                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS

    ASHLEE J. STRAKER,                                 §
                                                                         No. 08-14-00112-CR
                     Appellant,                        §
                                                                            Appeal from the
    v.                                                 §
                                                                    Criminal District Court No. 3
    THE STATE OF TEXAS,                                §
                                                                       of Tarrant County, Texas
                     Appellee.                         §
                                                                           (TC# 1310230D)
                                                  §
                                               OPINION

         Appellant Ashlee Straker was convicted by a jury of intoxication assault and accident

involving serious bodily injury arising from a failure to stop and render aid following an auto

accident, and was sentenced to concurrent 20-year prison terms. On appeal, Appellant argues (1)

the trial court erred in admitting evidence of blood test results without any retrograde

extrapolation analysis, (2) the evidence was insufficient to support both convictions, (3) the trial

court erred in admitting hearsay evidence and evidence of Appellant’s prior marijuana use, (4)

the trial court erroneously allowed the prosecutor to ask its expert an improper hypothetical

question, (5) the prosecutor engaged in improper jury argument, and (6) cumulative error

requires reversal. We affirm.1

1
 This case was transferred from the Fort Worth Court of Appeals, and we apply the precedent of that Court to the
extent required by Tex. R. App. P. 41.3.
                                        BACKGROUND

       On the evening of November 20, 2012, Appellant borrowed a Jeep Cherokee from his

girlfriend, Leslie Florez, to attend a party with two of his friends, Lokuekim Kipasa and Donte

Pierce. After leaving the party early the next morning, Appellant was driving with Kipasa and

Pierce as passengers, when Appellant lost control of the Jeep on a gentle curve in the roadway in

a construction zone. The Jeep struck several construction barrels and the curb of the roadway,

causing the vehicle to roll over several times, ultimately landing on its roof in a field, over 200

feet from the roadway. Kipasa was partially ejected from the vehicle and run over before he was

fully ejected. Pierce was also ejected from the vehicle and landed over 100 feet away from the

point he was ejected. Kipasa died at the scene, and Pierce was seriously injured.

       Around 2:44 that morning, passers-by reported seeing debris on the roadway near the

accident site, and Grand Prairie Police Officers arrived at the scene shortly thereafter. The

officers found the Jeep in the field on the side of the highway, flipped over onto its roof, and

soon found Kipasa’s body and the severely-injured Pierce, who was transported to the hospital

by air ambulance. Appellant was nowhere to be found, but the investigating officers located

Appellant’s cell phone in the wreckage and used it to contact Florez. Florez confirmed the

phone belonged to Appellant, that she was the owner of the Jeep, and that she had loaned the

Jeep to Appellant the night before.

       Appellant had managed to crawl out of the wreckage through the back window of the

Jeep and had left the scene of the accident before the police arrived. Appellant obtained a ride

from a passing motorist to his mother’s house where Florez was waiting nearby for him.

Appellant, who was clearly injured and bleeding, informed Florez that he had been in an accident


                                                2
and that he had been unable to find Kipasa and Pierce in the wreckage. Shortly thereafter, two

officers arrived at the residence to interview Appellant. Appellant informed the officers that he

had been at a party with Kipasa and Pierce, and that he was driving them home because he was

the “better off of the three[.]”

        The officers suspected Appellant had been intoxicated, based in part on Appellant’s

statements about having been at a party and that he was driving since he was the “better off of

the three,” and because the accident was a one-car rollover, and Appellant had left the accident

scene and failed to call for help. Appellant was transported to the hospital for treatment, where

he voluntarily consented to a blood draw. Appellant’s blood was drawn by an emergency room

nurse approximately three hours after the accident. The blood specimen tested positive for

alcohol, THC (marijuana), and alprazolam (a tranquilizer). The State’s expert witness testified

about the synergistic effects of combining two controlled substances with alcohol and opined

that the combination of drugs would have rendered Appellant intoxicated, making it unsafe for

him to drive due to the “multiplication of negative side effects from all three substances.”

        Appellant was subsequently indicted and found guilty of one count of intoxication assault

involving Pierce’s injuries, and one count of accident involving serious bodily injury arising

from the failure to stop and render aid to Pierce.2 Appellant pled “true” to a repeat offender

allegation in the indictment, and the trial court sentenced Appellant to 20 years in prison on the

intoxication assault offense and to 20 years in prison on the failure to stop and render aid offense,

with the sentences to run concurrently.

2
  Appellant was also convicted of intoxication manslaughter involving the death of Kipasa. Appellant also appealed
that conviction, which we considered separately in Appeal No. 08-14-00111-CR. Appellant filed a single brief
covering both appeals. Appellant’s first issue on appeal relates solely to Appeal No. 08-14-00111-CR, and we do
not address that issue in this opinion.

                                                        3
                  Appellant’s Blood Test Results were Scientifically Reliable

       In Issues Seven, Eight, and Ten, Appellant argues the trial court erred in admitting the

evidence of his blood test results, which indicated the presence of marijuana and alprazolam in

his bloodstream following the accident. Appellant asserts the State failed to demonstrate the test

results were scientifically reliable or based on sound scientific theory.

                                        Standard of Review

       A trial court’s ruling admitting evidence will not be reversed on appeal absent a clear

abuse of discretion. Jordy v. State, 413 S.W.3d 227, 231 (Tex.App. – Fort Worth 2013, no pet.)

(citing Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App. 2011)). The trial court does not

abuse its discretion in admitting evidence unless its determination lies outside the zone of

reasonable disagreement. Id. The trial court’s ruling will be upheld if it is reasonably supported

by the record and is correct under any theory of law applicable to the case. Id. (citing Ramos v.

State, 245 S.W.3d 410, 418 (Tex.Crim.App. 2008)).

                                          Applicable Law

       In order for scientific evidence to be admissible at trial, it must be “considered

sufficiently reliable as to be of help to a jury[.]” Reynolds v. State, 204 S.W.3d 386, 390

(Tex.Crim.App. 2006). Scientific evidence must typically meet three criteria to be admissible:

(1) the underlying scientific theory must be valid; (2) the technique applying the theory must be

valid; and (3) the technique must have been properly applied on the occasion in question. Id. In

the context of breath and blood test evidence, however, the analysis had been modified by

Section 724.064 of the Texas Transportation Code. Section 724.064 provides that at the trial of

offenses under Chapter 49 of the Penal Code, which includes intoxication assault,


                                                  4
“evidence of the alcohol concentration or presence of a controlled substance, drug, dangerous

drug, or other substance as shown by analysis of a specimen of the person’s blood, breath, or

urine or any other bodily substance taken at the request or order of a peace officer is admissible.”

TEX. TRANSP. CODE ANN. § 724.064 (West 2011).                By enacting Section 724.064, “the

Legislature has already determined that the underlying science is valid, and that the technique

applying it is valid as long as it is administered by individuals certified by, and using methods

approved by the rules of [The Department of Public Safety].” Reynolds, 204 S.W.3d at 390; see

also Mireles v. Texas Dept. of Pub. Safety, 9 S.W.3d 128, 131-32 (Tex. 1999) (the Legislature

has statutorily recognized the scientific theory and technique behind breath tests). Consequently,

both breath and blood specimen test results are “admissible even without proof that the

underlying scientific theory is reliable.” Garcia v. State, 112 S.W.3d 839, 848 (Tex.App. –

Houston [14th Dist.] 2003, no pet.) (citing Slagle v. State, 570 S.W.2d 916, 921 (Tex. Crim.

App. 1978) (concluding the State need not establish a predicate that a breathalyzer examination

is a scientifically reliable test)).

        Nevertheless, the State must show that the blood specimen was taken by a qualified

person, such as a “registered professional nurse” or a “licensed vocational nurse,” and that it was

taken in a “sanitary place.” TEX. TRANSP. CODE ANN. § 724.017 (West Supp. 2016); see Garcia,

112 S.W.3d at 848 (for evidence of blood-alcohol concentration to be admissible, there must be

evidence showing compliance with Section 724.017). Also, in order to meet the requirements of

Rule 702 of the Texas Rules of Evidence, the State must demonstrate that “the specimen was

taken and analyzed by individuals who are certified by, and were using methods approved by the

rules of [the Department of Public Safety]” and that the technique was properly applied in


                                                 5
accordance with the department’s rules on the occasion in question. Reynolds, 204 S.W.3d at

390-91. These requirements may be met by evidence that the person who performed the test

“knows the protocol involved in administering the test and can testify that he followed it on the

occasion in question, [but] he need not also demonstrate any personal familiarity with the

underlying science and technology.” Id. at 391.

                                            Analysis

       Both before and during trial, Appellant objected to the admission of any evidence that he

had ingested marijuana and alprazolam prior to the accident, based in part on the argument that

the test results lacked a sound and reliable foundational basis. The trial court overruled the

objections, and allowed the State to introduce evidence of the test results themselves, together

with the testimony of witnesses from the Tarrant County Medical Examiner’s Office. The State

presented the testimony of Tiffany Flowers, a senior toxicology analyst at the medical

examiner’s office, and Joyce Ho, a now-retired lab manager in that same office, who testified

that they performed the laboratory tests on Appellant’s blood specimen and determined that

Appellant had “17 nanograms per mil” of alprazolam in his blood at the time of his blood draw, a

blood THC level of 5.8 nanograms per mil, and a blood alcohol concentration (BAC) level of

0.07%. Both Flowers and Ho testified to their qualifications to conduct the tests, both witnesses

provided detailed testimony indicating they were familiar with the protocols involved in

administering the tests, and Flowers testified that the test methods used were commonly used and

accepted within the scientific community.

       Appellant’s arguments are not entirely clear from his briefing.         We interpret his

arguments in accordance with his trial objections, which focused solely on the State’s alleged


                                                  6
failure to demonstrate that the blood test results were “scientifically reliable” and based on sound

scientific theory. As discussed above, however, the Legislature has already deemed blood tests

to be scientifically sound and reliable, and we therefore reject Appellant’s claim that the State

was required to present any foundational evidence on that particular point.                        Reynolds, 204

S.W.3d at 390.

        Moreover, Appellant did not raise any specific objections to the qualifications of the

emergency room nurse at the hospital who took Appellant’s blood specimen, nor did Appellant

contend that the hospital was not a “sanitary” place to take the specimen, as required by Section

724.017 of the Transportation Code. Similarly, Appellant failed to make any specific objections

to the qualifications of either Flowers or Ho to perform the tests, and never specifically

challenged the methods they used to conduct the tests or their knowledge of those methods.3

Therefore, we conclude Appellant has waived any challenges to the State’s alleged failure to

provide adequate foundational evidence prior to the admission of the test results. See State v.

Esparza, 413 S.W.3d 81, 86-87 (Tex.Crim.App. 2013) (unless the opponent raises an objection,

the State, as the proponent of breath test results, was not required to present any foundational

evidence to establish its reliability). Issues Seven, Eight, and Ten are overruled.

                     The Unextrapolated Test Results were Properly Admitted

        In his Issue Nine, Appellant argues the trial court erred in admitting the blood test results

showing the presence of THC and alprazolam, because Dr. Robert Johnson, the Chief



3
  The State made clear that it intended Flowers and Ho to testify only regarding the manner in which the test results
were conducted, and to have their supervisor, Dr. Robert Johnson, the Chief Toxicologist, interpret the results and
explain to the jury how those results applied to Appellant’s case. Nevertheless, Appellant attacks the testimony of
Flowers and Ho because they did not explain the relevance of the test results to Appellant’s intoxication at the time
of the accident. Because neither Flowers nor Ho was assigned that task, we address the relevance of the test results
in the next issue, in which Appellant challenges the adequacy of Dr. Johnson’s testimony.
                                                         7
Toxicologist, could not provide any retrograde extrapolation analysis testimony to demonstrate

that the test results were relevant to Appellant’s intoxication at the time of the accident.4 In a

related argument, Appellant contends the lack of retrograde extrapolation testimony rendered the

test results more prejudicial than probative, and that the trial court should have excluded them

under Rule 403 of the Texas Rules of Evidence.5 We review each argument separately.

                                  Standard of Review and Applicable Law

         Evidence is relevant if it has any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence. Henley v. State, 493 S.W.3d 77, ___ (Tex.Crim.App. 2016); TEX. R. EVID.

401. Only relevant evidence is admissible, and the trial court’s decision whether to admit

evidence is reviewed under an abuse of discretion standard. Id.; see also Torres v. State, 71

S.W.3d 758, 760 (Tex.Crim.App. 2002). However, “[e]vidence need not by itself prove or

disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge

toward proving or disproving some fact of consequence.” Stewart v. State, 129 S.W.3d 93, 96

(Tex.Crim.App. 2004).

         Under Rule 403, a “court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the

jury, undue delay, or needlessly presenting cumulative evidence.” TEX. R. EVID. 403. In a Rule

403 analysis, a trial court “must balance (1) the inherent probative force of the proffered item of


4
  Retrograde extrapolation is the computation back in time of a blood test result to estimate the level of alcohol or
other substances in a defendant’s body at the time he was driving. Price v. State, 59 S.W.3d 297, 300 n.1 (Tex.App.
– Fort Worth 2001, pet. ref’d) (citing Mata v. State, 46 S.W.3d 902, 908–09 (Tex.Crim.App. 2001)).
5
  Appellant does not make a similar argument regarding the admissibility of the BAC test results. However, he does
raise that issue tangentially in his argument that the evidence of his intoxication is insufficient—an issue we address
next.
                                                          8
evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the

evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse

or distract the jury from the main issues, (5) any tendency of the evidence to be given undue

weight by a jury that has not been equipped to evaluate the probative force of the evidence, and

(6) the likelihood that presentation of the evidence will consume an inordinate amount of time or

merely repeat evidence already admitted.” Gigliobianco v. State, 210 S.W.3d 637, 641-42

(Tex.Crim.App. 2006).

       A trial court is entitled to broad discretion in ruling on a Rule 403 objection, and great

deference is given to the trial court’s decision to admit or exclude evidence under Rule 403. See

Powell v. State, 189 S.W.3d 285, 288 (Tex.Crim.App. 2006); State v. Mechler, 153 S.W.3d 435,

439 (Tex.Crim.App. 2005). Under the abuse of discretion standard, we will not overrule a trial

court’s decision under Rule 403 if the trial court’s decision is within the zone of reasonable

disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990) (opin. on

reh’g). The party objecting under Rule 403 has the burden to show that the probative value is

substantially outweighed by the danger of unfair prejudice. Runnels v. State, 193 S.W.3d 105,

107 (Tex.App. –Houston [1st Dist.] 2006, no pet.).

           Retrograde Extrapolation Testimony was not a Prerequisite to Admission

       Dr. Johnson testified that he was unable to perform a retrograde extrapolation analysis

that would have indicated the level of THC and alprazolam in Appellant’s blood at the time of

the accident. Appellant contends that without retrograde extrapolation testimony, the test results

were not relevant to whether he was intoxicated at the time of the accident. We conclude the test

results were admissible.


                                                9
       Appellant is correct that the State must prove a defendant was intoxicated at the time of

his offense, and not just at the time his blood was drawn. Kirsch v. State, 306 S.W.3d 738, 745

(Tex.Crim.App. 2010); Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App. 2010) (state

must establish a “temporal link between the defendant’s intoxication and his driving”).

However, it is well-settled that retrograde extrapolation testimony is only one method of

providing this temporal connection, and therefore, the Court of Criminal Appeals has repeatedly

made it clear that retrograde extrapolation testimony is not required in order to prove a temporal

connection. See, e.g., Stewart, 129 S.W.3d at 97; Kirsch, 306 S.W.3d at 743-45; see also Torres

v. State, 109 S.W.3d 602, 606 (Tex.App. – Fort Worth 2003, no pet.) (noting that the Court of

Criminal Appeals has never required retrograde extrapolation evidence as a condition of the

admissibility of BAC test results).

       Further, courts have recognized that unextrapolated test results based on blood or breath

samples taken after a defendant’s arrest are relevant in cases in which a defendant is accused of

DWI and causing an accident due to intoxication because those results make it more probable

that the defendant was intoxicated at the time that he or she drove. See, e.g., Manning v. State,

114 S.W.3d 922, 927 (Tex.Crim.App. 2003) (test results indicating the presence of cocaine

metabolite in defendant’s bloodstream following the accident were “strong evidence” that

defendant had consumed cocaine prior to the accident, rendering the evidence relevant and

admissible at trial); Kirsch, 306 S.W.3d at 745 (unextrapolated BAC results are often “probative

to prove both per se and impairment intoxication”); Mechler, 153 S.W.3d at 440 (intoxilyzer




                                               10
results are probative whether a defendant consumed alcohol before driving, and are therefore

admissible at trial without retrograde extrapolation testimony)).6

         Accordingly, we reject Appellant’s contention that retrograde extrapolation analysis

testimony was required prior to admitting evidence of Appellant’s test results.

                            The Test Results were Admissible under Rule 403

         Appellant next contends that even if the blood tests results were admissible without

retrograde extrapolation testimony, the trial court should have excluded the results under Rule

403 because they were more prejudicial than probative. In making this argument, however,

Appellant continues to focus on the State’s failure to present any retrograde extrapolation

testimony, contending that without this evidence, the jury had no means of evaluating the

probative force of the blood test evidence, which in turn, may have confused the jury and caused

it to make a decision on an improper basis.

         The Court of Criminal Appeals rejected an almost identical argument in Gigliobianco,

210 S.W.3d at 640-43.               In Gigliobianco, the defendant was charged with intoxication

manslaughter and similarly argued that his unextrapolated breath test results were more


6
  See also Williams v. State, 307 S.W.3d 862, 868 (Tex.App. – Fort Worth 2010, no pet.) (unextrapolated intoxilyzer
test results were “highly probative” to demonstrate whether a defendant was intoxicated at the time he was driving);
State v. Esparza, 353 S.W.3d 276, 283-84 (Tex.App. – El Paso 2011), aff’d, 413 S.W.3d 81 (Tex.Crim.App. 2013)
(breath test results administered several hours after the alleged offense were admissible, even in the absence of
retrograde-extrapolation testimony, because the results tended “to make it more probable that he was intoxicated at
the time of driving”); Leblanc v. State, No. 01-10-00251-CR, 2011 WL 3556952, at *7-8 (Tex.App. – Houston [1st
Dist.] Aug. 11, 2011, no pet.) (mem. op., not designated for publication) (evidence of unextrapolated blood test
results indicating that defendant had a cocaine metabolite and THC in his system at the time of the blood draw was
probative of the defendant’s intoxication at the time of the accident, despite expert witness’s inability to determine
the exact level of the substances in the defendant’s blood at the time of the accident); Dunn v. State, 176 S.W.3d
880, 883 (Tex.App. – Fort Worth 2005, no pet.) (blood test results demonstrating that the defendant had
amphetamine and methamphetamine were relevant to the charged offense of intoxication manslaughter, and were
admissible at trial despite the State’s failure to specifically tie the presence of the substance to the defendant’s lack
of normal use of his facilities at the time of the accident); Owen v. State, 905 S.W.2d 434, 438–39 (Tex.App. –
Waco 1995, pet. ref’d) (the lack of retrograde analysis testimony does not affect the admissibility of the evidence,
and is instead merely a factor that goes to the weight of the evidence for the jury to consider).
                                                          11
prejudicial than probative because they may have confused or misled the jury and allowed the

jury to give the results undue weight. In concluding the trial court did not abuse its discretion in

admitting the unextrapolated test results, the Court noted that the test results demonstrated that

the defendant had consumed a substantial amount of alcohol thereby tending to “make more

probable appellant’s intoxication at the time he was driving” and that the State had a

“considerable” need for the admission of the breath test results, because the State’s evidence did

not clearly demonstrate that the defendant was in fact intoxicated at the time of his arrest. Id. In

balancing these two factors against the possibility of unfair prejudice, the Court concluded that

because the test results directly related to the charged offense, they could not have distracted the

jury from the main issue in the case whether the defendant was intoxicated while he was driving.

Id. at 641. Similarly, in light of the clear relevance of the evidence to the issue of appellant’s

guilt, the time spent by the State in admitting the evidence did not result in undue delay or a

needless presentation of cumulative evidence. Id. More importantly, the Court determined that

because the State’s witness had explained that the test results “could not be used to determine

what appellant’s breath alcohol concentration was at the time he was stopped,” the jury was not

misled concerning the purpose of the evidence, and instead, could have “reasonably concluded

that the jury was equipped to evaluate the probative force of the breath test results.” Id. at 642.

       As in Gigliobianco, we find that the test results in the present case were highly probative

to Appellant’s intoxication at the time of the accident, despite the absence of any retrograde

extrapolation testimony, because they were based on a blood draw that took place less than three

hours after the accident, with no evidence that Appellant imbibed any alcohol or took any other

controlled substance between the time of the accident and the blood draw. See Verbois v. State,


                                                 12
909 S.W.2d 140, 142-43 (Tex.App. – Houston [14th Dist.] 1995, no pet.) (unextrapolated breath

test results based on test conducted two and one-half hours after an accident were relevant to

whether appellant consumed alcohol prior to accident and not unduly prejudicial); see also

Kirsch, 306 S.W.3d at 745 (unextrapolated BAC test results based on a blood draw taken 80

minutes after the defendant’s arrest were highly probative on the question of the defendant’s

intoxication); Mechler, 153 S.W.3d at 440 (unextrapolated intoxilyzer results based on test

conducted 90 minutes after defendant was arrested for DWI were relevant to his intoxication at

the time he was driving); Stewart, 129 S.W.3d at 96-97 (unextrapolated intoxilyzer test results

based on test conducted approximately 80 minutes after defendant’s arrest for DWI were

probative of defendant’s intoxication at time she was driving).

       In addition, we conclude the State had a substantial need to have the test results admitted

into evidence, particularly because the only witness who could have testified regarding

Appellant’s conduct before the accident, Donte Pierce, testified that due his injuries, he could not

recall the details of what occurred on the morning in question, including whether Appellant

smoked any marijuana or was driving before the accident, and Florez, who was the first witness

to see Appellant after the accident, testified that Appellant did not appear to be intoxicated at the

time. In light of this conflicting evidence and the lack of any eyewitnesses to the offense, the

State’s need for the jury to hear evidence of the test results was “great,” as Appellant

acknowledges.

       Moreover, we conclude there was no danger that the jury would have been distracted by

the admission of this evidence, because as in Gigliobianco, the test results related to the main

issue whether Appellant was intoxicated at the time of the accident. In addition, given the


                                                 13
importance of this evidence to the State’s case, the trial court could have reasonably concluded

that the time spent on the admission of the evidence did not consume an inordinate amount of

time or result in the admission of cumulative evidence.

       Most importantly, although Dr. Johnson provide a detailed description of the effects

combining THC, alprazolam, and alcohol would have on an individual, he also testified that he

could not perform a retrograde analysis on the test results and that he therefore could not provide

the jury with an exact estimate of how much THC or alprazolam Appellant had in his system at

the time of the accident. Dr. Johnson also did not suggest to the jury that the test results

themselves were conclusive proof of the defendant’s intoxication. The trial court therefore could

have reasonably concluded that the jury was not misled on how the test results should be utilized

and that no undue danger existed that the jury would misuse or be misled by the evidence.

       Accordingly, we conclude the trial court could have reasonably determined that the

probative value of Appellant’s blood tests results were not substantially outweighed by the

countervailing factors specified in Rule 403, and that the trial court did not abuse its discretion in

admitting the evidence. Issue Nine is overruled.

               The Evidence was Sufficient to Support Appellant’s Conviction
                                 for Intoxication Assault

       In Issue Two, Appellant contends the evidence was insufficient to support his conviction

for intoxication assault, asserting that the State failed to present evidence from which a rational

jury could have found that he was intoxicated at the time of the accident or that his alleged

intoxication caused the accident. We disagree.

                                        Standard of Review



                                                 14
       We review sufficiency complaints under the legal-sufficiency standard enunciated in

Jackson v. Virginia. See Fernandez v. State, 479 S.W.3d 835, 837 (Tex.Crim.App. 2016);

Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) (citing Jackson v. Virginia, 443

U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The relevant inquiry is “whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443

U.S. at 319, 99 S.Ct. at 2789. The jury is the sole judge of credibility and weight to be attached

to the testimony of witnesses. Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). It

is the fact finder’s duty “to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” See Clayton v. State, 235 S.W.3d 772,

778 (Tex.Crim.App. 2007) (quoting Jackson, 443 U.S. at 319, 99 S.Ct. 2781). When the record

supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the

verdict, and we defer to that determination. Dobbs, 434 S.W.3d at 170; see also Jackson, 443

U.S. at 319, 99 S.Ct. at 2789. If a rational fact finder could have found the defendant guilty, we

will not disturb the verdict on appeal. Fernandez, 479 S.W.3d at 838; see also Temple v. State,

390 S.W.3d 341, 363 (Tex.Crim.App. 2013) (affirming judgment where evidence was legally

sufficient to support a conviction).

       Circumstantial evidence is as probative as direct evidence in establishing guilt, and

circumstantial evidence alone may be sufficient to establish guilt. Dobbs, 434 S.W.3d at 170;

Carrizales v. State, 414 S.W.3d 737, 742 n.20 (Tex.Crim.App. 2013) (citing Hooper v. State,

214 S.W.3d 9, 13 (Tex.Crim.App. 2007)). Each fact need not point directly and independently to




                                                 15
the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is

sufficient to support the conviction. Dobbs, 434 S.W.3d at 170; Hooper, 214 S.W.3d at 13.

         The elements of the offense of intoxication assault are that a person operates a motor

vehicle in a public place, is intoxicated, and by reason of that intoxication causes serious bodily

injury to another by accident or mistake. TEX. PENAL CODE ANN. § 49.07 (West 2011); see also

Ex parte Watson, 306 S.W.3d 259, 265 (Tex. Crim. App. 2009) (discussing elements of the

offense). Appellant does not deny that he was operating the Jeep Cherokee in a public place at

the time of the accident. The only issue is whether the evidence was sufficient to allow a rational

jury to conclude that (1) Appellant was intoxicated at the time of the accident, and (2) that his

intoxication was the cause of the accident and Pierce’s consequent injuries.7 We examine each

element separately.

                           The Evidence Supported a Finding of Intoxication

         The term “intoxicated ” is defined by statute as either: (1) not having the normal use of

mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a

drug, a dangerous drug, a combination of two or more of those substances, or any other

substance into the body; or (2) having a blood alcohol concentration level of 0.08% or more.

TEX. PENAL CODE ANN. § 49.01(2)(A, B) (West 2011). These two definitions of intoxicated are
7
  Appellant claims the State failed to present sufficient evidence that Pierce’s injuries resulted from the accident,
contending that his injuries—and his brain injuries in particular—may have resulted from Pierce drinking too much
at the party prior to the accident. The evidence is undisputed, however, that Pierce suffered substantial bodily
injuries as the result of the accident. The investigating officers found Pierce’s injured body at the scene of the
accident and determined that he had been ejected from the vehicle and had been “airborne” until he landed 117 feet
from the point he was ejected. The investigating officers believed Pierce was so badly injured that they called for
medical evacuation by helicopter. The State presented evidence that Pierce was hospitalized for a week after the
accident, with swelling in his brain and cuts throughout his body. Moreover, Appellant never argued at trial that
Pierce had not been injured in the accident, or that his injuries were caused by his ingestion of alcohol. To the
contrary, Appellant’s trial attorney expressly stated that he did not intend to introduce any evidence of the levels of
alcohol or other intoxicants found in Pierce’s body following the accident, thereby indicating that he did not intend
to make Pierce’s intoxication an issue at the trial for any purpose.

                                                         16
referred to as the “impairment” theory and the “per se” theory, respectively. Kirsch, 306 S.W.3d

at 743.

          The jury was instructed that it could find that Appellant was intoxicated under either

statutory theory of intoxication, and his conviction will therefore be upheld as long as sufficient

evidence was presented to prove either of the alleged theories. See Bagheri v. State, 119 S.W.3d

755, 761 n.5 (Tex.Crim.App. 2003) (the definitions contained in Section 49.01 set forth alternate

means by which the State may prove intoxication); see also Kirsch, 306 S.W.3d at 743 (the two

Penal Code definitions of intoxication are not mutually exclusive, and as long as there is

evidence that would support both definitions, both theories are submitted to the jury); Lerma v.

State, No. 13-13-00369-CR, 2015 WL 1869444, at *5 (Tex.App. – Corpus Christi April 23,

2015, pet. ref’d) (mem. op., not designated for publication) (jury was authorized to convict if it

found that defendant was intoxicated under either the “impairment” or “per se” definitions in the

statute).

          Appellant contends the State failed to present any “direct evidence” that his BAC was at

0.08% or more at the time of the accident to support a conviction on a “per se” theory. In

particular, Appellant points out that his test results only placed his BAC level at 0.07%, and that

the State was unable to provide any retrograde extrapolation testimony that would have allowed

the jury to convict him on the “per se” theory. We need not decide whether the evidence

supported a finding of intoxication on a “per se” theory, however, since there was ample

evidence to support a verdict on an “impairment” theory by showing Appellant did not have

normal use of mental or physical faculties.




                                                 17
         The State presented evidence not only that Appellant had a BAC level of 0.07% at the

time his blood was tested, but also that he had substantial amounts of marijuana and alprazolam

in his blood three hours after the accident. Dr. Johnson explained in detail both the individual

and cumulative effects these substances would have on a person, which included drowsiness,

dizziness, confusion, and sedation. Moreover, despite being unable to provide any retrograde

extrapolation analysis, Dr. Johnson testified that in the absence of any evidence that Appellant

ingested any alcohol after the accident, the lowest percentage of alcohol in his body at the time

of the accident was 0.07%, which would have rendered the vast of the population unable to drive

safely, despite Texas having set the “per se” level of intoxication at 0.08%.8 In addition, Dr.

Johnson also testified that even though the level of alprazolam Appellant had in his bloodstream

at the time of the blood draw was at a therapeutic level, this would have affected his ability to

drive. He also further opined that the vast majority of individuals with even half of Appellant’s

level of THC in their bloodstream would be “unsafe to drive[.]”




8
  Appellant acknowledges that Dr. Johnson estimated that Appellant’s BAC level could have been anywhere from as
low as 0.07% to as high as 0.11% at the time of the accident, based on the fact that an average male would typically
eliminate about .04 of alcohol from his body over the three-hours that elapsed between the time of the accident and
Appellant’s blood draw. Appellant contends that to the extent that Dr. Johnson was attempting to establish that his
BAC was above the legal limit of 0.08%, his testimony amounted to pure “speculation,” because he could not
perform an appropriate retrograde extrapolation analysis. Appellant did not challenge Dr. Johnson’s estimate at trial
as being scientifically unsound, nor does he argue on appeal that Dr. Johnson should not have been permitted to
provide this estimate at trial. Consequently, we do not address the admissibility of Dr. Johnson’s testimony itself.
Instead, our review is limited to determining whether the evidence, as presented to the jury, was sufficient to support
a finding of guilt. See generally Moff v. State, 131 S.W.3d 485, 489–90 (Tex.Crim.App. 2004) (distinguishing
between challenges to the admission of evidence and the sufficiency of the evidence); see also Thurman v. State,
No. 04-13-00463-CR, 2014 WL 1390490, at *1-3 (Tex.App. – San Antonio April 9, 2014, no pet.) (mem. op., not
designated for publication) (because defendant did not challenge the admissibly of the State’s retrograde
extrapolation testimony at trial, court of appeals only considered whether the State presented sufficient evidence to
uphold the defendant’s DWI conviction); Killian v. State, 2002 WL 1938650, at *7 (Tex.App. – El Paso Aug. 22,
2002, pet. ref’d) (not designated for publication) (defendant’s failure to object to expert witness’s retrograde
extrapolation testimony waived issue of admissibility of evidence on appeal).

                                                         18
         More importantly, Dr. Johnson testified concerning the synergistic effects of taking all

three of these substances would have on a person’s physical and mental faculties. Dr. Johnson

explained that taking two or more drugs in combination, such as alcohol and alprazolam which

have the same negative side effects, multiplies those negative effects.9 He also explained that

alcohol “increases the negative side effects of THC,” so that the user may become even more

tired and confused. He expressed his opinion that given the levels and the combination of

substances Appellant had in his bloodstream, it “would have made it unsafe for him to drive,”

and would have rendered him “intoxicated.”10

         In addition, the evidence indicated that no witnesses, including Florez, observed

Appellant drinking or taking any narcotics after the accident. Therefore, the test results were

highly probative whether Appellant was intoxicated at the time of the accident. See Stewart, 129

S.W.3d at 96 (where there was no evidence that defendant consumed alcohol after driving, her

breath test results, although inconclusive, tended to make it “more probable” that defendant was

intoxicated at the time she drove).

         We recognize that unextrapolated test results are not conclusive proof of a defendant’s

intoxication at the time of an accident, and the State is required to come forward with “other

evidence in the record that would support an inference that the defendant was intoxicated at the

time of driving as well as at the time of taking the test.” Kirsch, 306 S.W.3d at 745; see also


9
  The court instructed the jury on the synergistic effects of narcotics and alcohol. Such instructions are deemed a
proper application of the law to the facts of the case when the evidence demonstrates the defendant ingested multiple
substances prior to driving. See Gray v. State, 152 S.W.3d 125, 128, 133-34 (Tex.Crim.App. 2004).
10
   Appellant appears to contend that many, if not all, of Dr. Johnson’s conclusions lacked a sufficient scientific
foundation, and therefore should not have been admitted at trial. Appellant never objected to Dr. Johnson’s
testimony on this basis at trial, however, and we therefore decline to address these challenges on appeal. See
Esparza, 413 S.W.3d at 86-87 (defendant waived objection to admissibility of scientific evidence by failing to object
to its scientific reliability at trial).
                                                         19
Kuciemba, 310 S.W.3d at 462; Stewart, 129 S.W.3d at 97 (test results are but one piece “in the

evidentiary puzzle,” and other evidence must be presented from which a jury could infer that a

defendant was intoxicated at the time of an accident in order to complete the puzzle).

         In determining whether there is sufficient “other evidence” in the record to support a

finding of intoxication, a reviewing court may look to a variety of factors, such as whether the

defendant admitted to consuming alcohol or other intoxicating substances prior to driving;

whether the defendant appeared intoxicated at the time of his arrest, and whether the nature of

the accident suggested that the defendant was intoxicated. See, e.g., Crenshaw v. State, 378

S.W.3d 460, 467-68 (Tex.Crim.App. 2012) (evidence was sufficient to support a finding of

intoxication under an impairment theory where the defendant’s BAC level was 0.07% at time of

blood draw, which together with other evidence of the defendant’s intoxication, including his

appearance at the time of his arrest and his admission that he drank and smoked marijuana prior

to driving, made it “more probable that Appellant was subjectively impaired at the time he was

driving, thereby supporting the theory alleged in the information and applied to the facts in the

charging instrument”).11

         In the present case, the State presented ample “other evidence” from which the jury could

have reasonably inferred that Appellant was intoxicated at the time of the accident. The State

presented undisputed evidence that Appellant had been at a party prior to the accident and that


11
   See also Aldrich v. State, 296 S.W.3d 225, 230-31 (Tex.App. – Fort Worth 2009, pet. ref’d) (evidence was
sufficient to support conviction were blood specimen taken more than two hours after accident showed a BAC of
0.07%, and where there was ample other evidence to support the conviction, including the defendant’s testimony
that he had consumed three twelve-ounce beers sometime prior to the accident, and numerous witnesses testified at
trial that the accident occurred at a well-lit and clearly-marked crosswalk); Blanchard v. State, No. 05-05-01194-CR,
2006 WL 2440777, at *3 (Tex.App. – Dallas Aug. 24, 2006, no pet.) (not designated for publication) (the evidence
was sufficient to sustain the defendant’s DWI conviction, despite conflicting nature of urinalysis test results, where
the defendant’s test results detected a metabolite of marijuana in his system of an unknown quantity, and the
defendant admitted that he had recently smoked marijuana two to three hours earlier).
                                                         20
Pierce had observed Appellant drinking alcohol at the party. In addition, although he did not

recall whether Appellant had been smoking marijuana at the party, Pierce acknowledged that

there was marijuana present at the party. Appellant also admitted to the investigating officers

that he had been at a party prior to the accident, and that he was the “better off” of the three to

drive, indicating that he recognized that he had some level of intoxication and impairment when

leaving the party. Further, Appellant informed Florez when she met him after the accident that

he had been falling asleep in the car being driven by the motorist who picked him up after the

accident, which the jury could have inferred was the result of his intoxication, particularly in

light of the sedative effects of tranquilizers as described by Dr. Johnson. And finally, the

officers who investigated the accident, as well as the State’s accident reconstructionist, testified

that, based on their training and experience, they believed Appellant was intoxicated at the time

of the accident because Appellant had been driving on a clear evening on a dry roadway, along a

stretch of road with a “sweeping” gentle curve, which an alert, sober driver would have been able

to easily navigate.    Although this “other evidence” was virtually all circumstantial, an

intoxication finding may be supported entirely by circumstantial evidence. See Kuciemba, 310

S.W.3d at 462.

       Appellant points to what he believes is conflicting evidence in the record, including the

fact that the investigating officers did not testify that they reached any conclusions whether

Appellant appeared to be intoxicated when they spoke to him after the accident, and Florez’s

testimony that she did not perceive Appellant to be intoxicated at that time.           Conflicting

evidence, however, does not render the jury’s verdict insufficient. At most, it creates a fact

question for the jury to decide. The jury was entitled to resolve all conflicts in the evidence, and


                                                21
it was free to assess Florez’s credibility and the credibility of the other witnesses at trial, in

determining whether Appellant was intoxicated at the time of the accident. See Margraves v.

State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000) (jurors were free to believe or disbelieve any

part or all of a witness’s testimony and reconcile inconsistencies as they saw fit); Williams v.

State, 307 S.W.3d 862, 867 (Tex.App. – Fort Worth 2010, no pet.) (defendant’s testimony that

he was ill, rather than intoxicated, which caused him to drive erratically, did not render the

evidence factually insufficient to support the jury’s verdict).

         We reject Appellant’s argument that our decision is controlled by the Court of Criminal

Appeals’ decision in Leal v. State, 338 S.W.2d 443, 444-46 (Tex.Crim.App. 1960), where, in

reversing an intoxication murder case for lack of evidence, the Court found it significant that no

witness testified that the defendant was intoxicated, virtually every witness at the scene testified

that the defendant did not appear to be intoxicated, and the State’s expert witness was unable to

testify with any certainty from the urinalysis test results that the defendant would have been

intoxicated at the time of the accident. Id. at 445. Unlike Leal, in the present case only one

witness, Appellant’s girlfriend, affirmatively testified that Appellant did not appear to be

intoxicated. Further, unlike Leal, the State presented testimony from the investigating officers,

as well as expert witnesses, that the circumstances surrounding the accident and nature of the

accident itself suggested that Appellant was intoxicated. Moreover, unlike Leal, Appellant made

incriminating statements to the investigating officers and to Florez after the accident.12


12
   The holding in Leal appears to be a bit of an anomaly. In the 56 years since it was decided, Leal has only been
cited twice, and both of those cases distinguished Leal and upheld the jury’s verdict involving deaths caused by
intoxicated drivers. See, e.g., Cotten v. State, 406 S.W.2d 452, 454, 455 (Tex.Crim.App. 1966) (upholding
defendant’s conviction for murder where witnesses disagreed on whether the defendant appeared to be intoxicated
following an accident, where defendant admitted to drinking before the accident, and where liquor bottles were
found in the defendant’s car at the time of the accident); Kennemur v. State, 280 S.W.3d 305, 315 (Tex.App. –
Amarillo 2008, pet. ref'd) (upholding the defendant’s conviction where the evidence demonstrated that the defendant
                                                        22
         Viewing the evidence in the light most favorable to the verdict, we conclude that the jury

could have reasonably found beyond a reasonable doubt that Appellant was intoxicated at the

time of the accident, thereby satisfying the first element of the offense. We therefore turn to

whether the State presented sufficient evidence that Appellant’s intoxication was the cause of the

accident.

                            The Evidence Supported a Finding of Causation

         Under the Texas Penal Code, “[a] person is criminally responsible” for a particular result

“if the result would not have occurred but for his conduct, operating either alone or concurrently

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

the conduct of the actor clearly insufficient.” TEX. PENAL CODE ANN. § 6.04(a) (West 2011);

Garcia v. State, 112 S.W.3d at 852-54.                 This “but for” causation must be established by

providing evidence of a connection between an accused’s conduct and the resulting harm. See

Robbins v. State, 717 S.W.2d 348, 351 (Tex.Crim.App. 1986); see also Glauser v. State, 66

S.W.3d 307, 313 (Tex.App. – Houston [1st Dist.] 2000, pet. ref’d) (in an intoxication

manslaughter case, the State is required to prove not only that the defendant was intoxicated, but

that there was a causal connection between the defendant’s intoxication and the death of the

victim).

         When concurrent causes are present, the “but for” requirement is satisfied when either the

accused’s conduct is sufficient by itself to have caused the harm, or the accused’s conduct

coupled with another cause is sufficient to have caused the harm. Bell v. State, 169 S.W.3d 384,

395 (Tex.App. – Fort Worth 2005, pet. ref’d) (citing Robbins v. State, 717 S.W.2d 348, 351


had been at a bar drinking prior to the accident, had been driving in a reckless manner, smelled of alcohol, and had a
BAC of 0.098% hours after the accident).
                                                         23
(Tex. Crim. App. 1986)). Thus, as we have previously recognized, the State is not required to

prove that intoxication was the sole cause of the accident. Carrillo v. State, No. 08-01-00471-

CR, 2003 WL 1889943, at *8 (Tex.App. – El Paso April 17, 2003, pet. ref’d) (not designated for

publication). Whether a causal connection exists between a defendant’s intoxication and the

cause of an accident is a question of fact for the jury to decide. See Hardie v. State, 588 S.W.2d

936, 939 (Tex.Crim.App. 1979).

       Appellant contends the State did not meet its burden of proving “but for” causation

because no witnesses testified at trial concerning the manner in which Appellant was operating

the Jeep prior to or at the time of the accident, and that the only possible witness to the event was

Pierce, who testified that he could not recall how Appellant was driving, due to the injuries he

sustained in the accident. The State, however, was not required to present any “direct” evidence

of the manner in which Appellant was driving his vehicle prior to the accident in order to

establish that his intoxication was the cause of the accident. See Mitchell v. State, 419 S.W.3d

655, 663-64 (Tex.App. – San Antonio 2013, pet. ref’d) (rejecting defendant’s argument that

evidence was insufficient to support conviction for intoxication manslaughter were there were no

witnesses to the accident or the manner in which defendant was operating his vehicle at the time

of the accident, because the State’s evidence otherwise established that defendant was

intoxicated when he struck a pedestrian who was walking on the side of the road). To the

contrary, circumstantial evidence may be used to establish a causal connection between a

defendant’s intoxication and the cause of an accident. See, e.g., Garcia, 112 S.W.3d at 852-54;

see also Killian v. State, No. 08-01-00032-CR, 2002 WL 1939156, at *5 (Tex.App. – El Paso

Aug. 14, 2002, pet. ref’d) (not designated for publication) (circumstantial evidence was sufficient


                                                 24
to provide a causal connection between the intoxication and the victim’s death, where the

evidence established that the defendant, who was clearly intoxicated, ran a red light causing the

accident).

        We have already determined there was sufficient evidence from which the jury could

have inferred that Appellant was intoxicated at the time of the accident.                           Further, the

investigating officers and the State’s accident reconstruction expert testified that Appellant lost

control of the Jeep on a curve that was not considered dangerous and could have been negotiated

easily by an “alert and sober” driver.13 We conclude this evidence was sufficient to show

causation. See, e.g., Glauser, 66 S.W.3d at 313 (finding sufficient evidence to support finding

that defendant’s intoxication was the cause of an accident, where, among other things, accident

occurred in a well-lit area with no visible obstructions, and the investigating officer expressed his

opinion that a driver in full command of his mental and physical faculties driving at the speed

limit would have been able to stop and avoid hitting the victim’s disabled vehicle); Garcia, 112

S.W.3d at 852-54 (finding sufficient evidence that the defendant’s intoxication caused the

accident that claimed the victim’s life, where State’s accident reconstructionist expressed his

expert opinion that the accident would not have occurred but for the defendant’s intoxication).

        Appellant finds it significant that he presented an alternate theory that the Jeep he was

driving may have had defective tires that caused the Jeep to “spin out” of control on at least one

prior occasion. Appellant further points out that one of the tires found in the wreckage appeared



13
   Appellant presented testimony from a Grand Prairie Police Officer indicating that there were six or seven other
accidents in a six-month period on the same stretch of highway. However, on cross-examination, the officer
explained that none of those accidents were single-car accidents where the driver had failed to negotiate the curve,
but rather all involved multiple-car collisions that arose from unsafe lane changes or other “fender-bender” type
situations.

                                                        25
to have a large “gash” or “hole” in it following the accident, which would support his theory that

the tire blew out prior to the accident. The State, on the other hand, presented the expert witness

testimony of an accident reconstruction expert, who testified that the gash in the tire was caused

by the accident itself when the Jeep’s tires hit the curb due to “operator error,” and that the

accident was not caused by any pre-existing tire or other mechanical defect.14

         At most, Appellant’s alternate theory raised a fact issue concerning the cause of the

accident, which was for the jury to resolve. In fact, Appellant’s own expert witness refused to

conclude that the condition of the tire was the sole cause of the accident, and instead conceded

that he did not “think anybody can give an opinion as to why [the Jeep] started skidding in the

first place.” Consequently, the jury was free to reject the defendant’s alternative explanation for

the accident. See Cotten v. State, 406 S.W.2d 452, 454 (Tex.Crim.App. 1966) (jury was free to

reject Appellant’s testimony that he struck an oncoming vehicle, not because he was intoxicated,

but because his car had “slick” tires, and suffered from mechanical issues that caused the car to

weave and pull); Wooten v. State, 267 S.W.3d 289, 295-97 (Tex.App. – Houston [14th Dist.]

2008, pet. ref’d) (jury was free to reject defendant’s explanation that he swerved to avoid hitting

a motorcycle, and to instead believe the State’s theory that the defendant’s intoxication was the

cause of the accident in which he struck and killed three pedestrians).




14
   Appellant is critical of Lovett’s testimony in several respects, claiming that Lovett did not adequately explain how
the defect could “possibly have been the result of the crash,” or why he believed that the accident did not occur as
the result of a tire blowout. This, however, is not accurate. Lovett explained that when a tire blows out, it leaves a
“distinctive mark” on the pavement, and that no such mark appeared in the photographs taken at the accident scene.
In addition, he testified that based on his inspection of the tire, there was no evidence that the rim of the tire came
into contact with the road, as would be expected if the tire had blown out. Lovett further explained that, although
there was some wear on the tire, there was still “serviceable tread life” left, and that there was no side wall damage
to the tires, as one would expect if the tire had blown out.
                                                         26
       Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that

the evidence was sufficient to show Appellant’s intoxication was the cause of the accident. Issue

Two is overruled.

                    The State did not Engage in Improper Jury Argument

       In Issue Eleven, Appellant contends the trial court erred in allowing the State to argue in

closing that Appellant had consumed alprazolam and marijuana during the four-hour period

between the time he left his mother’s residence and the time of the accident. Appellant asserts

the argument was not a proper summary of the facts presented at trial and instead injected new

facts into evidence that were not supported by the record. The State contends the prosecutor’s

argument was based on a reasonable deduction from the evidence. We agree with the State.

                      Standard of Review and Improper Jury Argument

       Proper jury argument includes four areas: (1) summary of the evidence presented at trial;

(2) reasonable deductions drawn from that evidence; (3) answers to opposing counsel’s

arguments; and (4) pleas for law enforcement.         Jackson v. State, 17 S.W.3d 664, 673

(Tex.Crim.App. 2000). A prosecuting attorney is permitted in his argument to draw from the

facts in evidence all inferences which are reasonable, fair and legitimate, and is allowed wide

latitude in drawing inferences from the evidence as long as the inferences drawn are reasonable

and offered in good faith.     Cantu v. State, 939 S.W.2d 627, 633 (Tex.Crim.App. 1997).

However, the prosecutor may not use the jury argument to get before the jury, either directly or

indirectly, evidence which is outside the record. Borjan v. State, 787 S.W.2d 53, 57 (Tex. Crim.

App. 1990) (citing Jordan v. State, 646 S.W.2d 946, 948 (Tex.Crim.App. 1983)).




                                               27
       In order to constitute reversible error, a jury argument must have been manifestly

improper or must have injected new, harmful facts into the proceedings. Jackson, 17 S.W.3d at

673-74; see also Borjan, 787 S.W.2d at 57 (an improper jury argument constitutes reversible

error when, in light of the record as a whole, it is extreme or manifestly improper, violates a

mandatory statute, or injects new facts harmful to the accused into the trial proceedings). A trial

court’s erroneous overruling of a defendant’s objection to improper jury argument is a non-

constitutional error reviewed under the standard of TEX. R. APP. P. 44.2(b). Maxwell v. State, 253

S.W.3d 309, 318 (Tex.App. – Fort Worth 2008, pet. ref’d).

                                             Analysis

       During closing argument, defense counsel argued there was insufficient evidence that

Appellant was intoxicated at the time of the accident, pointing out that his blood-alcohol level at

the time of the blood draw was 0.07, which was below the legal limit, and that the evidence was

inconclusive regarding whether he had sufficient amounts of marijuana and tranquilizers in his

system to impair the normal use of his faculties. In particular, defense counsel argued that the

State had failed to present a sufficient timeline of when he had ingested any of the substances in

question, or the levels of any of the substances in his system at the time of the accident, in order

to prove beyond a reasonable doubt that he was intoxicated at the time of the accident. In

response, the State pointed out that Florez had testified that she had been with Appellant all day

prior to the accident, and that she did not observe him ingesting any alcohol or narcotics before

he left for the party at 11 p.m. the night before the accident. The State therefore asked the jury to

consider what happened during the four-hour period of time between the time he left for the

party at 11 p.m. and the time the accident occurred at approximately 2:44 a.m. the next morning,


                                                 28
submitting that Appellant had been “drinking E&J, like [Pierce] told you, he’s smoking

marijuana, and he’s popping Xanax pills.”15 Defense counsel immediately objected that those

facts were not “in evidence,” but the trial court overruled that objection.

           Appellant contends there was no evidence presented at trial to support the prosecutor’s

statements.        In particular, Appellant points out that although Pierce testified that he saw

Appellant drink alcohol at the party, he did not recall seeing him smoke marijuana. Appellant

further points out that no one testified that they observed Appellant take any tranquilizers prior to

the accident. Appellant contends that the prosecutor therefore improperly used her closing

argument to get evidence before the jury that was “outside the record and prejudicial to the

accused.”16

           Initially, we note that the prosecutor never stated or implied that any witnesses had

observed Appellant ingest the drugs, and instead, as she clarified to the jury following

Appellant’s objection, her argument was based primarily on the fact that Appellant’s test results

established that Appellant had both marijuana and alprazolam in his blood approximately three

hours after the accident. Therefore, the fact that no witnesses directly observed Appellant ingest

these substances is not relevant to our analysis.

           Instead, we conclude that the prosecutor’s statement was a reasonable deduction from the

evidence presented at trial. In particular, we note that Florez testified that she had been with


15
     Xanax is a trade name for the generic tranquilizer, alprazolam.
16
   Appellant also argues that this was improper evidence of “extraneous offenses,” but as the State points out,
whether Appellant was intoxicated by virtue of having both alprazolam and marijuana in his system was an element
of the offense as charged. See Manning, 114 S.W.3d at 927 (where indictment charged that defendant committed
manslaughter by recklessly consuming a controlled substance prior to a fatal accident, the evidence of a cocaine
metabolite in the defendant’s bloodstream “was not an extraneous offense—it was evidence of the charged
offense”).

                                                            29
Appellant the entire day before he left for the party at 11 p.m., and that she did not see him ingest

any narcotics at that time. Further, Florez also testified that she did not observe Appellant take

any narcotics after he arrived at the residence following the accident. When considering the

blood test results in conjunction with Florez’s testimony, the prosecutor was able to make a

reasonable deduction from this evidence that Appellant consumed the narcotics found in his

bloodstream in the intervening period of time between leaving the residence and the time of the

accident.

       Further, as the prosecutor pointed out, Dr. Johnson testified at trial that the active THC

metabolite in marijuana, which was found in Appellant’s bloodstream, is only detectable for a

six-hour period of time. Since Florez did not observe Appellant smoke any marijuana before he

left for the party or after he arrived at the residence following the accident, Dr. Johnson’s

testimony supported a reasonable inference that the marijuana was ingested sometime in that

intervening four-hour period.

       We therefore conclude that the prosecutor’s argument was a reasonable deduction from

the evidence and did not inject new facts or evidence into the record. Berry v. State, 233 S.W.3d

847, 860 (Tex.Crim.App. 2007) (prosecutor’s argument, although “aggressive” in nature, was a

reasonable deduction from the evidence). Accordingly, we overrule Issue Eleven.

               The Evidence was Sufficient to Support Appellant’s Conviction
                            for Failure to Stop and Render Aid

       In Issue Three, Appellant contends the evidence was insufficient to support his

conviction for failure to stop and render aid, arguing primarily that the statute making his

conduct a crime did not apply to the facts of his case. We disagree.

                                          Applicable Law

                                                 30
       Section 550.021 of the Texas Transportation Code provides, among other things, that the

“operator of a vehicle involved in an accident that results or is reasonably likely to result in

injury to or death of a person shall: . . . (3) immediately determine whether a person is involved

in the accident, and if a person is involved in the accident, whether that person requires aid; and

(4) remain at the scene of the accident until the operator complies with the requirements of

Section 550.023.” TEX. TRANSP. CODE ANN. § 550.021 (West Supp. 2016). In turn, Section

550.023 provides that the operator of the vehicle involved in any such accident must, among

other things, give his name, address, registration and insurance information “to any person

injured or the operator or occupant of or person attending a vehicle involved in the collision[,]”

and “provide any person injured in the accident reasonable assistance, including transporting or

making arrangements for transporting the person to a physician or hospital for medical treatment

if it is apparent that treatment is necessary, or if the injured person requests the transportation.”

TEX. TRANSP. CODE ANN. § 550.023 (West 2011).

       The indictment alleged Appellant violated Section 550.021 when he intentionally or

knowingly left the scene of an accident involving serious bodily injury “without giving his name

and address to any person, and without rendering reasonable assistance to Donte Pierce when it

was then apparent that Donte Pierce was in need of medical treatment.”

                                             Analysis

       Although Appellant frames his argument in terms of sufficiency of the evidence, his

argument centers on his belief that the provisions in the Transportation Code (hereinafter the

“accident statutes”) did not apply to him in light of his pre-existing friendship with Kipasa.

Appellant’s argument appears to rely on the holding in State v. Stevenson, 958 S.W.2d 824


                                                 31
(Tex.Crim.App. 1997). In that case, the defendant driver was involved in a single-car accident in

which his wife was injured. The defendant remained at the scene, and spoke with an officer who

arrived at the scene to conduct an accident investigation. In response to the officer’s questions,

the defendant falsely told the officer that his wife had been driving. At some point in their

conversation, the officer noted that the defendant smelled of alcohol and placed him under arrest

for driving while intoxicated.

       The defendant sought to have his statements to the investigating officer suppressed as the

product of a custodial interrogation.    Defendant argued that because the accident statutes

required him to remain at the scene and subjected him to criminal penalties if he did not, any

questioning that occurred while he remained at the scene was a custodial interrogation, thereby

invoking the protections of Miranda. The Court rejected this argument for two reasons. First,

the Court noted that the accident statutes only required the driver to do two things: (1) provide

contact information to someone at the scene (the reporting provision); and (2) render reasonable

assistance to any injured persons. Id. at 827. The Court found it significant that the accident

statutes did not require a driver to give any information to law enforcement officials, and

therefore imposed no duty on the driver to answer the officer’s questions at the scene of the

accident. Id.

       Although the Court could have ended its analysis there, it also expressed its opinion that

the reporting provisions in the accident statutes did not, under the circumstances of that

particular case, require the defendant to remain at the scene of the accident. In this regard, the

Court noted that the defendant was married to his injured passenger, and that she would have

already been privy to the information required to be exchanged by the statutes. Id. The Court


                                               32
concluded that the statute’s reporting provision did not apply when “all the injured parties

already possessed the requisite information.” Id. Although the Court clearly recognized the

accident statutes also required a defendant to stop and render aid to an injured party, the Court

did not discuss whether the defendant would have been obligated to stay and render aid to his

injured wife. Id. at 826 n.2 (referring to the stop and render aid provision in the accident

statutes). In any event, the Court concluded that the accident statutes imposed no duty on the

defendant “to remain at the scene under the circumstances of this particular accident,” and that

he was instead only required to remain at the scene pursuant to an “investigative stop” being

conducted by the officer at the scene, which did not invoke the protections of Miranda. Id. at

828. As such, the Court concluded that the accident statutes had no bearing on whether the

defendant’s Miranda rights were violated. Id.

        Appellant relies on Stevenson to argue that the accident statutes’ requirements should not

be applied to him, in light of his pre-existing relationship with Pierce, and that he was therefore

under no duty to remain at the scene to either exchange information with Pierce or to render aid

to him. In effect, Appellant believes that Stevenson barred his prosecution and conviction for

this offense. We do not interpret Stevenson so broadly.

       First, the Court in Stevenson did not address whether the State was barred from

prosecuting the defendant for failing to comply with the accident statutes. Instead, the Court’s

sole focus was on whether the accident statutes had any bearing on the defendant’s Miranda

rights. Any language used by the Court to indicate that the accident statutes’ reporting provision

did not apply to drivers when “all the injured parties already possessed the requisite




                                                33
information,” must be applied in that context, i.e., to cases involving whether a defendant’s

Miranda rights were invoked. Id. at 827.

       Further, even if we were to apply that language to the question whether a defendant could

be prosecuted, the defendant would still have to demonstrate that the injured party “possessed the

requisite information,” which includes not only the driver’s name and address, but the driver’s

registration and insurance information as well. While a court might be able to presume that the

wife of a defendant driver would have this information, we do not believe that a defendant driver

would be entitled to this same presumption merely because the driver was in a pre-existing

friendship with the injured party.

       More importantly, the Court in Stevenson did not specifically address whether the stop

and render aid provision of the accident statutes would apply to a case in which the injured party

was related to or friends with the driver. In fact, it is unclear from the opinion whether the

defendant’s wife needed any such aid or if aid had already been provided to her. As such, there

is nothing in the Stevenson opinion that would cause us to conclude that the Court intended to

hold, as Appellant apparently contends, that a defendant driver is required by the accident

statutes to remain at the scene to assist a total stranger, but is allowed to flee the scene if he has

injured a family member or friend.

        There is nothing in the statute that would lead us to this absurd conclusion. To the

contrary, the plain language of the statute contemplates that an individual involved in an accident

must remain at the scene to provide assistance to “any person injured in the accident,” without

any stated exceptions for family members or friends. TEX. TRANSP. CODE ANN. § 550.023.

Thus, to construe the statute in the manner suggested by Appellant would not only lead to an


                                                 34
absurd result, but would contravene the Legislature’s clear intent in serving the public interest by

requiring all drivers to remain at the scene to assist “any person” they have injured.                            See

McCown v. State, 192 S.W.3d 158, 162-63 (Tex.App. – Fort Worth 2006, pet. ref’d)

(recognizing that accident statutes were adopted as a matter of “public interest”). This we

decline to do. See Stevenson, 958 S.W.2d at 827 (if the language of a statute is unambiguous, we

give effect to its plain meaning unless doing so would lead to absurd results).

         Moreover, Appellant has not cited any cases, and we are aware of none, in which courts

have cited Stevenson for the proposition that a driver may not be prosecuted under the accident

statutes merely because of a pre-existing relationship with an injured party.17 To the contrary,

courts analyzing the sufficiency of evidence to support a defendant’s conviction for failing to

stop and render aid, focus only on the key elements of the offense, including whether the driver

should have been aware that an injured party required medical assistance and whether the driver

fulfilled that requirement. See, e.g., Stewart v. State, 70 S.W.3d 309, 312-13 (Tex.App. – Waco

2002, pet. ref’d) (concluding the evidence sufficient to uphold the defendant’s conviction for

failing to remain at the scene of a single-car accident when it should have been apparent to the

driver that his passenger required medical assistance).

         And finally, we note that the driver’s knowledge that a party may have been injured in an

accident may be inferred from the nature of the accident itself, and from the conduct of the driver

after the accident. Id. (defendant’s knowledge that passenger was injured could be inferred from

17
   Instead, Stevenson seems to have been cited almost exclusively in cases involving questions of when a defendant
may be considered in custodial interrogation following a traffic accident or a traffic stop. The only mention of
Stevenson’s discussion of the accident statutes is found in the dissenting opinion of Justice Dauphinot in which she
opined that a driver who left the scene of an accident after an ambulance had already been called and where a nurse
was at the scene of the accident had done more to render reasonable assistance to an injured individual than the
driver in Stevenson did. McCown, 192 S.W.3d at 166-67 (Dauphinot, J. dissenting). Justice Dauphinot concluded
that although the driver in that case was properly convicted for leaving the scene of the accident under the applicable
statutes, she believed that such a holding clearly conflicted with the “clear mandate in Stevenson.” Id.
                                                         35
the fact that the witnesses observed defendant running from the scene, looking back at the scene

of the accident while bystanders were yelling at him to stop); McCown, 192 S.W.3d at 162-64

(defendant’s knowledge that others may have been hurt in the accident could be inferred from

the evidence demonstrating that the accident involved a significant head-on collision with

another driver, making it unreasonable to assume that the driver would not have known that an

injury was possible). In the present case, there was sufficient evidence from which the jury

could have reasonably inferred that Appellant was aware that Pierce required medical attention,

in light of the severe nature of the accident, the fact that Appellant himself was injured, and the

fact that he could not find Pierce in the wreckage, all of which would have suggested that Pierce

had been thrown from the vehicle. Despite all this, Appellant left the scene of the accident and

did not seek assistance for Pierce until he arrived at his mother’s residence.

       Therefore, regardless of whether Appellant was required to comply with the reporting

provisions of the statute, the evidence presented clearly supported an inference that Appellant

failed to comply with the provisions in the statute requiring him to render assistance to Pierce.

Because the State charged Appellant was violating both provisions in the statute, it was required

only to demonstrate that he violated one of those provisions. See St. Clair v. State, 26 S.W.3d

89, 97-99 (Tex.App. – Waco 2000, pet. ref’d) (where defendant was charged with violating both

provisions in the Transportation Code, for failing to report and for failing to stop and render aid,

the jury’s verdict would stand where the evidence was sufficient to support a finding that he

violated at least one provision in the statute). Because the State met that burden, Issue Three is

overruled.

        The Trial Court’s Erroneous Admission of Hearsay Evidence was Harmless


                                                 36
       In Issue Four, Appellant contends the trial court erred in admitting certain statements that

a witness overheard Florez make to a friend, in which she repeated potentially incriminating

statements that Appellant had made to Florez on the morning of the accident. We agree this

evidence constituted inadmissible hearsay, but we find the admission of the evidence harmless.

                                      Standard of Review

       Hearsay is a statement, other than one made by the declarant while testifying at trial,

offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d); see also

Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). Hearsay is not admissible except

as provided by statute or the rules of evidence. TEX. R. EVID. 802; Willover, 70 S.W.3d at 845

(“hearsay evidence is inadmissible unless if falls within one of the many exceptions” to the

general rule). Whether an out-of-court statement is admissible under an exclusion or exception

to the general hearsay rule is a matter within the trial court’s discretion. Zuliani v. State, 97

S.W.3d 589, 595 (Tex.Crim.App. 2003). The trial court’s decision will be reversed only if it is

“outside the zone of reasonable disagreement.”         Salazar v. State, 38 S.W.3d 141, 151

(Tex.Crim.App. 2001); see also Pena v. State, 353 S.W.3d 797, 814 (Tex.Crim.App. 2011).

                                            Analysis

                           The Testimony was Inadmissbile Hearsay

       As the State was questioning Florez about the events following the accident, the

prosecutor asked if Appellant had told her that he had been in a fight in order to explain his

injuries following the accident, and if Appellant had asked her to tell law enforcement that she

had been driving the Jeep at the time of the accident. Florez replied in the negative to both

questions, and the prosecutor asked no additional questions about the matter.


                                               37
       Subsequently, the State asked Pierce’s grandmother, Maude Woods, if she had overheard

Florez tell a friend while they were visiting Pierce at the hospital in the days following the

accident, that Appellant “wanted her to say that she was driving” on the night of the accident.

Appellant objected, arguing that it was inadmissible hearsay. In response, the State contended

that because Appellant had made the original statement, it was admissible as the admission of a

party-opponent. The State also argued that it was submitting Woods’ testimony to impeach

Florez’s earlier testimony in which she had denied that Appellant had asked her to say she was

driving. The defense once again objected, asserting that it was improper for the State to attempt

to impeach its own witness on that basis. The trial court overruled the objection, and allowed

Appellant to make a “running objection” to the testimony. Woods thereafter testified that she

had overheard Florez tell her friend that Appellant had asked her to tell law enforcement that she

had been driving the Jeep when the accident occurred, and that Appellant had initially told Florez

that he had been in a fight shortly after the accident occurred in order to explain his injuries.

       Appellant correctly points out that Woods’ testimony contained “double hearsay,”

involving not only the statements that Appellant allegedly made to Florez, but also the

statements that Florez made to her friend, which Woods overheard. When double or multiple

hearsay is involved, to be properly admissible, each level of hearsay must be analyzed separately

and must fall under an exception. See Crane v. State, 786 S.W.2d 338, 354 (Tex.Crim.App.

1990); Trussell v. State, 585 S.W.2d 736, 738 (Tex.Crim.App. 1979); see also Davis v. State,

696 S.W.2d 494, 498 (Tex.App. – El Paso 1985, no pet.) (for the State to overcome a double

hearsay objection, “each separate identifiable increment of hearsay must be distinctly justified

under some recognized exception to the hearsay rule”); see also TEX. R. EVID. 805 (“[h]earsay


                                                  38
within hearsay is not excluded by the rule against hearsay if each part of the combined

statements conforms with an exception to the rule”).

       Analyzing the first layer of hearsay, we agree with the State that Appellant’s alleged

statements to Florez, which were made following the accident, may be classified as admissions

of a party-opponent and are excluded from the hearsay rule under Rule 801(e)(2)(A) of the Texas

Rules of Evidence, which “plainly and unequivocally states that a criminal defendant’s own

statements, when being offered against him, are not hearsay.” See Trevino v. State, 991 S.W.2d

849, 853 (Tex.Crim.App. 1999); see also TEX. R. EVID. 613(a)(5) (excepting admissions of a

party opponent under Rule 801(e)(2) from the application of its foundational requirements

concerning prior inconsistent statements).      Florez clearly could have testified concerning

statements Appellant made to her after the accident because they were not hearsay. The State,

however, has failed to address the second layer of hearsay—whether the statements that Florez

made to her friend, which Woods overheard, constituted hearsay evidence, and if so, whether the

statements fall within any exclusion or exception to the hearsay rule.

       In analyzing this question, we note that the statements Florez made to her friend—

advising her of potentially incriminating statements made by Appellant—were hearsay because

they were an out-of-court statements offered to prove the truth of the matter asserted. TEX. R.

EVID. 801(d); see also Hughes v. State, 4 S.W.3d 1, 2-3, 6 (Tex.Crim.App. 1999) (CPS workers’

testimony that defendant’s wife described defendant’s confession to them was inadmissible

hearsay; although the confession itself would have been admissible as an admission of a party-

opponent if the wife had provided the testimony, the wife’s statement to the caseworkers was

hearsay that did not come within any exception); see also Robison v. State, 35 S.W.3d 257, 261


                                                39
(Tex.App. – Texarkana 2000, pet. ref’d) (trial court erred in admitting testimony of a police

officer who testified that defendant’s wife had informed him that the defendant had confessed to

her, because the police officer had no firsthand knowledge of the defendant’s confession, and his

testimony was not independently admissible at trial under any exception to the hearsay rule).

Therefore, we must analyze Florez’s out-of-court statements to her friend to determine if they are

independently admissible under any exclusion or exception to the hearsay rule.

       While the State has failed to present any argument on this issue on appeal, the State

argued at trial that Woods’ testimony was admissible to “impeach” Florez’s earlier testimony in

which she denied that Appellant had made the two statements to her on the morning of the

accident. See Reyna v. State, 168 S.W.3d 173, 178 (Tex.Crim.App. 2005) (“In order to have

evidence admitted under a hearsay exception, the proponent of the evidence must specify which

exception he is relying upon.”). As Appellant points out, there are at least two Rules of Evidence

that we must examine to determine whether the statement was admissible to “impeach” Florez.

       First, Rule 801(e)(1) provides that a declarant-witness’s prior statement is not considered

hearsay if the declarant testifies and is subject to cross-examination about a prior inconsistent

statement made by the declarant-witness. However, in a criminal case, this rule requires that the

prior statement must have been given “under penalty of perjury at a trial, hearing, or other

proceeding—except a grand jury proceeding—or in a deposition[.]”                 TEX. R. EVID.

801(e)(1)(A)(ii). As Appellant points out, Florez’s prior statements, which were made to her

friend at the hospital, were not given under penalty of perjury, and they do not fit within any of

the scenarios listed in Rule 801.      Therefore, we conclude that Rule 801(e)(1)(A)(ii) is

inapplicable. See Martinez-Salinas v. State, No. 04-14-00565-CR, 2015 WL 6736795, at *4


                                               40
(Tex.App. – San Antonio Nov. 4, 2015, pet. ref’d) (mem. op., not designated for publication)

(concluding that Rule 801(e)(1)(A)(ii) was inapplicable to statements made by a witness during

an interview with the witness’s employer and attorney, where those statements were not made

under oath in any of the proceedings enumerated in the Rule).

       Second, Rule 613 of the Texas Rules of Evidence provides a separate exception to the

hearsay rule, allowing under certain circumstances the admission of extrinsic evidence of a

witness’s prior inconsistent statement to impeach the witness, even if the statement was unsworn.

However, Rule 613 further provides that extrinsic evidence of such a statement is only

admissible if the proponent of the evidence first examines the witness about the statement and

only if the witness “fails to unequivocally admit making the statement.”         TEX. R. EVID.

613(a)(4). In particular, as a “foundation requirement,” the Rule requires the proponent to tell

the witness the contents of the statement, the time and place the statement was made, and the

person to whom the witness made the statement. TEX. R. EVID. 613(a)(1)(A)(B)(C). Further, the

Rule provides that the witness must be given the opportunity to explain or deny the prior

inconsistent statement.   TEX. R. EVID. 613(a)(3); see Huff v. State, 576 S.W.2d 645, 647

(Tex.Crim.App. 1979) (discussing proper predicate for impeachment by prior inconsistent

statement); see also McGary v. State, 750 S.W.2d 782, 786 (Tex.Crim.App. 1988).

       In the present case, the State failed to provide any such foundational requirements, and

therefore we conclude that any extrinsic evidence of Florez’s prior statements was not admissible

under this exception. Because in response to Appellant’s hearsay objections, the State only

asserted that the statements were admissible as admissions of a party opponent and as

impeachment, and because the State has not advanced any other basis for admission on appeal,


                                               41
we restrict our review to only those two grounds as a basis for admission. See Reyna, 168

S.W.3d at 177 (requiring the proponent of the hearsay evidence to specify which exception he is

relying on for admission). Accordingly, we conclude the trial court abused its discretion in

admitting Woods’ testimony at trial.

                                       The Error was Harmless

        However, our analysis must not stop here. We must also conduct a harm analysis to

determine whether the admission of Woods’ testimony constitutes reversible error.               In

determining whether harm resulted from the erroneous admission of hearsay evidence at trial, we

apply the standard for non-constitutional error found in TEX. R. APP. P. 44.2(b), which provides

that a court must disregard any errors that do not affect the defendant’s “substantial rights.”

Hughes v. State, 12 S.W.3d 166, 167-68 (Tex.App. – Fort Worth 2000, no pet.) (citing Mosley v.

State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998) (op. on reh’g)); see also Johnson v. State, 967

S.W.2d 410, 417 (Tex.Crim.App. 1998) (evaluating error in admission of hearsay testimony

under the standard for non-constitutional error). A “substantial right is affected when the error

had a substantial and injurious effect or influence on the jury’s verdict.” Hughes, 12 S.W.3d at

168 (citing King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997)). We review the record as

a whole in determining whether the admission of erroneously-admitted hearsay evidence had a

substantial and injurious influence on the jury. Id.; see also Davis v. State, 268 S.W.3d 683, 709

(Tex.App. – Fort Worth 2008, pet. ref’d) (when evaluating the harm caused by erroneously

admitted hearsay, a reviewing court "must deem the error harmless if, after reviewing the entire

record, the court is reasonably assured the error did not influence the jury’s verdict or had but a

slight effect”).


                                                42
       Appellant contends that the admission of Woods’ testimony substantially affected the

jury’s verdict, in part because it allowed Woods to testify about how she felt when she overheard

Florez make those statements, which, in turn, Appellant believes unduly aroused the sympathy of

the jury. The record, however, does not support this assertion. To the contrary, when the

prosecutor asked Woods how she felt when she overheard Florez’s comment that Appellant had

told her that he had been in a “fight” following the accident, Woods stated only that she did not

believe that his statement “correspond[ed] with what happened, with him leaving the accident.”

The State’s attorney then asked Woods how that made her feel, but Woods never directly

answered that question. Instead, Woods testified that she did not understand how Appellant

could have left his friend (Pierce) behind at the scene of the accident. Woods’ comment on

Appellant’s failure to remain at the scene was a non sequitur, as it had nothing to do with

whether Appellant had lied to Florez after the accident. Consequently, while the admission of

the hearsay evidence could have potentially opened the door to inflammatory comments from

Woods that could have aroused the jury’s sympathies, Woods never made any such comments in

response to that evidence.

       Appellant argues that the admission of the hearsay statements significantly damaged his

case, because the hearsay statements served to impeach Florez’s earlier testimony, which in turn

may have caused the jury to doubt her credibility. Appellant points out that Florez’s testimony

was critical to his defense, since Florez was virtually the only witness at trial who testified that

she did not believe that Appellant was intoxicated following the accident. Appellant therefore

contends that the jury’s guilty verdict finding on intoxication manslaughter “only makes sense”

if the jury chose to disbelieve Florez’s testimony.


                                                 43
        The State, however, never focused on the conflict between the testimony given by Woods

and the testimony given by Florez, and did not argue to the jury that it should disbelieve Florez’s

testimony on that basis. Instead, in its closing argument, the State focused on the overwhelming

evidence it presented to establish that Appellant was in fact intoxicated at the time of the

accident, including his toxicology results, and that the accident was not caused by the condition

of the vehicle, the road, or the intersection.

        Moreover, because the evidence of Appellant’s guilt was overwhelming, the admission of

the hearsay statements, although potentially incriminating, had only a minor influence, if any, on

the jury’s verdict. See Hughes, 12 S.W.3d at 168 (concluding that the admission of hearsay

statements pertaining to the defendant’s confession did not have a substantial and injurious

influence on the jury’s verdict in light of the overwhelming evidence of the defendant’s guilt

independent of those hearsay statements). We therefore conclude that the trial court’s erroneous

admission of Woods’ hearsay statements did not affect a substantial right of Appellant.

Accordingly, Issue Four is overruled.

                  The State Asked its Expert a Proper Hypothetical Question

        In Issue Six, Appellant contends the trial court erred in allowing the State to ask its expert

witness an improper hypothetical question regarding whether the Jeep may have spun out of

control when operated by a driver under the influence of marijuana, contending that the

hypothetical improperly assumed facts not in evidence.           We agree with the State that the

hypothetical properly tracked the evidence presented at trial.

                                         Standard of Review




                                                 44
         The trial court’s decision in determining whether to allow an expert witness to provide a

response to a hypothetical question is reviewed for an abuse of discretion. Tillman, 354 S.W.3d

at 442. A reviewing court will not reverse the trial court’s determination to admit or deny such

evidence unless it is outside the zone of reasonable disagreement. Id.

                                              Analysis

         An expert witness may offer an opinion based solely on hypothetical questions posed at

trial.   Tillman, 354 S.W.3d at 439 (citing Jordan v. State, 928 S.W.2d 550, 556 n.8

(Tex.Crim.App. 1996)). However, a hypothetical question posed to an expert witness must be

based on facts established by the evidence at trial. McBride v. State, 862 S.W.2d 600, 609

(Tex.Crim.App. 1993); see also Pyles v. State, 755 S.W.2d 98, 118 (Tex.Crim.App. 1988) (citing

Holloway v. State, 613 S.W.2d 497 (Tex.Crim.App. 1981)) (the assumptions of the hypothetical

must be based on facts within the personal knowledge of the witness, or facts assumed from

common or judicial knowledge, or facts supported by evidence); Tillman, 354 S.W.3d at 440

(expert witness testimony must be “sufficiently linked to the facts of the case”). If a hypothetical

question fails to echo any particular “event” that “occurred in that particular case,” it would

result in expert testimony that is not relevant for purposes of Rule 702 because it does not “fit”

the facts of the case and therefore cannot help the jury. Blasdell v. State, 384 S.W.3d 824, 830

(Tex.Crim.App. 2012); see also TEX. R. EVID. 702 (an expert witness testimony must “help the

trier of fact to understand the evidence or to determine a fact in issue”).

         At trial, both Florez and Pierce testified about two prior occasions when they were

driving Florez’s Jeep and it allegedly spun out of control, in an apparent attempt to support

Appellant’s theory that the accident was caused by events other than his intoxication. Pierce


                                                 45
testified, without objection, that he and Appellant had smoked marijuana on one of the days that

the Jeep had spun out of control. The State subsequently asked its expert witness, accident

reconstructionist Timothy Lovett, if he believed it was possible that the Jeep may have skidded

on those prior occasions because the road was wet. The following dialogue then occurred:

        Lovett:           Just on its own?

        Prosecutor:       Just on its own.

        Lovett:           No.

        Prosecutor: And if there was testimony that the person operating a vehicle had
        previously smoked marijuana prior to driving this vehicle … could the vehicle
        have just spun out on its own?

        Defense counsel objected that the question assumed facts not in evidence. The State

responded that the facts were in evidence based on Pierce’s prior testimony, apparently referring

to Pierce’s testimony that he and Appellant had smoked marijuana prior to driving the Jeep when

it had spun out of control. The trial court overruled the objection, and allowed Lovett to testify

that: “In the hands of a sober driver, this vehicle has the ability to stay in track and negotiate

turns,” and “[o]n dry pavement, in the hands of a sober, non-smoked (sic) person, [the Jeep]

should go straight. It’s not going to just willy nilly on its own flip around.”

        Appellant argues there was no evidence that the driver of the Jeep on the prior occasion

when the Jeep spun out of control had smoked marijuana, and therefore no factual basis for the

hypothetical question.18 Appellant further contends that the prosecutor’s hypothetical question


18
   Although his argument is not entirely clear, Appellant also apparently contends the State failed to establish that
Pierce’s testimony was “of a type reasonably relied upon by experts in the particular field in forming opinions or
inferences upon the subject.” In support, Appellant cites Ramirez v. State, 815 S.W.2d 636, 651 (Tex.Crim.App.
1991), in which the court held it was improper for a party to cross-examine an expert witness about scientific
treatises not introduced into evidence without a showing that they were “recognized authorities” in the field. Id. at
652. In the present case, Lovett’s testimony raised no such concerns.

                                                        46
only served as a “subterfuge” to get inadmissible evidence of Appellant’s prior marijuana use

before the jury. We disagree.

         At trial, Pierce testified that he and Appellant were traveling in the Jeep on a prior

occasion when it spun out of control and admitted, without objection, that they had been

smoking marijuana that day. Appellant argues that this did not show that the driver of the

vehicle was smoking marijuana. In his testimony, however, Pierce indicated that only two

individuals were in the car—Appellant and himself—and that both of them had smoked

marijuana. Since one of them had to be driving the vehicle, the only logical conclusion from

Pierce’s testimony is that the driver of the vehicle—whether it was Appellant or Pierce—had

smoked marijuana the day the car spun out of control. Further, the evidence presented at trial

also established that Appellant had marijuana in his bloodstream at the time he was driving the

Jeep on the morning of the accident.19

         The prosecutor’s hypothetical question asked whether the use of marijuana could have

affected the operation of the Jeep by causing it to spin out of control. The question was therefore

based on facts already in evidence, and did not, as claimed by Appellant, simply serve as a

subterfuge for getting evidence of his prior marijuana use before the jury. That information had

already been imparted to the jury by the testimony of both Pierce and Florez as well as the results

of the blood test conducted on Appellant after the accident. Moreover, the hypothetical question

directly related to Appellant’s defensive theory that the Jeep may have spun out of control on the

morning of the accident due to circumstances beyond Appellant’s control. Accordingly, the

question clearly “fit” the facts of the case. See Blasdell, 384 S.W.3d at 830; see also Pyles, 755

19
   Appellant also confusingly refers to the fact that Pierce never testified that Appellant smoked marijuana at the
party they attended prior to the accident. This is irrelevant, because the objected-to question concerned only to the
prior incidents in which Florez and Pierce claimed the Jeep had spun out of control.
                                                         47
S.W.2d at 118 (party is entitled to propound hypothetical questions that “assume facts in

accordance with his theory of the case”).

       We therefore conclude the trial court did not abuse its discretion in allowing the

prosecutor to ask its expert witness the hypothetical question. See McBride, 862 S.W.2d at 609

(trial court did not err in allowing the prosecutor to ask its expert witness a hypothetical question

based on facts established by the evidence at trial). Issue Six is overruled.

  The Trial Court did not Err in Admitting Evidence of Appellant’s Past Marijuana Use

       In Issue Five, Appellant contends the trial court erred in allowing Florez’s testimony that

Appellant had used marijuana in the past, arguing that it constituted evidence of an extraneous

offense not relevant to the charged offense and that it was highly prejudicial to his case. We

agree with the State, however, that Appellant opened the door to this testimony during his cross-

examination of Florez.

                                        Standard of Review

       We review the admission of extraneous-offense evidence for an abuse of discretion. De

La Paz v. State, 279 S.W.3d 336, 343 (Tex.Crim.App. 2009); Knight v. State, 457 S.W.3d 192,

201 (Tex.App. – El Paso 2015, pet. ref’d). A trial court does not abuse its discretion if the

decision to admit or exclude the evidence is within the “zone of reasonable disagreement.”

Montgomery, 810 S.W.2d at 391; Knight, 457 S.W.3d at 201. A trial court’s determination on

the admissibility of extraneous-offense evidence typically falls within the zone of reasonable

disagreement if the evidence shows: (1) that an extraneous transaction is relevant to a material,

non-propensity issue, and (2) the probative value of that evidence is not substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. De La Paz,


                                                 48
279 S.W.3d at 344; Knight, 457 S.W.3d at 201-02. If the trial court’s evidentiary ruling is

correct on any theory of law applicable to that ruling, we will not disturb it even if the trial court

gave the wrong reason for the correct ruling. De La Paz, 279 S.W.3d at 344; Knight, 457

S.W.3d at 202.

                                              Analysis

       Evidence of extraneous offenses or prior wrongful acts is generally not admissible during

the guilt-innocence phase as evidence that a defendant acted in conformity with his character by

committing the charged offense, unless it is admissible “for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” TEX. R. EVID. 404(b); Johnston v. State, 145 S.W.3d 215, 219 (Tex.Crim.App. 2004);

Montgomery, 810 S.W.2d at 386 (opin. on reh’g); Moses v. State, 105 S.W.3d 622, 626

(Tex.Crim.App. 2003); Knight, 457 S.W.3d at 202. But, “otherwise inadmissible evidence may

be admitted if the party against whom the evidence is offered ‘opens the door.’” Schutz v. State,

957 S.W.2d 52, 71 (Tex.Crim.App. 1997).

       A party opens the door by leaving a false impression with the jury that invites the other

side to respond. Hayden v. State, 296 S.W.3d 549, 554 (Tex.Crim.App. 2009); Williams v. State,

301 S.W.3d 675, 687 (Tex.Crim.App. 2009) (assuming evidence of the defendant’s prior crimes

was inadmissible under Rule 404(b), the trial court did not abuse its discretion by admitting the

evidence where defense counsel opened the door by deliberately asking a witness about the

crimes). However, the party offering the evidence may not “stray beyond the scope of the

invitation.” Schutz, 957 S.W.2d at 71; Hayden, 296 S.W.3d at 554; see Knight, 457 S.W.3d at

202 (“By raising a defensive theory, the defendant ‘opens the door’ for the State to offer rebuttal


                                                 49
testimony regarding an extraneous offense if the extraneous offense has characteristics common

with the offense for which the defendant was on trial.”).

       On cross-examination by defense counsel, Florez testified she did not observe anything to

make her believe Appellant was intoxicated when he arrived at his mother’s residence following

the accident, and that he appeared to have the normal use of his mental and physical faculties at

that time. On redirect, the prosecutor sought to inquire if Florez had been in Appellant’s

presence on prior occasions when he had imbibed alcohol or smoked marijuana, in an attempt to

ascertain how he appeared on those occasions. Appellant objected to the question on relevance

grounds, and the State argued that defense counsel had “opened the door” by having Florez

testify that Appellant did not appear to be intoxicated on the morning of the accident. Over

Appellant’s objection, Florez was allowed to testify on redirect that she had been in Appellant’s

presence on previous occasions after he had smoked marijuana, and that Appellant acted “pretty

much the same” after smoking marijuana, and that he did not “act much differently than he does

normally.”

       Appellant contends that he did not open the door to having his prior marijuana use

admitted, asserting that Florez’s testimony did not leave a “false impression with the jury that

could be dispelled by evidence of Appellant’s marijuana use.”          Appellant appears to be

contending that the only way he could have “opened the door” to his prior marijuana use was if

he had elicited testimony from Florez that he did not use marijuana, thereby creating the false

impression that he was not a marijuana user. We disagree.

       As the State points out, the evidence was not elicited from Florez to clear up a false

impression whether Appellant used marijuana, but how Appellant acted when he was under the


                                                50
influence of marijuana. And, the evidence was used to clear up the false impression that Florez’s

testimony may have given to the jury that merely because Appellant appeared to have the normal

use of his faculties on the morning of the accident, that necessarily meant he had not ingested

intoxicating substances prior to the accident. The State argues that Florez’s testimony regarding

how Appellant normally appears while under the influence of marijuana or other intoxicating

substances was not only relevant but necessary to clear up that false impression. We agree with

the State.

        On cross-examination, Florez testified that Appellant did not appear to have lost the

normal control of his faculties after the accident, and that he was able to speak to her and the

investigating officers as if he were sober. Defense counsel never asked Florez if she knew how

Appellant typically acted when he was under the influence of alcohol or drugs. Therefore, the

jury may have labored under the false impression that Appellant acted differently when he drank

or took drugs, such as marijuana. Accordingly, the trial court could have reasonably concluded

that it was necessary for the State to question Florez to clear up any potentially false impression.

See Daggett v. State, 187 S.W.3d 444, 452 (Tex.Crim.App. 2005) (where a defendant testifies to

a blanket statement of good conduct or character, he may “open the door” by leaving a false

impression with the jury about a relevant act or character trait, and thereby allow the admission

of evidence of extraneous acts that tend to rebut such testimony to impeach the defendant).

        Appellant correctly points out, however, that even if the evidence was relevant to clear up

a false impression, the trial court still had the discretion to exclude the evidence under Rule 403

if it found the evidence was more prejudicial than probative. See, e.g., Hayden, 296 S.W.3d at

554 (unless a witness’s testimony created a false impression that was “directly relevant to the


                                                51
offense charged,” allowing a party to delve into the issue beyond the limits of cross examination

may nevertheless be prejudicial if it wastes time and confuses the issues).         Applying the

Gigliobianco analysis,20 Appellant argues that whether he smoked marijuana on prior occasions

was not relevant to the charged offense, because that evidence would not establish that he was

under the influence of marijuana at the time of the accident, thereby rendering the evidence of

little or no probative value. Florez’s testimony that Appellant appeared normal even after he had

smoked marijuana in the past was relevant, however, because it could assist the jury in resolving

whether Appellant was intoxicated at the time of the accident, rendering the evidence probative

on a key element of the charged offense. Further, as explained above, the question whether

Appellant was intoxicated was highly disputed by Appellant at trial. Therefore, the State had a

great need to clarify any false impression Florez’s testimony may have had on the issue of

Appellant’s intoxication.

           Appellant argues that regardless of its probative value, the evidence of his prior

marijuana use may have confused or otherwise misled the jury on why the evidence was being

admitted.       Appellant believes the jury may have considered the evidence to conclude that

Appellant was a “habitual user of marijuana or that he had smoked marijuana that night prior to

driving.” In support of his argument, Appellant cites Hankton v. State, 23 S.W.3d 540, 543

(Tex.App. – Houston [1st Dist.] 2000, pet. ref’d), a cocaine possession case in which the

appellate court concluded that the trial court erred in admitting evidence of two prior extraneous

offenses in which defendant was found to have possessed large amounts of cocaine and cash. Id.

at 543.       The court held that the evidence was more prejudicial than probative, finding it

significant that the State spent a significant amount of time developing the facts relating to the
20
     See Gigliobianco, 210 S.W.3d at 641-42.
                                                52
extraneous criminal offenses, in a clear attempt to paint the defendant as an “established drug

dealer,” and to cause the jury to “react from a moral or emotional basis instead of from a rational

and logical basis” in determining the defendant’s guilt. Id. at 547-48.

        In the present case, however, Appellant acknowledges that the State did not spend an

inordinate amount of time developing the facts of his marijuana use, and instead, only asked

Florez a short series of questions regarding Appellant’s prior use and how it affected him.

Further, unlike in Hankton, the prosecutor in the present case never attempted to paint Appellant

as a chronic marijuana user, and never implied that he was involved in any ongoing criminal

activity related to his alleged marijuana use. In fact, the prosecutor never once mentioned

Appellant’s prior marijuana use during her closing argument, and never urged the jury to

consider Appellant’s prior drug use as being indicative of his intoxication at the time of the

accident. Instead, the prosecutor’s sole focus in questioning Florez was on Appellant’s typical

countenance when he was under the influence of marijuana. Under these circumstances, we

conclude the jury would have been misled or confused regarding the reason for the evidence’s

admission, or that the jury would have given it undue weight.21

        Moreover, for similar reasons, even if the admission of this evidence were erroneous, it

would not have affected Appellant’s substantial rights. In particular, the jury would not have

been unduly influenced by Florez’s passing reference to Appellant’s prior marijuana use, not

only in light of the overwhelming evidence of Appellant’s guilt, but also because Pierce testified,



21
   Appellant also contends that the jury may have been confused about why the evidence was being admitted
because the trial court never gave the jury a limiting instruction to only consider the evidence for this limited
purpose. It was Appellant’s burden to request a limiting instruction, however, which he failed to do. See Abdnor v.
State, 808 S.W.2d 476, 478 (Tex.Crim.App. 1991) (where evidence is admissible for a limited purpose and the court
admits it without limitation, the party opposing the evidence has the burden of requesting a limiting instruction).
                                                        53
without objection, that he and Appellant had smoked marijuana together on a prior occasion.

Issue Five is overruled.

                                        No Cumulative Error

          In Issue Twelve, Appellant contends that if this Court agrees that the trial court

committed more than one error at trial, but found those errors to be harmless in isolation, we

should consider whether Appellant was nevertheless harmed by the cumulative effect of those

errors.     See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999) (“It is

conceivable that a number of errors may be found harmful in their cumulative effect.”).

However, we have concluded the trial court erred in only one respect and found that error to be

harmless. Accordingly, the cumulative error doctrine does not apply. See id. (concluding the

cumulative error doctrine was not applicable where it found no error in the record). Issue

Twelve is overruled.

                                           CONCLUSION

          The trial court’s judgment is affirmed.


                                                STEVEN L. HUGHES, Justice
September 30, 2016

Before McClure, C.J., Rodriguez, and Hughes, JJ.

(Do Not Publish)




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