Opinion
02-23-00326-CR
08-30-2024
Lovo Graves, Appellant v. The State of Texas
Do Not Publish Tex.R.App.P. 47.2(b)
On Appeal from the 371st District Court Tarrant County, Texas Trial Court No. 1800875
Before Sudderth, C.J.; Bassel and Wallach, JJ.
MEMORANDUM OPINION
BONNIE SUDDERTH CHIEF JUSTICE
While driving 90 mph in a 45-mph zone, Appellant Lovo Graves crashed into a vehicle carrying two young women, both of whom died. Graves now challenges his convictions for two counts of manslaughter with a deadly weapon; he argues that (1) the trial court erred by failing to grant him a continuance when, according to him, the record establishes that he lacked three business days' notice of trial following his reindictment; and (2) the evidence was insufficient to prove that the women's deaths were caused by his recklessness as opposed to something else. But the record belies the factual basis for Graves's first argument, and the substance of his second argument incorrectly assumes that the State was required to disprove all theories of concurrent or alternative causation inconsistent with his guilt. Therefore, although we correct clerical errors in the judgments to make them conform to the record, we will overrule Graves's challenges and affirm the judgments as modified.
I. Background
Graves's deadly crash occurred in May 2022, and later that year, a grand jury indicted him for two counts of manslaughter. After a last-minute reindictment, the case was set for trial on November 9, 2023, but to give the parties a few additional days to prepare, the trial court postponed the start until the following Monday, November 13, 2023.
Graves was also indicted for other counts, but the State waived the other counts before trial began.
The reindictment joined the two previously indicted manslaughter counts into a single indictment and added allegations that Graves had used a deadly weapon in the commission of the manslaughters.
A. Continuance Motion
On the morning of the November 13 trial, Graves moved for a continuance. His counsel argued that, due to the last-minute reindictment, he had not been aware of the reindictment's November 9 trial setting and had learned of it only on November 9 when he had appeared for what he had thought would be trial on Graves's prior manslaughter indictments. Although the trial had not in fact commenced on November 9 and had been postponed until November 13, because of the intervening weekend, Graves argued that this amounted to less than three business days' notice of the setting on the reindictment. He sought a continuance on this basis, relying on Article 29.035 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 29.035 (providing for three business days' notice of trial).
Graves's prior indictments for manslaughter-the indictments that were joined in the reindictment underlying the present case-were set on November 9, and Graves appeared in the trial court for those settings. At that point, the parties discussed whether voir dire could begin the following day-Friday, November 10- but Graves requested a 30-day continuance, claiming that the State had only recently provided a copy of its collision-reconstruction expert's report. The trial court denied Graves's request for 30 days but granted a continuance until the following Monday, November 13.
After listening to Graves's counsel's argument, the trial court reviewed the file associated with the reindictment and noted that "[t]here[ wa]s a setting notice in the file for the November 9th setting on November 1st." When Graves's counsel expressed surprise, the trial court printed out a copy of the setting notice and provided it to counsel as documentation of what had been sent to the parties on November 1-more than three business days prior. Graves's counsel verbally acknowledged being handed the document and confirmed that he had "nothing further on that" issue. With that, the trial court denied the continuance motion.
The trial court observed that its copy of the setting notice did not bear a file stamp.
B. Evidence
The parties then presented their evidence to a jury. The State explained how two young women-one 19 and the other 18-were turning left into a cemetery entrance across two lanes of oncoming traffic when Graves came over the crest of a hill and "T-boned" them, ramming their vehicle into a tree. The jury learned the details of the crash from numerous witnesses and exhibits:
The mother of one of the victims testified that her daughter had been driving a friend-the other victim-to the cemetery to place flowers on the friend's grandmother's grave.
• A man who had been driving near the collision testified that he had observed Graves's Dodge Ram pickup truck "racing" another vehicle, "going in and out of traffic," and "flooring it."
• This same driver recalled that he had been traveling around 35 or 40 mph, and he opined that anything significantly faster than that would have been dangerous.
• A crime-scene officer authenticated a photograph he had taken of a roadway sign near the crash site, and he described how the sign "warn[ed] drivers that
there [wa]s a T-style intersection coming up, and . . . even [told them] which side of the road that the feeding street . . . com[es] from."
• A police detective confirmed that the speed limit on the relevant stretch of roadway was 45 mph.
• The detective explained how he had used data about the vehicles involved in the crash, the passengers, and the roadway conditions (among other things) to mathematically calculate the speed that Graves had been traveling at the time of the collision: 90.6 mph-more than double the speed limit. The detective had used similar mathematical calculations to determine the victims' speed: 20.53 mph.
• A collision-reconstruction expert walked the jury through an alternative method that he had used to separately verify the vehicles' speeds. Based on the data extracted from the vehicles' "black box[es]," he had calculated Graves's speed to be 91.4 mph and the victims' to be 20.2 mph.
• The expert further explained how he had determined Graves's approximate distance from the victims when they began their left turn into the cemetery, and he confirmed that, in light of Graves's distance from the turn, the victims would have had time to clear the roadway if Graves had been driving the speed limit. In fact, not only would the victims have cleared the roadway, but there would have been "either two-thirds of a football field or nearly a football field . . . as a cushion of clearance."
• In addition, the expert reported that he had performed a "mechanical inspection" of Graves's truck to determine whether any mechanical issues or recalls "had any effect on the causation of this wreck." He found no relevant issues.
• A medical examiner reported that the victim driver's toxicology report had come back negative, showing no signs of alcohol or drugs.
• The medical examiner also confirmed that both victims' deaths had been caused by "blunt force injuries."
Graves then testified in his own defense. He acknowledged that he had been speeding, and although he initially estimated his speed to have been between 70 and 75 mph, when cross-examined on the issue, he did not dispute that his actual speed had been shown to be over 90 mph. Either way, he admitted that even 70 to 75 mph in a 45-mph zone would have been an unsafe speed.
Although Graves described his actions as having been only "part of" what caused the victims' deaths, he did not identify any other causes of the collision. He alluded to the victims' bearing responsibility, but when pressed, he pivoted without explaining what the victims had done to contribute to the crash. And when asked what he wished he had done differently, he testified that he wished he had "[n]ot been driving that speed."
The jury convicted Graves of both counts of manslaughter with a deadly weapon, and after hearing punishment evidence and taking Graves's repeat-offender status into account, it assessed the maximum punishment for each offense: confinement for life and a $10,000 fine. See Tex. Penal Code Ann. §§ 12.32, 12.42(b), 19.04(b).
Graves pleaded true to the repeat-offender allegation in his indictment, admitting that he had been previously convicted for burglary of a habitation. Due to this allegation, the punishment range for each second-degree felony was enhanced, subjecting Graves to confinement for 5 to 99-nine years or life and a fine of up to $10,000. See Tex. Penal Code Ann. §§ 12.32, 12.42(b), 19.04(b).
C. Appellate Record
After trial, Graves filed the present appeal, and he was appointed new counsel. The trial court clerk compiled an appellate record, but the record did not contain a copy of the November 1 setting notice that the trial court had referenced when it denied Graves's continuance motion. Later, though, after Graves filed his opening brief, the clerk supplemented the record with a copy of the November 1 notice.
The notice in the supplemental record bears a file stamp dated May 1, 2024, which is the same date the supplemental record was filed. Neither party has mentioned this file stamp on appeal; indeed, because Graves did not file a reply brief, he has not commented on the supplemental record at all.
II. Discussion
Graves argues that (1) the trial court abused its discretion by denying his motion for continuance and (2) there was insufficient evidence that his reckless conduct was the cause of the victims' deaths.
A. Continuance: Denial Not an Abuse of Discretion
Graves first contends that the trial court abused its discretion by denying his continuance motion under Article 29.035 and that the court thereby deprived him of his statutory entitlement to three business days' notice of trial. See Tex. Code Crim. Proc. Ann. art. 29.035(a) (providing that "a trial court shall grant a continuance" on a defendant's motion "if the trial court sets a . . . trial without providing to . . . the defendant's attorney[] notice of the . . . trial at least three business days before the date of the . . . trial"); see also Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007) (noting that denial of continuance is reviewed for abuse of discretion). According to Graves, the record-that is, the initial clerk's record-establishes that he did not receive three business days' notice because, although the trial court verbally referenced the existence of a November 1 written notice, the document is not in the clerk's (initial) record and when Graves's counsel's moved for a continuance, he averred that he had not received notice until November 9.
To put a finer point on it, Graves insists that a trial court has no discretion to deny a factually supported Article 29.035 continuance due to that Article's mandatory "shall" language. See Tex. Code Crim. Proc. Ann. art. 29.035(a) (providing that trial court "shall" grant continuance in certain circumstances). And he contends that the denial of such a mandated continuance is "constitutional error" because it deprives a defendant of the right to counsel and due process of law. Given the lack of a factual basis for Graves's continuance request, though, we need not address these arguments. See Tex. R. App. P. 47.1.
Graves further reasons that "[l]ogic does not support" the idea that the referenced November 1 notice was ever given because the timing of the notice "would have ignored essentially every meaningful notice requirement afforded [him]" under Articles 27.11, 27.12, and 28.10 of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 27.11, 27.12, 28.10. Graves failed to cite those statutes as grounds for his continuance motion in the trial court, though, and on appeal, he has neither raised them as separate issues nor fully briefed them. See Tex. R. App. P. 33.1(a)(1), 38.1(f), (i).
But, as already mentioned, after Graves filed his opening brief making this argument, the trial court clerk provided a supplemental record with a copy of the November 1 notice-the notice that Graves insists was never given. The setting notice reflects that it was issued on November 1, that it set the case for trial on November 9, that it was emailed to Graves's counsel, and that the email address used for Graves's counsel matched that used on other court notices and in counsel's signature block. Even though this documentation effectively guts the factual basis for Graves's argument under Article 29.035-just as it did when the trial court provided a copy of the document to Graves's counsel in the proceeding below-Graves has opted not to follow up with a reply brief to address it.
Given the setting notice in the supplemental clerk's record showing that Graves's counsel was provided with more than three business days' notice of trial, given the trial court's express reliance on this notice when it ruled on the continuance motion, and given that even Graves's trial counsel seemingly acknowledged that the document undermined the basis for his requested continuance, we hold that the trial court did not abuse its discretion by denying Graves's Article 29.035 continuance motion. See Tex. Code Crim. Proc. Ann. art. 29.035(a).
We overrule Graves's first issue.
B. Sufficiency: Sufficient Evidence of Causation
Graves next argues that there was insufficient evidence that his reckless conduct was the cause of the victims' deaths. He claims that something else could have caused the deaths, that the State's evidence did not account for those other potential causes, and that there was no evidence that the deaths would not have occurred had he been driving at a fast-but-not-reckless rate.
To prove manslaughter, the State was required to prove that Graves recklessly caused the deaths of the two victims. Tex. Penal Code Ann. § 19.04(a). A person is criminally responsible for causing the result of his conduct-here, the victims' deaths-"if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient." Id. § 6.04(a); see Ex parte Rion, 662 S.W.3d 890, 900 (Tex. Crim. App. 2022) ("[M]anslaughter is a result of conduct offense."). In reviewing the sufficiency of the evidence to support the element of causation, we view all the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found causation beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979); Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016); Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).
Despite Graves's contention that something other than his life-threatening speed could have caused the victims' deaths, there was no evidence of any concurrent cause that significantly contributed to the deaths, much less evidence of any alternative cause. At trial, Graves alluded to the victims' actions as a potential cause of their deaths, but he did not enunciate what those alleged actions were. Even when the State pressed Graves to clarify-latching onto his characterization of his conduct as a "part[ial]" cause and asking "what other part contributed"-Graves did not identify any other cause of the deaths.
Meanwhile, the medical examiner testified that the victim who had been driving had no intoxicants in her blood; the collision-reconstruction expert confirmed that a mechanical inspection of Graves's truck revealed no relevant issues or recalls that might have caused the collision; and the expert further testified that, if Graves had been driving the speed limit, the victims would have had plenty of "cushion" to clear the roadway.
Graves himself indirectly conceded causation when he testified. Although he downplayed his "driving 90 miles per hour in a 45" as merely a "part[ial]" cause of the deaths, when asked what he wished he would have done differently to avoid the "tragedy," he stated that he wished he had "[n]ot been driving that speed"-an implicit recognition that, "part[ial]" or not, his "driving that speed" was a but-for cause of the victims' deaths. Cf. Tex. Penal Code Ann. § 6.04(a) (providing for criminal responsibility "if the result would not have occurred but for his conduct," even if that conduct is "operating . . . concurrently with another cause").
The State was not required to negate every alternative hypothesis that Graves advanced, much less every amorphous theory that he alluded to or every conceivable argument he might raise on appeal. See Tate, 500 S.W.3d at 413 ("Although the State must prove that a defendant is guilty beyond a reasonable doubt, the State's burden does not require it to disprove every conceivable alternative to a defendant's guilt."); Wise, 364 S.W.3d at 903 ("For the evidence to be sufficient, the State need not disprove all reasonable alternative hypotheses that are inconsistent with the defendant's guilt."); Staves v. State, No. 01-22-00268-CR, 2022 WL 16640808, at *3 (Tex. App.-Houston [1st Dist.] Nov. 3, 2022, no pet.) (mem. op., not designated for publication) (holding that the fact "[t]hat there is an alternative reasonable hypothesis in which [the victim] 'might' have accidentally fallen to the ground and died before appellant kicked him in the head or neck does not render the evidence legally insufficient."); Greco v. State, No. 02-19-00383-CR, 2021 WL 3557041, at *12-13 (Tex. App.-Fort Worth Aug. 12, 2021, no pet.) (mem. op., not designated for publication) (reiterating that "[t]he State was not required to disprove all reasonable alternative hypotheses . . . for the evidence to be sufficient" and noting that "there [wa]s no evidence that the unborn child's death occurred independently of [the mother's] death").
While Graves protests that the evidence was still required to answer "essential questions" such as "[w]hat speed [wa]s reckless" and "the highest speed [Graves could have been traveling at which] death would have been avoided," the State did not bear the burden to prove those things. It did not need to pinpoint precisely where on the continuum of driving speeds Graves's conduct crossed the threshold into presenting a substantial and unjustifiable risk of death, nor did it need to prove that all speeds short of that threshold would have avoided the victims' deaths. Instead, the State was required to prove that the deaths "would not have occurred but for" Graves's recklessly driving at the life-threatening speed he was traveling and that even if a concurrent cause contributed, Graves's conduct was not "clearly insufficient" to cause the deaths on its own. Tex. Penal Code Ann. § 6.04(a). And a reasonable jury could have concluded just that based on the evidence presented at trial-including Graves's acknowledgement that his driving 90 mph was a "part of" what caused the deaths, Graves's concession that 70 to 75 mph would have been unsafe, the other driver's testimony that anything significantly higher than 35 or 40 mph would have been unsafe, and the collision-reconstruction expert's testimony regarding the cushion of clearance that would have existed had Graves been driving the speed limit. We overrule Graves's second issue.
Graves mentions another complaint in his discussion of the allegedly insufficient evidence of causation. He asserts that the jury charge-which he concedes substantially tracked the statutory text-"invit[ed] the jury to convict without the requisite mental state attached to causation." To the extent that Graves intends to raise this as a separate issue, it is inadequately briefed. See Tex. R. App. P. 38.1(f), (i).
C. Judgments: Clerical Errors
Though neither of Graves's appellate issues shows substantive error in the judgments, the record itself reveals clerical errors that require modification.
The record reflects that, at trial, Graves verbally pleaded "Not guilty" to each offense, but his judgments of conviction state that he pleaded "Guilty." Because "an appellate court has authority to reform a judgment to . . . make [it] speak the truth" when the record provides the information necessary to do so, French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992), we modify the judgments to reflect that Graves pleaded "Not guilty" to each offense. See Lusk v. State, No. 02-23-00094-CR, 2023 WL 8268034, at *1-2 (Tex. App.-Fort Worth Nov. 30, 2023, no pet.) (mem. op., not designated for publication) (modifying judgment sua sponte to reflect that appellant pleaded not true to allegations when judgment erroneously recited plea of true); White v. State, Nos. 02-23-00039-CR, 02-23-00040-CR, 2023 WL 6889985, at *7 (Tex. App.-Fort Worth Oct. 19, 2023, no pet.) (mem. op., not designated for publication) (modifying judgments to reflect that appellant pleaded not guilty when judgments erroneously recited guilty pleas); Cain v. State, 621 S.W.3d 75, 87-88 (Tex. App.-Fort Worth 2021, pet. ref'd) (modifying judgment sua sponte to reflect accurate statute for offense when judgment erroneously listed another statute).
III. Conclusion
Having overruled Graves's two appellate issues, we modify the judgments to accurately reflect Graves's not-guilty pleas, and we affirm the judgments as modified. Tex.R.App.P. 43.2(b).