                                                                               PD-1078-15
                                                              COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                            Transmitted 8/18/2015 12:14:46 PM
                                                              Accepted 8/20/2015 11:29:38 AM
                       No.____________                                         ABEL ACOSTA
                                                                                       CLERK

                                In the
                      Court of Criminal Appeals

                     
                         No. 14-14-00057-CR
In the Court of Appeals for the Fourteenth District of Texas at Houston
                     
                             No. 1892229
  In the County Criminal Court at Law No. 2 of Harris County, Texas
                     

                  LUIS ENRIQUE VELIZ
                              Appellant
                                 V.
                  THE STATE OF TEXAS
                               Appellee

                      
STATE’S PETITION FOR DISCRETIONARY REVIEW
                      

                                              DEVON ANDERSON
                                              District Attorney
                                              Harris County, Texas

                                              ERIC KUGLER
                                              Assistant District Attorney
                                              Harris County, Texas
                                              TBC No. 796910

                                              1201 Franklin, Suite 600
                                              Houston, Texas 77002
                                              Tel.: 713-755-5826
                                              FAX: 713-755-5809

                                              Counsel for Appellee

                 ORAL ARGUMENT REQUESTED
               IDENTITY OF JUDGE, PARTIES, AND COUNSEL


Counsel for the State:

      Devon Anderson  District Attorney of Harris County

      Eric Kugler  Assistant District Attorney on appeal

      Rishabh Godha; Lindsey Vanik  Assistant District Attorneys at trial

Appellant or criminal defendant:

      Luis Enrique Veliz

Counsel for Appellant:

      Carmen Roe  Counsel on appeal
      440 Louisiana, Suite 900; Houston, Texas 77002

      Jeffrey Greco  Counsel at trial and on appeal
      701 N Post Oak Rd #425; Houston, TX 77024

      Oliver King  Counsel at trial and on appeal
      77 Sugar Creek Center Blvd Suite #230, Sugar Land, TX 77478

Trial Judge:

      Hon. William T. Harmon  Presiding Judge




                                       i
                                        TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL...............................................i

INDEX OF AUTHORITIES .................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT ................................................. v

STATEMENT OF THE CASE..................................................................................vi

STATEMENT OF PROCEDURAL HISTORY ........................................................vi

STATEMENT OF FACTS ......................................................................................... 1

GROUNDS FOR REVIEW ....................................................................................... 2

   A. The lower court erred in holding that an expert witness’s answer to the
   question, “do you have an opinion as to whether the defendant was intoxicated at
   the time of driving,” did not constitute retrograde extrapolation...........................2

   B. The lower court erred in reversing the trial court’s admission of retrograde
   extrapolation testimony where the expert witness allowed two hours to run from
   the time of driving before starting to calculate the elimination phase and used a
   0.01 elimination rate for the bottom range. ............................................................2

   C. The lower court erred in finding the admission of extrapolation testimony
   harmful where other extrapolation testimony was admitted without objection and
   where the appellant was still over the legal limit three and one-half hours after
   driving dangerously. ...............................................................................................2

ARGUMENT ............................................................................................................. 2

PRAYER FOR RELIEF ........................................................................................... 16

CERTIFICATE OF SERVICE AND COMPLIANCE............................................. 17




                                                           ii
                                   INDEX OF AUTHORITIES


CASES

Bagheri v. State,
  119 S.W.3d 755 (Tex. Crim. App. 2003) ..............................................................12

Bagheri v. State,
  87 S.W.3d 657 (Tex. App.—
  \San Antonio 2002), aff'd,
  119 S.W.3d 755 (Tex. Crim. App. 2003) ..............................................................14

Bhakta v. State,
  124 S.W.3d 738 (Tex. App.—
  Houston [1st Dist.] 2003, pet. ref’d) ....................................................................10

Ethington v. State,
  819 S.W.2d 854 (Tex. Crim. App. 1991) ................................................................7

Guzman v. State,
 955 S.W.2d 85 (Tex. Crim. App. 1997) ..................................................................6

Lane v. State,
  151 S.W.3d 188 (Tex. Crim. App. 2004) ................................................................6

Martinez v. State,
 22 S.W.3d 504 (Tex. Crim. App. 2000) ..................................................................6

Mata v. State,
 46 S.W.3d 902 (Tex. Crim. App. 2001) ..................................................... 6, 7, 8, 9

Morris v. State,
 214 S.W.3d 159 (Tex. App.—
 Beaumont 2007), aff’d,
 301 S.W.3d 281 (Tex. Crim. App. 2009) ....................................................... 10, 13

Motilla v. State,
 78 S.W.3d 352 (Tex. Crim. App. 2002) ................................................................12




                                                     iii
Owens v. State,
 135 S.W.3d 302 (Tex. App.—
 Houston [14th Dist.] 2004, no pet.)......................................................................14

Valle v. State,
  109 S.W.3d 500 (Tex. Crim. App. 2003) ................................................................6

Veliz v. State,
  14-14-00057-CR (Tex. App.—
  Houston [14th Dist.] August 18, 2015, pet. filed) ...................................... vi, 7, 10




RULES

TEX. R. APP. P. 33.1 ....................................................................................................6

TEX. R. APP. P. 44.2(b) ..............................................................................................12

TEX. R. APP. P. 66.3 ....................................................................................................2

TEX. R. APP. P. 68.2 .................................................................................................. vi

TEX. R. APP. P. 68.4 (c) ...............................................................................................v

TEX. R. EVID. 103(a) ........................................................................................... 6, 12




                                                           iv
               STATEMENT REGARDING ORAL ARGUMENT

      Pursuant to TEX. R. APP. P. 68.4 (c), the State requests oral argument because

the fact-finding by the court of appeals played a decisive role in the outcome of

this case, and an oral argument may help to further clarify the factual issues.




                                          v
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:


                          STATEMENT OF THE CASE

      The appellant was charged with driving while intoxicated (CR – 8). He pled

“not guilty,” but the jury found him guilty, and the court thereafter sentenced him

to three days in jail (CR – 120).




                 STATEMENT OF PROCEDURAL HISTORY

      The appellant appealed, and the court of appeals reversed the conviction,

finding that the trial court erred in admitting retrograde extrapolation testimony

and that the appellant was harmed by such admission. Veliz v. State, 14-14-00057-

CR (Tex. App.—Houston [14th Dist.] August 18, 2015, pet. filed) (attached as

Appendix A). No motion for rehearing was filed because the opinion of the lower

court was unanimous. This petition for discretionary review is timely if filed on or

before September 17, 2015. TEX. R. APP. P. 68.2.




                                         vi
                             STATEMENT OF FACTS

      Around midnight on April 26, 2013, Joel Quezada with the Houston Police

Department’s (HPD) DWI Task Force was on patrol with his partner when they

saw the appellant driving a pickup truck (RR. III – 15-16). The appellant was on

the Eastex Freeway, his pickup had a broken taillight, and his headlights were off

(RR. III – 18-19). He was also drifting into the other lanes of traffic without

signaling, and there were other vehicles on the freeway, which caused a safety

concern (RR. III – 18). Quezada turned on his emergency lights, and the appellant

pulled over to the side of the road (RR. III – 19).

      As Quezada approached the appellant, he noticed the odor of alcohol coming

from the appellant’s pickup (RR. III – 20). The appellant had slurred speech and

red glassy eyes (RR. III – 20). He admitted to drinking the ubiquitous “two beers.”

(RR. III – 21). The appellant performed some field sobriety tests and showed

numerous signs of intoxication (RR. III – 22-38). He refused to provide a sample

of his breath despite being warned that such a refusal could result in a suspended

driver’s license (RR. III – 40-44). Quezada then obtained a search warrant for the

appellant’s blood, which was drawn at 3:32 a.m., more than three hours after the

stop (RR. III – 44, 48) (RR. IV – 10). A laboratory analysis showed that the

appellant’s alcohol concentration was 0.81, which was above the legal limit and

would have been so at the time of driving (RR. IV – 41-46, 62, 72).
                           GROUNDS FOR REVIEW

      A.    The lower court erred in holding that an expert witness’s
            answer to the question, “do you have an opinion as to
            whether the defendant was intoxicated at the time of
            driving,” did not constitute retrograde extrapolation.

      B.    The lower court erred in reversing the trial court’s
            admission of retrograde extrapolation testimony where the
            expert witness allowed two hours to run from the time of
            driving before starting to calculate the elimination phase
            and used a 0.01 elimination rate for the bottom range.

      C.    The lower court erred in finding the admission of
            extrapolation testimony harmful where other extrapolation
            testimony was admitted without objection and where the
            appellant was still over the legal limit three and one-half
            hours after driving dangerously.

                                  ARGUMENT

      This petition for discretionary review should be granted because the analysis

used by the court of appeals has so far departed from the accepted and usual course

of judicial proceedings so as to call for an exercise of this Court’s power of

supervision. TEX. R. APP. P. 66.3. Specifically, the court of appeals found that the

trial court erred in admitting retrograde extrapolation testimony when similar

testimony was admitted without objection, where the trial court could have

believed that the expert sufficiently explained the theory of extrapolation and gave

the appellant every benefit of the doubt, and where the evidence was nevertheless

overwhelming in favor of guilt.




                                         2
      HPD’s blood analyst, Dwan Wilson, testified during the guilt stage of trial

(RR. IV – 39). She had been with HPD’s crime lab for nearly two years and was

assigned to the toxicology section (RR. IV – 39). She earned a bachelor of science

in toxicology from the University of Louisiana at Monroe and studied inorganic

and organic chemistry as well as instrumental analysis, quantitative analysis, and

biochemistry (RR. IV – 40). Wilson also studied the physical effects of alcohol

upon the human body, which included reading articles and textbooks and attending

the Borkenstein course on alcohol at Indiana University (RR. IV – 47). She was an

associate member of the Society of Forensic Toxicologists and had testified

previously as an expert (RR. IV – 40-41).

      During the State’s examination of Wilson, the appellant asked to question

her outside the presence of the jury (RR. IV – 47-48). Wilson testified that she

was “given information about the time of the stop, if the defendant ate anything,

the weight, the height, the concentration at the time of the test.” (RR. IV – 49).

Wilson also knew the appellant’s gender and that he admitted to having two drinks

(RR. IV – 50). She explained that “[b]ecause you can take the time between the

time of the stop and the time of the blood draw, and since the absorption could take

anywhere from 30 minutes to two hours, if the time was greater than two hours,

you can perform an extrapolation.” (RR. IV – 51).




                                         3
       Wilson testified that extrapolation could be performed even when certain

data are unknown, such as the time of the last drink (RR. IV – 53). She stated that

“retrograde extrapolation is an assumption generally accepted by the scientific

community. It’s based on assumption. The person being in the elimination phase at

the time of the stop and eliminating at a rate of .01 to .03.” (RR. IV – 57)

(emphasis added). However, she later corrected herself and confirmed that she

assumed that the appellant was still absorbing at 2:05 a.m., more than two hours

after the stop, which would have been the longest possible time for absorption (RR.

IV – 61-62). Thus, the appellant received the greatest benefit of the doubt (RR. IV

– 62). At the end of the hearing, the appellant asked for a “limine instruction to

say, look, this is all predicated upon an assumption.” (RR. IV – 68). But the

appellant never obtained a ruling on his motion to suppress during that hearing,

and the jury was returned to continue the trial (RR. IV – 68).

       Near the conclusion of Wilson’s testimony before the jury, the appellant

objected “to the 702, 703 and the relevance,” and the trial court overruled the

objection (RR. IV – 71). The appellant also objected “under 702, 703, and her lack

of being an expert in pharmacodynamics, analytical chemistry and all the other

areas of expertise that one would need to be able to do this without missing data

we discussed.” (RR. IV – 73). The trial court overruled that objection (RR. IV –

73).



                                          4
       Wilson testified that, based on two assumptions “that the individual is in the

elimination phase and eliminates that of a normal rate of .01 to a .03 grams per one

hundred liters of blood [that the] alcohol concentration at the time of the stop can

range from a .095 to a 0124.” (RR. IV – 72).1 The following exchange then

occurred:

       Q.      So based on your experience and training and the results of this
               blood test, do you have an opinion as to whether the defendant
               was intoxicated at the time of driving?

       A.      Yes.

       Q.      What is that opinion?

       A.      The opinion is that the result given in the case which was, it
               was a .081 grams per one hundred milliliters of blood.

(RR. IV – 74). The appellant did not object to this testimony regarding whether

the appellant was intoxicated at the time of driving.




1
  The mathematical calculations are done in detail in Section B. Wilson assumed the greatest
period of time for the absorption phase, two hours, which meant that the appellant was presumed
to not enter the elimination phase until 2:05 a.m., two hours after the traffic stop (RR. IV – 61-
62). The blood draw was at 3:32 a.m., which meant that giving the appellant the greatest benefit
of the doubt, he was in the elimination phase for 87 minutes prior to the blood draw. Applying a
range of elimination rates from 0.01 to 0.03 per hour meant that the appellant’s blood alcohol
level dropped from 0.015 to 0.045 during those 87 minutes (RR. IV – 72). See also Morris v.
State, 214 S.W.3d 159, 179 (Tex. App.—Beaumont 2007), aff’d, 301 S.W.3d 281 (Tex. Crim.
App. 2009) (“Merkord used a 0.015 elimination rate, the lower of the range of normals.”). And
adding the calculated drop range to the 0.081 test result gave an extrapolated range of “a .095 to
a 0124.” (RR. IV – 72). Thus, Wilson’s calculations truly did give the appellant every benefit of
the doubt. If Wilson had assumed that the appellant was in the elimination phase at the time of
the stop, her extrapolation range would have been 0.136 to 0.186, which is much higher than
Wilson’s calculations at trial.

                                                5
      A trial court’s ruling on the admission of extrapolation evidence is reviewed

for abuse of discretion. Mata v. State, 46 S.W.3d 902, 908 (Tex. Crim. App. 2001).

The reviewing court must view the evidence in the light most favorable to the trial

court’s ruling, giving the trial court almost total deference on its findings of

historical fact that find support in the record. Guzman v. State, 955 S.W.2d 85, 89

(Tex. Crim. App. 1997).

      If a defendant claims on appeal that the trial judge erred in admitting

evidence offered by the State, this error must have been preserved by a proper

objection and an adverse ruling on that objection. TEX. R. APP. P. 33.1; TEX. R.

EVID. 103(a). The purpose of requiring an objection is to give the trial court or the

opposing party the opportunity to correct the error or remove the basis for the

objection. Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim. App. 2000). “[T]o

preserve error in admitting evidence, a party must…object each time the

inadmissible evidence is offered or obtain a running objection. An error [if any] in

the admission of evidence is cured where the same evidence comes in elsewhere

without objection.” Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004)

(quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)).

      In the present case, the appellant objected the first time that Wilson testified

regarding the appellant’s level of alcohol concentration at the time of driving (RR.

IV – 72). But the appellant completely failed to object when Wilson later stated



                                          6
that the appellant’s intoxication “at the time of driving” was “the result given in the

case which was, it was a .081 grams per one hundred milliliters of blood.” (RR. IV

– 74).   Therefore, the appellant waived any error regarding the admission of

extrapolation testimony. See Ethington v. State, 819 S.W.2d 854, 858 (Tex. Crim.

App. 1991) (“[I]t is well settled that an error in admission of evidence is cured

where the same evidence comes in elsewhere without objection; defense counsel

must object every time allegedly inadmissible evidence is offered.”).

      The court of appeals held that Wilson’s “testimony is not retrograde

extrapolation testimony because Wilson did not answer the question the prosecutor

asked.” Veliz, slip op. at 4.    But if the appellant thought that it was a non-

responsive answer, he should have objected on that basis at trial. According to this

Court, retrograde extrapolation is the “computation back in time of the blood-

alcohol level—that is, the estimation of the level at the time of driving based on a

test result from some later time.” Mata, 46 S.W.3d at 908–09. And if the trial

court believed, as the finder of fact, that Wilson was answering the question of

whether the defendant was intoxicated at the time of driving, then Wilson’s

testimony constituted retrograde extrapolation.         Wilson’s first opinion on

extrapolation gave a possible range, 0.095 to 0.124 (RR. IV – 72). And her second

opinion on extrapolation merely expanded that range down to 0.081, which was

still above the legal limit. The appellant did not object to that second opinion on



                                          7
retrograde extrapolation, and therefore, should not have been able to challenge its

admission on appeal. The lower court of appeals erred in holding otherwise.

      Even if the appellant had properly preserved his appellate complaint, the

trial court did not abuse its discretion in admitting the extrapolation testimony. In

Mata, this Court instructed how to evaluate the reliability of retrograde

extrapolation testimony. After reviewing the scientific literature published prior to

2001 and the positions taken by courts in other jurisdictions, the Mata Court

concluded that “the science of retrograde extrapolation can be reliable in a given

case,” but cautioned that the “expert’s ability to apply the science and explain it

with clarity to the court is a paramount consideration.” Id., 46 S.W.3d at 916.

      The Mata court formulated a detailed test to determine whether the reliable

theory and technique had been properly applied in a given case. It required a

recognition of the subtleties of the science and the risks inherent in any

extrapolation and a consideration of: (a) the length of time between the offense and

the test(s) administered; (b) the number of tests given and the length of time

between each test; and (c) whether, and if so, to what extent, any individual

characteristics of the defendant were known to the expert in providing his

extrapolation. Id.   Individual characteristics include 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



                                          8
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. This Court

refused to set out an exact blueprint for reliability in every case, but stated simply

that the above factors must be “balanced.” Id., 46 S.W.3d at 916-17.

      The only unresolved issue with regard to the admission of retrograde

extrapolation evidence is whether the technique was properly applied in a given

case. And the expert in Mata fell short of the mark. In Mata, the breath test

technical supervisor testified that he did not know how much Mata weighed, how

much Mata had to eat or drink before taking the breath test, or when Mata took his

last drink. Mata, 46 S.W.3d at 905. The technical supervisor acknowledged that he

did not know when Mata began drinking or when he stopped. Id., 46 S.W.3d at

906. The technical supervisor based his testimony in Mata on a “normal” or

“average” person and “normal drinking patterns,” with a 0.02 elimination rate. Id.,

46 S.W.3d at 905, 906.

      In the present case, there were sufficient known factors to allow for a rough

extrapolation, and the technique was properly applied. Wilson knew the time of

the stop, whether the appellant ate anything, the appellant’s weight, his height, his

gender, and the fact that the appellant admitted to having two drinks (RR. IV – 49-

50). Thus, there was evidence concerning the majority of the factors listed in the

Mata test. Whether or not to admit this expert testimony fell within a zone of



                                          9
reasonable disagreement, and the trial court in the present case did not abuse its

discretion in admitting that testimony. See Bhakta v. State, 124 S.W.3d 738, 742

(Tex. App.—Houston [1st Dist.] 2003, pet. ref’d) (allowing extrapolation when

expert knew time of last drink, weight and height, time of breath tests, results of

breath tests, last meal, and time of last meal).

      The court of appeals claimed that the expert witness “contradicted herself,

undermining the assertion that she had given appellant every benefit of the doubt.”

Veliz, slip op. at 10. But a simple mathematical calculation, as provided by the

State, demonstrated to the lower court that Wilson had in fact given the appellant

every benefit of the doubt. Wilson assumed the greatest period of time for the

absorption phase, two hours, which meant that the appellant was presumed to not

enter the elimination phase until 2:05 a.m., more than two hours after the traffic

stop (RR. IV – 61-62). The blood draw was at 3:32 a.m., which meant that, giving

the appellant the greatest benefit of the doubt, he was in the elimination phase for

87 minutes prior to the blood draw. Applying a range of elimination rates from

0.01 to 0.03 per hour meant that the appellant’s blood alcohol level dropped from

0.0145 to 0.0435 during those 87 minutes (RR. IV – 72). Thus, the lower range

used by Wilson also gave the appellant the benefit of the doubt. See Morris v. State,

214 S.W.3d 159, 179 (Tex. App.—Beaumont 2007), aff’d, 301 S.W.3d 281 (Tex.

Crim. App. 2009) (“Merkord used a 0.015 elimination rate, the lower of the range



                                           10
of normals.”).   And adding the calculated drop range to the 0.081 test result gave

an extrapolated range of roughly “a .095 to a 0124.” (RR. IV – 72). Such simple

calculations can be further illustrated as:


  02:05 (time used by Wilson)                    00:00 (approximate time of stop)
– 03:32 (time of blood draw)                   – 03:32 (time of blood draw
= 87 minutes                                   = 212 minutes
/ 60 minutes                                   / 60 minutes
= 1.45 hours                                   = 3.53 hours


                              0.01 elimination rate         0.03 elimination rate

1.45 hour                       1.45                          1.45
extrapolation period          X 0.01                        X 0.03
(range used by Wilson)        = 0.0145                      = 0.0435

                                0.081 (test result)           0.081 (test result)
                              + 0.0145                      + 0.0435
                              = 0.0955                      = 0.1245

3.53 hour                       3.53                          3.53
extrapolation period          X 0.01                        X 0.03
(actual time)                 = 0.0353                      = 0.1059

                                0.081 (test result)           0.081 (test result)
                              + 0.0353                      + 0.1059
                              = 0.1163                      = 0.1869


Thus, Wilson’s calculations truly did give the appellant every benefit of the doubt.

If Wilson had assumed that the appellant was in the elimination phase at the time

of the stop, her extrapolation range would have been 0.1163 to 0.1869, which is

much higher than Wilson’s calculations at trial.


                                              11
      Even if the trial court abused its discretion in admitting the extrapolation

testimony, the admission was harmless. The erroneous admission of retrograde

extrapolation testimony is considered non-constitutional error. Bagheri v. State, 119

S.W.3d 755, 762-63 (Tex. Crim. App. 2003). Therefore, the lower court should

have disregarded any such error unless it affected the appellant’s substantial rights.

TEX. R. APP. P. 44.2(b); TEX. R. EVID. 103(a). It should also have considered the

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

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

at 763; Motilla, 78 S.W.3d at 355-56.

      The weight of the evidence of the defendant’s guilt is a relevant factor in

conducting a harm analysis under Rule 44.2(b). Motilla, 78 S.W.3d at 360. In the

present case, evidence of the appellant’s guilt was overwhelming. He had lost his

mental faculties to the extent that he forgot to turn on his headlights at midnight

and was drifting into other lanes of traffic with other vehicles on the freeway (RR.

III – 18-19). He had also lost his physical faculties to the extent that he was

slurring his speech and showed numerous signs of intoxication in the field sobriety

tests, including swaying and using his arms for balance against the vehicle (RR. III

– 22-38, 76). More than three and one-half hours after the traffic stop, his breath

alcohol level was still over the legal limit (RR. III – 44, 48) (RR. IV – 10) (St. Ex.




                                         12
7). The evidence of the appellant’s guilt was more than sufficient even if the

extrapolation evidence had been excluded.

       Another relevant factor is “the character of the alleged error and how it

might be considered in connection with other evidence in the case.” Id., 78 S.W.3d

at 359 (quoting Morales, 32 S.W.3d at 867). In the present case, the objected-to

testimony was not a definite opinion on the appellant’s actual blood alcohol level at

the time of the traffic stop; rather, Wilson merely gave a possible range (RR. III –

62, 72). Moreover, Wilson later testified without objection that the appellant’s

intoxication “at the time of driving” was “the result given in the case which was, it

was a .081 grams per one hundred milliliters of blood.” (RR. IV – 74). Finally, as

stated previously, Wilson’s anaylsis gave the appellant every benefit of the doubt

by using a two-hour window for absorption, which is the greatest period of time for

the absorption phase, and by using a rate of elimination of 0.01, which is far below

even “the lower of the range of normals.” (RR. IV – 62). Morris, 214 S.W.3d at

179.   In light of all the other evidence of intoxication, the admission of the

extrapolation testimony could not have had more than a slight effect in determining

the jury’s verdict.

       The court of appeals held that the extrapolation was harmful in part because

“the defendant in Bagheri had intoxilyzer results demonstrating a blood alcohol

concentration greater than .10 and there was additional non-scientific evidence of



                                         13
the defendant’s intoxication, yet the court held that the erroneous admission of

retrograde extrapolation evidence was harmful.” But applicable law in Bagheri

defined intoxication as having an alcohol concentration of 0.10 or more. See

Bagheri v. State, 87 S.W.3d 657, 659 (Tex. App.—San Antonio 2002), aff'd, 119

S.W.3d 755 (Tex. Crim. App. 2003) (“…a person is deemed to be intoxicated while

driving within the meaning of the law if: …he has an alcohol concentration of 0.10

percent or more.”). Thus, it was not as if the actual results were a full two

percentage points over the legal limit in Bagheri and this Court nevertheless held

the admission of such evidence to be harmful. Rather, the actual results were

apparently just 0.007 over the legal limit. Bagheri, 119 S.W.3d at 758-759.

Moreover, the expert in Bagheri either assumed no absorption phase or a very short

absorption phase when he calculated the defendant’s level to be between 0.107 and

0.143 just one hour after driving. Id., 119 S.W.3d at 759. It certainly could not

have been the two-hour absorption phase used by Wilson in the present case. Thus,

Bagheri does not control the result in the present case.

      The lower court of appeals also cited Owens v. State, 135 S.W.3d 302, 310

(Tex. App.—Houston [14th Dist.] 2004, no pet.), in support of its harm analysis.

Veliz, slip op. at 14-15. But in Owens, the expert witness used 0.03 and 0.022 as


2
 While the expert in Owens testified that he was using a 0.03 elimination rate, a
check with simple mathematics shows that he was actually using a 0.02 elimination
rate. Owens, 135 S.W.3d at 308.

                                         14
the elimination rates, which are both far higher than the lowest rate used by

Wilson, which was 0.10. Owens, 135 S.W.3d at 308. Furthermore, the expert in

Owens did not allow any time for absorption. Id. But most importantly, the

defendant in Owens was out of custody for one and one-half hours between the

time of the crash and the breath test during which he could have been consuming

vast amounts of alcohol. Id. Thus, Owens has nothing to do with the facts of this

case.

        The admission of the extrapolation testimony in the present case was not

preserved for appellate review, the trial court did not abuse its discretion in

admitting that evidence, and its admission was harmless. Therefore, this Court

should grant review and correct the errors of the lower court of appeals.




                                         15
                             PRAYER FOR RELIEF

      It is respectfully requested that this petition should be granted and that the

opinion of the court of appeals should be reversed.

                                                DEVON ANDERSON
                                                District Attorney
                                                Harris County, Texas

                                                /s/ Eric Kugler
                                                ERIC KUGLER
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                kugler_eric@dao.hctx.net
                                                TBC No. 796910




                                        16
             CERTIFICATE OF SERVICE AND COMPLIANCE

        This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 3,504 words in the relevant
sections; and (b) a copy of the foregoing instrument will be served by
efile.txcourts.gov to:

      Carmen Roe                          Lisa McMinn
      Attorney at Law                     State Prosecuting Attorney
      440 Louisiana, Suite 900            P.O. Box 13046
      Houston, Texas 77002                Austin, Texas 78711
      carmen@carmenroe.com


                                                /s/ Eric Kugler
                                                ERIC KUGLER
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002
                                                (713) 755-5826
                                                TBC No. 796910

Date: August 18, 2015




                                        17
18
                         Appendix A

                      Veliz v. State,
                    14-14-00057-CR
(Tex. App.—Houston [14th Dist.] August 18, 2015, pet. filed)))
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
