                               NUMBER 13-16-00596-CR

                                  COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG


RICHARD HYLAND,                                                                           Appellant,

                                                    v.

THE STATE OF TEXAS,                                                                       Appellee.


                       On appeal from the 319th District Court
                             of Nueces County, Texas.


                               MEMORANDUM OPINION

              Before Justices Rodriguez, Longoria, and Hinojosa
                 Memorandum Opinion by Justice Rodriguez

        By four issues, Richard Hyland appeals his conviction for the intoxication

manslaughter of his wife, Jamie Doherty. 1               Hyland challenges the sufficiency of the

evidence to support his conviction, as well as the jury’s finding that he used or exhibited

       1 The decedent’s first name is variously spelled in the record as “Jaimie” and “Jaime,” and her last

name also appears as “Dougherty.”
a deadly weapon—his motorcycle—during the commission of the offense. Hyland also

disputes the validity of the warrant used to draw and test his blood for intoxicants. We

reverse and remand.

                        I.      VALIDITY OF THE SEARCH WARRANT

       In his third issue, Hyland asserts that the warrant authorizing his blood draw was

defective. Hyland focuses on Officer Raymond Harrison’s affidavit, which was submitted

to a magistrate in pursuit of the warrant. According to Hyland, the affidavit contained

reckless or deliberate falsehoods that, when excised from the affidavit, render the affidavit

insufficient to provide probable cause to believe that he was intoxicated.           Hyland

contends that because the defective warrant violated his Fourth Amendment rights, the

trial court erred in denying his motion to suppress all resulting blood evidence.

       We look to the four corners of the affidavit in determining the existence of probable

cause to search the identified locations. Massey v. State, 933 S.W.2d 141, 148 (Tex.

Crim. App. 1996).

A.     Affidavit for Search Warrant

       To obtain the warrant, Officer Harrison filled out a standard form and submitted it

to a magistrate as a sworn affidavit. The preprinted affidavit form contained several

allegations concerning the suspect’s intoxication offense and the officer’s probable cause

to believe that a blood draw would lead to evidence of the intoxication offense.

Throughout the form were blanks for the affiant to enter details concerning the case facts.

For instance, the introductory paragraphs were preprinted and provided only a blank for

the affiant’s name and term of service with the Corpus Christi Police Department (nine


                                             2
years). The stock language then averred that the affiant’s police training “has included

detection and recognition of persons who are intoxicated.”

      The body of the affidavit form included nine numbered paragraphs.             Officer

Harrison entered Hyland’s personal information in paragraph one, which described

Hyland for all purposes as “the suspect.” In preprinted paragraphs two and three, the

affidavit stated that the suspect was in custody and was concealing human blood, which

constituted evidence of the offense described in paragraph four.          Paragraph four

asserted that the suspect had operated a motor vehicle in a public place while intoxicated,

leaving blanks for the date and time of the offense, which Officer Hyland entered as May

30, 2014, at 10:50 p.m.         Paragraph four also recited the statutory definition of

intoxication. See TEX. PENAL CODE ANN. § 49.01(2) (West, Westlaw through 2017 1st

C.S.). In paragraph five, Officer Harrison checked a box indicating his belief that the

suspect was operating a motor vehicle in a public place, which was “based on . . . a

witness”; he entered the contact information of two witnesses, Juan and Phyllis Ledesma,

in an accompanying blank.

      Paragraphs six through nine described the basis of Officer Harrison’s belief that

Hyland was intoxicated, which we reproduce below, with Officer Harrison’s hand-written

notations in the underlined blanks:

      6.     I made the following observations about the suspect:

             General appearance:            Bloody

             Odor of alcohol:               Strong

             Condition of eyes:             —


                                            3
                Speech:                             —

                Attitude:                           —

                Balance:                            —

        7.      I requested performance of field sobriety tests by the suspect and
                recorded the results and my observations of the suspect’s
                performance of filed [sic] sobriety tests and signs of intoxication in
                the attached SFST SCORING SHEET, which is attached hereto and
                incorporated herein for all purposes.

        8.      Additional facts leading me to believe that the suspect was
                intoxicated while operating a motor vehicle in a public place are as
                follows:

                Involved in motorcycle crash (case #1402159). Passenger DOA +
                suspect is in coma at Spohn Memorial Hospital.


        Also See Attached Probable Cause Statement, Which Is Attached
        Hereto And Incorporated Herein For All Purposes.

        9.      I have seen intoxicated persons on many occasions in the past.
                Based on all of the above and my experience and training, I
                determined that the suspect was intoxicated, and I placed the
                suspect under arrest for Driving While Intoxicated. I requested a
                sample of the suspect’s breath and/or blood, which the suspect
                refused to provide.

Upon review of Officer Harrison’s affidavit, the magistrate signed the warrant at 1:19 a.m.

Before the introduction of the blood evidence, Hyland moved to exclude the results of the

blood draw, alleging that paragraphs six, seven, and nine all contained reckless or

deliberate falsehoods that rendered the affidavit defective. The trial court held a Franks

hearing to determine the truth or falsity of the contested statements. 2 See Franks v.

Delaware, 438 U.S. 154, 156 (1978).


        2 The affidavit refers to an “attached probable cause statement.”          In that statement, Officer
Harrison more fully set out the details of his investigation, his acquisition of the search warrant, and his
observation of the blood draw at 2:04 a.m. Based on its content, it is apparent that Officer Harrison drafted
                                                     4
        As to paragraph six of the affidavit, Hyland argued that Officer Harrison never

actually smelled the “strong” odor of alcohol on his breath. Officer Harrison testified at

the Franks hearing that when he arrived at the scene of the motorcycle accident, Hyland

was already being loaded into the ambulance. Harrison agreed that he did not mention

that he smelled alcohol on Hyland in his investigative report; instead, Officer Harrison’s

report only mentioned that a paramedic told him that Hyland smelled of alcohol.

        However, Officer Harrison testified that he had in fact smelled alcohol on Hyland’s

breath. According to Officer Harrison, he followed the ambulance to the hospital, where

he saw Hyland unconscious in a hospital bed. He approached within one or two feet of

Hyland’s face and smelled a strong odor of alcohol. He then read a statutory warning

and drew up his affidavit. Based on Officer Harrison’s testimony, the trial court denied

Hyland’s challenge to paragraph six.

        Hyland next asserted that Officer Harrison never asked him to perform field

sobriety tests, as alleged in paragraph seven, and never requested a sample of Hyland’s

“breath and/or blood, which the suspect refused to provide,” as alleged in paragraph nine.

Hyland pointed out that he was in a coma when Officer Harrison approached him.

        Officer Harrison agreed.         He testified that paragraphs seven and nine were

preprinted in the affidavit form, and though he knew the content of the affidavit, it did not

occur to him to cross out inapplicable paragraphs. Officer Harrison testified that in the



this statement at some time after the issuance of the warrant at 1:19 a.m., and this statement could not
have been presented to the magistrate in pursuing the warrant. When this timing problem was presented
to the trial court, the court made clear that its ruling on the Franks motion was based solely on Officer
Harrison’s affidavit itself and not on his later-drafted statement. Accordingly, we do not consider this
statement in determining whether the warrant had a valid basis in probable cause.
                                                   5
hundreds of blood warrants he had handled in the past, crossing out this stock language

had never been an issue, and he did not intend to mislead the magistrate by leaving this

preprinted content in his affidavit. Instead, as the State pointed out, Officer Harrison

made a handwritten notation in paragraph eight that “suspect is in coma at Spohn

Memorial Hospital.”

       Based on Officer Harrison’s testimony, the trial court sustained Hyland’s Franks

motion and excised the entirety of paragraph seven from the affidavit, concerning

Hyland’s performance on field sobriety tests.      The trial court also excised the final

sentence of paragraph nine, which concerned Hyland’s refusal to provide a breath or

blood sample.

       However, the trial court found that even after excluding those statements, the

redacted affidavit nonetheless stated a sufficient basis of probable cause to believe that

a search of Hyland’s veins would yield evidence of a crime. The trial court overruled

Hyland’s motion to suppress the blood evidence.

B.     Applicable Law

       Ordinarily, the constitutional preference for searches based upon warrants

requires reviewing courts to give “great deference” to a magistrate’s determination of

probable cause. State v. Le, 463 S.W.3d 872, 876 (Tex. Crim. App. 2015). But that

deference is not called for when a Franks motion is sustained. Id. at 877. Under Franks

v. Delaware, if the defendant satisfies the court by a preponderance of the evidence that

a false statement was included in the warrant affidavit intentionally or with reckless

disregard for the truth, the affidavit’s false material must be set to one side. 438 U.S. at

                                             6
156. If, after excising the tainted material, the affidavit’s remaining content is insufficient

to establish probable cause, the search warrant must be voided and the fruits of the

search excluded to the same extent as if probable cause was lacking on the face of the

affidavit. Id.

       Where a Franks motion has been sustained, we afford no deference to the

magistrate’s decision to issue a warrant, in part because a “magistrate’s judgment would

have been based on facts that are no longer on the table,” and there is “no way of telling

the extent to which the excised portion influenced the magistrate judge’s determination.”

Le, 463 S.W.3d at 877. More importantly, it reinforces the principle that “[a] search

warrant may not be procured lawfully by the use of illegally obtained information.” Id.

       In such situations, the question becomes whether, putting aside all tainted

allegations, the independently acquired and lawful information stated in the affidavit

nevertheless “clearly” established probable cause. McClintock v. State, 444 S.W.3d 15,

19 (Tex. Crim. App. 2014) (quoting Castillo v. State, 818 S.W.2d 803, 805 (Tex. Crim.

App. 1991) (en banc)).       A search warrant based in part on tainted information is

nonetheless valid if it clearly could have been issued on the basis of the untainted

information in the affidavit. Le, 463 S.W.3d at 877.

       We read the purged affidavit in a commonsense manner, drawing reasonable

inferences from the information to determine whether probable cause is established. Id.;

see Illinois v. Gates, 462 U.S. 213, 231 (1983). Probable cause exists if, under the

totality of the circumstances, there is a fair probability that contraband or evidence of a

crime will be found at a specified location. State v. McLain, 337 S.W.3d 268, 272 (Tex.

                                              7
Crim. App. 2011). Probable cause is a “flexible and nondemanding” standard, though

one that cannot be satisfied by “mere conclusory statements of an affiant’s belief.”

Rodriguez v. State, 232 S.W.3d 55, 60–61 (Tex. Crim. App. 2007). Rather, within its four

corners, the warrant affidavit must set forth particular facts and circumstances underlying

the existence of probable cause, so as to allow the magistrate to make an independent

evaluation of the matter. Franks, 438 U.S. at 165; see Massey, 933 S.W.2d at 148.

C.      Analysis

        The trial court sustained Hyland’s Franks motion in part and excised certain

statements from the affidavit. To justify excision under Franks, the false statement in the

affidavit must have been either intentional or made with reckless disregard for the truth,

and a misstatement that is merely the result of simple negligence or inadvertence will not

render invalid the warrant based on it. Hinojosa v. State, 4 S.W.3d 240, 247 (Tex. Crim.

App. 1999) (citing Franks, 438 U.S. at 170); Dancy v. State, 728 S.W.2d 772, 782–83

(Tex. Crim. App. 1987) (en banc). However, neither party has challenged the trial court’s

implied finding3 that Officer Harrison acted with reckless disregard for the truth in failing

to cross out material from the preprinted form. Moreover, as the sole fact-finder and

judge of the witnesses’ credibility and weight of the evidence at a Franks hearing, the trial

court is owed great deference, and its ruling will be overruled only if it is outside the




         3 When the trial court does not make explicit findings of fact, we should assume that the trial court

made implicit findings that support its ruling, so long as those implied findings are supported by the record.
Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007); see also Laird v. State, No. 06-17-00105-
CR, 2017 WL 4896518, at *3 (Tex. App.—Texarkana Oct. 31, 2017, no pet.) (mem. op., not designated for
publication) (applying this principle to a court’s ruling on a Franks challenge of a DWI arrest).
                                                      8
bounds of reasonable disagreement. Hinojosa, 4 S.W.3d at 247. We are therefore

bound by this finding.

         The trial court found that the redacted affidavit nonetheless stated probable cause

to believe that a blood draw would yield evidence that Hyland was driving while

intoxicated. See TEX. PENAL CODE ANN. § 49.04(a) (West, Westlaw through 2017 1st

C.S.).    Hyland argues that when the falsehoods are excised, the remainder of the

affidavit is insufficient to clearly establish probable cause to believe that he was

intoxicated.

         The purged affidavit states only two particular facts related to intoxication: Hyland

was in a coma after a collision that killed his passenger, and Officer Harrison perceived

a “strong” odor of alcohol from Hyland.

         The State asserts that these two facts are sufficient to clearly establish probable

cause to justify the issuance of a search warrant, citing several cases in which courts

have found probable cause to justify a warrantless arrest based on little more than the

smell of alcohol and a severe or recklessly caused collision. See Pesina v. State, 676

S.W.2d 122, 123 (Tex. Crim. App. 1984) (en banc) (finding probable cause to arrest based

on a collision where appellant was driving the wrong way on a highway, gave off a “strong

odor of alcohol,” and was observed in the hospital “muttering and stuttering” incoherently

hours after the accident); State v. May, 242 S.W.3d 61, 62 (Tex. App.—San Antonio 2007,

no pet.) (mem. op.) (finding probable cause to arrest based on officers’ observation of

appellant recklessly causing a collision, a “moderate odor of intoxicants,” and other minor

supporting facts); Mitchell v. State, 821 S.W.2d 420, 424–25 (Tex. App.—Austin 1991,

                                               9
pet. ref’d) (per curiam) (finding probable cause to arrest based on (1) testimony that

appellant had a “strong odor of alcoholic beverage,” (2) a severe collision leaving a

passenger near death, and (3) appellant’s averting his eyes when asked for a blood

sample).

       In some ways, these cases lend support to the State’s argument. In May, for

example, the court of appeals found probable cause to arrest based on testimony that

multiple officers “heard the screeching of tires and then observed May’s vehicle leave the

roadway, travel on the sidewalk, and then strike another motorist,” and May “had a

moderate odor of intoxicants on her breath.” 242 S.W.3d at 61–62. This was so, even

though the trial court indicated in its findings that it disbelieved the officers’ testimony

concerning May’s failure of a field sobriety test, which is somewhat similar to the trial

court’s ruling on field sobriety testing in this case. See id. at 62.

       However, these cases dealt with warrantless arrests, and none dealt with a

situation in which the trial court has sustained a Franks motion and purged false

statements from a warrant affidavit, triggering the requirement that the independently

acquired and lawful information stated in the affidavit must “clearly” establish probable

cause. See McClintock, 444 S.W.3d at 19 & n.17 (quoting Wayne R. LaFave, 2 Search

and Seizure: A Treatise on the Fourth Amendment § 4.4(c), at 696 & n.73 (5th ed. 2012))

(“When a court reassesses a search warrant affidavit with the allegations found to be

false . . . excised, a doubtful or marginal case for probable cause should be resolved in

the defendant’s favor.” (Editorial marks omitted)). These warrantless arrest cases offer

limited assistance.

                                             10
       In other ways, this case is similar to McClintock, where evidence was obtained

through a warrant found to contain illegal information. See id. at 18. The McClintock

court found that once the tainted allegations were excised, the only particular facts that

remained in the affidavit were: the affiant officer smelled the odor of marijuana from

outside a business location, which was described in ambiguous terms; an uncorroborated

tip that marijuana was being grown inside; and appellant’s pattern of coming and going

from the location “well before and after” business hours. See id. at 16–19. In light of

the fact that part of the warrant had already been tainted by a Fourth Amendment

violation, the court held these facts insufficient to “clearly establish[] probable cause.”

See id. at 19–20 (emphasis in original).      Here, like McClintock, critical parts of the

affidavit have been excised due to an illegality, and the redacted affidavit’s theory of

probable cause rests solely on smell and circumstance: the vaguely-described smell of

alcohol and the circumstance of a fatal collision. See id.; see also State v. Davis, No.

05-15-00232-CR, 2016 WL 60574, at *5–7 (Tex. App.—Dallas Jan. 5, 2016) (op., not

designated for publication) (similar), judgm’t vacated on other grounds, No. PD-0111-16,

2017 WL 4401879 (Tex. Crim. App. Oct. 4, 2017).

       In still other ways, this case resembles State v. Lollar. No. 11-10-00158-CR, 2012

WL 3264428, at *2 (Tex. App.—Eastland Aug. 9, 2012, no pet.) (mem. op., not designated

for publication). There, a DWI defendant challenged an officer’s use of a form affidavit

to secure a warrant, asserting that certain paragraphs did not apply to her. Id. In

particular, the defendant challenged paragraph seven, which, like paragraph seven of the

affidavit in this case, described the officer’s performance of field sobriety testing on the

                                            11
defendant. Id. During the hearing, the affiant officer conceded that paragraph seven

was false, and the trial court discovered an additional inaccuracy:

       Officer Watkins said, in paragraph nine of the search warrant affidavit, that
       she requested a sample of Appellee’s breath and/or blood and that Appellee
       refused. At the hearing, Officer Watkins admitted that she never asked
       Appellee for a sample of breath or blood.

Id. Thus, the affidavit in Lollar suffered from the same errors as the affidavit in this case:

false information concerning field sobriety testing and requests for a breath or blood

sample. The Lollar court rejected the notion that the affiant officer need not “mark out”

the preprinted material that did not apply. Id. at *4. “Form affidavits can be a valuable

tool for law enforcement when time is of the essence; if abused, they also have the

potential to infringe on Fourth Amendment rights.” Id. Here, as in Lollar, we are bound

by the trial court’s finding that these falsehoods were made in reckless disregard for the

truth. See Hinojosa, 4 S.W.3d at 247. That being the case, we are compelled to agree

that the “affiant must bear responsibility for the contents of a sworn affidavit presented to

a magistrate for signature.” See Lollar, 2012 WL 3264428, at *4.

       In Lollar, the deliberate or reckless discrepancies in the affidavit—along with the

affiant-officer’s demeanor—led the trial court to grant the defendant’s Franks motion. Id.

at *2. As in this case, the resulting excision left nothing more in the warrant affidavit than

the fact of a collision and the odor of alcohol to support probable cause. Id. The trial

court granted suppression. Id.

       Reading the affidavit with the false statements excised, and following the guidance

of McClintock and Lollar, we must conclude that the affidavit does not “clearly” establish

probable cause. See McClintock, 444 S.W.3d at 19; see also Lollar, 2012 WL 3264428,
                                             12
at *4.    Because the affidavit’s remaining content is insufficient to clearly establish

probable cause, the search warrant must be voided and the fruits of the search excluded.

See Franks, 438 U.S. at 156.

                               II.    CONSTITUTIONAL HARM

         Having found error in the denial of Hyland’s motion to suppress, we next conduct

a harm analysis to determine whether the error calls for reversal of the judgment. See

TEX. R. APP. P. 44.2.

A.       Standard of Review and Applicable Law

         The erroneous admission of evidence obtained in violation of the Fourth

Amendment is assessed under Rule 44.2(a)’s constitutional standard. Hernandez v.

State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001). Under Rule 44.2(a), we reverse the

judgment unless we can conclude beyond a reasonable doubt that the constitutional error

did not contribute to the defendant’s conviction or punishment. TEX. R. APP. P. 44.2(a);

Snowden v. State, 353 S.W.3d 815, 818 (Tex. Crim. App. 2011). In applying this test,

we ask whether there is a “reasonable possibility” that the error might have contributed to

the conviction. Love v. State, __S.W.3d__, __, No. AP-77,024, 2016 WL 7131259, at *7

(Tex. Crim. App. Dec. 7, 2016); see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim.

App. 1998) (en banc).

         Our analysis should not focus on the propriety of the trial’s outcome; instead, we

calculate the error’s probable impact on the jury in light of all other evidence available.

Rubio v. State, 241 S.W.3d 1, 3 (Tex. Crim. App. 2007). We take into account any and

every circumstance apparent in the record that logically informs an appellate


                                             13
determination of whether the error contributed to the conviction or punishment.

Snowden, 353 S.W.3d at 822. This requires us to evaluate the entire record in a neutral

manner and not in the light most favorable to the prosecution. Love, __S.W.3d at __,

2016 WL 7131259, at *7; Harris v. State, 790 S.W.2d 568, 586 (Tex. Crim. App. 1989)

(en banc).

      In our review, we may consider factors including the nature of the error, whether it

was emphasized by the State, the probable implications of the error, and the weight the

jury would likely have assigned to it in the course of its deliberations. Snowden, 353

S.W.3d at 822.

B.    Analysis

      The “nature of the error” was the erroneous admission of Hyland’s blood draw and

other evidence that was constitutionally tainted by it.   See id.; Turner v. State, 734

S.W.2d 186, 188 (Tex. App.—Dallas 1987, pet. ref’d). The jury heard that the blood draw

was conducted under authority of a lawful search warrant obtained by Officer Harrison.

The blood draw was taken at 2:04 a.m. on the night of the accident by Norma Zamora,

the phlebotomist at the hospital where Hyland was treated. James Evans, a forensic

scientist with the DPS lab, testified concerning his analysis of the blood sample that

Zamora purportedly drew from Hyland pursuant to the warrant. After Evans discussed

his qualifications and method of analysis, he discussed Hyland’s blood alcohol content

(“BAC”), and the blood sample was admitted over objection. Evans testified that his

analysis returned a BAC of .175 grams of alcohol per deciliter of blood (g/dL), which he

testified was over twice the legal limit of .08 g/dL. Evans testified that for a 6’1” male

                                           14
weighing 185 pounds 4 to reach that level of intoxication, that person would need to

consume six standard-size alcoholic drinks in an hour, or ten alcoholic drinks over the

space of three hours. If believed by the jury, the sole strength of this evidence might

have led the jury to find the element of intoxication. Compare Turner, 734 S.W.2d at 188

(finding constitutional harm and noting that an inadmissible blood test directly led the jury

to find intoxication, as shown by correspondence during deliberations) with Campbell v.

State, 325 S.W.3d 223, 239 (Tex. App.—Fort Worth 2010, no pet.) (finding no

constitutional harm in a DWI case where the nature of the error was exposing the jury to

an only somewhat inculpatory remark by the defendant). In our view, the “nature of the

error” and its “probable implications” both favor the conclusion that it was not harmless

beyond a reasonable doubt. See Snowden, 353 S.W.3d at 822.

        The blood test was also “emphasized by the State,” see id., during closing

argument as its most potent evidence of intoxication:

        [Hyland and Doherty] left the Frontier Saloon on Leopard Street. You
        heard testimony regarding intoxication. They were both intoxicated. . . .
        Doherty was intoxicated, Richard Hyland was intoxicated. Her blood
        alcohol was higher than his; his was a .175. That’s twice the legal limit.
        And so the State can prove intoxication to you all in three ways: Either
        through the normal use of your mental faculties, normal use of your physical
        faculties, or having a blood alcohol content above a .08. And it’s
        undisputed. It’s in evidence that his blood alcohol content was a .175.
        The DPS, Mr. Evans, forensic toxicologist, retested the blood and—excuse
        me—tested the blood, and it was a .175. That’s intoxication. When you
        get to that point, you’re twice the legal limit, you’re very intoxicated.

The State then moved away from the element of intoxication and on to other aspects of

the case, such as the identity of the driver of the motorcycle.

        4 At another point during trial, Hyland’s measurements were presented to the jury in loosely similar
terms as 6’0” and 170 pounds.
                                                    15
        Aside from the results of the DPS blood test, the other evidence concerning

intoxication was not overwhelming, suggesting that an average jury would likely have

assigned great weight to the results of the blood draw. See id. at 819 & 822; Rubio, 241

S.W.3d at 3. Officer Harrison testified that he approached Hyland’s hospital bed, stood

within one or two feet of Hyland’s face, and smelled a “strong odor of alcohol.” Dr. Adel

Shaker, a medical examiner, primarily testified concerning his autopsy of Doherty.

However, Dr. Shaker also testified, briefly and over objection, that Hyland’s medical

records showed his BAC was “over the legal limit.”5 Officer David Schwartz, an accident

reconstruction expert, stated his conclusion that the cause of the accident was the driver

“operating at a high rate of speed under the influence of alcohol.” Lastly, the jury also

heard evidence concerning reckless handling of the motorcycle and the severity of the

collision; three witnesses observed a man matching Hyland’s description driving

erratically and at great speed on the evening of the accident, and moments later, the

witnesses came upon the nearby scene of the accident and found Hyland injured and

Doherty lifeless on the ground, as further discussed infra.

        This alternative evidence of intoxication certainly would have shaped a jury’s view

of the case. See Rubio, 241 S.W.3d at 3. But because this other evidence was not

overwhelming, and in light of the great probative force of the blood test and its emphasis

by the State, this other evidence does not eliminate the “reasonable possibility” that the


        5  While not explained before the jury, Dr. Shaker was apparently referring to a separate blood
analysis that appeared in Hyland’s medical records from the hospital, which was unrelated to the DPS blood
test. The medical records themselves were not introduced in evidence, the appellate record offers no
further information concerning this second test—such as who collected the sample or who analyzed it—
and the parties do not discuss it in their appellate briefs.

                                                   16
error contributed to Hyland’s conviction. See Love, __S.W.3d at __, 2016 WL 7131259,

at *7; Snowden, 353 S.W.3d at 822; cf. Cone v. State, 383 S.W.3d 627, 638–39 (Tex.

App.—Houston [14th Dist.] 2012, pet. ref’d) (finding an erroneously admitted blood test

harmless in light of “extensive evidence” of intoxication, including defendant’s

consumption of sixteen drinks, his reckless driving, his extremely intoxicated and

incoherent demeanor which required responders to restrain him twice, among other

things).

        After reviewing the entire record, we cannot conclude beyond a reasonable doubt

that the constitutional error did not contribute to Hyland’s conviction. TEX. R. APP. P.

44.2(a); Snowden, 353 S.W.3d at 818. This harmful constitutional error requires reversal

of the judgment. See TEX. R. APP. P. 44.2(a). We sustain Hyland’s third issue.

                               III.    SUFFICIENCY OF THE EVIDENCE

        It remains necessary to address Hyland’s sufficiency challenge, which could afford

him the greater relief of acquittal. See Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim.

App. 2000). By his second issue, Hyland challenges the sufficiency of the evidence to

support his conviction for intoxication manslaughter.6 A person commits the offense of

intoxication manslaughter if the person operates a motor vehicle in a public place while

intoxicated, and by reason of that intoxication, the person causes the death of another by

accident or mistake. TEX. PENAL CODE ANN. § 49.08(a) (West, Westlaw through 2017 1st


        6 For ease of reference, we have discussed Hyland’s issue concerning blood evidence out of turn.
Hyland has demonstrated a harmful constitutional error, and he is entitled to a new trial. This renders it
unnecessary to consider Hyland’s fourth issue, in which he presents another challenge to the blood
evidence. See State v. Plambeck, 182 S.W.3d 365, 367 n.10 (Tex. Crim. App. 2005) (en banc) (“A court
is not required to address issues that become moot because of the resolution of other issues . . . .”); see
also TEX. R. APP. P. 47.1.
                                                   17
C.S.). Hyland asserts that the evidence is legally insufficient to show that he operated a

motorcycle or that his intoxication caused Doherty’s death.

A.     Background

       On the evening of May 30, 2014, Doherty was killed in a motorcycle accident in

Corpus Christi, Texas. Three witnesses testified that they observed different portions of

the events leading to the accident:      Juan Ledesma, Phyllis Ledesma, and Roger

Villarreal.

       Juan Ledesma testified that around 10:50 p.m., he was driving eastbound with his

wife Phyllis when a motorcyclist emerged from the parking lot of the Frontier Saloon.

According to Juan, the motorcyclist went “shooting across the road” and cut him off.

Juan jammed his brakes to avoid hitting the motorcycle, and the driver of motorcycle

swerved into the westbound lane to avoid Ledesma’s vehicle. The motorcyclist then

veered back into the eastbound lane. Juan saw that the driver of the motorcycle was

male, and his passenger was a woman with long blonde hair flowing from under her

helmet. Ahead was an intersection where cars were stopped at a red light, and the

motorcyclist was forced to hit the brakes and swerve to one side of a vehicle to avoid a

collision. Juan testified that the motorcyclist then “popped the clutch on the motorcycle,”

jolting the bike forward, and his female passenger nearly fell off the back. Both Juan and

Phyllis Ledesma testified that the motorcyclist was driving erratically, weaving in and out

of traffic and varying his speed; at some points, it looked to Phyllis as though the

motorcycle was going to lean and “tump[] over.”




                                            18
      According to Juan, the motorcyclist then made a U-turn and began heading

westbound. Juan took a U-turn as well. He saw the motorcyclist accelerate to a great

speed. Juan could not keep pace, and he soon lost sight of the motorcycle.

      Juan continued down the road until, roughly five minutes later, he came upon the

scene of an accident: at a curve in the road, he saw two people on the ground, as well

as the same motorcycle he had observed earlier. Juan recognized one person as the

man driving the motorcycle, who was gasping for air. The other was a blonde woman

with a lifeless expression. Neither one was wearing a helmet. Juan administered CPR

to the woman until paramedics arrived. Juan later identified the two people as Hyland

and his wife Doherty, who was also identified at trial by her mother.

      Similar to Juan’s testimony, Roger Villarreal attested that he was driving with his

wife when he observed a motorcycle traveling at great speed, weaving in and out of traffic.

He took note of the motorcycle’s driver, whom he described as a larger male, as well as

a smaller-bodied passenger, whom he believed to be a woman. Villarreal testified that

he briefly lost sight of the motorcycle, but he soon came upon the scene of the accident,

where he saw a man and a woman with the same stature as those riding the motorcycle

“seconds” earlier. He joined Juan Ledesma in trying to revive Doherty.

      Ray Cordova, a paramedic, responded to the accident. Cordova testified that

when he arrived, he found Hyland breathing in a labored manner, and found Doherty

pulseless and not breathing. Cordova arranged for a second medic team to confirm her

status while he took Hyland to the hospital. Doherty was pronounced dead at the scene.




                                            19
       Officer Harrison’s testimony at trial was similar to his testimony at the Franks

hearing; he discussed his arrival at the scene, his trip to the hospital—whereupon he

smelled alcohol on Hyland’s breath—and his creation of the warrant affidavit. The jury

then heard other evidence of intoxication which we have previously discussed, including

the DPS blood test result of .175 g/dL and Dr. Shaker’s conclusion that Hyland’s BAC

was “over the legal limit.”

       Dr. Shaker testified concerning his autopsy of Doherty. He classified Doherty’s

death as accidental, and he attributed the cause of death to blunt force trauma, which

fractured Doherty’s neck and skull. At the time of her death, Doherty had a BAC of .183

g/dL and Xanax in her system.

       Officer Schwartz testified that he investigated the crash site and attempted to map

out the course of the motorcycle after its driver began to lose control. Officer Schwartz

documented a trail of evidence, including debris from the motorcycle, pieces of clothing,

a helmet, and various marks on the ground that indicated the motorcycle’s path, such as

a curb smeared with blood and blonde hairs. The trail began near a curved portion of

Leopard Street, at a curb with tire marks on it, and ended where the motorcycle came to

rest. He explained that after the motorcycle hit the curb, it skidded and then tumbled 289

feet—“almost a football field.” Officer Schwartz opined that the length of the trail and the

nature of the skid and gouge marks were consistent with a motorcycle traveling above

forty-five miles per hour, the speed limit for that stretch of road.

       As to the identity of the driver, Officer Schwartz further testified that in his years as

an accident reconstructionist, he had never investigated a collision where a female was

                                              20
driving a motorcycle and a male was riding as her passenger—a possibility that he viewed

as unlikely in light of prevailing social conventions. He agreed that Doherty was found

without a helmet, but nonetheless believed that she was the helmet-wearing passenger

that Juan Ledesma had described. Officer Schwartz theorized that the helmet had been

thrown off Doherty during the collision. Ultimately, Officer Schwartz opined that the

cause of the accident was the driver “operating at a high rate of speed under the influence

of alcohol.”

       Hyland’s sole witness was Orin Moore, a court-appointed accident reconstruction

expert and retired captain with DPS. Moore testified concerning what he viewed as

deficiencies in Officer Schwartz’s reconstruction of the accident, such as a failure to

collect evidence concerning certain aspects of the case and a failure to provide context

to the evidence that was collected.

       In Moore’s opinion, the investigation did not yield enough information to justify

Officer Schwartz’s conclusions. According to Moore, nothing that was uncovered during

the investigation suggested that Hyland was intoxicated, and there was nothing to indicate

why the motorcycle left the road after having successfully negotiated a curve and entered

a straightaway.

       Moore testified that even assuming Hyland was driving, Doherty’s intoxication

could have posed a problem for the driver of the motorcycle. However, Moore believed

that there was not enough information to conclude that Hyland was driving the motorcycle.

Instead, Moore testified that a driver of a motorcycle will usually be found closer to the

motorcycle than their passenger, due to the driver’s ability to grip the handlebars. During

                                            21
his closing, counsel for Hyland argued that Doherty was found closer to the motorcycle

than Hyland, suggesting that Doherty was driving.

       After the conclusion of the evidence, the jury found Hyland guilty of intoxication

manslaughter, enhanced by prior convictions and a deadly weapon finding, and

sentenced Hyland to twenty-seven years’ confinement.

B.     Applicable Law

       When conducting a legal sufficiency review, this Court considers all evidence in

the record of the trial, whether it was admissible or inadmissible. Winfrey v. State, 393

S.W.3d 763, 767 (Tex. Crim. App. 2013).            Thus, regardless of whether the blood

evidence was properly admitted, it is considered in a review of the sufficiency of the

evidence. See id.

       In determining whether the evidence is legally sufficient to support a conviction, a

reviewing court must consider all of the evidence in the light most favorable to the verdict

and determine whether, based on that evidence and reasonable inferences therefrom, a

rational fact-finder could have found the essential elements of the crime beyond a

reasonable doubt.       Id. at 768.      We defer to the jury’s credibility and weight

determinations because the jury is the sole judge of the witnesses’ credibility and the

weight to be given their testimony. Id. It is not necessary that every fact point directly

and independently to the guilt of the accused; it is enough if the finding of guilt is warranted

by the cumulative force of all the incriminating evidence. Id. Circumstantial evidence is

as probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt. Hooper v. State, 214 S.W.3d 9, 13

                                              22
(Tex. Crim. App. 2007). Furthermore, the trier of fact may use common sense and apply

common knowledge, observation, and experience gained in ordinary affairs when drawing

inferences from the evidence. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App.

2014).

C.       Analysis

         Hyland first challenges the finding that he operated the motorcycle. See TEX.

PENAL CODE ANN. § 49.08(a).         Hyland contends that none of the evidence at trial

established his identity as the driver of the motorcycle, especially as opposed to Doherty.

We disagree.

         Juan Ledesma testified that he observed a man driving a motorcycle erratically

with a blonde passenger; when the motorcyclist reversed course, Juan followed; minutes

later Juan happened upon the scene of the accident, where a man and a blonde woman

lay injured near the “same” motorcycle. See Conelly v. State, 451 S.W.3d 471, 475 (Tex.

App.—Houston [1st Dist.] 2014, no pet.) (finding sufficient evidence of operation based

on witness’s consistent identification of the same erratically driven red SUV).           Juan

identified the injured man in two ways: (1) as the driver of the motorcycle and (2) as

Hyland. The jury could confidently infer that Juan had identified Hyland as the driver of

the motorcycle. See Phillips v. State, 534 S.W.3d 644, 651 (Tex. App.—Houston [1st

Dist.] 2017, no pet.) (finding sufficient evidence based in part on a witness’s distinct

identification of driver, as opposed to passenger who allegedly switched places with him

in the lead up to a collision, even though witness briefly lost sight of the vehicle in the dark

and “arrived at the scene immediately after”).

                                              23
       Similarly, Villarreal testified that he observed a larger man driving a motorcycle

with a smaller, female passenger, and “seconds” later he came upon an accident

involving two people with the same proportions: Hyland and Doherty. See Hines v.

State, 383 S.W.3d 615, 623 (Tex. App.—San Antonio 2012, pet. ref’d) (finding sufficient

evidence of identity based in part on witness who saw, in the vehicle’s driver seat, a man

“around the same height” as DWI appellant).

       Hyland disputes this evidence, relying on Moore’s theory that following a collision,

the driver of a motorcycle will usually be found closer to the motorcycle than a passenger.

According to Hyland, Officer Schwartz’s testimony shows that Doherty was found nearer

to the motorcycle than he. However, Officer Schwartz never testified that Hyland was

found closer to the motorcycle.     Instead, Officer Schwartz disputed Moore’s theory,

asserting that there is no universal rule for driver positioning. Even assuming Moore’s

theory to be true in all cases, the sole support for Hyland’s argument was photographs of

the scene in which Hyland was not pictured, having been taken to the hospital by

paramedics. Rather, two paramedics—Ray Cordova and James Denton—testified that

when they arrived, they found Hyland nearer to the motorcycle than Doherty.           See

Gunter v. State, 327 S.W.3d 797, 800–01 (Tex. App.—Fort Worth 2010, no pet.)

(concluding that evidence showed appellant was operator of a motorcycle, despite

conflicting circumstantial evidence of another possible operator); see also Maynard v.

State, No. 06-03-00029-CR, 2003 WL 22956994, at *4 (Tex. App.—Texarkana Dec. 17,

2003, pet. ref’d) (op., not designated for publication) (finding sufficient evidence that




                                            24
appellant, and not victim, was driving vehicle, where body positioning suggested that the

deceased victim was the passenger).

       Finally, Hyland complains that Officer Schwartz improperly relied on gender

stereotypes to conclude that Doherty was not driving the motorcycle. Hyland does not

cite any rule prohibiting an expert from testifying about social conventions.7 Regardless,

Officer Schwartz did not base his testimony solely on his notion of gender roles, but on

his thirty years of personal experience as a peace officer, ten of which he had spent

specifically investigating traffic fatalities. He testified that in that time, he had never

encountered a collision involving a motorcycle driven by a female with a male as the

passenger, which the jury was entitled to consider, whatever its probative value. See

Hooper, 214 S.W.3d at 13; see also Gasper v. State, No. 01-16-00930-CR, 2017 WL

4249558, at *2 (Tex. App.—Houston [1st Dist.] Sept. 26, 2017, no pet.) (mem. op., not

designated for publication) (weighing, within a sufficiency review, an officer’s testimony

that in his experience on a police task force for internet crime, he had “never seen a

situation where a person had accidentally downloaded child pornography” (internal

quotations and editorial marks omitted)).

       Taken together and viewed in the light most favorable to the prosecution, this

evidence would allow a reasonable trier of fact to find beyond a reasonable doubt that

Hyland operated the motorcycle. See Winfrey, 393 S.W.3d at 768.




         7 Cf. Huff v. State, 467 S.W.3d 11, 19–20 (Tex. App.—San Antonio 2015, pet. ref’d) (finding

sufficient evidence of appellant’s identity as operator of a motorcycle in an intoxication manslaughter
prosecution, despite testimony that his female victim often drove the motorcycle with appellant as a
passenger, which appellant’s friend thought was “weird”).
                                                  25
       Hyland next challenges the sufficiency of the evidence to show that Doherty’s

death was caused by reason of his intoxication. See TEX. PENAL CODE ANN. § 49.08(a).

He asserts that there is nothing in the record to indicate that his intoxication caused the

accident, and instead, Doherty’s unsteadiness as a passenger was the more likely cause.

       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. Id. § 6.04(a) (West, Westlaw through 2017 1st C.S.). This requirement is

satisfied when either (1) the accused’s conduct is sufficient by itself to have caused the

harm; or (2) the accused’s conduct coupled with another cause is sufficient to have

caused the harm. Matamoros v. State, 500 S.W.3d 58, 64 (Tex. App.—Corpus Christi

2016, no pet.). “Whether such a causal connection exists is normally a question for the

jury’s determination.” Id. at 64–65. The State was required to prove that Hyland’s

intoxication caused the fatal result, and not just his operation of a vehicle. Id. at 65.

       Hyland asserts that there was nothing to indicate that his intoxication caused the

accident.   Instead, relying on Moore’s testimony, he insists that Doherty’s “heavily

intoxicated state” (.183 g/dL BAC combined with Xanax) and her resulting unsteadiness

was likely the cause of the collision. However, there was no evidence that Doherty’s

intoxication or actions actually caused the collision.

       By contrast, there was evidence that Hyland had a similar BAC to Doherty (.175

g/dL) when it was measured, two hours after the accident. Given that Hyland was driving

the motorcycle, the jury could have inferred that Hyland’s intoxication was far more likely

                                             26
to have caused the accident. This inference is also supported by testimony concerning

Hyland’s reckless driving, beginning with Juan Ledesma’s observation of a motorcycle

shooting out of the parking lot of the Frontier Saloon, swerving to avoid two near-misses,

and accelerating so rapidly that Doherty nearly fell off. After Juan lost sight of Hyland,

Villarreal observed similar driving, and he met the Ledesmas at the scene of the accident

seconds later. Officer Schwartz explained that, based on the evidence at the scene, he

believed that Hyland’s intoxication caused him to hit a curb while attempting to negotiate

a curve at a high speed, sending the motorcycle into a skid and then a tumble that

stretched 289 feet, to the spot where Doherty was found.

      Considering all of this evidence in the light most favorable to the verdict, a rational

fact-finder could have found the element of but-for causation beyond a reasonable doubt.

Winfrey, 393 S.W.3d at 768; see also Hale v. State, 194 S.W.3d 39, 40 & 44 (Tex. App.—

Texarkana 2006, no pet.) (finding sufficient evidence of causation in testimony that

appellant was “flying” down the road with a BAC of .147 g/dL, and victim’s conduct—

stopping briefly—was not clearly sufficient to cause accident); Serrano v. State, No. 14-

05-00646-CR, 2007 WL 324606, at *2 (Tex. App.—Houston [14th Dist.] Feb. 6, 2007, no

pet.) (mem. op., not designated for publication) (finding sufficient evidence of causation

based on a single-car collision where appellant driver skidded off the road and killed his

passenger, drank in the car, had a BAC of .12 g/dL, and was speeding, and there was no

evidence of any obstacles in the road).




                                            27
        Having found the evidence sufficient to support the only elements challenged by

Hyland, we overrule Hyland’s second issue.8

                                          IV.     CONCLUSION

        Having found a harmful constitutional error, we reverse the judgment of conviction

and remand the matter to the trial court for further proceedings consistent with this

opinion.


                                                                          NELDA V. RODRIGUEZ
                                                                          Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
5th day of April, 2018.




         8 This renders it unnecessary to consider Hyland’s first issue challenging the jury’s deadly weapon

finding, which could afford him no greater relief than he is already due. See Curry v. State, 30 S.W.3d
394, 404 (Tex. Crim. App. 2000); see also Moore v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017)
(describing a deadly weapon finding, in this context, as impacting “a convicted felon’s eligibility for
community supervision, parole, and mandatory supervision”).
                                                    28
