                                     In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                              __________________

                              NO. 09-18-00077-CR
                              __________________

                    GARRETT WILLIAM NEE, Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                 On Appeal from the 9th District Court
                     Montgomery County, Texas
                   Trial Cause No. 16-09-10494-CR
__________________________________________________________________

                         MEMORANDUM OPINION

      A police pursuit of a person evading arrest or detention ended with a motor

vehicle collision involving the pursuing patrol vehicle and a sport utility vehicle

containing seven members of the Hilario family returning from a Father’s Day

celebration. Sergeant Stacey Baumgartner perished from injuries he sustained in the




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collision.1 Garrett William Nee appeals a judgment of conviction and fifteen-year

sentence for evading arrest or detention with a motor vehicle resulting in death. In

four issues, Nee complains the evidence is legally insufficient to support the jury’s

verdict finding him guilty, the trial court erred by allowing guilt-phase admission of

evidence of Nee’s intoxication at the time of the offense because the evidence

concerned an uncharged extraneous offense, the trial court erred by allowing guilt-

phase admission of retrograde extrapolation testimony that failed to consider how

much food Nee consumed, and Nee suffered egregious harm from the omission of

an article 38.23 jury charge instruction concerning Sergeant Baumgartner’s violation

of the Transportation Code during his pursuit of Nee. We affirm the trial court’s

judgment.

                                     Background

      Sergeant Baumgartner responded to a call that a man was exposing himself to

teenagers in a gas station parking lot. An observer directed the officer to Nee, who



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         The Montgomery County grand jury presented four indictments that alleged
Nee evaded arrest with a motor vehicle resulting in death or serious bodily injury.
The indictments differed in that they alleged that Sergeant Baumgartner and Adan
Hilario Jr. died as a direct result of the attempt by the officer to apprehend Nee while
he was in flight and that Andrea Hilario and Joel Santos suffered serious bodily
injury as a direct result of an attempt by the officer to apprehend Nee while he was
in flight. The trial court vacated three of the judgments and proceeded to punishment
on the case that is the subject of this appeal.
                                              2
was sitting in his vehicle. Nee admitted he had been drinking alcohol. When the

observer directed Sergeant Baumgartner to a spot in the parking lot where Nee

urinated in public, Nee sped away in his vehicle. Sergeant Baumgartner returned to

his patrol car and pursued Nee’s vehicle in a high-speed chase. The patrol car’s

emergency overhead lights and siren were activated as the vehicles approached an

intersection. Nee’s vehicle proceeded through the intersection without incident, but

the Hilario family’s sport utility vehicle collided with Sergeant Baumgartner’s patrol

car. The crash rolled the patrol vehicle and pushed it into a concrete light pole, and

children from the Hilario family’s vehicle were ejected upon impact.

      According to the State’s accident reconstruction expert, Trooper Joseph

Taska, data recovered from the patrol vehicle’s computer system revealed the officer

was travelling over sixty miles-per-hour twenty seconds before impact and fifty-five

miles-per-hour just before impact. The recorded throttle reduced from 93.5% about

two seconds before the accident to 5% on impact, which in Trooper Taska’s opinion

reflected that Sergeant Baumgartner applied the brakes before impact.

      Nee’s accident reconstruction witness, Cam Cope, testified that he used crash

data retrieval to conclude that Sergeant Baumgartner’s vehicle was travelling sixty-

six miles-per-hour. According to Cope, Sergeant Baumgartner died as a result of the

impact of his head on the passenger door. Cope offered his opinion that Sergeant

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Baumgartner would have remained in his seat if he had been wearing his seat belt.

According to Cope, the Hilario’s vehicle would not have struck the patrol car if

Sergeant Baumgartner had braked slightly before he entered the intersection.

      Dr. Katheryn Pinneri, a forensic pathologist, testified that Sergeant

Baumgartner suffered multiple injuries that could have independently caused his

death. According to Dr. Pinneri, the transection of his aorta would have occurred

even if the officer was wearing a seatbelt.

      Department of Public Safety Trooper Christopher Lucchesi investigated the

accident. He identified Nee as the person on the scene who identified himself as the

person Sergeant Baumgartner had been chasing. Trooper Lucchesi read Nee his

Miranda rights before questioning him. Nee explained that he had been out drinking

because he had marital issues. Nee exhibited all six clues on the horizontal gaze

nystagmus test. Nee refused to perform a field sobriety test and he was arrested for

driving while intoxicated. Trooper Lucchesi then obtained a search warrant for a

sample of Nee’s blood. Trooper Lucchesi stated that the factors he identified in his

initial crash report included Nee evading in a motor vehicle, Sergeant Baumgartner

disregarding a red light, and Hilario failing to yield right of way to an emergency

vehicle.



                                          4
      A toxicology chemist, Heidi Christensen, testified without objection that

Nee’s blood sample test results revealed a blood alcohol concentration of 0.161.

Presented with a hypothetical situation in which a subject who claimed to have

consumed only light beer provided a sample measuring .161 blood alcohol

concentration at 10:00 p.m., Christensen replied that she would need additional

information, including the subject’s gender, weight and height, to determine the

approximate number of drinks he had consumed. Provided a hypothetical 6’3” male

weighing 230 pounds, Christensen stated the subject would have had to have

approximately ten to eleven light beers in his system at the time of the blood draw.

She added that for the subject to have been below .08 blood alcohol concentration at

7:30 p.m., at the time of the stop, he would have had to drink six to ten of those beers

in the thirty minutes just prior to the stop. On cross-examination, Christensen stated

that she was told that Nee ate a pork sandwich at lunchtime, and she opined that

information would not impact her calculations.

                            Sufficiency of the Evidence

      Nee’s first issue claims the evidence is legally insufficient to support his

conviction for evading arrest or detention resulting in death to another. “A person

commits an offense if he intentionally flees from a person he knows is a peace officer

or federal special investigator attempting lawfully to arrest or detain him.” Tex.

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Penal Code Ann. § 38.04(a). Evading arrest or detention is a felony of the second

degree if “another suffers death as a direct result of an attempt by the officer or

investigator from whom the actor is fleeing to apprehend the actor while the actor is

in flight[.]” Id. § 38.04(b)(3)(A). Nee limits his challenge to the sufficiency of the

evidence supporting the jury’s finding of the facts that elevate the degree of the

offense under section 38.04(b)(3)(A), and he does not challenge the sufficiency of

the evidence supporting the elements of the offense under section 38.04(a).

       When there is a challenge to the sufficiency of the evidence, we review the

evidence in the light most favorable to the verdict to determine whether any rational

factfinder could have found the essential elements of the offense beyond a

reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)

(citing Jackson v. Virginia, 443 U.S. 307 (1979)) (concluding the Jackson standard

“is the only standard that a reviewing court should apply” when examining the

sufficiency of the evidence); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). “[We] must evaluate all of the evidence in the record, both direct and

circumstantial, whether admissible or inadmissible.” Dewberry v. State, 4 S.W.3d

735, 740 (Tex. Crim. App. 1999). The jury is the sole judge of the witnesses’

credibility and weight to be given to their testimony. Tate v. State, 500 S.W.3d 410,

413 (Tex. Crim. App. 2016). Juries may draw multiple reasonable inferences from

                                          6
facts so long as each inference is supported by the evidence presented at trial. Id.

“Each fact need not point directly and independently to the guilt of the appellant, as

long as the cumulative force of all the incriminating circumstances is sufficient to

support the conviction.” Hooper, 214 S.W.3d at 13. Accordingly, we must defer to

the jury’s determinations of weight and credibility of the witnesses. See Brooks, 323

S.W.3d at 899.

      Generally, in a sufficiency review, the appeals court is required to uphold the

jury’s verdict “unless a reasonable juror must have had a reasonable doubt as to at

least one of the elements of the offense.” Runningwolf v. State, 360 S.W.3d 490, 494

(Tex. Crim. App. 2012).

      [W]hen the evidence is deemed legally insufficient to support a
      person’s conviction for a greater offense, but the analysis as to
      insufficiency raises the possibility that the record establishes the person
      is nevertheless guilty of some lesser-included offense, the appellate
      court should consider reforming the judgment to a lesser-included
      offense before rendering a judgment of acquittal.

Lang v. State, 561 S.W.3d 174, 184 (Tex. Crim. App. 2018).

      Nee argues Sergeant Baumgartner’s death occurred, not as a direct result of

Sergeant Baumgartner’s attempt to apprehend Nee while Nee was in flight, but

because of what Nee argues is Sergeant Baumgartner’s negligent and illegal act of

not slowing down at the red light. Nee argues that, but for Sergeant Baumgartner not

slowing or stopping at the intersection when he had the red light, the accident that
                                         7
claimed his life would not have occurred. Nee contends Sergeant Baumgartner’s

death is the direct result of the officer’s disregard of section 546.001 of the Texas

Transportation Code, not as a direct result of Nee fleeing Sergeant Baumgartner. See

Tex. Transp. Code Ann. § 546.001.

      Generally, “[a] person is criminally responsible if the result would not have

occurred but for his conduct, operating either alone or concurrently with another

cause, unless the concurrent cause was clearly sufficient to produce the result and

the conduct of the actor clearly insufficient.” See Tex. Penal Code Ann. § 6.04(a).

      If concurrent causes are present, two possible conditions exist to satisfy
      the “but for” requirement: (1) the defendant’s conduct may be sufficient
      by itself to have caused the harm, regardless of the existence of a
      concurrent cause; or (2) the defendant’s conduct and the other cause
      together may be sufficient to have caused the harm.

Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986).

      Nee claims he cannot be held criminally responsible for an accident caused

by Sergeant Baumgartner failing to enter the intersection safely. Even so, the issue

is not whether the accident could have been avoided if Sergeant Baumgartner had

slowed more before entering the intersection, but whether Sergeant Baumgartner

died as a foreseeable consequence of his pursuit of Nee while Nee was in flight from

lawful arrest or detention. Nee ignores the fact undisputed at trial, that at the time

Sergeant Baumgartner entered the intersection, the officer was actively trying to

                                          8
apprehend Nee, while Nee was fleeing to avoid arrest or detention. Section

38.04(b)(3)(A) describes the circumstances under which the act for which Nee is

criminally responsible—intentionally fleeing from a person he knew to be a peace

officer attempting lawfully to arrest or detain him—is elevated to a second-degree

felony. See Tex. Penal Code Ann. § 38.04(a), (b)(3)(A). Nee was not convicted of

causing the death of Sergeant Baumgartner; Instead, Nee was convicted of evading

arrest or detention, and the grade of offense is greater because Sergeant Baumgartner

died as a direct result of trying to lawfully arrest or detain Nee. The undisputed

evidence at trial established that Sergeant Baumgartner was actively engaged in

pursuing Nee when the collision between the patrol car and the Hilario vehicle

occurred. The jury could rationally find that Nee intentionally fled from Sergeant

Baumgartner, a person Nee knew was a peace officer attempting lawfully to arrest

or detain Nee, and that Sergeant Baumgartner died as a direct result of his attempt

to apprehend Nee while Nee was in flight. We conclude the evidence is legally

sufficient to support the conviction. We overrule issue one.

                             Evidence of Intoxication

      Nee’s second issue complains that the trial court erred in allowing unfairly

prejudicial testimony of extraneous offenses during the guilt/innocence phase of the

trial. See generally Tex. R. Evid. 403, 404(b). Nee admits that Trooper Lucchesi and

                                         9
other witnesses testified without objection to Trooper Lucchesi’s investigation of

potential intoxication offenses and reckless driving by Nee. Nee failed to preserve

the issue for appellate review. See Tex. R. App. P. 33.1(a). We overrule issue two.

                       Retrograde Extrapolation Evidence

      In his third issue, Nee claims the trial court erred by allowing Christensen to

perform a retrograde extrapolation analysis without considering the quantity and

type of food that Nee consumed. He argues Christensen “clearly did not take into

account the quantity and type of food consumed by Appellant.” Nee’s argument is

unsupported by the record, which shows that Christensen considered Nee’s most

recent meal and disregarded it because he had eaten it too long before his drinking

to impact her analysis. And Christensen identified in her hypothetical several factors

that were in the record, including Nee’s sex, age, height and weight, as well as the

blood test result showing his blood alcohol concentration of 0.161.

      To preserve error for appellate review, “the point of error on appeal must

comport with the objection made at trial.” Wilson v. State, 71 S.W.3d 346, 349 (Tex.

Crim. App. 2002). During trial, Nee objected that the witness had not been qualified

as an expert on retrograde extrapolation. The trial objection to the witness’s

qualifications does not match the argument raised for the first time in this appeal,

that the witness’s testimony is unreliable because she failed to identify whether and

                                         10
what any individual characteristics of the defendant were known to the expert. See

Mata v. State, 46 S.W.3d 902, 916 (Tex. Crim. App. 2001). Nee failed to preserve

the issue for appellate review. See Tex. R. App. P. 33.1(a). We overrule issue three.

                           Illegally Obtained Evidence

      In his fourth issue, Nee argues the trial court erred by failing to include an

article 38.23 instruction in the jury charge when there was a factual dispute about

whether the accident was proximately caused by Sergeant Baumgartner’s illegal act

of disregarding section 546.001 of the Texas Transportation Code and so all

evidence of death resulted from a violation of law. See Tex. Code Crim. Proc. Ann.

art. 38.23; see also Tex. Transp. Code Ann. § 546.001. Nee argues he suffered

egregious harm because the jury could consider and convict him for a second-degree

felony offense of evading arrest resulting in death instead of a third-degree felony

offense of evading arrest in a motor vehicle. See Madden v. State, 242 S.W.3d 504,

513 (Tex. Crim. App. 2007) (applying egregious harm standard because the

appellant never presented a proposed jury article 38.23 instruction).

      Article 38.23 provides:

            No evidence obtained by an officer or other person in violation
      of any provisions of the Constitution or laws of the State of Texas, or
      of the Constitution or laws of the United States of America, shall be
      admitted in evidence against the accused on the trial of any criminal
      case.

                                         11
             In any case where the legal evidence raises an issue hereunder,
      the jury shall be instructed that if it believes, or has a reasonable doubt,
      that the evidence was obtained in violation of the provisions of this
      Article, then and in such event, the jury shall disregard any such
      evidence so obtained.

Tex. Code Crim. Proc. Ann. art. 38.23(a).

      “A defendant’s right to the submission of jury instructions under Article

38.23(a) is limited to disputed issues of fact that are material to his claim of a

constitutional or statutory violation that would render evidence inadmissible.”

Madden, 242 S.W.3d at 509–10. Article 38.23(a) does not apply to every violation

of law. Wilson v. State, 311 S.W.3d 452, 459 (Tex. Crim. App. 2010). “Article

38.23(a) may not be invoked for statutory violations unrelated to the purpose of the

exclusionary rule or to the prevention of the illegal procurement of evidence of

crime.” Id.

      In Miles v. State, the appellant argued article 38.23(a) required the suppression

of evidence obtained by a tow truck driver who admitted to committing several

traffic violations during a citizen’s arrest. 241 S.W.3d 28, 42 (Tex. Crim. App.

2007). The Court of Criminal Appeals held that the exclusionary rule does not apply

to traffic violations that do not infringe on the defendant’s property or privacy rights.

Id. at 44. The Court recognized that “there might be situations in which the conduct

of the police officer or citizen in making an arrest is constitutionally unreasonable[.]”

                                           12
Id. at 45. In Nee’s case, however, it is undisputed that Nee evaded police pursuit in

a high-speed chase. Furthermore, under article 38.23(a), evidence obtained in

violation of the law “contemplates that a crime has been committed; that evidence

of that crime exists; and that officers violate the law in attempting to obtain evidence

of the previously committed crime.” State v. Mayorga, 901 S.W.2d 943, 945–46

(Tex. Crim. App. 1995). The evidence Nee argues should have been excluded did

not exist at the time Sergeant Baumgartner entered the intersection. We conclude the

trial court did not err by failing to charge the jury on article 38.23(a). We overrule

issue four and affirm the trial court’s judgment.

      AFFIRMED.



                                                      _________________________
                                                         CHARLES KREGER
                                                                Justice

Submitted on June 3, 2019
Opinion Delivered November 13, 2019
Do Not Publish

Before Kreger, Horton and Johnson, JJ.




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