Straker v. State, 08-14-00112-CR
| Decision Date | 30 September 2016 |
| Docket Number | No. 08-14-00112-CR,08-14-00112-CR |
| Parties | ASHLEE J. STRAKER, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the Criminal District Court No. 3 of Tarrant County, Texas
(TC# 1310230D)
Appellant Ashlee Straker was convicted by a jury of intoxication assault and accident involving serious bodily injury arising from a failure to stop and render aid following an auto accident, and was sentenced to concurrent 20-year prison terms. On appeal, Appellant argues (1) the trial court erred in admitting evidence of blood test results without any retrograde extrapolation analysis, (2) the evidence was insufficient to support both convictions, (3) the trial court erred in admitting hearsay evidence and evidence of Appellant's prior marijuana use, (4) the trial court erroneously allowed the prosecutor to ask its expert an improper hypothetical question, (5) the prosecutor engaged in improper jury argument, and (6) cumulative error requires reversal. We affirm.1
On the evening of November 20, 2012, Appellant borrowed a Jeep Cherokee from his girlfriend, Leslie Florez, to attend a party with two of his friends, Lokuekim Kipasa and Donte Pierce. After leaving the party early the next morning, Appellant was driving with Kipasa and Pierce as passengers, when Appellant lost control of the Jeep on a gentle curve in the roadway in a construction zone. The Jeep struck several construction barrels and the curb of the roadway, causing the vehicle to roll over several times, ultimately landing on its roof in a field, over 200 feet from the roadway. Kipasa was partially ejected from the vehicle and run over before he was fully ejected. Pierce was also ejected from the vehicle and landed over 100 feet away from the point he was ejected. Kipasa died at the scene, and Pierce was seriously injured.
Around 2:44 that morning, passers-by reported seeing debris on the roadway near the accident site, and Grand Prairie Police Officers arrived at the scene shortly thereafter. The officers found the Jeep in the field on the side of the highway, flipped over onto its roof, and soon found Kipasa's body and the severely-injured Pierce, who was transported to the hospital by air ambulance. Appellant was nowhere to be found, but the investigating officers located Appellant's cell phone in the wreckage and used it to contact Florez. Florez confirmed the phone belonged to Appellant, that she was the owner of the Jeep, and that she had loaned the Jeep to Appellant the night before.
Appellant had managed to crawl out of the wreckage through the back window of the Jeep and had left the scene of the accident before the police arrived. Appellant obtained a ride from a passing motorist to his mother's house where Florez was waiting nearby for him. Appellant, who was clearly injured and bleeding, informed Florez that he had been in an accidentand that he had been unable to find Kipasa and Pierce in the wreckage. Shortly thereafter, two officers arrived at the residence to interview Appellant. Appellant informed the officers that he had been at a party with Kipasa and Pierce, and that he was driving them home because he was the "better off of the three[.]"
The officers suspected Appellant had been intoxicated, based in part on Appellant's statements about having been at a party and that he was driving since he was the "better off of the three," and because the accident was a one-car rollover, and Appellant had left the accident scene and failed to call for help. Appellant was transported to the hospital for treatment, where he voluntarily consented to a blood draw. Appellant's blood was drawn by an emergency room nurse approximately three hours after the accident. The blood specimen tested positive for alcohol, THC (marijuana), and alprazolam (a tranquilizer). The State's expert witness testified about the synergistic effects of combining two controlled substances with alcohol and opined that the combination of drugs would have rendered Appellant intoxicated, making it unsafe for him to drive due to the "multiplication of negative side effects from all three substances."
Appellant was subsequently indicted and found guilty of one count of intoxication assault involving Pierce's injuries, and one count of accident involving serious bodily injury arising from the failure to stop and render aid to Pierce.2 Appellant pled "true" to a repeat offender allegation in the indictment, and the trial court sentenced Appellant to 20 years in prison on the intoxication assault offense and to 20 years in prison on the failure to stop and render aid offense, with the sentences to run concurrently.
In Issues Seven, Eight, and Ten, Appellant argues the trial court erred in admitting the evidence of his blood test results, which indicated the presence of marijuana and alprazolam in his bloodstream following the accident. Appellant asserts the State failed to demonstrate the test results were scientifically reliable or based on sound scientific theory.
A trial court's ruling admitting evidence will not be reversed on appeal absent a clear abuse of discretion. Jordy v. State, 413 S.W.3d 227, 231 (Tex.App. - Fort Worth 2013, no pet.) (citing Tillman v. State, 354 S.W.3d 425, 435 (Tex.Crim.App. 2011)). The trial court does not abuse its discretion in admitting evidence unless its determination lies outside the zone of reasonable disagreement. Id. The trial court's ruling will be upheld if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Id. (citing Ramos v. State, 245 S.W.3d 410, 418 (Tex.Crim.App. 2008)).
In order for scientific evidence to be admissible at trial, it must be "considered sufficiently reliable as to be of help to a jury[.]" Reynolds v. State, 204 S.W.3d 386, 390 (Tex.Crim.App. 2006). Scientific evidence must typically meet three criteria to be admissible: (1) the underlying scientific theory must be valid; (2) the technique applying the theory must be valid; and (3) the technique must have been properly applied on the occasion in question. Id. In the context of breath and blood test evidence, however, the analysis had been modified by Section 724.064 of the Texas Transportation Code. Section 724.064 provides that at the trial of offenses under Chapter 49 of the Penal Code, which includes intoxication assault,"evidence of the alcohol concentration or presence of a controlled substance, drug, dangerous drug, or other substance as shown by analysis of a specimen of the person's blood, breath, or urine or any other bodily substance taken at the request or order of a peace officer is admissible." TEX. TRANSP. CODE ANN. § 724.064 (West 2011). By enacting Section 724.064, "the Legislature has already determined that the underlying science is valid, and that the technique applying it is valid as long as it is administered by individuals certified by, and using methods approved by the rules of [The Department of Public Safety]." Reynolds, 204 S.W.3d at 390; see also Mireles v. Texas Dept. of Pub. Safety, 9 S.W.3d 128, 131-32 (Tex. 1999) (). Consequently, both breath and blood specimen test results are "admissible even without proof that the underlying scientific theory is reliable." Garcia v. State, 112 S.W.3d 839, 848 (Tex.App. - Houston [14th Dist.] 2003, no pet.) (citing Slagle v. State, 570 S.W.2d 916, 921 (Tex. Crim. App. 1978) ()).
Nevertheless, the State must show that the blood specimen was taken by a qualified person, such as a "registered professional nurse" or a "licensed vocational nurse," and that it was taken in a "sanitary place." TEX. TRANSP. CODE ANN. § 724.017 (West Supp. 2016); see Garcia, 112 S.W.3d at 848 (). Also, in order to meet the requirements of Rule 702 of the Texas Rules of Evidence, the State must demonstrate that "the specimen was taken and analyzed by individuals who are certified by, and were using methods approved by the rules of [the Department of Public Safety]" and that the technique was properly applied inaccordance with the department's rules on the occasion in question. Reynolds, 204 S.W.3d at 390-91. These requirements may be met by evidence that the person who performed the test "knows the protocol involved in administering the test and can testify that he followed it on the occasion in question, [but] he need not also demonstrate any personal familiarity with the underlying science and technology." Id. at 391.
Both before and during trial, Appellant objected to the admission of any evidence that he had ingested marijuana and alprazolam prior to the accident, based in part on the argument that the test results lacked a sound and reliable foundational basis. The trial court overruled the objections, and allowed the State to introduce evidence of the test results themselves, together with the testimony of witnesses from the Tarrant County Medical Examiner's Office. The State presented the testimony of Tiffany Flowers, a senior toxicology analyst at the medical examiner's office, and Joyce Ho, a now-retired lab manager in that same office, who testified that they performed the laboratory tests on Appellant's blood specimen and determined that Appellant had "17 nanograms per mil" of alprazolam in his blood at the time of his blood draw, a blood THC level of 5.8 nanograms per mil, and a blood alcohol concentration (BAC) level of 0.07%. Both Flowers and Ho testified to their qualifications to conduct the tests, both witnesses provided detailed testimony indicating they were familiar...
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