Rodney Walter Tinch v. State of Texas--Appeal from 296th District Court of Collin County

11th Court of Appeals

Eastland, Texas

Opinion

Rodney Walter Tinch

Appellant

Vs. No. 11-00-00242-CR C Appeal from Collin County

State of Texas

Appellee

On Remand

The jury convicted appellant of aggravated assault, and the trial court assessed his punishment at ten years confinement. On June 7, 2001, this court issued an opinion affirming appellant=s conviction. On January 16, 2002, the Court of Criminal Appeals remanded this cause for consideration in light of Mata v. State, 46 S.W.3d 902 (Tex.Cr.App.2001). We affirm.

Appellant was involved in a collision in which the pickup he was driving turned into the path of a car, and the two vehicles collided. Trooper Mike Smith testified at trial that the cause of the collision was appellant=s Aintoxication and [failure] to yield right-of-way to turn left.@ After the collision, appellant left his pickup and walked away. He was found at his mother=s residence approximately 30 minutes after the collision. Appellant was charged with two counts of intoxication assault and two counts of aggravated assault; however, at trial the State abandoned the counts on intoxication assault.

At trial, the State offered evidence of retrograde extrapolation to show appellant=s blood alcohol level at the time of the accident. In our original opinion, we found that the trial court did not err in admitting the evidence of retrograde extrapolation. The day before we handed down our opinion, the Court of Criminal Appeals in Mata set forth factors to be considered in determining the reliability of retrograde extrapolation. We, therefore, reconsider our determination that the trial court did not err in admitting evidence of retrograde extrapolation.

In Mata, the Court of Criminal Appeals stated that a court evaluating the reliability of a retrograde extrapolation should consider: (1) the length of time between the offense and the tests administered; (2) the number of tests given and the length of time between each test; and (3) whether, and if so to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. Mata v. State, supra at 916. The Mata court explained that:

These characteristics and behaviors might include, but are not limited to, the person=s weight and gender, the person=s typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.

The record shows that the accident occurred at approximately 8:40 p.m. and that appellant=s blood was taken at the hospital at 1:50 a.m. The test using appellant=s blood serum revealed a blood alcohol level of 109 milligrams per deciliter, which equals a blood alcohol concentration of .109. Because there was a significant length of time between the accident and the time the blood was drawn, the reliability of the retrograde extrapolation was seriously affected. Mata v. State, supra. The expert would need to know many personal characteristics and behaviors of the defendant to result in an accurate retrograde extrapolation. Mata v. State, supra.

Ronald D. Oliver, a technical supervisor in the breath-alcohol testing program for the Dallas County Medical Examiner=s Office, testified at trial. In applying the retrograde extrapolation, Oliver was asked to assume that a A250-pound male whose last drink is between 8:35 and 8:40 p.m.; [that the] last drink was a bottle of beer, about 12 ounces; that blood was...taken at 1:50 a.m.; and that the result of that was 109 milligrams per deciliters.@ Oliver was further asked to assume an average rate of elimination, which he had testified was a .02 alcohol concentration decrease per hour. Oliver stated that, under the facts given, the blood alcohol concentration at 8:35 p.m. would be .200 if the person had a full stomach and would be about .21 if on an empty stomach. Oliver also stated that the number would be a little lower when testing the blood serum.

The record does not establish appellant=s weight, how much he had to drink, what he had to drink, the time of his last drink, and what he had to eat. Oliver was asked to apply retrograde extrapolation using assumptions. Applying Mata, we find that the factors weigh against a finding that Oliver=s retrograde extrapolation was reliable. Therefore, the trial court abused its discretion in admitting Oliver=s testimony, and we must now conduct a harm analysis.

We must determine whether the error in admitting the testimony affected appellant=s substantial rights. TEX.R.APP.P. 44.2(b). A substantial right is affected when the error had a substantial and injurious effect or influence in determining the jury's verdict. Morales v. State, 32 S.W.3d 862 (Tex.Cr.App.2000); King v. State, 953 S.W.2d 266 (Tex.Cr.App.1997). A criminal conviction should not be overturned for non constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury or that the error had but a slight effect. Schutz v. State, 63 S.W.3d 442 (Tex.Cr.App.2001); Morales v. State, supra; Johnson v. State, 967 S.W.2d 410, 417 (Tex.Cr.App.1998). This means we examine Aeverything in the record, including testimony and physical evidence, the nature of the evidence supporting the verdict, and the character of the error and its relationship to other evidence.@ Schutz v. State, supra at 444.

Appellant was convicted of aggravated assault, and the jury was not required to find that he was intoxicated at the time of driving in order to convict him. However, because evidence of intoxication could have influenced the jury=s finding that appellant intentionally, knowingly, or recklessly caused serious bodily injury to the victims, we must determine the effect of the retrograde extrapolation evidence on the jury=s verdict. Trooper Smith testified at trial that he believed appellant lost the normal use of his mental and physical faculties by the introduction of alcohol into his body and that, because of the introduction of alcohol into his body, appellant was involved in a collision and recklessly caused serious bodily injury to the victims. Trooper Smith stated that, when he found appellant at appellant=s mother=s home shortly after the collision, appellant stated: A[G]et that cowboy motherf- - - -r out of here.@ Trooper Smith observed that appellant had a laceration on his forehead and that he had red glassy eyes and a strong odor of alcohol. Trooper Smith also testified that a bottle of beer with a koozie was found in appellant=s pickup as well as a A12 or 24-pack of beer carton.@

Craig Zale, a volunteer for the Lucas Fire Department, testified that appellant had a strong smell of alcohol and seemed incoherent and dazed, but not confused. Zale stated that appellant had slightly slurred speech, but he did not form an opinion as to whether appellant was intoxicated. Kevin Reynolds, a paramedic for East Texas EMS, testified that appellant smelled of alcohol and that he believed appellant was intoxicated. Reynolds stated that appellant was belligerent and uncooperative. A nurse who treated appellant at the emergency room also testified that appellant smelled of alcohol and was uncooperative.

Appellant also presented evidence from his own expert witness to rebut the State=s evidence on retrograde extrapolation. Gary Harold Wimbish, president of Forensic Toxicology Consultants, testified that he has a Ph.D in toxicology and that he is board certified in forensic toxicology. Wimbish was asked to give his opinion on a person=s blood alcohol content at the time of driving who weighed 250 pounds, whose blood alcohol content was .109 five hours after driving, who had a beer at approximately 8:35 p.m., who had experienced trauma, and who had a full stomach. Wimbish stated that he did not have enough information to give an opinion on what the retrograde extrapolation would be under those facts. Wimbish was able to testify that, assuming delayed absorption, a full stomach, and trauma, there would be little change in the blood alcohol concentration during that period of time and that the amount would be under .10 at the time of the collision. Wimbish explained that trauma slows the absorption rate of alcohol.

Viewing the record as a whole, we find that the admission of Oliver=s testimony on retrograde extrapolation did not have a substantial and injurious effect or influence in the jury's finding that appellant committed aggravated assault. The charge to the jury set forth the elements of aggravated assault that the jury had to find beyond a reasonable doubt before rendering a verdict of guilty. Intoxication is not an element. We presume that the jury followed the trial court=s instructions. Hutch v. State, 922 S.W.2d 166 (Tex.Cr.App.1996); Rose v. State, 752 S.W.2d 529, 554 (Tex.Cr.App.1987). The jury heard evidence that appellant turned his vehicle into the path of an oncoming car. The jury heard evidence other than that of retrograde extrapolation that appellant was intoxicated and that he recklessly caused the collision. Appellant also presented his own expert testimony on retrograde extrapolation which discredited Oliver=s application of retrograde extrapolation. Finally, the prosecutor did not emphasize the retrograde extrapolation evidence in her final argument.

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

May 23, 2002

Do not publish. See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.