Opinion issued November 21, 2012




                                     In The
                              Court of Appeals
                                    For The
                          First District of Texas
                        ————————————
                           NO. 01-12-00029-CR
                         ———————————
                    JIMMY HAROLD GREEN, Appellant
                                   V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 122nd District Court
                          Galveston County, Texas
                       Trial Court Case No. 10CR3171



                         MEMORANDUM OPINION
      The jury found appellant guilty of the third-degree felony offense of driving

while intoxicated.1 Appellant waived his right to a contested punishment hearing

and pleaded true to two felony enhancement allegations. Once the trial court

accepted the plea, appellant’s punishment status was changed to that of a habitual


1
      See TEX. PENAL CODE ANN. §§ 49.04, 49.09 (Vernon Supp. 2012).
offender. As a result, the punishment range increased to imprisonment for life or a

term of not more than 99 years or less than 25 years.2 Appellant agreed to 25 years

in prison, and the trial court sentenced him accordingly.

      In three issues, appellant challenges the sufficiency of the evidence to

support the judgment of conviction for the primary offense of felony driving while

intoxicated and complains of two evidentiary rulings by the trial court.

      We affirm.

                              Background Summary

      At around 2:00 a.m. on October 17, 2010, Marcus Taylor arrived at his

League City home. As he pulled into his driveway, Taylor noticed a motorcycle

and a man lying in the street next to the motorcycle. The motorcycle was lying on

its side. Taylor observed that the motorcycle’s headlight was turned on, and the

motorcycle’s back wheel was spinning. Taylor walked over to check on the man,

who was later identified as appellant. Taylor saw that appellant was alive but

appeared disoriented. Taylor called 9-1-1.

      Within five minutes, the ambulance arrived. League City paramedic Tiffany

Lester treated appellant at the scene. When she arrived at the scene, Lester saw

appellant sitting on his motorcycle. While treating him, Lester noted that appellant

had an abrasion on his left elbow. Lester also observed, and later testified, that


2
      See TEX. PEN. CODE ANN. § 12.42(d) (Vernon 2011).
                                          2
appellant’s “speech was slurred,” “his gait was a little altered,” “his pupils were

irregular,” and “he smelled like alcohol.” Based on her training and experience as

a paramedic, Lester believed that appellant was intoxicated.

      Approximately five minutes after the ambulance had arrived, League City

police officer G. Yates reached the scene. Officer Yates saw appellant sitting on

his motorcycle and asked him to get off the motorcycle. Officer Yates assisted

appellant in walking over to the ambulance to be treated.

      After appellant was treated, Officer Yates spoke with appellant. Appellant

told Officer Yates that a black SUV had cut him off, causing him to lose control of

the motorcycle. The officer asked appellant how much he had to drink. Appellant

responded, “Too much.” In observing appellant, Officer Yates formed the belief

that appellant was intoxicated. The officer later testified that he could smell the

odor of alcohol on appellant’s breath. Officer Yates observed that appellant’s eyes

were red and bloodshot and that his pupils were of unequal size.

      Officer Yates asked appellant whether he would undergo field sobriety tests.

Appellant refused to perform the tests. Officer Yates took appellant into custody

for the offense of driving while intoxicated. Officer Yates’s patrol car had a video

and audio recording device, which recorded a portion of what had occurred at the

scene and also what transpired after appellant was placed in the patrol car. Officer




                                         3
Yates informed appellant of his Miranda and statutory rights before transporting

appellant to city jail.

       Once at the jail, Officer Yates requested appellant to give a breath sample

for alcohol-concentration analysis.    Appellant refused to give a sample.       The

officer informed appellant of the consequences of refusing to give a specimen.

       Officer Yates ran a criminal history on appellant. It was determined that,

under state law, appellant was required to give a blood sample because he had two

prior convictions for driving while intoxicated.3

       A blood sample was taken from appellant approximately five-and-one-half

hours after he had been found lying in the street by his motorcycle. The blood

sample was sent to the Texas Department of Public Safety Crime Lab in Houston

where it was analyzed by forensic scientist Robert Prince. Prince determined that

the sample taken from appellant contained 0.19 grams of alcohol per 100 milliliters

of blood.

       Appellant was indicted for the offense of felony driving while intoxicated.

The indictment also contained two enhancement paragraphs, alleging that appellant

had been previously convicted of two separate felony offenses of burglary.




3
       See TEX. TRANSP. CODE ANN. § 724.012(b)(3).
                                          4
      Appellant stipulated that he had been convicted of two prior offenses of

driving while intoxicated, elevating the instant offense to a felony. The jury was

informed of the stipulation.

      During the guilt-innocence phase, the State offered the testimony of Marcus

Taylor. He described for the jury how he found appellant lying in the street next to

his motorcycle. Taylor testified that the motorcycle’s headlight was on and that

the back wheel of the motorcycle was spinning. He said that appellant appeared

disoriented.

      Officer Yates testified for the State.    Through Officer Yates, the State

offered the patrol-car video recording, which showed, inter alia, appellant’s

demeanor and other events that had transpired at the scene and in the patrol car

following appellant’s arrest. Appellant objected to the portions of the recording

depicting statements he made after he had been read his Miranda rights. Appellant

asserted that, due to his intoxication, he was not able to knowingly and voluntarily

waive those rights.

      Following a hearing, the trial court overruled the objection and the videotape

was published to the jury. On the videotape, appellant can be heard to state that he

was cut off by a black SUV, causing him to hit the curb. He also admits to Officer

Yates that he has had too much to drink to be driving.




                                         5
      Paramedic Tiffany Lester also testified, stating that she believed appellant

was intoxicated.    She described appellant’s physical condition and demeanor

supporting her belief. The State also introduced the testimony of League City

police officer G. Rivas, who had arrived at the scene after Officer Yates had

arrived.   Like Officer Yates and Paramedic Lester, Officer Rivas provided a

description of appellant’s demeanor and actions indicating that he was intoxicated.

Officer Rivas stated that appellant had slurred speech and poor balance. She

observed that appellant appeared confused and had difficulty answering questions.

She testified that Officer Yates had to repeat his questions several times before

appellant would answer.

      Through forensic scientist Robert Prince, the State introduced the results of

the analysis conducted on appellant’s blood sample collected five-and-one-half

hours after appellant was found by Taylor in the street. Prince told the jury that the

blood sample showed that, at the time of collection, appellant’s blood contained

0.19 grams of alcohol per 100 milliliters. Prince explained to the jury that the State

of Texas designates a 0.08 blood alcohol concentration as the legal level of

intoxication. Prince also explained how the average person metabolizes alcohol.

      The State then asked Prince a hypothetical question regarding retrograde

extrapolation calculation if a blood sample were taken, as here, at least five and

one-half hours after a certain time. Appellant objected to the question on the basis

                                          6
that such testimony would not be relevant because Prince did not know when

appellant had his last drink, information necessary to conduct a retrograde

extrapolation analysis. After conducting a hearing on the issue, the trial overruled

appellant’s objection and permitted Prince to testify regarding the hypothetical

scenario.

      At trial, appellant did not dispute that he was intoxicated at the time he was

treated by Paramedic Lester or when he interacted with Officer Yates. Instead,

appellant asserted that there was no evidence to show that he was intoxicated when

he was operating the motorcycle. In his opening statement, appellant told the jury

that the evidence would show that he became intoxicated after he overturned his

motorcycle. He stated that the evidence would show that, after he was run off the

road, he walked to the store and bought a 40 ounce malt liquor that he drank at the

scene before being found by Marcus Taylor. Appellant elicited testimony from

Taylor indicating that a gas station was nearby the scene that sold alcohol.

However, appellant never offered any other evidence to show that he had gone to

the store, purchased alcohol, and then drank it at the scene.

      The jury implicitly rejected appellant’s theory when it found him guilty of

the felony offense of driving while intoxicated. Appellant pleaded true to the

indictment’s two enhancement allegations making him a habitual offender for

sentencing purposes.     Appellant waived his right to a contested punishment

                                          7
hearing. In accordance with an agreement reached with the State, the trial court

sentenced appellant to 25 years in prison.

      Appellant now appeals. He presents three issues.

                                 Sufficiency of Evidence

      In his first issue, appellant contends that the evidence was insufficient to

show that he was guilty of the offense of driving while intoxicated.

A.    Standard of Review

      This Court reviews sufficiency-of-the-evidence challenges applying the

same standard of review, regardless of whether an appellant presents the challenge

as a legal or a factual sufficiency challenge. See Ervin v. State, 331 S.W.3d 49,

53–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing majority

holding of Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)).                  This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). See id. Pursuant to this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in the

light most favorable to the verdict, no rational fact finder could have found that

each essential element of the charged offense was proven beyond a reasonable

doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; In re Winship, 397 U.S.

358, 361, 90 S. Ct. 1068, 1071 (1970); Laster v. State, 275 S.W.3d 512, 517 (Tex.

Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

                                          8
We can hold evidence to be insufficient under the Jackson standard in two

circumstances: (1) the record contains no evidence, or merely a “modicum” of

evidence, probative of an element of the offense, or (2) the evidence conclusively

establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n. 11, 320, 99

S.Ct. at 2786, 2789 n. 1, 2789; see also Laster, 275 S.W.3d at 518; Williams, 235

S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007). An appellate court presumes that the fact finder resolved any conflicts

in the evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

      In viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt

of an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton, 235 S.W.3d at 778. Finally, “[e]ach fact need not point directly and

independently to the guilt of the appellant, as long as the cumulative force of all

the incriminating circumstances is sufficient to support the conviction.” Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

                                          9
B.    Law of the Offense

      A person commits the offense of driving while intoxicated (“DWI”) “if the

person is intoxicated while operating a motor vehicle in a public place.” TEX.

PENAL CODE ANN. § 49.04(a) (Vernon 2011). If a person has two previous DWI

convictions, the offense is a felony of the third degree. Id. § 49.09(b)(2). As

mentioned, appellant stipulated that he had two prior DWI convictions.          As

relevant to this case, “intoxicated” is defined in the Penal Code to mean “not

having the normal use of mental or physical faculties by reason of the introduction

of alcohol . . . or any other substance into the body” or as “having an alcohol

concentration of 0.08 or more.” Id. § 49.01(2)(A)–(B) (Vernon 2011).

C.    Analysis

      The Penal Code requires the State to prove that a defendant was intoxicated

at the time he was operating the motor vehicle in a public place. See Warren v.

State, 377 S.W.3d 9, 14 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (citing

PENAL CODE ANN. § 49.04(a)). On appeal, appellant contends that there was no

direct evidence showing he was intoxicated at the time he was operating the

motorcycle.

      The Court of Criminal Appeals has recognized that “in order for the

evidence to be sufficient to support a conviction for driving while intoxicated,

                                        10
there must be a temporal link between a defendant’s intoxication and his driving.”

Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). In other words,

there must be some evidence showing a temporal connection between the time of

the defendant’s intoxication and the time of his driving. See Stoutner v. State, 36

S.W.3d 716, 721 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d); Weaver v.

State, 721 S.W.2d 495, 498–99 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d).

Nonetheless, a conviction for driving while intoxicated may be supported solely by

circumstantial evidence, which is as probative as direct evidence. Kuciemba, 310

S.W.3d at 462.

      Here, the State presented evidence that appellant had been driving the

motorcycle.   The evidence also showed as follows: (1) appellant owned the

motorcycle; (2) appellant told Officer Yates that he had been cut off by a black

SUV, and as a result, had hit the curb with his motorcycle; (3) when Officer Yates

hit the curb with his patrol car while turning around, appellant commented that

Officer Yates had hit the curb just as he had done earlier; and (4) Marcus Taylor

found appellant lying next to the motorcycle; and (5) appellant lived on the other

side of Houston from where the incident occurred.

      From this evidence, the jury reasonably could have inferred that appellant

was operating the motorcycle when it hit the curb and overturned in the street. See

Weems v. State, 328 S.W.3d 172, 177 (Tex. App.—Eastland 2010, no pet.)

                                        11
(concluding that evidence was legally sufficient to show appellant was driving

vehicle when it was a vehicle he typically drove and he had it on the night of the

accident, he was found four-tenths of a mile from accident in rural area, and police

officers and EMS personnel did not see anyone else at the accident scene or in

surrounding area); Turner v. State, 877 S.W.2d 513, 515–16 (Tex. App.—Fort

Worth 1994, no writ) (holding sufficient evidence that appellant drove vehicle

when he was found standing next to vehicle within minutes of city power outage

caused by damage to transformer in path of vehicle; steam was spewing from

under hood of vehicle, indicating accident had just happened; and accident

happened late at night so that there were no other possible drivers seen in the area).

      The evidence was also sufficient to show that appellant was intoxicated. In

this case, the jury was authorized to find that appellant was intoxicated if his blood

alcohol concentration was 0.08 or more or if he did not have the normal use of his

mental or physical faculties by reason of the introduction of alcohol into his body.

See TEX. PENAL CODE ANN. § 49.01(2).

      The State offered the following evidence showing that, at the scene,

appellant did not have the normal use of his mental or physical faculties by reason

of the introduction of alcohol into his body: (1) Paramedic Lester testified that

appellant’s “speech was slurred,” “his gait was a little altered,” “his pupils were

irregular,” and “he smelled like alcohol”; (2) Officer Yates testified that he smelled

                                         12
alcohol on appellant’s breath, observed that appellant’s eyes were red and

bloodshot, and that his pupils were of unequal size; (3) Officer Yates also testified

that when he asked appellant how much he had to drink, appellant responded, “Too

much”; (4) Officer Rivas testified that appellant had slurred speech, poor balance,

appeared confused, and had difficulty answering Officer Yates’s questions,

needing them to be repeated before answering; (5) appellant refused to perform

field sobriety tests; and (6) on the videotape, appellant admits that he has had too

much to drink to be driving. From this evidence, the jury could have reasonably

inferred that appellant was intoxicated at the time the paramedics and police

arrived at the scene shortly after Taylor had found appellant lying in the street next

to his motorcycle. See Cotton v. State, 686 S.W.2d 140, 142–43 & n.3 (Tex. Crim.

App. 1985) (noting evidence of intoxication may include, among other things,

slurred speech, bloodshot eyes, the odor of alcohol on the person, and unsteady

balance or a staggered gait); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—

Houston [1st Dist.] 2000, pet. ref’d) (“The testimony of a police officer that an

individual is intoxicated is probative evidence of intoxication.”).

      We now turn to the significant issue in this case: whether the State offered

sufficient evidence to temporally link appellant’s intoxication with his operation of

the vehicle. Relevant to this issue, the evidence showed as follows: (1) Taylor

found appellant lying in the street next to appellant’s motorcycle; (2) although he

                                          13
did not remember if its engine was running, Taylor observed that the motorcycle’s

back wheel was spinning and its headlight was on; (3) Taylor immediately called

9-1-1; (4) Paramedic Lester arrived at the scene about five minutes after Taylor’s

call; (5) as described supra, Lester testified regarding appellant’s physical

demeanor, indicating he was intoxicated; (6) approximately five minutes after

Lester arrived, Officer Yates arrived and observed appellant exhibiting signs of

intoxication, as discussed supra; and (7) Officer Rivas arrived soon after Officer

Yates arrived and also noted that appellant was exhibiting signs of intoxication.

      Additionally, the Court of Criminal Appeals has explained that “[b]eing

intoxicated at the scene of a traffic accident in which the actor was a driver is some

circumstantial evidence that the actor’s intoxication caused the accident, and the

inference of causation is even stronger when the accident is a one-car collision

with an inanimate object.” Kuciemba, 310 S.W.3d at 462. Here, Officer Yates

testified that appellant said that “a black SUV had cut him off and that he had

wrecked the motorcycle, laid the motorcycle over.” Appellant can be heard in the

videotape making a similar statement. Officer Yates also stated that appellant had

indicated to him that appellant had hit the curb with his motorcycle. The evidence

also showed that the motorcycle’s signal light was damaged and that appellant had

an abrasion on his elbow.




                                         14
      In short, the evidence indicated that appellant had been in a minor accident

with his motorcycle. The only evidence that another vehicle had been involved

was appellant’s statement to Officer Yates. The jury was free to disbelieve the

statement and infer that it was a single vehicle accident. In any event, appellant’s

intoxication at the scene of the accident is circumstantial evidence that he was

intoxicated when the accident occurred and evidence that his intoxication caused

the accident. See id.

      Appellant also points to evidence in the record that he asserts undermines an

inference that he was intoxicated at the time he was operating the motorcycle. He

points out that Officer Yates initially claimed that he saw appellant trying to start

the motorcycle at the scene, but then the officer acknowledged that he only saw

appellant sitting on the motorcycle. Appellant cites evidence in the record that the

key to appellant’s motorcycle was never found.          And he points to testimony

indicating that the back wheel of a motorcycle can spin even when the

motorcycle’s engine is off, if the motorcycle is in neutral.


      While such evidence may have aided appellant’s defense, ample evidence,

as discussed supra, exists in the record to support a finding that appellant operated

the motorcycle while he was intoxicated. Evidence in the record indicates that the

accident had just occurred. Specifically, the back wheel on the motorcycle was

still spinning and the headlight was turned on. Appellant was lying in the street

                                          15
next to his motorcycle. He appeared confused but was conscious. Approximately

five minutes later Paramedic Lester arrived, and approximately 10 minutes later

Officer Yates arrived. A few minutes later Officer Rivas arrives at the scene. All

three gave testimony indicating that appellant did not have normal use of his

mental and physical faculties; that is, appellant was intoxicated.

      It was the jury’s responsibility to weigh the evidence pertinent to whether

appellant operated a motor vehicle while intoxicated and to draw reasonable

inferences from that evidence. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. We

cannot conclude that the jury’s implied finding that appellant operated the

motorcycle while intoxicated is irrational. Rather, such a finding is a reasonable

inference that could have been drawn from the evidence.

      Moreover, the State was not required to refute appellant’s theory that he

became intoxicated after the accident by drinking alcohol at the scene before he

was found by Taylor. The State is no longer required to exclude all reasonable

hypotheses except that of a defendant’s guilt when a conviction is based on

circumstantial evidence. See Geesa v. State, 820 S.W.2d 154, 160–61(Tex. Crim.

App. 1991) overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 573

(Tex. Crim. App. 2000). In any event, the State offered evidence showing that no

alcohol containers were found at the scene.




                                         16
      Viewing all the evidence in the light most favorable to the jury verdict, we

conclude that a rational fact finder could have found, beyond a reasonable doubt,

all of the essential elements of the charged offense of driving while intoxicated.

See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. More precisely, the jury could

have found, beyond a reasonable doubt, a temporal link between appellant’s

intoxication and his operation of the motorcycle. See Kuciemba, 310 S.W.3d at

462. We hold that the evidence is sufficient to support the judgment of conviction.

      We overrule appellant’s first issue.

   Suppression of Statements in Videotape Made After Miranda Warnings

      In his second issue, appellant contends that the trial court abused its

discretion when it did not suppress his statements in the videotape following

Officer Yates’s informing appellant of his Miranda rights. Appellant contends that

he did not knowingly and intelligently waive those rights because he was

intoxicated. The trial court conducted a hearing outside the presence of the jury to

determine this issue. Officer Yates and appellant testified. The trial court also

viewed the videotape.

      Officer Yates testified that appellant indicated that he understood the rights

that had been read to him. Officer Yates also testified that appellant appeared

coherent. In contrast, appellant testified that he did not understand the rights that

had been read to him because he was “inebriated.”

                                         17
      The videotape shows Officer Yates informing appellant of his rights while

appellant is seated in the back of the patrol car. Appellant interrupts the officer

several times stating that he had never, in the past, had these rights read to him.

Appellant tells Officer Yates that he does not need to read him his rights. When

Officer Yates finishes informing appellant of his rights, appellant indicates that he

understood them.

      After reading appellant his rights, Officer Yates informs appellant about how

his motorcycle and belongings will be handled. The two discussed how nice the

motorcycle looks, and the officer tells appellant that it appears only the signal

indicator light on the motorcycle has been damaged. Appellant asks Officer Yates

if he may smoke, and the officer tells appellant that he may not smoke now that he

is in handcuffs. Appellant asks the officer what he is “getting him for.” Before

Officer Yates answers, appellant blurts out that he was not riding the motorcycle.

Officer Yates then asks appellant whether he had not stated earlier that an SUV

had cut him off. Appellant indicates that he had not said that. Officer Yates tells

appellant he has a witness that saw him “leaned over” on his motorcycle. Officer

Yates informs appellant that he has been arrested for driving while intoxicated.

Officer Yates states that he has several witnesses who saw appellant driving the

motorcycle. Appellant does not respond to the officer’s statement. Appellant asks

where he is being taken, and the officer says that he is being taken to jail.

                                         18
Appellant also asks the officer to give him a “break.” Officer Yates says that he

cannot do that.

      In Miranda v. Arizona, the United States Supreme Court held, “[T]he

prosecution may not use statements, whether exculpatory or inculpatory, stemming

from custodial interrogation of the defendant unless it demonstrates the use of

procedural safeguards effective to secure the privilege against self-incrimination.”

384 U.S. 436, 444, 86 S.Ct. 1602, 1612 (1966).          The Texas Legislature has

codified these procedural safeguards in the Code of Criminal Procedure. See TEX.

CODE CRIM. PROC. ANN. art. 38.22. Specifically, article 38.22, section 3 prohibits

admission of an accused’s oral statement made as a result of custodial interrogation

unless, among other requisites, the Miranda warnings and one additional warning

set out in article 38.22 were given, and the accused knowingly, intelligently, and

voluntarily waived any rights set out in the warnings. See id. § 3(a).

      Regardless of whether appellant was prevented from knowingly and

intelligently waiving his rights due to his intoxication, the only statement that can

be construed to result from interrogation after he was informed of his rights is

appellant’s denial that he had previously told Officer Yates that he was cut off by

an SUV. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689–90

(1980) (defining “interrogation” for Miranda purposes as “express questioning” or

“any words or actions on the part of the police (other than those normally attendant

                                         19
to arrest and custody) that the police should know are reasonably likely to elicit an

incriminating response”).

      Assuming, without deciding, that the admission of this statement was

admitted in violation of appellant’s Miranda rights, we conclude that the trial

court’s failure to suppress the statement was harmless error.    When confronted

with a constitutional error, such as this, a reviewing court must reverse the

judgment unless it can conclude, while taking into account any and every

circumstance apparent in the record, that the error did not contribute to the

defendant’s conviction or punishment beyond a reasonable doubt. Snowden v.

State, 353 S.W.3d 815, 818, 822 (Tex. Crim. App. 2011) (citing TEX. R. APP.

PROC. 44.2(a)).

      Our harm review for constitutional errors is controlled by the Court of

Criminal Appeals’s analysis in Snowden, 353 S.W.3d at 822. We consider (1) the

nature of the error, (2) the extent it was emphasized by the State, (3) the probable

implications of the error, and (4) the weight the jury would likely have assigned to

it in the course of the deliberations. See id. These factors are not exclusive; other

considerations may logically inform our harm analysis. See id. The Snowden

court emphasized, “At bottom, an analysis for whether a particular constitutional

error is harmless should take into account any and every circumstance apparent in

the record that logically informs an appellate determination whether beyond a

                                         20
reasonable doubt [that particular] error did not contribute to the conviction or

punishment.’” Id. (quoting TEX. R. APP. P. 44.2(a)).

        Applying these factors, we conclude beyond a reasonable doubt that the

admission of appellant’s statement denying that he had earlier told Officer Yates

that he had been cut off by an SUV did not contribute to his conviction. At the

beginning of the tape, appellant is heard telling Officer Yates how a black SUV

caused him to hit the curb and fall over on his motorcycle. Appellant’s denial that

he had previously told Officer Yates that he had been cut off the road by a black

SUV was not relied on by the State. To the contrary, the State used appellant’s

statement that he had been cut off by an SUV to show that appellant had been

operating the motorcycle. In its closing statement, it is the defense who references

appellant’s denial that he had been driving the motorcycle and points out that

Officer Yates was not being truthful when he told appellant that he had “several

witnesses” who saw appellant driving. If anything, this portion of the videotape

may have helped appellant’s defense because it allowed the defense to highlight

that no one saw appellant operating the motorcycle.

        In any event, we can ascertain no meaningful implications of admitting

appellant’s denial that he had earlier told Officer Yates that an SUV ran him off the

road.    Such statement may have affected how the jury viewed appellant’s

credibility. However, appellant had voluntarily and spontaneously denied being on

                                         21
the motorcycle before Officer Yates asked him whether he had earlier stated that

an SUV caused the accident. In fact, this spontaneous denial is what prompted

Officer Yates to ask appellant about what he said earlier regarding the SUV. In

other words, appellant had already denied operating the motorcycle before Officer

Yates questioned him about it. When read in context, it is unlikely the jury

assigned much weight to appellant’s denial of his earlier claim regarding the SUV.

      Assuming that the trial court erred by overruling appellant’s request to

suppress appellant’s post-Miranda statements in the videotape, we conclude that

any error did not move the jury from a state of non-persuasion to a state of

persuasion on any material issue in the case. See Snowden, 353 S.W.3d at 825

(citing Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010)). Nor is

such error “reasonably likely to have caused such prejudice as to distract the jury

or divert it from its proper fact-finding role.” See id. We are persuaded to a level

of confidence beyond a reasonable doubt that it made no contribution to the jury’s

determination that the appellant was guilty of driving while intoxicated. See id.

We hold that any error by the trial court in denying appellant’s motion to suppress

was harmless error. See TEX. R. APP. P. 44.2(a).

      We overrule appellant’s second issue.




                                        22
                             Retrograde Extrapolation

      In his third issue, appellant contends that the trial court abused its discretion

when it permitted Robert Prince, the State’s forensic scientist, to testify regarding

the application of retrograde extrapolation to a hypothetical situation.

      Retrograde extrapolation is the computation back in time of the blood

alcohol level; that is, it is the estimation of the blood alcohol level at the time of

driving based on a test result from some later time. Mata v. State, 46 S.W.3d 902,

908–09 (Tex. Crim. App. 2001).          In Mata, the Court of Criminal Appeals

explained that a trial court considering the reliability of retrograde extrapolation

should consider (1) the length of time between the offense and the test(s)

administered; (2) the number of tests given and the length of time between each

test; and (3) whether, and to what extent, any individual characteristics of the

defendant were known to the expert in providing his extrapolation. Id. at 916.

These characteristics and behaviors might include, but are not limited to, the

person’s weight and gender, the person’s typical drinking pattern and tolerance for

alcohol, how much the person had to drink on the day or night in question, what

the person drank, the duration of the period of drinking, the time of the last drink,

and how much and what the person had to eat. Id. The court noted that “[t]he

expert’s ability to apply the science and explain it with clarity to the court is a

paramount consideration.”       Id.    The expert must also demonstrate some

                                          23
understanding of the difficulties, subtleties and risks inherent in the science, and he

must be able to clearly and consistently apply it. Id.

      Hypothetical questions are sometimes employed to assist the trier of fact to

understand the evidence or to determine a fact in issue. See, e.g., Taylor v. State,

106 S.W.3d 827, 832–33 (Tex. App.—Dallas 2003, no pet.); see also TEX. R. EVID.

702. Assumptions on which a hypothetical is based need not be limited to those

supported by the evidence; counsel may propound questions that assume facts in

accordance with the theory of the case. Held v. State, 948 S.W.2d 45, 53 (Tex.

App.—Houston [14th Dist.] 1997, pet. ref’d).

      Here, the evidence showed that Taylor found appellant lying in the street

next to his motorcycle shortly after 2:00 a.m. Appellant’s blood sample was drawn

later that same morning at 7:45 a.m. An analysis of appellant’s blood revealed that

appellant had blood alcohol content of 0.19 grams of alcohol per 100 milliliters at

that time. The time of appellant’s last drink was not known.

      During its direct examination of Prince, the State asked the following

hypothetical question:

      [I]f a person took their last drink, hypothetically speaking, at 12:00
      noon then 5 1/2 hours later at 5:30 in the evening their blood alcohol
      level—their blood was taken and determined to be 0.19, can you say
      using the methods you’ve described what their blood alcohol level
      would have been at noon when they stopped drinking or an hour after
      they stopped drinking, after they reached their maximum?


                                          24
       Appellant objected to the question on relevancy grounds because the time of

appellant’s last drink was not known.4 A hearing was held outside the presence of

the jury.     At the conclusion of the hearing, the trial court denied appellant’s

objection. The trial court noted that, from the testimony of the State’s witnesses,

the time of appellant’s last drink was known to be before 2:00 a.m.

       When the jury returned, the following exchanged occurred between the State

and Prince:

       Q.    I’m saying, hypothetically, if a person stops drinking at 12:00
       noon and then 5 1/2 hours later at 5:30 their blood alcohol level is .19
       grams of alcohol per 100 milliliters of blood.

       A.      Okay.

       Q.     Okay. So how much alcohol would have been eliminated in
       those intervening 5 1/2 hours?

       A.      It would be a range of approximately .07 to .09.

       On re-direct, the State clarified that, in the hypothetical, the person’s blood

alcohol level would have been between 0.26 and 0.28 five-and-one-half hours

earlier.

       Assuming, without deciding, that the admission of Prince’s testimony

regarding the hypothetical was an abuse of discretion, we conclude that such error

was harmless error.        The erroneous admission of retrograde extrapolation


4
       In the trial court, appellant did not argue that other factors identified in Mata
       specific to appellant were not considered.
                                          25
testimony is non-constitutional error subject to a harm analysis. Bagheri v. State,

119 S.W.3d 755, 762–63 (Tex. Crim. App. 2003); see also Douthitt v. State, 127

S.W.3d 327, 337 (Tex. App.—Austin 2004, no pet.).

      We must disregard the trial court’s error in admitting Prince’s retrograde

extrapolation testimony unless it affected appellant’s substantial rights. See TEX.

R. APP. P. 44.2(b). An appellate court may not reverse a judgment for non-

constitutional error if the court, after examining the record as a whole, has 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). We must consider

the entire record, including testimony, evidence, voir dire, closing arguments, and

jury instructions to determine whether the jury was affected. Bagheri, 119 S.W.3d

at 763. We should also consider 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, whether the State emphasized the error, whether

the erroneously admitted evidence was cumulative, and whether it was elicited

from an expert. Id.

      Here, retrograde extrapolation evidence was not mentioned or alluded to in

voir dire.   In its voir dire, the State discussed the different ways in which

intoxication may be proven, including a showing of a blood alcohol content of 0.08

or greater. The State also discussed impairment with the jury, asking the venire

                                        26
members what types of behavior and physical signs indicate a person is

intoxicated.

      In its opening statement, the State told the jury, “And you will hear from the

forensic scientist, Robert Prince, about the results that I told you about, that the

results of the blood alcohol content were .19 which, as you know, is more than two

times over the limit.”     However, the State makes no mention of retrograde

extrapolation in its opening statement.

      Significantly, in his opening statement, appellant expressly stated that he did

not deny that he was intoxicated. To the contrary, he posited to the jury that the

evidence would show that he became intoxicated after he was run off the road by

the SUV. He told the jury that the evidence would show that, after being run off

the road, he walked to a nearby store and bought a 40 ounce can of malt liquor.

Appellant stated that he then drank the liquor in the next 40 minutes and, by the

time of his encounter with the police, he was intoxicated. During trial, however,

appellant did not offer evidence to establish this defense.

      The charge permitted the jury to find intoxication by impairment.           As

discussed, to show impairment, the State offered the testimony of the Paramedic

Lester, Officer Yates, and Officer Rivas, who each testified regarding appellant’s

demeanor and physical condition. The State also offered the videotape in which

appellant is heard to say that he has had too much to drink to drive.

                                          27
      With respect to showing intoxication based on blood alcohol concentration,

the jury heard, without objection, that appellant’s blood alcohol concentration was

0.19, approximately five-and-one-half hours after he was found by Marcus Taylor.

Prince described for the jury, without objection, how the average person

metabolizes alcohol.     He testified that most people “reach their maximum

concentration of alcohol . . . approximately one hour after their last drink. At that

point then you will stop absorbing and then strictly start eliminating.”          He

explained that the average elimination is 0.02 grams of alcohol per hour. The State

asked, “[I]f a person reached their maximum—hypothetically speaking, reached

their maximum concentration at .08, it would take the average person four hours to

eliminate that alcohol?” Prince responded, “Approximately, correct.” Thus, the

jury also had this hypothetical information from which to extrapolate past blood

alcohol content.

      It is also noteworthy that, on cross-examination, appellant elicited testimony

from Prince making it clear that his testimony was describing a hypothetical

situation.   He acknowledged that he had not prepared a retrograde analysis

extrapolation with regard to this particular case. Prince responded affirmatively

when asked whether his hypothetical analysis was “off the cuff” and had not been

prepared before he was presented with the hypothetical fact scenario. Prince also

responded affirmatively when asked, “You didn’t go to the lab and do any sort of

                                         28
analysis to come up with this opinion. . . .         [Y]ou’re just kind of taking a

hypothetical and doing the best you can.”

      With respect to closing argument, the State discussed the evidence showing

intoxication by impairment. It also discussed the evidence showing intoxication by

blood alcohol content, including the hypothetical conclusions reached by Prince.

Thus, evidence supporting a showing of intoxication under both theories was

emphasized.

      What is significant in this case, however, is that appellant’s primary defense

was not lack of intoxication. Rather, his defense was that he was not intoxicated

while he was operating his motorcycle. The hypotheticals posed to Prince had

little effect on the presentation of this defense.

      On direct examination, the State did ask Prince if a person who consumed

only 40 ounces of beer could have a blood alcohol content of 0.19 five-and-one-

half hours later. Over the defense’s objection, Prince responded in the negative.

However, when asked whether he knew the alcohol content of malt liquor, rather

than beer, Prince said he did not.

      On cross-examination, Prince acknowledged that, if the alcohol consumed

had a higher percentage of alcohol than beer, the outcome of his analysis would be

affected. In addition, if the person had something else to drink before the beer, that

would also affect his analysis. Lastly, he acknowledged that changing the timeline

                                           29
for when the alcohol had been consumed would also change the outcome. Thus,

given the totality of Prince’s testimony on direct and cross-examination, the

hypotheticals heard by the jury likely had little, if any, bearing on appellant’s

defense in this case.

      In summary, the retrograde extrapolation testimony in this cause was elicited

from an expert, but there is no indication that the jurors were predisposed to give

such testimony greater weight than the other evidence before them. The retrograde

extrapolation testimony was cumulative of other evidence of intoxication.

Although the prosecutor did remind the jurors of Prince’s testimony during its

closing arguments, it did not claim that his testimony was alone sufficient to

convict.   Given the strength of the State’s case and the relative weakness of

appellant’s defensive theory—including his failure to develop the evidence that he

claimed in his opening statement he would show—we can state with fair assurance

that the erroneous admission of the retrograde extrapolation testimony had, at

most, a slight effect on the jury. See TEX. R. APP. P. 44.2(b); see also Douthitt, 127

S.W.3d at 339.

      We overrule appellant’s third issue.




                                         30
                                    Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Jennings, Higley, and Sharp.

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




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