Opinion
Nos. 05-04-00692-CR, 05-04-00693-CR
Opinion Filed May 27, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F04-00144-Kw and F04-00145-KW. Affirmed.
Before Justices MORRIS, FRANCIS and LANG-MIERS.
OPINION
The jury found appellant guilty of two offenses of manslaughter with a deadly weapon, found two enhancement paragraphs true in each case, and assessed punishment at 99 years and life and a fine of $10,000 in each case. In nine points of error, appellant complains the trial court erred by denying his motions to suppress certain evidence and the evidence is legally and factually insufficient to support the convictions. We affirm. On the evening of June 28, 2003, appellant went to a party with friends Becky and Patty. Afterwards, appellant borrowed Becky's Suburban and made plans to return it at 11 a.m. the next day; however, appellant failed to show up at the designated time. Witnesses testified they saw appellant driving the Suburban eastbound on 190 at 2:30 p.m. that day and estimated his speed as approximately 70 to 75 miles per hour. Appellant made three lane changes and drove off the highway, instead of taking the exit ramp, at a very high rate of speed. None of the witnesses saw any brake lights or turn signals when appellant left the roadway. Witnesses testified it appeared appellant misjudged the exit and intentionally drove off the road. A witness in a car on the service road testified he heard a long, continuous horn blowing, looked up and saw a Suburban coming off the embankment toward the service road at about 80 miles per hour. He believed the horn sound was coming from the Suburban. He watched as the Suburban did not stop or turn and appeared to jump the lanes of the service road and land on top of the left rear of a Mustang waiting at the traffic light before it came to a stop a few feet away. The Mustang, occupied by James McEwan and his son, immediately burst into flames. Four other vehicles were also involved, including an SUV. Bystander efforts to rescue the McEwans from their burning vehicle were futile, and the McEwans died in the Mustang from smoke inhalation and thermal burns, with blunt force injuries as contributing factors. Following the collision, appellant appeared to be passed out in the Suburban. When he awoke, a bystander helped him from the vehicle onto a grassy area. A paramedic assisting appellant stated appellant was alert and oriented but did not respond to questions about his injuries. Because he was unable to assess the nature or severity of appellant's injuries, the paramedic assumed the worse-head injuries and upper torso injuries-and called for a Care Flight helicopter. Garland police officer Steve Dye and Lieutenant Quillen arrived to investigate the incident but were unable to speak with appellant. Dye testified he had no reason initially to suspect appellant was intoxicated and that paramedics told him appellant did not smell of alcohol. However, when he saw beer containers strewn about and smelled fresh beer, Dye suspected appellant may have been intoxicated and asked Quillen to have an officer go to the hospital to request a voluntary blood specimen from appellant. Quillen ordered Officer Crockett, who was not at the scene, to attempt to obtain a blood specimen from appellant. When Crockett arrived at the hospital, appellant was in the trauma room with a nurse. Crockett told appellant he was not under arrest and read him the "statutory warnings" required when asking for a voluntary blood specimen. See Tex. Transp. Code Ann. § 724.015 (Vernon Supp. 2004-05). Appellant was cooperative and signed the consent form in the presence of the nurse. Crockett also completed the mandatory blood draw form in the event appellant withdrew his consent, but he never had to use it. Crockett testified that he did not coerce or force appellant into giving consent and did not touch appellant or place him in handcuffs. After the blood specimen was taken, appellant asked Crockett questions about the incident. Crockett read appellant his Miranda rights out of an abundance of caution and then questioned appellant about the incident. Crockett again told appellant he was not under arrest. Appellant told Crockett that he last drank alcohol on June 28, that he had taken an unknown amount of cocaine two days before, had taken amoxicillin that morning and Wellbutrin and lithium a week before. Appellant also told Crockett that the vehicle began pulling to the right and he thought he may have had a blowout but because his music was so loud, he did not hear it. The toxicology report indicated that appellant had no alcohol in his system but had .10 mg of cocaine. The toxicologist testified the specimen was obtained at 5 p.m. and, based on the metabolic nature of cocaine, appellant must have taken the cocaine that day. She testified that individuals react differently to cocaine depending upon their history of use and the method of administration. Some individuals become aggressive or exhibit risk-taking behavior where others may become more alert and aware. She testified that .10 mg would probably be considered a moderate level of cocaine for most individuals. The defense expert, a former police officer, testified that in his experience individuals who have consumed a low level of cocaine tend to require more reaction time and exhibit risk-taking behavior. Both the State and defense called expert witnesses who testified that the Suburban did not have a blowout until it hit the curb of the service road. Although the experts disagreed whether brakes should have been applied going down the grassy embankment, both agreed that appellant engaged in no significant braking after leaving the roadway. The defense expert testified it was reasonable under the circumstances not to apply the brakes for fear of rollover. He basically agreed with the State's report but said he would have tested the brake pressure lines to make sure the brakes were working properly and would not have relied on a visual inspection only. The expert testimony revealed no defects in the Suburban. Based on his investigation, Dye estimated the Suburban was traveling about 80 miles per hour on 190 and at least 50 miles per hour when it struck the Mustang. He concluded that appellant thought he was taking an exit but then did nothing to significantly reduce his speed to avoid the collision. In his opinion, appellant had ample time driving down the 395-foot descent to reduce his speed to either avoid or at least minimize the damage. Dye's investigation also revealed no construction on 190, no road hazards or fluid spills, no vehicle forced appellant off the roadway, and no mechanical failure that would explain why appellant left the roadway before reaching the exit. The defense expert testified the Suburban was likely not going 80 miles per hour when it left the roadway or it would have become airborne upon entering the slope of the embankment. However, the defense expert agreed that it appeared the vehicle was going 50 miles per hour when it hit the Mustang. Motions to Suppress In his first five issues, appellant argues the trial court should have suppressed the results of the blood test and his oral statements because they were obtained in violation of the United States and Texas Constitutions and inadmissible under article 38.23 of the Texas Code of Criminal Procedure, his consent for the blood test was not voluntarily or knowingly given, and the nurse exceeded the scope of his consent by giving the blood test results to police. We review a trial court's ruling on a motion to suppress evidence under an abuse of discretion standard. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Under this standard, we view the evidence in the light most favorable to the trial court's ruling, affording almost total deference to findings of historical fact supported by the record. Id. However, when mixed questions of law and fact exist which do not turn upon an evaluation of credibility and demeanor, we review the trial court's decision under a de novo standard. Id.Blood Specimen The Fourth Amendment guarantees people the right to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The taking of a blood specimen is considered a search and seizure under both the United States and Texas Constitutions. Schmerber v. California, 384 U.S. 757, 767 (1966); Ferguson v. State, 573 S.W.2d 516, 520 (Tex.Crim.App. 1978). Consent is one of the well-established exceptions to the constitutional requirements of both a warrant and probable cause. Carmouche v. State, 10 S.W.3d 323, 331 (Tex.Crim.App. 2000) (citations omitted). The State must prove the voluntariness of consent by clear and convincing evidence.See id. The court considers the totality of the circumstances surrounding the consent to determine whether the consent was voluntary, including the characteristics of the appellant and the details of the questioning. See Reasor v. State, 12 S.W.3d 813, 818 (Tex.Crim.App. 2000). For consent to be voluntary, it must be positive and unequivocal and not coerced or given under duress. Carmouche, 10 S.W.3d at 331. Evidence obtained in violation of the law is not admissible at trial. Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon 2005). Appellant argues his consent to taking the blood specimen was not voluntary because he was "being prepped for emergency surgery" and "not in his right frame of mind." We find nothing in the record to support this argument. Appellant had been air-flighted to the hospital but there was no testimony about the nature or severity of his injuries. Crockett testified that when he arrived at the hospital, appellant was in the trauma room where the staff was trying to stabilize him, but that only he and a nurse were in the room with appellant. Appellant was conscious, inquired about the incident, answered questions regarding details of the incident and days prior to it, and cooperated with Crockett. Although he was unable to leave, it was not due to any police action. Nothing in the record shows that appellant was subjected to any coercion or duress when giving his consent. Appellant argues that Crockett failed to advise him of the consequences of his refusal to give the blood specimen in accordance with section 724.015 of the transportation code, see Tex. Transp. Code Ann. § 724.015 (Vernon Supp. 2004-05), and that Crockett said if he did not consent, he would take the specimen anyway. However, Crockett testified he read appellant the statutory warnings for a voluntary blood draw prior to appellant signing the consent form. These warnings track the language of section 724.015. Accordingly, appellant was advised of the consequences of not giving consent. Moreover, there is nothing in the record to support appellant's argument that Crockett told him he would take the specimen even if he did not consent. Crockett had the mandatory blood draw form filled out, but testified he never had to use it. In fact, Crockett testified that had appellant not consented, he would have called Dye for further instructions. Finally, appellant argues the nurse exceeded the scope of his consent by giving the blood specimen to the police. This argument is without merit. Crockett, not the nurse, requested the specimen from appellant and appellant knew Crockett was a police officer. We conclude the trial court did not abuse its discretion in denying appellant's motion to suppress the results of the blood test because appellant consented to the search. We overrule appellant's first four issues. Oral Statements Appellant also argues the trial court should have suppressed his oral statements. Although appellant does not identify the statements about which he complains, we will presume it was the statements he made to Crockett at the hospital about his cocaine usage. Crockett testified that he told appellant he was not under arrest. And, in fact, appellant was not arrested until about a month after the incident. The trial court denied the motion to suppress, ruling that appellant was not under arrest and the statements were not the result of custodial interrogation. We agree and conclude the trial court did not abuse its discretion in denying appellant's motion to suppress his oral statements. We overrule appellant's fifth issue.
See Miranda v. Arizona, 384 U.S. 436 (1966).
The United States Constitution requires a showing of voluntariness by a preponderance of the evidence while the Texas Constitution requires the State to offer evidence that is clear and convincing. Carmouche, 10 S.W.3d at 331.
Sufficiency of the Evidence
Appellant complains in issues six through nine that the evidence is legally and factually insufficient to support the convictions of manslaughter and that if appellant is guilty of anything, it is only of the lesser included offense of criminally negligent homicide.The State charged that appellant recklessly caused the death of the McEwans by operating a motor vehicle, a deadly weapon, and by consuming a controlled substance prior to operating said motor vehicle, and said defendant did operate said motor vehicle while under the influence of a controlled substance, and while operating said motor vehicle, said defendant did fail to control said motor vehicle, and did fail to maintain a single lane of traffic, and did fail to operate the said vehicle on the roadway, and did operate said vehicle at a speed not reasonable under the circumstances, and did cause said motor vehicle to strike and collide with and against a motor vehicle occupied by [the McEwans] thereby causing a fire which caused [their deaths].See Tex. Pen. Code Ann. § 19.04(a) (Vernon 2003). A person acts recklessly
with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.Tex. Pen. Code Ann. § 6.03(c) (Vernon 2003). A person commits criminally negligent homicide "if he causes the death of an individual by criminal negligence." Tex. Pen. Code Ann. § 19.05(a) (Vernon 2003). A person acts with criminal negligence
with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.Tex. Pen. Code Ann. § 6.03(d) (Vernon 2003). In a legal sufficiency challenge, we view the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). In a factual sufficiency challenge, we view the evidence in a neutral light to determine whether the fact-finder 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. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). The evidence showed appellant consumed cocaine prior to driving, he was driving ten to twenty miles over the posted speed limit, he intentionally drove off the roadway before reaching the exit, he did not use any significant braking in an effort to stop the vehicle while descending the 395 feet across the embankment, he made no apparent effort to steer clear of the vehicles in the intersection below, and he was traveling 50 miles per hour when he struck the Mustang. The defense attempted to show the Suburban may have had a problem with pulling to the right, but the evidence revealed that even if the brakes were faulty and would cause the vehicle to pull to the right, the vehicle would not have veered to the right if the brakes were not applied. Appellant argues that he was attempting to warn people on the service road below by blowing the horn and that he misjudged the exit due to inattentiveness not because he was reckless. We conclude the evidence is legally and factually sufficient to support the convictions of manslaughter. We overrule appellant's issues six through nine. Having decided all of appellant's issues against him, we affirm the trial court's judgments.