Opinion
No. 06-16-00188-CR
03-30-2017
VINCENT CRAIG WILCOX, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court Delta County, Texas
Trial Court No. 7498 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
On a mid-August morning in 2015, three successive vehicles that were traveling south on State Highway 19 toward Sulphur Springs encountered a white dump truck traveling north and careening up the highway. Each of the three took evasive action trying to avoid the dump truck. The first two were successful. The third vehicle, containing Vivian and O.G. Brewer, was hit virtually head-on, although Vivian had pulled her vehicle onto the southbound shoulder in her attempt to escape the crash. The accident produced the immediate death of Vivian, the later death of O.G., and the ultimate convictions of Vincent Craig Wilcox, the truck driver, for intoxication manslaughter of both of the Brewers. This appeal comes from Wilcox's conviction regarding O.G.'s death, while our companion cause number 06-16-00189-CR, involves the conviction regarding Vivian's death.
See TEX. PENAL CODE ANN. § 49.08(a) (West 2011). Each conviction included a deadly-weapon finding. After a punishment hearing, the trial court assessed punishment at twenty years' imprisonment, each, for the manslaughter of O.G. and Vivian, with the sentences to run consecutively.
On appeal, Wilcox challenges the sufficiency of the evidence supporting his conviction for the death of O.G. and complains that he was denied the effective assistance of counsel. The judgment of the trial court is affirmed, because (1) sufficient evidence supports the jury's verdict and (2) ineffective assistance of counsel has not been established.
(1) Sufficient Evidence Supports the Jury's Verdict
Wilcox claims that the evidence is insufficient on two elements of the State's case: whether Wilcox was intoxicated at the time of the accident and whether such intoxication caused O.G.'s death. On each element, we find legally sufficient evidence in the record.
In evaluating legal sufficiency of the evidence, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). In examining legal sufficiency, we defer to the jury's role "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony and may "believe all of a witnesses' testimony, portions of it, or none of it." Thomas v. State, 444 S.W.3d 4, 11 (Tex. Crim. App. 2014). We give "almost complete deference to a jury's decision when that decision is based on an evaluation of credibility." Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).
Although Wilcox asserts in his point of error that the evidence was also factually insufficient, the Texas Court of Criminal Appeals has made clear that, in criminal cases, the Jackson v. Virginia test for legal sufficiency of the evidence is the only standard that we should apply in determining whether there is sufficient evidence to support the elements of a criminal offense that requires proof beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307 (1979)).
In our review, we consider "events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act." Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). Each fact need not "point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Id. Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "hypothetically correct" jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id. Under the amended indictment and the statute, the State was required to prove beyond a reasonable doubt that, on or about August 13, 2015, Wilcox (1) operated a motor vehicle in a public place, (2) while intoxicated, and (3) by reason of such intoxication (4) caused the death of O.G. (5) by accident or mistake. See TEX. PENAL CODE ANN. § 49.08(a). The statutory definition for "intoxication" applicable to this case is "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body." TEX. PENAL CODE ANN. § 49.01(2)(A) (West 2011).
We review the salient evidence admitted at trial.
On the morning of the accident, Kameron Freelen was driving south on Highway 19 on her way to work. When she was almost to Sulphur Springs, she saw a northbound, white dump truck coming toward her veering left to right, then toward her and into her lane. She pulled all the way onto the shoulder on her side of the highway and came face-to-face with the truck, but somehow avoided getting hit. Although she could not identify the driver, Freelen testified that photographs of the truck involved in the accident that killed Vivian and O.G. appeared to show the same truck she encountered. She also testified that she heard about the instant accident on social media a few minutes later when she got to work.
Near the same time that morning, a few miles north of where Freelen had her encounter, George Flanary was also driving south on Highway 19 and was forced to the shoulder of the road when a northbound, white gravel, or dump, truck crossed the center line into his lane. Flanary also testified that photographs of the truck involved in the instant accident looked very similar to the truck he encountered.
The instant accident occurred around the same time that morning, a few miles north of where Flanary encountered the dump truck, where the truck had to navigate a sharp, left-hand curve of Highway 19. Matt Owen was traveling north on Highway 19 around 7:45 that morning some distance behind a bobtail dump truck. As the dump truck went into a sharp left curve, he lost sight of it. By the time he got to the curve, the accident had happened, and both vehicles involved in the accident were on the west side of the roadway, outside the southbound lane.
Gerald Ringwald was traveling south on the same highway that morning. As he was approaching the big curve, he saw a large cloud of smoke, from which emerged a truck that turned on its side and slid down an embankment on the west side of the roadway. Ringwald helped the driver of the truck, whom he identified as Wilcox, out of his vehicle and got him away from the truck. He testified that Wilcox was very disoriented at first, but regained his senses quickly. Wilcox did not want to sit down, but remained on his feet. Ringwald testified that Wilcox was alert and coherent and answered the questions of the medical personnel who arrived on the scene, though Wilcox initially refused medical treatment. Ringwald quoted Wilcox as remarking that he wished he had called in sick that day. Ringwald also testified that the top part of the car involved in the accident was gone.
Carol Shaffer, a paramedic, testified that the female driver of the car was killed in the accident. The male passenger was still in the car and breathing, but unresponsive. He was taken by helicopter to Plano Medical Center. Lawrence Brewer, O.G.'s older brother, testified that, after O.G. was airlifted to Dallas, he remained in a coma and never regained consciousness. After four days, he was removed from life support and died one-half hour later.
Jamie Blount, a trooper with the Texas Department of Public Safety (TDPS), led the accident investigation. He testified that, based on his investigation, the Brewers' car was headed southbound and the dump truck was headed north when the dump truck crossed over into the oncoming lane. The Brewers sought to evade to the right and got as far over as they could and still be on the pavement, when the dump truck struck them head-on. He testified that the point of impact was in the fog line marking the outside edge of the southbound lane.
Blount also testified that he met with Wilcox in the hospital the afternoon of the accident. Wilcox told him he did not remember the accident, he only remembered the car coming, and then waking up with someone trying to get him out of the truck. He said that Wilcox said he had had a good night's sleep, and he denied falling asleep, using his cell phone, or using any drugs. He acknowledged that Wilcox was alert, cooperative, and coherent and that he understood and answered Blount's questions. Wilcox refused, however, to give a voluntary blood specimen.
Nevertheless, Blount was able to obtain blood that had previously been drawn from Wilcox at 9:45 that morning as part of his medical treatment. Blount testified that he forwarded the specimen to the TDPS Crime Laboratory in Tyler for testing. He received a report back from the Tyler Crime Laboratory that the specimen was negative for alcohol and received a report from the Austin TDPS Crime Laboratory that the specimen was positive for methamphetamine. Based on his investigation and the report from the Austin Crime Laboratory, Blount opined that Vivian's and O.G.'s deaths were caused by the accident, that, at the time of the accident, Wilcox was intoxicated by the introduction of methamphetamine, a controlled substance, into his system, and that he had lost the normal use of his mental and physical faculties. He acknowledged on cross-examination that he had no evidence that Wilcox was intoxicated until he received the report from Austin.
Kathy Erwin, a forensic scientist at the Austin TDPS Crime Laboratory, testified that Wilcox's blood specimen contained 0.94 milligrams/liter (mg/l) of methamphetamine, which was a high result. She testified that, based on the time the specimen was drawn, it was relatively the same as at the time of the accident. She said that the average amount of methamphetamine found in people involved in traffic accidents is 0.35 mg/l. Erwin opined that, with that amount of methamphetamine in a person's system, he would not have the normal use of his mental and physical faculties and that it would be common for a person driving in that condition to fail to maintain a single lane, drive off the road, and be inattentive. She also testified that, if a person had been "binging" on methamphetamine and had gone without sleep for a day or two, the body would make him go to sleep. She testified that the person would be extremely tired and sluggish and that his ability to make the quick decisions based on multiple sensory inputs required in driving would be impaired.
Josh Banta, a trooper for TDPS, testified, inter alia, that a person using methamphetamine may appear to be normal when talking with him, but when he is asked to perform divided attention tests or drive, you realize he is not okay.
Wilcox emphasizes the testimony that he was alert and coherent after the accident and assails the strength of Erwin's testimony and her test results in arguing against the necessary findings of Wilcox's intoxication and causation. However, a reasonable jury could find otherwise. From the testimony and evidence, a reasonable jury could infer that Wilcox had twice narrowly avoided accidents and run two drivers to the shoulder of the roadway by crossing into their lane shortly before this accident. The evidence also supported the finding that the accident occurred as a result of Wilcox driving into and across the southbound lane and striking the Brewers' car in the shoulder of that lane, causing their deaths. Based on the above evidence, the results of his blood specimen showing 0.94 mg/l of methamphetamine in his system, and the testimony of Erwin and Blount, a reasonable jury could infer that Wilcox did not have the normal use of his mental or physical faculties because of the introduction of methamphetamine into his body and that Wilcox's intoxication caused the deaths of Vivian and O.G.
Legally sufficient evidence supports the jury's verdict. We overrule this point of error.
(2) Ineffective Assistance of Counsel Has Not Been Established
Wilcox also complains that he was deprived of his right to effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution; Article I, Section 10 of the Texas Constitution; and Article 1.051 of the Texas Code of Criminal Procedure. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; TEX. CODE CRIM. PROC. ANN. art. 1.051(a) (West Supp. 2016). Wilcox argues that his trial counsel's assistance was defective because he failed to call his family and friends during the punishment phase of trial to present evidence of his good qualities, work history, and family ties. Since his trial counsel called Wilcox's wife to present this evidence, we interpret his point of error to be complaining of the amount of mitigating evidence presented by his counsel.
The effectiveness of counsel is evaluated under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). To prevail on his ineffective-assistance claim, Wilcox must prove by a preponderance of the evidence that (1) his counsel's performance was deficient, that is, that it fell below an objective standard of reasonableness, and (2) it is reasonably probable that, except for his counsel's unprofessional errors, the outcome of the proceeding would have been different. See Strickland, 466 U.S. at 687-88, 694; Ex parte Martinez, 330 S.W.3d 891, 900-01 (Tex. Crim. App. 2011). The right to effective assistance of counsel does not mean "errorless or perfect counsel whose competency of representation is to be judged by hindsight." Robertson v. State, 187 S.W.3d 475, 483 (Tex. Crim. App. 2006). Rather, for us to find that Wilcox's trial counsel was ineffective, the trial record must affirmatively demonstrate his deficiency. See Lopez v. State, 343 S.W.3d 137, 142-43 (Tex. Crim. App. 2011). It is insufficient to show that his trial counsel's acts or omissions were merely questionable. Id. Failure to satisfy either prong of the Strickland test is fatal. Ex parte Martinez, 195 S.W.3d 713, 730 n.14 (Tex. Crim. App. 2006); Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Therefore, "we need not examine both Strickland prongs if one cannot be met." Johnson v. State, 432 S.W.3d 552, 555 (Tex. App.—Texarkana 2014, pet. ref'd).
We presume that trial counsel had a sound trial strategy, and this presumption is very difficult to overcome unless there is evidence in the record of counsel's reasons for his conduct. Martinez, 330 S.W.3d at 901. "Trial counsel 'should ordinarily be afforded an opportunity to explain his actions' before being denounced as ineffective." Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012) (quoting Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)). "If counsel's reasons for his conduct do not appear in the record and there is at least the possibility that the conduct could have been legitimate trial strategy, we will defer to counsel's decisions and deny relief on an ineffective assistance claim on direct appeal." Johnson, 432 S.W.3d at 555 (quoting Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex. Crim. App. 2002)). Where the appellate record is silent as to why trial counsel failed to take certain actions, the appellant has "failed to rebut the presumption that trial counsel's decision was in some way—be it conceivable or not—reasonable." Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007); see Thompson v. State, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999).
In this case, Wilcox's trial attorney called Wilcox's wife, Tabatha, as his only witness at the punishment hearing. Tabatha testified regarding their marriage relationship, Wilcox's relationship with his young sons, his work history, his loving nature, his struggles with illegal drugs, and his recent efforts at rehabilitation. Thus, at least some testimony of his good qualities, work history, and family relationships was introduced by his trial attorney. Although Wilcox complains that more of his friends and family were not called to testify, there is no evidence in the record that he provided his trial counsel with the names of any potential witnesses or what those witness would have said. Further, it is conceivable that, assuming Wilcox provided counsel with names of potential witnesses, counsel determined that any value their testimony might bring was outweighed by the potential damage that might be incurred by their testimony.
Since there is at least a possibility of a legitimate trial strategy, and since he has not rebutted the presumption that his trial counsel's decision not to put on additional witnesses was reasonable, Wilcox has failed to meet the first Strickland prong. Therefore, we overrule his second point of error.
We affirm the judgment of the trial court.
Josh R. Morriss III
Chief Justice Date Submitted: March 3, 2017
Date Decided: March 30, 2017 Do Not Publish