Affirmed and Majority and Dissenting Opinions filed August 30, 2012.




                                          In The

                       Fourteenth Court of Appeals

                                  NO. 14-11-00530-CR

                         JOHN MATTHEW CONE, Appellant

                                             V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 185th District Court
                                Harris County, Texas
                           Trial Court Cause No. 1282374


                        MAJORITY OPINION

       Appellant John Matthew Cone was convicted of intoxication manslaughter and
sentenced to eight years‘ incarceration. Appellant argues in one issue on appeal that the
trial court violated appellant‘s constitutional right to confrontation by admitting, over
appellant‘s objection, a lab report and testimony regarding appellant‘s blood alcohol
concentration (BAC), which was calculated from the results of a blood test performed by
an analyst who did not testify at trial. We affirm.
                                     BACKGROUND

I.     The Accident

       Around 9:00 p.m. on October 13, 2010, appellant was driving a Chevrolet Z71
pickup truck with a ten-inch lift kit and unusually large tires in the northbound lane of a
two-lane road with shoulders on either side. Raymond Wike, the driver of a vehicle in
the northbound lane behind appellant, testified that appellant slowly drifted twice toward
the shoulder of that lane, once over the solid white line separating the lane from the
shoulder, then again over the white line as well as the ―drunk bumps‖ or ―rumble strips‖
approximately two feet from the edge of the pavement. Raymond slowed down to allow
some space to develop between his car and appellant‘s truck. Moments later, just as a
Yukon SUV, a Denali SUV, and a Mitsubishi Gallant approached in the southbound lane
from up ahead, appellant‘s truck drifted to the left and crossed the yellow line running
down the middle of the road ―by a tire width.‖

       Appellant‘s truck collided with the Yukon headlight-to-headlight, causing the
wheel assembly for the Yukon‘s left front tire to crumple into the vehicle and the driver
to lose control. The disabled Yukon veered into the northbound lane after appellant‘s
truck continued past it, which forced the vehicle traveling behind appellant to swerve into
the ditch beside the northbound lane to avoid a collision. The Yukon skidded back into
the southbound lane and then onto the shoulder of that lane, where it came to rest.

       As appellant‘s truck collided with the Yukon, the driver of the Denali behind it
attempted to get out of the path of appellant‘s truck by braking and veering to the right.
The Denali was halfway into the grass beside the shoulder of the southbound lane when
appellant‘s truck sideswiped it on the driver‘s side less than two seconds after colliding
with the Yukon. The impact caused the Denali to spin out of control and into the grass
beside the shoulder of the southbound lane, where it came to rest.

       Immediately after sideswiping the Denali, appellant‘s truck, which was completely
in the southbound lane at that point, collided head-on with the Gallant and rode up on the


                                             2
Gallant‘s hood and windshield before recoiling backwards.1 The driver of the Gallant,
Brittany Mapstone, was killed instantly from the impact.2

       Police were able to retrieve data about the accident from the air bag control
modules of the Yukon, the Denali, and appellant‘s truck.3 Harris County Sherriff‘s
Deputy David Pearson testified that recording devices associated with such modules
―record crash data, such as change in velocity of the vehicle, or in some cases the speeds
for the vehicles‖ during ―the last . . . five seconds or two and a half seconds before the
signal came to deploy the airbags.‖ The function of the module is to ―sense acceleration
changes or jerks,‖ then analyze the sudden change, and based on certain calculations,
―make[] [a] decision very quickly as to whether or not air bags need to be deployed.‖
Once a ―deployment event‖ occurs, the recording device is capable of preserving data
regarding that event, as well as one additional subsequent event.

       Based on the data from the air bag control module in appellant‘s truck, police were
able to determine that appellant was traveling above the posted speed limit of 55 miles
per hour at a speed of 60 and 61 miles per hour4 before the impacts with the Yukon and
the Denali, respectively, and did not touch his brakes before or after those collisions. The
data also showed that appellant accelerated just prior to colliding with the Yukon.
Because the recording device associated with the air bag control module in appellant‘s
truck is only capable of recording two significant events but not a third, police were

       1
          Our recitation of these events is based on testimony from Harris County Sherriff‘s Deputies
Jeremy Thomas and David Pearson and defense expert Cam Cope, who reconstructed the accident based
on certain evidence discovered at the scene—such as marks on the road and surrounding area, damage to
and data from the vehicles, and testimony from witnesses.
       2
           Harris County Institute of Forensic Sciences Assistant Medical Examiner Darshan Phatak
testified that Brittany Mapstone suffered an atlantooccipital dislocation, or a shearing of the spinal
column inside the vertebrae at the top of her spine due to sudden forward or backward movement of her
skull, which would have killed her instantly. She also suffered a torn descending aorta, a partially
pulpified liver, and numerous other broken bones, lacerations, and contusions.
       3
           Police were unable to retrieve data from the air bag control module in the Gallant.
       4
           Deputy Pearson acknowledged that appellant‘s truck had after-market, large tires that would
affect the recorded speed if adjustments to the speedometer had not been made when the tires were put on
the vehicle.

                                                      3
unable to retrieve any information regarding the impact with the Gallant; however,
Deputy Pearson estimated that appellant was traveling between 44 and 57 miles per hour
when he collided with the Gallant.

II.   The Issue of Appellant’s Intoxication

      Firefighter paramedic Clinton Cooke arrived at the scene of the accident at
9:14 p.m. After determining that Brittany Mapstone did not survive the collision, Cooke
approached appellant‘s truck, where a volunteer fire fighter was keeping appellant‘s head
stable by holding it from behind in the back seat. Cooke confirmed that appellant was
conscious with open airways, then returned to his emergency vehicle to prepare his
equipment while he waited for emergency crews to extricate appellant from his truck
with hydraulic rescue tools, or the Jaws of Life.      Approximately ten minutes later,
appellant was extricated, placed on a stretcher with a backboard, and brought over to
Cooke. Cooke testified:

              I heard a bunch of yelling. . . . I couldn‘t make out the words. It
      didn‘t appear—there was—just sounded combativeness, [sic] sounded
      something that was abnormal for the scene. . . . It was going back and forth
      between [appellant] and the crews that were attempting to get [appellant]
      secured to the board. . . . Once I heard the yelling, I stepped out of the
      medic unit to find out what was going on and why—what was prolonging
      the getting him secured to the board. At that time I learned that he didn‘t—
      he didn‘t want to lay down. He didn‘t want to cooperate with them wanting
      to assist him. . . . At that point—he just didn‘t want to be there. He wanted
      to leave. He didn‘t need us. . . . [H]e was just real combative, not wanting
      to participate in his own care.

                    *                    *                    *

             I could smell what to me smelled like alcoholic beverages. . . . He
      is—literally we‘re standing right next to each other. He‘s on the stretcher
      on the board. They‘re trying to get him to lay down and get him secured
      and he‘s wanting to just pull the stuff off they‘re trying to secure him with.

Cooke testified that he made the following notation in his medical report:
           Patient advises he has been out drinking though he doesn‘t
      remember how many he has [sic]. There‘s a[n] obvious smell of [alcohol]

                                             4
        when close to the patient that increases when he speaks.

        Cooke explained: ―My concern was a head injury. . . . Combativeness is a sign of
a head injury.‖ However, when Cooke informed appellant that Brittany Mapstone did not
survive the accident, Cooke testified that appellant ―got real quiet.‖ Cooke concluded at
that point that appellant‘s combativeness probably was not from a head injury because
―[c]ombativeness from a head injury isn‘t going to change based off questioning. Your
body doesn‘t know what it‘s doing at that point because of the pressure of the brain. So,
any kind of information that you gathered wouldn‘t change your demeanor.‖

        Harris County Sherriff‘s Deputy Jeremy Thomas was also at the scene and
testified that when he learned that alcohol may have been involved in the accident, he
instructed another deputy to get into the emergency vehicle with appellant to perform a
horizontal gaze nystagmus test, a type of field sobriety test. However, because the test
requires the use of both eyes, and because appellant‘s right eye was swollen shut from an
injury sustained in the accident, Deputy Thomas testified that it was not possible to
perform the test.

        Appellant was transported by helicopter to the Memorial Hermann Hospital
emergency room.         Life Flight crewmember George Herbert, III, testified that when
appellant was loaded into the helicopter, he was ―rather uncooperative‖:

                [A]s soon as we loaded him in the aircraft and started to get up into
        the air and in flight, he started—he continued yelling at the top of his lungs
        that he can‘t breathe, he can‘t breathe.5 He continued grabbing at
        equipment, which, more specifically, above his head was a ventilator that
        weighs about 20 pounds or so and if you pull at it, it will fall on you. So,
        he was grabbing at equipment that is attached to the wall and whatnot and
        in addition to that, I was trying to establish a line on him as well. So, it was
        a bit of a struggle.

However, Herbert acknowledged that he made no notes in his report about whether he

        5
          Herbert explained that it was important to him to note that the patient was yelling at the top of
his lungs because, given that screaming requires a large amount of air, the note gave ―a better picture of
the patient and his complaint of [―]I can‘t breathe[‖] as to whether or not the patient has a good enough
volume to scream or if he can barely get a whisper out . . . .‖

                                                    5
smelled alcohol on appellant, or whether anyone from the scene of the accident informed
Herbert that alcohol may have been a factor in the collision. Herbert testified that the fact
that he did not make such a note does not indicate that he or anyone else did not smell
alcohol. He stated: ―I remember the patient fitting the description of someone who was
possibly intoxicated.‖

        Appellant was admitted to the Memorial Hermann Hospital emergency room at
9:50 p.m. The State introduced to the jury appellant‘s medical records, in which various
notes indicate that appellant was ―clinically intoxicated‖ at 10:15 p.m., ―extremely
intoxicated‖ and ―incoherent‖ at 12:45 a.m., and ―heavily intoxicated‖ at some point
during the time he was admitted and the time he was discharged the following morning.
Appellant‘s medical records also reflect that ―[n]o acute traumatic brain lesion [was]
demonstrated‖ and that appellant suffered from ―[n]o intracranial abnormality.‖

        Registered Nurse Natalie Masson testified that when appellant was brought in, he
was ―uncooperative,‖ ―belligerent‖ and had to be restrained for his safety and the safety
of hospital staff.6 She noticed that he ―did have a strong odor of alcohol‖ and was
―lethargic,‖ and she believed him to be intoxicated and ―very altered.‖ She testified:
―Throughout the night, well, when he came in, he did have some slurred speech. Like I
said, lethargic, but as the night went on, we gave him some fluid, he became more
coherent.‖ Masson acknowledged that she had never met appellant before that night and
was not familiar with appellant‘s normal behavior. Appellant consented to a blood draw
performed by Masson at 11:12 p.m., and a sample of appellant‘s blood was given to
Harris County Sherriff‘s Deputy Ramon Gutierrez and later tested for alcohol content.

        Deputy Gutierrez testified that he was assigned to visit appellant in the emergency
room to assess whether he was under the influence of alcohol or drugs. Deputy Gutierrez

        6
            Masson explained that she remembered her encounter with appellant specifically because he
asked her ―if he had injured somebody or hurt somebody in the accident. I told him, Sir, I don‘t know.
Because we don‘t give that kind of information out. And then when he was leaving, he asked me again,
did he kill that girl in the accident. And I just told him, No, I don‘t know. . . . We don‘t tell people things
like that.‖

                                                      6
testified that the first question he asked appellant was his name, and that he had to ask
appellant twice because ―his speech was pretty thick and slurred; so, he had to repeat it.‖
He testified further:

       A. Well, since I was standing there next to him and I got the odor of
       alcohol, the next question was, you know, How much have you had to
       drink?
       Q. Were his eyes open or closed at this point?
       A. They were still closed. And when I asked that question, he opened his
       right eye—or his left eye, I‘m sorry—and he looked at me and . . . he didn‘t
       answer . . . .
       Q. Does he open his eye at this point?
       A. Yes. He saw me.
       Q. He saw you?
       A. Yes.
       Q. Were you in full sheriff‘s deputy uniform at this point?
       A. Yes, ma‘am.
       Q. After he opened his eye and he responded or he would not respond to
       your question about alcohol, what did he do with his eye?
       A. He closed it.

                             *                   *                    *

       Q. Okay. After you asked him how much to drink, what was kind of the
       next question that you asked him?

       A. I asked him . . . if he had been involved in a crash and he shook his head
       and said, No.7

       Q. What was the next question you asked him?

       A. I then asked when was the last time he had ate anything and he said, I do
       not know.

       Q. Did you ask him anything else?

       A. I then asked him what kind of vehicle he was driving and he would not

       7
           Emphasis added.

                                             7
        answer.

Deputy Gutierrez concluded that ―based on understanding that—of how the crash
occurred and what I observed at the hospital with—and smelled the odor of alcohol, the
slurred speech, I determined that it was possible that he was under the influence of
alcohol or drugs.‖8 Deputy Gutierrez placed appellant into custody in the hospital at
10:50 p.m.

        The State showed the jury an itemized bill and a signed receipt from Iguana Joe‘s
Mexican Restaurant from the night of the accident.                  The receipt bears appellant‘s
signature with an extra ―e‖ on the end of his last name, and the bill shows one burrito
dinner, one summer special dinner plate, four 20-ounce ―Cadillac Ritas,‖ three shots of
―Cuervo Gold‖ tequila, and one shot of ―Goldschläger.‖ The bill shows a timestamp of
8:41 p.m., and the signed receipt shows a timestamp of 8:44 p.m., approximately fifteen
minutes before the accident occurred. The jury heard testimony that a standard-size
mixed drink is approximately six to eight ounces, and that each ―Cadillac Rita‖ is the
equivalent of ―somewhere above three times what a normal size drink would be.‖

        Eliabeth Martinez, the manager of Iguana Joe‘s, testified that she witnessed
appellant sitting at the bar with a woman the night of the accident, but that she did not
know who drank the alcoholic beverages on the bill introduced by the State and had no
reason to believe appellant was intoxicated. She explained that customers sometimes
―buy a drink for the other people[]‖ in the restaurant. She testified that the house
margaritas contain tequila, although she was not sure how much alcohol is in one 20-
ounce serving, and the margaritas on appellant‘s bill each contain an additional one third
of an ounce of tequila and an alcoholic orange liqueur. She also testified that Iguana
Joe‘s imposes a two-drink limit for the 20-ounce margaritas because ―that‘s too much
alcohol,‖ and that it is not possible that appellant drank more than two 20-ounce


        8
           However, Deputy Gutierrez acknowledged that he was not familiar with appellant‘s normal
speech patterns, and that the odor of an alcoholic beverage standing on its own would be insufficient to
give rise to probable cause to arrest someone for driving while intoxicated.

                                                   8
margaritas because it would have been against the rules.

       Raymond Wike, the driver of the vehicle that had been traveling in the northbound
lane behind appellant when the accident occurred, testified that although he noticed
appellant drifting out of his lane and his wife cautioned him to give appellant room,
Raymond did not believe appellant was intoxicated at that point. He explained:

              Well, after he swerved over the second time, I just seen him swerve
       over and then he got back into his lane, I mean, pretty promptly, in my
       opinion, and then continued to drive northbound, fairly straight. He wasn‘t,
       you know, all over the road. He wasn‘t driving really sloppy but it wasn‘t
       long after that that he had swerved to the left side.
                               *                       *                      *
               [After the second time appellant drifted over the white line,] I do
       notice that he‘s swerving, but now I‘m thinking that it‘s not the radio,
       maybe it could be reading, cell phone. Because if you—if you‘re drunk
       and you drive, you‘ll seem to notice someone, they‘ll be—they‘ll take their
       full lane. I don‘t know if y‘all understand what I mean by that, but they‘ll
       be from the yellow line to white line, they‘ll be all over the place. . . .
       That‘s not what I seen.
                       *                       *                      *
              He didn‘t seem like a[n] intoxicated driver. Maybe sleeping, texting,
       reading, fooling with the radio, maybe he dropped a lit cigarette. I mean, I
       have no idea what he was doing but I could tell that his attention at the time
       that he swerved was not on the road and then after he corrected into his
       lane, he was driving, you know, at least reasonable, to say the least.

       Appellant‘s blood sample was tested by the Harris County Institute of Forensic
Sciences. Toxicologist Meagan Ocanas testified that based on the results of that test, she
calculated that appellant‘s BAC was 0.19 grams per 100 milliliters of blood when it was
taken at 11:12 p.m., or 0.11 grams more than the statutory per se definition of
―intoxicated.‖ See TEX. PEN. CODE ANN. § 49.01(1)(B), (2)(B) (West 2011).9 Ocanas
testified that, based on her calculations and assuming that appellant began drinking at
5:00 p.m., appellant must have had approximately 14 standard-size alcoholic drinks

       9
         The statutory per se definition of ―intoxicated‖ is 0.08 grams or more per 100 milliliters of
blood. See TEX. PEN. CODE ANN. § 49.01(1)(B), (2)(B).

                                                   9
before he stopped drinking at 8:44 p.m., and had an estimated BAC of approximately
0.20–.21 at the time of the accident.10

III.    Appellant’s Theory at Trial

        Although appellant challenged the extent of his intoxication through cross-
examination, the main thrust of his defensive theory was that, regardless of his state of
intoxication, a catastrophic failure of a ball joint attached to his left front wheel caused it
to separate just before the first impact, rendering him a passenger in his truck without any
control over it. Appellant presented the expert testimony of Cam Cope, the owner of
Auto Fire and Safety, an accident reconstruction facility that stores, maintains, tests, and
analyzes vehicles that have been ―involved in impacts.‖ Cope opined that the left front
tire of appellant‘s truck, which was found beside the shoulder of the northbound lane just
north of the point of impact with the Yukon, came loose prior to the accident because of
weak ball joints, rolled underneath appellant‘s truck, and caused the accident.                        He
testified:

               The dual ball joints are where, in a particular vehicle such as this
        one, you‘re trying to raise it up and you have to change the suspension so it
        has a ball joint at the top and it has one at the bottom. They‘re both
        pushing at this particular angle so that it holds the wheel in there. So, if
        you have a ball joint, say, at the top that is weak, that tire begins to lean one
        way or the other. So, you would notice that you have a tire that‘s going
        down the road and it may wobble back and forth. It may have a change in
        what it‘s doing as far as how you can steer this vehicle with a tire that‘s not
        running as it was designed.

                                *                        *                        *

               Once it begins to lean, it will not drive straight as it was
        designed. . . . Eventually the tire is going to fold under the vehicle and in
        that particular time, the vehicle will either veer left or right. . . . I believe in
        this case, looking at the vehicle, that it was the upper ball joint that is

        10
          During cross-examination, Ocanas acknowledged that an individual with a BAC of 0.20–.21
may exhibit certain signs of intoxication, such as ―dizziness,‖ ―disorientation,‖ ―[v]omitting,‖
―dysphoria,‖ and ―impaired balance,‖ but testified that, depending on that person‘s tolerance level, ―[y]ou
wouldn‘t have to see all of those symptoms.‖

                                                    10
       failing on it and it‘s causing that [wheel assembly] to roll underneath.

Cope testified that the wheel assembly could not have been on appellant‘s truck when it
impacted the Yukon because the alloy rim and tire would have been damaged if they had
collided with the Yukon, and Deputy Thomas indicated that the wheel showed no signs
of such damage.11 Cope also opined that, on the Yukon, the absence of any damage that
would have been caused by a tire indicated that appellant‘s left front tire already had
separated from appellant‘s truck before it impacted the Yukon.

       Cope concluded: ―Once [appellant‘s] tire began to fail, he didn‘t have control over
this particular vehicle. Once the left front tire was rolling under and failing, it comes off
the ball joint, he‘s no longer able to control this vehicle. . . . [W]hether he‘s texting or
drinking, the vehicle is not controllable.‖

       Fred Bryant, the manager of National Tire & Battery in Atascocita, Texas,
testified that appellant brought his truck in for a wheel alignment on September 20, 2010,
about three weeks before the accident. Bryant testified that service manager Kevin
Sullivan informed Bryant that one of the ball joints on appellant‘s truck did have ―some
wear in it.‖ Sullivan also testified and confirmed that he remembered the ball joints were
―bad,‖ but that appellant did not have the ball joints repaired. Sullivan testified that if the
tire had become separated from appellant‘s truck as a result of one of the impacts rather
than an independent ball joint failure, the pictures of appellant‘s truck after the accident
would show ―damage to this lower control arm, much more around the hole where the
ball joint belongs,‖ and that the pictures do not show such damage.

       Deputy Thomas testified that the tire could not have come off appellant‘s truck
before the first impact because ―[t]here‘s no marks on the road to back that up. . . . [I]f a
tire drops—tire comes off, front end drops, it‘s going to mark the road.‖ He opined that
the tire must have separated as a result of the first impact because ―if you look prior to
impact with the [Denali], you see the line on the road that starts to form.‖ Deputy

       11
          The wheel was not preserved as evidence and Deputy Thomas was the only individual who
observed the tire at the scene, for between 10 and 15 seconds.

                                              11
Pearson also testified that there were no indications on the roadway that ―some
degenerative part‖ of appellant‘s truck contributed to the initial collision with the Yukon.

        Cope acknowledged that the road showed no gouge marks after the tire had
separated from appellant‘s truck. However, he explained that the absence of such marks
was consistent with his theory because, just as one witness described,12 he believed
appellant‘s truck went up on its two passenger-side wheels after the impact with the
Yukon before coming back down against and side-swiping the Denali. Cope stated that
―[t]he wear pattern to the edges‖ of appellant‘s right front tire indicated ―that this vehicle
was most likely up on two wheels for some distance‖ before the impact with the Gallant,
and that appellant‘s truck therefore would not have created any marks on the road
because of the absence of a left front tire.

        The State recalled Deputy Pearson to testify about this theory, and he explained
that if Cope were correct about appellant‘s truck going up on two wheels, ―we would see
a lot of weight on the right side tires, enough weight to increase or actually be over the
weight rating for those tires. That extra weight and friction, that in itself is going to cause
a mark [on the roadway], similar to what we see with the weight on an 18-wheeler when
it‘s making a turning movement, just an example.‖ He also testified that the damage
caused to appellant‘s tires was not consistent with Cope‘s theory, but was instead
consistent with damage caused by the final impact with the Gallant.

IV.     The Verdict

        The jury was instructed that ―a person commits the offense of intoxication
manslaughter if the person . . . operates a motor vehicle in a public place‖ and ―is


        12
           Raymond‘s wife Toni testified: ―So, once my husband got us on the shoulder is when I started
paying attention more to the wreck and I noticed that, like, the truck got back into our lane and it went up
on, like, two wheels [on the passenger side]. . . . [I]t was obviously out of control, the vehicle was, but I
thought personally that [appellant] was doing a very good job of trying to control it. Because, I mean, it
was a big truck and we were going, like 55 miles an hour, so. . . . [Y]ou could tell he tried to correct to
try to get it back on all four wheels but obviously there wasn‘t one there to land on. If he would have
went the other way, he would have, like, rolled into the ditch, so.‖ However, Toni also testified that
appellant‘s truck had all four tires when it impacted the Yukon.

                                                     12
intoxicated and by reason of that intoxication causes the death of another by accident or
mistake.‖ See TEX. PEN. CODE ANN. § 49.08 (West 2011). The jury was also instructed
that ―intoxicated‖ means, among other things: (1) ―not having the normal use of mental
or physical faculties by reason of the introduction of alcohol‖; or (2) having an alcohol
concentration of 0.08 or more grams per 100 milliliters of blood. See id. § 49.01(2).

       The jury deliberated for just over two hours before returning a verdict of guilty on
the charge of intoxication manslaughter. After hearing evidence relevant to punishment,
the jury assessed a sentence of eight years‘ incarceration.

       In one issue on appeal, appellant argues that the trial court violated appellant‘s
constitutional right to confrontation by admitting, over appellant‘s objection, a lab report
and testimony regarding appellant‘s BAC, which was calculated from the results of a
blood test performed by an analyst who did not testify at trial.

                                         ANALYSIS

       The State introduced both a report and testimony from Harris County Institute of
Forensic Sciences Toxicologist Meagan Ocanas regarding appellant‘s BAC, which
Ocanas testified that she calculated from the raw, machine-generated data obtained by
non-testifying analyst Andre Salazar.        Ocanas testified she neither observed nor
participated in the test Salazar performed on appellant‘s blood. Appellant argues that
Ocanas‘s testimony and report should have been ruled inadmissible as a violation of
appellant‘s constitutional right to confront Salazar because the State never argued that
Salazar was unavailable or that appellant had a prior opportunity to cross-examine him.
The State responds that (1) the raw, machine-generated data on which Ocanas based her
conclusion regarding appellant‘s BAC is non-testimonial because the machine cannot be
cross-examined, and that Ocanas‘s opinion based on the data therefore does not implicate
the Confrontation Clause; (2) the ―independent opinion exception‖ applies, presumably
referencing the rule that an expert may base an opinion on inadmissible facts or data. See




                                             13
TEX. R. EVID. 703.13

I.      Confrontation Clause

        The Sixth Amendment of the United States Constitution provides that ―‗in all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
witnesses against him.‘‖ McWilliams v. State, 367 S.W.3d. 817, 819 (Tex. App.—
Houston [14th Dist.] 2012, no. pet.) (quoting U.S. CONST. AMEND. VI). The Sixth
Amendment Confrontation Clause applies to out-of-court statements introduced at trial.
Id. (citing Crawford v. Washington, 541 U.S. 36, 50–51 (2004)). Under Crawford v.
Washington, testimonial statements of a witness who is absent from trial cannot be
admitted unless the witness was unable to testify and the defendant had a prior
opportunity for cross-examination. McWilliams, 367 S.W.3d at 819 (citing Crawford,
541 U.S. at 53–54).

        In the context of forensic testing, the United States Supreme Court in Melendez-
Diaz v. Massachusetts held that a document reporting the results of forensic analysis that
was created specifically to serve as evidence in a criminal proceeding is within the core
class of testimonial statements covered by the Confrontation Clause. Bullcoming v. New
Mexico, —U.S.—, 131 S.Ct. 2705, 2709 (2011) (citing Melendez–Diaz v. Massachusetts,
557 U.S. 305 (2009)). Therefore, a live witness must be available for cross-examination
in order for such reports to be admitted. Id. Although Melendez-Diaz did not specifically
articulate who qualifies to testify regarding such reports, the United States Supreme
Court recently clarified in Bullcoming v. New Mexico that the ―surrogate testimony‖ of a
scientist regarding findings obtained and documented by a non-testifying analyst in a
forensic laboratory report does not satisfy the Confrontation Clause when the testifying
scientist neither participated in nor observed the test. Bullcoming, 131 S.Ct. at 2710;
        13
           The State also argues that Tollefson v. State, 352 S.W.3d 816, 824 (Tex. App.—San Antonio
2011, pet. ref‘d), supports its position that the report and testimony were admissible because, Ocanas, like
the supervising analyst in Tollefson, wrote the relevant report, not the non-testifying individual. Tollefson
is distinguishable because the supervising analyst who wrote the relevant report in that case actually was
present when the underlying data was obtained by ballistics testing, although she did not personally fire
the test shot. Id.

                                                     14
McWilliams, 367 S.W.3d at 820. When the prosecution elects to introduce such a report,
the analyst who created that report becomes a witness the defendant has the right to
confront. See Bullcoming, 131 S.Ct. at 2710–11, 2716.

       In response to Melendez-Diaz and Bullcoming, Texas courts have struggled with
the separate but related question of whether trial courts properly may admit the opinion of
an expert whose testimony is based upon but does not merely recite the raw, machine-
generated data obtained by a non-testifying analyst. However, because we conclude that
appellant could not have been harmed by any asserted error related to the introduction of
Ocanas‘s report or testimony, we need not address this issue.

II.    Harm Analysis

       Assuming without deciding that the trial court erred, we review such an error for
constitutional harm and must reverse unless we determine beyond a reasonable doubt that
the error did not contribute to the conviction or punishment. See TEX. R. APP. P. 44.2(a);
Wilson v. State, 296 S.W.3d 140, 149 (Tex. App.—Houston [14th Dist.] 2009, pet. ref‘d)
(citing Rubio v. State, 241 S.W.3d 1, 3 (Tex. Crim. App. 2007)). In reviewing whether
an error in admitting out-of-court testimonial statements in violation of the Confrontation
Clause is harmless beyond a reasonable doubt, we consider:

       1. The importance of the hearsay statements to the State‘s case;

       2. Whether the hearsay evidence was cumulative of other evidence;

       3. The presence or absence of evidence corroborating or contradicting the hearsay
          testimony on material points; and

       4. The overall strength of the prosecution‘s case.

Davis v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006); Wilson, 296 S.W.3d at 149.
We may also consider the source and nature of the error, the extent of the State‘s
emphasis on the evidence, the relative weight the jury may have assigned to the evidence
as compared with the balance of remaining evidence relevant to the issue, and any other
factor contained in the record that may shed light on the probable impact of the evidence
                                              15
on the minds of average jurors. Wilson, 296 S.W.3d at 149 (citing Clay v. State, 240
S.W.3d 895, 904 (Tex. Crim. App. 2007); Scott v. State, 227 S.W.3d 670, 690 (Tex.
Crim. App. 2007)).

       We are not simply to decide whether the jury verdict enjoys evidentiary support.
See Scott, 227 S.W.3d at 690; Wilson, 296 S.W.3d at 149. Instead, we consider ―the
likelihood‖ that the alleged constitutional error was ―actually a contributing factor in the
jury‘s deliberations in arriving at a verdict.‖ Scott, 227 S.W.3d at 690. Thus, a Crawford
error does not require reversal unless there is a reasonable possibility that, within the
context of the entire trial, the perceived error ―moved the jury from a state of non-
persuasion to one of persuasion on a particular issue.‖ Id. ―Ultimately, after considering
these various factors, the reviewing court must be able to declare itself satisfied, to a level
of confidence beyond a reasonable doubt, ‗that the error did not contribute to the
conviction‘ before [the court] can affirm it.‖ Id. at 690–91 (quoting TEX. R. APP. P.
44.2(a)).

       ―If an appellate court rules that a constitutional error in the admission of evidence
is harmless, it is, in essence, asserting that the nature of that evidence is such that it could
not have affected the jury‘s deliberations or verdict.‖ Wall v. State, 184 S.W.3d 730, 746
(Tex. Crim. App. 2006). Although the most significant concern is the error and its effect,
the presence of other overwhelming evidence that properly was admitted and that
supports the material fact to which the inadmissible evidence was directed may be an
important factor in the evaluation of harm. Id. Such is the case here.

       Although Ocanas‘s testimony and report regarding her calculation of appellant‘s
BAC was important to the State‘s theory that appellant was intoxicated according to the
statutory per se definition of intoxication, the State presented extensive evidence
regarding its alternative theory that the jury could find appellant was intoxicated if the
State proved appellant did not have ―the normal use of mental or physical faculties by




                                              16
reason of the introduction of alcohol.‖14 See TEX. PEN. CODE ANN. § 49.08; cf. Bagheri
v. State, 119 S.W.3d 755, 763–64 (Tex. Crim. App. 2003) (in evaluating non-
constitutional harm of erroneously admitted ―retrograde extrapolation‖ of appellant‘s
alcohol concentration, considering evidence related to State‘s alternative ―normal use‖
theory of intoxication; fact that the jury‘s general verdict ―made it impossible to
determine which ‗theory‘ [of intoxication] the jury relied upon‖ was not dispositive on
question of harm ―because evidence to prove intoxication under either definition is
relevant to the single question of whether appellant was, in fact intoxicated‖). The jury
heard evidence that appellant was speeding and drifting out of his lane before the
accident, and that instead of braking, he accelerated just before he collided with the
Yukon.       The jury also heard evidence that appellant smelled of and admitted to
consuming an unidentified number of alcoholic beverages.15 Witnesses testified that
appellant was belligerent and confrontational at the scene; emergency personnel opined
and medical testing confirmed that appellant‘s behavior was not attributable to a head
injury caused by the accident. Witnesses testified and appellant‘s medical records reflect
that appellant continued to struggle against emergency personnel to the extent that he had
to be restrained, and his behavior, speech, and cognitive responses indicated that he was
―extremely‖ or ―heavily‖ intoxicated and incoherent even hours after the accident.
Additionally, the State introduced evidence that appellant purchased the equivalent of 16

        14
           We assume without deciding that appellant‘s objection and point of error apply to (1) Ocanas‘s
report, (2) her testimony reiterating the data contained in the report, and (3) the extrapolation testimony
based on the report, thus excluding all of the above in reviewing the record for other evidence showing
appellant‘s intoxication. The State urges that appellant did not object at trial about the opinion testimony
regarding the extrapolated BAC estimation. Although appellant‘s counsel sought and obtained a running
objection to Ocanas‘s report and testimony reiterating the data contained in the report, it is true that
appellant‘s counsel clarified for the trial court: ―Our issue is not with her opinion.‖ Appellant‘s brief is
even less clear that appellant challenges Ocanas‘s opinion testimony that goes beyond her reiteration of
the data in the report. We need not decide this issue because, even if we assume that appellant‘s objection
and point of error apply to the extrapolation testimony, other cumulative evidence showing the extent of
appellant‘s intoxication compels our conclusion that the assumed error in admitting Ocanas‘s report and
testimony was harmless.
        15
          The dissent acknowledges that appellant‘s receipt showed ―four 20-ounce ‗Cadillac Ritas,‘ each
with extra tequila or liqueur,‖ but does not mention the additional four shots of alcohol that also appeared
on appellant‘s receipt.

                                                    17
standard-size alcoholic beverages, and paid the bill for these items just minutes before the
accident occurred, and that, although appellant was able to calculate an appropriate tip
and total his bill, he signed his own name incorrectly.16                      No evidence directly
contradicted the State‘s assertion that, forensic evidence aside, appellant was
intoxicated.17

        Although the jury might have assigned great weight to the BAC calculation,18 the
circumstances surrounding the method by which appellant‘s BAC was obtained in this
case may have rendered such evidence less important in comparison to other extensive
evidence showing that appellant did not have ―the normal use of mental or physical
faculties by reason of the introduction of alcohol‖ at the time of the accident. Appellant‘s
trial counsel highlighted for the jury that Ocanas was not present during the test and
could not testify as to whether Salazar followed proper protocol in testing appellant‘s
blood. Appellant‘s trial counsel also cross-examined Ocanas about the fact that the gas
chromatograph machine used to test appellant‘s blood detected unidentified substances
that should not have been present in the sample,19 and that a certain critical part of the
machine was replaced five times during the fifteen-day period in which appellant‘s blood
was tested. Ocanas agreed that it was ―highly unusual‖ to replace the part at such a rate
because it ordinarily lasts up to a year or longer. She acknowledged that her opinions


        16
            The dissent states that appellant was ―given sedatives.‖ While medical records reflect that
appellant was ―given 1 mg of Ativan,‖ the jury heard no testimony regarding this drug. Thus, there is no
record evidence that Ativan is a sedative. There is likewise no evidence of Ativan‘s purpose or possible
effects, or the impact appellant‘s ingestion of the drug might have on medical personnel‘s ability to
interpret his behavior.
        17
            Our dissenting colleague points to the absence of evidence from a field sobriety test or
breathalyzer test to conclude that the jury ―could have reasonably gone either way‖ on the issue of
appellant‘s intoxication. However, we decline to adopt a per se rule that disregards overwhelming and
consistent evidence regarding appellant‘s appearance of intoxication merely because the State did not also
offer a field sobriety test, breathalyzer test, or other evidence of blood alcohol content.
        18
           Although the testimony regarding appellant‘s BAC was elicited from an expert, there is no
indication the jurors were predisposed to give such testimony greater weight than the other evidence
before them.
        19
          However, Ocanas testified that it is not unusual for the machine to recognize unidentified
substances for which the analysts are not testing.

                                                   18
about appellant‘s BAC ―are only as good as that machine.‖

        The State referenced appellant‘s specific BAC three times during closing
arguments, then referred to the gas chromatograph as the ―gold standard‖ compared to
urine or field sobriety tests, urged that the machine was properly calibrated, and argued
that ―there‘s no doubt about the blood.‖ However, the State emphasized that the jury
―heard more than enough evidence that [appellant‘s] intoxication caused that crash.‖ The
State recounted the testimony given by the witnesses at the scene and hospital, and
encouraged the jury to consider appellant‘s medical records and the receipt and bill from
Iguana Joe‘s.

        The State urged further:

               Let‘s say that the tire did cause the crash. Let‘s say the tire did come
        off beforehand, even though there‘s no evidence to suggest that it did.
        Let‘s go with their argument for a minute.
               Don‘t you know that from every witness you heard out on the scene
        that night, from the EMTs to the police officers to the civilian witnesses,
        that if that crash had been caused by that tire, don‘t you know the
        defendant‘s response would have been, Oh, my God, oh, my God, my car
        went out of control. I am so sorry. Is everyone okay? Oh, my God, the car
        was possessed. The tire—oh, my God, oh, my God, is everyone okay?
        And don‘t you know that is not anything that you heard and it‘s undisputed
        that the defendant was belligerent, that he was uncooperative and that he
        had to be restrained not once but twice.
               If that tire had been a problem, he would have been telling you from
        the beginning but he didn‘t.20

Based on this record, we can determine beyond a reasonable doubt that any asserted error
associated with the admission of Ocanas‘s testimony or report regarding appellant‘s BAC
did not contribute to the conviction. See TEX. R. APP. P. 44.2(a).

        We also do not believe that the asserted error contributed to appellant‘s
punishment. The majority of both parties‘ punishment-phase evidence focused on issues

        20
           The jury, by its verdict, necessarily rejected appellant‘s defensive theory, which was that—
regardless of the degree of appellant‘s intoxication—no individual could have controlled the direction of
appellant‘s truck once the wheel separated and caused the truck to veer into the path of the Yukon.

                                                   19
other than the extent of appellant‘s intoxication on the night of the accident. The State
presented the testimony of Brittany Mapstone‘s mother, who testified about losing her
daughter and the impact that loss has had on her family and Brittany‘s young son. The
State also called a community supervision officer to explain general details regarding
community supervision. Appellant called friends and family to testify that appellant
rarely, if ever, consumes alcohol, and that he is a family man who is remorseful about
Brittany Mapstone‘s death. Appellant also called the provider of the ignition interlock
device installed on appellant‘s vehicle, who testified that appellant has had no problem
with his supervisory conditions related to the use of that device since the accident.

       However, appellant also took the stand and testified that his tab at Iguana Joe‘s the
night of the accident ―was split down the middle. It was two [20-ounce] margaritas and
two shots.‖ He stated: ―I never said I wasn‘t intoxicated,‖ and ―[a]ccording to the law,
I‘m guilty.‖ He testified further:

       Q. Because [a prison term] is the appropriate sentence when you‘re a .19
       and you drive down the road and wiped out a 21-year-old mother; right?
       You know that; right? Nobody knows that better than you?
       A. According to the law, that‘s the appropriate sentence.
                              *                   *                    *
       Q. Okay. So, tell this jury how many times you think you have driven home
       drunk?
       A. I can’t put a number on it. I mean just because you‘re drinking, there
       have been times when I‘ve shut it down for a couple of hours to sober up
       and there‘s been times when I‘ve gotten rides home. I can‘t put a number
       on it. 21
       Q. You can‘t put a number on the amount of times you‘ve driven home
       drunk?
       A. No, I don‘t have—
       Q. I understand. So this was going to happen sooner or later; right?
       A. That‘s not fair to say because people do it for years and years and it
       never happens to them.

       21
            Emphasis added.

                                             20
       Q. How long did you do it?
       A. I did not have a drink of alcohol from the time I was about 18 years old
       until the time I was 34, so.
       Q. So when you were actually at the bar, you are still maintaining that you
       got to a .19 after two margaritas and two shots?
       A. Yes.

The State did not mention appellant‘s BAC at any other point during the presentation of
the punishment-phase evidence.

       The State referenced appellant‘s BAC in closing arguments once, but primarily
emphasized appellant‘s behavior at the scene of the accident, stating:

              And you know, that‘s one thing you can be mad, you can be upset
       that you‘re getting arrested, that you‘re drunk, you know, I understand
       belligerent drunk. What I don‘t understand and what I can never
       understand about this case is how you can do that, how you can behave like
       that when you know, when you know you‘ve killed that girl. Because what
       did Clint Cook[e] tell you, I told him that girl was dead. I told him that girl
       was dead. And he knew it and he understood it. Does that slow him down?
       Nope. . . . And what is his concern? Fight and get me out of here. Let me
       go. Oh, I can‘t breathe. It‘s all about me. That‘s the person you are
       considering. The person who couldn‘t estimate how many times he‘s
       driven drunk.

                            *                     *                      *

              But there is nobody in this building, there is nobody in this room
       who knows he deserves to go to prison more than [appellant]. He knows it.
       He knows you know it. He‘s prepared. He knows what he did. And he
       knows the punishment for doing that. When you kill somebody and you are
       two and a half times the legal limit, driving down a road in a nightmare
       scenario like this, you go to prison. Two lane highway, drunk, weaving
       down the road, there is no divider, there is no escape, you go to prison.

Although the State asked the jury to assess appellant‘s punishment at sixteen years‘
imprisonment, the jury assessed a lesser sentence of eight years. Based on this record, we
can determine beyond a reasonable doubt that any asserted error associated with the
admission of Ocanas‘s testimony or report regarding appellant‘s BAC did not contribute
to appellant‘s punishment. See TEX. R. APP. P. 44.2(a)
                                             21
       Because we conclude that appellant was not harmed by the asserted error, we
overrule his issue on appeal and affirm the judgment of the trial court.


                                                 /s/        Sharon McCally
                                                            Justice



Panel consists of Justices Frost, McCally, and Mirabal.22 (Mirabal, J., dissenting).
Publish — Tex. R. App. P. 47.2(b).




       22
            Senior Justice Margaret Garner Mirabal sitting by assignment.

                                                       22
