                                                                                      PD-0929-15
                            PD-0929-15                               COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                   Transmitted 7/23/2015 11:47:13 AM
                                                                     Accepted 7/24/2015 10:52:28 AM
                                PD-________-15                                        ABEL ACOSTA
                                                                                              CLERK
                  In the Court of Criminal Appeals of Texas
                                   At Austin
                             ♦
                              No. 14-13-00706-CR

                           In the Court of Appeals
                     For the Fourteenth District of Texas
                                 At Houston
                             ♦
                                No. 1836127
                   In County Criminal Court at Law Fifteen
                           Of Harris County, Texas
                             ♦
                                 Joel Navarro
                                   Appellant
July 24, 2015                          v.
                               The State of Texas
                                    Appellee
                             ♦
                State’s Petition for Discretionary Review
                             ♦



    Devon Anderson                                  Clinton A. Morgan
    District Attorney                               Assistant District Attorney
    Harris County, Texas                            Harris County, Texas
                                                    State Bar No. 24071454
    Lauren Clemons                                  morgan_clinton@dao.hctx.net
    Shannon Drehner
                                                    1201 Franklin St., Suite 600
    Assistant District Attorneys
                                                    Houston, Texas 77002
    Harris County, Texas
                                                    Telephone: 713.755.5826




                           Oral Argument Requested
                 Statement Regarding Oral Argument

      The State’s first question for review regards a new burden the

Court of Appeals has placed on trial courts to modify statutory

definitions if the jury might get confused by the statutory text. This is a

far-reaching holding that could apply in numerous situations beyond the

facts of the present case. The State believes the back-and-forth of oral

argument would help this Court explore and understand the

ramifications of the Court of Appeals’s holding.

      The State’s second question for review concerns an incorrect trial

procedure that occurred in this case and seems to occur throughout the

state without the appellate courts noticing. Because of the sheer number

of cases in which this incorrect procedure seems to occur, oral argument

would be appropriate.




                                     i
                         Identification of the Parties

Counsel for the State:

      Devon Anderson
            District Attorney of Harris County

      Lauren Clemons & Shannon Drehner
           — Assistant District Attorneys at trial

      Clinton A. Morgan
             Assistant District Attorney on appeal
               1201 Franklin St.
               Suite 600
               Houston, Texas 77002

Appellant:

      Joel Navarro

Counsel for the Appellant:

      Scott Shearer
            — Counsel at trial and on appeal
               92 Preston, Suite 200
               Houston, Texas 77002

Trial Judge:

      Jean Spradling Hughes
             Presiding judge




                                      ii
                                                Table of Contents

Statement Regarding Oral Argument ................................................. i
Identification of the Parties .............................................................. ii
Table of Contents ................................................................................ iii
Index of Authorities ............................................................................. v
Statement of the Case .......................................................................... 1
Statement of Procedural History ....................................................... 1
Statement of Questions Presented .................................................... 2
Factual and Legal Background
      I. Legal misinterpretations in the trial court complicated what
      should have been an open-and-shut case...................................................... 3
      II. In a published opinion, a divided panel of the court of appeals
      acquitted the appellant of Class A DWI and remanded for a new trial
      on Class B DWI. A dissenter would have acquitted on Class A DWI
      but affirmed the Class B conviction. The State believes the dissenter
      was correct. ................................................................................................................ 5
Question One
   Does a trial court commit error by instructing the jury with a
   statutory definition if the statutory text “has a variable meaning in the
   eyes of the jury,” as the panel majority held? ................................................... 6
      I. The majority used irrelevant case law as a basis to ignore
      binding precedent. .................................................................................................. 7
      II. The majority’s conclusion that a trial court errs to instruct a
      jury using statutory text if that text “has a variable meaning in the
      eyes of the jury” is inconsistent with prior case law. ............................ 10
      III. The majority’s rule puts trial courts in a nearly impossible
      situation of determining when instructing the jury with a non-
      statutory definition is required, and when instructing the jury with
      a non-statutory definition is error. ................................................................ 13




                                                               iii
Question Two
   Is an allegation that elevates a Class B DWI to a Class A DWI (such as a
   prior DWI conviction or an alcohol concentration of 0.15 or greater) a
   punishment enhancement, as the trial court treated it, or an essential
   element of the Class A offense, as the Court of Appeals held? ............... 15
      I. Under Calton, these additional allegations are elements of Class
      A DWI, not punishment enhancements....................................................... 17
      II. The case law shows that it is very common for courts to treat
      these elements as punishment enhancements. ....................................... 18
      III. This practice is never questioned because, procedurally, it is
      almost impossible to raise it on appeal. This Court should grant
      review of this case because it presents an extremely uncommon
      opportunity for this Court to educate the bench and bar on this
      subject. ...................................................................................................................... 21
Conclusion .......................................................................................... 23
Certificate of Compliance and Service ........................................... 24
Appendix A
   Navarro v. State, ___ S.W.3d ___, 14-13-00706-CR, 2015 WL 4103565
   (Tex. App.—Houston [14th Dist.] July 7, 2015) (majority op.)
Appendix B
   Navarro v. State, ___ S.W.3d ___, 14-13-00706-CR, 2015 WL 4103565
   (Tex. App.—Houston [14th Dist.] July 7, 2015) (Frost, C.J., dissenting)




                                                                 iv
                                          Index of Authorities



Cases
Apprendi v. New Jersey
  530 U.S. 466 (2000) ................................................................................................. 17
Calton v. State
  176 S.W.3d 231 (Tex. Crim. App. 2005) .................................................... 17, 18
Casey v. State
  215 S.W.3d 870 (Tex. Crim. App. 2007) ........................................................... 10
Clift v. State
  05-13-00324-CR, 2014 WL 1856842 (Tex. App.—
  Dallas May 7, 2014, no pet.)
  (mem. op. not designated for publication) ..................................................... 20
Couch v. State
  13-13-00389-CR, 2014 WL 585849 (Tex. App.—
  Corpus Christi Feb. 13, 2014, pet. ref’d)
  (mem. op. not designated for publication) ..................................................... 20
Coward v. State
  12-13-00114-CR, 2013 WL 3788162 (Tex. App.—
  Tyler July 17, 2013, no pet.)
  (mem. op. not designated for publication) ..................................................... 20
Dromgoole v. State
  ___ S.W.3d ___, 01-13-00931-CR, 2015 WL 3522990 (Tex. App.—
  Houston [1st Dist.] June 4, 2015, no. pet. h.) ................................................. 18
Flowers v. State
  220 S.W.3d 919 (Tex. Crim. App. 2007) ........................................................... 19
Geesa v. State
  820 S.W.2d 154 (Tex. Crim. App. 1991) ........................................................... 11
Grotti v. State
  273 S.W.3d 273 (Tex. Crim. App. 2008) ........................................................... 12
Haeker v. State
 571 S.W.2d 920 (Tex. Cirm. App. 1978) ......................................................... 7, 8



                                                            v
Kirsch v. State
  357 S.W.3d 645 (Tex. Crim. App. 2012) .................................................... 12, 14
Medford v. State
 13 S.W.3d 769 (Tex. Crim. App. 2000) ................................................................. 8
Middleton v. State
 125 S.W.3d 450 (Tex. Crim. App. 2003) .............................................................. 8
Navarro v. State
 ___ S.W.3d ___, 14-13-00706-CR, 2015 WL 4103565 (Tex. App.—
 Houston [14th Dist.] July 7, 2015) ............................................................ 2, 7, 16
Ouellette v. State
  03-08-00566-CR, 2010 WL 3377774 (Tex. App.—
  Austin Aug. 27, 2010) aff'd, 353 S.W.3d 868 (Tex. Crim. App. 2011)
  (mem. op. not designated for publication) ..................................................... 21
Paulson v. State
  28 S.W.3d 570 (Tex. Crim. App. 2000) .............................................................. 11
Reeves v. State
  420 S.W.3d 812 (Tex. Crim. App. 2013) ........................................................... 10
Riddle v. State
  888 S.W.2d 1 (Tex. Crim. App. 1994).................................................................... 7
State v. Mays
  967 S.W.2d 404 (Tex. Crim. App. 1998) .............................................................. 8
State v. Morgan
  160 S.W.3d 1 (Tex. Crim. App. 2004)................................................................. 21


Statutes
TEX. PENAL CODE § 49.01................................................................................................... 6
TEX. PENAL CODE § 49.04 ............................................................................................... 17
TEX. PENAL CODE § 49.09................................................................................................ 17




                                                            vi
                         Statement of the Case

      The appellant was charged by information with driving while

intoxicated, with a blood-alcohol concentration of 0.15 or greater. (CR

8). The appellant pled not guilty. (3 RR 10). A jury found the appellant

guilty of driving while intoxicated. (CR 125, 126). The trial court treated

the question of whether the appellant’s blood-alcohol concentration was

greater than 0.15 as a punishment-phase question, and the trial court

found the allegation true. (3 RR 389). The trial court sentenced the

appellant to one year’s confinement in the county jail, but suspended

that sentence and ordered that the appellant serve two years’

community supervision. (CR126). The trial court certified the

appellant’s right of appeal, and the appellant filed a timely notice of

appeal. (CR 133, 136).


                   Statement of Procedural History

      On May 28, 2015, in a published opinion and over a dissent, a

panel of the Fourteenth Court of Appeals found the evidence insufficient

regarding Class A driving while intoxicated and remanded the case for a

new trial on Class B driving while intoxicated. The dissenter also found

the evidence insufficient regarding the Class A conviction but would


                                    1
have affirmed the conviction for the Class B offense and remanded for a

new punishment hearing. On June 5, the State filed a timely motion for

rehearing. On July 7, the panel issued substitute majority and dissenting

opinions that were substantially the same as the May 28th opinions, and

denied the State’s motion for rehearing. See Navarro v. State, ___ S.W.3d

___, 14-13-00706-CR, 2015 WL 4103565 (Tex. App.—Houston [14th

Dist.] July 7, 2015) (majority op. and op. of Frost, C.J., dissenting)

(opinions included in appendix).


                  Statement of Questions Presented

Question One: Does a trial court commit error by instructing the jury

with a statutory definition if the statutory text “has a variable meaning

in the eyes of the jury,” as the panel majority held?



Question Two: Is an allegation that elevates a Class B DWI to a Class A

DWI (such as a prior DWI conviction or an alcohol concentration of 0.15

or greater) a punishment enhancement, as the trial court treated it, or

an essential element of the Class A offense, as the Court of Appeals held?




                                     2
                    Factual and Legal Background


    I.   Legal misinterpretations in the trial court complicated
         what should have been an open-and-shut case.

      On Christmas, 2011, the appellant was driving his truck on I-10

when, at 65-70 miles per hour, he made an abrupt left turn and crashed

into the median. (3 RR 16, 68-61). The appellant and his passenger were

both taken to the hospital; blood tests showed them both to be

intoxicated. (3 RR 253-55, 345, 354).

      At the appellant’s DWI trial, the State introduced the results of a

blood-plasma test conducted at the hospital. (3 RR 231). Blood plasma is

produced by seperating blood into its constituent parts. During this

process, any alcohol that was in the blood will remain with the plasma,

while the blood cells will be separated out. Thus, any testing performed

on the plasma will yield a higher alcohol concentration than if the test

had been performed on the whole, unseparated blood sample. For an

ordinary, healthy person, a blood-plasma test will show an alcohol

concentration about 16% higher than would a test of the whole blood.

(3 RR 231). The State’s expert witness testified that the results of the

hospital’s tests showed that the appellant’s blood plasma had an alcohol

concentration of .158, which meant that that his whole, unseperated

                                   3
blood probably had an alcohol concentration of about .132. (3 RR 231,

253-55).

      The trial prosecutor argued that, because the Penal Code did not

define “blood,” the jury could use the blood-plasma result as a basis for

its verdict. (See 3 RR 237-40, 383-84) (citing Reidwig v. State, 981 S.W.2d

399 (Tex. App.—San Antonio 1998, pet. ref’d). However, when the case

was submitted to the jury it was only submitted as a Class B offense,

which required a showing only of an alcohol concentration of 0.08 or

greater, thus the extrapolated blood result would have been more than

adequate to prove intoxication. The jury found the appellant guilty of

Class B DWI. (See CR 120-125).

      During the punishment phase, without discussion or argument,

the trial court announced that it “would find the enhancement

paragraph true as to the blood alcohol level .15 or greater.” (3 RR 389).

The trial court assessed punishment and entered a judgment of guilt for

Class A DWI. (CR 126 (judgment reflecting conviction for “DWI

BAC>=0.15”)).




                                    4
    II.     In a published opinion, a divided panel of the court of
            appeals acquitted the appellant of Class A DWI and
            remanded for a new trial on Class B DWI. A dissenter
            would have acquitted on Class A DWI but affirmed the
            Class B conviction. The State believes the dissenter was
            correct.

      On direct appeal, a divided panel of the Fourteenth Court of

Appeals made several holdings:

   1) In a prosecution for Class A driving while intoxicated with a
      blood-alcohol concentration greater than 0.15, the allegation that
      the defendant’s blood-alcohol concentration exceeded 0.15 was an
      element of the offense rather than a punishment-phase
      enhancement;

   2) Because “alcohol concentration” had to be based on blood, not
      blood plasma, the evidence was insufficient to show the
      appellant’s blood-alcohol concentration was greater than 0.15,
      thus the court issued an acquittal on the Class A charge;

   3) The evidence was sufficient to support the conviction for Class B
      driving while intoxicated; but

   4) The trial court erred by not modifying the statutory definition of
      “alcohol concentration” in the jury charge to clarify that “blood”
      meant “whole blood,” and the appellant was harmed by this error,
      thus the court remanded for a new trial on the Class B charge.

          In a dissent, Chief Justice Frost agreed with holdings 1-3, but

disagreed with holding 4 and would have affirmed the appellant’s

conviction for Class B DWI. Navarro, No. 14-13-00706-CR, Dissenting

Slip Op. at 8 (Frost, C.J., dissenting). Chief Justice Frost argued that the

trial court’s instruction to the jury was correct because it tracked the

                                      5
language of the statute, and, even if it was incorrect, the appellant was

not harmed. Ibid.

      In this petition, the State asks this Court to review holdings 1 and

4. Holding 4 is an unprecedented departure from the well-established

rule that a trial court does not err to use statutory language to instruct a

jury. Regarding holding 1, the State believes the court of appeals is

correct, but the holding regards an important question of state law that

should be decided by this Court.


                              Question One


Does a trial court commit error by instructing the jury with a
statutory definition if the statutory text “has a variable meaning in
the eyes of the jury,” as the panel majority held?

      Because the parties had been arguing about the distinction

between blood and blood plasma throughout the trial, the appellant

requested the trial court instruct the jury that “[a]lcohol concentration

means the number of grams of alcohol per 100 milliliters of whole

blood.” (3 RR 367 (emphasis added)). This proposed instruction consists

of the text of Penal Code section 49.01(1)(B), plus the word “whole.” See

TEX. PENAL CODE § 49.01(1)(B). The trial court rejected the appellant’s



                                     6
proposed instruction and instead instructed the jury using the

unmodified statutory text. (3 RR 367; CR 12).

       The court of appeals held that the trial court’s instruction was

erroneous. See Navarro, Dissenting Slip Op. at 2 (Frost, C.J., dissenting)

(“In an apparent first in the history of Texas jurisprudence, the majority

holds the trial court erred in defining a term for the jury using the same

unambiguous language the Texas Legislature used to define the term in

the statute establishing the charged offense.” ).


      I.     The majority used irrelevant case law as a basis to ignore
             binding precedent.

       The majority began its discussion by acknowledging binding

precedent holding that a trial court does not err by submitting a jury

charge that tracks the language of the statute, which is what the trial

court did in this case. See Navarro, Slip Op. at 16 (citing Riddle v. State,

888 S.W.2d 1, 8 (Tex. Crim. App. 1994)). The majority then noted,

however, that this Court has “not always adhered to” that rule. Slip Op. at

17.

           For examples of how this Court has “not always adhered to” the

general rule, the majority cited to Haeker v. State, 571 S.W.2d 920 (Tex.

Cirm. App. 1978), and State v. Mays, 967 S.W.2d 404 (Tex. Crim. App.

                                      7
1998). Slip Op. at 17. Those cases dealt with the issue of when a

charging instrument must allege more than the statutory text in order to

meet constitutional notice requirements. See Haeker, 571 S.W.2d at 921

(in cruelty-to-animals prosecution, allegation that defendant “tortured”

an animal was insufficient to allow defendant to prepare defense); Mays,

967 S.W.2d at 407-09 (barratry indictment that tracked statutory

language provided sufficient notice).

      Haeker and Mays have no application here. Those cases addressed

the State’s constitutional obligation to provide pre-trial notice to

defendants so that they may prepare a defense. This case dealt with the

trial court’s statutory obligation to instruct the jury on “the law

applicable to the case” so that it can render a lawful verdict. There is no

connection between those areas of the law, and the majority opinion

erred to use Haeker and Mays as a basis for ignoring clearly established

precedent.

      The majority also relied on Medford v. State, 13 S.W.3d 769 (Tex.

Crim. App. 2000), and Middleton v. State, 125 S.W.3d 450 (Tex. Crim.

App. 2003). Slip Op. at 17. In Middleton, this Court granted review to

determine whether it was necessary to instruct the jury with a non-

statutory definition of “probable cause,” but the Court did not answer
                                    8
that question because, upon closer examination, it was apparent that

“the jury did not need the instruction.” 125 S.W.3d at 451 (plurality op.).

Moreover, whatever Middleton said is not binding because it was a

plurality opinion.

      In Medford, this Court was faced with the question of whether

“arrest,” as that term is used in Penal Code section 38.08 (escape), was a

statutorily undefined term that a jury was free to define on its own. 13

S.W.3d at 771. This Court held that “arrest” was an exception to the

general rule because it was a technical term “possessing a long,

established history in the common law,” and jurors ought not define it

on their own. Id. at 772. This Court created a non-statutory definition “in

order to properly instruct a jury.” Id. at 772-74.

      Medford is more applicable to this case than the other three cases

cited by the majority, but it still is far from controlling. As Chief Justice

Frost observed in dissent, Medford did not involve a holding that a trial

court abused its discretion by failing to submit a non-statutory

instruction. Dissenting Slip Op. at 3 n.5. Moreover, unlike “arrest,”

“blood” is not a technical term or a term that has been defined through

centuries of common law. Ibid.



                                      9
      In short, the majority noted that according to binding precedent

the trial court was correct to instruct the jury using statutory language;

the majority then proceeded to ignore that binding precedent based on

the authority of two irrelevant cases, a plurality opinion that explicitly

refused to address the question at issue in this case, and an opinion that

touched on some of the issues in this case but which made no holding

requiring the outcome the majority reached. This Court should not allow

a lower court to so lightly toss aside the well-developed rule that a trial

court does not err to instruct the jury using statutory language. See e.g.,

Casey v. State, 215 S.W.3d 870, 887 (Tex. Crim. App. 2007) (holding

instruction that tracked statutory language was not erroneous, and

“declin[ing] appellant's invitation to act as a super-legislature and

rewrite this section of the Penal Code.”).


    II.   The majority’s conclusion that a trial court errs to instruct
          a jury using statutory text if that text “has a variable
          meaning in the eyes of the jury” is inconsistent with prior
          case law.

      After discussing Haeker, Mays, Medford, and Middleton, the

majority proceeded to quote Reeves v. State, 420 S.W.3d 812 (Tex. Crim.

App. 2013), for the proposition that “it is the function of the [jury]

charge to lead and to prevent confusion.” Slip. Op. at 17. The majority

                                    10
then stated: “A charge will not prevent confusion if the statutory text on

which it is based has a variable meaning in the eyes of the jury.” Ibid.

      This is an extremely broad assertion that, as a statement of what

constitutes reversible error, must surely be wrong. A typical jury charge

will contain dozens of words and terms that will have “variable

meaning” in the eyes of the jury.

      The most obvious example is the burden of proof: “beyond a

reasonable doubt.” In Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App.

1991), based on concerns that juries would be confused by what was

meant by “beyond a reasonable doubt,” this Court mandated a non-

statutory six-paragraph definition of the term. Geesa, 820 S.W.2d at 163.

This Court has since overruled that holding, and jurors are allowed to

adopt their own meanings of “beyond a reasonable doubt,” despite the

near certainty that this will produce variable meaning from one juror to

the next. See Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000)

(overruling Geesa and stating that it is the “better practice” to give no

definition of “reasonable doubt”).

      Indeed, contra the majority’s interpretation of Reeves, this Court

has used the fact that jurors might give variable meanings to a word as a

reason not to define it in the jury charge. In Kirsch v. State, 357 S.W.3d
                                     11
645 (Tex. Crim. App. 2012), a DWI case, the trial court instructed the

jury on a non-statutory definition of “operate” that was gleaned from

case law. Kirsch, 357 S.W.3d at 648. This Court held that this was error,

because “operate” was a common term that the jury was free to define

on its own, therefore the trial court’s decision to select a definition that

brought attention to certain evidence — even if that definition was

legally correct — was an impermissible comment on the weight of the

evidence. Id. at 649-51.

      In this case, the majority distinguished Kirsch by noting that

unlike “operate,” “‘blood’ is capable of only one meaning under the

Penal Code.” Slip. Op. at 19. That statement was based on an earlier part

of the majority’s opinion where, in conducting a sufficiency analysis, it

looked to an opinion from this Court, a dictionary, medical texts, and an

inapplicable section of the Penal Code to determine what is meant by

“blood.” See Slip. Op. at 14-15. The State wholeheartedly agrees that, for

sufficiency-review purposes, the use of non-statutory sources was

appropriate. See Grotti v. State, 273 S.W.3d 273, 282-83 (Tex. Crim. App.

2008) (approving of lower court’s use of Health & Safety Code definition

of “death” for sufficiency review).



                                      12
      Where the majority went wrong, however, was in its belief that the

inverse of Kirsch must be true. In Kirsch, because the term “operate” was

susceptible to multiple definitions, the trial court erred in submitting a

non-statutory definition; in this case, because “blood” is not susceptible

to multiple definitions, the majority believed that the trial court erred in

not submitting a non-statutory definition. However, the inverse of a true

proposition is not always true, and the majority provided no reason why

the inverse of Kirsch must be true here.


   III.   The majority’s rule puts trial courts in a nearly impossible
          situation of determining when instructing the jury with a
          non-statutory definition is required, and when instructing
          the jury with a non-statutory definition is error.

      Combining the majority’s holding with Kirsch creates the

following rule: If a term that is not defined in the statute is susceptible

to only one definition, the trial court errs by not instructing the jury on

that definition, but if the term is susceptible to multiple definitions, the

trial court errs to instruct the jury on any of those definitions. The State

believes this needlessly puts trial courts at risk of reversible error, and

will result in jury instructions with no basis in the law.

      Under the majority’s rule, if a party requests a non-statutory

definition of a statutory term, a trial court must answer two questions,

                                     13
and it will commit error if it gets either question incorrect: (1) Whether

the proffered definition is legally correct; and (2) Whether it defines a

term that is susceptible to multiple definitions. Seldom will the answers

to these questions be obvious, and there is no obligation on the

requesting party to advise the trial court of the law.1 As Kirsch made

apparent, determining whether a term is susceptible to multiple

definitions can be a complex analysis. See Kirsch, 357 S.W.3d at 650.

      Analyzing the new obligation that the majority created for trial

courts, it is apparent that it will heavily favor defendants over the State.

Faced with reversible error from so many directions, trial courts will

probably respond to the obligations created by the majority’s opinion by

granting requested non-statutory instructions for defendants but

denying them for the State. This is because jury-charge rulings that go

against the State can never create a reversal. The majority’s opinion will

encourage defendants to proffer non-statutory definitions, and

incentivize trial courts to instruct on those definitions even if they are

legally suspect.




1 The appellant provided no legal argument when he requested the “whole blood”
instruction in this case. (3 RR 366).
                                     14
      The majority’s holding creates bad incentives for trial courts, has

no basis in the law, and directly contradicts binding precedent from this

Court. This Court should grant review, reverse the Court of Appeals, and

re-affirm the well-established rule that a trial court does not err to

instruct the jury using statutory language.


                             Question Two


Is an allegation that elevates a Class B DWI to a Class A DWI (such
as a prior DWI conviction or an alcohol concentration of 0.15 or
greater) a punishment enhancement, as the trial court treated it, or
an essential element of the Class A offense, as the Court of Appeals
held?

      The appellant was charged with DWI, enhanced by an allegation

that an analysis of a specimen of his blood showed an alcohol

concentration of 0.15 or greater. (CR 8). However, whether the

appellant’s blood alcohol concentration was 0.15 or greater was never

submitted to the jury; the trial court made a finding on the matter

during the punishment phase. (CR 120-25; 3 RR 389). In making this

finding, the trial court stated that it was finding the 0.15 allegation

“true,” indicating that it viewed the 0.15-allegation as a punishment-

phase enhancement (such as a deadly-weapon finding) rather than an

element of the offense.

                                   15
      On appeal, the appellant did not challenge the sufficiency of the

evidence. The State, however, made a confession of unassigned error,

pointing out that the evidence was insufficient to show that the

appellant’s blood-alcohol concentration was 0.15 or greater. (State’s

Appellate Brief at 17-20). As part of this confession, the State argued

that it was “almost certainly error” for the trial court to treat the 0.15

allegation as a punishment-phase enhancement rather than as an

element of the offense. (State’s Appellate Brief at 20 n.1).

      The majority opinion explicitly agreed with the State that the 0.15

allegation was an element of the offense that should have been

submitted to the jury during the guilt phase; the dissenting opinion

implicitly agreed with that position. See Navarro, Slip. Op. at 11-13

(analyzing issue), Dissenting Slip Op. at 8 (concluding that evidence was

insufficient regarding Class A offense). The State believes this issue is

important enough, and that cases presenting it on appeal are rare

enough, that this Court should grant review in order to affirm and

promulgate the court of appeals’s holding.




                                    16
    I.   Under Calton, these additional allegations are elements of
         Class A DWI, not punishment enhancements.

      This issue is, legally speaking, very easy and straight-forward.

Section 49.04(d) states that DWI, ordinarily a Class B misdemeanor,

becomes a Class A misdemeanor if it is shown at trial that an analysis of

a specimen of the defendant’s blood, breath, or urine showed an alcohol

concentration of 0.15 or higher. TEX. PENAL CODE § 49.04(d). Any fact that

elevates the degree of an offense is an essential element of the offense,

and must be proven during the guilt phase. Calton v. State, 176 S.W.3d

231, 233-36 (Tex. Crim. App. 2005); see also Apprendi v. New Jersey, 530

U.S. 466, 490 (2000) (other than fact of prior conviction, any fact that

increases the maximum punishment for an offense must be proven to a

jury beyond a reasonable doubt).

      Therefore, the 0.15 allegation was an essential element of Class A

DWI and should have been submitted to the jury during the guilt phase

of this trial. The same principle also means that the fact of a single prior

DWI conviction, which elevates a Class B offense to a Class A offense, see

TEX. PENAL CODE § 49.09(a), should be submitted to the jury during the

guilt phase as well. See Calton, 176 S.W.3d at 235 (if prior conviction is

element of offense, allegation of prior conviction must be read to jury in


                                    17
arraignment and issue must be submitted during guilt phase). Pleading

and proving these additional elements during the guilt phase should be

no different from pleading and proving the value of stolen property in a

theft case. See id.at 235.


    II.   The case law shows that it is very common for courts to
          treat these elements as punishment enhancements.

       That the question is easy to answer as a matter of law does not

mean that the question is unimportant. The State has very good reason

to believe that treating the 0.15 allegation and the allegation of a single

prior DWI conviction as a punishment-phase enhancement rather than a

guilt-phase element is a common practice in Texas.2


2 At oral argument in this case, the State’s appellate counsel represented to the
Fourteenth Court that six of Harris County’s fifteen misdemeanor courts treat these
allegations as punishment-phase enhancements. A week after the Fourteenth
Court’s original opinion in this case, the First Court released an opinion from
another Harris County misdemeanor court in which the 0.15 allegation was treated
as a punishment-phase enhancement.
        In Dromgoole v. State, ___ S.W.3d ___, 01-13-00931-CR, 2015 WL 3522990,
(Tex. App.—Houston [1st Dist.] June 4, 2015, no. pet. h.), the First Court of Appeals
noted in its procedural history of the case that the jury found the defendant guilty of
DWI, and during the punishment phase “the trial court found an enhancement
paragraph to be true.” Dromgoole, 2015 WL 3522990 at *1. In the last section of the
opinion, though, the First Court noticed that the judgment showed “the trial court's
finding on the State's enhancement paragraph was ‘n/a.’” Dromgoole, 2015 WL
352290 at *14. Citing to Penal Code section 49.04(d) (the 0.15 allegation), the First
Court noted that it was the “enhancement paragraph” that elevated the offense from
a Class B to a Class A, thus without the finding of true on the “enhancement
paragraph” Dromgoole’s sentence would be illegal. Ibid. The First Court then, on its
own motion, modified the judgment to show a finding of “true” to the “enhancement
paragraph.” Ibid. The First Court’s opinion is nearly nine thousand words long, and
                                         18
      This is not just a Harris County problem. In Flowers v. State, 220

S.W.3d 919 (Tex. Crim. App. 2007), a Denton County case, the defendant

was charged with DWI and the State alleged a prior conviction that

enhanced the offense to a Class A misdemeanor. Flowers, 220 S.W.3d at

920.3 The issue of guilt on basic DWI was tried to a jury, but the

“enhancement paragraph” was found “true” by the trial court during the

punishment phase. Ibid. Both the Second Court of Appeals and this Court

issued opinions addressing the sufficiency of the evidence to prove the

“enhancement paragraph,” but no one ever pointed out that, under

Calton, the allegation of a prior conviction was actually an essential

element that should have been tried to the jury in the guilt phase.

      A Westlaw search shows that it is common and widespread across

the state to treat as punishment-phase enhancements allegations that

elevate DWI from Class B to Class A, and for this matter to go wholly




West has given it fifty-four headnotes, yet at no point does anyone seem to have
questioned the treatment of the 0.15 allegation as an “enhancement” paragraph.
Indeed, the First Court’s modification of the judgment is an implicit (though
probably unconsidered) endorsement of the practice.

3The opinion does not explicitly state that the prior conviction was used to enhance
the offense to a Class A misdemeanor, but it notes that Flowers was sentenced to 270
days in jail from a misdemeanor court, which is possible only with a Class A
conviction.

                                        19
unnoticed. See, e.g., Couch v. State, 13-13-00389-CR, 2014 WL 585849, at

*3 (Tex. App.—Corpus Christi Feb. 13, 2014, pet. ref’d) (mem. op. not

designated for publication) (“The jury found Couch guilty of DWI. See

[Penal Code] § 49.04(a). During the punishment phase of trial, Couch

pleaded true to an enhancement paragraph, which alleged a prior

conviction for DWI. See id. § 49.09(a).”); Coward v. State, 12-13-00114-

CR, 2013 WL 3788162, at *1, *4 (Tex. App.—Tyler July 17, 2013, no pet.)

(mem. op. not designated for publication) (discussing sufficiency to

support “the jury's finding of guilt” and “trial judge’s” finding of “true” to

“enhancement allegation” of prior DWI conviction); Clift v. State, 05-13-

00324-CR, 2014 WL 1856842, at *5 (Tex. App.—Dallas May 7, 2014, no

pet.) (mem. op. not designated for publication) (defendant convicted for

Class A DWI based on alcohol concentration of 0.15, but application

paragraphs of guilt-phase jury charge related only to Class B DWI; trial

court assessed punishment); Fletcher v. State, 08-13-00043-CR, 2014

WL 4922625, at *1 (Tex. App.—El Paso Sept. 30, 2014, no pet.)

(“Appellant was charged with ‘DWI-[misdemeanor] repetition.’ The

charging instrument also contained an enhancement paragraph

describing an additional final conviction for DWI. Appellant pleaded not

guilty to the charged offense. The jury found Appellant guilty as charged.
                                     20
At punishment, Appellant entered a plea of ‘true’ to the enhancement

paragraph.”); Ouellette v. State, 03-08-00566-CR, 2010 WL 3377774, at

*1 (Tex. App.—Austin Aug. 27, 2010), aff'd, 353 S.W.3d 868 (Tex. Crim.

App. 2011) (mem. op. not designated for publication) (“A jury found

appellant Marie Louise Ouellette guilty of driving while intoxicated. See

Tex. Penal Code Ann. § 49.04(a) (West 2003). The trial court found the

enhancement paragraph true, see id. § 49.09(a).”).


   III.   This practice is never questioned because, procedurally, it
          is almost impossible to raise it on appeal. This Court
          should grant review of this case because it presents an
          extremely uncommon opportunity for this Court to
          educate the bench and bar on this subject.

      One reason this issue is never questioned is because it is very

difficult to raise it as an appellate issue. Procedurally, there is no way for

the State to appeal a trial court’s decision to treat the 0.15 allegation or

the fact of a single prior DWI conviction as a punishment-phase

enhancement. State v. Morgan, 160 S.W.3d 1, 3-5 (Tex. Crim. App. 2004)

(where State plead prior DWI conviction in effort to elevate DWI from

Class B to Class A misdemeanor but trial court issued pre-trial ruling

that it would treat allegation as punishment-phase enhancement, State’s

effort to appeal decision was impermissible interlocutory appeal). And if


                                     21
defendants prefer these “enhancement” allegations to be part of the

punishment phase, they would not complain at the trial court, leaving

the matter unreviewable on appeal. It would be altogether possible for

this to be a common practice throughout the state without it yet having

attracted the attention of an appellate court.

      The State believes this is an important question of state law that is

being mishandled often and widely throughout the state. However,

because defendants do not complain about it in the trial court and the

State is barred from raising the issue, the matter has never been

addressed by an appellate court. This case provides this Court an

opportunity to give guidance on this subject so that misdemeanor DWI

trials in Texas will be conducted in a more lawful manner.




                                    22
                              Conclusion

      The State asks this Court to grant discretionary review and hold

that 1) a trial court does cannot commit reversible error by using

definitions from the Penal Code, and 2) allegations that increase DWI

from a Class B to a Class A offense are essential elements of Class A DWI

and must be submitted to the jury during the guilt phase. The result of

these holdings will be to reverse the court of appeals and affirm the

appellants’ conviction for Class B DWI.



                                             DEVON ANDERSON
                                             District Attorney
                                             Harris County, Texas


                                             /s/ C.A. Morgan
                                             CLINTON A. MORGAN
                                             Assistant District Attorney
                                             Harris County, Texas
                                             1201 Franklin, Suite 600
                                             Houston, Texas 77002
                                             713.755.5826
                                             Texas Bar No. 24071454




                                   23
                 Certificate of Compliance and Service

      I certify that, according to Microsoft Word’s word counting

function, the portion of this brief for which Rule of Appellate Procedure

9.4(i)(1) requires a word count contains 4,452 words.

      I also certify that I have requested that efile.txcourts.gov

electronically serve a copy of this brief to:

      R. Scott Shearer
      ShearerLegal@Yahoo.com

      Lisa McMinn
      State Prosecuting Attorney
      information@spa.texas.gov


                                                /s/ C.A. Morgan
                                                CLINTON A. MORGAN
                                                Assistant District Attorney
                                                Harris County, Texas
                                                1201 Franklin, Suite 600
                                                Houston, Texas 77002-1923
                                                (713) 755-5826
                                                Texas Bar No. 24071454


Date: July 23, 2015




                                     24
                          Appendix A


Navarro v. State, ___ S.W.3d ___, 14-13-00706-CR, 2015 WL 4103565
(Tex. App.—Houston [14th Dist.] July 7, 2015) (majority op.)
Reversed and Rendered in Part, Reversed and Remanded in Part, and
Substitute Majority and Dissenting Opinions filed July 7, 2015.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-13-00706-CR

                          JOEL NAVARRO, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

          On Appeal from the County Criminal Court at Law No. 15
                           Harris County, Texas
                       Trial Court Cause No. 1836127

                SUBSTITUTE MAJORITY OPINION

      We withdraw our opinion dated May 28, 2015, and we issue this substitute
opinion in its place. We deny the State’s motion for rehearing.

      This is an appeal from a Class A misdemeanor conviction for driving while
intoxicated. At the trial court level, the State argued to the jury that a finding of
intoxication under the per se theory of intoxication could be based on the alcohol
content of appellant’s blood plasma rather than his whole blood. Now the State
confesses error on that point.

         At the trial court level, the trial judge failed to submit a question to the jury
as to whether appellant’s blood alcohol level was at least 0.15 to support the Class
A misdemeanor conviction. Now the State confesses error on that point.

         At the trial court level, the State convinced the trial judge that a Class A
misdemeanor conviction could be based on blood plasma results without regard for
the alcohol concentration of appellant’s whole blood, and, based only on the
unconverted blood plasma results, the trial judge made a finding that appellant had
an alcohol concentration of at least 0.15. Now the State confesses error on that
point.

         Despite misleading both the trial judge and the jury, through both an
improper charge and an improper closing argument, the State argues that appellant
is not entitled to a new trial. The State believes that the judgment should be
reformed to reflect a conviction for a Class B misdemeanor, and the case should be
remanded for a new punishment hearing only. We disagree. We reverse and render
a judgment of acquittal on the Class A misdemeanor, and we remand for a new
trial on the Class B misdemeanor.

                                    BACKGROUND

         Appellant and his fiancée were involved in a single-vehicle accident, the
cause of which was disputed at trial. Only one eyewitness testified at trial. The
eyewitness testified that he was driving down the interstate late at night when a
truck in front of him suddenly veered to the left and struck a concrete barrier.
Traffic had been light at the time, it had not been raining, and there was no



                                             2
evidence of an obstruction in the road that would have required an evasive
maneuver.

      The truck rolled over three times and landed upright on its tires. When the
eyewitness pulled up next to the truck, he saw appellant climbing out of the
driver’s side window, apparently because the door had been jammed. Appellant
crawled on the pavement towards his fiancée, who had been ejected from the truck
during the rollover. She was unconscious, severely injured, and lying about thirty-
five feet away from where the truck had finally stopped.

      Appellant told first responders that he was driving at the time of the
accident. He explained that he and his fiancée were arguing inside the truck, that
she grabbed the steering wheel at one point, and that he overcorrected. This story
gradually changed over time. Appellant later claimed that his fiancée was feeling
sick, that she slid over to be next to him, and that she accidentally hit the steering
wheel. At another point, appellant reported that the accident happened because a
tire blew out.

      The police did not initially suspect that the accident was alcohol-related. In
fact, the officer who questioned appellant at the scene opined in his original police
report that appellant was not intoxicated.

      There was evidence of intoxication, however. According to an emergency
medical technician, appellant admitted that he had consumed at least four beers on
the night of the accident. There was also blood evidence taken more than an hour
after the accident, and the evidence indicated that appellant had alcohol in his
system.

      The blood evidence was obtained at the hospital where appellant and his
fiancée were treated. The hospital collected a vial of appellant’s whole blood,


                                             3
which was then placed into a centrifuge. The vial was spun, causing the blood cells
to separate from the blood plasma. A test of the blood plasma revealed that
appellant had a blood-alcohol concentration (“BAC”) of 0.158.1

       Charges were eventually brought against appellant for driving while
intoxicated. The charging instrument included an additional allegation that, at or
near the time of the commission of the offense, appellant’s blood showed “an
alcohol concentration level of at least 0.15.”

       The State’s expert, William Arnold of the Houston Police Department,
testified that the concentration of alcohol is higher in blood plasma than it is in
whole blood. The expert opined that a BAC of 0.158 in blood plasma could be
converted to a BAC of 0.132 in whole blood. Assuming that appellant had been
eliminating alcohol from his system, instead of absorbing it, the expert believed
that appellant had a BAC of 0.133 in whole blood at the time of the accident.

       Appellant did not testify at trial, but he asserted several defensive theories,
one of which was that his fiancée had been driving when the accident occurred.
Appellant argued that his statements to first responders had been false, and that he
had only taken the blame for the accident because he felt a duty to protect his
fiancée.

       There was affirmative evidence to support this theory. The record showed
that appellant was excluded as a contributor of a DNA sample collected from the
driver’s side air bag. The DNA revealed a partial profile belonging to a female of
unknown origin, who could have been the fiancée.



       1
         In this opinion, all numerical references to BAC are expressed in the same units: grams
of alcohol per 100 milliliters of blood. We denote in each instance whether the blood at issue is
whole blood or blood plasma.

                                               4
      Other evidence included testimony from the fiancée herself, who recovered
from her injuries after being in a coma for nearly a month. The fiancée admitted
that she did not remember much from the accident, but she testified that there was
“a good chance” that she was the driver. The fiancée explained that the truck
belonged to her, not appellant. She was possessive over the truck, and only allowed
appellant to drive it on rare occasions. She also observed photographs of the truck
after the accident, and said that the position of the driver’s seat would have been
uncomfortable for appellant, who is more than a foot taller than she is and has a
much larger frame.

      The trial court instructed the jury that it could make a finding of intoxication
in either of two ways: (1) if appellant did not have the normal use of his mental or
physical faculties by reason of the introduction of alcohol into his body, or (2) if
appellant had an alcohol concentration of 0.08 or more. “Alcohol concentration”
was defined in the court’s charge as “the number of grams of alcohol per 100
milliliters of blood.” Appellant objected to this definition because it did not specify
that the blood must be whole blood. Appellant requested that the definition be
revised to read as follows: “the number of grams of alcohol per 100 milliliters of
whole blood.” The trial court denied the request.

      During closing arguments, the issue over blood evidence arose again when
the prosecutor advised the jury that it was not limited by the type of blood that it
could consider. The prosecutor said:

      As you know, we have heard a lot of evidence today and we heard a
      lot about blood evidence today. I just want to draw y’all’s attention to
      the charge, that you will be given the definition of what an alcohol
      concentration is and that definition is the number of grams of alcohol
      per 100 milliliters of blood. You won’t find anywhere in here in the
      law where it needs to be whole blood or plasma blood. This is the law
      y’all follow.

                                          5
      Appellant objected to this argument as a misstatement of law. He explained,
“The law requires whole blood.” But the trial court overruled the objection. The
prosecutor later expanded on her argument, saying directly and without objection
that the jury could find that appellant was intoxicated based solely on the testing of
his blood plasma.

      The jury convicted appellant of driving while intoxicated, but it did not
make the additional finding that he had “an alcohol concentration level of at least
0.15,” as had been alleged in the charging instrument. The trial court did not
submit that issue in the jury charge.

      Appellant elected to have the trial court assess his punishment. No new
evidence was offered during this phase. The trial court began the hearing by
treating the additional allegation in the charging instrument as an enhancement
paragraph, which the court found to be true. By making an affirmative finding that
appellant had “an alcohol concentration level of at least 0.15,” the court applied a
range of punishment applicable to a Class A misdemeanor, instead of a Class B
misdemeanor, which is what appellant would have faced without the perceived
“enhancement.”

                      SUFFICIENCY OF THE EVIDENCE

I.    The Jury’s Finding

      Appellant was charged under section 49.04(a) of the Texas Penal Code,
which provides: “A person commits an offense if the person is intoxicated while
operating a motor vehicle in a public place.” In his first issue, appellant contends
that the evidence is legally insufficient to show either (1) that he was the driver of
the truck, or (2) that he was intoxicated.



                                             6
      When reviewing the legal sufficiency of the evidence, we examine all of the
evidence in the light most favorable to the verdict and determine whether a rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. See Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). The evidence is insufficient when the record contains no evidence, or
merely a “modicum” of evidence, probative of an element of the offense. See
Garcia v. State, 367 S.W.3d 683, 687 (Tex. Crim. App. 2012).

      Although we consider everything presented at trial, we do not reevaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact
finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Because the jury is the sole judge of the credibility of witnesses and of the weight
given to their testimony, any conflicts or inconsistencies in the evidence are
resolved in favor of the verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.
Crim. App. 2000). Our review includes both properly and improperly admitted
evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We
also consider both direct and circumstantial evidence, as well as any reasonable
inferences that may be drawn from the evidence. Id. 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. See Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007).

      A.     Driver

      Appellant acknowledges that he initially admitted to first responders that he
was driving the truck at the time of the accident. He suggests, however, that his
admissions must be disregarded because he was actually lying to protect his
fiancée.



                                          7
      We do not agree that the admissions must be disregarded. The jury was free
to believe appellant’s original statements, and under the applicable standard of
review, those statements must be credited because they support the jury’s verdict.
See Guess v. State, 419 S.W.3d 361, 366 (Tex. App.—Tyler 2010, pet. ref’d)
(holding that the jury was entitled to believe the defendant’s initial statement to
police that he was the one who drove off the road).

      Appellant’s admissions are also corroborated by other evidence. For
instance, blood was found on the driver’s side headrest, but unlike the sample that
was collected from the driver’s side air bag, DNA testing revealed that a male of
unknown origin had contributed the blood. Because appellant was the only male in
the vehicle, the jury could have reasonably believed that appellant was the
contributor, and that the blood transferred to the headrest because appellant had
been sitting in the driver’s seat.

      Additionally, an eyewitness testified that he saw appellant climbing out of
the driver’s side window immediately after the accident. For the same reason as
before, the jury could have inferred that appellant was exiting from that side
because he had previously been driving. Cf. Dickson v. State, 642 S.W.2d 185, 189
(Tex. App.—Houston [14th Dist.] 1982, pet. ref’d) (evidence supported a finding
that the defendant had been driving a vehicle when the defendant was seen
emerging from the driver’s side immediately after the vehicle was stopped).

      We do not doubt that the jury could have made the opposite finding that
appellant was merely a passenger at the time of the accident. Appellant certainly
produced evidence that created a fact issue on this point. But in such
circumstances, it is not the role of this court to determine which evidence the jury
should have believed. See Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App.
1984). Viewing the evidence in the light most favorable to the jury’s verdict, we

                                         8
conclude that a rational finder of fact could have determined beyond a reasonable
doubt that appellant was driving the truck at the time of the accident.

      B.     Intoxicated

      The jury received the statutory definition of “intoxicated,” which has two
alternative meanings: “(A) not having the normal use of mental or physical
faculties by reason of the introduction of alcohol . . . into the body; or (B) having
an alcohol concentration of 0.08 or more.” See Tex. Penal Code § 49.01(2). We
have described these meanings as providing alternative methods of proving that a
person is intoxicated. See Bradford v. State, 230 S.W.3d 719, 721–22 (Tex. App.—
Houston [14th Dist.] 2007, no pet.). The two methods are known, respectively, as
the impairment theory of intoxication and the per se theory of intoxication. Id.
Because the two methods of proof are not mutually exclusive, evidence offered
under the per se theory can also support a finding that a person is impaired. See
Crenshaw v. State, 378 S.W.3d 460, 467 (Tex. Crim. App. 2012). As indicated
above, proof under the per se theory requires an alcohol concentration expressed in
grams of alcohol per 100 milliliters of blood. See Tex. Penal Code § 49.01(1)(B).

      Appellant contends that the evidence is insufficient to show that he was
intoxicated, citing multiple reasons. He points out first that an investigating officer
originally reported that appellant was not intoxicated. Along this same track,
appellant refers to testimony that field sobriety tests were never administered on
him, that he was never found to have been slurring his words, and that he was
actually found to be alert and oriented immediately after the accident.

      On a different track, appellant asserts that the blood evidence failed to meet
certain standards. Appellant complains that the expert who calculated the BAC of
his whole blood used a conversion ratio based on a scientific average, rather than a
consideration of appellant’s individual characteristics. Appellant points out that
                                          9
conversions depend heavily on the health of the person, and if his health were
shown to be outside the average, then a certain conversion would have established
that he was not intoxicated.

      The expert’s testimony was primarily used to prove that appellant was
intoxicated under the per se theory. Even if we were to conclude that the expert’s
methodology was inexact, the conviction would still be supported if there were
legally sufficient evidence offered under the impairment theory. We conclude that
the record contains such evidence.

      The jury heard that appellant admitted to having consumed at least four
beers on the night of the accident. Thus, there is some proof that alcohol was
introduced into appellant’s body. The jury could have reasonably determined that
the accident occurred because appellant lost the normal use of his faculties by
reason of that introduction.

      The absence of certain environmental factors supports that implied finding.
The record shows that there were few cars on the road, and that it had not been
raining. There is also no evidence of an obstacle in the road that would have
required a sudden turn.

      There was some testimony that the accident could have occurred for reasons
other than intoxication: appellant may have overcorrected, his fiancée may have
accidentally hit the steering wheel, or a tire may have blown out. But the jury was
free to disbelieve this evidence and conclude that appellant was impaired by his
consumption of alcohol. We conclude that there is legally sufficient evidence of
appellant’s intoxication, and that a rational jury could have found every element of
the offense beyond a reasonable doubt. See Lorenz v. State, 176 S.W.3d 492, 495
(Tex. App.—Houston [1st Dist.] 2004, pet. ref’d) (concluding that the evidence
was sufficient to prove the defendant’s intoxication when, among other factors,
                                        10
there was evidence that the defendant admitted to having consumed portions of
three alcoholic beverages).

II.    The Trial Court’s Finding

       In its brief, the State makes a “Confession of Unassigned Error,” contending
that there is legally insufficient evidence to support the trial court’s finding that
appellant had “an alcohol concentration level of at least 0.15.” The State bases this
confession on authority that the statutory meaning of “blood” is restricted to whole
blood, as appellant argued at trial, and there is no evidence that the BAC of
appellant’s whole blood was at least 0.15. Even if there were legally sufficient
evidence, the State asserts that the trial court should not have made its finding
because appellant’s alcohol concentration level was an element of an offense, and
therefore, it should have been submitted to the jury during the guilt-innocence
phase of trial.

       Appellant did not respond to the State’s confession in his reply brief, but we
may still address an unassigned error if it was preserved below. See Sanchez v.
State, 209 S.W.3d 117, 120–21 (Tex. Crim. App. 2006). Because a defendant need
not preserve error as to a claim that the evidence is insufficient to prove an element
of the offense for which he was convicted, we choose to address this issue. See
Flanary v. State, 166 Tex. Crim. 495, 496, 316 S.W.2d 897, 898 (1958) (op. on
reh’g).

       A.     Element or Enhancement?

       We must first decide whether a person’s alcohol concentration level
provides a basis for enhancement, as the trial court believed, or whether it
functions as the element of a completely separate offense, as the State asserts on
appeal.


                                         11
      In Calton v. State, the Court of Criminal Appeals explained the differences
between elements and enhancements. See 176 S.W.3d 231 (Tex. Crim. App. 2005).
The court said that the elements of an offense are defined as “the forbidden
conduct, the required culpability, any required result, and the negation of any
exception to the offense.” Id. at 233. A reviewing court must look to the plain
language of the statute when discerning whether any given fact constitutes an
element of the offense. Id.

      An enhancement, by contrast, is a fact that increases the punishment range to
a certain range above what is ordinarily prescribed for the crime that was charged.
Id. “It does not change the offense, or the degree of the offense, of conviction.” Id.

      With those considerations in mind, we now turn to the relevant statute, the
full text of which provides as follows:

            (a) A person commits an offense if the person is intoxicated
      while operating a motor vehicle in a public place.
            (b) Except as provided by Subsections (c) and (d) and Section
      49.09, an offense under this section is a Class B misdemeanor, with a
      minimum term of confinement of 72 hours.
             (c) If it is shown on the trial of an offense under this section
      that at the time of the offense the person operating the motor vehicle
      had an open container of alcohol in the person’s immediate
      possession, the offense is a Class B misdemeanor, with a minimum
      term of confinement of six days.
             (d) If it is shown on the trial of an offense under this section
      that an analysis of a specimen of the person’s blood, breath, or urine
      showed an alcohol concentration level of 0.15 or more at the time the
      analysis was performed, the offense is a Class A misdemeanor.

Tex. Penal Code § 49.04.

      There is only a single reference in this statute to “an alcohol concentration
level,” and it is located under Subsection (d). A plain reading of that subsection

                                          12
reveals that its effect is to convert an offense from a Class B misdemeanor to a
Class A misdemeanor whenever a person charged with driving while intoxicated is
shown to have “an alcohol concentration level of 0.15 or more.” Because this
conversion represents a change in the degree of the offense, rather than just an
enlargement of the punishment range for a Class B misdemeanor, we agree with
the State that a person’s alcohol concentration level is not a basis for enhancement.
See Calton, 176 S.W.3d at 233 (an enhancement does not change the degree of the
offense of conviction). It is instead an element of a separate offense because it
represents a specific type of forbidden conduct—operating a motor vehicle while
having an especially high concentration of alcohol in the body. Cf. Mapes v. State,
187 S.W.3d 655, 658 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (stating
that in a prosecution under Section 49.09, where the defendant is accused of
driving while intoxicated and of having prior convictions for driving while
intoxicated, the prior convictions are elements of the offense, and not bases for
enhancement, in part because they affect the degree of the offense).

      B.     Meaning of “Blood” and Evidence of Alcohol Concentration

      The evidence shows that a vial of appellant’s whole blood was obtained at
the hospital more than an hour after the accident occurred. From that sample, the
blood plasma was separated from the blood cells, and testing of the blood plasma
revealed that appellant had a BAC of 0.158. This was the only blood sample that
was ever tested for its alcohol content.

      The State’s expert converted the blood plasma results using a scientifically
accepted method and concluded that appellant’s whole blood had a BAC of 0.132.




                                           13
There was no testimony that appellant’s whole blood had a BAC that was 0.15 or
more at the time the analysis was performed.2

       Based on this evidence, a finding that appellant had “an alcohol
concentration level of 0.15 or more” could be supported only if a person’s alcohol
concentration was measured in units of blood plasma, and not whole blood.3 The
statute defining “alcohol concentration” does not provide express guidance on this
point. It does not say, for instance, whether proof must be submitted in units of
whole blood or blood plasma. Rather, it generally provides that alcohol
concentration means the number of grams of alcohol per 100 milliliters of “blood,”
without specifying which type. See Tex. Penal Code § 49.01(1)(B).

       The word “blood” is not defined in the Penal Code, but the Court of
Criminal Appeals has indicated that it can only mean whole blood. In Bigon v.
State, the court discussed the reliability of certain methods for converting the BAC
of blood serum into the BAC of whole blood. See 252 S.W.3d 360, 368 (Tex.
Crim. App. 2008). If our criminal statutes did not require proof of a person’s
intoxication as expressed in units of whole blood, there would have been no need
for the conversion testimony. Therefore, Bigon supports the conclusion that
“blood” means “whole blood.”



       2
          We explain, infra, at note 6, that the expert’s calculations were wrong. However, even if
the expert had correctly converted the results of appellant’s blood plasma testing, there would
still be no showing that the BAC of appellant’s whole blood was at least 0.15 at the time the
analysis was performed.
       3
         Although alcohol concentration is a separate element of the Class A misdemeanor
offense, appellant has not argued that the trial court violated his due process rights by not
submitting that element to the jury. Cf. Ex parte Boyd, 58 S.W.3d 134, 136 (Tex. Crim. App.
2001) (applying Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). In any event, we need not
address this issue because we conclude that appellant is entitled to an acquittal of the Class A
misdemeanor on other grounds.

                                                14
       The common definition of “blood” enforces the conclusion that the word
encompasses more than just blood plasma. A leading dictionary describes blood as
“the usually red fluid, consisting of plasma, red and white blood cells, etc., that
circulates through the heart, arteries, and veins of vertebrates.” See Webster’s New
World College Dictionary 150 (3d ed. 1996). Medical texts contain similar
definitions. See Gray’s Anatomy [5] (15th ed. 1995) (“Blood consists of a faintly
yellow fluid, the plasma or liquor sanguinis, in which are suspended numerous
minute particles, the blood corpuscles, the majority of which are coloured and give
to the blood its red tint.”).

       The Legislature has also signaled its intent that blood should not be
synonymous with blood plasma. In another statute proscribing the sale of human
organs, the Legislature expressly provided that the term “human organ” does not
include “hair or blood, blood components (including plasma), blood derivatives, or
blood reagents.” See Tex. Penal Code § 48.02(a). Because the Legislature
described plasma as a “blood component,” and juxtaposed that term with “blood”
itself, we must conclude that plasma is a only subset of blood, and that the two
terms are not congruent.

       If we apply that same understanding to the chapter proscribing the offense of
driving while intoxicated, then “blood” as used in the definition of “alcohol
concentration” must not mean “blood plasma” or any other “component” of blood.
See Tex. Gov’t Code § 311.011(b) (providing that words that have acquired a
technical or particular meaning, whether by legislative definition or otherwise,
should be construed accordingly). Instead, it must mean blood with all of its
components, which is otherwise known as “whole blood.”

       Because there is indeed no evidence that the BAC of appellant’s whole
blood was ever 0.15 or greater at the time of the blood draw, we agree with the

                                         15
State’s confession of error that the trial court’s finding is unsupported by the
record. If that were the only issue in the case, we would reform the trial court’s
judgment to reflect a conviction for a Class B misdemeanor, which is supported by
sufficient evidence as explained above, and remand for a new punishment hearing.
See Calton, 176 S.W.3d at 233; Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim.
App. 2012). Appellant has asserted other issues, however, and as we explain
below, those issues require a new trial.

                            CHARGE INSTRUCTION

      In his second issue, appellant contends that the trial court committed charge
error when it denied a request to clarify the definition of “alcohol concentration” so
that it was expressed in terms of “whole blood,” rather than just “blood.” We
review this complaint under a two-step process, considering first whether error
exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error
does exist, we then analyze that error for harm under the procedural framework of
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).

I.    Error

      The trial court must give the jury “a written charge distinctly setting forth
the law applicable to the case.” See Tex. Code Crim. Proc. art. 36.14. The State
contends that the trial court fulfilled this duty because its charge gave a definition
of “alcohol concentration” that exactly tracked the language of Section 49.01. The
charge provided: “‘Alcohol concentration’ means the number of grams of alcohol
per 100 milliliters of blood.”

      The Court of Criminal Appeals has previously stated that a jury charge that
tracks the language of a statute is “a proper charge on the statutory issue.” See
Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994). This rule has been


                                           16
expressed in other settings as well, but the court has not always adhered to it. For
instance, when the issue is whether an indictment should be quashed for failing to
provide adequate notice, the court has held that tracking the language of the statute
may not always be sufficient. In Haecker v. State, the court explained that a
charging instrument does not provide adequate notice if it tracks the language of
the statute and the statute itself is not “completely descriptive of the offense.” See
571 S.W.2d 920, 921 (Tex. Crim. App. [Panel Op.] 1978). Similarly, in State v.
Mays, the court held that an indictment will require greater specificity when a
statute uses “an undefined term of indeterminate or variable meaning.” See 967
S.W.2d 404, 407 (Tex. Crim. App. 1998). Relatedly, in the charge context, the
court has recognized that the jury should be given a definition of terms that have
acquired a technical or established legal meaning. See Medford v. State, 13 S.W.3d
769, 771–72 (Tex. Crim. App. 2000); see also Middleton v. State, 125 S.W.3d 450,
454 (Tex. Crim. App. 2003) (plurality op.).

      The principles behind Haecker, Mays, and Medford guide us when
reviewing the correctness of a jury charge. Just as the defendant must receive
adequate notice of the charges against him, the jury must understand which law to
apply, and the wording of a statute may not be enough. As the Court of Criminal
Appeals recently reiterated, “It is not the function of the charge merely to avoid
misleading or confusing the jury: it is the function of the charge to lead and to
prevent confusion.” Reeves v. State, 420 S.W.3d 812, 818 (Tex. Crim. App. 2013)
(quoting Williams v. State, 547 S.W.2d 18, 20 (Tex. Crim. App. 1977)) (emphasis
added). A charge will not prevent confusion if the statutory text on which it is
based has a variable meaning in the eyes of the jury.

      Standing alone, the statute here is not ambiguous or confusing. “Blood,” as
that term is used in Section 49.01, can have only one meaning, and that meaning is

                                         17
“whole blood” as explained above. But during the trial, the jury was not advised of
this specific definition, and even before closing arguments began, the jury received
conflicting messages regarding its meaning.

      When the State’s expert took the stand, appellant cross-examined him about
the proof needed to establish that a person is legally intoxicated. The jury heard the
following testimony:

      Q.     And in terms of the law and forensics, Texas requires that the
             sample be whole blood, correct?
             STATE:       Objection, Your Honor, that’s not the law.
             COURT:       Overruled.
      A.     Not that I’m aware.
      Q.     Let me rephrase. Not that the—it doesn’t require that the
             sample itself be whole blood, but the law mandates that the
             levels of alcohol be related to whole blood, correct?
             STATE:       Objection, Your      Honor,    calls   for   a   legal
                          conclusion.
             COURT:       Overruled.
      A.     It dictates units. Off the top of my head, I’m afraid I can’t
             answer regarding the exact statement in the law.
      Q.     Okay. You’re familiar with the term “BAC”?
      A.     Yes.
      Q.     And what does that stand for?
      A.     BAC can be used—typically it’s used for blood alcohol
             concentration.
      Q.     Okay. And if I said to you in Texas the law is that you can’t
             have .08, I believe it’s milligrams?
      A.     It would be grams per one hundred milliliters.
      Q.     Okay. So, of whole blood, correct?
      A.     Again, I would have to go back and look. It’s .08 grams per 100
             milliliters is what I remember, at this point.

                                         18
      Q.     So, you’re not even aware whether the law in Texas requires
             whole blood or plasma blood?
      A.     Without—we report all values as blood alcohol whole blood
             equivalent. I know we do run serum and plasma and then
             convert them to the whole blood equivalent and that is standard
             practice throughout the United States. I’m not going to go off
             and venture out to say what Texas law specifically delineates in
             their statutes.

      The jury never received a definitive answer from the expert, and the State
obfuscated the issue by objecting to any suggestion that whole blood is the sole
unit of measurement under the statute. As discussed further below, the State also
suggested to the jury in its closing argument that whole blood did not need to be
the unit of measurement, and the trial court overruled appellant’s objection to this
argument.

      This is not a case where the jury was free to assign its own understanding to
an undefined term from a statute. Cf. Kirsch v. State, 357 S.W.3d 645, 652 (Tex.
Crim. App. 2012) (holding that the jury should have been free to decide on its own
whether the evidence showed that the defendant was “operating” a motor vehicle).
The word “blood” is capable of only one meaning under the Penal Code, and the
jury should have been instructed of that meaning because it was the law applicable
to the case. Because the jury heard testimony regarding both whole blood and
blood plasma, we conclude that it was error to refuse appellant’s requested
instruction, which removed the possibility of confusion by specifying the type of
blood evidence that was available for consideration.

II.   Harm

      Under Almanza, the level of harm necessary for reversal depends on whether
the defendant timely and specifically objected to the jury charge. See Almanza, 686
S.W.2d at 171. If the defendant did not object, then reversal is required only if the

                                         19
trial court’s error was so egregious and created such harm that the defendant did
not have a fair and impartial trial. Id. Because the defendant in this case properly
objected, reversal is required if there was just “some harm.” Id.

      To determine harm, we weigh the following factors: (1) the jury charge as a
whole; (2) the arguments of counsel; (3) the entirety of the evidence; and (4) any
other relevant factors present in the record. See Warner v. State, 245 S.W.3d 458,
461 (Tex. Crim. App. 2008). Even though the “some harm” standard is a low
threshold, it nonetheless requires the reviewing court to find actual harm, rather
than just theoretical harm. Id. Neither party bears the burden on appeal to prove
harm or harmlessness. Id. at 462.

      A.     The Jury Charge

      The jury received a single instruction, which asked it to determine whether
appellant had “unlawfully operate[d] a motor vehicle in a public place while
intoxicated.” As stated above, the definition of “intoxicated” tracked the language
of Section 49.01, meaning that the jury was allowed to convict appellant on either
the impairment theory of intoxication or the per se theory of intoxication.
However, the jury was never asked to identify which theory it used in the event of
a conviction. Thus, we cannot know whether the jury found that appellant had lost
the normal use of his faculties as the result of his consumption of alcohol, whether
it found that the alcohol concentration in his blood was above the legal limit under
the legally flawed portion of the charge, or whether it made findings under both
theories. Accordingly, we turn to the other factors to determine whether the
erroneous denial of appellant’s requested instruction might have prejudiced the
jury’s consideration of the evidence or substantially affected their deliberations.
See Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003).



                                         20
      B.    Closing Arguments

      Appellant’s main defensive theory was that he was not the driver. During
closing arguments, appellant spent most of his time explaining that his fiancée was
responsible for the accident, and that he had initially taken the blame because he
wanted to protect her.

      In the alternative, appellant also argued that he was not intoxicated, a point
that would have been relevant only in the event that he was found to be driving.
Appellant limited his argument to just the impairment theory of intoxication. He
asked the jury to acquit him because testimony from the first responders supported
a finding that he was not impaired.

      The State argued that appellant was the driver and that he should be found
guilty under either theory of intoxication. As for the impairment theory, the State
recited testimony that appellant had consumed several beers on the night of the
accident. As for the per se theory, the State pointed to the expert’s opinion
regarding the alcohol concentration in appellant’s whole blood and blood plasma.

      Appellant asserts in his third issue that the State made an improper closing
argument. We will consider this issue as part of our harm analysis for charge error.
At the beginning of its closing argument, the State told the jury: “You won’t find
anywhere in here in the law [the charge] where it needs to be whole blood or
plasma blood. This is the law y’all follow.” Appellant objected to this argument
and asserted that the “law requires whole blood,” but the trial court overruled the
objection. By overruling appellant’s objection, the trial court gave the incorrect
impression that a conviction could be had by evidence other than whole blood,
thereby magnifying the possibility for harm. See Good v. State, 723 S.W.2d 734,
738 (Tex. Crim. App. 1986); Kincaid v. State, 534 S.W.2d 340, 342 (Tex. Crim.
App. 1976). Later, the State further magnified this erroneous ruling by telling the
                                        21
jury that it could convict appellant because the BAC of his blood plasma exceeded
0.15.

        The State’s argument was a misstatement of law.4 Proof under the per se
theory must be based on evidence of a person’s BAC in whole blood. The trial
court put its imprimatur on the improper argument by overruling an objection that
“the law requires whole blood.” Had the trial court granted appellant’s requested
instruction, the State would have known not to make its improper argument, and
the jury never would have heard those prejudicial remarks.

        C.     The Evidence

        Appellant presented affirmative evidence in support of two defensive
theories: (1) that he was not the driver, and (2) that he was not intoxicated. The
jury rejected the evidence as it related to the first defensive theory. The jury found
that appellant was the driver, and we have no reason to suspect that this finding
was a byproduct of the trial court’s charge error. If the error had any impact at all
on the jury’s deliberations, it affected the manner in which the jury assessed the
evidence of appellant’s intoxication.

        Insofar as the impairment theory of intoxication is concerned, the evidence
was conflicting. The State produced evidence that appellant was impaired: he
admitted that he consumed several beers, he had alcohol in his system, and there

        4
          The State contends that its trial argument was “plainly true” and an accurate description
of the jury charge. Because the charge did not specify that appellant’s alcohol concentration must
be measured in units of whole blood, the State believes it could not be improper to say that the
charge was silent. We disagree. By emphasizing that the charge was silent, the State’s manifest
objective was to convey to the jury that it could base a finding of intoxication on either the
evidence of whole blood or the evidence of blood plasma. This effect made the argument
improper, even though it was otherwise grounded by an accurate statement of fact. Cf. Myers v.
State, 573 S.W.2d 19, 20–21 (Tex. Crim. App. [Panel Op.] 1978) (prosecutor made an improper
closing argument when a comment about an accurate statement of fact created an implied or
indirect allusion to the defendant’s failure to testify).

                                                22
was no environmental cause for explaining the accident. Appellant emphasized a
different view of the evidence: the first responders believed that he was not
intoxicated, he was not slurring his speech, and he was described as being alert and
oriented. There was also evidence suggesting that the accident could have resulted
from a cause other than intoxication, such as an overcorrection. This alternative
explanation created a fact question for the jury to resolve.

       As for the per se theory, the evidence was complex. A hospital technician
testified that appellant’s blood sample was obtained solely for purposes of
treatment, not forensics. The technician recognized that there were differences
between whole blood and blood plasma, but he could not explain how the
concentrations of alcohol varied between the two samples. The only witness who
could explain that relationship was the State’s expert, William Arnold.

       The expert testified that the BAC of a person’s blood “serum” is 16% higher
than the BAC of his whole blood.5 Applying that ratio to the BAC of appellant’s
blood plasma, the expert opined that appellant’s whole blood had a BAC of 0.132
at the time of the blood draw.6

       During a voir dire examination, the expert conceded that his 16% ratio was
not universally accepted throughout the scientific community. He explained that

       5
         The expert did not provide a ratio as it specifically relates to a person’s blood “plasma,”
but we recognize that the differences between blood serum and blood plasma are small. Studies
have shown that alcohol concentrations are often very close between the two samples, if not the
same, with an average variance of approximately 1%. See Charles L. Winek & Mark Carfagna,
Comparison of Plasma, Serum, and Whole Blood Ethanol Concentrations, 11 J. Analytical
Toxicology 267, 267–68 (1987) (cited approvingly in Bigon, 252 S.W.3d at 368 n.6).
       6
         It appears that the expert miscalculated here. He subtracted 16% of 0.158 from 0.158
(which is the same as multiplying 0.158 by 0.84), when he should have divided 0.158 by 1.16.
See Jessup v. State, No. 13-02-00024-CR, 2004 WL 2612958, at *3 (Tex. App.—Corpus Christi
Nov. 10, 2004) (mem. op., not designated for publication) (reciting expert testimony that the
BAC of whole blood is derived by “divid[ing] the serum concentration by 1.16”). The difference
between the expert’s miscalculation and the correct calculation is de minimis.

                                                23
16% is just an average, and that the range of ratios can be “quite dramatic”
depending on the health and gender of the person. If a person has a high blood cell
count—for example, if he has leukemia—then the BAC of the person’s blood
plasma can be 50% or 60% higher than the BAC of his whole blood.

         The expert testified that he had “no idea” what ratio should apply in
appellant’s case. The expert never considered appellant’s individual characteristics,
and there was no live testimony establishing whether appellant had a blood cell
count that was within normal ranges.7 The expert advised the jury, however, that if
a higher conversion ratio did apply to appellant because he had a high blood cell
count, then the BAC of his whole blood would have been 0.079, below the per se
limit.

         In addition to this conversion testimony, the expert provided a retrograde
extrapolation analysis. The expert explained that when a person consumes alcohol,
his body will absorb the alcohol into his system until it is eliminated by the liver.
During the absorption phase, the concentration of alcohol in the body will increase
at a rate that depends on a number of factors, such as how many drinks were
consumed, how quickly they were consumed, and whether they were consumed on


         7
         Our dissenting colleague points out that appellant’s hematologic history was checked as
normal, according to a report attached to his medical records. However, this report was never
discussed at trial, and there is no indication that the jury ever saw it. At the end of closing
arguments, the trial court advised the jury that the exhibits, if requested, would be delivered to
the deliberation room: “I’ll remind you again that if you want to see the evidence, you can ask
for any or all—any or all of that, and we’ll send it into the jury room with you.” There is no
record that the jury made a request, and the trial court did not note a request in any of its docket
sheets.
       Even if the medical records had been requested, there is no showing that the jury would
have known how to interpret them. The meaning of “hematologic” is unlikely to be within the
common understanding of a lay juror. Furthermore, the records clearly denoted that appellant
had a “High” count of “WBC”—white blood cells, we presume. A juror could have seen the
records and concluded that appellant’s blood cell count was higher than average.

                                                24
a full or empty stomach. According to the expert, once all of the alcohol has been
fully absorbed, the liver will eliminate the alcohol at a constant rate of 0.015 grams
per 100 milliliters per hour.

       The expert made two assumptions: (1) that appellant was eliminating alcohol
from his system at the time of the blood draw, and (2) that the accident occurred
one and half hours before the blood draw.8 From these assumptions and his stated
formula, the expert estimated that the BAC of appellant’s whole blood at the time
of the accident was 0.133.

       The expert did not explain in detail how he arrived at that figure, nor did he
provide a factual basis for assuming that appellant was in the elimination phase.
The expert testified that a person normally enters the elimination phase within two
hours of his last drink, but there was no evidence indicating when appellant last
consumed an alcoholic beverage. Nor was there any evidence of whether appellant
had been drinking on a full or empty stomach. By assuming that the accident
happened an hour and a half before the blood draw, the expert failed to realize that,
without more information, a conclusion could not even be made that appellant had
entered the elimination phase by the time he arrived at the hospital.

       D.      Other Relevant Factors

       We first note that the expert struggled to perform his calculations, which
were “on the fly,” as he described them. The trial court had to excuse the expert


       8
         There is no concrete evidence that the accident actually happened one and a half hours
before the blood draw. The expert was simply asked to conduct his analysis assuming that time
lapse. From the live testimony, we know that the eyewitness who saw the accident was traveling
on the interstate between 11:00 p.m. and midnight. The eyewitness did not testify about the exact
time that he saw the accident, but a first responder testified that the accident happened “just
before midnight.” As for the other time point, the evidence is much clearer: a nurse testified that
she drew appellant’s blood at the hospital at 1:05 a.m.

                                                25
from the courtroom, and the expert returned to give his calculations after another
witness took the stand.

        We also note that, if appellant had been in the absorption phase at any point
between the time of the accident and the blood draw, then the BAC of his whole
blood at the time of the accident would have been equal to or less than the BAC of
his whole blood at the time of the blood draw. This is true regardless of the
conversion ratio that is used.

        E.    Analysis

        It is clear that the jury determined that appellant was driving, but it is not
clear under which theory it found that he was intoxicated. There was a conflict in
the evidence under the impairment theory. There was also a conflict under the per
se theory; the jury heard testimony that the BAC of appellant’s whole blood could
have been above or below 0.08, depending on which sorts of assumptions were
made.

        The expert’s testimony demonstrated that many variables must be accounted
for when trying to establish that a person is intoxicated per se. But under the trial
court’s erroneous view of the law, none of those variables needed to be considered
in this case. The trial court’s charge error, when combined with the State’s
improper argument, allowed the jury to convict appellant solely on the basis that
the BAC of his blood plasma exceeded the per se limit. We conclude that this error
resulted in some harm because it completely obviated the jury’s need to examine
appellant’s alternative defense, and there was affirmative evidence in support of
this defense showing that appellant was not impaired. See Anderson v. State, 774
S.W.2d 733, 735 (Tex. App.—Houston [14th Dist.] 1989, no pet.) (erroneous
instruction on the per se theory of intoxication was harmful, even though there was
sufficient evidence to convict under the impairment theory of intoxication); cf.
                                          26
Bagheri, 119 S.W.3d at 763–64 (erroneous admission of retrograde extrapolation
testimony was harmful, even though there was sufficient evidence to convict under
the impairment theory of intoxication).

                                     CONCLUSION

       The evidence is legally insufficient to support a conviction for a Class A
misdemeanor for driving while intoxicated. We render a judgment of acquittal as to
this offense, meaning that the State is barred from retrying it. See Ex parte
Granger, 850 S.W.2d 513, 518 (Tex. Crim. App. 1993).

       There is sufficient evidence to support a conviction for a Class B
misdemeanor, but because we conclude that the trial court committed harmful
errors with respect to this offense, we reverse the court’s judgment and remand the
case for a new trial.9




                                           /s/     Tracy Christopher
                                                   Justice



Panel consists of Chief Justice Frost and Justices Christopher and Busby. (Frost,
C.J., dissenting).
Publish — Tex. R. App. P. 47.2(b).




       9
         This disposition makes it unnecessary to address appellant’s fourth issue, in which he
argues that the trial court imposed an unconstitutional condition of community supervision.

                                              27
                          Appendix B


Navarro v. State, ___ S.W.3d ___, 14-13-00706-CR, 2015 WL 4103565
(Tex. App.—Houston [14th Dist.] July 7, 2015) (Frost, C.J.,
dissenting).
Reversed and Rendered in Part, Reversed and Remanded in Part, and
Substitute Majority and Dissenting Opinions filed July 7, 2015.




                                          In The

                      Fourteenth Court of Appeals

                                 NO. 14-13-00706-CR

                            JOEL NAVARRO, Appellant
                                            V.

                         THE STATE OF TEXAS, Appellee

           On Appeal from the County Criminal Court at Law No. 15
                            Harris County, Texas
                        Trial Court Cause No. 1836127

                                                                                       1
    SUBSTITUTE DISSENTING OPINION
       When police responded to a single-vehicle accident, they found the vehicle’s
two occupants — appellant and his girlfriend — in the middle of the freeway. Both
were injured. A motorist reported that he had seen their truck veer into the
highway’s median.       The truck flipped three times, ejecting the girlfriend and

1
  The dissenting opinion dated May 28, 2015, is withdrawn, and this opinion is issued in its
place.
leaving her unconscious. At the scene, appellant admitted to a police officer that
he sat down behind the wheel of the truck and turned the key. Appellant later
admitted to having consumed five beers before getting behind the wheel. The jury
convicted appellant of driving while intoxicated (“DWI”). Today, the court
reverses the conviction.

       In an apparent first in the history of Texas jurisprudence, the majority holds
the trial court erred in defining a term for the jury using the same unambiguous
language the Texas Legislature used to define the term in the statute establishing
the charged offense. After finding error, the majority also finds harm, despite
overwhelming evidence that appellant was driving while intoxicated.                   Seeing
neither error nor harm, I respectfully dissent.

                                    The Jury Charge

       In the jury charge for the guilt/innocence phase, the trial court defined
“alcohol concentration” as “the number of grams of alcohol per 100 milliliters of
blood.” Appellant objected and requested the trial court to insert the word “whole”
so that the definition would read “the number of grams of alcohol per 100
milliliters of whole blood.” The trial court overruled appellant’s objection and
refused to submit the definition in the form appellant requested.

       Article 36.14 of the Code of Criminal Procedure requires a trial court to
provide a written jury charge distinctly setting forth the law applicable to the case.2
The definition the trial court submitted tracks the plain language the Texas
Legislature chose to define “alcohol concentration” in the DWI statute.3 In this


2
 See Tex. Code Crim. Proc. art 36.14 (West, Westlaw through 2013 3d C.S.); Casey v. State,
215 S.W.3d 870, 886 (Tex. Crim. App. 2007).
3
 See Tex. Penal Code Ann. § 49.01(1) (stating that “‘[a]lcohol concentration’ means the number
of grams of alcohol per . . . 100 milliliters of blood”) (West, Westlaw through 2013 3d C.S.).

                                              2
definition, the trial court set forth the law applicable to the case. 4 A jury charge
that tracks the language of a particular statute is a proper charge on the statutory
issue.5

                                            No Error

          Citing a leading dictionary and a medical textbook, the majority explains
that the plain meaning of the term “blood” is whole blood and concludes the trial
court erred in refusing to substitute the term “whole blood” for the term “blood”
because the charge had a “variable” meaning in the eyes of the jury. The majority
concludes the charge had a variable meaning because the State’s expert witness did
not know whether the term “blood” meant “whole blood” in a legal context. The
expert did not testify that the term meant blood plasma. The expert explained that
blood plasma and whole blood are different in that the Houston Police Department
crime lab uses whole blood if it is available and converts blood plasma into whole
blood if whole blood is not available. In response to a question asking if the expert
was aware whether Texas law required whole blood or blood plasma, the expert
stated:

         Without -- we report all values as the blood alcohol whole blood
         equivalent. I know we do run serum and plasma and then convert
         them to the whole blood equivalent and that is standard practice
         through the United States. I’m not going to go off and venture to say
         what Texas [l]aw specifically delineates in their statutes.

4
    See Casey, 215 S.W.3d at 886–87.
5
  See Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994). Citing to two opinions, the
majority states that the jury should be given the definition of a term that has acquired a technical
or established legal meaning. See Medford v. State, 13 S.W.3d 769, 771–72 (Tex. Crim. App.
2000); Middleton v. State, 125 S.W.3d 450, 454 (Tex. Crim. App. 2003) (plurality op.). But, in
neither did the Court of Criminal Appeals hold the trial court abused its discretion in not
charging the jury on the definition of a term with a technical or established legal meaning. In
any event, neither the majority nor the parties cite any cases holding that “blood” is either a
technical term or a term with an established legal meaning.

                                                 3
The majority concludes the State obfuscated the meaning by objecting to any
suggestion that whole blood is the sole unit of measurement under the statute. But,
the trial court overruled those objections.

          Neither appellant nor the majority cite, and research has not revealed, any
Texas precedent holding that the trial court’s definition of “alcohol concentration”
is erroneous or that appellant’s proffered definition is required. Nor has research
revealed any Texas precedent holding that a trial court errs in submitting a jury
charge that tracks the applicable Texas statute. This court should not do so.
Instead, the court should conclude that the trial court did not err in overruling
appellant’s objection and refusing to submit the definition in the form appellant
requested.6 Because the trial court did not err, there is no need to conduct a harm
analysis.

                                            No Harm

          Even presuming for the sake of argument that the trial court erred in
rejecting appellant’s proposed jury charge, the error is harmless. If a jury charge
contains error, an appellate court must analyze that error to determine whether it is
harmful.7       Because appellant timely objected to the charge, this court should
reverse only if appellant suffered “some harm.”8 In assessing harm under this
standard, the court is to weigh (1) the jury charge as a whole; (2) the arguments of
counsel; (3) the entirety of the evidence; and (4) any other relevant factors present
in the record.9 Even though the “some harm” standard is a low threshold, to find



6
    See Casey, 215 S.W.3d at 886; Riddle, 888 S.W.2d at 8.
7
    Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005).
8
    See id.
9
    See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008).

                                                4
“some harm” the reviewing court must find actual harm, rather than just theoretical
harm.10 Neither party bears the burden on appeal to prove harm or harmlessness.11

           In assessing the jury charge as a whole, the majority notes that the charge
required the jury to find appellant guilty if the jury determined appellant was
intoxicated under either an impairment theory or a per se theory. The majority
finds “some harm” from the charge because the jury may have disregarded the trial
court’s unambiguous instructions and found that appellant was intoxicated based
solely on a finding that appellant’s blood plasma had an alcohol concentration of
0.08 or more. In analyzing counsel’s closing arguments, the majority notes the
State may have emphasized the alleged jury-charge error.                   As the majority
acknowledges, however, in the balance of appellant’s argument he argues he was
not the driver—an argument the jury rejected—and that the evidence did not show
he was impaired under the impairment theory of intoxication.

           The State presented substantial evidence that appellant was intoxicated
under both per se and impairment theories.                The alcohol concentration of
appellant’s blood plasma was .158. The expert testified that, on average, 16
percent of whole blood is consumed by cellular material. According to the expert,
blood plasma does not contain that material, which means the alcohol
concentration of blood plasma, on average, is 16 percent higher than the alcohol
concentration of whole blood.           Using this calculation, the expert converted
appellant’s plasma-alcohol concentration of .158 to a whole-blood-alcohol
concentration of .132, well above 0.08.12


10
     Id.
11
     Id. at 462.
12
  Significantly, to the extent the jury was relying upon the alcohol-concentration part of the
definition of “intoxicated,” the jury was asked to determine whether the evidence proved beyond
                                              5
       The majority emphasizes the expert’s testimony that the percentage of a
whole blood cell consumed by cellular material can vary under certain
circumstances, including blood cancer.             The expert noted that in the case of
leukemia, 50 percent to 60 percent of an affected individual’s whole blood could
contain cellular material. The majority notes that if appellant’s blood-cell
composition mirrored that of a cancer patient, then appellant’s whole-blood-
alcohol concentration would have been .079, just under the legal limit of .08. But,
appellant’s blood composition did not mirror a leukemia patient’s blood
composition.

       The record evidence contains appellant’s medical records.13 Among them is
a hematology report.14 This report contains a complete blood count with reference
ranges. The report shows that appellant’s red blood cell count, hemoglobin level,
and platelet count were all within the reference range and that only appellant’s
white blood cell count was outside of the reference range.                         Appellant’s
hematologic history is checked as “normal.” Appellant’s medical records contain
no notation of a leukemia diagnosis or any other blood or bone marrow disorder.
This evidence weighs against the conclusion that appellant’s plasma blood-alcohol
concentration was 50 percent to 60 percent higher than his whole blood-alcohol


a reasonable doubt that the blood-alcohol concentration was .08 or greater; the jury was not
asked to make any determination regarding an alcohol concentration of 0.15 or higher.
       13
          The trial court advised the jury that exhibits would be delivered to the jury room if
requested. This instruction accords with Texas Code of Criminal Procedure article 36.25, which
provides that exhibits must be furnished to the jury upon the jury’s request. See Tex. Code Crim.
Proc. Ann. art. 36.25 (West, Westlaw through 2013 3d C.S.).
       14
          The majority speculates about whether the medical records went into the jury room and
whether the jury understood what the hematology report meant. The relevant inquiry is whether
the report was part of the evidence the jury could consider. It was. In determining harm under
Almanza, this court must consider the entire record. See Arrington v. State, 451 S.W.3d 834,
840–44 (Tex. Crim. App. 2015) (reversing court of appeals for finding error harmful without
considering entire record).

                                               6
concentration. Considering this evidence in light of the expert’s testimony that, on
average, an individual’s plasma blood-alcohol concentration is 16 percent higher
than the individual’s whole blood-alcohol concentration, leads to the conclusion
that appellant’s whole blood-alcohol concentration was over the legal limit of .08.
Under a per se theory, the evidence supporting appellant’s conviction is strong.

       The evidence also shows appellant was intoxicated under the impairment
theory.15 A paramedic who arrived on the accident scene testified that appellant
told him (1) appellant had consumed four alcoholic beverages and (2) appellant
was the driver of the truck. Medical records admitted into evidence include notes
from a social worker. According to the notes, appellant told the social worker he
had been drinking before the accident; appellant placed his consumption count at
five beers rather than the four beers he had told the paramedic.16 Evidence shows
that appellant was driving the truck on the interstate highway in light traffic and
good conditions when the truck veered suddenly and sharply into a concrete barrier
with enough force to roll the truck three times.                Other evidence shows the
circumstances of the single-vehicle crash suggested it was an alcohol-related event
based on appellant’s admission to having consumed four or five beers before the
crash as well as appellant’s behavior at the scene, which included lying to police
officers.17 There are no other relevant factors.18

       Weighing the jury charge as a whole, the arguments of counsel, the evidence
       15
           See Butler v. State, 981 S.W.2d 849, 857–58 (Tex. App.—Houston [1st Dist.] 1998,
pet. ref’d) (holding no harm resulted from charge error relating to one theory of guilt because
evidence supported guilt under alternate theory).
       16
          See Atkins v. State, 990 S.W.2d 763, 769 (Tex. App.—Austin 1999, pet. ref’d) (holding
jury-charge error harmless in light of evidence the defendant was intoxicated, including
admission of drinking multiple beers).
       17
            See id.
       18
          The expert’s de minimis calculation errors did not significantly affect the evidence of
appellant’s whole-blood-alcohol concentration.

                                               7
presented in the case, and concluding there are no other relevant factors, this court
should conclude that any error by the trial court is harmless because of the
overwhelming evidence of appellant’s guilt.19

                                    Conclusion

      The trial court charged the jury in accordance with Texas law. The trial
court did not err in refusing appellant’s request to add language to the jury charge.
Even if the trial court had erred in refusing appellant’s request, the error would be
harmless because the evidence of appellant’s guilt is overwhelming. Therefore,
this court should reverse the trial court’s judgment and remand this case to the trial
court to reform the judgment to reflect a conviction for the Class B misdemeanor
under Penal Code section 49.04(a), and to conduct a new punishment hearing.




                                       /s/       Kem Thompson Frost
                                                 Chief Justice


Panel consists of Chief Justice Frost and Justices Christopher and Busby
(Christopher, J., majority).
Publish — TEX. R. APP. P. 47.2(b).




      19
           See id.

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