Opinion
NO. 01-18-00281-CR
04-14-2020
Lauren OLSEN, Appellant v. The STATE of Texas, Appellee
A jury convicted appellant, Lauren Olsen, of driving while intoxicated with a child passenger. See TEX. PENAL CODE § 49.045. The trial court sentenced Olsen to one year in a state jail facility. In two issues on appeal, Olsen asserts that the trial court erred by denying her request for a jury instruction under Article 38.23 of the Texas Code of Criminal Procedure and by denying her motion for a new trial based on newly discovered evidence. We affirm.
Background
On a spring evening, Officer C. Brown with the City of Lewisville Police Department noticed a disabled vehicle stopped in a turn lane as he was patrolling South Valley Parkway. Brown parked behind Olsen's vehicle, which was still running, activated his lights, and approached the driver's side to offer assistance. He noticed Olsen talking on the phone. He also noticed two young children in car seats behind her.
While assessing the situation, Brown learned that Olsen had left a barbecue in Lewisville over an hour earlier but had only traveled two miles. Olsen told him that she was driving to her home in Sherman, but her car was pointed in the opposite direction. She said she was familiar with Lewisville as she had lived there before. Olsen then told Brown that her tires had blown out. He confirmed that two tires on the left side of her vehicle were flat. There was no other damage to the vehicle. When Brown inspected the tires, he noticed a ring of chalky white residue on them, which appeared to be marks from contact with the painted curb. The rubber pointed outward from the holes in the tires. Olsen got out of her car and bent down to inspect the tires. When Brown asked Olsen whether she had consumed alcohol at the barbecue, she denied it.
At trial, Brown testified that a few months after the initial arrest, he was summoned to a family hearing involving Olsen. At this hearing, Olsen testified under oath that she had consumed "three beers while [she] was at the party."
A tow truck driver arrived at the scene. The tow truck driver noticed the damage to Olsen's tires and told Brown that he believed that the car had forcefully hit the curb. The tow truck driver believed the car had hit the curb, rather than had its tires slashed, because the side walls of the tires were ripped, the rims had bent, and there was rubber debris on the curb where it appeared that Olsen's car had hit it.
What began as a community caretaking stop evolved into a criminal investigation. Brown began to suspect that Olsen was intoxicated, but he was not sure whether alcohol or another substance was the cause. He came to this conclusion based on the totality of the circumstances, including (1) Olsen was driving in the opposite direction of her stated destination; (2) she made other inconsistent statements about who she was talking to on the phone; (3) her eyes were red and watery; (4) her tires appeared to have white residue on them from hitting the curb; and (5) the tow truck driver told Brown that Olsen's tires were flat because she hit the curb.
Brown eventually conducted three field sobriety tests and concluded that Olsen's performance on all tests showed intoxication. Brown administered the horizontal gaze nystagmus test, and Olsen exhibited six clues of intoxication. After performing the walk-and-turn test, Olsen exhibited three clues of intoxication. Finally, Olsen performed the one-leg-stand test and exhibited two clues of intoxication. Brown then arrested Olsen for driving while intoxicated with child passengers.
Brown noticed that Olsen had a faint odor of alcohol on her after he concluded the DWI investigation and was placing her in the back seat of his patrol car. Brown asked Olsen if she would consent to a blood draw, and she orally agreed and later consented in writing. Brown then transported Olsen to a hospital and requested a qualified technician to draw her blood. The lab results revealed that Olsen's blood-alcohol concentration was above the legal limit at 0.135. A person is intoxicated if they have a blood-alcohol concentration of 0.08 or higher. See TEX. PENAL CODE § 49.01(2)(B).
After the close of evidence and based on Brown's testimony about the circumstances that gave him probable cause to arrest Olsen, Olsen requested the following exclusionary rule instruction under Article 38.23(a) :
If you believe, or have reasonable doubt, that the evidence was obtained in violation of the provisions of this Article [38.23], then and in such event, the jury shall disregard any such evidence so obtained. Specifically, if you believe that [Olsen] did not exhibit clues on the standardized field test consistent with intoxication according to the Standardized Field Sobriety Test, did not have bloodshot or watery eyes, did not have damage to her car consistent with impact caused by impairment, and was not confused about which person she called from the site of the arrest, or have a reasonable doubt thereof, you shall disregard the blood alcohol test results.
The trial court denied the requested jury instruction. The jury found Olsen guilty of the charged offense and sentenced her to one-year confinement in the Texas Department of Criminal Justice State Jail Division.
Olsen filed a motion for new trial based on newly discovered evidence. Specifically, Olsen discovered that the pipette used in analyzing her blood sample failed an external test and was taken out of use. The trial court held a hearing on the motion for new trial regarding the pipette's failure. N. Kumar, a forensic scientist at the Texas Department of Public Safety, testified as a designated expert about his testing of Olsen's blood sample. Kumar had also testified during Olsen's criminal trial. At the hearing on the motion for new trial, Kumar testified that he became aware that the pipette failed verification approximately three months before Olsen's trial. After the jury returned a guilty verdict, Kumar provided the District Attorney's Office with the failed verification log. The removal of the same amount of blood is necessary to treat all unknown samples the same as calibration samples. Accuracy means that the pipette removes the prescribed amount of liquid. Precision means removing the same amount of liquid every time, regardless of whether it is accurate. Precision is more important than accuracy, according to Kumar. Failure to remove the same amount of blood causes a significant variation in the test results. However, even if the accuracy of the pipette failed but the pipette was still precise, the results would still be the same because the unknown blood samples are being treated the same as the calibration samples. Kumar then confirmed that he had no reason to notify the trial court of any issues with the testing of Olsen's blood sample or the entire batch. Stated differently, Olsen's blood-alcohol concentration of 0.135—exceeding the legal limit in Texas—was unaffected by the results of the slight variation of the defective pipette testing.
A pipette is a mechanical device used to pick up samples of blood from a blood tube and place them in a vial when testing blood-alcohol concentration.
The trial court then questioned Kumar on how he would have known whether a pipette was malfunctioning. Kumar explained, "If there is any issue with the pipette or any issue with the testing in general, it would have been reflected in those known ethanol standards that are run throughout the entire batch." However, in the testing of Olsen's blood sample, the calibration curve did not show any glaring issues with the known ethanol standards.
B. Welch, a toxicology chemist at the Southwestern Institute of Forensic Science, also testified at the hearing on the motion for new trial. Welch did not testify at trial. Welch was responsible for retesting Olsen's blood sample for its alcohol concentration before the trial.
By explaining the verification procedure of the pipette, Welch stated that if a pipette subsequently failed a verification, the lab could still rely on internal standards and quality control measures that are contained within each batch tested to determine whether the pipette worked properly in testing the batch. In this case, Welch explained that there was a malfunction with the pipette months after Olsen's blood was tested, and, for this reason, the result of the trial would not change because the malfunction did not affect Olsen's blood test or the batch in which her blood was tested. Welch stated that issues with the retested batch would not be reported as problematic unless the results reflected a difference of more than 0.007 grams per milliliters. After Welch retested Olsen's blood sample, nothing indicated that there were any significant issues to report. In fact, when Welch conducted a separate examination of Olsen's blood sample, the results only reflected a difference of 0.006 grams per milliliters, which was within an acceptable tolerance for quality control.
After considering the evidence, the trial court denied the motion for new trial. Olsen appealed.
Claim of Jury-Charge Error
In her first issue, Olsen asserts that the trial court erred by failing to submit an instruction to the jury on illegally obtained evidence under Article 38.23. Olsen contends that an Article 38.23 instruction was required because Brown did not have probable cause to arrest her in light of the totality of circumstances. Therefore, Olsen argues the jury charge should have included the text of Article 38.23, an explanation of probable cause, and an instruction to disregard the blood-alcohol test results if the jury believed that Olsen did not exhibit certain signs of intoxication.
A. Standard of review
The trial court must provide the jury with a written charge "that accurately sets out the law applicable to the specific offense charged." Oursbourn v. State , 259 S.W.3d 159, 179 (Tex. Crim. App. 2008) ; TEX. CODE CRIM. PROC. art. 36.14. We review a claim of alleged charge error by determining whether the charge was erroneous, and if it was, we conduct a harm analysis. Celis v. State , 416 S.W.3d 419, 423 (Tex. Crim. App. 2013).
B. Trial court did not err by refusing the exclusionary rule instruction
Article 38.23 provides: "No evidence obtained by an officer ... in violation of any provisions 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 against the accused on the trial of any criminal case." TEX. CODE CRIM. PROC. art. 38.23(a). When an issue exists as to whether the evidence was obtained illegally, the jury must be instructed that "if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of [ Article 38.23 ], then ... the jury shall disregard such evidence so obtained." Id.
The trial court must issue an Article 38.23 instruction if the defendant establishes that: (1) the evidence heard by the jury raises an issue of fact; (2) the evidence on that fact is affirmatively contested; and (3) the contested factual issue is material to the lawfulness of the challenged conduct in obtaining the evidence. Madden v. State , 242 S.W.3d 504, 510 (Tex. Crim. App. 2007). The trial court must provide the jury with an Article 38.23 instruction when an issue of fact is raised as to each factor supporting probable cause. Id. To raise a fact issue, the facts relied upon to establish probable cause must be in controversy. Rose v. State , 470 S.W.2d 198, 200 (Tex. Crim. App. 1971) (explaining that a fact issue for probable cause can be raised by adducing testimony of other witnesses to controvert the testimony of the officers on each issue); Shpikula v. State , 68 S.W.3d 212, 217 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (affirming trial court's refusal to issue Article 38.23 instruction when appellant failed to raise an issue of disputed fact because "there was no evidence to controvert the deputies' testimony"). Simply raising the issue through cross-examination is insufficient to create a factual dispute for purposes of an Article 38.23(a) instruction, although the witness's answers to those questions might. Oursbourn , 259 S.W.3d at 177 ("This factual dispute can be raised only by affirmative evidence, not by mere cross-examination questions or argument."); Madden , 242 S.W.3d at 514 ("It is only the answers that are evidence and may create a dispute. Even the most vigorous cross-examination implying that Officer Lily is the Cretan Liar does not raise a disputed issue. There must be some affirmative evidence of "did not speed" in the record before there is a disputed fact issue.").
"The facts are in controversy if the issue of their validity is raised by the evidence." Ashley v. State , No. 13-01-00418-CR, 2002 WL 34230837, at *2 (Tex. App.—Corpus Christi June 27, 2002, no pet.) (mem. op., not designated for publication) (citing Jordan v. State , 562 S.W.2d 472, 472 (Tex. Crim. App. 1978) ); see also Madden , 242 S.W.3d at 511 ("The disputed fact must be an essential one in deciding the lawfulness of the challenged conduct."). That is, in the absence of conflicting testimony or evidence, the trial court does not err in omitting the instruction. See Lackey v. State , 638 S.W.2d 439, 454 (Tex. Crim. App. 1982) (en banc).
Probable cause to arrest a person for driving while intoxicated with a child passenger exists if the officer finds the arrestee in circumstances indicating that the arrestee committed the offense, even though the officer did not witness the arrestee driving a vehicle. State v. Rudd , 255 S.W.3d 293, 300 (Tex. App.—Waco 2008, pet. ref'd) (citing Dyar v. State , 125 S.W.3d 460, 468 (Tex. Crim. App. 2003) ). A warrantless arrest of a person for driving while intoxicated is valid as long as the officer had probable cause to arrest for public intoxication. Reynolds v. State , 902 S.W.2d 558, 560 (Tex. App.—Houston [1st Dist.] 1995, pet. ref'd) (citing Segura v. State , 826 S.W.2d 178, 185 (Tex. App.—Dallas 1992, pet. ref'd) ).
Brown's testimony revealed several factors supporting probable cause to believe Olsen was intoxicated: (1) Olsen's vehicle was pointed in the opposite direction of her destination; (2) Olsen had been driving for an hour but was only two miles from the barbecue; (3) she had bloodshot, watery eyes; (4) she was confused about who she called from the scene; (5) the damage to her tires was consistent with hitting the curb forcefully due to impairment; and (6) she exhibited clues of intoxication during field sobriety tests. Olsen asserts that she raised fact issues about probable cause to challenge the appearance of her eyes, her confusion about who she called, and the tire damage.
The purpose of the Article 38.23 instruction is to enable the jury to disregard unlawfully obtained evidence. See Dao v. State , 337 S.W.3d 927, 940 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd). In determining whether the trial court was required to submit an Article 38.23 instruction, we consider whether these disputed fact issues were material to the determination of whether Brown had probable cause to arrest Olsen for driving while intoxicated with a child passenger. See Madden , 242 S.W.3d at 510 ; Rocha v. State , No. 03-07-00579-CR, 2009 WL 1364347, at *7 (Tex. App.—Austin May 12, 2009, no pet.).
Probable cause for a warrantless arrest exists when the arresting officer possesses reasonably trustworthy information sufficient to warrant a reasonable belief that an offense has been committed. See Amador v. State , 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). Probable cause requires more than "bare suspicion" but "less than ... would justify ... conviction." Brinegar v. United States , 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). "The test for probable cause is an objective one, unrelated to the subjective beliefs of the arresting officer, and it requires a consideration of the totality of the circumstances facing the arresting officer." Amador , 275 S.W.3d at 878 (citing Maryland v. Pringle , 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) ).
Olsen alleges three instances where cross-examination revealed inconsistencies in Brown's testimony. First, Olsen contends that she raised a fact issue regarding the appearance of her eyes. At trial, Brown initially testified that Olsen's eyes were red and watery. On cross-examination, Brown conceded that there may have been a possibility that Olsen's eyes were red and watery due to the stressful situation.
Second, Olsen asserts that she raised a fact issue about her alleged confusion and inconsistent statements about her telephone call. One of the reasons Brown concluded that Olsen was intoxicated according to his testimony was that she provided inconsistent answers to questions about who she was talking to on the phone when he initially encountered her. Specifically, Olsen stated that she called one of her children's grandparents to come assist her and her children after her tires blew out but then seemed surprised when a grandparent showed up at the scene. On cross-examination, Olsen's counsel asked Brown to explain the inconsistencies of Olsen's statements that he attributed to her intoxication. Brown stated that he could not identify exactly who Olsen was talking to on the phone because she vaguely told him that she was speaking to one of her children's grandparents. Brown acknowledged that the children have two maternal grandparents and two paternal grandparents and testified that there was a possibility that she could have been speaking to one of four individuals. Brown later testified that Olsen appeared confused because she stated that "I don't know why she's here" and "I don't want her to be here" when her children's paternal grandmother arrived on the scene. At the conclusion of his explanation of Olsen's inconsistencies, Olsen's counsel asked Brown, "And you think that that's evidence of her intoxication and not because she's got two grandmothers?" Brown responded, "No."
Finally, Olsen argues that she raised a fact issue about the appearance and condition of her tires. Brown testified at length that he believed her flat tires were caused by her impairment. He came to this conclusion because the "white paint marks would be consistent with rubbing a curb." Despite this observation, neither Brown nor the tow truck driver took pictures of the tires and thus, no pictures were introduced into the record. Later in the trial, on cross-examination, Brown confirmed that Olsen told him that she had tire blowouts.
To prevail though, Olsen had to do more than raise fact issues as to three probable cause factors: she had to challenge all material facts. See Merriweather v. State , 501 S.W.2d 887, 891 (Tex. Crim. App. 1973) (holding that, when specific facts used by court to determine existence of probable cause were uncontested, defendant was not entitled to jury instruction concerning other facts—which were contested—that did not defeat finding of probable cause); see also Rocha , 2009 WL 1364347, at *7 (rejecting a disputed fact because it was "not ‘essential’ to the determination" of the issue of probable cause); 40 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure § 4.194 (2d ed. 2001) ("Jury submission, then, is only required when facts are raised that are necessarily determinative of the admissibility of the challenged evidence."). The probable cause facts that Olsen did not challenge are fatal to her claim.
On appeal, Olsen did not contest that she exhibited "clues on the standardized field test[s] consistent with intoxication." Her results on the horizontal gaze nystagmus test (HGN), the walk-and-turn test, and the one-leg stand test all were consistent with intoxication. Moreover, one of the field sobriety tests, the HGN, involves involuntary eye movement, thus it was unaffected by the officer's subjective perception of Olsen's physical and mental faculties. See, e.g., Kamen v. State , 305 S.W.3d 192, 194 (Tex. App.—Houston [1st Dist.] 2009, pet. ref'd).
Brown's statement at one point that Olsen appeared to have the normal use of her physical and mental faculties based on his observation of Olsen's condition does not contradict the clues of intoxication she showed on the standardized field sobriety tests. The dissent mistakenly equates Brown's subjective perception of Olsen's physical and mental faculties with her performance on the standardized field sobriety tests. Although subjective perceptions, such as whether a driver is stumbling or slurring her words, and standardized field sobriety tests can both help an officer determine whether someone has lost the normal use of their physical and mental faculties due to substance use, they are not the same thing.
Brown's subjective perception of Olsen's physical and mental faculties is not a fact supporting probable cause in this case. Olsen's performance on the standardized field sobriety tests that are administered throughout the United States, however, is a material fact supporting probable cause for Olsen's arrest. And it is one she did not contest at trial or on appeal. Because Olsen did not challenge the administration of any of the field sobriety tests or her performance on those tests, particularly the HGN, she failed to contest all facts material to the probable-cause determination. Compare Serrano v. State , 464 S.W.3d 1, 7 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (evidence raised a fact issue about whether the officer complied with the 15-minute observation requirement for breath test), with Rocha , 2009 WL 1364347, at *8 (appellant failed to present contradicting evidence to contest each fact supporting the officer's probable-cause determination); see also Rose , 470 S.W.2d at 200 (considering the totality of the circumstances and concluding that an Article 38.23 instruction was not required because appellant called no witnesses "to controvert the testimony of the officers."). Olsen's performance on the field sobriety tests alone supported probable cause to arrest her, see Alvarado v. State , 468 S.W.3d 211, 219 (Tex. App.—Houston [1st Dist.] 2015, no pet.), and was not contested.
The dissent's approach arbitrarily limits the probable cause factors to a subset of the totality of the circumstances. Instead, probable cause is objective, looking to the totality of the circumstances, not restricted by the subjective motivations of the officer. The Court does not assess probable cause facts in isolation, using a divide-and-conquer approach. See Minassian v. State , 490 S.W.3d 629, 639 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (finding probable cause based on totality of record despite argument that gas-station visits were consistent with innocent conduct). In addition to the standardized field sobriety test results, there were other facts Olsen did not challenge that supported probable cause, including that she drove an hour but had only traveled two miles from the barbecue and that she was headed away from Sherman, her stated destination, despite being familiar with Lewisville. Because Olsen failed to contest all facts material to the lawfulness of her arrest in this case, we conclude that Olsen has not raised a fact issue essential to the determination of probable cause. Therefore, the trial court did not err by denying Olsen's request to submit an Article 38.23 instruction to the jury. See Madden , 242 S.W.3d at 510 ; Rocha , 2009 WL 1364347, at *7. We overrule Olsen's first issue. Motion for New Trial
The dissent cites no case stating that the probable cause inquiry is limited to the facts subjectively relied upon by the officer, particularly where the officer lists several factors on direct examination, then in cross-examination lists one. The Court of Criminal Appeals decision in Middleton v. State , 125 S.W.3d 450 (Tex. Crim. App. 2003) (en banc), is not to the contrary. In Middleton , the issue was only whether the defendant stopped at a stop sign, not whether, over time, the defendant showed signs of intoxication that were confirmed by standardized field sobriety tests. Id. at 454. Indeed, the determination of probable cause is an objective one, analyzing whether the arrest was reasonable given the totality of the circumstances. See, e.g., Whren v. United States , 517 U.S. 806, 814, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).
In her second issue, Olsen contends that the trial court abused its discretion when it denied Olsen's motion for new trial. Olsen contends that a material fact—a defective pipette used in analyzing her blood sample—was not disclosed to her until after the trial. Olsen argues that if the trial court would have granted her motion for new trial, then "the jury would potentially have [had] the opportunity to hear from two separate blood evidence witnesses and consequently two separate toxicology screens, two separate practices of blood evidence testing, and two separate practices that are used in conducting verification and calibration testing." Stated differently, Olsen contends that she should be granted a new trial so that the jury could hear testimony from the witness who retested her blood but did not testify during the trial.
A. Standard of review
We review a trial court's decision to deny a motion for new trial by determining whether there has been an abuse of discretion. Wallace v. State , 106 S.W.3d 103, 108 (Tex. Crim. App. 2003) (en banc). A trial court abuses its discretion if its decision to deny the motion for new trial was arbitrary or unreasonable. Lewis v. State , 911 S.W.2d 1, 7 (Tex. Crim. App. 1995) (en banc). We view the evidence in the light most favorable to the trial court's ruling and will not overturn a trial court's decision to deny a motion for new trial unless "decision falls outside the zone of reasonable disagreement." Henley v. State , 493 S.W.3d 77, 83 (Tex. Crim. App. 2016). The trial court has broad discretion to evaluate the credibility of witnesses and weigh the evidence to determine whether the new evidence will bring about a different result in a new trial. Colyer v. State , 428 S.W.3d 117, 122 (Tex. Crim. App. 2014) ; Lewis , 911 S.W.2d at 7.
B. The trial court did not abuse its discretion by denying the motion for new trial
Article 40.001 of the Texas Code of Criminal Procedure governs new trials based on material evidence. This statute states, "A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." TEX. CODE CRIM. PROC. art. § 40.001. For a defendant to be entitled to a new trial based on newly discovered evidence, these four prongs must be satisfied:
(1) the newly discovered evidence was unknown or unavailable to the defendant at the time of trial;
(2) the defendant's failure to discover or obtain the new evidence was not due to the defendant's lack of due diligence;
(3) the new evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and
(4) the new evidence is probably true and will probably bring about a different result in a new trial.
State v. Arizmendi , 519 S.W.3d 143, 149 (Tex. Crim. App. 2017). Thus, the failure to establish one of these prongs would support the trial court's denial of the motion for new trial. It is undisputed that Olsen has established the first two prongs.
Olsen argues that she is entitled to a new trial under Article 40.001 of the Texas Code of Criminal Procedure and contends that the failed verification of the pipette used to extract Olsen's blood is not cumulative, collateral, or impeaching because Kumar—the State's designated expert who tested Olsen's blood—failed to disclose during the trial any issues related to the mechanical device, and thus Olsen argues that there is a reasonable probability that the result would have been different. Although the State acknowledges that Kumar notified the State of this defective device after the trial and the State immediately disclosed this information to Olsen, the State argues that the evidence was immaterial impeachment evidence that would not have changed the result.
Impeachment evidence is any evidence, including evidence that can be used to impeach the State's witnesses, that "disputes or contradicts other evidence." Ex parte Lalonde , 570 S.W.3d 716, 724 (Tex. Crim. App. 2019) (quoting Harm v. State , 183 S.W.3d 403, 408 (Tex. Crim. App. 2006) (en banc)). "[E]ven if the newly-discovered evidence impeaches a witness, the evidence may still warrant a new trial if it is ‘material and competent independent of its impeaching tendency.’ " Pinson v. State , No. 11-17-00003-CR, 2018 WL 6722294, at *7 (Tex. App.—Eastland Dec. 21, 2018, pet. ref'd) (mem. op., not designated for publication) (quoting Hale v. State , 121 Tex.Crim. 364, 51 S.W.2d 611, 613 (1932) ).
At the hearing on the motion for new trial, two witnesses testified about testing procedures and the acceptable standards for any variation of the results from those tests. The record reflects a difference between the initial test and the second test that was within the testing standard. Olsen argues that if the trial court would have granted her motion for new trial, then "the jury would potentially have [had] the opportunity to hear from two separate blood evidence witnesses and consequently two separate toxicology screens, two separate practices of blood evidence testing, and two separate practices that are used in conducting verification and calibration testing." While this is true, Olsen fails to show how providing this information would have resulted in a different verdict given that the difference in the testing of the defective pipette did not change the results of her blood-alcohol concentration of 0.135. The malfunction of the pipette occurred months after Olsen's blood was tested. Thus, the verification malfunction did not affect Olsen's blood test or the batch in which her blood was tested. We cannot conclude that the evidence regarding the minor variation in the verification and calibration testing of the defective pipette would have likely produced a different outcome, independent of its impeachment potential.
For these reasons, we conclude that the trial court could have reasonably determined that the strength of the State's case was such that the new evidence identified by Olsen, even if true, was not compelling enough to probably bring about a different result in a new trial. See Wallace , 106 S.W.3d at 108–09 (affirming trial court's denial of a motion for new trial because the new evidence, even if true, was not compelling enough to overcome the strength of the prosecution's case); see also Burdick v. State , 474 S.W.3d 17, 23 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding there was no reasonable probability that newly discovered evidence impeaching officer's history of professionalism would have changed jury's assessment of appellant's intoxication). Viewing the evidence in the light most favorable to the trial court's ruling, we hold that the trial court did not abuse its discretion by denying Olsen's motion for new trial. See Colyer , 428 S.W.3d at 122. We overrule Olsen's second issue.
Conclusion
Having overruled both of Olsen's issues on appeal, we affirm the trial court's judgment of conviction.
Justice Goodman, dissenting.
DISSENTING OPINION
Gordon Goodman, Justice, dissenting. Lauren Olsen contends that she was entitled to a jury instruction under article 38.23 of the Code of Criminal Procedure because the evidence raised disputed fact issues as to the lawfulness of her arrest for driving while intoxicated with a child passenger. See TEX. PENAL CODE § 49.045(a). She argues that the jury should have been instructed that if it resolved these disputed fact issues in her favor, it was then required to disregard the laboratory results of her post-arrest blood draw because this evidence was illegally obtained. The majority rejects Olsen's position, holding that Olsen did not introduce evidence controverting several factors on which the arresting officer relied in deciding that he had probable cause to arrest her for driving while intoxicated. In particular, the majority concludes that Olsen failed to present any evidence contradicting the arresting officer's testimony that she exhibited signs of intoxication during the field sobriety tests. Because the arresting officer's own testimony creates a disputed fact issue as to Olsen's performance on these tests and the arresting officer also testified that this was the sole basis for probable cause, I respectfully dissent.
Background
The arresting officer, C. Brown, testified about the circumstances of Olsen's arrest. While on patrol one evening, Officer Brown came upon a disabled sedan. The sedan was still running when Brown stopped to render aid. Brown testified that the sedan's hazard lights were not turned on, but he conceded that his report said otherwise.
Brown approached the driver's side window and got the driver's attention. The driver—Olsen—was on her cell phone when he approached. Once Brown had gotten Olsen's attention, she got out of the sedan.
Olsen told Brown that she was driving home to Sherman after attending a barbeque at a friend's home in Lewisville. Based on the sedan's location, Brown noted that Olsen had been traveling in the wrong direction.
Both tires on the driver's side of the sedan were flat. There were holes in the tires, and they bore a white circular marking consistent with "curb marks," which are made when tires in motion rub against a curb.
Brown initially testified that Olsen told him that she thought someone had slashed her tires. But Brown later conceded that his dashcam video showed that Olsen had said she had a blowout and that it was Brown who had said that it looked as though her tires had been slashed.
By the time a tow truck arrived to tow away Olsen's sedan, Brown had decided to investigate the possibility that Olsen was intoxicated. He testified that several circumstances made him suspicious:
• Olsen was traveling in the wrong direction to reach her stated destination;
• Olsen was inconsistent as to the identity of the person with whom she was speaking on her cell phone; and
• the curb marks on the sedan's tires.
Brown conceded, however, that he did not think the condition of the tires was itself evidence of intoxication. He also testified that he did not know with whom Olsen had been speaking on her cell phone and that Olsen had merely told him that she was speaking with one of the children's grandparents without specifying which particular grandparent. Given his limited knowledge and understanding of the cell phone conversation, Brown conceded that Olsen's apparent inconsistency as to the identity of the person with whom she was speaking was not necessarily evidence of intoxication.
Brown asked Olsen if she had been drinking. She told him that she had not. Brown later learned that Olsen's representation was untruthful, but he only learned that she had been untruthful at a family-court hearing held a few months after he arrested her. At that hearing, Olsen admitted that she had drunk three beers while at the barbeque.
According to Brown, Olsen did not show any signs of intoxication when she got out of the sedan or while they examined its tires. Nor did Brown notice an odor of alcohol on Olsen until after he had concluded his investigation. Brown testified that he smelled a faint odor of alcohol on Olsen once he had put her in his patrol car after her arrest. But he agreed that he did not record this in his report. His report states the opposite—that Olsen did not have an odor of alcohol.
Brown administered three standardized sobriety tests: the horizontal-gaze-nystagmus test, the walk-and-turn test, and the one-leg-stand test. He concluded that all three tests indicated that Olsen was intoxicated. At one point during his testimony, Brown agreed that when he arrested Olsen, he had no reason to think that she had been drinking other than her performance on the field sobriety tests.
But Brown's testimony about the field sobriety tests was inconsistent. He agreed that Olsen's attention may have been divided during the tests, as her ex-husband's mother, with whom she had a hostile relationship, had arrived on the scene and began recording Olsen. Brown also conceded during cross-examination that Olsen's physical faculties were good or at least normal during the field sobriety tests. As to her mental faculties, he identified a single deficiency—namely, that she did not follow instructions. But Brown acknowledged that her failure to do so may have resulted from the stress of the situation rather than intoxication. He did not think a failure to follow instructions meant that a person was intoxicated. In general, Brown said that nothing was wrong with Olsen's mental faculties. On redirect, Brown clarified that he did conclude that Olsen had lost the normal use of her physical and mental faculties. He stated that his prior contrary testimony resulted from him misunderstanding defense counsel's questions.
Before Brown arrested Olsen, Olsen gave him her cell phone so that Brown could speak to her grandmother (rather than one of her children's grandmothers). Olsen's grandmother testified at trial that during their conversation Brown told her that Olsen had passed the field sobriety tests. Brown could not recall whether he had told Olsen's grandmother that Olsen had passed the tests. More generally, Brown testified that the field sobriety tests are not "pass/fail" in nature and that their outcome depends on "clues" that he observes while he administers the tests.
Despite Brown's testimony that Olsen did not show any physical signs of intoxication, he also stated in his report that Olsen's eyes were red and watery. His report also noted that she swayed and was a little unsteady.
Based on his investigation, Brown arrested Olsen. He requested a blood draw. See TEX. TRANSP. CODE §§ 724.012(b)(2), 724.013 (peace officer shall require breath or blood sample when he arrests person for offense of driving while intoxicated with child passenger and person arrested for this offense cannot decline to provide sample). The laboratory results from the blood draw showed that Olsen had an alcohol concentration of 0.135.
Applicable Law
Driving While Intoxicated with a Child Passenger
A person is guilty of driving while intoxicated with a child passenger if she operates a motor vehicle in a public place while intoxicated and a child who is less than 15 years old is in the vehicle. TEX. PENAL CODE § 49.045(a). A person is intoxicated if alcohol use has deprived her of the normal use of her physical or mental faculties or she has an alcohol concentration of 0.08 or more. Id. § 49.01(2).
Probable Cause to Arrest
A peace officer may arrest without a warrant a person who is found in a suspicious place and under circumstances that reasonably show that she has been guilty of a felony or a breach of the peace. TEX. CODE CRIM. PROC. art. 14.03(a)(1). Driving while intoxicated with a child passenger is a state jail felony. TEX. PENAL CODE § 49.045(b). Driving while intoxicated also is a breach of the peace. LeCourias v. State , 341 S.W.3d 483, 489 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
There is probable cause for a warrantless arrest if the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information suffice to justify a reasonable belief that the person arrested committed the offense. Amador v. State , 275 S.W.3d 872, 878 (Tex. Crim. App. 2009) ; Perez v. State , 464 S.W.3d 34, 40–41 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd). This standard requires a showing of more than a bare suspicion but less than is necessary to support a conviction. Amador , 275 S.W.3d at 878 ; Perez , 464 S.W.3d at 41. The standard is an objective one, unrelated to the subjective beliefs of the arresting officer, and requires consideration of the totality of the circumstances facing the officer. Amador , 275 S.W.3d at 878 ; Perez , 464 S.W.3d at 41. This means that an arresting officer's state of mind—except for the facts that he knows at the time of the arrest—is irrelevant to the existence of probable cause. State v. Duran , 396 S.W.3d 563, 570 n.17 (Tex. Crim. App. 2013). Thus, any facts the officer learns about after the arrest are irrelevant as to whether probable cause existed at the time of the arrest. Torres v. State , 868 S.W.2d 798, 801 (Tex. Crim. App. 1993).
Jury Instruction as to Illegally Obtained Evidence
If the evidence raises a fact issue as to whether evidence was illegally obtained, the trial court must instruct the jury to disregard this evidence if the jury believes, or has a reasonable doubt, that the evidence was illegally obtained. TEX. CODE CRIM. PROC. art. 38.23(a). A defendant is entitled to this instruction if she shows that the evidence raises an issue of fact; the evidence as to this fact is affirmatively disputed; and the dispute is material to the lawfulness of the challenged conduct. Oursbourn v. State , 259 S.W.3d 159, 177 (Tex. Crim. App. 2008). If these requisites are satisfied, the instruction is mandatory. Robinson v. State , 377 S.W.3d 712, 719 (Tex. Crim. App. 2012). Evidence creating a disputed issue of material fact may come from any source, and the jury instruction is required no matter whether the evidence creating the disputed issue of material fact is strong, weak, contradicted, unimpeached, or unbelievable. Id. A single witness may create a disputed issue of material fact by providing inconsistent testimony on direct and cross-examination. Madden v. State , 242 S.W.3d 504, 513–16 (Tex. Crim. App. 2007) ; Totten v. State , 570 S.W.3d 387, 390 (Tex. App.—Houston [1st Dist.] 2019, no pet.). For example, inconsistencies in a peace officer's testimony as to the facts supporting probable cause may require an instruction as to whether evidence was illegally obtained. See, e.g., Mills v. State , 296 S.W.3d 843, 846–49 (Tex. App.—Austin 2009, pet. ref'd) (officer's inconsistent testimony created fact issue requiring instruction relating to reasonable suspicion to make traffic stop). When a disputed issue of material fact exists, it is the jury's prerogative to assess the credibility of the witnesses and weigh the evidence; neither the trial court nor this court may do so. Hanks v. State , 137 S.W.3d 668, 671–72 (Tex. Crim. App. 2004).
Analysis
An Article 38.23 Instruction Was Required
The majority concludes that Olsen was not entitled to an article 38.23 instruction as to the lawfulness of her arrest because she did not present evidence contradicting Brown's testimony that her performance on the field sobriety tests established probable cause or his testimony as to other circumstances that he relied on in deciding that he had probable cause. But Brown's testimony, standing alone, was so inconsistent on these subjects that it creates disputed issues of material fact as to the lawfulness of Olsen's arrest requiring a jury instruction under article 38.23.
Though Brown testified that Olsen showed signs of intoxication during all three tests, he also stated on cross-examination that her physical faculties were good or normal during the tests. Consider the following exchanges:
Q. You have to admit, her physical faculties were pretty darn good.
A. Correct.
* * *
Q. And so—but you say that her physical faculties look normal if not better than normal?
A. I said, look normal.
Similarly, Brown indicated that Olsen retained the normal use of her mental faculties. During one exchange, he said there was nothing wrong with them:
Q. There's two components, physical and mental. You said her physical was good, it was fine. That only leaves mental. So what was wrong with her mental faculties based on the test?
A. Nothing was wrong with the mental faculties.
Ultimately, the lone deficiency he later testified to with respect to Olsen's mental faculties was her failure to follow his instructions. In his testimony, Brown identified a single failure to follow an instruction:
Q. That's what she did wrong when she didn't follow instructions. Instead of taking a series of small steps, she spun around, and you agree pretty well, to head back the other way?
A. Correct.
But he conceded that one might fail to follow instructions for reasons other than intoxication. As to Olsen, Brown agreed that her failure to follow his instruction may have resulted from the stress of the situation.
On redirect, Brown explained that his inconsistent testimony resulted from confusion; he said that he had misunderstood defense counsel's questions. But Brown's explanation of his inconsistent testimony does not erase these inconsistencies from the record for purposes of deciding whether there is a disputed issue of material fact that requires an article 38.23 instruction. See Robinson , 377 S.W.3d at 719 (evidence creates fact dispute regardless whether it is weak, contradicted, or unbelievable). Brown's explanation of his inconsistent testimony created a credibility issue, which was for the jury to resolve; neither the trial court nor this court may weigh the credibility of his explanation. See Hanks , 137 S.W.3d at 671–72. Article 38.23(a) required the jury to resolve the factual dispute created by Brown's inconsistent testimony as to whether Olsen's performance of the field sobriety tests showed that her physical or mental faculties were impaired.
The majority contends that there is not a disputed fact issue because "Olsen did not contest that she exhibited ‘clues’ " of intoxication on the standardized field tests. That's incorrect. During cross-examination, defense counsel elicited testimony from Brown that Olsen had the normal use of her physical and mental faculties during the field tests. The majority's holding thus rests on a purported distinction between evidence as to whether Olsen had the normal use of her faculties and evidence as to whether she showed signs of intoxication.
Brown's concession that he failed to observe any impairment of Olsen's physical or mental faculties, however, is evidence contradicting his testimony that she exhibited clues of intoxication. See TEX. PENAL CODE § 49.01(2) (defining "intoxicated" in relevant part as "not having the normal use of mental or physical faculties"). To say that Olsen appeared to have the normal use of her physical and mental faculties is to say that she did not appear to be intoxicated. See id. Brown testified that when he used the term "intoxicated," he meant that "a person has lost his or her normal use of their mental and physical faculties." As Brown further testified, the purpose of the "field sobriety tests" is "to assist officers in detecting intoxicated drivers." The tests achieve this purpose by evaluating a motorist's physical and mental faculties. See Gassaway v. State , 957 S.W.2d 48, 51 (Tex. Crim. App. 1997) ; Oguntope v. State , 177 S.W.3d 435, 437 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Brown explained that when a person exhibits a certain number of predefined clues during a field sobriety test, this shows that "the subject is intoxicated and has lost the normal use of his or her mental and physical faculties." The majority's apparent distinction between Brown's testimony about Olsen's physical and mental faculties during the field sobriety tests on the one hand and his testimony about signs of intoxication she displayed during the tests on the other therefore has no basis in law or fact.
The Texas Supreme Court transferred this appeal from the Court of Appeals for the Second District of Texas. See Tex. Gov't Code § 73.001 (authorizing transfer of cases between courts of appeals).
The majority concludes that this is not enough to create a fact dispute requiring an article 38.23 instruction. The majority maintains that Olsen instead had to introduce evidence directly disputing the particular clues of intoxication that Brown said Olsen exhibited during the field sobriety tests. The majority does not cite a single decision that stands for this proposition. Nor have I found a decision that does so. The majority's holding in this regard is contrary to the law, which recognizes that facts need not be proved by direct evidence and that circumstantial evidence and logical inferences that may be drawn from circumstantial evidence are equally probative. See Hooper v. State , 214 S.W.3d 9, 14–15 (Tex. Crim. App. 2007). Based on Brown's testimony that Olsen had the normal use of her faculties during the field sobriety tests, a jury could reasonably infer that she did not exhibit sufficient clues of intoxication during these tests to warrant an arrest. A jury need not draw this inference, but it could reasonably do so based on the evidence. Article 38.23 commits the resolution of conflicts in the evidence like this one to the jury. See TEX. CODE CRIM. PROC. art. 38.23(a) ; Robinson , 377 S.W.3d at 719.
Similarly, Olsen's grandmother testified that Brown told her that Olsen had passed the field sobriety tests. A reasonable jury likewise could infer from the grandmother's testimony that Brown did not observe sufficient clues of intoxication to make an arrest. Thus, even if one disregards Brown's own inconsistent testimony and the inferences that a jury could reasonably draw from these inconsistencies, Olsen did in fact offer affirmative evidence disputing the results of the field tests.
The majority further contends that Olsen did not contest other material facts—her direction of travel and the distance that she had traveled—that support probable cause for arrest. According to the majority, Olsen's failure to contest these other material facts defeats her entitlement to an article 38.23 instruction. See Madden , 242 S.W.3d at 510 (defendant is not entitled to instruction "if other facts, not in dispute, are sufficient to support the lawfulness of the challenged conduct").
But the majority's reliance on these other facts is fatally flawed. The existence of undisputed facts disentitles a defendant to an article 38.23 instruction if and only if these undisputed facts are sufficient to support the lawfulness of the challenged conduct. See id. The majority does not contend that Olsen's direction of travel and the distance she traveled, standing alone, are sufficient to justify her arrest. Nor could the majority do so, as probable cause cannot be based solely on facts that are as consistent with innocent activity as criminal activity. Torres , 868 S.W.2d at 802–03. The majority argues that we must take these other facts into account in our analysis because the existence of probable cause depends on the totality of the circumstances. But the question before us on appeal is not whether probable cause existed. The question is whether there was a disputed fact issue material to whether Brown had probable cause to arrest Olsen for driving while intoxicated when he did so.
Once again, the majority ignores Brown's key testimony. Brown agreed while being questioned by defense counsel that he did not have any factual basis to think that Olsen had been drinking other than her performance on the field sobriety tests. Olsen's performance, he testified, was the sole fact supporting his decision to arrest her:
Q. All right. And you understand that, well, not just in Texas, but in the United States, you have to have probable cause to arrest somebody for an offense?
A. Correct.
Q. And you would agree that probable cause is defined as specific and articulable facts that would cause a reasonable person to believe that an offense had been committed?
A. Correct.
Q. And this particular situation it was DWI, by alcohol. You've already testified that drugs had absolutely nothing to do with the case, correct?
A. Correct.
Q. All right. And so you—when you arrested her for DWI by reason of introduction of alcohol into the body, you would agree that she hadn't admitted to consuming any alcohol, correct?
A. Correct.
Q. You hadn't smelled any alcohol, correct?
A. Correct.
Q. Officer Hart hadn't smelled any alcohol, correct?
A. Correct.
Q. So when you made that decision to arrest Ms. Olsen for DWI by alcohol, you had no reason to think that she had been drinking, other than the performance on the standardized field sobriety tests, correct?
A. Correct.
Because Brown conceded at one point that the lone factual basis he had for arresting Olsen was her performance on the sobriety tests, Olsen did not have to contest any facts other than whether those tests indicated that she'd lost the normal use of her physical or mental faculties in order to be entitled to an article 38.23 instruction. See, e.g., Middleton v. State , 125 S.W.3d 450, 454 (Tex. Crim. App. 2003) (instruction given by trial court where officer did not rely on multitude of factors to come to his conclusion as to probable cause and sole basis was subject to factual dispute).
In a footnote, the majority suggests that Brown's inconsistencies, including his concession that he had no reason to think Olsen was drunk other than her performance on the field sobriety tests, are of no moment because the standard for determining probable cause is an objective, rather than a subjective, one. This suggestion, however, lays bare the majority's error. I do not disagree that it is the objective facts in existence at the time of the arrest and not the subjective conclusions that Brown drew from these facts that we must scrutinize to determine the existence of probable cause. The problem is that we don't know what objective facts were in existence because Brown repeatedly contradicted himself. His inconsistencies as to the facts are the reason that an article 38.23 instruction was required. When there are factual disputes of this nature, a jury—not the trial court nor this court—must resolve them, which it can do only if it receives the required instruction raising the issue for it to decide. See TEX. CODE CRIM. PROC. art. 38.23(a) ; Robinson , 377 S.W.3d at 719. Without acknowledging that it has done so, the majority has erroneously acted as factfinder and credited the version of the facts most favorable to the prosecution.
The majority justifies its approach to this case by reasoning that Brown's testimony that Olsen exhibited the normal use of her faculties during the sobriety tests does not conflict with his testimony that she displayed clues of intoxication during these tests because the former is merely Brown's subjective perception whereas the latter are objective facts. But the clues of intoxication that Brown said he saw are no less dependent on his subjective perception than his factual observations about Olsen's physical and mental faculties. The majority's argument to the contrary conceives of a peace officer's testimony about clues of intoxication observed during a field sobriety test as a special category of objective evidence distinct from all other testimonial evidence bearing on intoxication, such as stumbling or slurred speech. This is at odds with Texas law, which recognizes that proof of intoxication by means of an officer's testimony about field sobriety tests is subjective in that it turns on the officer's subjective perception of the defendant's performance. See Crenshaw v. State , 378 S.W.3d 460, 466 (Tex. Crim. App. 2012) (DWI statute defines intoxication in two ways, one of which is "subjective definition" of not having normal use of one's faculties); Bagheri v. State , 119 S.W.3d 755, 764 (Tex. Crim. App. 2003) (agreeing that officer's testimony about defendant's apparent intoxication and poor performance on sobriety tests was "somewhat subjective"); Veliz v. State , 474 S.W.3d 354, 367 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd) (taking into account "subjective nature of field sobriety tests" in assessing whether error affected defendant's substantial rights); Hartman v. State , 144 S.W.3d 568, 574 (Tex. App.—Austin 2004, no pet.) (officer did not act unreasonably in detaining defendant longer to obtain video camera "to add a degree of certainty to the otherwise highly subjective field sobriety tests performed").
In sum, Brown testified that his decision to arrest Olsen was based on her performance on the field sobriety tests and Brown's own inconsistent testimony about Olsen's performance on the field sobriety tests and whether she had the normal use of her physical and mental faculties suffices to create a genuine issue of material fact requiring the article 38.23 instruction. See id. at 513–16 (contradictions in single witness's testimony can create disputed fact issue); Totten , 570 S.W.3d at 390 (same); see e.g., Mills , 296 S.W.3d at 846–49 (officer's inconsistent testimony as to whether he could see if defendant had signaled turn required instruction relating to whether ensuing traffic stop was unlawful).
The Trial Court's Error Was Not Harmless
A trial court's erroneous failure to include an article 38.23 instruction in the jury charge is reversible if it causes some harm. Atkinson v. State , 923 S.W.2d 21, 27 (Tex. Crim. App. 1996), abrogated on other grounds by Motilla v. State , 78 S.W.3d 352 (Tex. Crim. App. 2002). Under this standard, when the error was properly preserved for review, we must reverse unless the error was harmless. Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g). In deciding whether there was some harm, we consider the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information in the record. Id. Intoxication is an essential element of the offense. TEX. PENAL CODE § 49.045(a). In accord with the statutory definition of that term, the state may prove intoxication by several means: by proof that the person was deprived of the normal use of her physical faculties, the person was deprived of the normal use of her mental faculties, or the person had an alcohol concentration of 0.08 or more. Id. § 49.01(2) ; Bagheri , 119 S.W.3d at 762. The charge defined the term in accord with its statutory definition and asked the jury to answer a single broad-form question as to Olsen's guilt or innocence without differentiating between the three alternative means of proving intoxication.
The Court of Criminal Appeals has more recently reaffirmed that this is the correct harm standard to apply under these circumstances. See Vogel v. State , No. PD-0873-13, 2014 WL 5394605, at *4 (Tex. Crim. App. Sept. 17, 2014).
The evidence at trial as to Olsen's physical and mental faculties was hotly contested. The testimony of Officer Brown, the key witness on this subject, was inconsistent in many respects, including as to whether the field sobriety tests showed that Olsen had lost the normal use of her faculties. The laboratory results of Olsen's blood draw—the evidence she contends the jury should have been instructed to disregard if it found it was illegally obtained—thus assumed special significance.
The state's closing argument underscores the special significance that Olsen's blood draw assumed at trial. Early in its closing, the state emphasized that the jury need not agree as to the particular proof of Olsen's intoxication. It argued:
I want to remind you, you don't have to agree on the method, remember? You four can agree that she lost the normal use of her physical faculties. You four can believe that it was her mental faculties, and you four can believe the number, or any way you want to.
The state further argued that the blood draw proved that Officer Brown was correct in his assessment that Olsen was deprived of the normal use of her physical or mental faculties: "And it's all confirmed. Everything that the officer did that day, every decision point was met was all confirmed by State's Exhibit 13, that she is a .135." State's Exhibit 13 was the laboratory report documenting Olsen's alcohol concentration. Later in its closing, the state returned to this argument: "She lost the normal use of her mental or her physical faculties due to the introduction of alcohol, and that was later confirmed by the blood test." The state characterized the blood draw as the critical proof of guilt, describing it as "the one thing" that Olsen "really can't shy away from."
If the trial court had included the article 38.23 instruction in the charge as Olsen requested, the jury would have had the opportunity to decide whether the critical evidence of her guilt was illegally obtained. Had the jury decided this disputed fact issue in Olsen's favor, a possibility on this record, its verdict then would have turned on the contested and inconsistent evidence as to whether Olsen was deprived of the normal use of her physical or mental faculties. The trial court's error thus significantly skewed the jury's deliberations by leaving it no choice but to consider the blood draw's laboratory results in deciding whether Olsen was guilty.
These laboratory results doubtless had a significant impact on the jury's verdict. The state introduced these results through expert testimony from Nirav Kumar, a forensic scientist employed by the Texas Department of Public Safety. Kumar testified that Olsen's 0.135 blood alcohol concentration was higher than the legal limit. He estimated that her blood alcohol concentration indicated that she had fully absorbed "three to four standard drinks" by the time that her blood was drawn. As the Court of Criminal Appeals has observed, scientific evidence of a defendant's alcohol concentration exercises a "powerful persuasive effect" on juries. Bagheri , 119 S.W.3d at 764. It therefore would be fanciful to suggest that this scientific evidence did not sway the jury in a case like this one, in which the state argued both that the laboratory results were the key evidence of Olsen's guilt that she could not refute and that this evidence proved the veracity of the arresting officer's testimony. See id. (harm analysis of erroneous admission of expert testimony about alcohol concentration must take into account whether it might have prejudiced jury's consideration of other evidence or substantially affected jury's deliberations).
Considering the jury charge, state of the evidence, and the state's closing argument, the omission of the article 38.23 instruction requested by Olsen caused her some harm. See McGuire v. State , 493 S.W.3d 177, 198–99 (Tex. App.—Houston [1st Dist.] 2016, pet. ref'd) (admission of illegally obtained blood draw lab result not harmless where there was conflicting evidence as to whether defendant appeared to be intoxicated). Thus, the trial court's judgment should be reversed.
Conclusion
The trial court erred by refusing Olsen's requested article 38.23 instruction in the jury charge, and its error was not harmless. The appropriate remedy under these circumstances is reversal and remand for a new trial. Reece v. State , 878 S.W.2d 320, 322–24, 327 (Tex. App.—Houston [1st Dist.] 1994, no pet.). Because the majority does not grant Olsen a new trial, I respectfully dissent.