Affirmed and Majority and Concurring Opinions filed March 28, 2013.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-11-00440-CR


                       JACKIE LEE HALEY, Appellant
                                        V.

                      THE STATE OF TEXAS, Appellee


                    On Appeal from the 25th District Court
                          Colorado County, Texas
                      Trial Court Cause No. 10-118-CR


                       CONCURRING OPINION

      I respectfully concur. I agree in all regards with the majority’s analysis of
Issues Nos. 1 and 3–6. I agree with the disposition of the cause. However, with
regard to Issue No. 2, I would hold that the admission of the State’s expert
testimony (Logan) was error, but harmless error.

                  I. IT WAS ERROR TO ADMIT THE OPINIONS OF
                   THE STATE’S EXPERT BARRY LOGAN, PH.D.

      The State presented Barry Logan, Ph.D. as an expert witness. Dr. Logan
opined that appellant “was under the influence of and affected by his
methamphetamine use at the time that he was involved in this crash.”

        The majority opinion characterizes the methodology used by Dr. Logan to
reach this opinion as (1) comparing data on subjects known to have
methamphetamine in their blood whose data became known to Logan because they
were arrested or injured, or fatally injured another; and (2) correlating the
relationship between the level of methamphetamine found and the circumstances
of the incident that brought the subject to his attention. Actually, that was Dr.
Logan’s methodology for his case studies, not for formulating opinions in this
case.

        To formulate his opinion, Dr. Logan used one piece of information about
appellant: appellant’s blood concentration of methamphetamine.           Dr. Logan
compared appellant’s blood concentration of methamphetamine with the average
blood concentration of the study subjects. Of note, appellant’s blood concentration
fell within the range of blood concentration of Dr. Logan’s study subjects (.01–
2.24); it was higher than the average.

        Other than comparing appellant’s blood concentration to the average of the
studies he conducted or was aware of, Dr. Logan made no effort to show that
appellant was similar in any way to the subjects studied. Dr. Logan himself
conceded that nothing in the available “scientific data” would allow him to testify
about the specific effects that appellant would have been experiencing as a result of
methamphetamine. There is no threshold above which blood concentration of
methamphetamine is generally accepted to affect behavior or driving behavior. Dr.
Logan was nevertheless willing to give the opinion that appellant had to be
affected because his concentration was so far above what is considered a
therapeutic range. In short, Dr. Logan’s methodology is a guess—an educated

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guess, but a guess.

      Applying these facts to law, then, Dr. Logan’s methodology for converting
appellant’s .8 blood concentration of amphetamine into an opinion about the
effects of that amphetamine on appellant at the time of the crash fails significant
Kelly factors:

             There is no evidence that the methodology is accepted in the scientific
             community. Even Dr. Logan testified that it is difficult to correlate
             specific effects with blood concentration. Nothing in Dr. Logan’s
             testimony about his case studies supports a per se correlation between
             concentration of methamphetamine and effects on driving.
             There is no evidence that the methodology is supported by the
             literature. The literature discussed at trial memorializes case
             studies—observational studies of known positive methamphetamine
             and known illegal driving behavior—to determine whether there is a
             relationship. There are no control groups and few study subjects who
             tested positive for methamphetamine alone, as appellant did. Nothing
             in the studies or the literature discussed at trial endorses Dr. Logan’s
             methodology for comparing dissimilar subjects with known criteria to
             appellant.
             There is no evidence that the methodology is capable of having a rate
             of error; Dr. Logan acknowledges that his case studies have no rate of
             error.
See Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).

      Further, Dr. Logan’s opinion about appellant that related back to the time of
the crash is fundamentally flawed because it is not founded on any information
about time of ingestion, height, weight, absorption, elimination, time of crash, or
time of blood test. See Mata v. State, 46 S.W.3d 902, 909 (Tex. Crim. App. 2001)
(describing retrograde extrapolation as the method to estimate a level of blood-
alcohol at the time of driving based upon a computation of absorption derived
from, among other things, contents of food in the stomach, gender, height, weight,
amount consumed, and time of consumption); see also DeLarue v. State, 102
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S.W.3d 388, 401 (Tex. App.—Houston [14th Dist.] 2003, pet ref’d) (holding it was
error to admit “marijuana evidence as it related to appellant’s intoxication and
resultant behavior” where the State did not quantify the presence of marijuana,
show when the marijuana was introduced into his system, show he was “under the
influence” at the time of the accident, or show causation between appellant’s
behavior and the presence of marijuana).

      In summary, Dr. Logan could not and would not opine about how the
methamphetamine affected appellant. But as to whether appellant was affected by
the methamphetamine, the essence of Dr. Logan’s opinion was, “How could he not
be?” That is not a scientific opinion.

                    II. THE ERROR IN ADMITTING DR. LOGAN’S
                           TESTIMONY WAS HARMLESS

      Under Rule 44.2(b) of the Texas Rules of Appellate Procedure, we review
the trial court’s erroneous evidentiary rulings for harm, disregarding non-
constitutional errors that do not affect the defendant’s “substantial rights.” TEX. R.
APP. P. 44.2(b).     We may not reverse for non-constitutional error if, after
examining the record as a whole, we have fair assurance that the error did not have
a substantial and injurious effect or influence in determining the jury’s verdict, or
had but a slight effect. See Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App.
2007); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

      I would conclude that we have fair assurance that this error did not have a
substantial and injurious effect or influence in determining the jury’s verdict. The
record as a whole leaves no doubt that Dr. Logan’s testimony, at most, had a slight
effect on the jury’s verdict.

      Appellant was indicted for manslaughter, recklessly causing the death of the
three victims “while driving eastbound on the Interstate 10 freeway after ingesting
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methamphetamine and fail[ing] to properly control his vehicle.”                               Initially,
appellant testified that he ingested an unknown synthetic substance1 to allow him
to stay awake and drive all night. However, appellant later acknowledged that he
did not say anything to the doctor at the emergency room about the unknown
substance because he knew he was on methamphetamine. And the hospital records
confirm that appellant tested positive for amphetamine.

      The jury also heard that appellant had a prior conviction for a
methamphetamine-related offense. In fact, they saw the judgment for that offense:
conspiracy to manufacture and distribute methamphetamine.

      The toxicologist testified about the generally-accepted effects of
methamphetamine; that is, the initial stimulant effect of the drug and the
subsequent depressant effect. She also testified about the characteristics ordinarily
exhibited by someone in each of these phases. The toxicologist testified that
accepted therapeutic levels of methamphetamine are .02 to .05 mpl and that
anything above that level is considered “abusive.” Finally, she testified that she
tested appellant’s blood and found a concentration of .8 mpl.

      It was undisputed that appellant caused the crash when he veered out of his
lane at 65 miler per hour, crossed the median, and drove into oncoming cars.
Eyewitnesses described the event and the lack of a precipitating obstacle in the
road. They also indicated that they did not see appellant undertake any effort to
brake or correct the tractor trailer he was driving. The medical personnel described
appellant as unusually or alarmingly calm, with a “very flat” demeanor, but not in
shock. Appellant displayed no physical reaction when the trooper on scene told
him that three individuals had died as a result of the accident, and such reaction is
atypical.
      1
          Unchallenged testimony at trial established that methamphetamine is a synthetic substance.

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      Appellant presented his theory that coughing caused him to blackout, and
the blackout had nothing to do with methamphetamine. However, the jury also
heard that immediately at the scene of the crash appellant said nothing of
coughing; instead he stated that he must have blown a tire. Only later at the
hospital did he describe coughing.

      With regard to Dr. Logan’s testimony, the State urged his credentials and
studies, the defense urged a lack of reliability and speculation, and Dr. Logan
himself admitted the limited value of his studies and the limited nature of his
opinions.       Much of Dr. Logan’s testimony about methamphetamine was
duplicative of the toxicologist’s testimony.

      Thus, a review of the record as a whole shows that the toxicologist placed
appellant’s blood concentration of methamphetamine at four times the abusive
threshold level. Appellant previously had been incarcerated for manufacturing
methamphetamine and knew he should not drive after consuming the drug.
Moreover, appellant’s reliance on the tussive-syncope theory of blackout is
inconsistent with his initial explanation of the crash. In fact, even during trial
appellant’s testimony about what he took and whether he knew it to be
methamphetamine was inconsistent. On this record, I would hold that Dr. Logan’s
opinion did not have a substantial and injurious effect or influence in determining
the jury’s verdict.



                                                /s/       Sharon McCally
                                                          Justice

Panel consists of Justices Boyce, McCally, and Mirabal.2 (Mirabal, J., majority).
Publish — Tex. R. App. P. 47.2(b).
      2
          Senior Justice Margaret Garner Mirabal sitting by assignment.

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