      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00346-CR



                               Luke Anthony Looschen, Appellant

                                                  v.

                                   The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
        NO. 09-1191-K368, HONORABLE BURT CARNES, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Luke Anthony Looschen pleaded guilty to four counts of intoxication manslaughter

and two counts of intoxication assault relating to an automobile accident. He also pleaded true to

the allegation that he used a deadly weapon when committing these offenses. After a bench trial

on punishment, the trial court assessed punishment at twenty years in prison for each of the

manslaughter counts and ten years in prison for each of the assault counts. The trial court ruled that

Looschen would serve three pairs of sentences concurrently, with each pair running consecutively

to the other, resulting in two consecutive twenty-year terms followed by a ten-year term. By his sole

issue on appeal, Looschen contends that the trial court committed fundamental error by permitting

a doctor to testify about the results of a blood-alcohol test to prove an extraneous offense. We will

affirm the judgment.
                                          BACKGROUND

                The bulk of the State’s evidence concerned the August 2009 automobile accident

at issue in this case and its effect on the victims and their survivors. The evidence showed that

Looschen’s vehicle crossed the center stripe of a highway and struck a van carrying seven members

of a family. Four were killed, and one of the surviving children was injured so severely that family

members were initially told she might not live. There was testimony that Looschen smelled of

alcohol, had red, glassy eyes, and slurred his speech. He admitted at the scene to having drunk one

beer, but later recalled drinking perhaps eight. Witnesses testified that immediately after the accident

Looschen threw beer bottles and cans out of the cab of his truck. According to the state trooper

responding to the accident, Looschen did not even know what road he was on. A trooper performed

the horizontal gaze nystagmus test for intoxication and found six out of six possible clues indicating

intoxication. There was testimony that Looschen was overheard at the scene telling someone on the

telephone that he had had “another accident.”

                A defense witness spoke about Looschen’s drinking generally and a one-vehicle

rollover accident Looschen had in July 2009, three weeks before the accident at issue here.

Witnesses described him as a good person who had a problem with alcohol. One witness testified

that, after the July 2009 accident, Looschen’s friends spoke to him about his drinking.

                Appellant testified that the August 2009 accident at issue here was “horrific” and that

he was “profoundly remorseful.” He testified that his July 2009 accident was caused by inattention,

not intoxication. He also disputed that he had been arrested for driving under the influence in 1982,

but conceded that he was issued a citation for driving under the influence and that his license

was suspended.

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                The testimony Looschen challenges on appeal came from an orthopedic surgeon who

had examined Looschen immediately after the July 2009 wreck. The doctor noted that Looschen was

extremely agitated at times, was difficult to communicate with, and emitted a strong odor of alcohol.

Looschen denied drinking that night, but a blood-alcohol test taken by another person at the

hospital revealed that he had a .113 alcohol concentration.1 The doctor testified that, based on his

observations, he had expected that Looschen’s blood-alcohol level would have tested higher.

Looschen cross-examined the doctor regarding his lack of knowledge of who drew the blood for

the test and how they did so, but did not object to the admission of this evidence at the punishment

hearing. The doctor testified that he believed Looschen was intoxicated irrespective of the

test results.

                The court assessed the maximum term of imprisonment available for each offense.2

Looschen then filed a motion for a new punishment trial contending that the sentence was too high.

He offered additional evidence regarding his medical conditions, including brain damage that

predated the accident and allegedly affected his visual perception abilities. He argued that

consideration of this new evidence would warrant reduction of his sentence. The trial court denied

the motion.



        1
         A person is deemed intoxicated with an alcohol concentration of 0.08. Tex. Penal Code
Ann. § 49.01 (West 2011).
        2
           See Tex. Penal Code Ann. §§ 12.33 (second-degree felony punishment 2-20 years in
prison), 12.34 (third-degree felony punishment 2-10 years in prison), 49.07(c) (intoxication assault
is typically a third-degree felony), 49.08 (intoxication manslaughter is typically a second-degree
felony) (West 2011). The maximum potential imprisonment running all terms consecutively was
100 years. The court’s decision to run half of the sentences concurrently reduced Looschen’s
sentence to 50 years.

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                                            ANALYSIS

               Looschen contends on appeal that the trial court’s admission of the doctor’s testimony

regarding the blood-alcohol test taken after the July 2009 accident was fundamental error that

requires reversal of his sentencing. He argues that the doctor’s testimony was inadmissible hearsay

because the doctor did not perform the test and could not verify the chain of custody. He contends

that the doctor’s testimony was unreliable, and that the State’s use of the testimony to examine

witnesses and to argue for a tough sentence exacerbated the problems attendant to its wrongful

admission. He also contends that one of the State’s witnesses relied on the July blood-alcohol

evidence when testifying that Looschen’s decision to drive while intoxicated three weeks after the

July accident was “as close to wanting to kill somebody as you can get.”

               Admission of evidence without an objection can be grounds for reversal only if its

admission constitutes fundamental error. See Tex. R. Evid. 103; see also Tex. R. App. P. 33.1(a).

The only categories of errors that do not require an objection to be preserved for appellate review

are denials of absolute systemic requirements and violations of rights that must be expressly waived.

Aldrich v. State, 104 S.W.3d 890, 895 (Tex. Crim. App. 2003). Absolute systemic requirements that

may not be waived include jurisdiction over the person and the subject matter. Id. Rights that must

be preserved unless expressly waived include the right to the assistance of counsel, the right to a

trial by jury, and the right of appointed counsel to have ten days of trial preparation. Id.

               The court of criminal appeals has expressly rejected the argument that the admission

of hearsay evidence is fundamental error. Moore v. State, 935 S.W.2d 124, 130 (Tex. Crim. App.

1996). Instead, the admission of inadmissible hearsay is non-constitutional error. Lopez v. State,

200 S.W.3d 246, 255 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d). Looschen argues that

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this case should be treated differently because of the emphasis placed on the hearsay evidence

by other witnesses and the prosecution’s argument. We are not persuaded that the facts of this case

support the requested distinction and expansion of the exception to the preservation requirement,

particularly because this was a bench trial.3 We believe that the trial court could fairly consider the

reliability of the test-results evidence and assess its relevance to the punishment issue in this case

in light of all of the evidence.

                Finally, even if the admission of the evidence were somehow fundamental error,

Looschen has to show that it was harmful error. Fundamental errors, even those implicating

constitutional provisions, can still be subject to a harm analysis. See Ruiz v. State, 272 S.W.3d

819, 824 (Tex. App.—Austin 2008, no pet.). Only “structural errors”—those that affect the

entire conduct of the trial from beginning to end or the framework within which the trial proceeds

rather than simply being an error in the trial process itself—escape a harm analysis. See id. (citing

Johnson v. State, 169 S.W.3d 223, 237 (Tex. Crim. App. 2005) (citing Arizona v. Fulminante,

499 U.S. 279, 309-10 (1991)). The admission of the test results concerning the extraneous offense

was not structural error, and Looschen must, therefore, show that the evidence affected his

substantial rights. See Tex. R. App. P. 44.2.

                The test results were not harmful to Looschen for several reasons. First, they were not

the only evidence that he was intoxicated during the previous accident in July 2009. The examining



        3
          Although we no longer presume that a trial court will disregard inadmissible evidence
when a case is tried to a judge rather than to a jury, the danger that the trier of fact will consider
extraneous-offense evidence for anything other than the limited purpose for which it is admitted is
reduced, and the likelihood that the extraneous-offense evidence will unfairly prejudice the defendant
is diminished. Corley v. State, 987 S.W.2d 615, 621 (Tex. App.—Austin 1999, no pet.).

                                                  5
physician said he believed that Looschen was intoxicated during that accident irrespective of the

test results. Other witnesses indicated their belief that Looschen was intoxicated at the time of the

July crash. There was also testimony that he had been confronted about the dangers of his alcohol

use after the July 2009 accident—less than three weeks before this accident. What is most important

is that the test results concerned only an extraneous offense. Looschen pleaded guilty to four counts

of intoxication manslaughter and two counts of intoxication assault, so the only issue was the length

of the sentence. The testimonial and photographic evidence admitted at the punishment phase,

combined with the tragic loss of four lives and severe injuries to others, was compelling regarding

the nature of the accident and the crimes. We conclude that the blood-test evidence concerning

Looschen’s July wreck did not affect his substantial rights during the punishment phase of this trial.

Even if the admission of the evidence in the absence of objection was fundamental error that

survived the lack of preservation, we conclude that its admission was harmless.

               We affirm the judgment.




                                               Jeff Rose, Justice

Before Justices Puryear, Rose and Goodwin

Filed: December 29, 2011

Affirmed

Do Not Publish




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