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Gomez v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 24, 2004
No. 05-04-00038-CR (Tex. App. Aug. 24, 2004)

Opinion

No. 05-04-00038-CR

Opinion Issued August 24, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the 203rd Judicial, District Court Dallas County, Texas, Trial Court Cause No. F03-26071-VP. Affirm.

Before Chief Justice THOMAS and Justices BRIDGES and MALONEY.

The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.


OPINION


The trial court convicted Rosalino Romero Gomez of intoxication manslaughter and assessed a twenty-year sentence. In one point of error, appellant complains that factually insufficient evidence exists to show his intoxication caused the deceased's death. We affirm the trial court's judgment.

We are aware that this Court now resolves issues or points, but because appellant's brief refers to point of error, we use the term "point of error" in this opinion. See Tex.R.App.P. 38.1(e).

BACKGROUND

In the early morning hours, appellant was driving on an interstate highway. When his vehicle began to drift toward the center median wall, he overcorrected and his car hit the wall and rode down the wall toward a light post. His vehicle knocked down the light post, and the light post sheared off the rear left door. A male passenger was thrown out of the vehicle onto the roadway. An oncoming semi-truck and another vehicle ran over the male passenger, who died at the scene. A female passenger got out of the vehicle, jumped a retaining wall, and ran away. The paramedics found appellant still in the vehicle, leaning over the steering wheel and moaning.

WAS THE EVIDENCE FACTUALLY SUFFICIENT?

In his first point of error, appellant complains the evidence was factually insufficient because no credible and reliable evidence shows that appellant's intoxication, and not the deceased's acts, caused the accident and the deceased's subsequent ejection out of the vehicle. Specifically, appellant argues that the deceased's grabbing appellant from behind to make him stop the vehicle caused the vehicle to hit the wall. Appellant also contends that because he and another survived the accident without serious injury, the deceased would also have survived if he had properly buckled his seat belt. The State responds that conflicting evidence exists on causation. The factfinder could have reasonably rejected the defense's evidence and believed the State's evidence, and the evidence contrary to the verdict was not strong enough to defeat the beyond-a-reasonable-doubt standard.

1. The Evidence a. Kevin Shock

Shock, a Dallas County Constable Deputy, testified that he and his wife were returning home from a softball tournament when he saw appellant's vehicle. Shock and appellant were the only two drivers on the road. Appellant's vehicle was approaching the rear of Shock's vehicle at a high rate of speed. Shock had to swerve to another lane to avoid appellant's vehicle hitting him from behind. Because Shock was driving 70-75 miles per hour, he estimated appellant's speed at over 100 miles per hour. As Shock watched, appellant's vehicle drove onto the road's shoulder and drifted toward a bridge support. At the last second, appellant's vehicle pulled back into the center lane. Because appellant never reduced his speed, Shock telephoned 911 and asked them to notify the Rowlett police department. As appellant's vehicle began to drift "dead left" toward the median wall, the driver turned the vehicle's steering wheel so sharply that he lost control of his vehicle and "whipped back" into the wall. The vehicle spun around "360" and "rode the wall down to the light post." When the vehicle hit the light post, a body flew out of the vehicle and all the street lights went off. Shock could not reach the body because a "semi" and a four-door vehicle ran over the body. He was able to stop two "semis" to block the highway. As he walked to the wrecked vehicle, he saw a female exit from the back of the vehicle, jump the retaining wall, and run away.

b. Jason Lowery

J. Lowery, a Garland Fire Department Paramedic, responded to the motor vehicle accident. He examined both the deceased and appellant. The deceased had severe injuries to his head and was already dead. His injuries were consistent with being ejected from a motor vehicle and run over by other motor vehicles. Next, he went to the wrecked vehicle. It was severely damaged on the driver's side; so much so that he had to pry the driver's door open to get appellant out of the vehicle. Appellant was sitting in the driver's seat, slumped over the steering wheel, mumbling and incoherent. The vehicle smelled of alcohol. J. Lowery asked appellant what he had been doing that night, and appellant answered, "[P]arty, party, party." As appellant said this, he was on the stretcher, acting like he was "dancing" by shaking his shoulders and moving his head about. He appeared to be intoxicated. However, on cross examination, J. Lowery admitted he could have been "semi-incoherent . . . from the shock of the accident."

c. Dwayne Lowery

D. Lowery, a Garland police officer, testified he was an accident investigator with the Department. He got to the scene of this "one-car" accident in which the vehicle's front left tire hit the jersey barrier, then the rear tires tracked up onto the jersey barrier, the rear of the vehicle traveled down the top of the jersey barrier with left side forward, and hit a light pole that was on top of the barrier. The light pole bent down and ripped the back left door off the vehicle. D. Lowery believed that is when the deceased was thrown from the vehicle. The light pole ended up in the east lane of the highway. The vehicle had traveled 360 feet from first impact to stop. This indicated that the vehicle was traveling at a high rate of speed. He measured the "striations" of the "outside tire" made as a vehicle swerves to determine that the vehicle's was traveling between 88 and 94 miles per hour-a speed that was not reasonable or prudent. D. Lowery did not believe anyone in the vehicle was wearing a seat belt. If the occupants had fastened their seatbelts, the fire department normally would have cut the seat belts to release any occupants. The seat belts were neither stretched out, rippled, nor cut. On cross, appellant questioned D. Lowery about whether the deceased or the passenger who walked away from the accident were wearing seat belts. He agreed that it was possible that the deceased was ejected because he was not wearing a seat belt or that when the door ripped off, the seat belt was also ripped off. D. Lowery also testified that if appellant had the normal use of his mental and physical facilities, he would not have been driving in the manner in which he was driving. And the accident would not have occurred had he not been intoxicated.

d. Lynn Salzberger

Salzberger, a Dallas County Medical Examiner, testified she performed the autopsy of the deceased. He died from multiple blunt force injuries that were consistent with being ejected from a motor vehicle traveling 88 to 100 miles per hour. Toxicology reported the deceased had a blood alcohol concentration of 0.21 percent.

e. The Appellant

Appellant testified that the deceased forced appellant to go to a topless bar. He only had two beers at the bar. Appellant, however, stipulated that his alcohol blood concentrate tested at 0.18. As they left the bar, they picked up a lady off the street. The deceased wanted to take her home with them. Appellant was driving and the lady and the deceased were seated in the back seat. The lady was seated directly behind appellant. Next, the deceased pulled on appellant's shirt at his neck and wanted him to stop on the side of the freeway. Appellant believed the deceased wanted to have sex with the lady. The deceased's pulling on appellant's shirt caused him to hit the median. He was only driving "about 60 to 65 miles an hour" when the deceased's pulling at him caused the accident. Had the deceased not grabbed him, he could have keep control of the vehicle.

2. Standard of Review

In reviewing the factual sufficiency of evidence to support a verdict, we must answer one question-"[c]onsidering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?" Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. Apr. 21, 2004). We determine the factual sufficiency of evidence by (1) considering if the evidence supporting the verdict is by itself too weak to support the conviction beyond a reasonable doubt and (2) weighing the evidence supporting and contrary to the verdict to determine if the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting this review, we must not "substantially intrude upon" the factfinder's role as the sole judge of the evidence's weight and the testimony's credibility. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); see also Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). We must defer to the jury's decisions on credibility and weight. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003).

3. Applicable Law

A person commits intoxication manslaughter if he operates a motor vehicle in a public place, is intoxicated, and by reason of that intoxication causes the death of another by accident or mistake. Tex. Pen. Code Ann. § 49.08(a) (Vernon 2003). The Code defines intoxication as having an alcohol concentration of 0.08 or not having the normal use of mental or physical faculties by reason of the introduction of alcohol into the body. Tex. Pen. Code Ann. § 49.01(2)(A), (B) (Vernon 2003).

4. Application of Law to Facts

Appellant's vehicle approached the rear of Shock's vehicle at a high rate of speed. Shock had to change lanes to avoid a collision. After appellant passed Shock's vehicle, appellant began to "drift" toward the shoulder and barely avoided hitting a bridge support. Appellant's "sharp turn" allowed him to avoid the bridge support. Instead, he "drifted" back across the lanes and hit the median. Other witnesses confirmed appellant's excessive speed, the collision with the median, the deceased's ejection, and the female's running away. It is undisputed that appellant was driving the vehicle when it hit the median barrier. It is undisputed that the deceased was intoxicated and died from blunt force injuries consistent with ejection from a vehicle. No one testified that any of the vehicle's occupants had on their seatbelts; but if the seatbelts had been buckled, they should have been stretched out, rippled, or cut. The paramedic opined that appellant smelled of alcohol and was incoherent and mumbling. However, when he questioned appellant about his earlier activities, appellant's response indicated that he had been partying. Appellant's blood test revealed a 0.18 alcohol blood level, more that twice the legal limit for intoxication. The accident investigator examined the scene and determined that the vehicle had to be traveling at an unreasonable and imprudent speed-between 88 and 94 miles per hour-when it hit the median barrier. He opined that if appellant had the normal use of his mental and physical faculties, and had not been intoxicated, the accident would not have occurred. Appellant testified that he only drank two beers. He also maintained he was driving between 60 and 65 miles per hour when the accident occurred. He blamed the deceased for causing appellant to loose control by pulling on him "at the neck" Under the Zuniga standard, after reviewing and weighing the evidence supporting the judgment and the evidence contrary to the judgment, we cannot conclude the contrary proof is so strong that the State did not meet the beyond-a-reasonable doubt standard. Nor can we conclude that the contrary proof outweighed the proof of guilt. Consequently, we conclude the evidence is factually sufficient. We resolve appellant's sole issue against him. We affirm the trial court's judgment.


Summaries of

Gomez v. State

Court of Appeals of Texas, Fifth District, Dallas
Aug 24, 2004
No. 05-04-00038-CR (Tex. App. Aug. 24, 2004)
Case details for

Gomez v. State

Case Details

Full title:ROSALINO ROMERO GOMEZ, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Fifth District, Dallas

Date published: Aug 24, 2004

Citations

No. 05-04-00038-CR (Tex. App. Aug. 24, 2004)