                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-08-00153-CR

AARON EUGENE HENDERSON,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                          From the 40th District Court
                              Ellis County, Texas
                            Trial Court No. 32146CR


                         MEMORANDUM OPINION


      Aaron Eugene Henderson was found guilty by a jury of intoxication

manslaughter. TEX. PEN. CODE ANN. § 49.08 (Vernon Supp. 2008). This was enhanced to

a first-degree felony due to Henderson’s previous convictions. TEX. PEN. CODE ANN. §

12.42 (Vernon Supp. 2008). The jury assessed punishment at confinement for life in the

Texas Department of Criminal Justice – Institutional Division. Henderson complains

that the results of a blood test taken from him were taken in violation of Texas

Transportation Code Section 724.012, the Fourth Amendment to the United States

Constitution, and Article I, Section 9 of the Texas Constitution.    Henderson also
complains that the evidence was legally and factually insufficient to support the

conviction for intoxication manslaughter.       Because we find no violation of the

Transportation Code, the United States Constitution, or the Texas Constitution, and we

find the evidence is both legally and factually sufficient to support the conviction, we

affirm the judgment of the trial court.

Factual Background

       We will provide a description of the testimony of the relevant witnesses because

a discussion of the evidence is helpful to understand our determination of each of the

issues. Likewise, we will describe the objections to that testimony, which are relevant to

the issues raised in this appeal.

       On February 25, 2007, Henderson, driving a black Isuzu SUV, was involved in a

traffic collision while traveling southbound in Ellis County, Texas. This collision caused

the death of Mimi Beth Wittlinger, the driver of the other vehicle traveling northbound,

which was a white Infiniti. Henderson was taken by helicopter to a hospital in Dallas.

       Officer Joel Downs was the first law enforcement officer to arrive on the scene at

approximately 10:42 p.m. He identified Henderson’s legs as being pinned under the

dash of the driver’s seat of the Isuzu. An opened twelve-pack of beer bottles and a flask

were located in the back seat passenger floorboard with broken bottles scattered on the

floor. Some were missing. When Officer Downs spoke with Henderson at the scene, he

smelled a strong odor of alcohol on and around Henderson’s person. When he went to

check on Wittlinger, she was still alive, but stopped breathing while he was checking




Henderson v. State                                                                  Page 2
her vital signs. Wittlinger died at the scene from her injuries. Downs believed that

alcohol had played a role in the collision.

       Fred Johnson was the first person on the scene after the collision. He identified

Henderson as the person in the driver’s seat of the Isuzu upon his arrival. He did not

smell alcohol when he spoke with Henderson at the scene.

       Robin Roberts, a registered nurse, was on the helicopter flight to the hospital

with Henderson. She testified that she smelled alcohol on Henderson. Henderson was

calm at the scene but became very combative during the flight, attempted to knock out

the helicopter window, and was swearing profusely.

       Angela Lewis was a treating nurse in the emergency room at the hospital who

testified concerning Henderson. Upon Henderson’s arrival at the hospital, he had to be

restrained with handcuffs by hospital security officers due to his aggression, which

included attempts to remove his IV.           Henderson was speaking incoherently and

slurring his speech. He had a diabetic bracelet on his wrist. She was unable to obtain a

medical history from him. She smelled alcohol on his breath and clothing. Henderson

denied that he had been drinking. The medical records admitted into evidence from the

hospital also describe Henderson as being intoxicated.

       Sergeant Marc Schroeder was an investigating officer at the scene and

determined that alcohol was likely a factor in the accident. Downs reported his findings

to him upon his arrival. Schroeder smelled a strong odor of alcohol from inside the

Isuzu. Schroeder left the scene to go to the hospital where Henderson was being treated

to have Henderson’s blood drawn for purposes of having it tested to determine

Henderson v. State                                                                Page 3
Henderson’s blood alcohol level. Schroeder knew at that time that Wittlinger had

passed away.

       Upon his arrival at the hospital, Schroeder informed Henderson that he was

investigating intoxication manslaughter and asked for a specimen of blood. Henderson

ignored Schroeder. Schroeder instructed Lewis to take blood from Henderson, which

she did through the femoral artery. This was because previous attempts to draw blood

elsewhere were unsuccessful. Henderson was still during the blood draw. At no time

did Schroeder consider Henderson to be under arrest.         The sample was taken at

approximately 12:30 a.m., roughly two hours after the collision.

       Schroeder did not attempt to get a warrant for the drawing of the blood of

Henderson. It would have taken approximately two to three hours to get the warrant,

which would have resulted in Henderson’s blood alcohol level being metabolized in his

system and significantly reduced. He did not know if Henderson was intoxicated at the

time of the blood draw or if intoxication had caused the collision because the

investigation was still open.

       Andrew Macey, DPS chemist, tested the sample of Henderson’s blood with a gas

chromatograph and determined that Henderson’s blood alcohol level was .23 grams per

100 milliliters of blood, which is almost three times above the legal limit of .08 grams

per 100 milliliters of blood.

       Sergeant Jim Langham investigated the cause of the collision. After speaking

with Downs, he studied the scene of the collision. Based on the severity and location of

the damage to each vehicle, the gouges in the road, and the debris, he determined that

Henderson v. State                                                                Page 4
the collision was caused by Henderson’s Isuzu crossing the yellow centerline and

hitting the Infiniti driven by Wittlinger. In his investigation, he had also attempted to

reconstruct the collision in a manner that would indicate that Wittlinger had caused the

collision, but could not make it fit in that manner. He observed, but did not test, a

visible line of fluid on the road leading to Wittlinger’s Infiniti nor did he check the

Infiniti for leaks because, in his opinion, it did not fit with the damage.

       John Murray, a defense accident reconstruction expert, reviewed the photos,

video of the scene, and the diagram prepared by Langham, as well as viewing the scene

more than a year after the collision. When he went to the scene, the road had since been

resurfaced which left no trace of the collision. In Murray’s opinion, the accident was

caused by Wittlinger crossing the line and hitting Henderson. He believed that the

fluid line indicated a mechanical failure in Wittlinger’s vehicle which could have caused

the collision. Based on his extensive experience in accident investigations, Murray

believed that the vehicle should have been checked for mechanical failure and the fluid

tested to determine its source prior to determining the cause of the collision. The

Infiniti was unavailable for his inspection because it had been destroyed. Murray

thought the investigation by Langham was not done properly and that the schematic

drawing Langham prepared of the scene was fatally flawed as it was in a straight line

whereas the collision took place on a curve in the road. Murray further disagreed with

Langham’s characterization of marks and gouges in the road.

       Henderson elected to testify on his own behalf. Henderson admitted he had two

prior felony convictions. The first was in 1982 for burglary of a habitation, burglary of a

Henderson v. State                                                                   Page 5
building, and theft. The second was in 1985 for burglary of a habitation. He served

time in prison for both offenses.

       Henderson did not recall driving the vehicle or the collision.      He did not

remember the helicopter flight or being pulled from the Isuzu, which belonged to a

female friend of his. Henderson did, however, know he was not driving the vehicle.

Two friends of Henderson, Dwight Webb and Reginald Sharp, had purchased the beer

found in the back seat, but Henderson had not consumed any of it. At one point in his

testimony, Henderson admitted he had consumed a few beers at Tony Webb’s house.

Tony is Dwight’s brother. Reginald was driving and Dwight was in the passenger seat

in the Isuzu with Henderson. Henderson was in the back seat lying down because he

was tired from taking medication for a sinus infection. Henderson believed that his

friends ran away after the collision, but that Reginald was the driver of the Isuzu when

it collided with Wittlinger.

       Henderson did not wake up until he was in the hospital. He did not remember

being combative or using foul language at the hospital or in the helicopter. He did not

speak with a police officer at the hospital but did recall being restrained. He did not

recall having his blood drawn, and he did not consent because he was not asked to

provide a sample. He was released from the hospital the next morning, February 26,

2007. Henderson found out there would be a warrant issued for him on March 1, 2007,

but was not arrested until May 30, 2007.

       Henderson agreed that he did have alcohol in his system when his blood was

drawn. He had started drinking beer that day at approximately 5:00 p.m., but in later

Henderson v. State                                                                Page 6
testimony he denied drinking alcohol at Tony’s house, contrary to what he had testified

to earlier. He drank approximately four beers between 5:00 and 5:45 p.m., but had

nothing else. Henderson concluded that he might have been legally intoxicated when

he was in the Isuzu, but it did not affect his physical abilities.

       Henderson also testified that Reginald was driving Henderson to Henderson’s

home in Dallas when they left Tony’s house. Henderson did not believe he had been

pinned or removed from the front seat of the car, although he had no recollection of it.

Henderson had been using the Isuzu for about two months and kept all of his tools in it.

       Henderson is not diabetic and had never worn a diabetic bracelet, although the

nurses had identified him as having one on him when he arrived at the hospital. He

did not believe that his blood had been taken at the hospital, but that maybe it was

someone else’s blood.

       Henderson first complains in points of error one, two, and three that his blood

was taken in violation of Texas Transportation Code Section 724.012, the Fourth

Amendment to the United States Constitution, and Article I, Section 9 of the Texas

Constitution. We will address these contentions together.

Standard of Review for the Admission of Evidence

       We review the admission of evidence by applying an abuse of discretion

standard of review. We will reverse the trial court’s decision only if it is outside the

zone of reasonable disagreement. Allen v. State, 108 S.W.3d 281, 284 (Tex. Crim. App.

2003). An appellate court must affirm the trial court’s decision to admit evidence if the

trial court’s ruling is correct under any theory of law, even if the trial court gives the

Henderson v. State                                                                  Page 7
wrong reason for the ruling. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App.

1990).

Blood Testing

         Section 724.012 of the Texas Transportation Code provides in relevant part that:

         (a) One or more specimens of a person's breath or blood may be taken if the
         person is arrested and at the request of a peace officer having reasonable grounds
         to believe the person:

         (1) while intoxicated was operating a motor vehicle in a public place, or a
         watercraft; . . . .

         (b) a peace officer shall require the taking of a specimen of the person's breath or
         blood if:

         (1) the officer arrests the person for an offense under Chapter 49, Penal Code,
         involving the operation of a motor vehicle or a watercraft;

         (2) the person was the operator of a motor vehicle or a watercraft involved in an
         accident that the officer reasonably believes occurred as a result of the offense;

         (3) at the time of the arrest the officer reasonably believes that as a direct result of
         the accident: (A) any individual has died or will die; or (B) an individual other
         than the person has suffered serious bodily injury; and

         (4) the person refuses the officer's request to submit to the taking of a specimen
         voluntarily.

         TEX. TRANSP. CODE ANN. § 724.012 (Vernon Supp. 2004) (emphasis added).

         Chapter 724 of the Transportation Code enlarges what is constitutionally

required with regard to taking blood samples when a person is under arrest for an

intoxication-related offense; however, it does not apply to persons who are not under

arrest when the blood sample is taken. State v. Laird, 38 S.W.3d 707, 713 (Tex. App.—

Austin 2000, pet. ref'd).


Henderson v. State                                                                         Page 8
       The taking of a blood specimen is a search and seizure under both the Fourth

Amendment of the United States Constitution and Article I, Section 9 of the Texas

Constitution. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. See Schmerber v. California,

384 U.S. 757, 767-68, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966); See also Aliff v. State, 627

S.W.2d 166, 170 (Tex. Crim. App. 1982). However, the warrantless taking of a blood

sample is not an unreasonable search and seizure so long as probable cause to arrest

exists, the method of extraction is reasonable, and there are exigent circumstances.

Schmerber, 384 U.S. at 767-68; Aliff, 627 S.W.2d at 170.

       Texas courts apply the probable cause and exigent circumstances test in cases

where a blood sample is taken from someone not under arrest. Laird, 38 S.W.3d at 713

(citing Pesina v. State, 676 S.W.2d 122, 123, 125 (Tex. Crim. App. 1984); Weaver v. State,

721 S.W.2d 495, 497 (Tex. App.—Houston [1st Dist.] 1986, pet. ref'd); Burkhalter v. State,

642 S.W.2d 231, 232-33 (Tex. App.—Houston [14th Dist.] 1982, no pet.)).

Preservation of Error

       It is necessary to preserve a complaint for appeal that the objection made at the

trial court comports with the complaint made on appeal.          See Broxton v. State, 909

S.W.2d 912, 918 (Tex. Crim. App. 1995) (point of error must correspond to objection

made at trial, and objection stating one legal theory may not be used to support a

different legal theory on appeal). A constitutional ground may be waived by a failure

to object at trial, including the admission of evidence from an illegal search.). Boulware

v. State, 542 S.W.2d 677, 682 (Tex. Crim. App. 1976); Ashford v. State, 502 S.W.2d 27, 29

(Tex. Crim. App. 1973).

Henderson v. State                                                                   Page 9
       It is also generally true that an error in the examination of witnesses or the

admission of evidence is not preserved for appellate review absent a timely and specific

objection at trial. An objection must not only identify what is objected to, but must also

set forth specific grounds for the ruling desired. TEX. R. APP. PROC. 33.1(a); Cisneros v.

State, 692 S.W.2d 78, 82-83 (Tex. Crim. App. 1985).

       The purposes of a trial objection are to inform the trial court of the basis of the

objection which affords the trial court the opportunity to rule on it, and secondly, to

give opposing counsel an opportunity to remove the objection or supply other

testimony. Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). No objection

was lodged at any time regarding the illegality of the search based on either federal or

state constitutional grounds. Henderson’s objections solely surrounded the failure of

law enforcement to abide by Texas Transportation Code 724.012, which does not apply

in this case as Henderson was not under arrest. For this reason, Henderson’s complaint

has not been preserved for our review. See Rezac v. State, 782 S.W.2d 869, 870 (Tex.

Crim. App. 1990).

       Further, even if the complaint had been preserved, Texas law requires a party to

continue objecting each time that allegedly inadmissible evidence is offered.           See

Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991). Any error in admitting

the evidence is cured where the same evidence comes in elsewhere without objection.

See Etheridge v. State, 903 S.W.2d 1, 14 (Tex. Crim. App. 1994); Rogers v. State, 853 S.W.2d

29, 35 (Tex. Crim. App. 1993). There was no objection made to the oral testimony by

DPS Chemist Macey as to the blood alcohol content being .23 grams. While there were

Henderson v. State                                                                   Page 10
objections lodged to other testimony, the written exhibit, and the State’s opening

statement, these objections were waived when the evidence came in through Macey’s

testimony. We overrule points of error one, two, and three.

Points of error four and five

       Henderson’s points of error four and five are that the evidence is legally and

factually insufficient to support his conviction for intoxication manslaughter.

Legal Sufficiency

       In assessing the legal sufficiency of the evidence to support a conviction, an

appellate court must consider all the record evidence in the light most favorable to the

prosecution and determine whether, based on that evidence and reasonable inferences

therefrom, any rational trier of fact could have found the defendant guilty of all the

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319,

61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim.

App. 2004).

       A review of the evidence for legal sufficiency does not involve a reweighing of

the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562

(Tex. Crim. App. 2000). The jury is the exclusive judge of witness credibility, the

determiner of the weight accorded to witness testimony, and the reconciler of conflicts

in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In

addition, when reviewing the evidence for legal sufficiency, the evidence is not

weighted as favorable and nonfavorable, nor is the appellant's version of the facts

adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000). Further, all

Henderson v. State                                                                 Page 11
evidence, whether properly or improperly admitted, will be considered when

reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42,

109 S. Ct. 285, 102 L. Ed. 2d 265 (1988); Johnson v. State, 967 S.W.2d 410, 411 (Tex. Crim.

App. 1998).

       Viewed in a light most favorable to the prosecution, the testimony demonstrated

that Henderson was pinned in the Isuzu in the driver’s seat at the scene of the collision.

Both law enforcement and medical personnel smelled alcohol on Henderson’s person

and breath. Henderson’s behavior was consistent with a person intoxicated on drugs or

alcohol.   His blood alcohol content was .23 milliliters per 100 milliliters of blood

approximately two hours after the collision. The expert for the State believed that

Henderson had caused the collision by crossing the yellow center stripes. Mimi Beth

Wittlinger died as a result of injuries sustained in the collision.       Henderson was

traveling southbound to get to his home to the north.          The evidence was legally

sufficient to support the jury’s finding that Henderson was guilty of intoxication

manslaughter. We overrule point of error number four.

Factual Sufficiency

       In a factual sufficiency review, the appellate court views the evidence in a neutral

light and asks whether the evidence supporting the verdict is so weak or so against the

great weight and preponderance of the evidence as to render the verdict manifestly

unjust. Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Grotti v. State, 273

S.W.3d 273, 283 (Tex. Crim. App. 2008).          Although a factual sufficiency review

authorizes an appellate court, to a very limited degree, to act as a "thirteenth juror," the

Henderson v. State                                                                   Page 12
appellate court must nevertheless give the jury's verdict a great degree of deference.

Watson v. State, 204 S.W.3d 404, 416-17 (Tex. Crim. App. 2006).          A "high level of

skepticism about the jury's verdict" is required before an appellate court may reverse

due to factual insufficiency." Watson, 204 S.W.3d at 417. An appellate court may not

find the evidence to be factually insufficient merely because there are "reasonably equal

competing theories of causation." Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App.

2001). And a factual sufficiency reversal certainly may not occur when the evidence

actually preponderates in favor of conviction.       Watson, 204 S.W.3d at 417. Before

reversing a conviction on the basis of factual insufficiency, an appellate court must

detail all the relevant evidence and must explain in exactly what manner the evidence is

factually insufficient. Watson, 204 S.W.3d at 414.

       As the exclusive judge of the facts, the jury could believe or disbelieve all or any

part of Henderson's testimony regarding whether he was the driver of the vehicle or

not. Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006); Sharp v. State, 707 S.W.2d

611, 614 (Tex. Crim. App. 1986); Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App.

1981). Further, the jury, after hearing all of the testimony and reviewing the exhibits,

certainly could have believed Langham’s version of how the collision took place or

disbelieved Murray’s account that the collision was the fault of Wittlinger. Viewing the

evidence in a neutral light, we also cannot say that the evidence supporting the verdict

is so weak or so against the great weight and preponderance of the evidence as to

render the verdict manifestly unjust. We find the evidence is factually sufficient to

support the jury’s verdict. We overrule point of error number five.

Henderson v. State                                                                  Page 13
Conclusion

       We find that the trial court did not abuse its discretion in the admission of the

blood alcohol content of Henderson. We further find that the evidence is legally and

factually sufficient to support the conviction of Henderson for intoxication

manslaughter. We therefore affirm the judgment of the trial court.



                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed July 22, 2009
Do not publish
[CRPM]




Henderson v. State                                                               Page 14
