Affirmed and Opinion Filed July 21, 2015.




                                             In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-14-00672-CR

                        ANDREW CLARENCE DAVIS, III, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the 282nd Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-1312582-S

                              MEMORANDUM OPINION
                           Before Justices Lang, Stoddart, and Schenck
                                    Opinion by Justice Lang
       Andrew Clarence Davis, III, appeals the trial court’s judgment convicting him of

manslaughter. The jury found Davis guilty, that he used a deadly weapon, and assessed his

punishment at sixteen years of imprisonment and a $10,000 fine. In his sole issue on appeal,

Davis argues the trial court erred in excluding the testimony of his expert witness and that he was

harmed by the constitutional error. Assuming, without deciding, the trial court erred when it

excluded the testimony of Davis’s expert witness, we conclude that the alleged error was not

constitutional error and Davis has not shown he was harmed by the non-constitutional error. The

trial court’s judgment is affirmed.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       On the evening of July 6, 2013, while on Interstate Highway 35, Davis drove his black

sedan erratically and at a high rate of speed, hitting the driver’s side door of Miguel Herrera’s
pickup truck. The impact caused the truck to turn sideways. Then, both vehicles hit the

guardrail, causing the front ends of both vehicles to jump up on top of the guardrail. The

vehicles continued to slide down the guardrail until the truck suddenly went about ten feet in the

air, going over the guardrail. When the truck landed on the other side of the guardrail, it

bounced up, rotated slightly toward the driver’s side, and struck a large utility pole. Meanwhile,

the sedan went back into oncoming traffic and stopped. When the paramedics arrived, they

pronounced Herrera dead. Witnesses to the accident saw Davis leave his vehicle and walk

around. The paramedics assessed Davis’s condition, determined he was “in his right mind,” and

did not give him medical treatment or transport him to the hospital.

       Officer Randall Zabojnik responded to the accident and made contact with Davis. As a

result of speaking with and observing Davis, Officer Zabojnik believed that Davis was

intoxicated. After administering some of the field sobriety tests, which supported his initial

observation that Davis was intoxicated, Davis refused to do further field sobriety tests due to

Davis’s claims of injury and a medical condition.         Officer Zabojnik arrested Davis and

transported him to the hospital, where a sample of Davis’s blood was obtained.

       Davis was indicted for manslaughter.       The indictment alleged that Davis recklessly

caused Herrera’s death by:

       failing to keep a safe distance between said motor vehicle being operated by
       [Davis] and the motor vehicle occupied by [Herrera], and by failing to maintain
       control of said motor vehicle, and by operating the said motor vehicle at a speed
       greater than is reasonable and prudent under the circumstances then existing, and
       by operating a motor vehicle while intoxicated and under the influence of alcohol
       whereby colliding said motor vehicle operated by [Davis] into the motor vehicle
       occupied by [Herrera] which caused said vehicle to collide into and against a
       guardrail and a post, thereby causing the death of [Herrera.]

       During the jury trial, but outside the presence of the jury, Davis offered the expert

testimony of John Thomas Castle, Ph.D. The trial court excluded the expert. In Davis’s offer of

proof as to his expert’s testimony, he showed the expert, Dr. Castle, intended to testify that the
                                               –2–
methodology used by the phlebotomist and blood-alcohol analysis could have contaminated the

blood sample, causing fermentation and an elevated blood-alcohol level. See TEX. R. EVID.

103(a)(2). Specifically, the expert intended to testify that the phlebotomist’s failure to sanitize,

clean, or sterilize the top of the blood vial and the fact that the second blood-alcohol analyst

“opened” the vial, could have contaminated the blood sample. However, Dr. Castle admitted he

did not test the blood sample for contamination, explaining that, at this point, an analysis would

lead to inaccurate results. The trial court concluded that without the expert testing the blood

sample, the expert’s opinion amounted to speculation.

       The jury found Davis guilty of manslaughter and that he used a deadly weapon. Also, the

jury assessed his punishment at sixteen years of imprisonment and a $10,000 fine.

                          II. EXCLUSION OF EXPERT WITNESS

       In issue one, Davis argues the trial court erred in excluding the testimony of his expert

witness and that he was harmed by the constitutional error. The State alleged he was reckless by

operating a vehicle while intoxicated. Davis’s defensive theory was that the State’s evidence

regarding intoxication was not credible because, according to his expert witness, the test results

of Davis’s blood sample could be inaccurate. As a result, Davis contends that the error in

excluding his expert witness was constitutional error. Davis claims that he suffered harm

because if the jury had heard his expert’s testimony, the jury might have entertained a reasonable

doubt as to his guilt for manslaughter, finding him guilty of the lesser included offense of

criminally negligent homicide instead. The State does not address harm in its brief on appeal.

                                       A. Applicable Law

       In a criminal case, harm is evaluated under Texas Rules of Appellate Procedure 44.2.

Constitutional error is analyzed under Rule 44.2(a), while non-constitutional error is analyzed

under rule 44.2(b). TEX. R. APP. P. 44.2.


                                                –3–
                                    1. Constitutional Error

       Pursuant to rule 44.2(a), “If the appellate record in a criminal case reveals constitutional

error that is subject to harmless error review, the court of appeals must reverse a judgment of

conviction or punishment unless the court determines beyond a reasonable doubt that the error

did not contribute to the conviction.” TEX. R. APP. P. 44.2(a). The erroneous exclusion of

evidence offered under the rules of evidence generally constitutes non-constitutional error and is

reviewed under rule 44.2(b). Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App. 2007);

Tillman v. State, 376 S.W.3d 188, 198 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

However, the improper exclusion of evidence may raise a constitutional violation in two

circumstances: (1) when an evidentiary rule categorically and arbitrarily prohibits the defendant

from offering relevant evidence that is vital to his defense; or (2) when a trial court erroneously

excludes evidence that is vital to the case, and the exclusion precludes the defendant from

presenting a defense. Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005); Tillman, 376

S.W.3d at 198.

       Erroneous evidentiary rulings rarely rise to the level of denying a fundamental

constitutional right to present a meaningful defense. Wiley v. State, 74 S.W.3d 399, 405 (Tex.

Crim. App. 2002); Tillman, 376 S.W.3d at 198. A constitutional violation arises only where the

trial court’s clearly erroneous ruling excludes otherwise relevant, reliable evidence forming such

a vital portion of the case that exclusion effectively precludes the defendant from presenting a

defense. See Walters, 247 S.W.3d at 221; Ray, 178 S.W.3d at 835; Wiley, 74 S.W.3d at 405;

Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002); Cuadros-Fernandez v. State, 316

S.W.3d 645, 664 (Tex. App.—Dallas 2009, no pet.); Tillman, 376 S.W.3d at 198.               If the

erroneous ruling rises to the level of a constitutional violation, and “there is a reasonable

likelihood that the error materially affected the jury’s deliberations, then the error was not


                                               –4–
harmless beyond a reasonable doubt.” Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App.

2000); Cuadros-Fernandez, 316 S.W.3d at 662. The fact that the properly admitted evidence is

sufficient to support the verdict does not demonstrate that the error was harmless. Cuadros-

Fernandez, 316 S.W.3d at 662. However, the presence of overwhelming evidence supporting

the finding in question can be a factor in the evaluation of harmless error. Wesbrook, 29 S.W.3d

at 119; see also Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002). Where the

excluded evidence would only further the defendant’s defensive theory incrementally, the error

is not of a constitutional dimension. Walters, 247 S.W.3d at 222; Ray, 178 S.W.3d at 836.

                                  2. Non-Constitutional Error

       Pursuant to rule 44.2(b), “Any other error, defect, irregularity, or variance that does not

affect substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b). A substantial right is

affected if the error had a substantial and injurious effect or influence in determining the jury’s

verdict. Barshaw v. State, 342 S.W.3d 91, 93–94 (Tex. Crim. App. 2011); Coble v. State, 330

S.W.3d 253, 280 (Tex. Crim. App. 2010); Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App.

2005). If the error did not influence the jury or had but a slight effect, the error is harmless.

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). An appellate court should

examine the record as a whole when conducting a harm analysis. Motilla, 78 S.W.3d at 358. In

conducting the harm analysis, an appellate court should consider everything in the record,

including any testimony or physical evidence admitted for the jury’s consideration, the trial

court’s instructions to the jury, the State’s theory, any defensive theories, closing arguments, and

even voir dire, if material to the appellant’s claim. Motilla, 78 S.W.3d 355–56; Morales v. State,

32 S.W.3d 862, 867 (Tex. Crim. App. 2000). In assessing harm, the factors to be considered are

the nature of the evidence supporting the verdict, the character of the alleged error, and how the

evidence might be considered in connection with the other evidence in the case. Motilla, 78


                                                –5–
S.W.3d 355; Morales, 32 S.W.3d at 867. Also, an appellate court should consider overwhelming

evidence of guilt, but it is only one factor in the harm analysis. Motilla, 78 S.W.3d 357.

                             B. Application of the Law to the Facts

       Assuming, without deciding, the trial court erred when it excluded Davis’s expert

witness, we review the alleged error for harm. As an initial matter, we must decide whether the

trial court’s alleged error in excluding Davis’s expert witness was, as Davis argues in his brief on

appeal, of constitutional proportions because “the expert opinion . . . indicating that the test[]

results from [Davis’s] blood sample could be inaccurate clearly formed a vital portion of the

defense[’s] case that the exclusion of such evidence effectively precluded [Davis] from

presenting his defensive theory.”

       In his brief on appeal, Davis admits that “During [the] cross-examination of Officer

Zabojnik, counsel impeached the credibility of the officer’s opinion that [Davis] was intoxicated

with evidence of variable explanations for [Davis’s] poor performance on the field sobriety tests

. . .” Further, Davis was able to cross examine the police officer who initially determined that

Davis was intoxicated, the phlebotomist who drew his blood, and the second blood-alcohol

analyst to challenge their reliability and methodology, including the possible contamination of

his blood sample. We conclude that the excluded evidence would have furthered Davis’s

defensive theory only incrementally. See Walters, 247 S.W.3d at 222; Ray, 178 S.W.3d at 836.

Also, we conclude Davis was not effectively prevented from presenting his defense when the

trial court excluded his expert witness. See Tillman, 376 S.W.3d at 198–99 (because appellant

was able to challenge reliability of police identification procedures through cross-examination of

eyewitnesses and officer, and attacked their reliability during closing argument, he was not

effectively prevented from presenting defense when trial court excluded eyewitness-

identification testimony of proffered expert, a psychologist); cf. Cuadros-Fernandez, 316 S.W.3d


                                                –6–
at 664–65 (exclusion of expert who was primary witness and only expert presented by defense

who had knowledge regarding specific type of cabinet that was alleged to be cause of death and

State argued, during its rebuttal closing argument, defendant failed to call any expert witnesses

was harmful constitutional error). Finally, assuming, without deciding, the trial court erred when

it excluded Davis’s expert, we conclude that alleged error was not of constitutional dimension

and the harm analysis should be governed by rule 44.2(b). See Tillman, 376 S.W.3d at 199.

       Next, assuming, without deciding, the trial court erred when it excluded Davis’s expert,

we consider whether that alleged non-constitutional error harmed Davis. First, we examine the

evidence admitted for the jury’s consideration. The record shows three eyewitnesses to the

accident testified that Davis was driving erratically at a high rate of speed and lost control of his

vehicle when he struck Herrera’s truck. These witnesses also stated that Davis left his vehicle,

walked around, and appeared to be uninjured. The paramedic testified that he asked Davis

questions. Davis was able to answer the questions correctly so he concluded Davis was “in his

right mind,” and he did not medically treat Davis or transport Davis to the hospital. Also, Davis

introduced the paramedic’s patient care record, which was admitted into evidence. On that form,

next to the section labeled “Alcohol/Drugs” the paramedic wrote “None.”

       Officer Randall Zabojnik responded to the accident and made contact with Davis, who

repeatedly asked the officer about the damage to his vehicle. While speaking with Davis, Officer

Zabojnik detected the odor of alcohol and observed that Davis had bloodshot and watery eyes, an

“unsteady balance,” and slurred speech.         Based on these observations, Officer Zabojnik

administered the HGN test to Davis and observed all six clues. Also, Officer Zabojnik observed

that Davis had difficulty following directions, would not keep his head still, and could not keep

his balance in the starting position for the walk-and-turn test. Officer Zabojnik did not observe

that Davis had any injuries and watched him walk to the side of the road and down a slope

                                                –7–
without difficulty. However, Davis refused to do further field sobriety tests due to his claims of

injury and a medical condition. Officer Zabojnik arrested Davis and transported him to the

hospital, where a sample of Davis’s blood was obtained. As previously noted, Davis cross-

examined Officer Zabojnik as to the reliability of his conclusion that Davis was intoxicated.

Further, the video recording from the officer’s “dash camera” of the events was admitted into

evidence and played for the jury.

       Officer Allen Hollis, the crash investigator, testified the cause of the crash was both

excessive speed and faulty evasive action by Davis, the driver of the sedan. Also, Officer Craig

Barnhart, the accident reconstructionist, testified he retrieved the data from the “black boxes” or

the “event data recorders” of Davis’s and Herrera’s vehicles. He testified the data reflected the

speeds Davis was traveling prior to the collision: 89 mph five seconds before; 86 mph four

seconds before, 85 mph three second before; 76 mph two seconds before; and 65 mph one

second before. Also, Officer Barnhart stated the data from Herrera’s “event data recorder”

showed that five seconds prior to the collision, he was traveling “60 miles an hour, except for

one-half second prior to the impact, which is 61. And then at 0.0, at time zero, it was also 61.”

       The phlebotomist testified as to the procedure she used in drawing Davis’s blood at the

hospital. Also, the blood-alcohol analyst testified that based on her analysis of Davis’s blood

sample, Davis had a blood alcohol concentration of 0.19. The blood-alcohol analyst stated that

she was aware of an earlier analysis performed by a different analyst that was “no longer with

her office.” That analysis found Davis had a blood alcohol concentration of 0.18. The blood-

alcohol analyst explained the differences in their results was a “different reporting language,”

i.e., the first blood-alcohol analyst reported the lowest value and the second, testifying blood-

alcohol analyst reported the average value of the results. As noted above, Davis had the




                                               –8–
opportunity to cross examine both the phlebotomist and the blood-alcohol analyst as to their

methodology in drawing Davis’s blood and analyzing the blood sample.

        Second, we review the trial court’s instructions to the jury. Specifically, we note that the

jury charge stated, in part:

        A person acts recklessly or is reckless with respect to circumstances surrounding
        his conduct or the result of his conduct when he is aware of but consciously
        disregards a substantial and unjustifiable risk that the circumstances exist or the
        result will occur. The risk must be of such a nature and degree that its disregard
        constitutes a gross deviation from the standard of care that an ordinary person
        would exercise under all the circumstances as viewed from the actor’s standpoint.

        Now, considering all the law contained in the Court’s charge, if you believe from
        the evidence beyond a reasonable doubt that [] Davis on or about the 6th day of
        July, A.D., 2013, in the County of Dallas and said State, did unlawfully then and
        there recklessly cause the death of an individual, [] Herrera, . . . by failing to keep
        a safe distance between said motor vehicle being operated by [Davis] and the
        motor vehicle occupied by [Herrera], or by failing to maintain control of said
        motor vehicle, or by operating the said motor vehicle at a speed greater than is
        reasonable and prudent under the circumstances then existing, or by operating a
        motor vehicle while intoxicated and under the influence of alcohol whereby
        colliding said motor vehicle operated by [Davis] into the motor vehicle occupied
        by [Herrera] which caused said vehicle to collide into or against a guardrail or a
        post, thereby causing the death of [Herrera], and you find that a deadly weapon,
        to-wit: a motor vehicle, was used or exhibited during the commission of the
        aforesaid offense, then you will find [Davis] guilty of the offense of
        manslaughter, and say by your verdict, guilty.

        The indictment and jury charge alleged four ways in which Davis acted recklessly.

Whether Davis was intoxicated is implicated in only one of the four allegations. In this case, the

jury’s general verdict of guilty for the offense of manslaughter makes it impossible to determine

which theory the jury relied upon. However, while relevant, this fact alone is not determinative.

See Owens v. State, 135 S.W.3d 302, 311 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

        Third, we review the State’s and Davis’s defensive theories and the closing arguments of

counsel. Davis’s defensive theory was that he was not intoxicated and his counsel focused his

closing argument on that particular allegation of reckless conduct. Conversely, in the State’s



                                                 –9–
closing argument, it focused on the different allegations of conduct by which the jury could find

Davis reckless:

            Remember the different reasons for recklessness. We talked about that in jury
            selection. Y’all just have to agree that he was reckless. You don’t have to agree
            why he was reckless. You four can believe [he] was reckless because of
            excessive speed, that 89 miles per hour. You four can believe in a failure to
            maintain safe distance. You four can believe that he was intoxicated and that’s
            why he was reckless.

            At the end of the day, he was reckless.

            Remember, all the civilian testimony. The erratic driving, and then the officer. . .
            . All the clues of intoxication out on the scene. That video that y’all saw, that’s
            evidence of intoxication. And then the blood evidence .18, .19.

            After reviewing the evidence admitted for the jury’s consideration, the trial court’s

instructions to the jury, the State’s theory, the defense’s theory, and the parties’ closing

arguments, we conclude that assuming, without deciding, the trial court erred when it excluded

Davis’s expert, that non-constitutional error was harmless.1

            Issue one is decided against Davis.

                                                           III. CONCLUSION

            Assuming, without deciding, the trial court erred when it excluded the testimony of

Davis’s expert witness, the alleged error was not constitutional error and Davis has not shown he

was harmed by the non-constitutional error.




1
    Even if we employed the more stringent harm analysis required by rule 44.2(a), we conclude the result would be the same. A case with
    constitutional error must be reversed unless the reviewing court determines beyond a reasonable doubt the error did not contribute to the
    conviction or punishment. TEX. R. APP. P. 44.2(a). The presence of overwhelming evidence supporting the finding in question can be a factor
    in the evaluation of harmless constitutional error under rule 44.2(a). See Tillman, 376 S.W.3d at 202. Having evaluated the entire record in a
    neutral light, we conclude that a rational trier of fact would not have reached a different result if the error had not occurred and Dr. Castle had
    been allowed to testify. See Tillman, 376 S.W.3d at 202.



                                                                        –10–
       The trial court’s judgment is affirmed.




                                                    /Douglas S. Lang/
                                                    DOUGLAS S. LANG
                                                    JUSTICE
Do Not Publish
TEX. R. APP. P. 47
140672F.U05




                                                 –11–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

ANDREW CLARENCE DAVIS, III,                            On Appeal from the 282nd Judicial District
Appellant                                              Court, Dallas County, Texas
                                                       Trial Court Cause No. F-1312582-S.
No. 05-14-00672-CR         V.                          Opinion delivered by Justice Lang. Justices
                                                       Stoddart and Schenck participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 21st day of July, 2015.




                                                –12–
