                                                                             ACCEPTED
                                                                          01-15-00182-cr
                                                              FIRST COURT OF APPEALS
                                                                      HOUSTON, TEXAS
                                                                   10/12/2015 2:29:38 PM
                                                                   CHRISTOPHER PRINE
                                                                                  CLERK

                   NO. 01-15-00182-CR

                                                     FILED IN
                                              1st COURT OF APPEALS
               IN THE COURT OF APPEALS            HOUSTON, TEXAS
                FIRST JUDICIAL DISTRICT       10/12/2015 2:29:38 PM
                    HOUSTON, TEXAS            CHRISTOPHER A. PRINE
                                                       Clerk


                  DAVID ROWE ASHBY,
                       Appellant

                           V.

                 THE STATE OF TEXAS,
                       Appellee


  APPEAL FROM THE COUNTY CRIMINAL COURT AT LAW NO. 6
                HARRIS COUNTY, TEXAS
             TRIAL COURT CAUSE NO. 1864067


                  APPELLANT’S BRIEF


                                   MATTHEW J. DELUCA
                                   State Bar No. 24069601
                                   712 Main St., Suite 2450
                                   Houston, Texas 77002
                                   Tel: (713) 429-4400
                                   Fax: (713) 228-2366
                                   mattdeluca@gmail.com

                                   TYLER FLOOD
                                   State Bar No. 24032057
                                   1229 Heights Blvd.
                                   Houston, Texas 77008
                                   Attorneys for Appellant
ORAL ARGUMENT REQUESTED
               IDENTIFICATION OF PARTIES AND COUNSEL


Appellant/Defendant:                 David Rowe Ashby

Appellant’s counsel at trial:        Tyler Flood
                                     1229 Heights Blvd.
                                     Houston, Texas 77008

Appellant’s counsel on appeal:       Matthew J. DeLuca
                                     712 Main St., Suite 2450
                                     Houston, Texas 77002


Appellee:                            The State of Texas

Appellee’s counsel at trial:         Leah Fiedler
                                     Harris County DA’s Office
                                     1201 Franklin, Suite 600
                                     Houston, Texas 77002

Appellee’s counsel on appeal:        Devon Anderson
                                     Harris County DA’s Office
                                     1201 Franklin, Suite 600
                                     Houston, Texas 77002


Trial judge at trial:                The Honorable James Anderson
                                     County Criminal Court at Law No. 6
                                     Harris County, Texas




                                 i
                                           TABLE OF CONTENTS

Identification of Parties and Counsel ..........................................................................i

Table of Contents ...................................................................................................... ii

Index of Authorities ................................................................................................. iii

Statement of the Case.................................................................................................1

Statement Regarding Oral Argument ........................................................................ 1

Issue Presented ...........................................................................................................2

         1. The trial court erred in denying Appellant’s motion to suppress the
         traffic stop.

         2. The trial court erred in allowing the State to introduce evidence of a
         drug in Appellant’s blood specimen.

Statement of Facts ......................................................................................................2

Summary of the Argument.........................................................................................7

Issue Number One – Arguments and Authorities ...................................................... 7

Issue Number Two – Arguments and Authorities ...................................................11

Prayer .......................................................................................................................18

Certificate of Compliance ........................................................................................19

Certificate of Service ...............................................................................................19




                                                               ii
                                        INDEX OF AUTHORITIES

Cases

Adams v. Williams ......................................................................................................9
     407 U.S. 143 (1972)

Bekendam v. State ....................................................................................................13
     441 S.W.3d 295 (Tex. Crim. App. 2014)

Bekendam v. State ....................................................................................................12
     398 S.W.3d 358 (Tex. App.—Fort Worth 2013), aff’d, 441 S.W.3d 295
     (Tex. Crim. App. 2014).

Brother v. State ..........................................................................................................9
      166 S.W.3d 255 (Tex. Crim. App. 2005)

Carmouche v. State ....................................................................................................8
     10 S.W.3d 232 (Tex. Crim. App. 2000)

Casey v. State ...........................................................................................................12
     215 S.W.3d 870 (Tex. Crim. App. 2007)

Delarue v. State ........................................................................................................15
     102 S.W.3d 388 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d)

Ford v. State ...............................................................................................................7
      158 S.W.3d 488 (Tex. Crim. App. 2005)

Fowler v. State .........................................................................................................10
     266 S.W.3d 498 (Tex. App.—Fort Worth 2009, pet. ref’d)

Guzman v. State..........................................................................................................8
    955 S.W.2d 85 (Tex. Crim. App. 1997)

Hernandez v. State ...................................................................................................10
     983 S.W.2d 867 (Tex. App.—Austin 1998, pet. ref’d)

Kelly v. State ............................................................................................................12
      824 S.W.2d 568 (Tex. Crim. App. 1992)
                                                             iii
Kennedy v. State .......................................................................................................18
     338 S.W.3d 84 (Tex. App.—Austin 2011, no pet.)

Kraft v. State ............................................................................................................18
      762 S.W.2d 612 (Tex. Crim. App. 1988)

Layton v. State ...........................................................................................11,12,14,15
      280 S.W.3d 235 (Tex. Crim. App. 2009)

Maxwell v. State .........................................................................................................8
    73 S.W.3d 278 (Tex. Crim. App. 2002)

McKenna v. State .....................................................................................................18
    780 S.W.2d 797 (Tex. Crim. App. 1989)

Montgomery v. State ................................................................................................12
     810 S.W.2d 372 (Tex. Crim. App. 1990)

State v. Guzman........................................................................................................13
       439 S.W.3d 482 (Tex. App.—San Antonio 2014, no pet.)

Tillman v. State ........................................................................................................14
      354 S.W.3d 425 (Tex. Crim. App. 2011)

Weatherred v. State .............................................................................................11,12
     15 S.W.3d 540 (Tex. Crim. App. 2000)

Statutes and Rules

TEX. CODE CRIM. PROC. art. 38.23(a) ......................................................................11

TEX. R. EVID. 402 .....................................................................................................12

TEX. R. EVID. 403 .....................................................................................................12

TEX. R. EVID. 702 ................................................................................................11,14

TEX. TRANSP. CODE § 545.060(a) ............................................................................10



                                                             iv
                         STATEMENT OF THE CASE

      This is an appeal from a misdemeanor driving while intoxicated conviction.

Appellant was charged by information in cause number 1864067 with driving

while intoxicated, alleged to have occurred on November 24, 2012. (CR 7). On

February 4, 2015, after a jury was empaneled and sworn, Appellant pled “not

guilty” to the charged offense. (1 RR 4). On February 5, 2015, after the trial court

denied Appellant’s objection to the admission of evidence, he changed his plea to

“guilty” to the charged offense. (CR 104-05) (2 RR 70-71). The trial court

assessed punishment at 180 days Harris County Jail, probated for one year, and a

$1000 fine. (CR 106). On the same day, the trial court certified Appellant’s right

to appeal. (CR 103). On February 12, 2015, Appellant timely filed a notice of

appeal. (CR 90, 92).

              STATEMENT REGARDING ORAL ARGUMENT

      Appellant requests an opportunity for oral argument to be heard in this case.

Because the appeal deals with both a reasonable suspicion/probable cause

determination and the admission of scientific evidence, it requires this Court to

analyze both the facts and the law applied, so the specific facts in this case and

application of the law to those facts are crucial. Appellant believes that oral

argument would assist this Court in its analysis and decision.




                                         1
                                 ISSUES PRESENTED

                                   Issue Number One

       The trial court erred in denying Appellant’s motion to suppress the
       traffic stop.

                                   Issue Number Two

       The trial court erred in allowing the State to introduce evidence of a
       drug in Appellant’s blood specimen.


                              STATEMENT OF FACTS

       On November 24, 2012, at approximately 7:40 a.m., Deputy Tyler Gossett

was dispatched to a report of a black SUV that struck a wall while driving

northbound on the toll bridge that crossed the ship channel. 1 The dispatch advised

Deputy Gossett that the vehicle had stopped at a toll plaza. Deputy Gossett made a

U-turn and observed a black SUV leaving the toll plaza. (1 RR 15-16). He then

positioned his patrol car behind the black SUV, but did not immediately pull it

over. 2 (1 RR 17). Deputy Gossett followed the black SUV from the toll road onto

the connector ramp and eventually westbound onto Interstate 10. (1 RR 18); See

State’s Exhibit 3. He observed the vehicle weaving within its lane, and as they

traveled over the connector ramp, it got close to the shoulder line.                 On the

1
  Deputy Gossett did not know who called in the report and did not know the make or model of
the reported black SUV. (1 RR 53-54).
2
  Deputy Gossett testified “At this point I haven’t seen the vehicle do anything…Before I come
into contact with anybody, I want to make sure that I have reason to come into contact with
somebody.” (1 RR 17).
                                              2
Interstate 10 main lines, the vehicle straddled the lane line and crossed over into

another lane, so Deputy Gossett activated his emergency equipment and conducted

a traffic stop on the black SUV. (1 RR 18).

      When Deputy Gossett made contact with the driver, he identified himself as

Appellant. (1 RR 19). Deputy Gossett observed that Appellant was wearing a

gray sweater that appeared to have been soiled. He believed he smelled an odor of

alcohol on Appellant. (1 RR 20). He described Appellant’s eyes as “glassy” and

observed Appellant to make slow, deliberate movements while getting his driver’s

license out of his wallet. (1 RR 21). Deputy Gossett attempted to administer the

Horizontal Gaze Nystagmus test on Appellant and observed a lack of smooth

pursuit in his eyes, but Appellant was unable to perform the complete test as

instructed, and appeared as if he was falling asleep. (1 RR 32-33, 34). Appellant

performed “poorly” on the Walk and Turn Test and could not get past the

instruction phase. (1 RR 36-37). Deputy Gossett observed Appellant to sway, use

his arms for balance, and put his foot down during the One Leg Stand Test. (1 RR

40). Appellant told Deputy Gossett that he had been awake all night, and Deputy

Gossett acknowledged at trial that sleep deprivation could affect performance on

coordination tests. (1 RR 25, 59).

      At that point, Deputy Gossett determined that Appellant did not have his

normal mental and physical faculties about him and he was placed under arrest for


                                        3
driving while intoxicated. (1 RR 42). Appellant agreed to provide a specimen of

his blood. (1 RR 45). Deputy Gossett transported Appellant to Bayshore Medical

Center where Phadrae White, a phlebotomist, obtained a blood specimen from

Appellant. (1 RR 48, 2 RR 5,7). She used gray-top tubes to draw the blood, which

she testified are specifically used when testing blood for alcohol. Had she been

drawing blood for drug analysis she stated she would have used something other

than a gray-top tube. (2 RR 11).

       Dr. Chen, a toxicologist at the Harris County Institute of Forensic Sciences,

analyzed Appellant’s blood specimen for one controlled substance, referred to

throughout his testimony as T.F.M.P.P. 3 (2 RR 14, 25-26). Dr. Chen described the

process in which he tested the blood specimen as liquid chromatography tandem

mass. In his explanation of how the testing process worked, he used testing for

cocaine as an example, not T.F.M.P.P. 4           He testified that this technique was

generally accepted in his field, had been previously tested in the lab, and was

generally accepted within the relevant scientific community. (2 RR 23-25). He

reported that T.F.M.P.P. was present in Appellant’s blood, but did not quantify the




3
  Dr. Chen testified that T.F.M.P.P. was another name for Trifluoromethylphenylpiperazine, a
designer amphetamine drug. (2 RR 33).
4
  Though there was testimony and discussion with the trial court about cocaine, there was no
testimony presented as to whether the lab analyzed Appellant’s blood specimen for cocaine. The
analysis testimony focused on T.F.M.P.P. (2 RR 26).
                                              4
amount present.5 And without quantification, Dr. Chen could not determine time

of ingestion or the effect it would have had on Appellant, though he repeatedly

stated that the drug was “against the law.” (2 RR 26-27, 33-34).

       Dr. Valentine, Appellant’s expert witness, testified that T.F.M.P.P. was a

“sympathomimetic drug,” a stimulant with similar action to amphetamine or

cocaine. (2 RR 45-46). The studies on T.F.M.P.P. were “very meager” so little

was known about its absorption, distribution, and secretion in humans, and there

was no way to tell the time of ingestion of the T.F.M.P.P. without knowing a

quantitative value. (2 RR 42). After viewing the scene video, Dr. Valentine

determined that Appellant displayed signs similar to that of a person under the

influence of alcohol or suffering from sleep deprivation, but not a

sympathomimetic drug like T.F.M.P.P. (2 RR 46-47). Using Defendant’s Exhibit

7, a chart normally used by officers to categorize drugs by certain indicators, Dr.

Valentine testified that T.F.M.P.P. would most closely align with a CNS stimulant.

But based on that chart, Appellant displayed no indicators consistent with being

under the influence of a CNS stimulant. (2 RR 50-51).

       Dr. Walterscheid, co-director of toxicology at the Harris County Institute of

Forensic Sciences, testified that T.F.M.P.P. had similar properties to cocaine,

methamphetamine, and ecstasy, which could produce a psychedelic-like euphoria.

5
  Despite Dr. Chen’s testimony that the results were not quantified, he stated that the testing
instrument could “be accurate to the decimal.” (2 RR 23).
                                              5
And with stimulants, one would usually first see excitability and then drowsiness

after the drug’s release. Dr. Walterscheid stated “That’s why these drugs are

unsafe. That’s why we consider them illegal because there’s no medical benefit

and they just cause trouble.”        (2 RR 53, 56-57). But he acknowledged that

T.F.M.P.P. had not been studied in humans because it was “kind of new” and

“probably just not safe enough” to test on humans. (2 RR 54). The drug had only

been tested on mice or “cells from mice.” (2 RR 56). He knew nothing about

absorption or elimination rates for T.F.M.P.P. and could not determine when

Appellant had ingested it. (2 RR 61, 63). When asked whether the T.F.M.P.P.

could have been quantified, he admitted that his lab had the proper standards to

quantify the T.F.M.P.P. present in Appellant’s blood specimen, but it would have

required “a lot of extra effort.” And he believed that quantification would have

made no difference because T.F.M.P.P.’s exact toxic amount was unknown.6 (2

RR 57). He also acknowledged there was “no way” he could reliably extrapolate

to tell if the T.F.M.P.P. was psychoactive in Appellant at the time of driving. (2

RR 62).




6
 Despite this unknown, Dr. Walterscheid concluded that one should not have T.F.M.P.P. in their
system “at all.” (2 RR 57).

                                              6
                        SUMMARY OF THE ARGUMENT

       The trial court erred in denying Appellant’s motion to suppress the traffic

stop. The arresting officer did not have reasonable suspicion or probable cause to

legally detain Appellant. He acknowledged in trial that he followed Appellant in

an attempt to gain probable cause to stop. However, based on his testimony and

the scene video, Appellant never actually committed a traffic violation that would

have allowed the officer to legally stop the vehicle. Because the officer did not

have reasonable suspicion or probable cause to stop Appellant, all evidence

obtained as a result of the illegal stop should have been suppressed. Additionally,

the trial court erred in allowing the State to introduce evidence of a drug called

T.F.M.P.P. in Appellant’s blood. The State failed to present adequate evidence

during the Rule 702 hearing to show that the evidence was both relevant and

reliable to present to a jury.

                                 ISSUE NUMBER ONE

       The trial court erred in denying Appellant’s motion to suppress the
       traffic stop.

                       ARGUMENTS AND AUTHORITIES

       Appellant contends that the State did not present evidence to adequately

show Deputy Gossett had reasonable suspicion or probable cause to stop

Appellant.    An officer conducts a lawful temporary detention when he has

reasonable suspicion to believe that an individual is violating the law. Ford v.
                                        7
State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists

if the officer has specific, articulable facts that, when combined with rational

inferences from those facts, would lead him to reasonably conclude that an

individual is, has been, or is about to be engaged in criminal activity. Id.

Standard of Review

      This Court should review a trial court’s ruling on a motion to suppress

evidence under a bifurcated standard of review, giving almost total deference to the

trial court’s determination of historical facts and reviewing the court’s application

of the law de novo. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).

The trial court is the sole judge of the credibility of the witnesses and their

testimony. Id. But this Court should review the trial court’s application of the

relevant Fourth Amendment standards. Carmouche v. State, 10 S.W.3d 232, 237

(Tex. Crim. App. 2000) (citing Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App.

1997)).

Deputy Gossett did not have reasonable suspicion or probable cause to stop
Appellant

      Deputy Gossett did not have reasonable suspicion or probable cause to stop

Appellant based solely on the anonymous report he had received. The report

simply stated that a “black SUV” had struck a wall. He had no description of the

driver or license plate number. (1 RR 55-56). The factual basis for an officer to

stop a vehicle may be supplied by information acquired from another person, rather
                                           8
than the officer’s personal observation. Brother v. State, 166 S.W.3d 255, 257

(Tex. Crim. App. 2005) (citing Adams v. Williams, 407 U.S. 143, 147 (1972)).

And a stop based on facts supplied by a citizen does not run afoul of the Fourth

Amendment, so long as the officer adequately corroborates those facts. Id. at 259.

But Deputy Gossett acknowledged at trial that he did not have a legal reason to

stop Appellant’s vehicle when he first came into contact with it. He testified that

he did not immediately pull the vehicle over because he hadn’t “seen the vehicle

do anything” and he wanted to make sure he had a reason to stop Appellant. (1 RR

17). He later testified that as he followed Appellant, he was “focused on the

vehicle, trying to obtain probable cause…to make contact with the vehicle.” (1 RR

56). These admissions show that Deputy Gossett did not believe he had reasonable

suspicion or probable cause to stop Appellant when he started following him on the

toll road. He eventually stops Appellant’s vehicle after following it for some time,

but, based on Deputy Gossett’s testimony combined with the actual scene video,

there was no evidence presented to show that Appellant actually committed any

traffic violation.

       Deputy Gossett stated that first Appellant weaved within his lane, prior to

entering the connector ramp, then came close to the fog line while on the connector

ramp. (1 RR 18). This portion of Appellant’s driving is visible on the scene video.

See State’s Exhibit 3. Indeed, the video shows Appellant move toward the right


                                         9
fog line – but never crosses it – and then move toward the left yellow line without

crossing over it.    These actions do not constitute traffic violations.     Once

Appellant’s vehicle entered the main freeway, Deputy Gossett testified that

Appellant “straddles the lane line crossing over into another lane.” (1 RR 18). The

video showed some weaving within the lane and the left tire crossing over into an

adjacent lane briefly a couple of times. However, the scene video showed no other

vehicles in close proximity to Appellant in either lane and no vehicle had to take

any evasive action to avoid Appellant.

      The State presented no evidence that Appellant’s failure to stay in a single

marked lane was unsafe, so reasonable suspicion did not exist to stop Appellant for

such a traffic violation. See TEX. TRANSP. CODE § 545.060(a); Hernandez v. State,

983 S.W.2d 867, 871 (Tex. App.—Austin 1998, pet. ref’d) (“A violation of section

545.060 occurs only when a vehicle fails to stay within its lane and such movement

is not safe or is not made safely.” ); Fowler v. State, 266 S.W.3d 498, 502 (Tex.

App.—Fort Worth 2009, pet. ref’d) (section 545.060 creates a single offense:

“moving out of a marked lane when it is not safe to do so.”).

      The trial court erred in denying Appellant’s motion to suppress the stop

based on a lack of reasonable suspicion or probable cause. Because Deputy

Gossett did not have reasonable suspicion or probable cause to stop Appellant, all




                                         10
evidence obtained after and as a result of the illegal stop should have been

suppressed. TEX. CODE CRIM. PROC. art. 38.23(a).

                             ISSUE NUMBER TWO

      The trial court erred in allowing the State to introduce evidence of a
      drug in Appellant’s blood specimen.

                     ARGUMENTS AND AUTHORITIES

      At trial, the State sought to admit, over Appellant’s objection, evidence of a

substance in Appellant’s blood, specifically a synthetic drug referred to as

T.F.M.P.P. (2 RR 19). Outside the presence of the jury, the trial court held a Rule

702 hearing in which testimony was heard from two State’s witnesses, Dr. Chen

and Dr. Walterscheid, and one Appellant’s witness, Dr. Valentine. See TEX. R.

EVID. 702. At the end of the hearing, the trial court determined that it would allow

the jury to hear evidence of Appellant’s blood test results, and specifically the

T.F.M.P.P. in Appellants blood. (2 RR 70). Appellant contends that the State’s

evidence was not sufficiently relevant and reliable to assist the jury in determining

a fact in issue and should have been inadmissible under Texas Rules of Evidence

402, 403, and 702.

Standard of Review

      This Court reviews a trial court’s ruling on the admission of evidence,

including expert testimony, for an abuse of discretion. Layton v. State, 280 S.W.3d

235, 240 (Tex. Crim. App. 2009); Weatherred v. State, 15 S.W.3d 540, 542 (Tex.
                                         11
Crim. App. 2000). This Court should reverse the trial court’s decision if it lies

outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d

372, 380 (Tex. Crim. App. 1990).

      Irrelevant evidence is not admissible in trial. TEX. R. EVID. 402. And the

trial court may exclude otherwise relevant evidence if its probative value is

substantially outweighed by a danger of confusing the issues or misleading the

jury. TEX. R. EVID. 403. Scientific evidence has the ability to mislead a jury that is

not properly equipped to judge the probative force of the evidence. Layton, 280

S.W.3d. at 235; Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007).

Pursuant to Rule 702, it is the responsibility of the trial court to determine whether

the scientific evidence offered is sufficiently reliable, as well as relevant, to help

the jury in reaching accurate results. Kelly v. State, 824 S.W.2d 568, 572 (Tex.

Crim. App. 1992). This puts the trial court in the role of “gatekeeper” in order to

weed out inadmissible evidence based on a lack of reliability. The trial court may

exclude scientific testimony or evidence that is not reliable. Bekendam v. State,

398 S.W.3d 358, 362 (Tex. App.—Fort Worth 2013), aff’d, 441 S.W.3d 295 (Tex.

Crim. App. 2014). To be considered reliable, the State must satisfy three criteria

(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. Kelly, 824 S.W.2d at 573.


                                         12
The State did not show that Dr. Chen’s testimony satisfied the Kelly
requirements.

      The State did not present sufficient evidence under Kelly to show that the

technique of testing Appellant’s blood was applied properly as it related to

T.F.M.P.P. Before Dr. Chen even took the stand, the phlebotomist testified that

she used a type of vial to draw Appellant’s blood that was specifically used to test

for alcohol and that a different type of vial should have been used to test the

sample for drugs.    (2 RR 11).      Dr. Chen’s testimony as to how he tested

Appellant’s blood was extremely brief. He explained how the testing process

worked for analyzing cocaine, but never explained how it analyzed for the drug in

question, T.F.M.P.P. When asked about how he analyzed Appellant’s blood for

T.F.M.P.P., Dr. Chen simply stated that he followed protocol. (2 RR 26). He

acknowledged that he wasn’t qualified to testify as to the effects the drug would

have had on Appellant. (2 RR 32). Conversely, in Bekendam v. State, 441 S.W.3d

295, 297 (Tex. Crim. App. 2014), the Court of Criminal Appeals affirmed the

lower court’s decision that an analyst’s testimony satisfied the third Kelly prong

when the analyst could quantify the substance and could testify to the substance’s

half-life. And with respect to blood tests, the expert who must satisfy the Rule 702

criteria is the analyst who tests the blood sample. State v. Guzman, 439 S.W.3d

482, 488 (Tex. App.—San Antonio 2014, no pet.). Dr. Chen’s testimony simply



                                        13
did not rise to the level to satisfy Rule 702 or Kelly. The trial court should have

excluded this unreliable evidence.

The State did not show that Dr. Walterscheid was qualified to give an opinion as
it related to T.F.M.P.P.

      Under Texas Rule of Evidence 702, if a witness possesses scientific,

technical, or other specialized knowledge that will assist a fact-finder and is

qualified as an expert by knowledge, skill, experience, training, or education, then

that expert may offer expert opinion testimony. TEX. R. EVID. 702. For expert

testimony to be admissible under this rule, the State must demonstrate, by clear and

convincing evidence, that the testimony “is sufficiently reliable and relevant to

help the jury in reach accurate results.” Tillman v. State, 354 S.W.3d 425, 435

(Tex. Crim. App. 2011).

      The only witnesses the State presented to try to explain the relationship of

the T.F.M.P.P. with the effect on Appellant was Dr. Walterscheid. It is critical that

there be a direct or logical connection between the actual evidence and the

proposition sought to be proved.        Layton, 280 S.W.3d at 240.          Yet Dr.

Walterscheid showed little specific knowledge or expertise as to T.F.M.P.P. He

acknowledged that the drug had not been tested in humans, and he knew nothing

about its absorption or elimination rates, so he could not determine when Appellant

would have ingested it. Above all, he did not know the toxicity level of the drug

and admitted that there was “no way” he could reliably extrapolate to determine
                                         14
whether the drug was psychoactive at the time Appellant was driving. Failure to

extrapolate the presence of a controlled substance back to the time of driving can

render the evidence insufficient under a Rule 403 analysis. Delarue v. State, 102

S.W.3d 388, 401 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). The Delarue

court determined that evidence of a controlled substance in a person’s body was

inadmissible when no attempt was made to quantify, no attempt was made to show

when the drug was introduced into the person’s system, no attempt was made to

show the person was under the influence of the drug at the time of the accident,

and no attempt was made to show causation. Id. Here, Dr. Walterscheid admitted

that his lab could have attempted to quantify the level of T.F.M.P.P. found in

Appellant’s blood, but that it would have required extra effort. That response

should not be acceptable when determining the admissibility of scientific evidence

in a criminal trial. Like in Delarue, without a better understanding here of the

relationship between T.F.M.P.P. and how it works in the human body, Dr.

Walterscheid’s testimony was not sufficiently relevant and reliable to assist the

jury under Texas Rules of Evidence 402, 403, and 702.

      In Layton, the Court of Criminal Appeals held that without evidence the

level of dosage, exact times of ingestion, or the half-life of the drug in the human

body, the usage of a particular drug was not relevant to a person’s intoxication.

Layton, 280 S.W.3d at 241-42. Though the State considered Dr. Walterscheid an


                                        15
“expert witness,” he could not testify to dosage, ingestion, or the half-life of the

drug. His testimony as it related to T.F.M.P.P. lacked the necessary knowledge to

be considered relevant to Appellant’s intoxication.

      It should not be overlooked that both Dr. Chen and Dr. Walterscheid seemed

to conclude that because T.F.M.P.P. was illegal, if Appellant ingested it, he was

intoxicated. Dr. Chen stated that the drug was “against the law” and “just cannot

be there” and Dr. Walterscheid concluded that “you shouldn’t have it at all.” (2

RR 33-34, 57). These conclusions are dangerous because of the clear lack of

information either witness had about T.F.M.P.P. And these conclusions are telling

as to the confusion of the issue and the lack of reliability in their testimony. The

legality of possessing or ingesting T.F.M.P.P. was not an element of the DWI

charge against Appellant. This sort of testimony would confuse and mislead the

jury into believing that any positive amount of T.F.M.P.P. in Appellant’s blood

would automatically render him intoxicated at the time of driving, and thus guilty

of the charged offense.

      The trial court’s reasoning for allowing the evidence of T.F.M.P.P. was also

flawed. The trial court stated:

      TRIAL COURT: It begs the question that if you mix up some state of
      the art designer drug with anything from ethanol to cocaine to Benzos,
      we can probably never say “I’m going to get a set response from an
      individual” because the options are innumerable up there. Then we
      tell the public, as long as you mix up some really good new stuff that
      messes you up and makes you a danger on the freeway, the laws can’t
                                         16
      figure out how detailed your witches’ brew is, go ahead and drive
      your car because we can’t quite figure out the pharmacology of the
      mixture.

      DEFENSE COUNSEL: That’s what the law requires.

      TRIAL COURT: And I get that.

      DEFENSE COUNSEL: We can’t jump and speculate. We can’t do
      that.

      TRIAL COURT: If it wasn’t for the videotape, I’d be with you; but
      I’ve got a guy who’s literally staggering around, whose driving is
      breathtaking to say the least. I’m surprised he didn’t get killed
      stepping out of the car. Chain of evidence, I’m good on. I’m going to
      let the jury hear about [Appellant’s] witches’ brew[.]

(2 RR 69-70). The trial court made the assumption that because Appellant’s

driving and balance were poor, he must have been intoxicated on something. But

because State failed to show with any amount of reliability that the T.F.M.P.P.

actually intoxicated Appellant, it failed in satisfying Kelly and Rule 702 and the

trial court should have excluded the evidence.

      The trial court erred in allowing the evidence of T.F.M.P.P. in Appellant’s

blood specimen to be introduced to the jury. This error is reversible. Because the

particular evidence would have been used to inculpate Appellant during trial, this

Court should presume the trial court’s erroneous denial of the motion to suppress




                                        17
influenced Appellant’s decision to plead guilty. 7 The judgment of the trial court

should be reversed.

                                          PRAYER

       Appellant prays that this Court sustain his points of error, reverse the

judgment of conviction, reverse the trial court’s order, and remand the case to the

trial court for further proceedings consistent with this Court’s ruling.

                                                           Respectfully submitted,

                                                           /s/ Matthew J. DeLuca
                                                           Matthew J. DeLuca
                                                           State Bar No. 24069601
                                                           712 Main St., Suite 2450
                                                           Houston, Texas 77002
                                                           Tel: (713) 429-4400
                                                           Fax: (713) 228-2366
                                                           mattdeluca@gmail.com

                                                           Tyler Flood
                                                           State Bar No. 24032057
                                                           1229 Heights Blvd.
                                                           Houston, Texas 77008

                                                           Attorneys for Appellant




7
  If the evidence that should have been suppressed would in any measure inculpate the accused, a
reviewing court may presume that the denial of the motion to suppress influenced the
defendant’s decision to plead guilty. Kennedy v. State, 338 S.W.3d 84, 102 (Tex. App.—Austin
2011, no pet.) (citing McKenna v. State, 780 S.W.2d 797, 799-80 (Tex. Crim. App. 1989); Kraft
v. State, 762 S.W.2d 612, 615 (Tex. Crim. App. 1988)).
                                              18
                     CERTIFICATE OF COMPLIANCE

      I certify that this brief was prepared with Microsoft Word, and that,

according to the program’s word-count function, the sections covered by Texas

Rule of Appellate Procedure 9.4(i)(1) contain 4,381 words.

                                                   /s/ Matthew J. DeLuca
                                                   Matthew J. DeLuca


                         CERTIFICATE OF SERVICE

      I certify that a copy of this brief was served on Alan Curry, Harris County

District Attorney’s Office, Appellate Division, by electronic filing and service on

October 12, 2015.

                                                   /s/ Matthew J. DeLuca
                                                   Matthew J. DeLuca




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