Kirsch v. State

• Decision Date: 10 February 2010
• Docket Number: No. PD-0379-09.,PD-0379-09.
• Citation: 306 SW 3d 738
• Parties: Brian Thomas KIRSCH, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

306 S.W.3d 738

Brian Thomas KIRSCH, Appellant, v. The STATE of Texas.

No. PD-0379-09.

Court of Criminal Appeals of Texas.

February 10, 2010.

Amanda Peters, Houston, for Appellant.

Eric Kugler, Asst. Dist. Atty., Houston, Jeffrey L. VanHorn, Austin, for the State.

OPINION

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., WOMACK, JOHNSON, KEASLER, HERVEY and HOLCOMB, JJ., joined.

A jury convicted appellant of driving while intoxicated (DWI) and sentenced him to 45 days in jail. Appellant contends that the court of appeals erred in upholding the trial court's submission of a jury charge on per se intoxication by having an alcohol content in his blood of 0.08 or more when the evidence of appellant's blood alcohol level was admitted pursuant to a limiting instruction.¹ We agree with the court of appeals that (1) the judge's oral limiting instruction was improper, but (2) the totality of the evidence sufficed to permit the jury to conclude that appellant had an alcohol concentration of 0.08 or more at the time he was driving. We therefore affirm the judgment of the court of appeals.

I.

At approximately 3:00 a.m. on May 13, 2006, appellant, a Harris County deputy sheriff, was involved in an automobile accident with a tractor-trailer in north Houston. Appellant had been working an extra job, patrolling the Pine Shadows neighborhood that night in a patrol car. As appellant drove southbound in the right-hand lane of the freeway frontage road, Jesse Gomez, in his 18-wheel tractor-trailer, was ahead of appellant, preparing to make a right-hand turn at the Airtex intersection. Because of the size of his vehicle, Mr. Gomez made a wide right turn from the center lane. He testified that, before turning, he checked his mirrors and saw appellant's patrol car about 300 feet behind him. Deciding that the patrol car was a safe distance away, Mr. Gomez turned on his right-turn signal, slowed to approximately 15 m.p.h., and began his turn. Mid-turn, Mr. Gomez felt an impact to the side-rear portion of the trailer that caused his 78,000-pound trailer to skid sideways. After the trailer came to a rest, Mr. Gomez hurried to investigate the cause of the impact, discovered appellant unconscious in his patrol car, and called 911.

Responding paramedics took appellant to Ben Taub Hospital for treatment of a head injury. They did not notice any signs of intoxication or impairment on appellant because he was unconscious, but one paramedic smelled alcohol in appellant's blood. At the hospital, appellant regained consciousness, but behaved belligerently. Emergency-room personnel described appellant as "lethargic, slurring, uncooperative, and unresponsive." His medical records stated that "upon arrival, patient was obviously intoxicated." Those records also described appellant as combative, destructive, and exhibiting poor impulse control, and revealed that the physician had permitted a "4-point restraint" for "up to 8 hours total if patient exhibited unacceptable behavior."

Dr. Becker, the emergency center-chief, thought that appellant's aggressive behavior was the result of alcohol consumption rather than head trauma because appellant seemed to understand, but intentionally disregard, questions, requests, and commands. Dr. Becker ordered a blood-alcohol test at 4:28 a.m., which revealed a serum-alcohol concentration of 0.123, that translated to a blood-alcohol level (BAC) of 0.10.

Investigating officers downloaded information from the patrol car's "black box"— a device that stores data about a car's functions for five seconds prior to air-bag deployment.² The data showed that appellant was driving 69 m.p.h. four seconds before the collision and 67 m.p.h. one second before the crash. The posted speed limit was 50 m.p.h. The patrol car left skid marks on the pavement, but the black box indicated no brake application, suggesting that appellant had applied his brakes less than one second before impact. Deputies also found two Smirnoff vodka bottle caps in the patrol car.

Appellant filed a pretrial motion to suppress the blood-test results and argued that the State could not produce retrograde extrapolation testimony.³ The trial court denied the motion to suppress, but said that he intended to admit the BAC-test result with a limiting instruction until the State offered extrapolation evidence.⁴

When the State started to elicit testimony about appellant's BAC-test result during the trial, the judge discussed his proposed limiting instruction outside the presence of the jury:

Court: I think it's wise to instruct them at the time that it comes in that it is offered for limited purposes at this time. It's certainly admissible on the issue of whether or not the individual had ingested alcohol ... and it's in their system.

State: I'd prefer just to keep it simple and just to that particular time because I think things may change.

Court: Of course.

State: But I'm not going to be able to ask you later on to comment and say, Now things are changed; now you can use the results.

Court: I want one instruction that they can go with that will fit with the written instructions that they'll get at the close of trial, that will include the instruction that says that the State has to prove it beyond a reasonable doubt that alcohol level was .08 or greater at the time of driving....

State: Okay. So then you'll say at this particular point in the trial, this evidence is for the—

Court: Limited purpose of showing that the individual who was tested had ingested alcohol at some time prior to the test.

State: All right. With the proviso that the Court is adamant that the jury understands that it's at this particular time in the trial, that's what it's for.

Court: Right. And say nothing more than that. Is that acceptable to you all?

All agreed. When the jury reentered, the judge gave the following limiting instruction:

Members of the jury, I'm going to tell you now that the result is off—will be received by the Court for the limited purpose of showing that the individual who was tested had ingested alcohol only at some point before the time of the test. That is the only purpose that will be offered and the only purpose for which you should receive it at this time in this trial.

The Ben Taub laboratory supervisor then testified that appellant's BAC level was 0.10 some eighty minutes after the accident.

During a hearing on appellant's motion for directed verdict, the trial court expressed concern about whether there was sufficient evidence to support a charge on the "per se" definition of intoxication.⁵ Appellant argued that, given the limiting instruction, there was insufficient evidence to permit a conviction on the per se definition. The judge denied appellant's motion and charged the jury on both statutory definitions of intoxication.⁶

During closing arguments, the issue of how the jury could consider the BAC-test result arose again. Defense counsel stated:

I hate—I don't want to talk too much on this blood test because ... the machine can make mistakes.... And, again, that is still an hour and a half later and there's no evidence of blood alcohol concentration at the time of driving. And you cannot make the leap of faith there.... Remember the Judge's limiting instruction as to when you got that evidence? You can't go anywhere else.

In rebuttal, the prosecutor offered a different interpretation:

Let's focus on the specifics. The instruction that you got when the BAC-test result came in, that was given to you to consider that particular evidence at that particular time in the trial. That instruction is gone now.

Appellant objected, noting that the trial judge had not withdrawn the oral limiting instruction; the trial judge agreed, explaining, "It's not in the written instructions, but it is an oral instruction that the jury is still required to abide by." The jury returned a general verdict of guilty.

On direct appeal, appellant claimed, inter alia, that the trial judge erred in submitting jury instructions on the per se definition of intoxication. He argued that, because the blood-alcohol evidence was admitted with an instruction that permitted the jury to consider the evidence for the limited purpose of showing that appellant ingested alcohol only at some point prior to the test, the jury should not have been charged on per se intoxication because there was insufficient evidence to prove appellant's BAC at the time he drove.⁷ The court of appeals concluded that the jury charge was proper, although the limiting instruction was not.⁸

II.

Under the Texas DWI statute, intoxication may be proven in either of two ways: (1) loss of normal use of mental or physical faculties or (2) alcohol concentration in the blood, breath, or urine of 0.08 or more.⁹ The first definition is the "impairment" theory, while the second is the "per se" theory. They are not mutually exclusive, and, as long as there is evidence that would support both definitions, both theories are submitted in the jury charge.¹⁰

We first address the admissibility and probative value of BAC-test evidence and then the propriety of the trial court's per se intoxication charge and the limiting instruction.

A. Admissibility of BAC-test results.

1. The law. The court of appeals properly analyzed several recent cases in which we held that intoxilyzer BAC results were admissible and probative of per se intoxication even without retrograde extrapolation testimony.¹¹ In Stewart v. State, the defendant took an intoxilyzer test approximately 80 minutes after she had been driving.¹² The trial court admitted the result of 0.154 as some evidence that her BAC was over the then legal limit of 0.10 while driving. However, the court of appeals reasoned that, by admitting the breath test, the court had encouraged the jury to "conduct its own retrograde extrapolation and to decide the case based on facts not in evidence."¹³ It held that the results were irrelevant to show she was...