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                                             OPINION

           Nos. 04-07-00788-CR, 04-07-00789-CR, 04-07-00790-CR and 04-07-00791-CR

                                         Leslie A. SUBIRIAS,
                                               Appellant

                                                   v.

                                      THE STATE OF TEXAS,
                                            Appellee

                 From the 227th Judicial District Court, Bexar County, Texas
     Trial Court Nos. 2006-CR-11023, 2006-CR-11024, 2006-CR-11025, 2006-CR-11026
                       Honorable Philip A. Kazen, Jr., Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Alma L. López, Chief Justice
                  Catherine Stone, Justice
                  Sandee Bryan Marion, Justice

Delivered and Filed: December 17, 2008

AFFIRMED

           At approximately 9:30 p.m. on an August night, defendant lost control of the truck she was

driving on Highway Loop 410. The truck eventually went airborne and landed on another vehicle.

Of the five people in the other vehicle, two were killed and two were injured. Defendant was

transported by EMS to Wilford Hall Hospital, where three blood draws were taken: (1) at 10:59 p.m.

showing a blood alcohol content of .102; (2) at 12:15 a.m. showing a blood alcohol content of .07;
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and (3) at 2:24 a.m. showing a blood alcohol content of .03.1 Defendant was formally arrested at

1:07 a.m., after the first two blood draws and before the third draw.

         Defendant pled guilty to two counts of intoxication manslaughter and two counts of

intoxication assault, and the trial court assessed punishment at ten years’ confinement, the sentences

to run concurrently. Prior to entry of her plea, defendant filed a motion to suppress the blood test

results and any testimony concerning the blood test results. The trial court denied the motion and

this appeal ensued. We affirm.

              THE “FIRST LEGAL” AND “SECOND LEGAL” BLOOD DRAWS

         In her first issue, defendant asserts the “first legal” blood draw was taken in violation of

Texas Transportation Code section 724.012(b), which sets forth the circumstances under which a

person’s blood may be taken if the person has been arrested. See TEX . TRANSP . CODE ANN .

§ 724.012 (Vernon Supp. 2008). Defendant contends the “first legal” blood draw was taken before

her arrest and, therefore, evidence of the draw should have been suppressed. In her second issue,

defendant asserts the “second legal” blood draw was involuntary because Texas Transportation Code

section 724.012(b) allows for only a single blood draw.

         Section 724.012 does not apply when a person consents to having his or her blood drawn.

See Bennett v. State, 723 S.W.2d 359, 361 (Tex. App.—Fort Worth 1987, no pet.) (whether

defendant was under arrest when sample was taken is immaterial because there was no need to

compel defendant’s submission to the test because defendant consented to giving a blood sample).

Here, the police officer who requested the blood draws while defendant was at the hospital testified


         1
         … In her brief, defendant characterizes these blood draws as follows: (1) the 10:59 p.m. draw as the “medical”
blood draw, (2) the 12:15 a.m. draw as the “first legal” blood draw, and (3) the 2:24 a.m. draw as the “second legal”
blood draw.

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defendant consented to both the “first legal” and “second legal” blood draws. Nothing in the record

contradicts the officer’s testimony that defendant consented and nothing in the record supports

defendant’s contention on appeal that her consent was involuntary. Therefore, we overrule

defendant’s first and second issues.

                   RULE 403: EXCLUSION OF RELEVANT EVIDENCE

       In her third issue, defendant asserts the trial court erred in admitting results of the “first legal”

and “second legal” blood draws into evidence because the probative value of the evidence was

outweighed by the danger of unfair prejudice.

       Texas Rule of Evidence 403 provides as follows: “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” TEX . R. EVID. 403. When undertaking a Rule 403 analysis,

a trial court must balance (1) the inherent probative force of the proffered item of evidence along

with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest

a decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from

the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not

been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation

of the evidence will consume an inordinate amount of time or merely repeat evidence already

admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006). We review the

trial court’s Rule 403 ruling for an abuse of discretion. State v. Mechler, 153 S.W.3d 435, 439

(Tex. Crim. App. 2005); State v. Franco, 180 S.W.3d 219, 225 (Tex. App.—San Antonio 2005,




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pet. ref’d). We “should not reverse a trial judge whose ruling was within the zone of reasonable

disagreement.” Mechler, 153 S.W.3d at 440.

A.     Probative Value

       Under the first factor, we examine “how compellingly the evidence serves to make a fact of

consequence more or less probable.” Id. Here, defendant’s blood test results are evidence that she

had consumed alcohol. As a result, the trial court could have reasonably concluded that the results

of the “first legal” and “second legal” blood draws tended to make it more probable that defendant

was intoxicated at the time of driving. See id.

B.     Need for the Evidence

       Under the second factor, a proponent’s need for a particular piece of evidence is reduced

when the proponent “has other compelling or undisputed evidence to establish the proposition or

fact.” Gigliobianco, 210 S.W.3d at 641. Here, the police officer testified defendant admitted to him

that she “had two beers,” and he noticed that her eyes were bloodshot and watery. Because

defendant was receiving treatment at the hospital, only two field sobriety tests were conducted: (1)

the HGN test, which was consistent with intoxication and (2) the Vertical Nystagmus test, which was

inconsistent with a high level of intoxication. Because the field tests were inconsistent, the State

needed the results of the blood draws to establish intoxication. Thus, the trial court could have

reasonably concluded that the State’s need for the evidence weighed in favor of admissibility.

C.     Potential to Impress the Jury

       The first counterfactor asks whether the evidence has the potential to impress the jury in an

irrational way or suggest a decision on an improper basis. Gigliobianco, 210 S.W.3d at 641. “Rule

403 does not exclude all prejudicial evidence.” Mechler, 153 S.W.3d at 440. Instead, the focus is

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on whether the evidence is “unfairly prejudicial”; that is, whether it has a “tendency to tempt the

jury into finding guilt on grounds apart from proof of the offense charged.” Id.; Franco, 180 S.W.3d

at 225. Here, defendant argues that admitting the results of her blood draws, which were below the

legal limit, “would invite the jury to conduct its own extrapolation because there is no other evidence

of intoxication that the State would present.” The Texas Court of Criminal Appeals has rejected this

argument. Franco, 180 S.W.3d at 225 (citing to Stewart v. State, 129 S.W.3d 93, 97 (Tex. Crim.

App. 2004)). The results showing defendant consumed alcohol “relate[ ] directly to the charged

offense.” Mechler, 153 S.W.3d at 440-41. Thus, the trial court could have reasonably concluded

that this factor weighs in favor of admissibility, and against defendant.

D.     Confusion of Issues

       The second counterfactor refers to a tendency to confuse or distract the jury from the main

issues in the case. Gigliobianco, 210 S.W.3d at 641. “Evidence that consumes an inordinate amount

of time to present or answer, for example, might tend to confuse or distract the jury from the main

issues.” Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007). Here, defendant was charged

with intoxication manslaughter and intoxication assault. “Because the [blood draw] results relate

directly to the charged offense, a jury could not be distracted away from the charged offense

regardless of the required time to present the results.” Mechler, 153 S.W.3d at 441. Therefore, the

trial court could have reasonably concluded that this factor weighs in favor of admissibility, and

against defendant.

E.     Misleading the Jury & Undue Delay

       “Misleading the jury,” refers to a tendency of an item of evidence to be given undue weight

by the jury that has not been equipped to evaluate the probative force of the evidence. “For example,

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‘scientific’ evidence might mislead a jury that is not properly equipped to judge the probative force

of the evidence.” Gigliobianco, 210 S.W.3d at 641. “Undue delay” and “needless presentation of

cumulative evidence” focus on the likelihood that presentation of the evidence will consume an

inordinate amount of time or merely repeat evidence already admitted, and “concern[s] the efficiency

of the trial proceeding rather than the threat of an inaccurate decision.” Id. On appeal, defendant

does not mention these factors, nor argue they weigh against admissibility. Therefore, these factors

should be considered as weighing in favor of admissibility.

F.     Conclusion

       Considering all of the factors involved in the Rule 403 analysis, we conclude the trial court

could have reasonably concluded that the probative value of the blood test results was not

substantially outweighed by the danger of unfair prejudice. Accordingly, the trial court did not abuse

its discretion in allowing the results into evidence.

                              RETROGRADE EXTRAPOLATION

       In her fourth issue, defendant asserts the State’s expert opinion on retrograde extrapolation

was not reliable because the State’s expert, Rod McCutcheon, assumed certain facts in the case and

then applied the science of retrograde extrapolation to his assumptions. Defendant does not assert

McCutcheon was not qualified to perform retrograde extrapolation; she complains only that

McCutcheon could not reliably apply the technique in her trial. Defendant contends McCutcheon

had limited knowledge of defendant’s individual characteristics, he did not know the manner in

which the medical blood draw was analyzed, and his assumptions concerning whether defendant was

in the absorption or elimination phase resulted in his opinion being unreliable.




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       “[T]he science of retrograde extrapolation can be reliable in a given case.” Mata v. State,

46 S.W.3d 902, 916 (Tex. Crim. App. 2001). “The expert’s ability to apply the science and explain

it with clarity to the court is a paramount consideration.” Id. “In addition, the expert must

demonstrate some understanding of the difficulties associated with a retrograde extrapolation. He

must demonstrate an awareness of the subtleties of the science and the risks inherent in any

extrapolation. Finally, he must be able to clearly and consistently apply the science.” Id.

       When evaluating the reliability of a retrograde extrapolation, courts should also 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 if so to what extent, any individual

characteristics of the defendant were known to the expert in providing his extrapolation. Id. “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 drinking spree, the time

of the last drink, and how much and what the person had to eat either before, during, or after the

drinking.” Id.

       However, “not every single personal fact about the defendant must be known to the expert

in order to produce an extrapolation with the appropriate level of reliability.” Id. If this were the

case, no valid extrapolation could ever occur without the defendant’s cooperation because many facts

essential to the process are known only to the defendant. Id. “If the State had more than one test,

each test a reasonable length of time apart, and the first test was conducted within a reasonable time

from the time of the offense, then an expert could potentially create a reliable estimate of the

defendant’s BAC with limited knowledge of personal characteristics and behaviors.” Id. “In

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contrast, a single test conducted some time after the offense could result in a reliable extrapolation

only if the expert had knowledge of many personal characteristics and behaviors of the defendant.

Somewhere in the middle might fall a case in which there was a single test a reasonable length of

time from the driving, and two or three personal characteristics of the defendant were known to the

expert.” Id. 916-17. “Suffice it to say that the factors must be balanced.” Id. at 917.

        McCutcheon, who is the chief toxicologist for the Bexar County Medical Examiner’s Office,

was able to explain retrograde extrapolation with sufficient clarity. He first explained the science

of retrograde extrapolation as measuring the amount of alcohol in a person’s blood at different times

to determine a person’s blood alcohol content at a past point in time. McCutcheon explained that

alcohol consumed orally goes into the stomach, is absorbed into the blood stream, and then is

distributed throughout the body. McCutcheon next explained that if blood concentration increases

from one draw to the next, the body is absorbing the alcohol; however, if the concentration

decreases, the body is eliminating the alcohol. McCutcheon also acknowledged the difficulties

associated with retrograde extrapolation. He agreed that if only one blood draw was taken, blood

concentration alone would be insufficient and additional information would be needed to determine

whether a person was in the absorption phase or elimination phase. However, he stated multiple

blood tests would indicate the rate at which a person metabolized the alcohol. When asked what he

could determine from three blood tests, McCutcheon stated:

               Well, if you know when the blood was taken for each of those, then you can
       use that information as of what the alcohol concentration was at the three different
       times and see if there’s a trend. And if there is a trend that shows that the alcohol
       concentration is being reduced over time, you can calculate the rate of elimination,
       or the rate of reduction.
                                             ...



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              You could calculate their rate of elimination, and then apply that to the time
       frame between when the blood was taken and when the accident happened.

       When asked whether “any kind of general numbers [were needed] to do that mathematical

equation” “when you have only one blood test, and when there’s an attempt to extrapolate

backwards,” McCutcheon answered:

               Yes. And what you’re using is the range and rate of elimination that’s been
       determined through many studies with alcohol to see what somebody that
       metabolizes at a slow rate would be. You have to use a range to estimate what
       somebody would have been [at] a previous time, because you don’t know what their
       particular rate of elimination is.

       We believe this testimony demonstrated McCutcheon had an understanding of the difficulties

associated with a retrograde extrapolation and he was aware of the subtleties of the science and the

risks inherent in any extrapolation.

       McCutcheon’s testimony next focused on the three blood draws taken from defendant. When

asked for the result of the medical blood draw, McCutcheon responded that it was 120 milligrams

per deciliter. When the State pointed out that this measurement was different from the legal

definition of intoxication in Texas as being above .08, McCutcheon agreed that this measurement

was “a different set of units in how to express the [blood alcohol content] measurement.” Because

a medical draw tests serum blood, as opposed to whole blood, McCutcheon explained the difference

as follows:

                They do test serum or plasma in almost all cases in a hospital, because it’s
       done on a clinical analyzer that requires that type of specimen . . . [and] traditionally
       they’ve used milligrams per deciliter, which is a hundred milliliters. So they’re using
       milliliters instead of grams to express how much alcohol is present.
                                              ...




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                If it is done on plasma or serum, the plasma and serum are essentially water,
       so the alcohol is going to be in the water, not in the cellular material, or very little of
       it is. So what happens is, you have a higher concentration in that serum and plasma,
       because the alcohol doesn’t go into the blood cells, and so it’s not distributed
       throughout the total volume like you would if you did a whole blood concentration.
                                               ...

              So you have to do a conversion from serum plasma to whole blood to get the
       equivalent of what you would have if you did a whole blood analysis.

       When asked if there was a mathematical formula that could be applied to the 120 milligrams

in order to convert it to whole blood for the purpose of showing the alcohol content in whole blood,

McCutcheon explained that serum plasma concentration is approximately eighteen percent higher,

and based on that percentage, he calculated that the whole blood alcohol concentration for defendant

would convert to 0.102. McCutcheon acknowledged there were various studies on the average rate

of absorption, and studies of social drinkers indicated a range of 0.015 and 0.02, and he used 0.018

percent per hour. McCutcheon explained a range was necessary when you had only one test, because

with only one test the individual’s rate of elimination was unknown. But in a case with three

separate tests, the person’s rate of elimination could be calculated.

       Based on the BAC results of the three draws taken from defendant, McCutcheon testified that

defendant was in the elimination phase from the medical draw until the “first legal” draw, and

between the “first legal” draw and the “second legal” draw. McCutcheon stated that multiple blood

draws make it possible to calculate the rate at which a person is eliminating alcohol, and provided

a more definitive rate of elimination. Based on defendant’s rate of elimination taken from the three

blood tests, McCutcheon opined that, if she “was in the post absorptive or elimination phase at the

time of the incident,” her BAC range would be .10 to .12 at 9:37 p.m.




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       On cross-examination, McCutcheon admitted he did not know when defendant entered the

post absorptive phase or how many drinks she had consumed, although he thought he remembered

being told she had consumed alcohol over a period of four to five hours before leaving the bar at

approximately 8:44 p.m. McCutcheon also conceded defendant could have had a higher BAC at the

time she was driving than at the time of the “first legal” draw; she could have had a lower BAC at

the time she was driving than at the time of the “first legal” draw; and her BAC could have been the

same both at the time she was driving and at the time of the “first legal” draw. Finally, he conceded

it was “theoretically possible” that defendant “was almost alcohol free around 9:00 p.m. that night,

and by 10:00 p.m. her alcohol level could have rose [sic] to a .10.” Although McCutcheon did not

have any information specific to defendant’s characteristics or behavior, he said knowing these facts

would not change his opinion about her BAC at the time of the incident. Instead, defendant’s

characteristics “would be a factor on how much she would have had to consume to get to that

concentration.”

       In Mata, the Court of Criminal Appeals found that the retrograde analysis was unreliable

because the inconsistencies in the expert’s testimony prevented him from explaining the science with

any clarity, there was only one test of Mata’s BAC, which occurred over two hours after the alleged

offense, and the expert did not know one single personal characteristic of Mata. Mata, 46 S.W.3d

at 917. The State’s expert apparently contradicted himself on the length of the absorption phase,

Mata’s probable BAC at the time of the stop, the number of drinks needed to increase from below

a .10 to a .19 BAC, and the average elimination rate. Id. at 915. The absence of multiple tests,

widely separated in time, removed a critical factor from the retrograde extrapolation analysis

testimony introduced at trial. Id. at 917. Here, as in Mata, McCutcheon did not know any

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significant characteristics about defendant. However, unlike in Mata, McCutcheon had three tests

over a reasonable span of time on which to base his opinion. The medical draw occurred ninety

minutes after the incident, the “first legal” draw occurred seventy-five minutes later, and the “second

legal” draw occurred about two hours later. On appeal, defendant does not contend the medical

blood draw was taken an unreasonable amount of time after the incident.2 Although McCutcheon’s

testimony may have contained some inconsistencies, none were as glaring as in Mata. Based on the

record as a whole, we cannot conclude the trial court’s decision was outside the reasonable zone of

disagreement; therefore, the trial court did not abuse its discretion in determining McCutcheon’s

opinion was reliable.

                  OTHER COMPLAINTS REGARDING THE BLOOD DRAWS

         In her fifth issue, defendant asserts the medical blood draw should have been suppressed

because it was not taken by a person qualified to do so under Transportation Code section 724.017.

Although defendant concedes a medical blood draw is not required to meet the standards set forth

in section 724.017, she argues that section 724.017’s requirements are necessary to ensure the

reliability of results from any draw if those results are to be used against a criminal defendant,

including medical blood draws. In her sixth and final issue, defendant asserts the medical blood

draw and the “first legal” blood draw were taken without her consent and, therefore, constituted an

assault. Our review of the record reveals that when the trial court and counsel began a discussion



         2
          … See Mata, 46 S.W .3d at 916 (“If the State had more than one test, each test a reasonable length of time
apart, and the first test was conducted within a reasonable time from the time of the offense, then an expert could
potentially create a reliable estimate of the defendant’s BAC with limited knowledge of personal characteristics and
behaviors.”); Owens v. State, 135 S.W .3d 302, 309 n.3 (Tex. App.— Houston [14th Dist.] 2004, no pet.) (“One of the
indisputable concepts in retrograde extrapolation is that multiple tests – the more time between the tests the better – allow
the expert to determine whether a person is absorbing or eliminating alcohol, and thereby more accurately and reliably
determine that person’s BAC at the time of the offense.”).

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of these two objections, the court stated, “So we’ll just reserve the medical issue until . . . the week

of trial.” The objections to the medical draw were not again raised. The assault complaint also was

not pursued to a ruling. Therefore, defendant’s fifth and sixth issues were not preserved for review.

                                          CONCLUSION

        We overrule defendant’s issues on appeal and affirm the trial court’s judgment.



                                                         Sandee Bryan Marion, Justice



PUBLISH




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