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Ortiz v. State11/30/2004
girlfriend's truck the evening before the accident. He and Alvarado took Alvarado's girlfriend's girls with them to pick up some clothes and to cash a paycheck. Initially, appellant drove the truck. Early in the morning hours, appellant was involved in an accident in Plano, Texas. He had been drinking a "little bit" at that time. The Plano Police responded to the accident, and after appellant successfully performed field sobriety tests, he was allowed to go. They returned to Alvarado's girlfriend's trailer but left again shortly thereafter. They took the girls with them again, and this time Alvarado drove. According to appellant, Alvarado was driving when they had the accident with the Peterses. Appellant admitted that he and Alvarado had been drinking and that they had bought 72 beers during the night, but appellant maintained that he drank only two of the beers.
After hearing this and other evidence, the jury found appellant guilty of endangering the two children in the truck he was driving and one count of intoxication assault for the injuries to Peters's wife.
This appeal followed.
Back Time Credit
In his first and second points of error, appellant contends he is entitled to back time credit (1) against his two state jail felonies because the time assessed as punishment together with the time he was in jail prior to sentencing exceeds the maximum sentence allowed for a state jail felony by 115 days; and (2) for the time he spent in the custody of the Immigration and Naturalization Service (INS). After oral argument, appellant and the State reached an agreement regarding appellant's back time credit claims and stipulated that appellant is entitled to 115 days credit against his state jail convictions in cause numbers 05-03-01827-CR (trial court cause number 366-80047-00) and 05-03-01828-CR (trial court cause number 366-80048-00).*fn2 Consequently, we sustain appellant's first point of error and reform the judgments to reflect 115 days credit in cause numbers 05-03-01827-CR and 05-03-01828-CR, and we overrule appellant's second issue regarding time credit for the time he spent in INS custody.
Retrograde Extrapolation
In his third point of error, appellant contends the trial court committed reversible error by allowing Dr. William Rohr to testify regarding retrograde extrapolation. After reviewing the record, we conclude we need not determine if the trial court erred by allowing the complained-of testimony because even assuming it did, any error was harmless.
In considering the harm, if any, from the admission of the extrapolation testimony, we must disregard the error if we, "after examining the record as a whole, ha[ve] fair assurance that the error did not influence the jury, or had but a slight effect." Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003). In making this determination, we consider the entire record including testimony, physical evidence, jury instructions, the State's theories and any defensive theories, closing arguments, and voir dire if applicable. Id. More specifically, we should consider whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert. Id.
Here, the evidence was elicited from an expert; however the State did not, as in Bagheri emphasize the extrapolation testimony. Rather, the focus of the State's case was to show that appellant was driving the car, not Alvarado, as asserted by appellant. The complained-of evidence was cumulative in that the record contains evidence other than the extrapolation testimony showing appellant was intoxicated at the time of the accident. Specifically, Gray testified that she was in
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