No. 14-06-00812-CR
Opinion filed August 23, 2007. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 985524.
Panel consists of Justices YATES, EDELMAN and SEYMORE.
CHARLES W. SEYMORE, Justice.
A jury found appellant, Rodney McDowell, guilty of intoxication manslaughter, and the trial court sentenced him to sixteen years' confinement. In one issue, appellant contends the evidence is legally and factually insufficient to support his conviction. Our disposition is based on settled law. Accordingly, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
I. BACKGROUND
During the evening of October 31, 2003, Keisha Davis was driving home after visiting her husband at his place of employment. Around 10:30 p.m., Mrs. Davis was traveling north, in the far right lane on Scott, toward the intersection of Scott and Wheeler. Deirdre Curnell was also driving northbound on Scott in the lane on the left side of Mrs. Davis's vehicle. As Mrs. Davis started to drive through the intersection, she noticed a Ford Taurus, heading eastbound on Wheeler. The driver of the Taurus was traveling at a high rate of speed toward the intersection, and he did not appear to brake or slow down. The Taurus collided with Curnell's vehicle. This collision forced Curnell's vehicle into the back left portion of Mrs. Davis's car and caused Mrs. Davis's car to spin around. After the collision, Mrs. Davis checked on the passengers in her car and called her husband, Billy Davis, and 911. Mr. Davis, a Houston Independent School District police officer, activated the emergency lights on his patrol vehicle and drove to the scene of the accident. When he arrived, all three cars involved in the collision were still in the intersection. Mr. Davis first checked on his wife. Then he checked on Curnell, who was in the second vehicle. He discovered that she did not have a pulse. He next checked on the individual in the Taurus. Mr. Davis found appellant positioned in the Taurus driver's seat. Appellant was the only individual in the car. At the time, appellant was unresponsive but had a pulse. Mr. Davis detected the odor of alcohol on appellant and noticed a half-empty bottle of alcohol on the passenger-seat floorboard. Officer Terry Houston of the Houston Police Department investigated the accident at the scene. He was not able to talk with appellant or conduct a field sobriety test at the scene. Curnell was taken to Ben Taub Hospital, and appellant was taken to Memorial Hermann Hospital. Officer Houston spoke with appellant later that evening at the hospital. Officer Houston noticed appellant had a strong odor of alcohol on his breath, his speech was slurred, and his eyes were red. Appellant admitted to Officer Houston that he had a few beers before the accident. Officer Houston also had a blood sample taken from appellant, which indicated appellant's blood alcohol level was 0.13 grams of alcohol per 100 milliliters of blood. Curnell died from injuries sustained in the collision. A jury found appellant guilty of intoxication manslaughter, and the trial court sentenced him to sixteen years' confinement. II. STANDARD OF REVIEW
In his sole issue, appellant contends the evidence is legally and factually insufficient to support his conviction for intoxication manslaughter because the State failed to prove beyond a reasonable doubt that appellant was the person operating the vehicle that killed Curnell. Specifically, appellant contends that between the time of the accident and the moment when Mr. Davis first looked into the Taurus, another person who might have been the driver could have exited the vehicle and left the accident scene. 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 fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex.Crim.App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness's testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex.Crim.App. 1998). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v.State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex.App.-Houston [14th Dist.] 2005, pet. ref'd). In a factual-sufficiency review, we view all the evidence in a neutral light and set aside the verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997) (quoting Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996)). Before we may reverse for factual insufficiency, we must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). We do not re-evaluate the credibility of witnesses or the weight of evidence, and will not substitute our judgment for that of the factfinder. Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). Evidence can be both legally and factually sufficient to support a conviction even if it is entirely circumstantial. See King v. State, 29 S.W.3d 556, 565 (Tex.Crim.App. 2000). The standard of review for cases based on circumstantial evidence is the same as the standard for reviewing cases with direct evidence. Id. Not every fact supported by circumstantial evidence must directly and independently point to the defendant's guilt. Johnson v. State, 871 S.W.2d 183, 186 (Tex.Crim.App. 1993). Instead, the conclusion is sufficient if it is justified by the combined and cumulative force of all the incriminating circumstances. Id. III. ANALYSIS
Under Texas Penal Code section 49.08(a), a person commits intoxication manslaughter if he operates a motor vehicle in a public place while intoxicated and by reason of his intoxication causes the death of another by accident or mistake. TEX. PENAL CODE ANN. § 49.08(a) (Vernon 2003). Intoxication is defined as not having the normal use of mental or physical faculties by reason of the introduction of alcohol into his body or having an alcohol concentration of at least 0.08 or more. TEX. PENAL CODE ANN. § 49.01(2) (Vernon 2003). Appellant argues the mere fact that he was sitting in the driver's seat and sustained injuries only shows he was in the car at the time of the accident but does not necessarily show he was operating the vehicle at the time of the accident. Appellant further contends that Mrs. Davis was too preoccupied checking on her own passengers to notice if the "real" driver had exited the Taurus. In response, the State contends that a rational jury could have found beyond a reasonable doubt that appellant was the operator of the vehicle based on the strong circumstantial and direct evidence. Courts of appeals have found circumstantial evidence sufficient to prove a defendant was the driver where the defendant was found in the driver's seat shortly after an accident. See Hernandez v. State, 773 S.W.2d 761, 762 (Tex.App.-San Antonio 1989, no pet.) (finding circumstantial evidence legally sufficient to prove defendant was the operator of the vehicle where only minutes after a report of a vehicle moving the wrong way on a public road, the defendant was found at the same location, behind the driver's seat, alone, with the engine running and the lights activated); see also Holder v. State, 354 S.W.2d 153, 154-55 (Tex.Crim.App. 1962) (finding evidence sufficient to prove defendant was operating the vehicle when she was found alone, in the driver's seat, "three or four" minutes after the collision); Vasquez v. State, 415 S.W.2d 188, 190 (Tex.Crim.App. 1967) (holding evidence that the defendant was found alone in the vehicle "immediately after the collision" with his feet under the steering wheel was sufficient to prove he was the driver). Courts have also found circumstantial evidence sufficient to prove the defendant was the driver by considering positioning of the defendant's body in the vehicle. See Sandford v. State, 334 S.W.2d 184, 185-86 (Tex.Crim.App. 1960) (finding evidence sufficient "to exclude any outstanding hypothesis that some other person could have been the driver of the automobile" where the defendant was found unconscious in the driver's seat, all car doors were locked, and there was no other person in the car or near the scene); see also Green v. State, 640 S.W.2d 645, 648 (Tex.App.-Houston [14th Dist.] 1982, no pet.) (finding where there were no witnesses to the accident and an unnamed man at the accident scene was observed assisting the defendant immediately after the accident, the evidence was sufficient to support the finding that the defendant was the driver of the vehicle because the defendant was alone in the vehicle and his feet were positioned near the steering wheel with his head facing toward the passenger's side). Here, there was sufficient direct and circumstantial evidence that appellant was the operator of the vehicle. At trial, Mrs. Davis testified that she observed the Taurus traveling at a high rate of speed toward the intersection but could not see the person who was driving the Taurus. After the accident, she first checked on the passengers in her vehicle and then called her husband and 911. She testified that her husband arrived on the scene in less than six or seven minutes. Mrs. Davis did not check on the individuals in the other two vehicles. After the collision, she could not see anyone's head in the Taurus. Mrs. Davis testified that she told the 911 operator that she "couldn't see anybody." Specifically, she told the operator that she "couldn't see any heads or anything" and asked the operator "to send a couple of ambulances because no one was moving" or had gotten out of the vehicles at that time. Mrs. Davis also explained that while her husband was checking on the appellant seated in the Taurus, she did not see anyone exit the vehicle. She further explained that she did not see any other individuals at or near the scene of the accident other than a Metro Bus stopping at a bus stop near the intersection after the accident occurred. In addition, Mr. Davis testified that he was working about eight to nine miles from the scene of the accident. After he received his wife's call, he immediately drove to the scene using his marked police vehicle. Mr. Davis arrived in less than five or six minutes. He first checked on his wife who was standing outside her vehicle waiting for him and checked on Curnell and appellant. As Mr. Davis approached the Taurus, he observed that appellant was the only person in the car. Mr. Davis called out to appellant, and appellant did not respond. Mr. Davis found appellant positioned in the driver's seat and took his pulse at the driver's seat. A rational jury could have reasonably concluded appellant was the driver of the Taurus that collided with and killed Curnell based on the positioning of his body in the driver's seat, the short time period between the accident and Mr. Davis's finding appellant in the driver's seat, and Mrs. Davis's testimony that she did not see "any heads" in the vehicles when she called 911 after the accident. Viewing the evidence in a neutral light, we conclude that the jury's verdict is not contrary to the great weight and preponderance of the evidence and find the evidence factually sufficient. Accordingly, appellant's sole issue is overruled, and the trial court's judgment is affirmed.