Opinion filed June 13, 2013




                                      In The


        Eleventh Court of Appeals
                                  ____________

      Nos. 11-11-00185-CR, 11-11-00186-CR, & 11-11-00187-CR
                           ____________

                HAROLD DAVID SHARP, JR., Appellant
                              V.
                  THE STATE OF TEXAS, Appellee


                     On Appeal from the 220th District Court
                              Comanche County, Texas
Trial Court Cause Nos. CCCR-10-03315, CCCR-10-03316, & CCCR-10-3317


                      MEMORANDUM OPINION
      In each cause, the jury convicted Harold David Sharp, Jr., Appellant, of the
offense of intoxication assault, found the enhancement allegation to be true, made
an affirmative deadly weapon finding, and assessed punishment at confinement for
twenty years and a fine of $5,000. The trial court ordered the sentences to run
consecutively. We affirm.
      In each cause, Appellant presents four issues for review. In the first issue,
he challenges the sufficiency of the evidence. In the second issue, he asserts that a
complainant’s medical expenses were improperly admitted into evidence during
the guilt/innocence phase of trial. Appellant argues in his third issue that the trial
court should have granted his motion for mistrial after the State commented on his
failure to testify. In his final issue, Appellant contends that his “statutory right to
jury sentencing” was violated when the trial court imposed cumulative sentences.
      Appellant was charged in separate indictments with the intoxication assault
of Jennifer McLearen, Jesse Chaney, and Tiffany Nicole Bryant. See TEX. PENAL
CODE ANN. § 49.07 (West 2011). The jury found that Appellant operated a motor
vehicle in a public place while intoxicated and that, by reason of such intoxication,
he caused serious bodily injury to each of the complainants when his vehicle struck
a tree. All three complainants were passengers in Appellant’s vehicle at the time
of the accident.
      In his first issue, Appellant specifically argues that the evidence was
insufficient to show that he “was intoxicated when he drove the car.” We review
Appellant’s challenge to the sufficiency of the evidence under the standard of
review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we examine
all of the evidence in the light most favorable to the verdict and determine whether,
based on that evidence and any reasonable inferences from it, any rational trier of
fact could have found the essential elements of the offense beyond a reasonable
doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010). The jury, as the trier of fact, was the sole judge of the credibility of
the witnesses and of the weight to be given to their testimony. TEX. CODE CRIM.
PROC. ANN. art. 36.13 (West 2007), art. 38.04 (West 1979). As such, the jury was
free to believe or disbelieve all or any part of any witness’s testimony. Sharp v.
State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
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      The record shows that Appellant was driving on County Road 435,
described as “an old rough dirt road,” when he crashed into a big post oak tree
about 160 to 180 feet down the road from a low water crossing. The force of the
wreck caused the tree to fall across the road and rendered the occupants of the car
unconscious. Appellant does not dispute that he caused serious bodily injury to his
passengers. McLearen’s spine was crushed in the accident. At the time of trial,
she lived in a nursing home and was wheelchair-bound. Chaney suffered a crushed
right leg, a broken jaw, and a concussion. He testified that he is now disabled and
will have to use a cane for the rest of his life. Bryant suffered massive brain
injuries, a broken clavicle, broken ribs, a fractured arm, a spiral fracture in her left
leg, a blown-out left ankle, a ruptured spleen, and a broken “L1 lumbar” and
sacrum. She was in a coma for five and one-half weeks after the wreck. Bryant’s
mother testified that Bryant is now legally blind and has severe brain damage.
      McLearen, Chaney, and Bryant do not remember anything about the day of
the wreck. Thus, none of them could testify that Appellant was intoxicated at the
time of the wreck. Chaney’s stepfather, Terry Srader, testified that he had been
with the group on the day of the wreck. Srader and Appellant had each bought a
30-pack of Keystone beer that afternoon. They went to the lake after purchasing
the beer. Chaney, Bryant, Appellant, and Srader drank the beer; McLearen did not.
Appellant took Srader home later that evening because Srader was not feeling well.
At that time, they were almost out of beer and, with the exception of McLearen,
“were all pretty well intoxicated.” Srader testified that “they said they was going
to get some more beer.” Records from the Shade Tree convenience store indicated
that Appellant did, in fact, buy more beer after he left Srader’s house. At 8:18 p.m.
on August 8, 2010, Appellant purchased two 30-packs of Keystone Light beer,
cigarettes, and two bottles of wine. The sales clerk at the Shade Tree, who had
been trained and knew that it was against the law to sell alcoholic beverages to an
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intoxicated person, testified at trial that she did not specifically remember
Appellant coming into the store. She testified that she would not have sold alcohol
to any person that looked like he had lost the normal and customary use of his
mental and physical faculties.
      Approximately fifteen minutes before dark, Janell Quinn saw a car pass by
her house. She “heard them stomp on the gas and it sounded like they were just
thrashing in the road, and it went to horn, an unstoppable horn.” Janell and her
husband, Andy Quinn, drove down to the scene of the accident, which was about
one-fourth of a mile from their driveway. Andy testified that there had been no
other accidents at that location during the fifteen years that he had lived there. The
low water crossing was described as being a gradual dip, not a severe one, and as
being made of concrete. Sergeant Jason Shea of the Texas Department of Public
Safety (DPS) investigated. He concluded that the driver did not apply his brakes
before hitting the tree and that the car did not have a flat tire prior to the accident.
      When emergency personnel arrived, all four occupants were trapped inside
the car; Appellant was in the driver’s seat. All of the occupants were initially
transported to the emergency room at the Comanche County Medical Center. Pete
Pharis, the chief medical technologist, drew blood from Appellant in the
emergency room between 10:00 and 10:10 p.m. Pharis tested Appellant’s blood at
10:24 p.m. and determined that alcohol, in the amount of 198 milligrams per
deciliter, was present in the plasma of Appellant’s blood. Raymond Arthur Waller
of the DPS crime lab testified that this amount correlates to between .167 and .176
grams of alcohol per deciliter of whole blood, which is more than twice the legal
limit of .08 grams of ethanol per 100 milliliters (one deciliter) of blood. Neither
Pharis nor Waller knew what Appellant’s blood alcohol concentration would have
been at the time of the wreck. Sergeant Shea testified that a human body normally
metabolizes alcohol at the rate of .02% per hour, which equates to about one beer
                                            4
per hour. He agreed that a person’s blood alcohol level can continue to rise for a
short period of time after that person stops drinking.
      We agree with Appellant’s assertion that there is “no evidence extrapolating
the blood test results to the time of the accident.” However, we do not agree that
the lack of retrograde extrapolation testimony renders the evidence insufficient to
support Appellant’s convictions. As stated by the Court of Criminal Appeals, a
BAC-test result is not “by itself” sufficient to prove intoxication at the time of
driving, but “BAC-test results, even absent expert retrograde extrapolation
testimony, are often highly probative to prove both per se and impairment
intoxication.” Kirsch v. State, 306 S.W.3d 738, 745 (Tex. Crim. App. 2010). In
this case, as in Kirsch, other evidence was introduced from which, in conjunction
with the test results, the jury could have determined that Appellant was intoxicated
at the time he was driving. Appellant “stomp[ed] on the gas” shortly before the
accident, and he did not apply his brakes prior to hitting the tree. Appellant began
drinking beer that afternoon and purchased wine and more beer not long before the
wreck. Appellant was unconscious at the scene of the wreck and, thus, did not
consume any alcohol between the time of the wreck and the time that his blood
was drawn at the emergency room.               His blood alcohol concentration—
approximately one to one and one-half hours after the wreck—was more than
twice the legal limit. The court in Kirsch relied on similar evidence when it
concluded that the evidence was sufficient to support a jury charge on the “per se”
theory of intoxication. Id. at 745–46. We hold that the evidence in this case is
sufficient to show that Appellant was intoxicated at the time that he drove his car
into the tree. Appellant’s first issue in each cause is overruled.
      In his second issue, Appellant argues that the trial court abused its discretion
when it admitted McLearen’s medical expenses into evidence during the
guilt/innocence phase of trial.     We must review a trial court’s ruling on the
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admission of evidence under an abuse of discretion standard of review, and we will
not disturb the trial court’s ruling unless it lies outside the zone of reasonable
disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007).
      The record shows that Appellant properly objected when the prosecutor
asked McLearen, “How much in medical bills has been charged over all of your
treatment from this wreck?” The trial court overruled Appellant’s objections,
which were based on relevance and unfair prejudice. McLearen answered that her
medical bills to date totaled $21,000, that her room in the nursing home costs $115
per day, and that expenses for care in the nursing home are extra. Appellant argues
that such victim impact evidence, while admissible at the punishment phase of
trial, is not admissible during the guilt/innocence phase of trial. We agree with
Appellant that the cost of McLearen’s medical care was not relevant to any
guilt/innocence issue as it did not tend to make more or less probable the existence
of any fact of consequence related to the elements of the crime. See TEX. R. EVID.
401; Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990) (holding that
evidence of victim’s future hardship as a paraplegic was irrelevant to any guilt
issue and, thus, inadmissible during guilt stage of trial for attempted capital murder
but was relevant and admissible during punishment phase).
      However, we do not agree with Appellant’s assertion that the error is
reversible. We hold that the error in allowing McLearen to testify during the
guilt/innocence phase of trial as to the amount of her medical expenses did not
affect Appellant’s substantial rights. See TEX. R. APP. P. 44.2(b). Under Rule
44.2(b), nonconstitutional errors that do not affect a defendant’s substantial rights
“must be disregarded.”     A substantial right is affected when the error has a
substantial and injurious effect or influence in determining the jury’s verdict.
Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001); King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997). When conducting a Rule 44.2(b) harm
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analysis based upon the erroneous admission of evidence, an appellate court should
consider everything in the record, including “any testimony or physical evidence
admitted for the jury’s consideration, the nature of the evidence supporting the
verdict, the character of the alleged error and how it might be considered in
connection with other evidence in the case, the jury instructions, the State’s theory
and any defensive theories, closing arguments, voir dire, and whether the State
emphasized the error.” Rich v. State, 160 S.W.3d 575, 577–78 (Tex. Crim. App.
2005).
      The extent of the complainants’ injuries in this case was not contested, and
the evidence that each complainant suffered serious bodily injuries was
overwhelming. Furthermore, when subsequent evidence of the amount of medical
expenses was admitted into evidence, Appellant did not object. Chaney testified
without objection that he had incurred “[t]housands” in medical bills. Bryant’s
mother testified without objection that Bryant had accumulated about “one million
dollars” in medical bills.     In his closing argument, the prosecutor did not
specifically point out McLearen’s medical expenses, but he stated that “society”
would be “paying at least a million bucks, probably two million bucks in costs . . .
for those medical.” Evidence of the various injuries suffered by the complainants
was properly admitted to prove an element of the offense: that each complainant
suffered serious bodily injury. Based on the seriousness of those injuries, a jury
would likely have surmised that the required medical care would have been costly.
After reviewing the entire record, we cannot say that the erroneous admission of
McLearen’s medical expenses into evidence during the guilt/innocence phase of
trial had a substantial and injurious effect or influence in the jury’s determination
of guilt. Appellant’s second issue in each cause is overruled.
      In his third issue, Appellant contends that the trial court abused its discretion
in denying the motion for mistrial that Appellant made after the prosecutor
                                          7
commented on Appellant’s failure to testify. The record shows that Appellant
asked Sergeant Shea whether the passengers were interviewed. Sergeant Shea
responded that there were no witness statements. Appellant later asked Sergeant
Shea if he knew of anything that indicated “that anyone else in that car did
anything to try to prevent this accident from happening, i.e., such as say, hey, guy,
you’re too drunk to drive” and if he knew of anything in this case “that indicated
any of these three quote victims did anything to stop this criminal act from
occurring.”    Sergeant Shea knew of nothing.            Immediately thereafter, the
prosecutor asked Sergeant Shea if he understood that the three passengers had no
memory of that day. Appellant objected because, at that time, no evidence had
been introduced relating to Bryant’s lack of memory. After affirmatively stating
that none of the victims had any memory from that day, the prosecutor then began
another question: “Since those would be the only ones that would know anything
other than the Defendant, and if the Defendant is -- you know, I don’t know who
would know that other than the Defendant.” Appellant objected to the prosecutor’s
reference to Appellant not testifying and requested an instruction to disregard. The
prosecutor then explained:
             Well, Your Honor, what I am saying is he’s brought up the
      subject of somebody in the car trying to apparently get the driver to
      stop, get his intoxicated client to stop and, you know, it doesn’t -- I
      am not following any of that, but then again, since the -- none of the
      victims have . . . any memory of that, all have memory loss, then he’s
      asking this officer what his investigation was about that.
The trial court sustained Appellant’s objection, and Appellant moved for a mistrial
as soon as the trial court stated, “I will tell the jury not to consider for any purpose
-- .” The trial court denied the motion for mistrial. The prosecutor asked no more
questions of Sergeant Shea and did not comment further on the topic.



                                           8
      A mistrial is a trial court’s remedy for improper conduct that is so prejudicial
as to render the expenditure of further time and expense in continuing the trial
wasteful and futile. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
Only in extreme circumstances will a mistrial be required. Id. The denial of a
mistrial is reviewed on appeal for an abuse of discretion. Archie v. State, 340
S.W.3d 734, 740 (Tex. Crim. App. 2011).
      When Appellant asked Sergeant Shea whether any of the passengers had
said, “[H]ey, guy, you’re too drunk to drive,” Sergeant Shea had already testified
that the passengers had not given any witness statements, and two of the three
passengers had testified that they had no memory of that day. Thus, Appellant’s
question about statements made by the passengers while they were in the car could
only have been answered by Appellant. Appellant invited inquiry into that topic.
See Nethery v. State, 692 S.W.2d 686, 703 (Tex. Crim. App. 1985). In light of
Appellant’s questioning of Sergeant Shea and the content of the prosecutor’s
responsive remark, we cannot hold that the instruction to disregard was ineffective
or that the trial court abused its discretion in refusing to grant Appellant’s motion
for mistrial. See Dinkins v. State, 894 S.W.2d 330, 355–56 (Tex. Crim. App.
1995). The magnitude of the prejudice likely caused by the prosecutor’s remark, if
improper, was not so great that the trial court’s instruction to disregard did not cure
the error, and the certainty of conviction absent the prosecutor’s remark was also
great. See Archie, 340 S.W.3d at 741–42. Appellant’s third issue in each cause is
overruled.
      In his final issue, Appellant asserts that the trial court’s imposition of
cumulative sentences violated Appellant’s statutory right to have the jury assess his
punishment. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 2(b) (West Supp.
2012). Article 37.07, section 2(b) provides that, upon proper election by the
defendant, “the punishment shall be assessed by the same jury.”             Appellant
                                          9
recognizes that, pursuant to TEX. CODE CRIM. PROC. ANN. art. 42.08(a) (West
Supp. 2012), the trial court was authorized, in its discretion, to determine whether
to impose concurrent or cumulative sentences.        See TEX. PENAL CODE ANN.
§ 3.03(b)(1)(A) (West Supp. 2012) (providing that sentences may run concurrently
or consecutively when defendant is convicted of more than one intoxication assault
arising out of the same episode). Appellant also recognizes that the Court of
Criminal Appeals has held that a trial court’s authority to order cumulative
sentences does not conflict with a defendant’s right to jury sentencing.        See
Barrow v. State, 207 S.W.3d 377 (Tex. Crim. App. 2006); Johnson v. State, 492
S.W.2d 505 (Tex. Crim. App. 1973). Appellant suggests that this issue needs to be
revisited. As an intermediate appellate court, this court is bound by the precedent
of the Court of Criminal Appeals. The controlling precedent is that a trial court’s
decision to cumulate a defendant’s sentences does not conflict with the defendant’s
right to have a jury assess his punishment. See Barrow, 207 S.W.3d 377; Johnson,
492 S.W.2d 505. Accordingly, Appellant’s fourth issue in each cause is overruled.
      We affirm the judgments of the trial court.




                                                    JIM R. WRIGHT
                                                    CHIEF JUSTICE


June 13, 2013
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Willson, J.




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