Lomax v. State

Full title: MARK WAYNE LOMAX, Appellant, v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Tenth District, Waco

Date published: Mar 29, 2006

No. 10-03-00156-CR (Tex. App. Mar. 29, 2006)

Opinion

No. 10-03-00156-CR

Opinion delivered and filed March 29, 2006. DO NOT PUBLISH.

Appeal fromthe 232nd District Court, Harris County, Texas, Trial Court No. 907,028. Affirmed.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.

MEMORANDUM OPINION

TOM GRAY, Chief Justice.

Lomax appeals his conviction for murder. See TEX. PENAL CODE ANN. § 19.02(b) (Vernon 2003). We affirm. MOTION TO SET ASIDE INDICTMENT. In Lomax's first issue, he contends that the trial court erred in overruling Lomax's motion to quash the indictment. We review a trial court's ruling on a motion to set aside an indictment on an abuse-of-discretion standard. See Tex. Code Crim. Proc. Ann. art. 27.03 (Vernon 1989); Grice v. State, 162 S.W.3d 641, 645 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd); e.g., County v. State, 812 S.W.2d 303, 312 (Tex.Crim.App. 1989) (op. on orig. submission). "A trial court abuses its discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable persons might disagree." McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005); accord Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). Culpable Mental State. First, Lomax argues that the indictment erroneously failed to allege a culpable mental state. See TEX. PENAL CODE ANN. § 6.02 (Vernon 2003). In general, "[i]f an indictment fails to allege a culpable mental state for an offense, it is defective and is subject to a motion to quash." Dinkins v. State, 894 S.W.2d 330, 338 (Tex.Crim.App. 1995). Even "[i]f the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element." TEX. PENAL CODE ANN. § 6.02(b). Lomax was charged with felony murder in the course of committing felony driving while intoxicated. See TEX. PENAL CODE ANN. § 19.02(b)(3), § 49.04(a) (Vernon 2003). "Felony murder is an unintentional murder committed in the course of committing a felony. . . ." Threadgill v. State, 146 S.W.3d 654, 665 (Tex.Crim.App. 2004). Lomax argues that driving while intoxicated cannot serve as the underlying felony for felony murder, since driving while intoxicated does not require proof of a culpable mental state. See TEX. PENAL CODE ANN. § 49.11(a) (Vernon 2003). Lomax points to three Texas Court of Criminal Appeals cases in support of that argument:

First, in Johnson v. State, the Court plainly stated "[t]he felony murder rule dispenses with the necessity of proving mens rea accompanying the homicide itself; the underlying felony supplies the culpable mental state." 4 S.W.3d 254, 258 [sic] (Tex.Crim.App. 1999) (emphasis added). In Homan v. State, the Court held that the State is allowed to transfer the mental state from the commission of a separate felony to an independent homicide committed in the course of a separate felony. 19 S.W.3d 847, 849 n. 4 (Tex.Crim.App. 2000). Finally, in Lawson v. State, the Court again noted: "the culpable mens rea is supplied by the commission of the underlying felony with its accompanying mental state of intention, knowledge, or recklessness." 64 S.W.3d 396, 400 n. 17 (Tex.Crim.App. 2001).

(Corr. Br. at 26 (alterations by Lomax)); see also Salinas v. State, 163 S.W.3d 734, 741 (Tex.Crim.App. 2005). Lomax takes those cases to mean that "the underlying felony supplies the requisite mental state for felony murder," (Corr. Br. at 26); that is, that a mental state is required, and that the underlying felony supplies it. The Court of Criminal Appeals has rejected the theory that "[w]here there exists no general mens rea based upon proof of the commission of a separate felony which may be transferred from that crime to an independent homicide committed in the course thereof, the felony murder rule cannot apply." Johnson v. State, 4 S.W.3d 254, 255-56 (Tex.Crim.App. 1999) (quoting Richardson v. State, 823 S.W.2d 710, 714 (Tex.App.-San Antonio 1992, pet. ref'd)). We take Lomax's cases to mean, rather, that felony murder takes on the culpable mental state, if any, of the underlying felony; but where the underlying felony lacks a culpable mental state, so does felony murder based upon that underlying felony. "[P]roof of a culpable mental state is not required for conviction of an offense under" Texas Penal Code Chapter 49, which includes driving while intoxicated. Tex. Penal Code Ann. § 49.11(a); see id. § 49.04(a); Zulauf v. State, 591 S.W.2d 869, 872-73 (Tex.Crim.App. [Panel Op.] 1979). "[I]t is apparent that the Legislature never intended to require proof of the culpable mental state of a person charged with an offense where one of the essential elements is voluntary intoxication." Ex parte Ross, 522 S.W.2d 214, 218 (Tex.Crim.App. 1975); accord Lewis v. State, 951 S.W.2d 235, 237 (Tex.App.-Beaumont 1997, no pet.); see generally Aguirre v. State, 22 S.W.3d 463, 470-76 (Tex.Crim.App. 1999). "It is common knowledge that intoxication temporarily destroys faculties essential to safe driving," and courts "cannot in good conscience speculate that the Legislature failed to recognize that which human experience has shown." Ormsby v. State, 600 S.W.2d 782, 786 (Tex.Crim.App. [Panel Op.] 1979) (op. on orig. submission) (citing Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607 (1952)); Ross at 218 (citing Schiller). When driving while intoxicated is a felony offense, it will support felony murder. E.g., Fox v. State, 145 Tex. Crim. 71, 72-73, 165 S.W.2d 733, 734 (1942) (op. on orig. submission) (interpreting Act approved May 28, 1923, 38th Leg., 2d C.S., ch. 23, § 2, 1923 Tex. Gen. Laws 56, 56 (formerly codified at Tex. Penal Code art. 802, 1925 Tex. Crim. Stat. 179) (repealed 1993) (current version at TEX. PENAL CODE ANN. § 49.04(a)); Act of Oct. 14, 1935, 44th Leg., 1st C.S., ch. 424, § 1, 1935 Tex. Gen. Laws 1654, 1654 (formerly codified at TEX. REV. CIV. STAT. art. 6707 l-1) (repealed 1993) (current version at TEX. PENAL CODE ANN. § 49.04(a))); Snyder v. State, 132 Tex. Crim. 73, 74-75, 102 S.W.2d 424, 425 (1936) (op. on orig. submission) (per curiam); id., 132 Tex. Crim. at 77, 102 S.W.2d at 426 (op. on reh'g) (interpreting same); see Hines v. State, 515 S.W.2d 670, 674 (Tex.Crim.App. 1974); Ormsby, 600 S.W.2d at 786 (Douglas, J., dissenting) (on reh'g).¹ Accordingly, when driving while intoxicated is the underlying felony for felony murder, felony murder's "definition plainly dispenses with any mental element." See TEX. PENAL CODE ANN. § 6.02(b). Merger. Next, Lomax argues that felony driving while intoxicated merges with felony murder. The merger doctrine holds that "[w]here there exists no general mens rea based upon proof of the commission of a separate felony which may be transferred from that crime to an independent homicide committed in the course thereof, the felony murder rule cannot apply because there is a 'merger' of the two offenses." Johnson, 4 S.W.3d at 255-56 (quoting Richardson, 823 S.W.2d at 714). The Court of Criminal Appeals has held that the merger "doctrine exists only to the extent consistent with [Penal Code] section 19.02(b)(3)." Id. at 258. That is, "a conviction for felony murder under section 19.02(b)(3) will not lie when the underlying felony is manslaughter or a lesser included offense of manslaughter." Id. Otherwise, however, felony murder will lie. "The merger doctrine . . . applies only to prosecutions for felony murder under Section 19.02(a)(3) where the underlying felony is manslaughter or a lesser included offense of manslaughter." Homan v. State, 19 S.W.3d 847, 849 n. 4 (Tex.Crim.App. 2000); e.g., Lawson v. State, 64 S.W.3d 396, 397 (Tex.Crim.App. 2001). Lomax apparently argues that he was charged with intoxication manslaughter, and that intoxication manslaughter constitutes manslaughter: "The act of killing someone while driving while intoxicated cannot be separated from the felony offense of intoxication manslaughter; therefore, the two merge and prosecution under the felony murder statute is precluded." (Corr. Br. at 28.) But the Legislature has separated the two offenses of felony murder and intoxication manslaughter. See TEX. PENAL CODE ANN. §§ 19.02, 49.08(a) (Vernon 2003). And Lomax was not charged with intoxication manslaughter; he was charged with felony murder. Moreover, intoxication manslaughter is not a lesser included offense of manslaughter. "An offense is a lesser included offense," in relevant part, if "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged" or "it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission." Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981). An offense that has a culpable mental state is not a lesser included offense of intoxication manslaughter, which has no culpable mental state. Torres v. State, 52 S.W.3d 285, 286 (Tex.App.-Corpus Christi 2001, no pet.). Manslaughter has a culpable mental state. TEX. PENAL CODE ANN. § 19.04(a) (Vernon 2003). Accordingly, Lomax's offense does not implicate the merger rule. The trial court did not abuse its discretion in overruling Lomax's motion to set aside the indictment. We overrule Lomax's first issue. SUFFICIENCY OF THE EVIDENCE. In several issues, Lomax contends that the evidence was insufficient. Legal Sufficiency. In several issues, Lomax contends that the evidence was legally insufficient. "The inquiry on review of the legal sufficiency of the evidence to support a criminal conviction is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution." Drichas v. State, 175 S.W.3d 795, 798 (Tex.Crim.App. 2005); accord Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Sorto v. State, 173 S.W.3d 469, 472 (Tex.Crim.App. 2005); Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App. [Panel Op.] 1981). "If, given all of the evidence, a rational jury would necessarily entertain a reasonable doubt as to the defendant's guilt, the due process guarantee requires that we reverse and order a judgment of acquittal." Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); see U.S. CONST. amend. XIV. Act Clearly Dangerous to Human Life. In Lomax's second issue, he contends that the evidence that he committed "an act clearly dangerous to human life" was legally insufficient. See TEX. PENAL CODE ANN. § 19.02(b)(3). The indictment alleged that Lomax "did commit an act clearly dangerous to human life, to wit: by operating his motor vehicle, at an unreasonable speed, by failing to maintain a proper lookout for traffic and road conditions, and by failing to take adequate evasive actions prior to striking a motor vehicle occupied by A. Castillo and did thereby cause the death of A. Castillo." The trial court instructed the jury accordingly. Lomax concedes that he engaged in "speeding, weaving in and out of traffic, and tailgating." Speeding is dangerous. See Aguirre, 22 S.W.3d at 476; Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 927 (Tex. 1979); NAT'L CTR. FOR STATISTICS ANALYSIS, U.S. DEP'T OF TRANSP., ANALYSIS OF SPEEDING-RELATED FATAL TRAFFIC CRASHES (2005), http://www-nrd.nhtsa.dot.gov/pdf/nrd-30/NCSA/Rpts/2005/809839.pdf (visited Mar. 22, 2006); ACCIDENT RECORDS BUREAU, TEX. DEP'T OF PUB. SAFETY, MOTOR VEHICLE TRAFFIC ACCIDENTS 31-32 (2001), http://www.txdps.state.tx.us/administration/driver_licensing_control /accident_records/mvta2001/mvta2001.pdf (visited Mar. 22, 2006) (fatal accidents involving speeding). Speeding and reckless driving can constitute acts clearly dangerous to human life. See, e.g., Apodaca v. State, 589 S.W.2d 696 (Tex.Crim.App. [Panel Op.] 1979); Jimenez v. State, 67 S.W.3d 493 (Tex.App.-Corpus Christi 2002, pet. ref'd); Chatman v. State, 830 S.W.2d 637 (Tex.App.-Beaumont 1992), rev'd on other grounds, 846 S.W.2d 329 (Tex.Crim.App. 1993); White v. State, No. 05-04-01248-CR, 2005 Tex. App. LEXIS 8530 (Tex.App.-Dallas Oct. 17, 2005, no pet.) (not designated for publication); In re E.B.M., No. 2-04-201-CV, 2005 Tex. App. LEXIS 7255 (Tex.App.-Fort Worth Aug. 31, 2005, no pet.) (mem. op.) (juvenile adjudication). The jury could rationally have found beyond a reasonable doubt that Lomax committed an act clearly dangerous to human life in his reckless driving. Thus, the evidence that Lomax committed an act clearly dangerous to human life was legally sufficient. We overrule Lomax's second issue. Act in Furtherance of Driving While Intoxicated. In Lomax's third issue, he contends that the evidence that he committed an act in the course of and in furtherance of, or in immediate flight from, the commission of felony driving while intoxicated was legally insufficient. See TEX. PENAL CODE ANN. § 19.02(b)(3). Lomax argues: "Speeding, weaving in and out of traffic, tailgating and aggressive driving do nothing to assist with the commission of the felony DWI, or further it. Once appellant sat behind the wheel of the car, he committed the offense if he was intoxicated." (Corr. Br. at 36.) The Court of Criminal Appeals has rejected Lomax's argument. In Johnson v. Texas, Johnson was charged with felony murder, the indictment alleging that he "committed the felony offense of Injury to a Child 'and while in the course of and furtherance of commission of said offense, did then and there commit an act clearly dangerous to human life, to-wit: hitting [the victim] with a deadly weapon, to-wit: a blunt object. . . .'" Johnson, 4 S.W.3d at 254 [(quoting Indictment)]. Johnson "contended the act constituting the underlying felony and the act clearly dangerous to human life merged, and thus could not support a conviction for felony murder. . . ." Johnson at 254. The Court of Criminal Appeals rejected that argument. Id. at 258; see also Ex parte Easter, 615 S.W.2d 719, 721 (Tex.Crim.App. 1981); Hilliard v. State, 513 S.W.2d 28, 31-33 (Tex.Crim.App. 1974). The jury could rationally have found beyond a reasonable doubt that Lomax committed an act in furtherance of driving while intoxicated. Thus, the evidence that Lomax committed an act in furtherance of driving while intoxicated was legally sufficient. We overrule Lomax's third issue. Act that Causes the Death of an Individual. In Lomax's fourth issue, he contends that the evidence that he committed an act that caused the victim's death was legally insufficient. See Tex. Penal Code Ann. § 19.02(b)(3). Lomax argues that there was no evidence that he saw the victim's truck before Lomax hit it. Lomax cites cases decided under former Penal Code Article 802, which are distinguishable.² See Daniel v. State, 577 S.W.2d 231 (Tex.Crim.App. [Panel Op.] 1979); Spraglin v. State, 169 Tex. Crim. 470, 334 S.W.2d 798 (1960); McKinnon v. State, 159 Tex. Crim. 65, 261 S.W.2d 335 (1953); Long v. State, 154 Tex. Crim. 587, 229 S.W.2d 366 (1950); Smith v. State, 147 Tex. Crim. 278, 179 S.W.2d 965 (1943-44) (per curiam). The issue in those cases was whether intoxication caused the victim's death. See Daniel at 233-34 (op. on orig. submission); Spraglin, 169 Tex. Crim. at 471-74, 334 S.W.2d at 799-800; McKinnon, 159 Tex. Crim. at 68-69, 261 S.W.2d at 337-38 (op. on orig. submission); Long, 154 Tex. Crim. at 591-93, 229 S.W.2d at 368-69 (op. on orig. submission). Intoxication is not an element of the current, felony murder statute. See TEX. PENAL CODE ANN. § 19.02(b)(3). In particular, Lomax points to Smith for the proposition that "a defendant could not be convicted of murder based upon his driving of a vehicle while intoxicated and fatally injuring a person whom the driver did not know was sitting on the bumper of his car." (Corr. Br. at 37-38.) Smith is likewise distinguishable. In Smith, the Court of Criminal Appeals held:

[T]o bring the act of the appellant in the present case within the purview of Art. 802c, P.C., his act of intentionally driving an automobile, while intoxicated, through a barbed-wire fence must constitute a felony under the law. . . . . [U]nless he knew that the deceased was on the fender of the car and did, with a reckless disregard of the lives of others, drive the car through the fence, knowing that death would be the natural and probable consequences of his act, he would not be guilty of murder.

Smith, 147 Tex. Crim. at 282, 179 S.W.2d at 967. Today, the Penal Code describes causation in this way: "A person is criminally responsible 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." TEX. PENAL CODE ANN. § 6.04(a) (Vernon 2003). Lomax drove his truck so as to cause it to collide with that in which the victim was a passenger. The State points to the testimony of the medical examiner who examined the victim's body to the effect that the victim "was killed by injuries consistent with the vehicular collision." Lomax also contends that the "evidence regarding the cause of this accident was hotly disputed." However, the "legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence." Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000). A rational jury could have rationally found beyond a reasonable doubt from this evidence that Lomax committed an act that caused the death of the victim. Thus, the evidence that Lomax committed an act that caused the victim's death was legally sufficient. We overrule Lomax's fourth issue. Factual Sufficiency. In Lomax's fifth issue, he contends that the evidence that he committed an act that caused the death of the victim was factually insufficient. See TEX. PENAL CODE ANN. § 19.02(b)(3). "In a factual-sufficiency analysis, the evidence is viewed in a neutral light. While the court of appeals may disagree with the jury's conclusions, it must also exercise appropriate deference in order to avoid substituting its judgment for that of the jury, particularly in matters of credibility." Drichas, 175 S.W.3d at 799; accord Clewis v. State, 922 S.W.2d 126, 133-34 (Tex.Crim.App. 1996). "There are two ways in which a court may find the evidence to be factually insufficient: the evidence supporting the finding, considered alone, is too weak to support the jury's finding beyond a reasonable doubt; or the contravening evidence is so strong that the state could not have met its burden of proof." Drichas at 799; accord Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). The truck in which the victim was a passenger turned left in front of Lomax's approaching truck. Lomax challenges details of the State's accident reconstruction. The State points to evidence that the driver of the other truck could have turned safely had Lomax not been driving so fast. Even under Lomax's expert's reconstruction, Lomax was driving between thirteen and sixteen miles per hour above the speed limit. Viewing the evidence in a neutral light, we hold that the evidence supporting the finding that Lomax caused the victim's death was not too weak to support the finding beyond a reasonable doubt, nor was the contravening evidence so strong that the State could not have proved beyond a reasonable doubt that Lomax caused the victim's death. The evidence that Lomax committed an act that caused the death of the victim was factually sufficient. We overrule Lomax's fifth issue. EVIDENCE AND DEMONSTRATIVE EXHIBITS. In several issues, Lomax complains of the admission of evidence and exhibits. Blood Test. In Lomax's sixth and seventh issues, he complains of the admission of evidence of his blood alcohol concentration. See TEX. PENAL CODE ANN. § 49.01(1) (Vernon 2003). Expert Evidence. In Lomax's sixth issue, he contends that the trial court erred in overruling Lomax's motion to suppress evidence of the analysis of his blood for blood alcohol concentration. "Generally, a trial court's ruling on a motion to suppress is reviewed under an abuse of discretion standard." Dyar v. State, 125 S.W.3d 460, 462 (Tex.Crim.App. 2003); see Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997). Lomax argues that expert evidence of his blood alcohol concentration was not reliable and should not have been admitted. "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." TEX. R. EVID. 702. "A trial court's ruling on the admissibility of scientific expert testimony is reviewed under an abuse of discretion standard." Russeau v. State, 171 S.W.3d 871, 881 (Tex.Crim.App. 2005); accord Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000).

The proponent of scientific evidence must demonstrate to the trial court, by clear and convincing evidence, that the scientific evidence is reliable. The proponent of "hard" scientific knowledge must satisfy three criteria to demonstrate reliability: (1) the underlying scientific theory is valid; (2) the technique applying the theory is valid; and, (3) the technique was properly applied on the occasion in question.

Russeau at 881 (internal footnote omitted); accord Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App. 1992). Lomax argues that no second test confirmed his blood alcohol concentration. The State's expert testified expressly that no second test was necessary when testing for alcohol, and indeed, that there was no other testing method for testing blood alcohol concentration. The trial court did not abuse its discretion in overruling Lomax's motion to suppress the blood-test evidence. We overrule Lomax's sixth issue. Retrograde Extrapolation. In Lomax's seventh issue, he contends that the trial court erred in overruling Lomax's objection to evidence concerning retrograde extrapolation. "Retrograde extrapolation is the computation back in time of the blood-alcohol level — that is, the estimation of the level at the time of driving based on a test result from some later time." Mata v. State, 46 S.W.3d 902, 908-909 (Tex.Crim.App. 2001). In this connection, Lomax quotes Mata v. Texas: The court evaluating the reliability of a retrograde extrapolation should also consider (a) the length of time between the offense and the test(s) administered; (b) the number of tests given and the length of time between each test; and (c) whether, and if so, to what extent, any individual characteristics of the defendant were known to the expert in providing his extrapolation. These characteristics and behaviors might include, but are not limited to, the person's weight and gender, the person's typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking. See Mata, 46 S.W.3d at 916. The Mata Court continues:

Obviously, not every single personal fact about the defendant must be known to the expert in order to produce an extrapolation with the appropriate level of reliability. As the Kentucky Supreme Court has recognized, if this were the case, no valid extrapolation could ever occur without the defendant's cooperation, since a number of facts known only to the defendant are essential to the process.

If the State had more than one test, each test a reasonable length of time apart, and the first test were conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant's B[lood] A[alcohol] C[ontent] with limited knowledge of personal characteristics and behaviors. In contrast, a single test conducted some time after the offense could result in a reliable extrapolation only if the expert had knowledge of many personal characteristics and behaviors of the defendant. Somewhere in the middle might fall a case in which there was a single test a reasonable length of time from the driving, and two or three personal characteristics of the defendant were known to the expert.

Mata, 46 S.W.3d at 916-17 (citing Commonwealth v. Wirth, 936 S.W.2d 78, 84 (Ky. 1996)); see id. at 904. Lomax contends that the expert knew "with certainty" only three of the Mata factors: Lomax's weight and gender and Lomax's blood alcohol concentration at the time of the one blood test. Lomax concedes that the expert knew Lomax's age and the time of the test. The test took place about an hour and a half after the collision. Lomax also notes certain circumstantial evidence, such as what liquor and what amount Lomax drank, and that Lomax was a moderate to heavy drinker, which the expert concluded from hospital records and the arresting officer's report. Given that the expert knew the results of one test of Lomax's blood alcohol concentration a reasonable time from Lomax's driving and knew several of Lomax's relevant characteristics, the trial court did not abuse its discretion in overruling Lomax's objection to retrograde extrapolation evidence. We overrule Lomax's seventh issue. Demonstrative Exhibit. In Lomax's eighth issue, he contends that the trial court erred in overruling Lomax's objection to a witness's use of a Microsoft PowerPoint presentation during the witness's testimony. See TEX. R. EVID. 901. The rules of evidence and appellate procedure provide that a party may complain on appeal only of matters appearing in the record; otherwise, the party presents nothing for review. TEX. R. APP. P. 33.1(a). Lomax does not point to any representation of the exhibit in the record, nor to a bill of exception. See id. 33.1(a), 33.2; TEX. R. EVID. 103(a). We overrule Lomax's eighth issue. CONCLUSION. Having overruled Lomax's issues, we affirm the judgment.

1 See also, e.g., Lee v. State, 98-IA-00195-SCT (Miss. 2000), 759 So. 2d 390; State v. Pembleton, 978 S.W.2d 352, 355-56 (Mo.Ct.App. 1998); see generally Greg Bailey, Student Work, Death by Automobile as First Degree Murder Utilizing the Felony Murder Rule, 101 W. Va. L. Rev. 235 (1998); but see, e.g., People v. Snow, 530 N.Y.S.2d 913 (N.Y.App.Div. 1988), aff'd, 541 N.E.2d 414 (N.Y. 1989).

2 Former Article 802c provided:

Any person who drives or operates an automobile or any other motor vehicle upon any public road or highway in this State, or upon any street or alley or any other place within the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, and while so driving and operating such automobile or other motor vehicle shall through accident or mistake do another act which if voluntarily done would be a felony, shall receive the punishment affixed to the felony actually committed.

Act of June 17, 1941, 47th Leg., R.S., ch. 509, § 3, 1941 Tex. Gen. Laws 819, 820 (repealed 1993) (current version at TEX. PENAL CODE ANN. § 49.04(a)); see Tyra v. State, 897 S.W.2d 796, 806 n. 5 (Tex.Crim.App. 1995) (Clinton, J., dissenting).