                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-13-00483-CR

                                      David Michael MARTIN,
                                             Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                    From the 54th Judicial District Court, McLennan County, Texas
                                     Trial Court No. 2012-59-C2
                            The Honorable Matt Johnson, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 18, 2014

AFFIRMED

           David Martin was involved in a two-vehicle collision that resulted in the death of a child

passenger in the other vehicle. A blood specimen taken from Martin shortly after the collision

showed that his blood alcohol concentration (“BAC”) was .32 grams of alcohol per 100 milliliters

of blood. The State charged Martin with intoxication manslaughter. The indictment alleged Martin

operated a vehicle in a public place while intoxicated by not having the normal use of his physical

and mental faculties and thereby caused the death of another. See TEX. PENAL CODE ANN.

§ 49.01(2)(A) (West 2011). A jury convicted him and assessed punishment at fifteen years’
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imprisonment and a $10,000 fine. On appeal, Martin challenges the sufficiency of the evidence

supporting his conviction and the trial court’s admission of evidence. We affirm.

                                  SUFFICIENCY OF THE EVIDENCE

        Martin contends there was no evidence before the jury that his intoxication caused the

collision resulting in the victim’s death and that “[i]t appears from the record that, despite

Appellant’s intoxication, the collision in this case was simply an accident that would have occurred

regardless of [Martin’s] intoxication.”

        In conducting a sufficiency review, we do not sit as a “thirteenth juror” by reevaluating the

weight and credibility of the evidence in the record. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we view the evidence that was before the jury in the light most

favorable to the prosecution. Runningwolf v. State, 360 S.W.3d 490, 494 (Tex. Crim. App. 2012).

The State had the burden to prove that Martin’s intoxication caused the collision and thus the

victim’s death. See TEX. PENAL CODE ANN. § 49.08(a)(2) (West 2011) (“A person commits an

offense if the person . . . is intoxicated and by reason of that intoxication causes the death of another

by accident or mistake.”); Hale v. State, 194 S.W.3d 39, 42 (Tex. App.—Texarkana 2006, no pet.).

It did not have to prove, however, that Martin’s intoxication was the sole cause of the collision.

See TEX. PENAL CODE ANN. § 6.04 (West 2011); Hale, 194 S.W.3d at 42. “The existence or

nonexistence of such a causal connection is normally a question for the jury’s determination.”

Hale, 194 S.W.3d at 42.

        The traffic collision between Martin and the other vehicle occurred at an intersection in

Waco, Texas. Although he was speeding at the time, the evidence showed that Martin had the

green light as he approached the intersection. He then struck the victim’s vehicle, whose driver

was attempting to turn right on a red light. Martin’s theory at trial was that his intoxication could

not have “caused” the victim’s death because his expert accident reconstructionist testified that the
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collision would have been unavoidable due to the other driver’s actions. The State’s expert

accident reconstructionists testified that Martin’s level of intoxication would have impaired his

reflexes to such a degree that his intoxication was a cause of the collision.

         When the State presented evidence that Martin was speeding while intoxicated with a BAC

of .32, the State introduced sufficient evidence for the jury to find his intoxication caused the

collision, even if the other driver’s actions also in some way caused the collision. See Kuciemba

v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010) (“Being intoxicated at the scene of the

traffic accident in which the actor was a driver is some circumstantial evidence that the actor’s

intoxication caused the accident . . . .”); Martinez v. State, 66 S.W.3d 467, 468-69 (Tex. App.—

Houston [1st Dist.] 2001, pet ref’d) (holding that evidence showing defendant was speeding, was

intoxicated, and had lost control of his vehicle at time of collision was sufficient to support

conviction). The fact that Martin’s expert witness testified to the contrary does not render the

State’s evidence of causation insufficient. See Martinez, 66 S.W.3d at 469–70; Sturgis v. State,

No. 05-04-01632-CR, 2006 WL 1624431, at *5 (Tex. App.—Dallas June 13, 2006, no pet.) (mem.

op., not designated for publication).

         Martin also argues that his expert witness was more credible than the State’s witnesses

because his expert was more qualified. Martin’s argument asks us to dismiss the jury’s implied

finding that the State’s experts were more credible than his own expert. We cannot do so, tasked

as we are with viewing the evidence in the light most favorable to the prosecution. See Isassi, 330

S.W.3d at 638.

         We overrule Martin’s first point of error. 1



1
 As part of his sufficiency argument, Martin complains that the indictment did not allege any “driving facts.” Martin
did not object to the indictment before trial, and he cites no authority supporting his implied argument that the State
should have alleged those facts.

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                                    ADMISSION OF EVIDENCE

       In his second point of error, Martin contends that the trial court erred by allowing one of

the State’s experts to testify about the results of his blood test and by admitting her report into

evidence. He contends her testimony and the report were inadmissible as irrelevant and unfairly

prejudicial because the indictment against him alleged that he was intoxicated on the theory that

he had lost the normal use of his mental and physical faculties (the “impairment theory” of

intoxication), but did not allege that he was intoxicated on the theory that his BAC was greater

than .08 grams of alcohol per 100 milliliters of blood (the “per se theory” of intoxication).

       Evidence is relevant if it has “any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it would be

without the evidence.” TEX. R. EVID. 401.

       A defendant’s BAC near the time of a collision is relevant to whether the defendant had

lost the use of his normal physical and mental faculties at the time of the collision. See State v.

Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005) (“Mechler’s intoxilyzer results indicate

that Mechler had consumed alcohol. As a result, they tend to make it more probable that he was

intoxicated at the time of driving under both the per se and impairment definitions of

intoxication.”); Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.] 2000,

pet. ref’d) (“[A] blood alcohol level beyond the legal limit, such as appellant’s, is probative

evidence of a person’s loss of his or her faculties.”); Daricek v. State, 875 S.W.2d 770, 773 (Tex.

App.—Austin 1994, pet. ref’d) (“Clearly, a test showing that blood had a 0.10 alcohol

concentration is probative evidence of a loss of faculties.”). Therefore, the evidence that Martin’s

BAC was .32 shortly after the collision was relevant because it tended to show that Martin had lost

the use of his normal physical and mental faculties as charged in the indictment. See Mechler, 153

S.W.3d at 440; Henderson, 29 S.W.3d at 622; Daricek, 875 S.W.2d at 773. His high BAC—four
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times the legal limit—close to the time of the accident also tended to show that his intoxication

caused the collision. See Kuciemba, 310 S.W.3d at 462.

       Relevant evidence is generally admissible, although it may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 402, 403. “A

proper Rule 403 analysis includes, but is not limited to, four factors: (1) the probative value of the

evidence; (2) the potential to impress the jury in some irrational yet indelible way; (3) the time

needed to develop the evidence; and (4) the proponent’s need for the evidence.” Mechler, 153

S.W.3d at 440. We are mindful that “Rule 403 does not exclude all prejudicial evidence. It focuses

only on the danger of ‘unfair’ prejudice.” Id.

       In State v. Mechler, the Court of Criminal Appeals held that the trial court abused its

discretion when it granted a pretrial motion to suppress the results of the defendant’s intoxilyzer

test. Id. at 437, 442. Applying the 403 balancing test, the court reasoned that the first three factors

weighed in favor of admissibility. The Court reasoned that the defendant’s intoxilyzer results

indicated that he had consumed alcohol and were thus “probative of intoxication under both the

per se and impairment definitions of intoxication.” Id. at 440. The Court then reasoned that the

evidence “did not have a great potential to impress the jury in an irrational way” because “this

evidence relates directly to the charged offense.” Id. at 440–41. With respect to the time needed to

develop the evidence of the intoxilyzer results, the Court reasoned that “[b]ecause the intoxilyzer

results relate directly to the charged offense, a jury could not be distracted away from the charged

offense regardless of the required time to present the results.” Id. at 441. The court held that, even

though the fourth factor, the State’s need for the intoxilyzer results, weighed in favor of

suppression, the weight of the first three factors was sufficient to conclude the trial court abused

its discretion by suppressing the evidence. Id. at 441–42.



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       Martin argues that evidence of his BAC did not “relate directly to the charged offense”

because the indictment against him only alleged the impairment theory of intoxication. He argues

that Mechler is distinguishable because the defendant in that case was charged under both

impairment and per se theories of intoxication. We reject his argument because Mechler’s analysis

does not suggest that, had the defendant been charged only under the impairment theory of

intoxication, his intoxilyzer results would not have “directly related to the charged offense.” On

the contrary, his argument contradicts Mechler’s explicit recognition that a defendant’s BAC is

probative evidence that he had lost the normal use of his mental and physical faculties. See id. at

440; see also Henderson, 29 S.W.3d at 622; Daricek, 875 S.W.2d at 773. Nor does it take into

account that his BAC was relevant to causation. See Kuciemba, 310 S.W.3d at 462. In our view,

Mechler compels the conclusion that Martin’s BAC was “directly related to the charged offense.”

See Mechler, 153 S.W.3d at 440. Because it was “directly related to the charged offense,” that

evidence “did not have a great potential to impress the jury in an irrational way” and “a jury could

not be distracted away from the charged offense regardless of the required time to present the

results.” See id. at 440–41. And even if the State did not have a great need for evidence of Martin’s

BAC to prove its case, we conclude that the weight of the other factors requires us to hold that the

trial court did not abuse its discretion by admitting Martin’s BAC into evidence. See id. at 441–

42.

       We overrule Martin’s second point of error.

                                           CONCLUSION

       The judgment of the trial court is affirmed.


                                                  Luz Elena D. Chapa, Justice

Do Not Publish


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