,
whether the State emphasized the error, whether the erroneously admitted evidence was
cumulative, and whether it was elicited from an expert. Bagheri, 119 S.W.3d at 763.
Appellant argues the State emphasized Prince’s retrograde extrapolation
testimony. We disagree. Though Prince testified as an expert, our review of the entire
record leads us to conclude that the trial court’s error was harmless. We note at the
outset that the defensive theory was that appellant was intoxicated, but made a good
choice by parking in the Whataburger parking lot rather than driving home to his nearby
apartment. The State emphasized and primarily argued intoxication by impairment of
appellant’s mental and physical faculties.
8
Retrograde extrapolation evidence was not mentioned or alluded to in voir dire.
Most of the State’s voir dire focused on what types of behavior and physical signs would
show a person is intoxicated. The State explained it could prove D.W.I. by showing a
person lacked the normal use of his mental or physical faculties by reason of the
introduction of alcohol into the body or by showing a blood alcohol concentration of .08 or
more. The State asked the prospective jurors if they understood this and if they agreed
the State could prove intoxication in one of three ways. Twice prospective jurors brought
up the .08 blood alcohol level as proof of intoxication, and the prosecutor then engaged in
very minimal discussion of the legal blood alcohol limit, asking whether jurors thought this
was a lenient standard and whether blood alcohol levels should be stated to the third
decimal place. Next, the prosecutor discussed that a person arrested for D.W.I. who has
two prior D.W.I. convictions, is subject to a mandatory blood draw. The record shows at
least two jurors expressed concern over the mandatory blood draw to which appellant
was subjected because they believed it meant a person could be unfairly targeted for
conviction on the basis of prior behavior. Overall, the prospective jurors did not indicate
they would give special weight to blood alcohol evidence.
In its opening statement, the State did not reference retrograde extrapolation
evidence. The State emphasized Deputy Gamble’s observations of appellant in the
Whataburger drive-through lane and the Kroger parking lot. The State also devoted a
considerable portion of its opening to describing Deputy Curtis’s observations that
appellant was intoxicated. The prosecutor also mentioned the video that showed
appellant performing the field sobriety tests, that Deputy Curtis learned at the scene
9
appellant had two prior D.W.I. convictions, and that the result of the mandatory blood
draw showed appellant had a .15 blood alcohol concentration.
Appellant’s trial counsel made his opening statement immediately after the State
opened. Counsel set forth that parking in a safe place is the best thing to do when ―you
realize maybe you had‖ too much alcohol to drink. Counsel emphasized the evidence
would show appellant was not operating his vehicle and he was not guilty because he
consciously made a decision not to drive.
Significantly, most of the testimony concerned Deputies Gamble and Curtis’s
observations of appellant’s intoxicated behavior. The State also showed the jury the
thirteen-minute video of appellant’s poor performance on the field sobriety tests and
presented evidence of appellant’s two prior D.W.I. convictions. Prince’s extrapolation
testimony was short and minimal compared to Gamble and Curtis’s testimony. The
record shows the retrograde extrapolation testimony was cumulative in the sense that
there was other significant evidence that appellant was intoxicated at the time he drove.
The jury was charged only on D.W.I. by impairment and not on D.W.I. as proven by
blood alcohol concentration. The State did not mention Prince’s extrapolation testimony
in its initial closing argument. In his closing argument, appellant argued he was ―like a
fish out of water‖ and could not be convicted because he did not drive. Though the State
had not mentioned blood alcohol concentration in its initial closing, defense counsel
predicted the State would argue this point in its rebuttal. Appellant argued that because
he did not drive there was no need to consider ―the blood.‖ In his closing, trial counsel
also argued there was no reason to arrest appellant for D.W.I., but ―[t]hey could have
10
[arrested him] for public intoxication.‖
In its rebuttal, the State explained appellant was seen driving in a public place and
then outlined each piece of impairment evidence that showed appellant was intoxicated.
This argument included detailed argument concerning appellant’s conduct in the parking
lot and detailed description of appellant’s performance on the field sobriety tests. For
example, the prosecutor argued appellant had his window open on a cold night while he
was passed out because he felt awful and drunk and needed the fresh air to help him feel
better. After discussing the impairment evidence in great detail, the State offered the
retrograde extrapolation testimony as a confirmation of the impairment evidence showing
intoxication:
This defendant has not only lost the use of his mental faculties, he lost the
use of his physical faculties. And all of that is confirmed based on the
blood results of .15 when Bob Prince sat there and told you there is no
realistic way that he could have been under .08 at the time of driving based
on the facts of this case. I gave him the exact hypothetical.
The State then continued to argue other points and made no further mention of blood
alcohol concentration.
Given the State’s slight emphasis on the retrograde extrapolation testimony,
appellant’s defensive theory that he was intoxicated, but did not drive, and the strength of
the State’s other evidence, we can say with fair assurance that the admission of the
retrograde extrapolation testimony had, at most, a slight effect. See Burns, 298 S.W.3d
at 704; Martinez, 155 S.W.3d at 497. We therefore conclude the trial court’s error in
admitting the testimony was harmless. We overrule appellant’s sole issue on appeal.
11
III. CONCLUSION
We affirm the trial court’s judgment.
Gregory T. Perkes
Justice
Do not publish. TEX. R. APP. P. 47.2(b).
Delivered and filed the
30th day of November, 2011.
12