
Opinion issued January 11, 2007













In The
Court of Appeals
For The
First District of Texas



NO. 01-05-00845-CR



LARRY DOUGLAS HENRY, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1028549



O P I N I O N
	A jury convicted appellant, Larry Douglas Henry, of intoxication manslaughter
and assessed punishment at nine years in prison.  See Tex. Pen. Code Ann. § 49.08
(Vernon 2003).  In four points of error, appellant contends (1) the trial court erred by
denying appellant's request to instruct the jury on the lesser-included offense of
driving while intoxicated; (2) he received ineffective assistance of counsel during the
voir dire examination of the venire; (3) the trial court abused its discretion in
admitting the results of appellant's blood analysis without a proper chain of custody;
(4) the trial court abused its discretion in admitting the results of appellant's blood
analysis and testimony regarding that analysis over appellant's hearsay objections.  
	We reverse and remand the cause.Background
	On October 31, 2004, appellant visited his neighbor, Troy Hewlitt, at his
Northwest Houston home around nine o'clock in the evening.  Appellant testified to
drinking half a beer while at Hewlitt's house.  Later that evening, appellant's friend,
Douglas McIntyre, arrived at Hewlitt's house.  During the evening, McIntyre began
to argue with his wife, and appellant offered to leave Hewlitt's house with McIntyre,
so that McIntyre could "cool off a little bit." 
	Appellant drove McIntyre in appellant's Ford F-350 pickup truck to The Alamo
Ice House, a bar approximately 15 to 20 minutes from Hewlitt's house, where
appellant was previously scheduled to meet someone about a job opportunity. 
Appellant and McIntyre stayed at the bar for approximately one hour, where they
each consumed two beers. 
	During the drive back to Hewlitt's house, McIntyre testified that appellant was
not speeding, was driving in accordance with all other rules of traffic, and was not
swerving or swaying.  As they approached Hewlitt's neighborhood, traveling
southbound on Hollister Road, appellant approached the intersection of West Little
York and Hollister.  McIntyre testified that he recalled appellant turning on his left
turn signal before he entered the intersection.  Appellant attempted to make a left turn
from Hollister onto West Little York when he collided with a Honda sedan, driven
by the complainant, Jose Sanchez, who was traveling northbound on Hollister. 
	Melissa Penilla testified that the she was traveling northbound on Hollister
directly behind the complainant at the time of the accident.  She testified that she
witnessed the complainant drive through a red light from the left turn lane at the
Hollister and West Little York intersection and collide with appellant's truck. 
	Captain R. Roberts of the Houston Fire Department arrived at the accident
scene, where he and his team had to remove the complainant from his vehicle with
the "jaws-of-life."  The complainant did not respond to emergency personal and
appeared to have severe facial injuries and blood loss as a result of the accident.  An
ambulance transferred the complainant to Ben Taub Hospital where he was
pronounced dead later that evening. 
	Harris County Sheriff Deputies at the accident scene suspected that appellant
might have been drinking.  They administered a field sobriety test to appellant and,
after determining that appellant did not have control of his physical and mental
faculties at the time of the accident, transported him to Ben Taub Hospital.  After the
hospital staff treated appellant for injuries he had suffered in the accident, Harris
County Sherriff's Deputy A. Marines performed another field sobriety test.  After
appellant failed the field sobriety test for a second time, Deputy Marines arrested him
for intoxication manslaughter. 
	Deputy Marines then supervised the collection of appellant's blood sample by
a nurse at the hospital.  Marines delivered the sample to the Harris County Medical
Examiner's Office for analysis.  Dr. Terry Danielson, the assistant chief toxicologist
with the Harris County Medical Examiner's Office, testified that appellant's blood-alcohol content was 0.22 grams of alcohol per 100 milliliters blood, which was over
the legal limit of 0.08 grams per 100 milliliters. See Tex. Pen. Code Ann. §
49.01(1)(B), (2)(B) (Vernon 2003) (defining intoxication as having a blood-alcohol
content level of 0.08 grams of alcohol per 100 milliliters of blood or more).  Dr.
Danielson conceded that his laboratory staff performed the actual analysis of
appellant's blood and that he only approved the results. 
	A jury later convicted appellant of intoxication manslaughter.  Appellant
appeals from his conviction.
Lesser-Included Offense
 In his first point of error, appellant contends that the trial court erred by
denying his request for a jury instruction on the lesser-included offense of driving
while intoxicated ("DWI").  Prior to the court's reading the charge to the jury,
appellant requested that the lesser-included offense of DWI be included in the jury
charge.  The court denied the request.
	The defendant's request for a lesser-included offense instruction to the jury
should be granted if a two-pronged test is met.  Ferrel v. State, 55 S.W.3d 586, 589
(Tex. Crim. App. 2001).  First, "the charged offense [must] include[] the proof
required to establish the lesser-included offense."  Id.; Tex. Code Crim. Proc. Ann.
art. 37.09(1) (Vernon 2006).  Second, there must be "some evidence in the record that
would permit a jury rationally to find that if the defendant is guilty, he is guilty only
of the lesser offense."  Ferrel, 55 S.W.3d at 589.
 Here, the State charged appellant with intoxication manslaughter.  See Tex.
Pen. Code Ann. § 49.08.  Intoxication manslaughter is committed if a person (1)
"operates a motor vehicle in a public place," (2) "is intoxicated," and (3) "by reason
of that intoxication, causes the death of another by accident or mistake."  Id. §
49.08(a).  Appellant requested that DWI be included in the charge as a lesser-included offense of intoxication manslaughter.  A person is DWI "if the person is
intoxicated while operating a motor vehicle in a public place."  Id. § 49.04(a) (Vernon
2003).  Because intoxication manslaughter includes all of the elements of DWI,
intoxication manslaughter includes the proof required to establish the offense of
driving while intoxicated.  Thus, the misdemeanor offense of driving while
intoxicated is a lesser included-offense of intoxication manslaughter.  Ramirez v.
State, 01-05-00533-CR, 2006 WL 2075261, at *2 (Tex. App.--Houston [1st Dist.]
June 29, 2006, pet. ref'd); Martin v. State, 84 S.W.3d 267, 269 (Tex.
App.--Beaumont 2002, pet. ref'd).  The first prong of the lesser-included-offense test
has been satisfied. (1) 
	We next determine whether some evidence is included in the record that would
allow a rational juror to find that, if the appellant is guilty, he is guilty only of the
requested lesser offense.  Ferrel, 55 S.W.3d at 589.  We may not consider "whether
the evidence is credible, controverted, or in conflict with other evidence."  Moore v.
State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).  If some evidence "affirmatively
rebuts or negates" a required element of the charged offense, the lesser-included
charge may be raised.  Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996). 
	Here, a required element in the charged offense of intoxication manslaughter
is causing the death of another by reason of the intoxication, which is not required in
the requested lesser offense of DWI.  Compare Tex. Pen. Code Ann. § 49.08(a), with
Tex. Pen. Code Ann. § 49.04(a).  It is not enough that operation of a vehicle, even
by an intoxicated person, causes the death; rather, the "death must be the result of the
intoxication and proof must be made . . . of that thing which worked a causal
connection between the intoxication and the death."  Daniel v. State, 577 S.W.2d 231,
233 (Tex. Crim. App. 1979); see also Glauser v. State, 66 S.W.3d 307, 313 (Tex.
App.--Houston [1st Dist.] 2000, pet. ref'd). 
	In Ramirez v. State, we considered whether the trial court erred when denying
a request for the lesser included charge of DWI when the charged offense was
intoxication manslaughter.  Ramirez, 2006 WL 2075261, at *1.  Ramirez was driving
his girlfriend and his two daughters home from the grocery store when his car crossed
the median of the road on which they were traveling and struck an oncoming truck. 
Id.  Ramirez's daughter died from the injuries sustained in the accident.  Id.  When
the police performed a blood-alcohol analysis on him, Ramirez had 0.20 grams of
alcohol per 100 milliliters of blood, significantly over the 0.08 limit; he was charged
with intoxication manslaughter for the death of his daughter.  Id. 
	The testimony at trial showed that prior to the accident, Ramirez was arguing
with his girlfriend and that either she took control of the steering wheel, causing the
car to loose control, or he lost control of the vehicle while retrieving a child-support
check.  Id.  We concluded that, even though the evidence may be contradictory, at
least some evidence showed that the death was not caused by appellant's intoxication;
therefore, we held that appellant was harmed because the trial court erred in not
instructing the jury on the lesser included-offense of DWI.  Id. at *2.
	Here, appellant's blood alcohol content was 0.22 grams of alcohol per 100
milliliters of blood, and he failed two field sobriety tests.  However, Penilla, an
eyewitness to the accident, testified that the complainant's car, a green Honda, was
driving in front of her and that the Honda was in the same left hand lane as she was.
She stated that "the car in front of me ran the red light and got in an accident with the
truck."  She said that she saw and heard everything.  She also believed that the
complainant was in the process of turning left on West Little York.  
	In addition, Thomas Grubbs testified for appellant as an accident-reconstruction expert and concluded from his investigation that the complainant's
Honda was traveling at 51 miles-per-hour at the time of impact.  The speed limit on
Hollister was 40 miles-per-hour according to Deputy D. Pearson.  Penilla testified
that the speed limit on Hollister was 35 miles-per-hour.
	McIntyre testified that appellant was obeying all traffic laws and not swerving,
swaying, or speeding at the time of the accident.  McIntyre also testified that the light
only turned yellow as appellant's truck entered the intersection.  McIntyre testified
that, when they left the bar, appellant did not seem impaired to him.  Appellant did
not slur his speech and did not walk "funny" or stagger in any way.  As they were
driving home, appellant was not exceeding the speed limit or swerving along the
road. McIntryre testified that it appeared to him that appellant was obeying all the
traffic laws.  McIntrye stated that, "as far as [he could] recall," appellant used his turn
signal. McIntrye further testified that he did not see any headlights coming toward
him.  As appellant approached the intersection, it was green, but then changed to
yellow.  McIntryre believed that, as they "hit the intersection," the light turned to
yellow.
	Like Ramirez, appellant has offered at least some evidence that the
complainant's death was not caused by appellant's intoxication.  See Ramirez, 2006
WL 2075261, at *2.  If a jury chose to believe Penilla and Grubbs, appellant's
accident reconstruction expert, it could rationally conclude that the complainant's
conduct of running a red light and speeding was clearly sufficient to cause the
accident and the complainant's subsequent death.  Likewise, if a jury chose to believe
only the testimony of appellant's passenger, McIntyre, it could rationally conclude
that appellant's intoxication--which according to McIntyre did not manifest itself in
the violation of traffic laws or any other behavior that would demonstrate the loss of
physical and mental capacity--was clearly insufficient to cause the complainant's
death.  Accordingly, appellant has produced more than a scintilla of evidence to
negate the causation element of the charged offense of intoxication manslaughter, and
a rational juror could have found appellant guilty only of the lesser-included offense
of DWI.  Thus, the trial court erred in denying appellant's request for a jury
instruction on the lesser-included offense of DWI. (2) See Ramirez, 2006 WL 2075261,
at *2.
Has appellant been harmed?
	If the trial court errs in regard to the jury charge in a criminal case, and the
appellant timely objects to that error at trial, as in the instant case, we determine harm
by conducting an Almanza harm analysis.  See Saunders v. State, 840 S.W.2d 390,
392 (Tex. Crim. App. 1992); O'Brien v. State, 89 S.W.3d 753, 756 (Tex.
App.--Houston [1st Dist.] 2002, pet. ref'd); see also Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985) (op. on reh'g).  In that analysis, some harm is
required for reversible error.  Almanza, 686 S.W.2d at 171.  "Some" harm in an
Almanza analysis means "any " harm; thus, if the charging error causes any actual
harm to the appellant, as opposed to "theoretical harm," then the error requires a
reversal of the judgment of the trial court.  Arline v. State, 721 S.W.2d 348, 351 (Tex.
Crim. App. 1986); Almanza, 686 S.W.2d at 171.  If the charge error involves the
absence of a lesser-included offense that leaves the jury with the sole option to
convict the appellant of the charged offense or to acquit him, some harm exists. 
Saunders v. State, 913 S.W.2d 564, 572 (Tex. Crim. App. 1995); Ramirez, 2006 WL
2075261, at *2.
	Although the evidence showed that appellant may be guilty only of the lesser
offense, DWI, the trial court gave the jury the sole option of convicting appellant of
the charged offense of intoxication manslaughter or acquitting him.  The "available
compromise" of the lesser-included offense was absent due to the error of the trial
court.  See Saunders, 913 S.W.2d at 572.  Accordingly, because some harm exists, the
error is reversible.  See Ramirez, 2006 WL 2075261, at *2.  We hold that appellant
suffered harm because the trial court erred by not giving the jury the option of finding
him guilty of a lesser-included offense that was raised by evidence.  Id.
	We sustain appellant's first point of error.
 Conclusion

	Because we sustain appellant's first point of error, that the trial court
committed  reversible error by denying appellant's request for a jury instruction on
the lesser-included offense of DWI, we reverse the judgment of the trial court and
remand for further proceedings.



						Evelyn V. Keyes
						Justice

Panel consists of Justices Taft, Keyes, and Hanks.
Publish.  Tex. R. App. P. 47.2(b).
1. The State does not dispute that misdemeanor DWI is a lesser included offense of
intoxication manslaughter.
2. Moreover, the trial court gave appellant an instruction on concurrent causation.  See
Tex. Pen. Code Ann. § 6.04 (Vernon 2003).  The charge stated, "A person is
criminally responsible if the result would not have occurred but for his conduct,
operating either alone or concurrently with another cause, unless the concurrent cause
was clearly sufficient to produce the result and the conduct of the defendant clearly
insufficient."  By giving appellant a section 6.04 instruction, the trial court
acknowledged that causation was a fact issue, and therefore, appellant was entitled
to an instruction on the lesser included offense of DWI.
