Opinion issued June 19, 2014




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-13-00128-CR
                          ———————————
                    ENGIN ATTILA CALBAS, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                  On Appeal from the 338th District Court
                          Harris County, Texas
                      Trial Court Case No. 1309689


                        MEMORANDUM OPINION

      This is an intoxication-manslaughter case. The jury found appellant guilty

and assessed punishment at twelve years’ confinement and a $10,000 fine. We

affirm.
                                 BACKGROUND

      Jeff Smith testified that, on the evening of July 10, 2011, he and appellant

met at Twin Peaks—a restaurant/bar located at I-45 and Nasa Road 1—for dinner

around 9:30 p.m. There was at least an hour-long wait for a dinner table when they

got there, so they sat down to have drinks with some friends. According to Smith,

during the hour that he and appellant were at Twin Peaks, appellant had two Vodka

Red Bulls to drink, and they did not have dinner. At 10:30 p.m., appellant and

Smith gave up on a table and drove to another restaurant, Outriggers, to eat.

Outriggers was closing when they got there so, instead of eating, appellant

followed Smith to Smith’s house so that Smith could drop off his truck. Then

appellant drove them both to the Turtle Club, a waterfront bar on Nasa Road 1 in

Seabrook. Appellant was driving a silver Corvette that belonged to a friend. They

arrived at the Turtle Club around 11:15 p.m., and stayed there until it closed at

2:00 a.m.

      Smith opened up a tab at the Turtle Club to pay for both his drinks and

appellant’s drinks. He testified that, based upon that tab and witnessing appellant’s

drinking, appellant had four Vodka Red Bulls while they were at the Turtle Club.

At about 12:30 a.m., they ran into Tina Montana, one of Smith’s friends. Tina

approached Smith for a ride home because she had been left there by some friends.




                                         2
Her keys, wallet, and cell phone were on the friends’ boat. Appellant did not know

Tina, but agreed to give her a ride home when they left for the night.

      Around 2:00 a.m., Smith closed out his tab and the three of them left.

Appellant drove to Smith’s house to drop him off first because it was closest.

Smith was uncomfortable and did not feel safe during that drive, as appellant was

smoking marihuana and “hot rodding it a little bit and showing off,” i.e., popping

the clutch when leaving a stop sign, spinning the tires, and swerving. Smith asked

appellant to stop driving that way, and he did. When they got to Smith’s house,

Smith got out and appellant drove off with Tina.

      Smith testified that appellant then called him at 2:21 a.m. and said he had

gotten in a wreck. Smith drove to the site of the wreck, but turned around and

drove back home when he saw police there because he knew he had been drinking

and should not have been driving. He similarly opined that appellant was too

intoxicated to be driving that night.

A.    The Collision Investigation

        Pasadena Police Department Officer B. Wagganer was on patrol in the

early hours of July 11, 2011. He testified that while patrolling on eastbound Nasa

Parkway, he could hear revving engines when approaching the 4900 block. He

then saw a motorcycle speeding westbound in the inside lane and a Corvette

“several car lengths behind it” in the outside lane. In Wagganer’s opinion, both the


                                          3
motorcycle and the Corvette were driving “well over” the 45-mile-per-hour speed

limit. He estimated that they were both driving over 100-miles-per-hour.

      After he u-turned and headed back to try to catch them, Wagganer did not

see the motorcycle or Corvette, but instead encountered “a bunch of debris in the

roadway and dust everywhere . . . indicat[ing] something had crashed.” He then

discovered the Corvette in the backyard of a nearby residence.        The car had

crashed completely through the cinderblock wall that surrounded the yard.

      When Wagganer approached, he saw appellant standing outside the

passenger door “shaking an adult female in the passenger seat, trying to wake her

up.” Wagganer told him to stop in case she had a neck injury. When Wagganer

asked appellant if he was hurt, appellant complained about back pain. According

to Wagganer, appellant had “a very strong smell of alcohol beverage on his

breath,” he was “cursing,” and he “had red, watery eyes and thick, slurred speech.”

Wagganer contacted dispatch to request a DWI Task Force officer and ordered an

ambulance and an Accident Reconstruction Team. Wagganer said that he was not

able to get a pulse on Tina and saw no sign of life, so he was investigating the

scene as a possible fatality.

      Wagganer testified that his car has a dash camera that is on all the time. The

video from the early morning hours of July 11, 2011 was admitted over appellant’s

objection, and it shows the motorcycle and Corvette passing Wagganer, but not the


                                         4
accident. Wagganer also has a body microphone that comes on automatically to

pick up his conversations. The conversation Wagganer had with appellant was

played to the jury and Wagganer testified about some of the content. Because

appellant smelled strongly of alcohol, Wagganer asked him how much he had to

drink, and appellant responded “two beers.” Appellant also told Wagganer that the

motorcycle slid toward him, which caused him to swerve and leave the roadway.

Wagganer did not believe that was actually what had happened because when he

saw the motorcycle and the Corvette, there were four or five vehicle lengths

between them. Wagganer testified that appellant later “change[d] his story.”

         EMS arrived and put appellant on a back board, and he can be heard on the

audio tape yelling that his back is hurting. It was later determined that he had

broken his back. EMS pronounced Tina deceased and transported appellant to the

hospital. The jury was shown and explained numerous admitted pictures of the

scene.

         Pasadena Police Officer J. Ridings, an accident reconstruction expert,

testified about his assessment of the scene. His team concluded that the Corvette

was travelling so fast that it was airborne when it struck the cinderblock fence. His

analysis of the skid marks showed that the car travelled in a straight line after it

began skidding, which would be inconsistent with the driver suddenly swerving to

miss hitting something like a motorcycle.


                                         5
      Ridings also testified to the results of downloading and analyzing the

Corvette’s airbag module system. From that data, he testified that five seconds

before impact, the car was travelling at 106 miles per hour; it surged to 109 miles

per hour four seconds before impact, and then up to 113 miles per hour 3 seconds

before impact. He concluded that the car first braked two seconds before impact,

which was consistent with the skid marks and the other evidence at the scene.

B.    The DWI Investigation

      Pasadena Police Officer S. Cude testified that, at the time of this accident, he

served on the DWI Task Force and had specialized training in investigating

intoxication-related offenses.   When he arrived at the scene of the accident,

appellant was already in the back of the ambulance receiving treatment. Cude

started by talking with Wagganer about what Wagganer had observed. Cude then

looked around the accident scene and then followed appellant’s ambulance to the

hospital to continue the investigation. When Cude first observed appellant, he was

in a lot of pain and being wheeled into the emergency room. Cude stayed with

him, and when there was a lull in the activity of medical providers, Cude spoke

with appellant. Cude observed him to have slurred speech and red, bloodshot eyes,

both consistent with intoxication and what he had learned from Wagganer.

      Given appellant’s medical impairment, Cude was only able to perform one

of the three standard field sobriety tests, the “horizontal gaze nystagmus” (HGN).


                                          6
Cude first administered several tests to confirm that appellant was a candidate for

the HGN test, and that there were not any conditions that would render any results

invalid.   Cude then conducted the HGN, and appellant displayed all possible six

clues of intoxication. Cude asked appellant whether he had been drinking and

whether he had been driving. Appellant admitted to drinking and to driving the

silver Corvette.

      Cude determined, based upon the totality of the circumstances, his

observations, Wagganer’s observation, and the results of the HGN test that

appellant was intoxicated. He then read him the DIC 24 (DWI statutory warning).

At that point, he considered appellant to be in custody for DWI and intoxication

manslaughter. After being read the statutory warnings, appellant refused Cude’s

request that he submit a blood specimen. Cude explained that a blood draw was

nonetheless mandatory in this case, because he believed appellant to be intoxicated

and because he believed that intoxication had caused Tina’s death. He filled out

the mandatory blood draw order for the hospital and the nurse drew appellant’s

blood less than one and a half hours after the accident. Tests on that blood

revealed appellant’s blood alcohol level to be .142 and detected marihuana in his

system.




                                         7
C.    The Jury’s Verdict and Sentence

      The jury found appellant guilty of intoxication manslaughter with a deadly

weapon. Appellant stipulated to being placed on deferred adjudication in 1994 for

the felony offense of possession of marihuana and being convicted in 2000 for the

misdemeanor offense of possession of marihuana. During the punishment phase of

trial, there was testimony about the impact of Tina’s death on her family, including

the fact that her youngest two children were now in foster care because there are no

family members or friends available to care for them.

      Appellant’s boss testified that appellant is a good employee and that he

would continue to support him with his rehabilitation efforts. Appellant’s mother

testified that she depends upon appellant for her care because of her health issues.

Appellant testified to regretting his actions and the consequences.

      The jury assessed punishment at 12 years’ confinement and a $10,000 fine.

                              ISSUES ON APPEAL

      Appellant raises the following six issues on appeal:

         1. “The trial court committed reversible error by admitting statements
            made my Appellant while being questioned by Officer Wagganer
            during a custodial stop.”

         2. “The trial court committed reversible error by admitting the dash cam
            video.”




                                          8
         3. “The trial court committed reversible error by allowing the State to
            present multiple, repetitive, and cumulative photographs, the
            probative values of which were outweighed by being prejudicial,
            confusing, and misleading to the jury.”

         4. “The trial court committed reversible error by admitting the Pasadena
            Police Department Regional Crime Laboratory Report.”

         5. “The trial court committed reversible error by admitting the Crash
            Data Retrieval System (CDR), also called the Black Box Recordings.”

         6. Counsel for the State committed reversible error by stating that the
            ‘Defendant was claiming that a motorcycle had cut him off’ after
            Appellant had asserted his right not to testify at trial.”

    ADMISSION OF APPELLANT’S STATEMENTS MADE BEFORE
                    MIRANDA WARNINGS
      In his first point of error, appellant claims that, when Officer Wagganer

asked him how much he had to drink, he was already in custody and thus should

have already been read his Miranda rights. Accordingly, he asserts, permitting

Wagganer to testify about that exchange was error. Relatedly, in his second point

of error, he complains that admission of the dash cam video and audio recordings

of Wagganer’s interactions with him—including the question-and-answer

exchange about how much he had to drink—likewise violated Miranda.

      The State responds that appellant’s objections at trial do not comport with

these complaints on appeal. In any event, the State argues, the complained-of

exchange between appellant and Wagganer occurred within two minutes of

Wagganer arriving to investigate the accident scene, and before appellant was

detained in any way, so Miranda was not implicated. Finally, the State contends

                                       9
that any error would be harmless, “in light of the wealth of other evidence

demonstrating appellant’s level of intoxication exceeded the two beers he claimed”

in the exchange with Wagganer.

A.    Applicable Law

      The Fifth Amendment to the United States Constitution provides that no

person “shall be compelled in any criminal case to be a witness against himself.”

U.S. CONST. amend. V. The warnings set out by the United States Supreme Court

in Miranda v. Arizona were established to safeguard an uncounseled individual’s

constitutional privilege against self-incrimination during custodial interrogation.

384 U.S. 436, 442–57, 467–79 (1966).

       The Supreme Court has defined “custodial interrogation” as “questioning

initiated by law enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.” Id. at 444.

Unwarned statements obtained as a result of custodial interrogation may not be

used as evidence by the State in a criminal proceeding during its case-in-chief. Id.

Article 38.22 of the Texas Code of Criminal Procedure provides similar limits on

the use of custodial statements, requiring “a slightly more elaborate set of warnings

than Miranda,” including the warning that the accused can “terminate the

interview at any time.” Wilkerson v. State, 173 S.W.3d 521, 527 n.14 (Tex. Crim.




                                         10
App. 2005); TEX. CODE CRIM. PROC. ANN. art. 38.22(2)(B)(a)(5) (West Supp.

2013).

      For purposes of Miranda we apply a “reasonable person” standard—“[a]

person is in ‘custody’ only if, under the circumstances, a reasonable person would

believe that his freedom of movement was restrained to the degree associated with

a formal arrest.” Dowthitt v. State, 931 S.W.2d 244, 254 (Tex. Crim. App. 1996).

Our “custody” inquiry also includes an examination of all of the objective

circumstances surrounding the questioning. Herrera v. State, 241 S.W.3d 520, 525

(Tex. Crim. App. 2007). The subjective belief of law enforcement officials about

whether a person is a suspect does not factor into our “custody” determination

unless an official’s subjective belief was somehow conveyed to the person who

was questioned. Id. at 525–26 (citing Stansbury v. California, 511 U.S. 318, 323–

25 (1994)).

B.       Analysis

      Appellant emphasizes as significant that, within two minutes of arriving at

the accident scene, Wagganer asked appellant “How much have you had to drink?”

instead of asking him “if he had something to drink.” In support, appellant cites

the following from State of Texas v. Ortiz:

      If the officer manifests his belief to the detainee that he is a suspect,
      then that officer’s subjective belief becomes relevant to the
      determination of whether a reasonable person in the detainee’s
      position would believe he is in custody.
                                         11
382 S.W.3d 367, 373 (Tex. Crim. App. 2012).             According to appellant, the

“question by its very nature conveyed to Appellant the officer’s subjective belief

that Appellant was a suspect and that his freedom had been restrained ‘to the

degree of formal arrest’ as described in Ortiz.” Because the “officer’s obvious

intent was to detain Appellant for questioning regarding driving while intoxicated,

which ultimately led to his arrest and conviction for intoxication manslaughter,”

appellant contends that he should have been read his Miranda warnings before

Wagganer inquired as to how many drinks he had.

      We agree with the State that, as a threshold matter, the trial court correctly

determined that appellant failed to establish that he was in custody, which was his

burden. “The State has no burden at all unless ‘the record as a whole clearly

establishe[s]’ that the [appellant]’s statement was the product of custodial

interrogation by an agent for law enforcement.” Herrera, 241 S.W.3d at 526. “It

is the defendant’s initial burden to establish those facts on the record.” Id. (citing

Wilkerson v. State, 173 S.W.3d 521, 532 (Tex. Crim. App. 2005)). “[W]e afford

almost total deference to a trial judge’s ‘custody’ determination when the questions

of historical fact turn on credibility and demeanor.” Id. at 526–27.

      Here, Wagganer arrived upon a serious accident scene with an injured and

unconscious passenger and a possibility injured driver. Wagganer testified that his

first priority was assessing injuries, tending to Tina, and generally determining


                                         12
whether this would ultimately be a crime scene. Appellant does not claim that

Wagganer actually restrained him in any way. And the record demonstrates that

the only restriction on appellant’s physical movements was Wagganer’s repeated

request that appellant quit approaching and shaking Tina’s unmoving body because

he might exacerbate a neck injury. Appellant continued to walk around until the

paramedics arrived and transported him to the hospital.

      At most, the smell of alcohol on appellant caused Wagganer to inquire about

his alcohol consumption and ultimately call for a DWI investigator. Wagganer

testified that when he asked about appellant’s alcohol consumption, appellant was

not under arrest and that he did not have sufficient cause to arrest him at that point.

Without more, on this record appellant cannot establish that he was in custody.

E.g., State v. Stevenson, 958 S.W.2d 824, 829 (Tex. Crim. App. 1997) (“[E]ven if

appellee had become the focus of a DWI investigation, that fact alone would not

give rise to custody.”). The San Antonio Court of Appeals recently rejected an

argument similar to appellant’s here, expressly holding that an accident

investigation that turned into a DWI investigation was not a custodial situation for

purposes of Miranda, even though in that case—unlike here—the questioning

officer subjectively intended to detain the defendant:

      We hold the facts in this case do not establish Hines was in custody.
      The record shows Officer Gallegos initially questioned Hines to
      investigate the accident. The accident investigation became a DWI
      investigation after Officer Gallegos discovered reasons to suspect
                                          13
      Hines was intoxicated. Moreover, Hines was not in the type of police-
      dominated atmosphere contemplated by Miranda. Rather, he was in
      plain view of passing cars and other non-law enforcement individuals.
      Regardless of Officer Gallegos’ subjective belief that Hines was not
      free to leave, the objective circumstances as a whole would not lead a
      reasonable person to believe he was in custody.

Hines v. State, 383 S.W.3d 615, 622 (Tex. App.—San Antonio 2012, pet. ref’d);

see also id. (“The Texas Court of Criminal Appeals has held that on-the-scene

police questioning of drivers about an accident is not a custodial interrogation.”).

The trial court did not abuse its discretion in concluding that appellant did not

demonstrate that a reasonable person in his shoes would have believed his freedom

of movement was restricted to the degree of an arrest when Wagganer asked him

how much he had to drink.

      Because we find no Miranda violation we overrule point of error one. We

also overrule point of error two to the extent appellant argues that admission of

recordings of the question-and-answer exchange about how much appellant had to

drink violates Miranda.

                                    RULE 403

      Subsumed within appellant’s second point of error, he also complains that

any probative value in the admission of the dash camera video was substantially

outweighed by the danger of unfair prejudice, confusion of issues, and misleading

the jury. In his third point of error, he complains that various photographs should



                                        14
not have been admitted because they were cumulative, or because their probative

value was substantially outweighed by the danger of unfair prejudice.

A.    Applicable Law

      “All relevant evidence is admissible, except as otherwise provided”;

“[e]vidence which is not relevant is inadmissible.” TEX. R. EVID. 402. Relevant

evidence is “evidence having any tendency to make the existence of any fact that is

of consequence to the determination of the action more probable or less probable.”

TEX. R. EVID. 401.

      Under rule 403, evidence, although relevant, may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, misleading the jury, or needless presentation of cumulative

evidence. TEX. R. EVID. 403. Once a rule 403 objection is made, the trial court

must weigh the probative value of the evidence to determine if it is substantially

outweighed by its potential for unfair prejudice.1 Santellan v. State, 939 S.W.2d

155, 169 (Tex. Crim. App. 1997). The rules of evidence favor the admission of



1
      A rule 403 balancing test includes the following factors: (1) the inherent probative
      force of the proffered item of evidence along with (2) the proponent’s need for that
      evidence against (3) any tendency of the evidence to suggest a 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).
                                           15
relevant evidence and carry a presumption that relevant evidence is more probative

than prejudicial. Jones v. State, 944 S.W.2d 642, 652 (Tex. Crim. App. 1996).

      We review a trial court’s rulings on the admission of evidence under an

abuse of discretion standard and will not reverse absent a clear abuse of discretion.

Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). If the trial court’s

decision to admit the evidence lies within the zone of reasonable disagreement,

then the decision must be upheld. Rankin v. State, 974 S.W.2d 707, 718 (Tex.

Crim. App. 1998) (op. on reh’g); see also Montgomery v. State, 810 S.W.2d 372,

391 (Tex. Crim. App. 1991) (op. on reh’g).

      When recordings and photographs are erroneously admitted, we must

conduct a harm analysis to determine whether the error calls for reversal of the

judgment. TEX. R. APP. P. 44.2. If the error is constitutional, we apply rule 44.2(a)

and reverse unless we determine beyond a reasonable doubt that the error did not

contribute to appellant’s conviction or punishment.       TEX. R. APP. P. 44.2(a).

Otherwise, we apply rule 44.2(b) and disregard the error if it did not affect

appellant’s substantial rights. TEX. R. APP. P. 44.2(b); see Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g). A substantial right is

affected when the error had a substantial and injurious effect or influence in

determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim.

App. 1997) (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239,


                                         16
1253 (1946)). Conversely, an error does not affect a substantial right if we have

“fair assurance that the error did not influence the jury, or had but a slight effect.”

Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Johnson v. State,

967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

B.    Analysis

      The dash-camera video:         Appellant argues that “the dash cam video

presented evidence, the probative value of which was substantially outweighed by

the danger unfair prejudice, confusion of the issues, or misleading the jury.”

Specifically, he argues, “the statements immediately and deliberately elicited from

Appellant by the officer were more prejudicial than probative when the basis for

any such impairment by Appellant at the scene of a fatal traffic accident had not

been determined.”     His argument is essentially that the video could have no

probative value in demonstrating signs of his impairment because he “had been in

a very serious accident, which was at least equally able to render him ‘not having

the normal use of his mental and physical faculties.’” Because, according to

appellellant, the video is “not circumstantially relevant,” the “heightened

probability of confusing the effects of the accident with facts probative of

intoxication is unfairly prejudicial and substantially outweighed by the danger of

misleading and confusing the jury.”




                                          17
      Appellant admitted to drinking alcohol on the video at issue, but claimed

that he had only had “two beers”—a fact refuted by significant other evidence,

including Smith’s testimony about how much alcohol appellant had consumed

before the accident. Appellant has not overcome the presumption that this relevant

video is more probative than prejudicial, Jones, 944 S.W.2d at 652, nor has he

argued—much less demonstrated—that the impact of such evidence would not be

rendered harmless by the substantial other evidence at trial of his intoxication.

      Pictures. Before trial, in response to appellant’s complaint that many of the

State’s pictures he had reviewed were cumulative, the State noted that it had

narrowed down the original 200 photos to 66.            During Wagganer’s direct-

examination, the State elicited testimony that the 66 (numbered State’s Exhibits 5–

70) pictures accurately reflected the scene the night of the accident, and then

requested that the court admit the photos into evidence. When appellant objected,

the court held a hearing, outside the presence of the jury, to review and discuss the

pictures.

      Ultimately, appellant did not object to State’s Exhibits 5–29 or 36, which

were photographs of debris on the street, a downed street sign, damage to the curb,

damage to the fence and residence struck by the Corvette, and a picture of the

Corvette in the spot it landed. Appellant also had no objection to State’s Exhibits

43–52, 55, 57–62, and 64–70 which were similar to some of the other pictures


                                          18
taken of the street and the yard where the Corvette landed (but taken in the

daylight) as well as pictures of the tow truck and the deployed airbags on the

Corvette.

      State’s Exhibits 30–35 were photographs of the wrecked Corvette from

different angles. The State explained the significance of each, and offered to

withdraw its offer of State’s Exhibit 35 after the court expressed the view that it

was too similar to State’s Exhibit 34. With regard to the other vehicle photos, the

court discussed the relevant factors in considered in its Rule 403 analysis and

admitted the State’s Exhibits 30–34 over appellant’s objection.

      As for State’s Exhibits 37–42, which were pictures of Tina’s body, appellant

asked that the State be required to select only one for the jury to see. The State

explained that these pictures showed Tina’s body from different angles, one

showed that she was wearing her seatbelt, and one showed her body after she was

pulled from the car.     The court admitted the pictures, overruling appellant’s

objection that these were cumulative, noting again that it took into account the

pictures’ details, size, and the fact that each picture depicts different angles, views,

or different items being presented to the jury.

      Appellant’s objection to the last pictures, State’s Exhibits 53, 54, 56 and 63

was that they were all pictures of the wrecked Corvette. Specifically, appellant

argued that “[o]ne photograph of the automobile crash would certainly be enough


                                          19
to express the State’s position in this matter,” and that the “cumulative effect of all

four being introduced is simply–the results of that are to affect the prejudice and

emotions of the jury, which would deny my client a fair trial.”       In response, the

State explained that it had carefully culled down its numerous pictures and selected

each of these four because they demonstrated an aspect of the scene and the car not

evident from the other pictures. The court found the pictures to be relevant, not

cumulative, and concluded that the probative value was not outweighed by any

potential prejudice.

      In arguing here that allowing all of these objected-to pictures to be admitted

was reversible error, appellant notes that he did not contest the fact that Tina was

killed in the accident. Thus, he contends, the photographs of the Corvette and

Tina’s body at the scene “could serve no possible purpose other than to inflame the

jury.” We disagree and hold that appellant has not established that the trial court

abused its discretion in admitting these photographs. Paredes v. State, 129 S.W.3d

530, 539 (Tex. Crim. App. 2004) (“The admissibility of a photograph is within the

sound discretion of the trial judge.”). The record reflects that the trial court

considered each of appellant’s arguments and determined that each photograph

was relevant and not unduly prejudicial,

      [T]he Court finds that they are relevant and would furthermore --
      them being relevant -- that the probative value is not substantially
      outweighed by the danger of unfair prejudice, confusion of the issues,
      misleading the jury, considerations of undue delay, or needless
                                           20
         presentation of cumulative evidence. Furthermore, the Court has
         looked at these as well as the other photos and considered the amount,
         the detail, the different angles, different viewpoints with regard to
         those; and, therefore, will admit those and has balanced those as well
         as the other factors that I have previously mentioned that the Court
         has balanced those previous factors that I had mentioned with regard
         to the other exhibits, as well. I had weighed and balanced all of those
         factors, not exclusive of those mentioned, and make the determination
         that under 403, the probative value is not substantially outweighed by
         the danger of unfair prejudice.

         The Court of Criminal Appeals has generally held that photographs are

admissible when verbal testimony as to the matters depicted in the photos is also

admissible. Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1997).

Appellant does not argue that anything in the pictures was altered in any way that

enhances the gruesomeness of Tina’s body or the scene. See Shuffield v. State, 189

S.W.3d 782, 787 (Tex. Crim. App. 2006). “ The fact that the scene depicted in the

photograph is gory and gruesome does not make the photograph more prejudicial

than probative when the crime scene is gory and gruesome.” Shavers v. State, 881

S.W.2d 67, 76 (Tex. App.—Dallas 1994, no pet.).

         In sum, we overrule point of error two to the extent appellant argues that

admission of the dash and audio recordings was erroneous under Rule 403, and we

overrule point of error three because appellant has not demonstrated that the trial

court abused its discretion in admitting photographs of Tina and the collision

scene.



                                           21
                                CRIME LAB REPORT

      By agreement, portions of appellant’s medical records were introduced into

evidence.    Nurse Salinas, the medical provider who drew appellant’s blood

separately for medical purposes and for alcohol-testing purposes, testified without

objection that that the results of appellant’s blood alcohol tests were .142, which

was well above the legal limit of .08, and approaching the toxic range of .25.

Nurse Salinas also testified to the results of appellant’s urinalysis, which indicated

that he had cannabis, or marihuana, in his system when he was brought to the

hospital after the collision.

      When the State sought to introduce the Pasadena Police Department

Regional Crime Laboratory Report, which also contained the results of appellant’s

blood tests, appellant objected.     Outside the presence of the jury, the court

permitted appellant to take D. Sanders, the sponsoring witness, on vior dire.

Sanders is a chemist, toxicologist, and technical supervisor with the City of

Pasadena Police Department Crime Laboratory. During this examination, Sanders

agreed that he (1) did not know if a warrant for the blood was obtained, (2) did not

know whether the room in which the blood was drawn was properly sanitized, (3)

did not know if appellant’s arm was properly cleaned, (4) did not know if the blood

was properly drawn or the vials properly sealed, and (5) did not know what

procedures or protocols were followed before the blood arrived at the lab.


                                         22
      On appeal, appellant argues that the State failed “to qualify the witness

pursuant to the standard set in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 590–92 (1993).

      The State responds that appellant’s objections at trial were specific to chain-

of-custody, and that the information that appellant complains Sanders could not

provide in his testimony was provided by other witnesses. Specifically, the State

notes that together the testimony of the DWI task force officer, the blood-draw

nurse, and Sanders established the chain-of-custody and that proper protocols were

followed. The State points out that the trial court performed a Daubert analysis,

properly finding Sanders to be qualified and the scientific bases of his testimony to

be valid,

      The Court does find, for purposes of this hearing: First of all, with
      regard to the admissions of the testimony through this witness, who is
      an expert witness, that the witness qualifies as an expert by reason of
      his knowledge, skill, training and experience; that the subject matter
      of the testimony is an appropriate one for expert testimony; and that
      admitting such expert testimony in this circumstance would assist the
      fact finder in deciding the case. Secondly, with regard to the scientific
      analysis and the results thereof, the Court would find that this specific
      scientific evidence -- that the underlying scientific theory to be valid;
      the technique, applying the theory to be valid; and the technique that
      was applied in this case was properly applied in this circumstance.

      Finally, the State argues that any error would be harmless, as the very same

information about appellant’s blood-alcohol level and marihuana content objected

to in the Crime Lab Report was admitted through appellant’s medical records and


                                         23
Salinas’s testimony. We agree. E.g., Coble v. State, 330 S.W.3d 253, 282 (Tex.

Crim. App. 2010) (“We have often held that erroneously admitting evidence ‘will

not result in reversal when other such evidence was received without objection,

either before or after the complained-of ruling.’”); Valle v. State, 109 S.W.3d 500,

509 (Tex. Crim. App. 2003) (“An error [if any] in the admission of evidence is

cured where the same evidence comes in elsewhere without objection.”).

      We overrule appellant’s fourth point of error.

                    CRASH DATA RETRIEVAL SYSTEM

        Officer Ridings testified to his education, training, and experience in

automobile accident investigation and reconstruction. Outside the presence of the

jury, he testified about his examination of the Corvette’s crash data retrieval

system a/k/a the black box, which records certain events for five seconds before

deployment of a vehicle’s airbags. Ridings testified that data is retrieved from the

box through a computer program and that he has performed this same analysis

seven or eight times on other vehicles, but not on this particular type of Corvette.

Appellant objected at trial, arguing that Ridings was not “qualified to testify as to

the results of the download” of data from the black box. The trial court overruled

that objection.

      Here, appellant argues that the trial court committed reversible error

allowing the State to admit an exhibit containing data from the crash data retrieval


                                         24
system because the Ridings was not qualified under Daubert. The State disputes

that Daubert has any application here, and points out that—in any event, appellant

has never objected to the reliability of the airbag module—but instead only argued

that the Ridings was not qualified to testify about the results. Finally, the State

argues that even if Ridings were required to possess some particular qualification

to review and testify to the results of the black box data download, Ridings

possessed such qualifications. Rodgers v. State, 205 S.W.3d 525, 533 (Tex. Crim.

App. 2006) (expert testimony is “liberally allowed” when the field is “not

particularly complex, the witness’s opinions are not conclusive, and consequently,

they are generally not pivotal to the resolution of the case.”).

      In his brief, appellant cites the standards for evaluating the scientific

reliability of particular evidence at length, but reliability was never raised in the

trial court. More importantly, appellant has not argued how the evidence about his

speed—the primary subject of Ridings testimony about the black box recording

report—was harmful. Accordingly, we decline to decide on this record whether

and under what circumstances expert testimony is required with regard to black

box data and its retrieval. Instead, because we are confident that this particular

black box evidence about appellant’s speed before impact would not have

impacted the jury’s decision, we hold that any error in its admission would be

harmless. TEX. R. APP. P. 44.2(b).


                                          25
      A similar issue was addressed in Pena v. State, also an intoxication-

manslaughter case. 155 S.W.3d 238, 247 (Tex. App.—El Paso 2004, no pet.). The

defendant in Pena challenged the qualifications of the accident-reconstruction

officer and the reliability of the surveying instrument (i.e., the Accident

Investigation Measuring System (AIMS)) used to estimate the defendant’s pre-

accident speed. Id. at 245–46. The court of appeals held that the officer was

qualified through his training and experience, but that the State had failed to

establish the reliability of the AIMS formula supporting his testimony that the

defendant’s car was travelling 106 miles per hour before the fatal accident at issue.

Id. at 246. In concluding that admission of the speed testimony was erroneous but

nonetheless harmless, the court noted that evidence of a particular speed is not

necessary to support an intoxicated-manslaughter conviction. Id. Rather, the jury

must find that the defendant was intoxicated while driving in a public place, and

that intoxication caused the death of the victim. Id. at 247. The Pena court relied

upon the abundance of other evidence about the defendant’s unsafe speed and the

elements of intoxication manslaughter:

      The evidence shows that Appellant was driving in excess of 60 miles
      per hour as he passed Zachary Valenzuela and approached the Lee
      Trevino Gateway West intersection. Mr. Valenzuela did not see
      Appellant attempt to brake prior to the accident and witnesses testified
      that the intersection was well-lit and the roadway was dry. Physical
      evidence and witness testimony indicated that the front of Appellant's
      vehicle collided with the rear end of the victims’ vehicle, causing their
      vehicle to go airborne and spin around to face oncoming traffic.
                                         26
      Through her rearview mirror, Veronica Huerta Garcia saw
      Appellant’s vehicle slam against the guardrail at a high speed, causing
      sparks to fly. In unchallenged testimony, Officer Cisneros testified
      that he found no pre-impact brake marks and no pre-impact skid
      marks at the accident scene. El Paso County Medical Examiner Dr.
      Juan Contin testified that the passenger victim bled to death from a
      torn aorta, resulting from the collision. Dr. Contin also testified that
      the driver victim died the following day in the hospital from injuries
      sustained in the collision.

      After examining the record as a whole, we find the evidence above
      was sufficient to support the jury’s affirmative finding that Appellant
      used his motor vehicle in a manner that was capable of causing death
      or serious bodily injury, without considering the speed evidence
      introduced through Officer Cisneros’ testimony. The trial court’s
      erroneous admission of the speed evidence did not affect Appellant’s
      substantial rights and in light of other properly admitted evidence we
      are assured that if its admission influenced the jury at all, it did so
      only slightly. Therefore, we find the trial court’s error to be harmless.

Id.

      Similarly, here Wagganer estimated—without objection—that appellant was

travelling over 100 miles per hour when he passed Wagganer right before the

collision. Ridings testified about his team’s conclusion that the Corvette was

travelling at such a high rate of speed that it was airborne when it crashed through

the cinderblock fence. Smith likewise testified that appellant was speeding and

driving unsafely shortly before the accident. Finally, the Corvette travelled a

significant distance off the road and suffered devastating damage, which is

consistent with the other evidence that appellant was driving at an unsafe speed. In




                                         27
light of this evidence, we conclude—as the Pena court did—that any “erroneous

admission of the speed evidence did not affect Appellant’s substantial rights.” Id.

      We overrule appellant’s fifth point of error.

                             FAILURE TO TESTIFY

      In his sixth point of error, appellant argues that the State improperly

commented on his decision to not testify at trial during the following exchange

with Officer Redings:

           Q. In your opinion, was the vehicle in this case used as a deadly
      weapon?
             A. Yes.
             Q. Did the driver of this motor vehicle cause his vehicle to
      collide with a wall?
             A. Yes.
            Q. And you've already said that in your opinion, intoxication
      caused this crash?
             A. Yes.
             Q. What do you base your opinions on?
            A. I believe, due to the impairment of the operator, that he was
      operating at unsafe speeds and was unable to control his vehicle and
      maintain his vehicle on the public roadway, which caused him to lose
      control, striking the curb and launching him into the fence itself,
      which, in turn, caused the decedent to be in the state she is now.
            Q. At the scene -- well, were you aware that the defendant
      was claiming that a motorcycle had cut him off?
      Appellant objected that this question “jeopardized his right not to testify,”

and argued that “he may be forced to testify to clarify these matters.”



                                         28
      Outside the presence of the jury, the State clarified that it was only referring

to appellant’s statement to Wagganer at the scene that had already been heard by

the jury, and explained to the court that it was just going to ask whether Ridings

took that into account in forming his opinion that intoxication caused the accident.

            COURT: What is the rest of the question that you were going to
      ask with regard to that?
              [STATE]: What I'm asking him is: At the scene -- which was
      recorded on video and it’s already been played to the jury -- the
      defendant says, A motorcycle cut me off. I’m asking if he took that
      into consideration in forming an opinion in this case. Did he believe
      that, based on the evidence? And I just want to make it clear, for the
      record, that I have in no way alluded to anything about the defendant
      testifying or not testifying. I am referring to the video that has already
      been introduced and played for this jury, and we’ve already discussed
      it with Officer Wagganer and the different stories that the defendant
      told . . .
             ....
             THE COURT: What is, the fact that there was testimony
      elicited as to -- whether you choose to believe or whatever the jury
      heard or didn’t hear on the video -- there clearly was testimony that
      was elicited as to and that is in front of this jury -- from the officer’s
      statements that were made at the scene by your client. And with
      regard to this witness, as a proffered expert, the State -- I'll allow them
      to ask a question as to whether or not his findings are consistent or
      inconsistent with such a statement. I mean, he’s not making any
      ultimate determination as to what the jury’s ultimate answer is to the
      ultimate issues in this case with regard to it; but he certainly can -- I
      will allow them to ask that question with regard to it. But, again --
      well, I’ve said enough with regard to that.
             ....
            THE COURT: All right. In terms of the form of your question
      going forward, I will allow you to ask a question as to whether this is
      consistent or inconsistent with someone braking or swerving, however
      you want to do that without getting into how that was elicited or said.

                                          29
            MS. COOPER: Yes, Your Honor.
            THE COURT: So, you can phrase it in terms of that
      circumstance, but not as to who said so that we’re getting into
      comparisons of that.
            MS. COOPER: Yes, Your Honor.
            ....
            (Jury enters courtroom.)
            THE COURT: You may be seated.
             Q. Is the evidence at the scene consistent with a motorcycle
      cutting off the Corvette?
            A. No.
            Q. Why not?
            A. From the video that I observed, there was actually a really
      good distance between the motorcycle and the Corvette.
            Q. I’m showing State’s Exhibit No. 4.
            If we stop it, can you see where the motorcycle is and can you
      see where the Corvette is?
            A. Yes.
            Q. Did you use this video in forming your opinions --
            A. Yes, I did.
            Q. -- and conclusions on this case?
            A. Yes, I did.

      Commenting on an accused’s failure to testify violates his state and federal

constitutional privileges against self-incrimination. Canales v. State, 98 S.W.3d

690, 695 (Tex. Crim. App. 2003); Bustamante v. State, 48 S.W.3d 761, 764 (Tex.

Crim. App. 2001).     “Such a violation occurs when ‘the language used was

manifestly intended or was of such a character that the jury would necessarily and

naturally take it as a comment on the defendant's failure to testify.’” Archie v.

                                        30
State, 340 S.W.3d 734, 738 (Tex. Crim. App. 2011) (quoting Cruz v. State, 225

S.W.3d 546, 548 (Tex. Crim. App. 2007)). The Court of Criminal Appeals has

admonished that, “[i]n applying this standard, the context in which the comment

was made must be analyzed to determine whether the language used was of such

character.” Bustamonte, 48 S.W.3d at 764.

      Here, we agree with the State that the question posed to Ridings, taken in

context, was not a comment on appellant’s failure to testify. Rather, as the trial

court correctly noted, it was a comment about evidence that had already been put

before the jury about what appellant said at the scene of the collision before his

arrest through both the video and Wagganer’s testimony.

      Because appellant has not shown that the State made a comment manifestly

“intended or . . . of such a character that the jury would necessarily and naturally

take it as a comment on the defendant's failure to testify,” Archie, 340 S.W.3d at

738, we overrule appellant’s sixth point of error.

                                  CONCLUSION

      We affirm the trial court’s judgment.

                                                Sherry Radack
                                                Chief Justice

Panel consists of Chief Justice Radack and Justices Massengale and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).



                                           31
