Opinion
No. 05-04-01632-CR
Opinion Filed June 13, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 282nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-27144-JS. Affirmed.
Before Justices MORRIS, BRIDGES, and FRANCIS.
OPINION
A jury convicted Gregory Todd Sturgis of intoxication manslaughter in the death of his girlfriend and assessed punishment at thirteen years in prison. In two points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction and a deadly weapon finding. We affirm. In the early morning hours of May 10, 2001, Garland police, fire, and emergency medical personnel were dispatched to a major accident on Northwest Highway. Upon arrival, they found a four-door, full cab Ford F-350 pickup truck sitting in the center median. The truck was heavily damaged, and the engine was still "ticking," indicating the accident had just occurred. Two wooden utility poles were down, and a massive amount of debris was scattered across the median and all lanes of traffic. The debris included numerous beer cans, a steel tool box, tools, and papers. Inside the vehicle were two occupants — appellant and a woman, Shelly Harris. Appellant was slumped over in the driver's side back seat, bleeding profusely from his head. The rubber seal from the back window was over appellant's head and across his chest. Harris was draped between the front and back seats, lying on her stomach with her upper torso in the back seat, her thighs across the console, and her feet in the front passenger seat. She appeared to be dead. As workers forced open both driver's side doors, appellant began to sit up and was told to stay still. Paramedic William Crews said appellant was alert and oriented and repeatedly asked, "Did I hurt anybody." Crews asked appellant if he was driving, and appellant said no. Crews then asked if the female was driving, and appellant said no. When asked who was driving, appellant said, "I don't know, it was some — some guy and he ran off." Consequently, police searched the area but found no evidence that a third person had been in the truck. Paramedic Wayne Strickland testified appellant was "combative" at the scene, asking repeatedly if he was going to be all right and asking four or five times if he had hurt anyone. Strickland asked appellant if he was driving the vehicle, and appellant said he could not remember. Strickland asked if anyone else, other than Harris, was in the vehicle, and appellant said no. After appellant was taken to the hospital, police obtained a sample of his blood. Testing showed his blood-alcohol level at 0.32, four times the legal limit. No drugs were found in his system. Appellant's injuries consisted of a large laceration to the right side of his head and a fractured vertebra at C7, caused by blunt force trauma. Appellant's right side was bruised. Harris sustained blunt force trauma to various parts of her body, her brainstem was torn, her neck was broken, and ribs, vertebra, and her pelvis were fractured. In addition, she suffered contusions of the lungs and heart, her liver was lacerated and right hip dislocated. Harris suffered substantial injuries to the right side of her body. She died quickly from her injuries. Toxicology testing showed that Harris's blood-alcohol content was 0.29, and she tested positive for marijuana and cocaine. During their investigation, police learned the pickup was registered to appellant's father. Police photographed the accident scene and took blood samples from the truck. Blood from the interior front passenger door matched Harris's DNA, and blood splattered in the back of the truck matched appellant's DNA. There were no eyewitnesses to the crash. Charles Ray Kuerbitz led the Garland police investigation and, after obtaining information from officers at the scene and reviewing the crash site, photographs, and considering the injuries to appellant and Harris, reconstructed the accident. Kuerbitz determined that the truck missed a curve, hit the curb, went onto the median, and struck the first utility pole with the left front quarter of the truck. The pole scraped the driver's side of the truck before hooking the left rear axle, throwing the truck into a violent counterclockwise rotation. The truck then hit the second pole at an angle on the front passenger side door, a severe impact that propelled the driver into the back passenger seat corner, where he apparently hit his head on the rear window, shattering the glass. Force of the impact snapped the pole at its base, and a portion lodged underneath the truck, causing the truck to tilt on its right side. When the vehicle's wheels set down, Kuerbitz said the driver ended up in the driver's side passenger seat. Kuerbitz said the passenger side windshield contained an "impact star," indicating someone was seated in the passenger seat at the time of the first impact and hit the windshield. Kuerbitz concluded, after considering the injuries to appellant and Harris and all other information, that appellant was driving the vehicle and Harris was in the front passenger seat when the accident occurred. James Moore, an expert in accident investigation and reconstruction, agreed with Kuerbitz's conclusions. Like Kuerbitz, he concluded that upon the second impact, appellant was thrown between the opening of the front seats into the back passenger area, hitting the back window with his head and splattering blood in the back area of the truck. Moore believed that the bruise to appellant's right side was caused when he hit the middle console. Moore also believed that the significant injuries to Harris's right side were consistent with her being the passenger in the vehicle when the truck hit the second pole, which penetrated the cab. The defense theory was that no one was in the passenger's seat at the time of the accident, and that Harris was driving and appellant was in the back seat. As support for its theory, the defense presented the testimony of Joe Montgomery, an accident and reconstruction expert. Kuerbitz and Moore were both former students of Montgomery's. Montgomery testified he examined photographs, went to the scene of the accident, examined the placement of the utility poles and the roadway, and reviewed the autopsy report and medical records. Additionally, he heard appellant's version of where he was when the accident occurred — lying on his stomach in the back seat of the truck with his face toward the front, asleep. He ultimately concluded that the physical evidence supported appellant's story. Montgomery agreed with both Kuerbitz and Moore as to how the first impact occurred, but disagreed with the degree of angle with which the truck struck the second utility pole and how the impact affected the unrestrained occupants. Montgomery believed the second pole was hit at a ninety-degree angle, which would have thrown Harris laterally from the driver's seat into the front passenger side door, accounting for her blood on the passenger door and the injuries to her right side. The pole lodged underneath the truck, causing the truck to tilt. When the left wheels came down, the vehicle rotated and Harris was thrown toward the center of the truck and ended up between the front and back seats. As for appellant, the first impact would have pushed him forward as he lay in the back seat, causing him to hit the center console with his right hip, bruising it. The second impact would have propelled him to the back passenger side, where he hit his head on the rear window. When the left wheels came down and the vehicle came to rest, it created rotation and appellant was thrown to the center of the vehicle and ended up behind the driver's seat. In reaching his conclusion, Montgomery also relied on photographs of a toe ring found under the brake pedal and said the toe ring could have been pulled off Harris's toe as the vehicle went to the right. He did not find it significant that Harris's blood was found on the front passenger door and appellant's blood was found in the back, saying that only establishes that appellant was in the back seat and Harris was definitely in the front seat at some point. In fact, he believed it significant that none of appellant's blood was found in the front. Finally, he believed the injury patterns to Harris were more consistent with her being the driver than appellant. He testified that because of appellant's size (six feet tall, 200 pounds), he would have expected injury to appellant's legs and damage to the steering wheel if appellant had been driving. He did not believe the mark on the passenger side windshield was an impact star, as testified by the State's experts. Other evidence at trial included the testimony of Harris's friend, Sharon Hamilton. Hamilton testified that two days before Harris's death, she dropped Harris off at appellant's house. Harris and appellant got into appellant's truck with appellant in the driver's seat. Appellant told Hamilton that "this is my horse," referring to the truck, and "nobody rides my horse." Hamilton believed appellant's statement meant that no one else drove his truck. In contrast, the defense presented the testimony of appellant's brother, Jason, and Jason's girlfriend, Jana Henry. Both testified that on the night testified to by Hamilton, Harris was driving, not appellant. Both testified that Harris called the vehicle "the big truck" and liked to drive "the big truck." Finally, a defense investigator testified that he examined the truck at the Garland Police Department auto pound almost two-and-a-half months after the accident. He found a toe ring near the brake pedal not found by Officer Kuerbitz when he removed the brake pedal pad shortly after the accident. Henry testified the toe ring was identical to one that Harris was wearing two days before her death. The State countered with evidence that appellant had been out to remove property from the vehicle eleven days before the defense investigator found the toe ring, leading prosecutors to argue that appellant planted the evidence. In his first point of error, appellant complains the evidence is factually insufficient to support his conviction. A person commits the offense of intoxication manslaughter if the person (1) operates a motor vehicle in a public place, (2) is intoxicated, and (3) by reason of that intoxication caused the death of another by accident or mistake. See Tex. Pen. Code Ann. § 49.08(a) (Vernon 2003). Appellant argues that the evidence did not establish, beyond a reasonable doubt, that he was driving the vehicle. He argues that both he and Harris were intoxicated that night and there was no direct evidence that he was the driver. He concedes the State presented expert opinions contrary to his position, but argues that his expert was more credible. When conducting a factual sufficiency review, we consider 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). Evidence may be factually insufficient in two ways: (1) when the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilty beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment and, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. In performing a factual sufficiency review, we give deference to the fact finder's determinations involving credibility and demeanor of witnesses. Id. We may not subtitute our judgment for the fact finder's. Id. at 481. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). In this case, the jury could have inferred appellant was driving the pickup truck from the following evidence: (1) the truck was registered to appellant's father and appellant was the primary driver; (2) appellant told Hamilton, two nights before the accident, that "nobody rides this horse," which she took to mean that nobody but appellant drove the truck; (3) at the accident scene, appellant repeatedly asked if he had hurt anyone, suggesting that he was driving the vehicle; and (4) appellant gave differing accounts about who was driving: he told one paramedic that neither he nor Harris was driving the vehicle, that it was driven by a third person who ran off; he told a second paramedic that he could not remember if he was driving the vehicle. In addition to this evidence, both sides presented extensive expert testimony. The State's experts testified their investigations showed that appellant was driving; the defense expert testified his investigation showed Harris was driving and appellant was in the back seat when the accident occurred. Both sides' experts agreed as to how the accident initially occurred but disagreed on the angle of impact at the second pole, damage to the interior of the truck, and whose injuries were most consistent with being the driver. It was the jury's role to determine which witnesses they believed were credible and which to discredit. That the defense presented contrary expert testimony simply does not render the State's evidence factually insufficient. Reviewing all the evidence, we cannot say it was factually insufficient to support the jury's finding of guilt. We overrule the first point of error. In his second point of error, appellant contends the evidence is legally insufficient to prove the motor vehicle was a deadly weapon. He argues the State's witness testified only that a motor vehicle could be a deadly weapon, not that it was in this case. He urges this Court to overrule Tyra v. State, 897 S.W.2d 796 (Tex.Crim.App. 1995), which affirmed prior precedent establishing that a motor vehicle, which is actually used to cause the death of a person, is a deadly weapon. This Court, as an intermediate appellate court, is bound by precedent established by the Court of Criminal Appeals and has no authority to overrule it. See McKinney v. State, 177 S.W.3d 186, 192 (Tex.App.-Houston [1st Dist.] 2005, pet. granted). Thus, we decline appellant's invitation to overrule the Court of Criminal Appeals. Moreover, having reviewed the evidence in this case, we conclude it is legally sufficient to support an affirmative deadly weapon finding. In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and then determine whether a rational trier of ract could have found the essential elements beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). Here, Officer Kuerbitz testified that a motor vehicle can be a deadly weapon. The evidence showed that appellant, while intoxicated and driving his truck, missed a curve, hit the curb, went onto the median, and hit two wooden utility poles. The accident killed his passenger. We conclude the evidence is legally sufficient to support a finding that the motor vehicle was a deadly weapon in this case. See Tyra, 897 S.W.2d 798. We overrule the second point of error. We affirm the trial court's judgment.