oral argument requested in the court of appe als for the

Oral Argument Requested

IN THE COURT OF APPEALS

FOR THE SECOND DISTRICT OF TEXAS

FORT WORTH, TEXAS

ROY ALVIN ADAMS, §

Appellant §

§

§

VS. § NO. 02-05-00379-CR

§

THE STATE OF TEXAS, §

Appellee. §

ON APPEAL FROM THE

396TH JUDICIAL DISTRICT COURT

OF TARRANT COUNTY, TEXAS

NO. 0944291D

PRESIDING JUDGE GEORGE GALLAGHER

**************************

APPELLANT’S BRIEF

**************************

GARY A. UDASHEN

Bar Card Number 20369590

ROBERT N. UDASHEN

Bar Card Number 20369600

SORRELS, UDASHEN & ANTON

2301 CEDAR SPRINGS ROAD

SUITE 400

DALLAS, TEXAS 75201

(214) 468-8100

(214) 468-8104 FAX

ATTORNEYS FOR APPELLANT

-ii-

PARTIES TO THE CAUSE

State of Texas represented by Richard Alpert and Miles Brissette, Tarrant County

Assistant District Attorneys, 401 W. Belknap, Fort Worth, Texas 76196..

Appellant represented at trial by Mike Heiskell, 600 Texas Street, Fort Worth, Texas

76102 and Christopher Hoover, 520 Central Parkway, Plano, Texas 75074, and on appeal,

Gary A. Udashen and Robert N. Udashen of Sorrels, Udashen & Anton, 2301 Cedar Springs

Road, Suite 400, Dallas, Texas 75201.

-iii-

TABLE OF CONTENTS

Page

PARTIES TO THE CAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii-iv

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v-viii

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-10

ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-13

ISSUES PRESENTED WITH ARGUMENT AND AUTHORITIES

ISSUE I: The evidence is legally insufficient to sustain the verdict. . . . . . . . 13

ARGUMENT AND AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13-16

ISSUE II: The evidence is factually insufficient to sustain the verdict. . . . . 16


ISSUE III: The trial court erred in failing to suppress the blood alcohol test.

(CR, p. 34). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


ISSUE IV: The trial court erred in denying Adam’s requested jury

instruction under Art. 38.23, Tex. Code Crim. Proc. regarding

probable cause for the draw of the mandatory blood specimen.

(CR, p. 149). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22


-iv-

ISSUE V: The trial court erred in overruling Adams’ objection that the

prosecutor’s cross-examination question was shifting the burden

of proof. (RR 9, p. 252). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26


ISSUE VI: The trial court improperly made a deadly weapon finding. (CR,

pp. 194, 197). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29


ISSUE VII: The trial court erred in overruling Adams’ objection to

“retrograde extrapolation” testimony offered by the state. (RR

7, pp. 83-84). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30


ISSUE VIII: The trial court erred in not holding a hearing on Adams’

Amended Motion for New Trial and allowing it to be overruled

by operation of law. (CR, pp.213-262). . . . . . . . . . . . . . . . . . . . . . 33


ISSUE IX: The state violated Adams’ right to due process by failing to

disclose exculpatory evidence. (CR, pp. 213-262). . . . . . . . . . . . . 34


ISSUE X: The trial court erred in overruling Adams’ objection that the

repeated playing of a videotape made by a camera in the

complainant’s patrol car violated Tex. R. Evid. 403. (RR 8, pp.

103-108, 119, 120; RR 9, pp. 7-10). . . . . . . . . . . . . . . . . . . . . . . . . 38


CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

-v-

INDEX OF AUTHORITIES

Cases Page

Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . . . . . 26

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) . . . . . . . . . . . . . . . . . . . . . . 26

Atkinson v. State, 923 S.W.2d 21 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . 26

Badgett v. State, 42 S.W.3d 136 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . 14, 21, 22, 24

Brady v. Maryland, 373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Brooks v. State, 132 S.W.3d 702 (Tex.App. -- Dallas 2004, pet. ref’d) . . . . . . . . . . . . . 28

Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . 27

Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) . . . . . . . . . . . . 16

Burns v. State, 958 S.W.2d 483 (Tex App. - Houston [1st Dist] 1997) . . . . . . . . . . . . . . 17

Cardenas v. State, 971 S.W.2d 645 (Tex.App. -- Dallas 1998, pet. ref'd) . . . . . . . . . . . 28

Chambers v. State, 711 S.W.2d 240 (Tex. Crim. App. 1986) . . . . . . . . . . . . . . . . . . . . . 15

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) . . . . . . . . . . 27

Clark v. Procunier, 755 F.2d 394 (5th Cir. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . . 16, 17

Coffin v. United States, 156 U.S. 432, 15 S.Ct. 394, 39 L.Ed. 481 (1895) . . . . . . . . . . . 27

Daniel v. State, 577 S.W.2d 231 (Tex. Crim. App. 1979) . . . . . . . . . . . . . . . . . . . . . . . 14

Deck v. Missouri, ___ U.S. ___, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) . . . . . . . . . . . 27

Erazo v. State, 144 S.W.3d 487 (Tex.Crim.App. 2004) . . . . . . . . . . . . . . . . . . . . . . 28, 40

Ex parte Kimes, 872 S.W.2d 700 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . . 37

-vi-

Ex parte Richardson, 70 S.W.3d 865 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . 37

Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985) . . . . . . . . . . 27

Gaffney v. State, 940 S.W.2d 682 (Tex. App. - Texarkana 1996, pet. ref’d.) . . . . . . . . . 17

Gold v. State, 736 S.W.2d 685 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . 16

Goodman v. State, 5 SW3d 891 (Tex. App. - Houston [14th Dist.] 1999) . . . . . . . . . . . 17

Green v. State, 754 S.W.2d 687 (Tex. Crim. App. 1988) . . . . . . . . . . . . . . . . . . . . . . . . 34

Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) . . . . . . . . . . . . . . 16

Harris v. State, 790 S.W.2d 568 (Tex.Crim.App. 1989) (en banc)) . . . . . . . . . . . . . 28, 29

Hayes v. State, 85 S.W.3d 809 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 40

Hays v. State, 728 S.W.2d 804 (Tex. Crim. App. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . 25

In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) . . . . . . . . . . . . 15, 27

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 62 L.Ed.2d 560 (1979) . . . . . . . . . . . 15

Johnson v. State, 978 S.W.2d 703 (Tex. App. - Corpus Christi 1998) . . . . . . . . . . . 17, 19

Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App., 2000) . . . . . . . . . . . . . . . . . . . . . . . . 17

Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . 17

King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Kyles v. Whitley, 515 U.S. 419 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Montgomery v. State, 821 S.W.2d 314 (Tex.App. -- Dallas 1991, pet. ref'd) . . . . . . . . . 28

Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . 40

Murphy v. State, 640 S.W.2d 297 (Tex. Crim. App. 1982) . . . . . . . . . . . . . . . . . . . . . . . 24

-vii-

Owens v. State, 135 S.W.3d 302 (Tex. App. - Houston [14th Dist.] 2004, no pet.) . . . . 32

Reina v. State, 940 S.W.2d 770 (Tex. App. - Austin 1997, pet. ref’d.) . . . . . . . . . . . . . . 17

Reynolds v. State, 848 S.W.2d 148 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . 24

Richardson v. State, 879 S.W.2d 874 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . 15

Spicer v. Roxbury Correctional Institution, 194 F.3d 547 (4th Cir. 1999) . . . . . . . . . . . 37

State v. Gonzalez, 855 S.W.2d 692 (Tex. Crim. App. 1993) . . . . . . . . . . . . . . . . . . . . . . 34

Stone v. State, 823 S.W.2d 375 (Tex. App. - Austin 1992, pet. ref’d untimely filed) . . . 17

Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992) . . . . . . . . . . . . . . . . . . . . . . 37

Tyra v. State, 897 S.W.2d 796 (Tex. Crim. App. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . 29

United States v. Bagley, 473 U.S. 667 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

United States v. Foster, 874 F.2d 491 (8th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Wesbrook v. State, 29 S.W.3d 103 (Tex.Crim.App. 2000),

cert. denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001) . . . . . . . . . . . . . . . 28

White v. State, 890 S.W.2d 131 (Tex. App. - Texarkana 1994, no. pet.) . . . . . . . . . . . . . 17

Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004) . . . . . . . . . . . . . . . . . . . . 17, 19

-viii-

Codes and Rules

TEX. CODE CRIM. PROC. art. 36.19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

TEX. CODE CRIM. PROC. art. 38.23 . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 22, 23, 24

TEX. CODE CRIM. PROC. art. 38.23(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

TEX. R. APP. P. 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

TEX. R. APP. P. 44.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

TEX. R. APP. P. 44.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

TEX. R. EVID. 403 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 13, 38, 39, 40

TEX. TRANS. CODE §724.012(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 25

Constitutional Provisions

TEX. CONST., art. V, Sect. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Adams was also charged with manslaughter. The jury found him guilty of intoxication1

manslaughter and did not reach the alternative manslaughter charge.

Appellant’s Brief - Page 1

IN THE COURT OF APPEALS

FOR THE SECOND DISTRICT OF TEXAS

FORT WORTH, TEXAS

ROY ALVIN ADAMS, §

Appellant §

§

§

VS. § NO. 02-05-00379-CR

§

THE STATE OF TEXAS, §

Appellee. §

ON APPEAL FROM THE

396TH JUDICIAL DISTRICT COURT

OF TARRANT COUNTY, TEXAS

NO. 0944291D

PRESIDING JUDGE GEORGE GALLAGHER

*****************************

APPELLANT’S BRIEF

*****************************

STATEMENT OF THE CASE

Appellant, ROY ALVIN ADAMS, was charged with the offense of Intoxication

Manslaughter alleged to have occurred on or about June 12, 2004. (CR, p. 2). Adams1

entered a plea of not guilty and a jury trial was held from July 25, 2005 through August 1,

2005, after which the jury found Adams guilty and set punishment at 12 ½ years in prison.

(CR, pp. 174, 189). A motion and amended for new trial were filed and overruled by


operation of law. (CR, pp. 207, 213). Notice of Appeal was given. (CR, p. 264).

STATEMENT OF FACTS

Appellant, ROY ALVIN ADAMS, was charged by indictment alleging that he did:

“then and there operate a motor vehicle in a public place while intoxicated, and

did by reason of such intoxication cause the death of another, Darren Medlin,

through accident or mistake, namely: striking Darren Medlin with a motor

vehicle operated by said defendant, and said defendant was intoxicated by not

having the normal use of his mental or physical faculties by reason of the

introduction of alcohol into his body or by having an alcohol concentration of

at least 0.08,” (CR, p. 2).

Adams entered a plea of not guilty to the indictment. (RR 6, p. 15).

State’s Evidence

Grapevine Police Officer Mark Shimmick testified that Officer Darren Medlin was

his partner. He said Officer Medlin mainly worked DWI cases. (RR 6, pp. 40-43). State’s

exhibit 179 was introduced which was the Grapevine Police radio traffic of Officer Medlin

initiating a traffic stop. (RR 6, p. 53). Shimmick described the 911 call placed by Roy Alvin

Adams after an accident involving Officer Medlin. (RR 6, p. 88). He also said that when

an officer approaches a vehicle or person after a stop the officer would leave his video

recorder going for safety purposes. He said that if an officer turned off the video it would

stop immediately with no delay. Shimmick said he keeps his audio on during a stop. (RR

6, pp. 94-96).

Omar Hinojosa testified that he is a truck driver and on June 11, 2004, after work he

was driving home. He saw police lights ahead and saw an officer had somebody pulled over.

He also saw another car traveling in the far right lane and was concerned that he was too


close to the officer’s car. The car he saw never moved over or slowed down but it was not

speeding. He then saw the car strike the car the officer had stopped. (RR 6, pp. 101-106).

Hinojosa stopped to see if anyone was hurt. He first spoke to the female the officer had

pulled over and she was hysterical. He then saw the police officer lying on the ground.

Hinojosa said that after the vehicle struck the detained vehicle it continued down Cheek-

Sparger. Prior to the collision, the driver of the vehicle did not apply his brakes. Afterwards,

he did see the vehicle stop. He had no contact with the driver of the vehicle that struck the

detained vehicle. (RR 6, pp. 107-109). Hinojosa testified that the vehicle was not speeding

or weaving. He said it appeared that somehow the driver just lost control of the vehicle. (RR

6, pp. 121-122).

Officer Deana Ramsour of the Euless Police Department testified that she was

dispatched to the accident scene. When she arrived, Officer Hurtado, who was already there,

told her the suspect vehicle was further down the road. She went to the suspect vehicle,

which was a black 2004 Lincoln. The Lincoln was 500 feet from the accident location and

was in the center of the roadway. There was major damage to the right front quarter panel.

She found the driver, who she identified as Adams, sitting across the entrance ramp on the

shoulder of the road. (RR 6, pp. 130-136).

She spoke to Adams and he told her he had been driving the Lincoln and asked if he

hit someone. Adams also stated he must have dozed off. (RR 6, pp. 139-140). Ramsour said

Adams told her he was coming from a friend’s house. Ramsour noticed a strong odor of

alcohol from Adams’ breath and body, red watery, glassy eyes, and slightly slurred speech.


She said she asked Adams how much he had been drinking and he responded that he drank

a lot earlier but had stopped a couple of hours ago. She then placed Adams in her police car.

(RR 6, pp. 141-142). Sergeant Ron Williamson arrived and took over the investigation of

Adams. Ramsour observed Williamson take Adams to the front of his vehicle and ask him

to do field sobriety tests but that Adams refused all tests. (RR 6, pp. 145-147).

Ramsour identified the tape from her police vehicle, State’s Exhibit 181, which

showed her arrival at the scene up to the point of making contact with Adams. She said the

in-car video automatically activates when the emergency lights are turned on. Her video goes

off after she exits her vehicle. Ramsour said she hit the stop button prior to exiting the

vehicle, which she always does when she responds to a major incident. She said if it had

been a DWI stop she would not have turned off the video. (RR 6, pp. 147-150). Ramsour

said she knew that if she had left her video on the jury would be able to hear and see Adams

as he was initially approached by her and engaged in the conversation she testified

concerning. (RR 6, p. 164). She said turning the video off was not police policy, it is just

something she does. (RR 6, p. 172).

Ramsour testified that going to a smoky night club can cause red, blood shot, watery

eyes, and that allergies also cause this. (RR 6, p. 169).

Sergeant Ron Williamson of the Euless Police Department responded to the accident

scene and took control of Adams. Ramsour told him that Adams was possibly intoxicated

but she had not performed any tests on him. (RR 6, p. 191). Williamson said he smelled an

odor of alcoholic beverage coming from inside the vehicle and from Adams’ person. He also


said Adams’ eyes were watery and bloodshot. He asked Adams if he had been drinking and

he said that Adams said he had one or two drinks earlier that evening. Williamson said

Adams refused to do any field sobriety tests. (RR 6, 193-194). Williamson decided to arrest

Adams because he believed he was intoxicated and had been involved in the accident that

resulted in Officer Medlin’s death. (RR 6, p. 195). State’s Exhibit 185, the video from

Williamson’s car was played. (RR 6, 198).

Williamson took Adams to Harris Methodist Hospital in Bedford for a mandatory

blood draw. He observed the nurse draw the blood. (RR 6, pp. 201-208). Williamson

testified that he took Adams to the police department and put the blood sample into a secure

refrigerator. (RR 6, p. 216).

Williamson said that his police department policy is to not cut off the video of a crime

scene. He said if an officer turned it off it would instantly go off. (RR 6, pp. 224-225). He

said there were no skid marks or brake marks to where Adams’ vehicle came to a rest. (RR

6, p. 237). He said bloodshot eyes can be caused by any number of things and that the odor

of alcohol, by itself, is not a sign of intoxication. He also said being involved in an accident

can cause someone to become disheveled and anguished. He also confirmed that on his

video Adams said that he drank two to three hours earlier, not that he drank a lot earlier or

had been drinking all day. (RR 6, pp. 242-243). Williamson said that Adams told him he

dozed off. (RR 6, p. 244).

Tracy Langley, the nurse who drew the blood, testified. (RR 6, pp. 260-266). She

said Adams was very afraid and kept repeating “Oh my God.” She said she never smelled


the odor of alcohol on him. She could not tell if he was intoxicated. (RR 6, pp. 270-272).

She said if he was intoxicated she would remember that. (RR 6, p. 276).

Marilyn Long from International Merchant Services testified concerning money drawn

out of an ATM machine by Adams. (RR 7, p. 20).

Beryl Landry, forensic toxicologist at the Tarrant County Medical Examiner’s Office,

testified that the Medical Examiner’s Office is now accredited and received the accreditation

in June 2005. The accreditation is by ASCLD. She said prior to that accreditation the lab

was subjected to proficiency testing by the College of American Pathologists. According to

Landry, they were evaluated four times a year and there were no problems. (RR 7, pp. 28-

30).

Landry said that on June 14, 2004 she received a blood sample that purported to come

from Roy Adams. The sample was tested using gas chromatography. The test result was a

.1170 and .1188. (RR 7, pp. 30-41).

Landry admitted that the lab was not accredited in June of 2004 when this test was

run. She also said that there have been malfunctions with the gas chromatograph. (RR 7, pp.

55-56). Landry testified she had no idea what the blood alcohol concentration of Adams was

on June 12th at 2:30 a.m., the time of the accident. (RR 7, p. 68).

Angela Springfield, Chief Toxicologist for the Tarrant County Medical Examiner’s

Office, testified concerning her review of the testing records in this case. She said the test

was run in accordance with the protocol. (RR 7, pp. 72-73). Springfield said the lab was

accredited in June 2005 and was not required to be certified before then. She also said there


had been proficiency testing done prior to the certification and the results were satisfactory.

(RR 7, pp. 73-75).

Maurice Dennis, a professor at Texas A & M University and the Director of the

Center for Alcohol and Drug Education, testified. (RR 7, p. 123). He described the effects

that alcohol has on a person. (RR 7, p. 135).

Euless Police Officer Scott Peterson testified that he responded to the accident scene

and he conducted an accident investigation. (RR 7, pp. 175-189). Peterson said when an

officer stops a car the officer should park the police car behind and at an angle for safety

purposes. (RR 8, p. 22). Peterson said there were no pre-impact skid marks from the Lincoln

that Adams drove which indicates Adams did not see a hazard in front of him. There was

also no evidence of braking or skid marks afterwards. (RR 8, pp. 28-30). Adams air bags

deployed but there was no evidence of skid marks and Adams kept going in a straight

direction. (RR 8, pp. 31-33). Peterson testified the Lincoln drifted into the Mustang and

Officer Medlin which indicated that the driver was either asleep or in some other way

unaware of what was happening. (RR 8, pp. 56-57).

Nizam Peerwani, Tarrant County Medical Examiner, testified that the cause of death

to Officer Medlin was blunt force injuries due to motor vehicle pedestrian collision. (RR 8,

pp. 93-94).

Peerwani said the lab applied for accreditation in October 2004. The lab was

inspected and some changes suggested and made. (RR 8, pp. 97-98). The lab was accredited

later. (RR 8, p. 102).


Grant Fredericks of Avid Technology testified that he enhanced the various police

videos from the scene of the accident. The videos were then played numerous times for the

jury. (RR 8, pp. 117-129). Fredericks testified that when a police officer comes to a scene

where he thinks there may be evidence to attain he should leave his recorder on. (RR 8, p.

130). He also said that at the time of impact Officer Medlin’s heel may have been touching

the fog line. (RR 8, p. 132). The state then rested.

Defense Evidence

Kay Alexander, a nurse at a ear, nose and throat clinic in Bedford, testified that in

June 2004 Roy Adams was in her office for a doctor’s appointment. This was two weeks

after the accident. While there, she observed him have a seizure and loose consciousness.

His body was contracting and convulsing for 30 to 45 seconds. She said Adams had a grand

mal seizure. (RR 9, pp. 27-30).

Sally Hernandez, Medical Assistant at the ENT Clinic, testified that she also observed

Adams’ seizure. (RR 9, p. 39).

Dr. Charles Railsback from the Texas Ear Nose and Throat Specialists Clinic testified

that he is familiar with epileptic seizures. He saw Adams at the clinic and he was having a

grand mal seizure. He was unconscious, stiff and making jerking motions. (RR 9, pp. 41-

46).

Dr. Robert Leroy, a neurologist who specializes in epilepsy, testified that he

performed a complete evaluation of Adams after he was referred to him following his seizure

at the ENT clinic. He did various testing and determined that Adams had a seizure disorder.


(RR 9, pp. 70-81). During these seizures, Adams will have zone-outs and blackouts. (RR

9, p. 82). Dr. Leroy said that, after reviewing all of the material and records in this case, it

is reasonably medically probable that Roy Adams had a seizure on June 12, 2004 at 2:30 a.m.

(RR 9, pp. 84-85). Leroy viewed a video of Adams at the scene and saw no signs of

intoxication. He saw no signs of neurological or physiological impairment which he would

expect to see if Adams was intoxicated. (RR 9, p. 88). According to Dr. Leroy, there is a

reasonable medical probability that Roy Adams suffered an absence seizure at the time of the

accident that made him lose control. (RR 9, p. 92). When a person has an absence seizure,

he would not be awakened by a loud noise. If a person was sleeping and was in an accident,

the loud noise would wake him up. (RR 9, pp. 132-133).

Christopher Gregg, a friend of Adams from college, testified that in the past he had

seen Adams freeze up and drop the phone he was talking on, shake a little bit and seem to

space out and become incoherent. (RR 9, p. 150). He saw this happen more than once. (RR

9, p. 154). Eric Prince, another friend of Adams, testified that he had spoken to Adams on

June 11, 2004. He also testified he has seen Adams consume alcohol but never saw him get

out of control or close to it. (RR 9, p. 169).

Jason Ware, a detention officer for the Tarrant County Sheriff’s Department, testified

that he was friends with Adams. He recalled that in high school and junior high school

Adams would sometimes start a sentence and just lose his thought. (RR 9, p. 180).

Anthony Phillips said he met Adams in college. He saw Adams on June 11, 2004 at

Carson’s Live Club and they visited. This was around 10 to 12 at night. He last saw him


around 1:00 a.m. and Adams did not look intoxicated. (RR 9, pp. 193-197).

Roy Adams then testified. He said that the night of the accident he was not

intoxicated and did not fall asleep at the wheel. (RR 9, p. 205). He was at a club from

around 7:30 p.m. until about 11:30 p.m. and had four drinks. He was also drinking water.

He went to another club and had another drink but did not finish it. About 2:00 a.m., he left

and drove home. He was not sleepy or intoxicated and thought he passed out before the

accident. When he came to, he saw lights and called 911. (RR 9, pp. 218-225). Adams said

he did not tell a police officer he had been drinking all day long. (RR 9, p. 228). Adams

explained that he learned after the accident that he has a seizure disorder and that he had a

seizure at the time of the accident. (RR 9, p. 232). The defense then rested. (RR 9, p. 264).

State’s Rebuttal Evidence

Dr. Angel Hernandez, a pediatric neurologist, testified that he disagreed with Dr.

Leroy’s diagnosis of Adams concerning his seizure disorder. He said Dr. Leroy is the

renowned expert in seizures in this area. (RR 10, pp. 29-36). The state then rested.

Following final argument, the jury found Adams guilty of intoxication manslaughter

and found that the motor vehicle was a deadly weapon. (RR 11, p. 8). After presentation of

punishment evidence, the jury set punishment at 12 ½ years confinement. (RR 12, p. 5).

ISSUES PRESENTED

Issue I: The evidence is legally insufficient to sustain the verdict.

Issue II: The evidence is factually insufficient to sustain the verdict.

Issue III: The trial court erred in failing to suppress the blood alcohol test. (CR, p. 34).


Issue IV: The trial court erred in denying Adam’s requested jury instruction under Art.

38.23, Tex. Code Crim. Proc. regarding probable cause for the draw of the mandatory blood

specimen. (CR, p. 149).

Issue V: The trial court erred in overruling Adams’ objection that the prosecutor’s cross-

examination question was shifting the burden of proof. (RR 9, p. 252).

Issue VI: The trial court improperly made a deadly weapon finding. (CR, pp. 194, 197).

Issue VII: The trial court erred in overruling Adams’ objection to “retrograde

extrapolation” testimony offered by the state. (RR 7, pp. 83-84).

Issue VIII: The trial court erred in not holding a hearing on Adams’ Amended Motion for

New Trial and allowing it to be overruled by operation of law. (CR, pp.213-262).

Issue IX: The state violated Adams’ right to due process by failing to disclose

exculpatory evidence. (CR, pp. 213-262).

Issue X: The trial court erred in overruling Adams’ objection that the repeated playing

of a videotape made by a camera in the complainant’s patrol car violated Tex. R. Evid. 403.

(RR 8, pp. 103-108, 119, 120; RR 9, pp. 7-10).

SUMMARY OF THE ARGUMENT

Issues I and II:

The evidence is both legally and factually insufficient. There is no connection

established between any alleged intoxication and the death of the officer. In fact, the weight

of the evidence shows that Adams had a seizure at the time of the accident and this was the

cause of the accident, not any alleged intoxication.


Issues III and IV:

The mandatory blood sample taken from Adams should not have been admitted into

evidence. The requirements of the Transportation Code statute authorizing the mandatory

blood draw were not met because there were no specific articulable facts that supported a

conclusion that the accident was the result of intoxication. Also, the trial court should have

submitted this question to the jury pursuant to TEX. CODE CRIM. PROC. art. 38.23.

Issue V:

During cross-examination of Adams by the prosecutor, the prosecutor stated that

Adams could have proven his innocence by submitting to field sobriety tests. This was an

improper shifting of the burden of proof.

Issue V:

The motor vehicle was found to be a deadly weapon in this case. While this finding

is supported by current case law, that line of cases should be reconsidered.

Issue VII:

In order to prove the intoxication element of the offense, it was necessary to prove that

Adams was intoxicated at the time of driving. The state attempted to do this with

extrapolation evidence. However, the witness had insufficient facts available to perform an

accurate extrapolation and the trial court erred in allowing the testimony.

Issue VIII and IX:

Adams filed a motion for new trial after discovering evidence that contradicted key

testimony from state’s witnesses concerning whether the Tarrant County lab that performed


the blood test had passed all of its inspections. State’s witnesses represented that there were

no problems in the inspections. This representation was not correct. The state suppressed

this exculpatory evidence and the trial court erred in not holding a hearing on the issue for

new trial purposes or granting the new trial.

Issue X:

The video in the police car of Officer Medlin recorded, in graphic detail, the accident

that resulted in his death. Over Adams’ objection, the prosecutor was allowed to play this

video numerous times for the jury. The trial court erred in overruling Adams’ objection

pursuant to Tex. R. Evid. 403.

ISSUES RESTATED WITH ARGUMENT AND AUTHORITIES

Issue I

The evidence is legally insufficient to sustain the verdict.

Argument and Authorities

Adams was charged with both intoxication manslaughter and manslaughter. The jury

found him guilty of intoxication manslaughter.

For various reasons explained below, the evidence is legally insufficient to sustain the

verdict.

In order to determine this legal sufficiency question, reference must be made to the

indictment.

The indictment in this cause alleged that Adams did:

“then and there operate a motor vehicle in a public place while intoxicated, and

did by reason of such intoxication cause the death of another, Darren Medlin,


through accident or mistake, namely: striking Darren Medlin with a motor

vehicle operated by said defendant, and said defendant was intoxicated by not

having the normal use of his mental or physical faculties by reason of the

introduction of alcohol into his body or by having an alcohol concentration of

at least 0.08,” (CR, p. 2).

The indictment properly alleged that the death was caused “by reason of that

intoxication.” The jury instructions also properly set forth this requirement. (CR, p. 164).

See, Daniel v. State, 577 S.W.2d 231 (Tex. Crim. App. 1979) (intoxication at the time of fatal

accident and proof by State or finding by jury that there was a death will not in that abstract

form support a conviction for involuntary manslaughter, and to convict, the death must be

the result of intoxication and proof must be made and submitted to the jury of that thing

which worked a causal connection between the intoxication and the death). See also, Badgett

v. State, 42 S.W.3d 136 (Tex. Crim. App. 2001).

In the case at bar, the evidence is legally insufficient to establish a causal connection

between the alleged intoxication and the death and serious bodily injury.

Even if the state’s evidence of the blood alcohol level is accepted, there is still no

connection made between that and the accident. In fact, the evidence shows that Adams was

not speeding and not driving recklessly. (RR 6, pp. 101-106, 121-122). The officer had a

motorist stopped on the side of the road at a dangerous location and there are a multitude of

reasons why this accident occurred that have nothing to do with any alleged intoxication.

First, the evidence showed that Adams suffers from a seizure disorder. (RR 9, pp. 70-

92). He was not aware of this at the time of the accident but learned it later. Evidence was

presented from the leading expert on epilepsy that established that Adams suffered a seizure


at the time of the accident. This is corroborated by the fact that the impact of the accident

and the deployment of the air bags did not awaken Adams. (RR 9, pp. 132-133). His car did

not skid or attempt to stop before the accident or even right after it. (RR 8, pp. 28-33). This

shows he was in a state of unconsciousness from the seizure. If he had been intoxicated and

fell asleep from the intoxication, the evidence shows he would have awakened at the point

of impact. (RR 9, pp. 132-133). Therefore, the evidence proves that the accident was the

result of a seizure at the time of the accident and not from intoxication.

Moreover, the evidence shows that Officer Medlin was standing partially outside the

safety area where he had the vehicle stopped. (RR 8, pp. 22, 132). Certainly, if he had been

in a completely safe place, then an oncoming vehicle would not have hit him.

In reviewing the sufficiency of the evidence, the court is required to view the evidence

in the light most favorable to the prosecution and determine if any rational trier of fact could

find the elements of the offense beyond a reasonable doubt. Chambers v. State, 711 S.W.2d

240, 245 (Tex. Crim. App. 1986); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781,

2879, 62 L.Ed.2d 560 (1979). The due process clauses of the U. S. and Texas Constitutions

protect a defendant against conviction “except upon proof beyond a reasonable doubt of

every fact necessary to constitute the crime with which he is charged.” In re Winship, 397

U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See also, Richardson v. State, 879 S.W.2d

874 (Tex. Crim. App. 1993).

Under Jackson and Chambers, supra, the appellate court must consider all of the

evidence presented at trial, even if it was contradicted by other evidence. The State is


required to affirmatively prove each element of the offense. Gold v. State, 736 S.W.2d 685

(Tex. Crim. App. 1987). If the evidence, when viewed in the light most favorable to the

verdict or judgment, gives equal or nearly equal support to the theories of innocence and

guilt, the evidence is insufficient. Clark v. Procunier, 755 F.2d 394, 396 (5th Cir. 1985).

Based on these reasons, the evidence is legally insufficient and a reversal and

judgment of acquittal should be entered. Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57

L.Ed.2d 15 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

Issue II

The evidence is factually insufficient to sustain the verdict.


The Texas Constitution grants the courts of appeals conclusive jurisdiction on all

questions of fact. Texas Constitution, Art. V, Sec. 6. The legislature has authorized the

courts of appeals to reverse a conviction “as well upon the law as upon the facts.” This court

is therefore authorized to review fact questions arising from the appeal of a criminal

conviction. Clewis v. State, 922 S.W.2d 126, 131-32 (Tex. Crim. App. 1996).

The proper standard of review for reviewing the factual sufficiency of the elements

of an offense is the one articulated by the Third Court of Appeals. Id. That standard requires

an appellate court to review.

“...all the evidence without the prism of ‘in the light most favorable to the

prosecution.’ Because the court is not bound to view the evidence in the light most

favorable to the prosecution, it may consider the testimony of the defense witnesses

and the existence of alternative hypotheses. The court [can] set aside the verdict only

if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong

and unjust.”


In Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004), the Court explained

that reversal for factual insufficiency is appropriate when 1) the evidence is so obviously

weak that a conviction is clearly wrong and manifestly unjust; or 2) based upon the contrary

evidence, the beyond-a-reasonable doubt burden of proof could not have been met.

See also, Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App., 2000) (on factual

sufficiency review, the appellate court reviews the evidence weighed by the jury that tends

to prove the existence of the elemental fact in dispute and compares it with the evidence that

tends to disprove that fact).

See also, Stone v. State, 823 S.W.2d 375, 831 (Tex. App. - Austin 1992, pet. ref’d

untimely filed); White v. State, 890 S.W.2d 131 (Tex. App. - Texarkana 1994, no. pet.)

(finding evidence factually insufficient); Johnson v. State, 978 S.W.2d 703 (Tex. App. -

Corpus Christi 1998).

In conducting a factual sufficiency review, this court may review the trial court’s

weighing of the evidence and may disagree with the trial court’s determination. Clewis v.

State, supra. See also, Gaffney v. State, 940 S.W.2d 682 (Tex. App. - Texarkana 1996, pet.

ref’d.) and Reina v. State, 940 S.W.2d 770 (Tex. App. - Austin 1997, pet. ref’d.); Burns v.

State, 958 S.W.2d 483 (Tex App. - Houston [1st Dist] 1997); Goodman v. State, 5 SW3d 891

(Tex. App. - Houston [14th Dist.] 1999); (all cases finding the evidence factually

insufficient).

In Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996), the court added the

following additional explanation of the manner of conducting factual sufficiency review:


“The factual sufficiency review process begins with the assumption that the evidence

is legally sufficient under the Jackson test. Clewis, 922 S.W.2d at 134. The appellate

court then considers all of the evidence in the record related to appellant’s sufficiency

challenge; not just the evidence weighed by the jury which tends to prove the

existence of the elemental fact in dispute, and compares it to the evidence which tends

to disprove that fact. See, e.g., Ellis County State Bank v. Keever, 915 S.W.2d 478,

479 (Tex. 1995); Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994).

The court is authorized to disagree with the jury’s determination, even if probative

evidence exists which supports the verdict. Clewis, 922 S.W.2d at 133; In re King’s

Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (Tex. 1951). (See Footnote 1.)

However, a factual sufficiency review must be appropriately deferential so as to avoid

the appellate court’s substituting its own judgment for that of the fact finder. Clewis,

922 S.W.2d at 133. The court’s evaluation should not substantially intrude upon the

jury’s role as the sole judge of the weight and credibility of witness testimony. See

e.g., Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986); Benoit v.

Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951); In re Thoma, 873 S.W.2d 477,

485 (1994). The appellate court maintains this deference to the jury’s findings, by

finding fault only when ‘the verdict is against the great weight of the evidence

presented at trial so as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 135.

(Emphasis in original.) Examples of such a wrong and unjust verdict include

instances in which the jury’s finding is ‘manifestly unjust’, ‘shocks the conscience’,

or ‘clearly demonstrates bias.’ Clewis, 922 S.W.2d at 135, citing Meraz v. State, 785

S.W.2d 146, 149 (Tex. Crim. App. 1990). We explained this limitation on factual

sufficiency analysis in Clewis.

Appellate courts should only exercise their fact jurisdiction to prevent a manifestly

unjust result. Those courts ‘are not free to reweigh the evidence and set aside a jury

verdict merely because the judges feel that a different result is more reasonable.’

Clewis, 922 S.W.2d at 135, quoting Pool, 715 S.W.2d at 634. Even if the reviewing

court does discover that the verdict is against the great weight of the evidence and will

return a manifestly unjust result, the court may not render or substitute its judgment

for that of the jury. Its only option is to vacate the conviction and remand the case for

a new trial. (See Footnote 2.)

(Footnote 1): We note that the Texas Supreme Court’s holdings in civil cases

such as In re King’s Estate, supra, are useful in explaining the proper

procedures to follow in conducting factual sufficiency analysis. Although

many prior Texas cases define the standard for factual sufficiency review in

different terms than we have used, these standards, as applied, are generally

identical in meaning to the standard we articulated in Clewis. Clewis, 922

S.W.2d at 134, no. 16.


(Footnote 2): Were the case to be reversed under the Jackson review process,

the appellate court would be required to render a judgment of acquittal; the

theory being that a determination that the evidence is legally insufficient

indicates that the case never should have been submitted to the jury.

In conducting a factual sufficiency review, the court “asks whether a neutral review

of all the evidence, both for and against the finding, demonstrates that the proof of guilt is

so obviously weak as to undermine confidence in the (fact finder’s) determination, or the

proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See

Johnson, supra.

The evidence in this case is factually insufficient. The verdict is contrary to the

overwhelming weight of the evidence and is clearly wrong and unjust.

As recognized in Zuniga, if the evidence is so obviously weak, a conviction may be

wrong and unjust. In this case, this standard is met. Even if the state’s evidence of the blood

alcohol level is accepted, there is still no connection made between that and the accident.

This causal connection must be proven beyond a reasonable doubt. In fact, the evidence

shows that Adams was not speeding and not driving recklessly. (RR 6, pp. 101-106, 121-

122). The officer had a motorist stopped on the side of the road at a dangerous location and

there are a multitude of reasons why this accident occurred that have nothing to do with any

alleged intoxication. The state’s evidence simply failed to prove this essential connection.

Secondly, as Zuniga stated, the contrary evidence may be strong enough that the

beyond-a-reasonable doubt standard cannot be met. Here, the evidence showed that Adams

suffered from a seizure disorder. (RR 9, pp. 70-92). He was not aware of this at the time of

the accident but learned it later. Evidence was presented from the leading expert on epilepsy


that established that Adams suffered a seizure at the time of the accident. This is

corroborated by the fact that the impact of the accident and the air bags deployment did not

awaken Adams. (RR 9, pp. 132-133). His car did not skid or attempt to stop before the

accident or even right after it. (RR 8, pp. 28-33). This shows he was in a state of

unconsciousness from the seizure. If he had been intoxicated and fell asleep from the

intoxication, the evidence shows he would have awakened at the point of impact. (RR 9, pp.

132-133). Therefore, the evidence established that the accident was the result of a seizure

at the time of the accident and not from intoxication. The evidence concerning the seizure

disorder and the medical evidence that he had a seizure at the time of the accident is so strong

that the guilty verdict is manifestly unjust.

Moreover, the evidence shows that Officer Medlin was standing partially outside the

safety area where he had the vehicle stopped. (RR 8, pp. 22, 132). Certainly, if he had been

in a completely safe place, then an oncoming vehicle would not have hit him. This further

shows the unjustness of the verdict.

Based on this, Appellant submits that the evidence is factually insufficient.

Issue III

The trial court erred in failing to suppress the blood alcohol test. (CR, p. 34).


Prior to trial, the court heard evidence on the defendant’s Motion to Suppress Blood

Alcohol Concentration Tests. (RR 3, pp. 71-80; 81-110; RR 4, pp. 103-120, 173-176). The

motion was overruled. (RR 5, p. 5).


In Badgett v. State, 42 S.W.3d 136 (Tex. Crim. App. 2001), the Court addressed the

requirements for invoking the mandatory blood specimen provision of Texas Transportation

Code §724.012(b). Under this provision, a mandatory specimen can be required only if all

of the requirements are met. §724.012(b) states:

“[a] peace officer shall require the taking of a specimen of the person’s breath

or blood if:

(1) the officer arrests the person for an offense under Chapter 49, Penal Code,

involving the operation of a motor vehicle or a watercraft;

(2) the person was the operator of a motor vehicle or a watercraft involved in

an accident that the officer reasonably believes occurred as a result of the

offense:

(3) at the time of the arrest the officer reasonably believes that a person has

died or will die as a direct result of the accident; and

(4) the person refuses the officer’s request to submit to the taking of a

specimen voluntarily.” (Emphasis added).

Section 724.013 provides that: “[e]xcept as provided by Section 724.012(b),

a specimen may not be taken if a person refuses to submit to the taking of a

specimen designated by a peace officer.”

Badgett emphasized that the officer must reasonably believe that the accident occurred

as a result of the offense, meaning the intoxication offense. The Court stated:

“. . . the plain language of the statute indicating that the officer’s “reasonable

belief” that the accident occurred as a result of the offense must be based on

something more than the mere fact of the accident and the officer’s arrest of

the defendant for an intoxicated offense. Therefore, we hold that such a belief

must be based upon specific and articulable facts of causation.”

In the case at bar, there are no specific and articulable facts of causation. The facts

available to the officer were that there was a tragic accident. He stated that he smelled

alcohol coming from Adams’ vehicle and body and observed red watery eyes. However, the

officer admitted that the smell of alcohol does not establish intoxication and that eyes can be


red and watery for any number of reasons. Moreover, even if there was legitimate suspicion

of intoxication there was no causation link with the accident. There was simply nothing more

here than what the Badgett court found insufficient; i.e., the accident and suspicion of

intoxication. For this reason, the mandatory blood specimen was drawn in violation of Texas

Transportation Code §724.012(b) and the trial court erred in failing to suppress this evidence.

See also, Art. 38.23, Tex. Code Crim. Proc.

Under Tex. R. App. P. 44, this error calls for reversal. The harm from this error is

clear. There is, in fact, insufficient evidence of intoxication without this blood test. Clearly,

Adams’ substantial rights were violated by the admission of illegally obtained evidence.

Moreover, it cannot be concluded, by any means, that the error was harmless and did not

contribute to the verdict. The admission of this inadmissable evidence largely made the

state’s case and therefore reversal is required.

Issue IV

The trial court erred in denying Adam’s requested jury instruction under Art. 38.23,

Tex. Code Crim. Proc. regarding probable cause for the draw of the mandatory blood



The trial court erred in denying Adam’s requested jury instruction under Art. 38.23,

Tex. Code Crim. Proc. regarding probable cause for the draw of the mandatory blood


At the guilt innocence phase of the trial, Adams made a request for a probable cause


charge under Art. 38.23(b), Tex. Code Crim. Proc. The requested charge was as follows:

“You are instructed that our law provides that a police officer may only require

a mandatory taking of a specimen of the person’s blood if the following factors

are met:

(1) the officer arrests the person for an offense under Chapter 49,

Penal Code, involving the operation of a motor vehicle or a

watercraft;

(2) the person was the operator of a motor vehicle or a watercraft

involved in an accident that the officer reasonably believes

occurred as a result of the offense;

(3) at the time of the arrest the officer reasonably believes that a

person has died or will die as a direct result of the accident; and

(4) the person refuses the officer’s request to submit to the taking of

a specimen voluntarily.

Therefore, if you believe from the evidence beyond a reasonable doubt

that the Euless Police officer

(1) arrested Roy Adams, Jr. for an offense under Chapter 49, Penal

Code, involving the operation of a motor vehicle or a watercraft;

(2) Roy Adam, Jr. was the operator of a motor vehicle or a

watercraft involved in an accident that the officer reasonably

believed occurred as a result of the offense;

(3) at the time of the arrest the officer reasonably believes that a

person has died or will die as a direct result of the accident; and

(4) the person refuses the officer’s request to submit to the taking of

a specimen voluntarily prior to the taking of the blood specimen

then you may consider evidence, if any, obtained therefrom.

However, if you do not believe the above factors were met beyond a

reasonable doubt, or if you have a reasonable doubt as to the truth of such

facts, then you will wholly disregard any evidence obtained as a result of the

blood specimen, and not consider such evidence for any purpose whatsoever.”

(CR, pp. 149-150).

The trial court refused to give the jury this charge. (CR, p. 160; RR 10, pp. 49-52).

Adams relied upon Art. 38.23, Tex Code Crim. Proc. as the basis for his requested

charge. Art. 38.23 provides the statutory support for the submission of this charge to the

jury. That Article states:

“No evidence obtained by an officer or other person in violation of any


provision of the Constitution or laws of the State of Texas, or of the

Constitution or laws of the United States of America, shall be admitted in

evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury

shall be instructed that if it believes, or has a reasonable doubt, that the

evidence was obtained by violation of the provisions of this Article, then and

in such event, the jury shall disregard any such evidence so obtained.”

In Murphy v. State, 640 S.W.2d 297 (Tex. Crim. App. 1982), in discussing Art. 38.23,

Tex. Code Crim. Proc., the court stated:

“The terms of the statute are mandatory, and when an issue of fact is

raised, a defendant has a statutory right to have the jury charged accordingly.

The only question is whether under the facts of a particular case an issue has

been raised by the evidence so as to require a jury instruction.”

See also, Miera v. State, 663 S.W.2d 508 (Tex. App. - Amarillo 1983);

Mitchell v. State, 632 S.W.2d 774 (Tex. App. - Houston [14th Dist.] 1982).

In Reynolds v. State, 848 S.W.2d 148 (Tex. Crim. App. 1993), the court reversed a

case for failure to instruct the jury under Art. 38.23 as to probable cause. In Reynolds, the

defendant was stopped by an officer for speeding and then determined to be intoxicated. The

officer testified that the defendant told him he did not think he was going “that fast” and was

going to contest the speeding ticket. The defendant’s brother, a passenger in the car, testified

that he did not think appellant had been speeding and that appellant did not think he had been

speeding. The court found that appellant was entitled to a charge under 38.23 and that a

properly instructed jury could have found the stop was invalid and found the sobriety test,

video and alcohol test to be inadmissible.

The evidence here clearly raised this issue. As discussed in Badgett v. State, 42

S.W.3d 136 (Tex. Crim. App. 2001), in order to be entitled to a mandatory blood draw under


Texas Transportation Code §724.012(b), the officer must have a reasonable belief that an

intoxication offense occurred, an accident happened, a person has died or will die as a result

of the accident and the accident occurred as a result of the intoxication offense. This belief

must be based upon specific and articulable facts of causation. Here, the officer testified that

he observed red, glassy eyes and smelled alcohol. He admitted these alleged signs of

intoxication were also consistent with other things. (RR 6, p. 195). Moreover, Adams

denied that he was intoxicated and said the drinks he had did not affect him. Contrary to the

testimony of the police, Adams said he did not tell anyone he had been drinking all day. (RR

9, p. 225). Adams specifically disputed the claim that he caused the death of the officer by

intoxication. (RR 9, p. 204). Additionally, Dr. Leroy said there were no signs of intoxication

on the video of Adams. (RR 9, p. 88) and the nurse who drew the blood also did not notice

any signs of intoxication. (RR 6, p. 193-97). Moreover, the officer gave no testimony

supporting causation between these alleged signs of intoxication and the accident.

Substantial evidence before the jury raised the question of whether the accident was caused

by Adams having a seizure. Certainly, there was a legitimate fact issue as to whether there

was an intoxication offense and whether the alleged intoxication caused the accident.

An accused is entitled to an instruction on every defense raised by the evidence,

regardless of whether such evidence is strong or weak, unimpeached or contradicted and

regardless of what the trial court may or may not think about the credibility of the evidence.

Hays v. State, 728 S.W.2d 804 (Tex. Crim. App. 1987). Here, there was certainly more than

a mere scintilla of evidence raising this issue and the trial court erred in denying the charge.


Clearly, Adams was harmed by this error. Under Almanza v. State, 686 S.W.2d 157

(Tex. Crim. App. 1984) if an error in a jury charge was the subject of a timely objection in

the trial court, then reversal is required if the error is “calculated to injure the rights of the

defendant.” Under Almanza, this means no more than that there must be some harm to the

accused from the error, see Art. 36.19, Tex. Code Crim. Proc.; Abdnor v. State, 871 S.W.2d

726 (Tex. Crim. App. 1994) (reversal applying Almanza analysis); Atkinson v. State, 923

S.W.2d 21 (Tex. Crim. App. 1996) (applying Almanza standard to errors under 38.23).

In the case at bar, if the jury had been properly instructed, they would have

disregarded the blood test. This would have severely undermined the state’s case. Clearly,

a properly instructed jury could have found Adams not guilty on a basis that the jury in this

case was not even allowed to consider. For these reasons, this error is clearly not harmless

and therefore reversal is required.

Issue V

The trial court erred in overruling Adams’ objection that the prosecutor’s cross-

examination question was shifting the burden of proof. (RR 9, p. 252).


During the prosecutor’s cross-examination of Adams at the guilt-innocence phase of

the trial, the following occurred:

“Q. So you had an opportunity on that videotape to show that you were fine,

to do the field sobriety tests --

MR. HOOVER: Your Honor, I’m going to object. This is an improper

shifting of the burden of proof. Mr. Adams neither now or today has the duty

to prove anything.

THE COURT: Overruled.


Q. (BY MR. ALPERT) You had an opportunity to show in that videotape

what your faculties were like and you refused, right?

A. Yes, sir.”

(RR 9, p. 252).

As Adams’ counsel states in his objection, this question shifted the burden of proof

to Adams to prove his innocence. An attempt to shift the burden of proof violates due

process under the U. S. and Texas Constitutions. Brown v. State, 122 S.W.3d 794 (Tex.

Crim. App. 2003); Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344

(1985). Both Brown and Franklin make clear that any attempt to shift the burden of proof

to a defendant on a critical element or fact of the offense is improper. The question of

intoxication is just such a critical element of the offense in the case at bar.

The burden of proof is placed on the state. Due process guarantees an accused be

protected “against conviction except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358,

364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Further, the presumption of innocence “lies at

the foundation of the administration of our criminal law.” Coffin v. United States, 156 U.S.

432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895), quoted in Deck v. Missouri, ___ U.S. ___, 125

S.Ct. 2007, 161 L.Ed.2d 953 (2005). The prosecutor’s question subverted this fundamental

concept and should not have been allowed.

As the record reveals constitutional error, this Court must reverse the judgment of

conviction, unless the Court determines beyond a reasonable doubt, that the error did not

contribute to the conviction. Tex. R. App. Proc. 44.2(a). See Chapman v. California, 386


U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Brooks v. State, 132 S.W.3d 702, 707-708

(Tex.App. -- Dallas 2004, pet. ref’d). In making a harmless-error determination under rule

44.2(a), the Court does not focus on the weight of other evidence of guilt. Montgomery v.

State, 821 S.W.2d 314, 317 (Tex.App. -- Dallas 1991, pet. ref'd) (citing Harris v. State, 790

S.W.2d 568, 587 (Tex.Crim.App. 1989) (en banc)); see Erazo v. State, 144 S.W.3d 487, 489-

92 (Tex.Crim.App. 2004). Rather, the Court determines whether the error might have

prejudiced a juror's decision making process. Montgomery, 821 S.W.2d at 317. Further, the

Court calculates, as much as possible, the probable impact on the jury in light of the existence

of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex.Crim.App. 2000), cert.

denied, 532 U.S. 944, 121 S.Ct. 1407, 149 L.Ed.2d 349 (2001).

In performing a harmless-error analysis under rule 44.2(a), the Court isolates the

effect of the error and determines how much weight a juror would probably place on the

error. Harris, 790 S.W.2d at 587. If the error was of such a magnitude that in reasonable

probability it disrupted the jury's orderly evaluation of all the evidence, no matter how

overwhelming other evidence of guilt might have been, then the conviction must be reversed.

Id. at 588. Unless the overwhelming evidence dissipates the error's effect on the jury's

function in determining the facts, so that it did not contribute to the verdict, the error is

harmful. Id. at 587. The Court asks if a reasonable probability exists that the error, either

alone or in context, moved the jury from a state of nonpersuasion to one of persuasion

beyond a reasonable doubt. Wesbrook, 29 S.W.3d at 119; Cardenas v. State, 971 S.W.2d

645, 651 (Tex.App. -- Dallas 1998, pet. ref'd). If so, the error is harmful. Wesbrook, 29


S.W.3d at 119; Harris, 790 S.W.2d at 587.

In the case at bar, the primary issue was whether Adams was intoxicated or whether

the accident was a result of other factors, such as a seizure. To tell the jury, with the trial

court’s stamp of approval, that Adams was required to prove his lack of intoxication by

submitting to the tests, went straight to the heart of the defense. Clearly, this affected the

jury’s decision-making process and it cannot be concluded beyond a reasonable doubt that

this error did not contribute to the conviction. For this reason, reversal is required.

Issue VI

The trial court improperly made a deadly weapon finding. (CR, pp. 194, 197).


The indictment in this case alleged that Adams,

“. . . did use a deadly weapon, to-wit: a motor vehicle, that in the manner of its

use and intended use was capable of causing death or serious bodily injury.”

(CR, p. 2).

The jury made a specific finding that Adams used or exhibited a deadly weapon. (CR,

p. 175).

Adams recognizes that the finding of a motor vehicle as a deadly weapon in a

manslaughter case has been upheld by the courts. Tyra v. State, 897 S.W.2d 796 (Tex. Crim.

App. 1995). Adams also recognizes that this Court is bound by the Court of Criminal

Appeals holding in Tyra. However, Adams would urge, for further review if necessary, that

Judge Clinton’s dissenting opinion in Tyra be reconsidered.

In Judge Clinton’s opinion, a deadly weapon finding in a vehicular manslaughter case


such as the case at bar is impermissible double dipping. As Judge Clinton stated:

“Thus using the motor vehicle is an essential element, the sine qua non of

involuntary manslaughter, it is not being ‘used in furtherance of any other

felony.’”

. . .

“Furthermore, for Appellant to drive his pickup with recklessness per se is to

engage in essential conduct elements of the involuntary manslaughter offense

itself, not purposefully to ‘use’ it concomitantly ‘during’ commission of the

offense.”

Under Judge Clinton’s view, in factual situations such as the case at bar, a deadly

weapon finding is inappropriate. Adams urges that this view be adopted and the deadly

weapon finding be eliminated from his case.

Issue VII

The trial court erred in overruling Adams’ objection to “retrograde extrapolation”

testimony offered by the state. (RR 7, pp. 83-84).


One element the state was required to prove in order to convict Adams was that

Adams was intoxicated at the time he operated a motor vehicle. In an effort to establish this

element of the offense, the state offered “retrograde extrapolation” testimony from Dr.

Angela Springfield, the chief toxicologist for the Tarrant County Medical Examiner’s Office.

(RR 7, p. 69). First, however, the state presented testimony from Beryl Landry, a toxicologist

with the Tarrant County Medical Examiner’s Office who tested a blood sample taken from

Adams. (RR 7, pp. 27, 30). The testing of that blood sample showed a blood alcohol content

of 0.11. (RR 7, p. 38; St. Ex. 189). Dr. Springfield was asked to extrapolate from that blood

test result back to the time Adams was driving in order to give the jury an estimate of Adams’


blood-alcohol content at the time of driving. (RR 7, p. 83). Specifically, the prosecutor

asked Dr. Springfield to tell the jury how much higher Adams’ blood-alcohol content could

be at the time of driving. (RR 7, p. 83). Adams’ attorney objected that the question called

for “speculation with the data provided to Dr. Springfield.” (RR 7, p. 83). The trial court

overruled that objection. (RR 7, p. 83). The prosecutor then told Dr. Springfield to answer

the question. (RR 7, p. 83). When Dr. Springfield began to answer by talking about

approximate rates of metabolism or clearance of alcohol in the body Adams’ attorney again

objected. (RR 7, pp. 83-84). That objection too was overruled. (RR 7, p. 84). Dr.

Springfield then testified as follows:

“A: We know that a person will clear alcohol from their system at a rate that

ranges between .015 grams percent per hour to as high as .022 grams

percent per hour. So an hour earlier with .015, this value .11 could

have been .12 at a lower edge or .13.

Q: But based on the hypothetical that I gave you, Dr. you think there’s any

possibility it could have been lower than .11 at 2:30?

A: Not from the information that you’ve given me.”

(RR 7, p. 84).

The hypothetical question referred to by the prosecutor in the colloquy quoted above

contained the following facts upon which Dr. Springfield based her answer:

1. A 185 pound male;

2. Driving a vehicle;

3. Who stops driving at 2:30 a.m.;

4. From whom blood is drawn at 3:30 a.m.;

5. Who stops drinking 2 to 3 hours before 2:30 a.m., and

5. Whose test results on the blood draw showed a blood-alcohol

concentration of .011.

(RR 7, pp. 80-81)


Adams’ objection that Dr. Springfield was speculating about Adams’ blood-alcohol

content at the time of driving should have been sustained because Dr. Springfield was not

given enough information in the prosecutor’s hypothetical on which to base her opinion.

The leading case concerning the admission of expert testimony applying the science

of retrograde extrapolation is Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001). In

determining the admissibility of retrograde extrapolation testimony, Mata requires the trial

court to consider the length of time between the offense and the administration of the test,

the number of tests given, the interval between each one, and the extent to which the

individual characteristics of the defendant were known to the testifying expert, such as the

person’s weight, gender, tolerance for alcohol, the amount of alcohol the person consumed,

what the person drank, the duration of the drinking, the time of the last alcoholic drink, and

how much and what the person had to eat before, during, or after the consumption of alcohol.

Id. at 917. Retrograde extrapolation testimony is not admissible when the expert does not

know many relevant, important personal characteristics of the defendant that are necessary

for reliable scientific testimony. Owens v. State, 135 S.W.3d 302, 307 (Tex. App. - Houston

[14th Dist.] 2004, no pet.). Absent knowledge of relevant, important personal characteristics,

all an expert is doing is speculating about the defendant’s blood-alcohol level at the time of

driving.

In this case, the hypothetical question given to Dr. Springfield did not contain any

information about Adams’ tolerance for alcohol, the amount of alcohol Adams consumed,

what Adams drank, the duration of Adams’ drinking, or what Adams ate. In addition, Dr.


Springfield’s opinion was based on only one test result. Further, Dr. Springfield testified on

cross-examination that she did not know what Adams was drinking, she did not know

Adams’ height, she did not know his medical condition, she did not know his body

composition, etc. (RR 4, pp. 92-93, 99-100). Dr. Springfield thus did not have enough

information on which to base her opinion. The trial court should therefore have sustained

Adams’ objection to Dr. Springfield speculating.

This error is clearly harmful under T. R. App. P. 44.2. Proof of intoxication at the

time of driving was an essential element of the offense. Proof of the blood test was not,

standing alone, sufficient to establish this element. It was necessary to prove that Adams was

intoxicated at the time of the accident. This improper extrapolation evidence purported to

establish this, but was, in fact, improperly admitted.

Issue VIII

The trial court erred in not holding a hearing on Adams’ Amended Motion for New

Trial and allowing it to be overruled by operation of law. (CR, pp. 213-262).


On September 21, 2005, Adams filed an Amended Motion for New Trial. (CR, pp.

213-262). In that motion, Adams complained that the state failed to disclose evidence that

at the time of the testing of the blood sample taken from Adams the toxicology laboratory of

the Tarrant County Medical Examiner’s Office did not meet certain standards established by

the American Society of Crime Laboratory Directors and the Texas Department of Public

Safety. (CR, p. 27). Adams did not learn of the deficiencies at the laboratory until after his


trial. (CR, p. 217). Adams attached copies of the inspection reports to his Amended Motion

for New Trial. (CR, pp. 220-261). Nevertheless, the trial court did not hold a hearing on

Adams’ Amended Motion for New Trial. Instead, the motion was overruled by operation of

law.

When a defendant presents a motion for new trial raising matters not determinable

from the record that could entitle the defendant to relief, the trial court abuses its discretion

in failing to hold a hearing. King v. State, 29 S.W.3d 556, 559 (Tex. Crim. App. 2000). The

hearing requirement provides an opportunity to develop the record for appellate review.

State v. Gonzalez, 855 S.W.2d 692, 695 (Tex. Crim. App. 1993).

In this case, Adams presented material to the trial court in the form of inspection

reports on the laboratory at the Tarrant County Medical Examiner’s Office that reflected the

suppression of material favorable evidence by the state. (See Issue X, infra). Adams would

certainly be entitled to a new trial if the state suppressed material, favorable evidence. The

trial court should have held a hearing in order to fully develop the appellate record on this

issue. Because the trial court did not do that, this court should abate this appeal and remand

this case to the trial court for a hearing on the Amended Motion for New Trial. See, Green

v. State, 754 S.W.2d 687, 688 (Tex. Crim. App. 1988).

Issue IX

The state violated Adams’ right to due process by failing to disclose exculpatory

evidence. (CR, pp. 213-262).



On September 21, 2005, Adams filed an Amended Motion for New Trial. (Cr, pp.

213-262). In that motion, Adams complained that the state failed to disclose evidence that

at the time of the testing of the blood sample taken from Adams the toxicology laboratory of

the Tarrant County Medical Examiner’s Office did not meet certain standards established by

the American Society of Crime Laboratory Directors and the Texas Department of Public

Safety. (CR, p. 217). Adams did not learn of the deficiencies of the laboratory until after his

trial. (CR, p. 217). Adams attached copies of the inspection reports to his Amended Motion

for New Trial. (CR, pp. 220-261).

Beryl Landry, a forensic toxicologist at the Tarrant County Medical Examiner’s

Office, testified at Adams’ trial that the laboratory is periodically subjected to proficiency

testing. (RR 7, p. 29). According to Landry, the lab did not have any problems with the

proficiency testing. (RR 7, p. 30). Similarly, Dr. Angela Springfield, the director of the lab,

testified that the lab was subjected to regular quality control reviews and that the lab always

performed satisfactorily on those reviews. (RR 7, pp. 74-75). The implication of the

testimony from Landry and Springfield was that the lab operated in a professional, proficient,

quality controlled manner. This, as it turns out, was not entirely true.

The inspection reports attached to the Amended Motion for New Trial reveal that the

lab, at the time of the testing, performed on the blood sample taken from Adams, was

deficient in the following manners:

A. The lab did not store evidence under proper seal. (CR, p. 225).


B. The lab did have a comprehensive quality manual regarding all elements of the quality

system of the lab. (CR, p. 225).

C. The lab did not routinely check the reliability of its reagents or the quality of the

standard samples and reagents. (CR, p. 226).

D. The lab did not generate all the notes, worksheets, photographs, spectra, printouts,

charts, and other data or records used by examiners to support their conclusions. (CR, p.

227).

E. The lab did not have, use, and document a system of technical review of its reports.

(CR, p. 227).

F. The lab did not conduct proficiency testing using re-examination or blind techniques.

(CR, p. 228).

G. Each examiner at the lab did not complete an annual proficiency test. (CR, p. 230).

H. The lab does not have adequate space available for instrumentation and/or equipment

to facilitate its operation. (CR, p. 236).

I. The lab did not limit access to the operational area of the lab nor did it have a lock

system. (CR, p. 237).

Landry and Springfield did not reveal any of these deficiencies in their testimony. Nor

did the prosecutor advise Adams’ attorneys of these deficiencies prior to trial so that they

could be used to cross-examine Landry and Springfield. Instead, the state, Landry, and

Springfield left the jury with the erroneous impression that the Tarrant County Medical

Examiner’s Office was run in a competent, professional, proficient manner. The jury was


not told of any of the numerous problems with the lab.

It can not be doubted that the inspection reports on the lab contain evidence favorable

to the defense. The suppression of those reports violates due process irrespective of the good

faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83 (1963). Adams is

entitled to a new trial on the basis of the suppression of exculpatory evidence because the

prosecution withheld or suppressed the evidence, the evidence was favorable to the defense,

and the evidence was material to Adams’ guilt. United States v. Bagley, 473 U.S. 667

(1985); see also Ex parte Kimes, 872 S.W.2d 700, 702-03 (Tex. Crim. App. 1993).

In Kyles v. Whitley, 515 U.S. 419 (1995), the Supreme Court discussed the showing

necessary to obtain a new trial when the prosecution withholds exculpatory evidence.

According to Kyles, a defendant is not required to demonstrate that the disclosure of the

evidence would have resulted in an acquittal. Rather, the question is whether, in the absence

of the evidence, the defendant received a fair trial, meaning a trial resulting in a verdict

worthy of confidence. Id. at 434.

See Thomas v. State, 841 S.W.2d 399 (Tex. Crim. App. 1992) (reversal for

suppression of exculpatory evidence that contradicted state’s witness); Ex parte Richardson,

70 S.W.3d 865 (Tex. Crim. App. 2002) (reversal of capital murder conviction based on

suppression of exculpatory evidence that would impeach state’s witness); Spicer v. Roxbury

Correctional Institution, 194 F.3d 547 (4th Cir. 1999) (suppression of inconsistent statement

by government to timely produce statement of prosecution witness when the statement at

issue differed from the witnesses trial testimony); United States v. Foster, 874 F.2d 491 (8th


Cir. 1988) (failure by prosecutor to correct false testimony).

The blood test results were a central piece of evidence against Adams. The problems

with the laboratory could have been used effectively by the defense to challenge the validity

of the test results. The failure to provide the defense with the inspection reports undermines

confidence in the verdict finding Adams guilty. Adams is entitled to a new trial because of

the suppression of this favorable evidence. The trial court therefore erred in not granting the

new trial on this basis.

Issue X

The trial court erred in overruling Adams’ objection that the repeated playing of a

videotape made by a camera in the complainant’s patrol car violated Tex. R. Evid. 403. (RR

8, pp. 103-108, 119, 120; RR 9, pp. 7-10).


Prior to the testimony of Grant Fredericks, Adams’ attorney objected to the proposed

playing of a videotape that was made by a camera in the complainant’s patrol vehicle,

multiple times, in slow motion, because the proposed playing of the videotape would violate

Tex. R. Evid. 403. (RR 8, pp. 103-108). Adams’ attorney pointed out that the evidence

would be cumulative, would inflame the jury, and would cause the jury to decide the case on

an emotional basis. (RR i, p. 105). The trial court overruled this objection and allowed

Adams a “running objection” to the playing of the videotape. (RR 8, p. 108).

Following the overruling of Adams’ objection to the repeated playing of the

videotape, the state called Grant Fredericks to the stand. (RR 8, p. 109). Fredericks is a


forensic video analyst who “enhanced” the video from the complainant’s patrol car. (RR 8,

pp. 109, 116-117; St. Ex. 193). During Fredericks’ testimony, the state played the video first

without any sound. (RR 8, p. 118). The state then played the video a second time with the

image clarified. (RR 8, p. 119). Prior to the second playing of the videotape, Adams

objected to the repeated playing of the videotape pursuant to Tex. R. Evid. 403. (RR 8, p.

119). That objection was again overruled. (RR 8, p. 119). The video was then played a third

time, over objection, in slow motion. (RR 8, p. 120). During this playing of the video, it was

constantly stopped and started for the jury. (RR 8, p. 121). Then Fredericks played the video

in continuous loops ten times. (RR 8, p. 121). Finally, Fredericks played the tape zooming

in and out of various scenes. (RR 8, p. 123). The video was played on two monitors for the

jury. (RR 9, p. 13).

Outside the presence of the jury, Adams’ attorneys presented testimony from Fred

Pendergraf, their private investigator and a former Fort Worth Police Officer, about his

observations of the jury during the repeated playing of the videotape. (RR 9, pp. 7-9).

Pendergraf described two women jurors as being red-faced, flushed and teary eyed during

the playing of the video. (RR 9, p. 10). Pendergraf said one of the women “jumped” during

the video. (RR 9, p. 10). Pendergraf testified the two women were emotionally impacted by

the video. (RR 9, p. 10). Pendergraf also described two men who kept their heads down

during the playing of the video. (RR 9, p. 10).

Texas Rule of Evidence 403 authorizes a trial court to exclude relevant evidence “if

its probative value is substantially outweighed by the danger of unfair prejudice, confusion


of the issues, or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.” Tex. R. Evid. 403. Once an objection is lodged

pursuant to Rule 403, a trial court must engage in a balancing process to determine whether

the probative value of the evidence is substantially outweighed by the danger of unfair

prejudice. Mozon v. State, 991 S.W.2d 841, 846 n. 6 (Tex. Crim. App. 1999).

A videotape is similar to a photograph. It is thus appropriate in evaluating the

admissibility of a videotape to consider the same kinds of factors that should be considered

in evaluating the admissibility of a photograph. Those factors include: the number of

exhibits offered, their gruesomeness, their detail, their size, whether they are in color or black

and white, whether they are close-up and whether the body depicted is clothed or naked.

Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002). A court should also note the

availability of other means of proof and the circumstances unique to each individual case.

Id. at 816. If the emotional and prejudicial aspects of a photo substantially outweigh the

helpful aspects, the photo is inadmissible. Erazo v. State, 144 S.W.3d 487, 491-92 (Tex.

Crim. App. 2004).

The videotape, St. Ex. 193, is a horrific depiction of the death of the complainant.

The repeated playing of the video, in slow motion, freeze-frame, etc. enhanced the emotional

aspects of the video and was designed to encourage the jury to render a decision on an

emotional basis. The video shows the impact of a vehicle on the body of the complainant and

the complainant flying through the air like a rag doll. Showing the video multiple times was

just the same as offering multiple gruesome photographs of the same scene. The state had


no need for that evidence to be offered numerous times. In fact, as Adams’ attorney pointed

out when objecting to the repeated playing of the video, the state had already offered into

evidence numerous items of physical evidence, photographs, diagrams, and extensive

testimony on the same issues on which the videotape was offered. (RR 8, pp. 103-104).

There was simply no reason for the state to show the videotape to the jury more than one

time.

The emotional and prejudicial aspects of the repeated playing of the video

substantially outweighed the helpful aspect of playing the video once. The trial court should

have balanced the probative value of playing the tape once against the prejudicial aspects of

playing it many times and should then have sustained Adams’ objection to playing the tape

multiple times. The trial court abused its discretion in overruling the 403 objection.

It is clear that Adams suffered substantial harm from this repeated playing of the

videotape. The emotional impact of the video was substantial and the jury was induced to

render a verdict on an emotional basis. There was strong support for the argument that

Adams was not intoxicated, but suffered a seizure at the time of the accident. He was

entitled to have the jury decide the case on the basis of logical, relevant evidence. The

manner in which this video was displayed to the jury destroyed any chance of a fair

consideration of all of the evidence in this case.


CONCLUSION

Based on the foregoing, Adams prays that his conviction and sentence be vacated or

that the appeal be abated and remanded to the trial court for a hearing on the Amended

Motion for a New Trial.

Respectfully submitted,

_____________________________GARY A. UDASHENBar Card No. 20369590

_____________________________ROBERT N. UDASHEN, P.C.

Bar Card No. 20369600

SORRELS, UDASHEN & ANTON

2301 Cedar Springs Road

Suite 400

Dallas, Texas 75201

214-468-8100

214-468-8104 (fax)

Attorneys for Appellant

CERTIFICATE OF SERVICE

On this ____________ day of _______________________, 2006, a true and correct

copy of Appellant’s Brief was mailed to the Tarrant County District Attorney’s Office, 401

W. Belknap Street, Fort Worth, Texas 76196.

___________________________________

GARY A. UDASHEN

oral argument requested in the court of appe als for the

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