            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. PD-0379-09



                           BRIAN THOMAS KIRSCH, Appellant

                                              v.

                                  THE STATE OF TEXAS



            ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                    FROM THE FIRST COURT OF APPEALS
                             HARRIS COUNTY

       P RICE, J., filed a dissenting opinion in which M EYERS, J., joined.

                                DISSENTING OPINION

       When the evidence of the appellant’s blood alcohol concentration (BAC) was

admitted at trial, the jury was instructed that it was to consider that evidence for a limited

purpose. The trial judge never released the jury from that restriction—to the contrary, during

the State’s final argument, he reminded the jury that it was “still required to abide by” the

limiting instruction.   Resolution of this appeal turns, it seems to me, on an accurate

assessment of the meaning and import of that limiting instruction.
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       The appellant contends that the limiting instruction informed the jury that it could not

consider the BAC evidence as evidence of the appellant’s BAC at the time he was driving,

but could only consider it as some evidence that the appellant had consumed some quantity

of alcohol at some point before the specimen of his blood was taken at the hospital. Thus

construed, the limiting instruction would render the evidence of the appellant’s BAC similar

in import to evidence that his breath smelled of alcohol; that is to say, it is relevant to the

issue of intoxication, but hardly, by itself, determinative. Evidence having this import only,

the appellant contends, cannot support submission of the per se theory of intoxication under

the DWI statute because, given the limiting instruction, there would be no evidence of the

appellant’s BAC at all, much less what his BAC might have been at the time he was driving.

It is true that evidence of BAC at the time that the specimen is drawn may, even without

evidence of retrograde extrapolation, support submission of the per se theory of DWI—that

is, if it is accompanied by other, circumstantial evidence from which the jury could

reasonably deduce that the accused’s BAC at the time the specimen was taken is likely to

reflect a BAC at the time he was driving that was at least .08. But I doubt we would ever be

willing to say that, in the absence of any evidence of BAC at all, the evidence can support

a conviction under the per se theory of intoxication.

       I fully agree with the Court that there was no basis to give any limiting instruction in

this case. That is perhaps the most important point, from a jurisprudential standpoint, to be
                                                                                   Kirsch — 3


taken from the Court’s opinion today. Our case law does not require evidence of retrograde

extrapolation before BAC evidence can support submission of the per se theory of

intoxication in the jury charge—again, so long as there is other, circumstantial evidence in

the case from which a jury could rationally infer that BAC at the time of driving was at least

.08 or above.1 This is not to say that BAC evidence must always be admitted. In certain

cases it may be that the BAC evidence should be excluded under Rule 403.2 Such evidence

may prove substantially more prejudicial than probative if the attendant circumstantial

evidence does not compellingly support an inference that BAC at the time of driving was at

least .08, because the jury may be encouraged to uncritically infer a BAC at the time of

driving that is not well justified by the evidence.3 When BAC evidence is thus excluded

under Rule 403, I presume we would hold that there is no evidentiary basis to submit the per

se theory of intoxication in the jury charge. Here, the trial judge did not exclude the BAC

evidence on the basis that its potential for unfair prejudice overcame its probative value,

under Rule 403. Moreover, I cannot imagine on the facts of this case that he would have

been justified in doing so. Nor, as the Court explains, was there any basis for limiting the



       1

       Stewart v. State, 129 S.W.3d 93, 97 (Tex. Crim. App. 2004).
       2

       T EX. R. E VID. 403.
       3

       Gigliobianco v. State, 210 S.W.3d 637, 643 (Tex. Crim. App. 2006); State v. Mechler, 153
S.W.3d 435, 449 (Tex. Crim. App. 2005) (Cochran, J., concurring).
                                                                                       Kirsch — 4


evidentiary impact of the BAC evidence.4 I therefore agree that the trial judge should never

have given the limiting instruction in the first place. But give it he did, and he never

rescinded it. And if the appellant is right about its import, then it seems to me that it would

be as if the trial court had excluded the BAC evidence under Rule 403—a jury charge on per

se intoxication would be unwarranted.

       Everything depends, it therefore seems to me, on what the limiting instruction actually

instructed. Putting aside for the moment what the trial judge actually said to the jury in

giving the limiting instruction, he made clear on the record that what he meant to convey was

that the jury’s consideration of the BAC evidence should be limited exclusively to “showing

that the individual who was tested had ingested alcohol at some time prior to the test.” This

language would plainly prohibit the jury from considering the BAC evidence as any evidence

whatsoever of the appellant’s actual BAC, whether at the time the specimen was taken or at

the time of driving. Instead, the jury should regard it like evidence of the odor of alcohol on

the breath; that is, it is relevant to show, but insufficient by itself to prove, intoxication under

the per se theory. If this had been what the trial judge had actually told the jury, then I think

that the appellant’s argument would be well taken. There would be no evidence of BAC (or

at least of BAC qua BAC) at all, at any point in time, and therefore no basis for submitting

the per se theory of intoxication in the jury charge.


       4

        Majority opinion at 14-16.
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        But when it came to actually instructing the jury, the trial judge did not say precisely

what he said he was going to say. The Court holds that, by adding the modifier “only” (and

particularly, by adding it at the place in the sentence where he did), the trial judge actually

expressed a limitation upon the BAC evidence that was much narrower than what he

intended. I disagree. In my view, any way you parse it, what the trial judge told the jury

constitutes the expression of a limitation that would have prohibited the jury from using the

BAC evidence qua BAC evidence.

        The Court says that the appellant’s construction of the actual limiting instruction has

“misplaced the modifier” by making the word “only” modify the “what” phrase (“ingested

alcohol”) rather than the “when” phrase (“at some point before the time of the test”).5 It is

important to recognize that the trial judge did not need an “only” to modify any phrase in the

instruction in order to get his intended meaning across.6 I concede that adding (and moving)


        5

        Id. at 16-17.
        6

          In order to best express his obvious intent, the trial judge need not have added a modifier at
all, but should simply have told the jury the same thing he told the attorneys he was going to tell the
jury, viz: that the BAC evidence was “received for the limited purpose of showing that the individual
who was tested had ingested alcohol at some time prior to the test.” If he was going to use “only” as
a modifier at all, he most sensibly would have used it to express that the BAC evidence was “received
only for the limited purpose of showing that the individual who was tested had ingested alcohol at
some time prior to the test.” A jury given either of these instructions would have had no trouble
understanding that it was not to consider the BAC evidence as evidence of what the accused’s BAC
actually was at the time of the test or at any other time, including at the time of driving. It was simply
some evidence relevant to show that the appellant had “ingested alcohol at some time prior to the
test”—period. It would not authorize, nor could a jury have reasonably construed it to authorize,
consideration of the BAC evidence qua BAC evidence.
                                                                                          Kirsch — 6


the modifier changes the potential meaning of the sentence. But it seems to me that

regardless of whether one adds a modifier to the sentence, and wherever one happens to place

it, the instruction still has the effect of prohibiting the jury from considering the BAC

evidence qua BAC evidence.

       Here is what the trial judge meant to tell the jury:

              The BAC evidence will be received by the Court for the limited purpose
       of showing that the individual who was tested had ingested alcohol at some
       point before the time of the trial. That is the only purpose for which it will be
       offered and the only purpose for which you should receive it at this time in this
       trial.

Here is what he actually told the jury (with added emphasis on the modifier):

               The BAC evidence “will be received by the Court for the limited
       purpose of showing that the individual who was tested had ingested alcohol
       only at some point before the time of the test. That is the only purpose that
       will be offered [sic] and the only purpose for which you should receive it at
       this time in this trial.”

This instruction informed the jury that its consideration of the BAC evidence was limited to

its tendency to show that the appellant had ingested alcohol, and that he had ingested alcohol,

if at all, only at some point before the time of the test (as opposed to at some other point in

time, such as after the time of the test). Whatever else may be said about this instruction,7

       7

         A limitation upon the jury’s consideration of the BAC evidence to its relevance to prove some
fact of consequence occurring some time after the test, while not necessarily inaccurate or misleading,
is trivial and wholly unnecessary. It would have been readily apparent to the jury without an
instruction that whatever the relevance of the BAC evidence (whether qua BAC evidence, or merely
to show that the appellant had “ingested alcohol” at some point in time), it was to prove a fact of
consequence occurring before the test was taken.
                                                                                            Kirsch — 7


it plainly prohibits the jury from considering the BAC evidence for any other purpose,

including qua BAC evidence. Any instruction that evidence has been received for a

“limited” or exclusive (i.e., “only”) purpose necessarily means that it has not been received

for any purpose not expressly embraced within the language of limitation.

        Moving the modifier does not fundamentally change the exclusionary character of the

limiting instruction—at least not with respect to the question of whether it would permit the

jury to consider the BAC evidence qua BAC evidence. Here is how the instruction would

read moving the word “only” so that it modifies the “what” phrase (again, with added

emphasis on the modifier):

                The BAC evidence “will be received by the Court for the limited
        purpose of showing that the individual who was tested had only ingested
        alcohol at some point before the time of the test. That is the only purpose that
        will be offered [sic] and the only purpose for which you should receive it at
        this time in this trial.”

This instruction would have informed the jury that its consideration of the BAC evidence is

limited to its tendency to show that the appellant had ingested alcohol, and only alcohol, to

the exclusion of any other substance (or that he had only “ingested” alcohol, and not done

something else with it), at some point before the time of the test.8 Whatever it is that this

        8

          Indeed, even placing the modifier before the “what” phrase “ingested alcohol,” it is still
possible, if perhaps not preferable, to read it to modify the “when” phrase. Much could depend upon
the trial judge’s inflection when giving such an instruction. A jury might reasonably construe the
instruction to mean that its consideration of the BAC evidence would be limited to whatever tendency
it has to prove that the appellant ingested alcohol, and that he did so only at some time before the test
(as opposed to some other time).
                                                                                     Kirsch — 8


manifestly ambiguous instruction would authorize the jury to consider, it continues plainly

to prohibit the jury from considering the BAC evidence for any other purpose, including qua

BAC evidence.

       In short, the efficacy of the instruction to preclude the jury from considering the BAC

evidence qua BAC evidence does not turn—indeed, is not logically dependent in any

way—upon the placement of the (gratuitous) modifier. If anything, the addition of the

modifier, wherever it appears in the sentence, actually serves to increase (albeit in illogical

and inconsequential ways) the limitation placed upon the jury’s use of the BAC evidence.

It does not expand the universe of available uses to which the BAC evidence may be put.

Any way you cut it, the jury is prohibited from using the BAC evidence as any evidence of

the appellant’s BAC, either at the time of the test or at the time he was driving.

       For this reason, I agree with the appellant that the evidence did not support submission

of the per se theory of intoxication in the DWI jury instructions. The appellant objected to

the inclusion of this theory in the jury charge, and so the error calls for reversal of the

conviction if the record admits of “some” harm.9 Given that there was BAC evidence on the

jury’s radar, the inclusion of the per se theory of intoxication in the jury charge may have

caused the jury to ignore the limiting instruction and rely upon the BAC evidence qua BAC

evidence even though it had been plainly told not to. At the very least the inclusion of the


       9

       Warner v. State, 245 S.W.3d 458, 463 (Tex. Crim. App. 2008).
                                                                                      Kirsch — 9


per se theory of intoxication in the jury charge may have engendered confusion in the jury

with respect to whether it could ignore the limiting instruction. Under the circumstances, it

is more than just conceivable that the jury gave short shrift to its obligation to consider

whether the appellant was guilty under the only theory (loss of normal physical or mental

faculties) that was properly (properly, that is, in light of the limiting instruction that was also

given, however erroneously or gratuitously) submitted. I would therefore reverse the

judgment of the court of appeals and remand the cause for a new trial. Because the Court

does not, I respectfully dissent.




Filed:         February 10, 2010
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