                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00430-CR
                            NO. 02-11-00431-CR


ARTURO ARMIJO                                                  APPELLANT

                                     V.

THE STATE OF TEXAS                                                   STATE


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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

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                       MEMORANDUM OPINION 1

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     Appellant Arturo Armijo was charged in trial court cause number

1224172D (02-11-00430-CR) with felony driving while intoxicated (DWI) and in

trial court cause number 1224396D (02-11-00431-CR) with possession of less

than one gram of cocaine.    The felony DWI was enhanced with a habitual

offender notice. The possession of cocaine charge was enhanced from a state

     1
      See Tex. R. App. P. 47.4.
jail felony to a second-degree felony. The cases were tried jointly before a jury,

which convicted Appellant of both offenses, and, finding the enhancement

allegations to be true, assessed his punishment at thirty years’ confinement in

the felony DWI case and at five years’ confinement in the possession of cocaine

case, with the sentences to be served concurrently. The trial court sentenced

Appellant accordingly in each case.

      Appellant brings a single point on appeal, complaining that the trial court

reversibly erred by admitting evidence of retrograde extrapolation in the felony

DWI case and that the error in the DWI case tainted the jury verdict in the

cocaine case, number 1224396D. Because we hold that the trial court did not

reversibly err, and because Appellant cites us to no law or argument to support

his complaint that error in the DWI case created reversible error in the cocaine

case, we affirm the trial court’s judgments.

       Officer Jamie Fagan, a City of Fort Worth police officer, was working the

third shift on December 19, 2010, on East Lancaster. She observed a small

pickup approaching her that was driving the wrong way on East Lancaster.

Officer Fagan stopped the pickup.       Appellant was its driver.   Officer Fagan

testified that Appellant’s speech was slurred, he smelled of alcohol, and he was

unsteady on his feet. Although Appellant could speak English, Officer Fagan

summoned Officer Gilbert Lara to the scene to speak with Appellant in Spanish.

Officer Fagan testified that, inside the pickup, she saw three empty Coors beer

cans and another can of Coors beer that was approximately half-full.


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       Officer Lara performed a horizontal-gaze-nystagmus test, but Appellant

refused to participate in the one-leg stand and walk-and-turn field sobriety tests.

He explained to the officer that he could not perform those tests because of the

injuries he had received in the Vietnam War. At trial, both Officer Lara and

Officer Fagan offered the opinion that Appellant had been intoxicated at the time

of his arrest.

       Appellant’s blood test, administered about four hours after his arrest,

showed his blood alcohol concentration (BAC) to be .20.

       While he was being booked into the jail, Appellant was discovered to have

a small baggie of white powder in his wallet. When the powder was tested, it

was found to be .05 grams of cocaine.

       At trial, Dr. Robert Johnson, chief toxicologist for the Tarrant County

Medical Examiner’s office, offered his opinions regarding Appellant’s BAC at the

time of his arrest, based on retrograde extrapolation and upon the fact that

Appellant’s BAC reading was not obtained until some four hours after his arrest.

Dr. Johnson admitted that he did not have sufficient facts upon which to base an

opinion with reasonable scientific certainty. Specifically, on voir dire, Dr. Johnson

testified to the factors that go into retrograde extrapolation.     He testified as

follows:

              You need the height and weight of the person that we’re
       talking about. We’d like to know the time of the last drink, so we
       would be able to tell if all the ethanol is absorbed, and we’d like to
       know the time of the last meal, so we could get an idea if there was



                                         3
any food in the stomach that would have delayed absorption of that
last drink.

....

       If the last drink was completely absorbed, a retrograde
extrapolation can be done fairly accurately. Because elimination is a
linear function and you just add the number of hours times that
elimination rate to the original result. Without that knowledge, if the
last—or if there is unabsorbed alcohol in the stomach, it makes it
very difficult to follow that extrapolation lying down, because you
don’t know how much was in the stomach at the time of the incident.

....

       If there is food in the stomach, that absorption is slowed. So it
affects—while it affects the rate of the absorption and it increases
the likelihood that there was unabsorbed alcohol in the stomach,
which makes that estimate of alcohol concentration more difficult.

....

      If you’re still absorbing alcohol, you’re on that upper portion
of—you’re still increasing in alcohol concentration, so it makes
picking a time on the decreasing side of that curve more difficult[. I]t
can be impossible.

      If you are purely eliminating ethanol, everything’s been
absorbed, you’re on the linear function on the backside, on the
decreasing side of the curve, it is mathematically valid to estimate an
alcohol concentration at a previous time.

....

       We can—we do it three ways. We use the average and we
will present that generally. If someone is a habitual drinker, they
eliminate ethanol faster, so we can do a faster rate of elimination in
that case.

       If someone’s a naive drinker, they eliminate alcohol slower, so
we can use a lower elimination rate in that case. I used the average
today.

....


                                   4
            The range is .01 on the naive drinker side to .025 on the
      habitual drinker side. So it’s more than double, the rate would be
      more than double for a—what we consider an alcoholic.

      Dr. Johnson testified that he did not measure or weigh Appellant but was

provided a height of 5'7ʺ and a weight of 180 pounds. Dr. Johnson admitted that,

because he was missing several of the necessary factors, his estimates

concerning Appellant’s BAC at the time of his arrest could be different from the

actual BAC. He also said that the fact that the blood test was completed four

hours after the stop made it easier to get a number, because within the first hour,

all ethanol is absorbed.     The remaining three hours would be on the linear

backside of the curve, so he could be fairly confident that only elimination was

taking place. But Dr. Johnson admitted that there were many unknowns.

      Nevertheless, he testified before the jury that people start losing the use of

their mental or physical faculties at .03 or .04:

            The drinking while in the car makes it very difficult, because
      we don’t know how much was left unabsorbed in the stomach at the
      time of the stop. The . . . fact that it’s four hours between the stop
      and the time of the test, that helps a little bit, because all of the
      ethanol that would have been consumed prior to the stop would
      have been absorbed within the first hour after the stop. So that
      leaves us basically from 3:00 a.m. to 6:15. So about three hours of
      only elimination and no absorption of additional alcohol.

            So if we added three hours worth of elimination to the .2, it
      would have been about—on average, about point .24, maybe.
      That’s an estimate.

      Only at that point did Appellant take Dr. Johnson on voir dire and then

lodge his objections to the testimony. But the question posited to Dr. Johnson



                                           5
when he offered that testimony was, “Are you able to come to a result based on

that set of facts?” The question called for a “yes” or “no” answer, not for his

conclusion.

      Appellant contends that the trial court abused its discretion by admitting

the retrograde extrapolation evidence. The State asks us to hold that Appellant

did not preserve this issue for appellate review. Appellant concedes that Dr.

Johnson had testified before the jury concerning his credentials and had begun

to offer opinions regarding Appellant’s BAC at the time of his arrest. Because the

BAC test was not completed until approximately four hours after Appellant’s

arrest, Dr. Johnson’s testimony necessarily involved retrograde extrapolation.

Appellant requested a hearing outside the presence of the jury, and after the

hearing, Appellant contended that Dr. Johnson did not have sufficient facts upon

which to base an opinion with reasonable scientific certainty.       Dr. Johnson

conceded that critical factors that he himself had described as necessary for an

accurate retrograde extrapolation conclusion were not known.              Appellant

objected to Dr. Johnson’s testimony regarding Appellant’s probable BAC at the

time of his arrest, but the trial court disagreed with Appellant’s position and

permitted Dr. Johnson to testify to the probable BAC before the jury. We hold

that Appellant sufficiently preserved his complaint by objecting to the testimony

regarding retrograde extrapolation and receiving an unfavorable ruling.

      After Appellant’s objection was overruled, the State reminded Dr. Johnson

that he had testified that “the person who was driving that car’s [BAC] can be as


                                        6
high as .024 . . . .” Dr. Johnson responded that that was a rough estimate but

that he felt pretty confident that the BAC would be higher than .2.

      The Texas Court of Criminal Appeals has held that evidence of retrograde

extrapolation is not admissible unless significant underlying facts are present

rendering the opinion evidence reliable. 2 But the erroneous admission of such

evidence does not typically constitute constitutional error. 3 Consequently, under

rule of appellate procedure 44.2(b), the erroneous admission of such evidence is

not reversible if it had no more than a slight effect on the jury’s verdict. 4

      The Texas Court of Criminal Appeals explained in Bagheri v. State that in

determining whether there was harm from nonconstitutional error,

      [t]he question is not whether there was sufficient evidence to support
      the verdict. Instead, the reviewing court should consider the entire
      record when making this determination, including testimony, physical
      evidence, jury instructions, the State’s theories and any defensive
      theories, closing arguments, and voir dire if applicable. Important
      factors are “the nature of the evidence supporting the verdict, the
      character of the alleged error and how it might be considered in
      connection with other evidence in the case.” More specifically, the
      reviewing court should consider whether the State emphasized the
      error, whether the erroneously admitted evidence was cumulative,
      and whether it was elicited from an expert. 5



      2
       Mata v. State, 46 S.W.3d 902, 908, 916–17 (Tex. Crim. App. 2001).
      3
        Bagheri v. State, 119 S.W.3d 755, 762–63 (Tex. Crim. App. 2003) (citing
Potier v. State, 68 S.W.3d 657, 662–63 (Tex. Crim. App. 2002)).
      4
       Id. at 763; see Tex. R. App. P. 44.2(b).
      5
       Bagheri, 119 S.W.3d at 763 (citations omitted).


                                           7
      Taking Dr. Johnson at his word that he did not have enough information to

perform retrograde extrapolation that was sufficiently reliable to determine

accurately Appellant’s BAC at the time of his arrest, we examine the record to

determine whether erroneous admission of the retrograde extrapolation

testimony substantially affected Appellant’s rights so that it had more than a

slight effect on the jury’s verdict. 6 The felony DWI indictment alleged merely that

Appellant operated a motor vehicle in a public place while intoxicated, without

stating the manner or means of intoxication. The State was free, then, to prove

either per se intoxication or lack of normal use. 7       The police found beer

containers in Appellant’s pickup. His BAC reflected in the blood draw was .20.

The police saw him driving in the wrong direction against oncoming traffic.

      Specifically, Officer Fagan testified that she first saw Appellant’s pickup

while she was driving eastbound on Lancaster in Fort Worth.               She saw

headlights coming toward her in the same lane. She testified that there were

three eastbound lanes and three westbound lanes. The eastbound lanes and

westbound lanes were separated by a large median with trees.              She was

concerned about the safety of the public because the pickup was traveling on the

wrong side of the median, which meant that it was traveling westbound in the

lanes on the eastbound side of the median. After she stopped Appellant, she


      6
       See id. at 762–63; see also Tex. R. App. P. 44.2(b).
      7
       See Bagheri, 119 S.W.3d at 762.


                                         8
spoke with him and realized that his speech was slurred and that he appeared

intoxicated. The officers smelled the odor of alcoholic beverage and testified that

Appellant’s eyes were bloodshot and watery. They also observed that Appellant

was swaying and that his balance was unsteady after he got out of the truck.

The evidence of intoxication, if believed, was overwhelming, even without

evidence of retrograde extrapolation.

      The officers also found a baggie of cocaine in Appellant’s pocket.

      We therefore hold that the erroneous admission of the retrograde

extrapolation testimony did not affect Appellant’s substantial rights to a fair trial or

substantially affect or in any way undermine confidence in the jury’s verdict in the

felony DWI case and was therefore harmless. We further hold that the improper

admission of the retrograde extrapolation testimony likewise had no effect on the

cocaine case, and therefore likewise caused no harm in that case.

      We, therefore, overrule Appellant’s sole point and affirm the trial court’s

judgments.



                                                      LEE ANN DAUPHINOT
                                                      JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

GABRIEL, J., filed a concurring opinion in which LIVINGSTON, C.J., joins.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 1, 2013


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