                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-09-00387-CR

AARON ZANE SOMERS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee


                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 08-00910-CRF-272


                                    OPINION


      Aaron Zane Somers was convicted of intoxication manslaughter. See TEX. PENAL

CODE ANN. 49.08 (Vernon Supp. 2010). The jury assessed his punishment at twelve

years in prison and a fine of $8,000. We affirm.

                                  BACKGROUND FACTS

      As social chairman for his fraternity, Somers planned a “jungle theme” party.

The police responded to a noise complaint at the fraternity house at 11:45 p.m. on the

night of the party. Somers spoke to the police and informed the officers that he was in

charge and to direct any further complaints to him. Police determined that Somers was
slightly intoxicated at that time, but did not detain or question him. Police returned to

the fraternity house at 2:00 a.m. again in response to a noise complaint. At that time,

Somers agreed to shut down the band. The police found Somers to be more intoxicated

than at the previous encounter. Police returned at 2:30 a.m. to end the party, but did

not see or speak to Somers at that time.

        A police officer who responded to the noise complaint at the fraternity house

was later called to the scene of a major accident at 3:24 a.m. The officer recognized

Somers at the scene. Somers was still wearing his costume from the fraternity party.

Somers told the officer that he was not driving the overturned pickup, but he did not

know how he got on the highway. The pickup was registered to Somers’s mother.

Based upon witnesses and evidence at the scene, the officer believed Somers was

driving the pickup at the time of the accident. The officer performed field sobriety tests

on Somers and then placed him under arrest for driving while intoxicated.

        Michelle Briggs was the sole occupant of the vehicle struck by Somers’s pickup.

She was taken by ambulance to the hospital where she later died.

                                        DRUG USE

        Somers brings three issues on appeal relating to the drug use of the victim,

Michelle Briggs. The trial court held a hearing during trial on the admissibility of

Michelle’s drug use. Somers sought to admit evidence of Michelle’s positive drug test,

statements Michelle made three days before the accident, and crack pipes found in

Michelle’s purse at the scene of the accident.




Somers v. State                                                                     Page 2
Drug Test Evidence

        Somers first argues that the State misled the trial court and trial counsel by the

Department of Public Safety withholding the true results of Michelle’s drug tests. The

DPS crime lab performed drug analysis of Michelle’s blood.           DPS performed an

enzyme-multiplied immunoassay technique, which is a screening test for classes of

drugs. DPS tested Michelle’s blood for six different classes of drugs with the EMIT test.

The test was positive for benzoylecgonine, called cocaine and its metabolites class. It

was also positive for the amphetamine class. EMIT test results are used as a screening

device and are not reliable without a confirmation test.

        A forensic scientist at DPS testified that she conducted a gas chromatograph test

on Michelle’s blood as a confirmation test. The test was negative for cocaine and the

two metabolites in cocaine. Because the confirmation test was negative, DPS could not

testify that there was cocaine present in Michelle’s blood. The DPS scientist testified

that Michelle’s blood sample did not contain the usual preservative. Cocaine breaks

down quickly in the blood and the GC test was done almost a year after the EMIT test.

The DPS scientist stated that negative confirmation GC test could have been caused by

the lack of preservative in the blood sample. However, because the confirmation test

was negative, DPS could not report a positive cocaine finding based solely upon the

EMIT test. The trial court excluded the EMIT test results.

        Somers specifically argues in his first issue on appeal that the State failed to

disclose favorable evidence that the GC test was not in conflict with the EMIT test in

violation of Brady v. Maryland, 373 U.S. 83 (1963). The suppression by the prosecution of

Somers v. State                                                                     Page 3
evidence favorable to an accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the good faith or bad faith of

the prosecution. Brady v. Maryland, 373 U.S. at 87. Evidence is material if there is a

reasonable probability that, had the evidence been disclosed to the defense, the outcome

of the proceedings would have been different. United States v. Bagley, 473 U.S. 667, 682

(1985). Prosecutors have a duty to learn of any evidence favorable to the defense that is

known to others acting on the government's behalf in the case, including the police.

Kyles v. Whitley, 514 U.S. 419, 437 (1995). Under Brady, the defendant bears the burden

of showing that, in light of all the evidence, it is reasonably probable that the outcome

of the trial would have been different had the prosecutor made a timely disclosure.

Webb v. State, 232 S.W.3d 109, 115 (Tex. Crim. App. 2007).

        Rod McCutcheon, chief toxicologist and medical examiner for Bexar County who

also serves as a private consultant, testified on Somers’s behalf at the motion for new

trial. McCutcheon stated that he reviewed the DPS materials provided relating to

Michelle’s drug tests results. McCutcheon testified that the DPS analysis shows a small

amount of cocaine present in the sample but that it was reported as negative because it

was not enough to meet the acceptance criteria to be considered as a positive result.

McCutcheon testified that cocaine is easily degraded and needs a preservative. Because

the GC test was conducted almost a year after the EMIT test, McCutcheon does not feel

the results are inconsistent.

        McCutcheon’s testimony was based upon DPS material provided to Somers’s

counsel before trial. McCutcheon testified that although the GC test indicated trace

Somers v. State                                                                       Page 4
amounts of cocaine, he would not report it as positive because it did not meet the

acceptance criteria.

        The record does not support Somers’s argument that the State withheld the true

results of Michelle’s blood tests in violation of Brady. The State provided Somers with

the DPS analysis prior to trial. There is no dispute that the records provided indicate a

trace amount of cocaine. The DPS scientist testified that there was no “analite” present.

McCutcheon stated in reference to that testimony “I would like to know what she

meant by that. I don’t really know if she meant there is not even a trace indicated in the

record or there is not a trace that we could report that met the criteria.” McCutcheon

acknowledged that the trace amount was not enough to be reported as positive. The

DPS scientists agreed with McCutcheon’s testimony that the failure to properly

preserve the blood sample could have contributed to the negative GC test. We do not

find that the State withheld material evidence or misled trial counsel and the trial court.

We overrule Somers’s first issue on appeal.

Exclusion of Evidence

        Somers next argues that the trial court erred in excluding Michelle’s EMIT and

GC drug test results and Michelle’s statements to her employer. Somers intended to

present evidence that Michelle was a habitual cocaine user and likely died from a heart

attack prior to the collision. When reviewing a trial court's ruling on the admission of

evidence, we apply an abuse of discretion standard of review. Casey v. State, 215 S.W.3d

870, 879 (Tex. Crim. App. 2007). A trial court abuses its discretion when its decision lies

outside the zone of reasonable disagreement. Id.

Somers v. State                                                                      Page 5
        Somers sought to introduce the EMIT and GC test results to show Michelle was

using cocaine at the time of the accident. As previously discussed, the EMIT test was

positive for cocaine, but the confirmation GC test was negative. EMIT test results are

not reliable without a positive confirmation test. The trial court did not abuse its

discretion in excluding the test results.

        Somers also sought to introduce Michelle’s statements to her employer as

statements against interest. TEX. R. EVID. 803(24). Three days prior to the accident,

Michelle was given a drug test at her place of employment because she appeared

“high.”           The   drug   test   was   positive   for   cocaine,   amphetamines,    and

methamphetamines. Michelle stated “whatever” when told she was being terminated

due to the positive drug test.

        A statement against interest is an exception to the hearsay rule and is:

                A statement which was at the time of its making so far contrary to
        the declarant’s pecuniary or proprietary interest, or so far tended to
        subject the declarant to civil or criminal liability, or to render invalid a
        claim by the declarant against another, or to make the declarant an object
        of hatred, ridicule, or disgrace, that a reasonable person in declarant’s
        position would not have made the statement unless believing it to be true.
        In criminal cases, a statement tending to expose the declarant to criminal
        liability is not admissible unless corroborating circumstances clearly
        indicate the trustworthiness of the statement.

        TEX. R. EVID. 803(24).        Michelle’s statement of “whatever” in response to

termination for failing a drug test was not an admission of drug use. The trial court did

not abuse its discretion in refusing to admit the statement as a statement against

interest. We overrule Somers’s second and third issues.




Somers v. State                                                                         Page 6
                                   AUTOPSY REPORT

        Somers next argues that the trial court erred in admitting the autopsy report

through the treating physician at the emergency room rather than the medical examiner

who performed the autopsy. The trial court admitted the autopsy report over Somers’s

objection based upon the Sixth Amendment confrontation clause. Somers also received

a running objection “to any references that Dr. Alford may make to the autopsy.”

Somers claims that the autopsy report is the only evidence that conclusively states that

Michelle died of blunt force injuries and that he was unable to cross-examine the

medical examiner who prepared the report in violation of Crawford v. Washington, 541

U.S. 36 (2004).

        Dr. Richard D. Alford testified that he treated Michelle at the emergency room

and that she had air and blood in her chest as a result of blunt trauma. Michelle also

had a tear in her liver from blunt force injury. Dr. Alford further testified that a CAT

scan of Michelle’s brain revealed that she suffered a severe head injury and possible

spinal cord injury. Dr. Alford testified without objection that her cause of death was

multiple trauma, head injury, and spinal cord injury.

        Any error in the admission of evidence is cured when the same evidence comes

in elsewhere without objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App.

2004). Somers objected to the admission of the autopsy report and to any reference to

the autopsy. Dr. Alford testified to the cause of death as her treating physician without

reference to the autopsy report. We overrule the fourth issue.




Somers v. State                                                                    Page 7
                                 IDENTITY OF THE DRIVER

        Somers next argues that he received ineffective assistance of counsel because his

trial counsel failed to adequately investigate the possibility that someone other than

Somers was driving the vehicle that struck Michelle.         Somers also argues that the

possibility of another driver is newly discovered evidence which would bring about a

different result.

Facts

        William Duvall was a passenger in a pickup traveling near the scene of the

accident. Duvall observed a pickup behind him swerving. After the pickup he was in

turned, Duvall heard a crash. They turned around and went to the scene, arriving 30 to

60 seconds after hearing the collision. Duvall saw appellant on his knees near the

overturned pickup.

        Duvall gave a statement to police that was provided to trial counsel prior to trial.

Trial counsel had a member of his staff prepare a transcript of the interview. Trial

counsel also had an investigator interview Duvall and that interview was also

transcribed.

        Somers’s trial counsel testified at the motion for new trial that he mistakenly

believed Duvall said that a person approached the scene on foot and told Somers not to

say anything to police.     After reviewing the State’s transcripts, trial counsel now

understands the person approached on foot and told Duvall not to call the police or

speak to police. Somers argues that that person could have been the driver of the

pickup that struck Michelle.

Somers v. State                                                                       Page 8
Ineffective Assistance of Counsel

          To determine if trial counsel rendered ineffective assistance, we must first

determine whether Somers has shown that counsel's representation fell below an

objective standard of reasonableness and, if so, then determine whether there is a

reasonable probability that the result would have been different but for counsel's errors.

Strickland v. Washington, 466 U.S. 668, (1984). We must indulge a strong presumption

that counsel's conduct fell within the wide range of reasonable professional assistance,

and Somers must overcome the presumption that, under the circumstances, the

challenged action might be considered sound trial strategy. Stafford v. State, 813 S.W.2d

503, 508-09 (Tex. Crim. App. 1991). An allegation of ineffective assistance must be

firmly founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness. Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).

          Somers’s trial counsel reviewed Duvall’s interviews prior to trial. Trial counsel

questioned Duvall at trial whether he told police there might have been another driver.

Duvall consistently stated that he did not see anyone flee the scene of the accident and

that he saw appellant crawling out of the overturned pickup. Somers has not shown

that his trial counsel was ineffective in failing to investigate the possibility of another

driver.

Newly Discovered Evidence

          To obtain a new trial upon newly discovered evidence, the following elements

are required: (1) the newly discovered evidence was unknown to the movant at the

time of trial; (2) the movant's failure to discover the evidence was not due to his want of

Somers v. State                                                                      Page 9
diligence; (3) the evidence is admissible and not merely cumulative, corroborative,

collateral or impeaching; and (4) the evidence is probably true and would probably

bring about a different result in another trial. Wallace v. State, 106 S.W.3d 103, 108 (Tex.

Crim. App. 2003).

        The State provided Somers with a copy of Duvall’s statement prior to trial and

Somers’s investigator interviewed Duvall.        Somers’s trial counsel reviewed these

statements prior to trial. The evidence was available to Somers at the time of trial. We

overrule the fifth and sixth issues.

                               ARGUMENT ON PUNISHMENT

        Somers contends that the State made an improper argument during the

punishment phase concerning application of the parole law. Somers further complains

that the trial court abused its discretion when it quashed subpoenas and declined to

consider the juror’s affidavits discussing the effect of the State’s argument.

Argument

        During his argument on punishment, Somers’s trial counsel explained the effect

of parole laws on the sentence and detailing when Somers would be eligible for parole.

The State then responded without objection that Somers faced a maximum sentence of

20 years and that he would be eligible for parole in 10 years. The State noted that

Somers might not receive parole at that time. The State later argued that

        Now on these facts, with his history, you would certainly be within your
        rights to go back in this jury room and return the maximum sentence.
        That is a lot of time. He’ll do ten years of that. He’ll be a young man
        when he gets out.


Somers v. State                                                                      Page 10
Somers objected that it was unknown if he would receive parole at that time. The trial

court overruled the objection.

        Error results from improper jury argument only if, examined in light of the entire

record, the argument is extreme, is manifestly improper, injects new and harmful facts

into the case, or violates a mandatory statutory provision. Brantley v. State, 48 S.W.3d

318, 330 (Tex. App.—Waco 2001, pet. den’d); Kelly v. State, 18 S.W.3d 239, 244 (Tex.

App.—Amarillo 2000, no pet.). The State initially correctly stated that Somers would be

eligible for parole after serving half of his sentence, but that he might not receive parole

at that time. The argument was not extreme or manifestly improper, and we find no

reversible error.

Juror Subpoenas

        A defendant must be granted a new trial when the jury has engaged in such

misconduct that the defendant did not receive a fair and impartial trial. TEX. R. APP. P.

21.3(g). The Rules of Evidence provide:

               Upon an inquiry into the validity of a verdict or indictment, a juror
        may not testify as to any matter or statement occurring during the jury’s
        deliberations, or to the effect of anything on any juror’s mind or emotions
        or mental processes, as influencing any juror’s assent to or dissent from
        the verdict or indictment. Nor may a juror’s affidavit or any statement by
        a juror concerning any matter about which the juror would be precluded
        from testifying be admitted in evidence for any of these purposes.
        However, a juror may testify: (1) whether any outside influence was
        improperly brought to bear upon any juror; or (2) to rebut a claim that the
        juror was not qualified to serve.

TEX. R. EVID. 606(b). If a defendant seeks to show jury misconduct under TEX. R. APP. P.

21.3(g) by juror testimony or affidavit, Rule 606(b) requires that the testimony illustrate


Somers v. State                                                                        Page 11
either the existence of an outside influence or a rebuttal of a claim that a juror was not

qualified. See Hart v. State, 15 S.W.3d 117, 124 (Tex. App.—Texarkana 2000, pet. den’d).

Somers intended to show through the affidavits and juror testimony the effect the

State’s argument had on the application of the parole laws during their deliberations.

Jury deliberations considering the effects of parole are not an outside influence and any

testimony or affidavit is not admissible under Rule 606(b). See Hines v. State, 3 S.W.3d

618, 623 (Tex. App.—Texarkana 1999, no pet.). The trial court did not err in quashing

the jurors’s subpoenas. We overrule the seventh and eighth issues.

                              BLOOD ALCOHOL EVIDENCE

        Somers brings three issues on appeal challenging the trial court’s admission of

his blood alcohol evidence in violation of the United States Constitution, the Texas

Constitution, and Texas Code of Criminal Procedure.          Somers filed a motion to

suppress the evidence, and the trial court held a hearing on the motion. We have

previously set out the standard of review for a motion to suppress, and we will use that

standard, with additional law specific to Somers's issue, to determine whether the trial

court erred. See Brown v. State, 115 S.W.3d 633, 635-37 (Tex. App.—Waco 2003, no pet.).

        A peace officer shall require the taking of a specimen of a person’s breath or

blood if the officer arrests the person for an offense under Chapter 49 of the Penal Code

involving the operation of a motor vehicle and the person refuses the officer’s request to

submit to the taking of the specimen voluntarily. TEX. TRANSP. CODE ANN. § 724.012(b)

(Vernon Pamph. Supp. 2010). Section 724.012(b) further requires, in pertinent part, that

the person was the operator of a motor vehicle in an accident that the officer reasonably

Somers v. State                                                                    Page 12
believes occurred as a result of the offense and, at the time of the arrest, the officer

reasonably believes that as a direct result of the accident any individual has died or will

die.

        Officer Richard Benton Keough testified at the hearing on Somers's motion to

suppress. Officer Keough placed Somers under arrest for driving while intoxicated

after conducting field sobriety tests and observing Somers. Somers refused consent to

provide a blood specimen, and Officer Keough obtained the sample pursuant to TEX.

TRANSP. CODE ANN § 724.012(b) (Vernon Pamph. Supp. 2010). Somers had a blood

alcohol level of .30.

        Somers does not dispute Officer Keough’s determination that he was

intoxicated, nor does he dispute that Officer Keough reasonably believed Michelle

would die as a result of the accident. Somers contends that because there is no evidence

that he operated the motor vehicle, there was no probable cause for his arrest and the

officer did not have authority to take his blood without consent.

        Officer Keough spoke with Duvall at the scene, and Duvall informed him that he

had witnessed Somers crawling out of the pickup involved in the accident. Duvall

stated that he did not see anyone else get out of the pickup. Officer Keough observed

bruising injuries on Somers’s left shoulder consistent with the driver’s side seatbelt.

Somers told Officer Keough that he was not driving the pickup involved in the accident

and that he did not know if it was his pickup. Officer Keough confirmed that the

pickup belonged to Somers’s mother.




Somers v. State                                                                     Page 13
        Officer Keough had probable cause to believe that Somers was driving the

vehicle and committed the offense of driving while intoxicated. Officer Keough was

authorized to take Somers's blood specimen pursuant to TEX. TRANSP. CODE ANN. §

724.012(b) (Vernon Pamph. Supp. 2010). The trial court did not err in denying Somers’s

motion to suppress and in admitting the blood alcohol evidence. We overrule issues

nine, ten, and eleven.

                          INEFFECTIVE ASSISTANCE OF COUNSEL

        Somers argues in two issues that he received ineffective assistance of counsel

because his trial counsel failed to move for a directed verdict at the close of the State’s

case. We have previously set out the standard of review for ineffective assistance of

counsel.

        A motion for a directed verdict is a challenge to the legal sufficiency of the

evidence. Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 2007). In reviewing the

legal sufficiency of the evidence, we look at all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319 (1979); Bigon v. State, 252 S.W.3d 360, 366 (Tex. Crim. App. 2008).

        Somers first argues that there was no evidence that he was driving the vehicle

that struck Michelle’s vehicle. As discussed in the previous issues, we find that Officer

Keough had probable cause to believe Somers was driving the vehicle. There was

additional evidence to support the finding that Somers was driving. Somers was not

wearing a shirt at the time of the accident, and he had red paint on his chest and back as

Somers v. State                                                                     Page 14
part of his costume for the jungle party. The red paint on Somers’s back was smeared.

The pickup had red paint on the driver’s side seat. There was no red paint other than

on the driver’s side of the pickup. The record shows that the driver’s side air bag was

activated, but not the passenger side air bag.

        One witness at the scene observed Somers come from the driver’s side of the

pickup. Duvall saw Somers crawl from the pickup after the accident. Neither witness

saw anyone else exit the pickup or flee from the scene. The evidence is sufficient to

show that Somers was driving the vehicle.

        Somers next argues that the evidence was legally insufficient to prove that

Somers caused the death of Michelle. Michelle’s vehicle was stopped on the side of the

road with the headlights on and the flashers activated. The car was in drive at the time

of the accident, but not moving. Michelle’s vehicle was on the shoulder of the road,

approximately six inches into the roadway. The pickup was “straddling” the line and

was two and one half to three feet onto the shoulder at the time of the collision. The

pickup was driving approximately sixty miles per hour at impact.

        Somers contends that Michelle died before the accident occurred. Dr. Alford

detailed the injuries Michelle received as a result of the collision and testified that

Michelle’s cause of death was multiple trauma, head injury, and spinal cord injury.

        The record before us does not support Somers’s argument that his trial counsel

was ineffective in failing to move for a directed verdict. We overrule the twelfth and

thirteenth issues.




Somers v. State                                                                  Page 15
                                       CONCLUSION

        We affirm the trial court’s judgment.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Justice Reyna dissenting)
Affirmed
Opinion delivered and filed November 24, 2010
Publish
[CR25]




Somers v. State                                           Page 16
