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Ortiz v. State11/30/2004
William Peters testified that he and his family were traveling to West Texas when they were involved in a traffic accident shortly before 6:00 a.m. As the Peterses were traveling in their lane, a pickup truck traveling in the opposite direction swerved into their lane and hit them head-on. Peters's wife's leg was broken in two places, her heel was broken, and her nose was broken. All four of the Peters children were also injured.
Victoria Gray testified that she was seven-years-old at the time of the accident. She and her younger sister, Daniella, were in the pickup truck that collided with the Peters' truck. According to Gray, she and her sister were in the truck with Avaristo Alvarado, Gray's mother's boyfriend. Alvarado was in the passenger seat, and appellant was driving. The evening before, Gray and her sister had gone with Alvarado and appellant to cash a paycheck and pick up some belongings in Dallas and had been in the truck with the two men the entire night. Appellant and Alvarado stopped twice and bought beer, the first time 12 bottles and the second time a 24-pack of cans. They began acting "crazy," and Gray thought the men were drunk. Before the accident, appellant was weaving and going into the wrong lane.
Alan P. Davidson, a former trooper with the Texas Highway Patrol, testified that he investigated the accident in this case. When he arrived at the scene, he searched the truck appellant had been driving. Davidson found beer bottles and an empty twenty-pack container of beer. Davidson went to the hospital and attempted to speak with appellant. Appellant was "passed out," and Davidson was unable to wake him. Davidson smelled the "strong odor of an alcoholic beverage on [appellant's] breath." Davidson suspected appellant was intoxicated, and he requested that a blood sample be drawn for an alcohol level. That sample was drawn at 10:50 a.m. (approximately five hours after the accident) and showed a blood alcohol level of 0.13.
When appellant was released from the hospital a couple of days later, Davidson arrested and then later interviewed appellant. During the interview, appellant admitted he was driving the pickup truck and that he had been drinking since about seven o'clock the evening before the accident. However, appellant also said he only drank "two beers" and that he felt he was "okay" to be driving. When Davidson asked appellant if he had been injured in the accident, appellant showed Davidson bruising and redness on his left shoulder that was, in Davidson's opinion, "consistent with somebody in a driver's seat with a shoulder belt on."
Dr. William Rohr testified he is the medical examiner for Collin County and is familiar with the concept of retrograde extrapolation. After considering the information he was given in this case, including that appellant's alcohol level at 11:00 a.m. was 0.13 and that appellant was drinking beer until 5:55 a.m. when the accident occurred, Rohr determined that appellant entered the post-absorptive state (the point at which all alcohol was absorbed) at 7 a.m. Using a standard rate of alcohol elimination, and assuming appellant was a moderate user of alcohol, Rohr calculated appellant's blood alcohol level to be approximately 0.20 percent at 7 a.m. Rohr also explained that if appellant was a heavy user of alcohol, his blood level may have been as high as 0.25 at 7 a.m., and if he were a "naive" user, the level would have been about 0.17. In Rohr's opinion, given the information in this case "it is reasonable to assume that at the time of the accident . . . [appellant's] level is going to be much above the [legal limit of] 0.08 percent at the time of the accident."
Appellant testified that his friend, Alvarado, borrowed his
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