                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00387-CR

AARON ZANE SOMERS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                        From the 272nd District Court
                             Brazos County, Texas
                       Trial Court No. 08-00910-CRF-272


              MEMORANDUM OPINION ON REMAND


      Aaron Somers appealed from his conviction for intoxication manslaughter, for

which he was sentenced to twelve years in prison. TEX. PEN. CODE ANN. § 49.08 (West

2011). On original submission, this Court affirmed the judgment of the trial court.

Somers v. State, 333 S.W.3d 747 (Tex. App.—Waco 2010, pet. granted) ("Somers I"). The

Court of Criminal Appeals reversed our decision in part on the only ground before it

and determined that an enzyme-multiplied immunoassay technique, or EMIT test, is

scientifically reliable. Somers v. State, 368 S.W.3d 528 (Tex. Crim. App. 2012) ("Somers
II"). That Court remanded this proceeding to this Court to determine whether the trial

court abused its discretion by excluding the expert testimony regarding the results of

the EMIT test of the victim's blood. Because we find that the trial court did not abuse its

discretion, we affirm the judgment of the trial court. The scope of this opinion is limited

to the issue remanded from the Court of Criminal Appeals. See Somers II, 368 S.W.3d at

545. Because we resolved Somers's other issues in our prior opinion, we will not

address them here. See, generally, Somers I, 333 S.W.3d at 747.

Admission of Evidence

        Somers complains that the trial court abused its discretion by refusing to admit

expert testimony regarding the results of the EMIT test conducted on the victim's blood

because the results of the EMIT test would have aided his defense, which was that the

victim was already deceased at the time of the collision due to a heart attack from

cocaine use. The State contends that the testimony setting forth and explaining the

results are not relevant or that even if it was relevant, the potential for undue prejudice

is substantially greater than the probative value. Because the facts were set forth at

length in prior opinions, we will not restate them here except as necessary to our

disposition.

Standard of Review

        An appellate court may not disturb a trial court's evidentiary rulings absent an

abuse of discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). As


Somers v. State                                                                      Page 2
long as the trial court's decision was within the zone of reasonable disagreement and

was correct under any theory of law applicable to the case, it must be upheld. Id. (citing

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en banc) (op. on

reh'g)). The exclusion or admission of evidence does not result in reversible error

unless it affects a substantial right of the accused. See TEX. R. APP. P. 44.2(a), (b).

Relevance

        Before admitting expert testimony, the Texas Rules of Evidence require a trial

judge to make three separate inquiries: qualification, reliability, and relevance. See Vela

v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006); see also TEX. RS. EVID. 104(a), 401,

402, & 702.       Pursuant to relevance, the inquiry is whether admitting the expert

testimony will actually assist the fact finder in deciding the case. See Vela, 209 S.W.3d at

131. Rules 401 and 402 render testimony admissible only if it "tend[s] 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." TEX. R. EVID. 401; see

Vela, 209 S.W.3d at 131.

Analysis

        In her dissent to the majority's opinion in Somers, Judge Johnson of the Court of

Criminal Appeals stated:

              Both [experts] testified that EMIT testing could not reveal when
        cocaine was ingested, how it was ingested, how much was ingested, how
        many times the user had used cocaine, whether the user was a frequent
        user, or whether the user had overdosed. Even considering the
Somers v. State                                                                           Page 3
        unconfirmed results of the EMIT test, the complainant could have
        ingested cocaine 10 minutes or four days before the collision.

               The cause of death, blunt force trauma, does not correlate to use of
        cocaine, but it does correlate to a violent collision between two
        automobiles. The state's collision reconstruction witness testified that the
        complainant's car was struck from the rear while it was in gear and
        stopped on the shoulder of the road with the left tires on or close to the
        white fog line. With its tires pointing straight ahead and traveling at
        about 60 miles per hour, the right front of appellant's truck struck the left
        rear of the complainant's car with no indication of any avoidance
        maneuvering or hard braking before the point of impact. About half the
        width of each vehicle was within the zone of impact. Even if the
        complainant had ingested cocaine just before impact, it could have no
        relevance in a crash in which appellant literally ran up the complainant's
        tailpipe, causing her car to violently rotate 180° and his car to use her left
        rear quarter panel as a spring board with enough force to launch his 5000-
        pound truck into a double layout somersault with a full twist. In the face
        of such evidence, cocaine use at some indeterminate time in some
        indeterminate amount had no relevance or probative value. The trial
        judge correctly ruled that the unconfirmed EMIT test would not be
        admitted, and that ruling should be affirmed.

Somers II, 368 S.W.3d 528, 549 (Tex. Crim. App. 2012) (Johnson, J. dissenting).

        We agree with Judge Johnson's dissent that the evidence was not relevant. The

record contains no evidence that Briggs was dead from a cocaine-induced heart attack

prior to the collision caused by Somers. Briggs sustained severe spinal cord injuries in

the accident and blunt force trauma was ruled to be the cause of death. There was no

damage to Briggs's heart or other sign of a cocaine-induced heart attack found in the

autopsy. We find that the trial court's decision to exclude the testimony and the results

of the EMIT test were within the zone of reasonable disagreement and therefore the trial



Somers v. State                                                                          Page 4
court did not abuse its discretion.            We overrule issue two from Somers's original

submission.1

Conclusion

        Having found that the trial court did not abuse its discretion in the exclusion of

the evidence, we affirm the judgment of the trial court.




                                                 TOM GRAY
                                                 Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 1, 2013
Do not publish
[CR25]




1 Based on arguments made at the oral argument in this cause post-remand, in our review of Somers's
argument that the victim was already dead as the result of a cocaine-induced heart attack at the time of
the collision, we asked the parties to brief the issue of concurrent causation and the resuscitation of the
victim. Given our disposition of the issue we now find it unnecessary to address that argument.

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