No. 05-04-01322-CR
Opinion issued November 29, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 1, Dallas County, Texas, Trial Court Cause No. F02-55847-MH. Affirmed.
Before Justices MORRIS, WRIGHT, and FRANCIS.
Opinion By Justice WRIGHT.
Richard Cary Felix appeals his conviction for intoxication manslaughter. After the trial court found appellant guilty, it assessed punishment at thirty years' confinement. In five issues, appellant generally contends (1) the evidence is legally and factually insufficient to support his conviction; (2) admission of the results of a blood alcohol test contained in his medical records violated the Confrontation Clause; and (3) the blood alcohol test result was inadmissible hearsay. We overrule appellant's issues and affirm the trial court's judgment.
Background
McQuester Taylor testified he was driving home after work and stopped at a red light at the intersection of Marsh Lane and Royal Lane. As he sat at the light, he noticed three men on motorcycles stopped on the opposite side of the intersection. When the light turned green, Taylor started through the intersection. He was about halfway through the intersection when the motorcycles began to move. As they did so, Taylor saw a truck approaching from his left. Although the speed limit was thirty-five miles per hour, the truck was going "maybe [sixty] or so," and Taylor realized the truck was going too fast to stop at the intersection. Taylor saw the truck hit the center motorcycle, throwing the rider into the air. Taylor did not hear tires squealing or see the truck swerve to avoid hitting the motorcycle. Joe Banuelos testified that he and two of his friends, Edward Batte and Clifton Thomas, met at Thomas's house to ride motorcycles together. A short distance from the house the three men stopped at a red light. The light turned green, and after a brief delay, the three men started into the intersection. Batte pulled away from the light first, Thomas was in the middle, and Banuelos was last. Just as Banuelos entered the intersection, he saw headlights to his right. As he did so, Banuelos saw Thomas fall and hit the ground. Immediately afterwards, a truck hit Batte "dead square, almost like a T-bone." Banuelos estimated the truck's speed to be seventy-five to eighty miles per hour, and it did not appear to try to stop. The impact threw Batte onto the hood and windshield of the truck, and then up into the air before he landed on the street. Banuelos, Thomas, and Taylor ran to check on Batte. As Taylor was calling 911, Banuelos went to a nearby church where the truck had stopped. Banuelos saw appellant stumbling around and Banuelos told him to sit on the curb and not go anywhere. Thomas testified to substantially the same accounting of the accident. He estimated the truck was going "close to" seventy miles per hour and did not think it would have time to stop before entering the intersection. Thomas knew he needed to stop "really, really, fast" so he just "locked [his] brakes up" and then fell with the motorcycle. He did not see the truck hit Batte, but he did see the truck hit and then cross the median before hitting the church. When Thomas sat up, he saw Batte on the ground. Sherry Curtsinger testified that she took her husband, Kerry Curtsinger, dinner at the dance studio where he and appellant were working the night of the accident. Appellant was "very annoying" and she did not want to be around him because he was being "rude and obnoxious and crude." Appellant was drinking what Sherry thought was white wine from a sixteen-ounce plastic cup. She noticed him get at least one refill during the hour she was at the dance studio. Sherry thought appellant was intoxicated although she could not list specific indications of why she thought so. Kerry testified that he worked with appellant the afternoon and evening of the accident. When Kerry arrived at the dance studio around 4:00 p.m., appellant was there working. Throughout the evening, he saw appellant drinking from a plastic cup filled with a "semiclear" liquid that would have been consistent with white wine. Around 8:00 p.m., Kerry had a conversation with appellant, noticed the smell of alcohol, and noticed that appellant was not as articulate as he had been earlier in the evening. Kerry was concerned about appellant driving, but thought a friend of appellant's, who left at the same time as appellant, "was taking care of him." Kerry Wise, a Dallas police officer, testified that he responded to the scene of the accident. After helping secure the scene, he went to speak with appellant. Wise could smell a "strong odor of alcohol," and noticed appellant's speech was slurred, he appeared to be confused, and he had difficulty maintaining his balance. Appellant had a scrape or cut on his head and repeatedly complained that his head hurt. A short time later, appellant was transported by ambulance to the hospital. Marcie St. John testified she was a member of the DWI squad. She went to the hospital and spoke with appellant. Appellant told her that he drank three glasses of Chablis while he was at the dance studio drinking. As St. John spoke with appellant, she smelled the odor of alcohol, and noticed his blood shot eyes and slurred speech. Based on these observations and appellant's "general demeanor," St. John formed the opinion that appellant was intoxicated and she asked appellant if he would submit to a breath test which he refused. After learning Batte had died, St. John gave appellant his statutory warnings and directed the nursing staff to make a mandatory blood draw pursuant to section 724.012(b) of the Texas Transportation Code. The blood was drawn at 12:16 a.m., some two and one-half hours after the accident, and showed appellant had a blood alcohol concentration of 0.14. Joe Owen Montgomery, an expert in accident reconstruction, testified that he saw skid marks that indicated appellant applied the brakes some three to three and one-half seconds before the impact. He estimated that appellant was traveling about forty-five to fifty miles per hour when he hit the motorcycle. Montgomery also testified that due to certain obstructions, such as a fence and shrubs, appellant would have had a limited view of the intersection as he approached. In Montgomery's opinion, appellant reacted "as a normal, reasonable, and prudent person would react" upon seeing the motorcycle. Montgomery also believed that from the calculations he made, appellant "reacted in a way a normal sober person would have reacted." Appellant testified that he finished his last dance lesson about 8:20 p.m. and left the dance studio about 9:40 p.m. After his last lesson and before he left the studio, he drank "wine out of a ten-ounce glass Solo cup" and thought he had three or four drinks. When he left the studio to drive home, he did not feel that he was intoxicated. As appellant came over the ridge on Marsh Lane approaching Royal Lane, the traffic light was green. Appellant was "messing with" his cellular telephone and the next time he looked up, the traffic light was red. As soon as appellant noticed the light was red, he began to brake and veer to the right. As he entered the intersection he saw a light coming towards him and then felt an impact. He hit his head on the windshield and was thrown to the right. Appellant remembered seeing the church and was knocked out for a short time after he hit the church. According to appellant, the accident was caused by his negligence but not because he was intoxicated. Appellant did, however, admit on cross-examination that alcohol could have affected his ability to do "numerous tasks at once," such as talking on his cellular telephone and paying attention to his lane of traffic. After hearing this and other testimony, the trial court found appellant guilty of intoxication manslaughter. This appeal followed. Sufficiency of the Evidence
In his first and second issues, appellant contends the evidence is legally and factually insufficient to support his conviction because the State failed to prove appellant's intoxication "caused" the accident. In his third issue, appellant contends the evidence is factually insufficient to show appellant was intoxicated. When reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). When reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. See Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). Appellant correctly asserts the State was required to show that appellant's intoxication, and not just his operation of his vehicle, caused Batte's death. See Garcia v. State, 112 S.W.3d 839, 852 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (citing Daniel v. State, 577 S.W.2d 231, 233-34 (Tex.Crim.App. 1979); Long v. State, 152 Tex. Crim. 356, 214 S.W.2d 303, 304 (1948)). Circumstantial evidence may be used to establish this causal connection. Garcia, 112 S.W.3d at 852. Viewed in the light most favorable to the verdict, the record in this case shows appellant was driving his truck on Marsh Lane between sixty and eighty miles per hour even though the posted speed limit was thirty-five miles per hour. Appellant, without ever applying his brakes, ran a red light and hit Batte broadside. Appellant had been drinking throughout the evening and admitted to drinking three or four glasses of wine in the hour and one-half before the accident. Several witnesses testified appellant appeared to be intoxicated. Appellant refused a breath test at the hospital. Later, the mandatory blood test, drawn some two and one-half hours after the accident, showed appellant's blood alcohol content to be 0.14-well above the legal limit. We conclude the trial court, as fact finder in this case, could have found beyond a reasonable doubt that appellant caused Batte's death by reason of intoxication. See Garcia, 112 S.W.3d at 853-54 (eyewitnesses testified the appellant hit the reflectors in the road as he approached complainant, drove in excess of the posted speed, refused field sobriety tests, fell asleep while waiting in the officer's car, had red, blood-shot eyes, had a slow reaction time as evidenced by the length of skid marks, and wandered off at the scene); Glauser v. State, 66 S.W.3d 307, 313 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (evidence showed appellant was driving thirty-five miles per hour above posted speed, had been drinking "on and off" the day of the accident and had "a couple" of drinks before the accident, blood alcohol level 0.21, and without applying brakes in well-lit area, hit complainant). We overrule appellant's first issue. Viewing all of the evidence in a neutral light, we likewise conclude the trial court was rationally justified in finding guilt beyond a reasonable doubt. Appellant testified the accident was caused by his inattention while using his cellular telephone and the accident reconstructionist testified appellant was driving approximately forty-five miles per hour and had a normal reaction time. However, this contrary proof does not greatly outweigh the proof detailed above from which the trial court could have found beyond a reasonable doubt that appellant's intoxication caused Batte's death. Similarly, the trial court was free to assess the credibility of appellant's expert regarding the accuracy of his blood test and weigh it against the other witnesses' testimony that the test was accurate, appellant smelled of alcohol, slurred his speech, had difficulty keeping his balance, was rude and obnoxious and appeared to be intoxicated. Because the trial court's determination of guilt was based on its assessment of the credibility of witnesses, we defer to its findings and conclude the evidence was factually sufficient to show appellant was intoxicated and that his intoxication caused Batte's death. See Garcia, 112 S.W.3d at 853-54. We overrule appellant's second and third issues. Confrontation Clause
In his fourth issue, appellant contends admission of his medical records which contained the results of a blood alcohol test drawn upon admission to the hospital violated his rights under the Confrontation Clause. We cannot agree. The threshold question in determining if the trial court erred by admitting the result of the blood alcohol test contained in appellant's medical records is whether the result of the blood alcohol test is testimonial or non-testimonial in nature. See Woods v. State, 152 S.W.3d 105, 113 (Tex.Crim.App. 2004), cert. denied, 125 S.Ct. 2295 (2005). Although the Supreme Court declined to provide a comprehensive definition of "testimonial," it stated that "testimonial" applies "at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." See Crawford v. Washington, 541 U.S. 36, 68 (2004). The results of the blood alcohol test do not fall within the categories of testimonial evidence described in Crawford. Moreover, in the context of the Fifth Amendment which bars against compelling "communications" or "testimony," but not "real or physical evidence" the chemical analysis of blood for its alcohol content does not contain "even a shadow of testimonial compulsion" and does not in any way implicate a defendant's testimonial capacities. Schmerber v. California, 384 U.S. 757, 764-65 (1966). We see no meaningful reason to characterize a blood alcohol test as testimonial for purposes of the Sixth Amendment when it is not for purposes of the Fifth. We overrule appellant's fourth issue. Hearsay
In his fifth issue, appellant contends the blood alcohol result contained in his medical records is inadmissible hearsay because it was admitted through the testimony of a nurse who did not conduct the blood test and had no knowledge of the procedure used in obtaining the test result. We need not determine whether admitting the results of the blood alcohol test was error because, even assuming it was, we cannot conclude it was harmful. We must disregard nonconstitutional error if, after examining the record as a whole, we have fair assurance that the error did not influence the jury or had but a slight effect. Tex.R.App.P. 44.2(b); Solomon v. State, 49 S.W.3d 356, 365 (Tex.Crim.App. 2001). In making this determination, we should consider the entire record, including testimony, physical evidence, the State's theories and any defensive theories, closing arguments, and voir dire, if applicable. Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Crim.App. 2003) (citing Motilla v. State, 78 S.W.3d 352, 355-56 (Tex.Crim.App. 2002)). Important factors include the nature of evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Bagheri, 119 S.W.3d at 763. We should also consider whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert. Id. The disputed issue at trial concerned whether appellant was intoxicated. The blood alcohol test admitted as a part of appellant's medical records was a piece of evidence helping to establish appellant's intoxication. Appellant challenged the State's assertion that he was intoxicated by pointing to evidence such as the accident reconstructionist's testimony that appellant had a normal reaction time and by challenging the accuracy of the blood alcohol test. In addition to the complained-of evidence, the State's evidence on the issue of appellant's intoxication shows appellant: (1) drove recklessly by speeding and running a red light without ever applying his brakes, (2) had been drinking throughout the evening and admitted to consuming three or four glasses of wine in the hour and one-half before the accident, (3) smelled of alcohol, (4) slurred his speech, (5) refused a breath test at the hospital, and (6) had a mandatory blood test drawn after the complained-of blood test showing his blood alcohol content was 0.14. Further, several witnesses, including eyewitnesses, the DWI task force officer, and the nurse in the emergency room, testified appellant appeared to be intoxicated. Thus, the complained-of test result was cumulative of other evidence establishing appellant's intoxication and it constituted a very minor portion of the State's evidence. During closing argument, the State did not emphasize the complained-of evidence, telling the trial court it need not consider it. After reviewing the record as a whole, we have a fair assurance that the evidence did not influence the trial court or had but a slight effect. See McRae v. State, 152 S.W.3d 739, 744-45 (Tex.App.-Houston [1st Dist.] 2004, pet. ref'd) (improperly administered HGN test harmless in light of record). We overrule appellant's fifth issue. Accordingly, we affirm the trial court's judgment.