Nos. 05-08-01451-CR, 05-08-01452-CR
Opinion issued June 28, 2010. DO NOT PUBLISH. TEX. R. APP. P. 47
On Appeal from the 203rd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F08-53832-NP and F08-53833-NP.
Before Justices BRIDGES, FITZGERALD, and FILLMORE.
Opinion By Justice FILLMORE.
A jury convicted Milton Silmon of intoxication manslaughter and intoxication assault and found in each case that Silmon used or exhibited a deadly weapon. Pursuant to a plea agreement on punishment, Silmon pleaded true to the two enhancement paragraphs in each indictment, and the trial court sentenced him to thirty years' imprisonment in each case. In five issues, Silmon contends the evidence is legally and factually insufficient to support the convictions and the judgment in the intoxication manslaughter case should be reformed to reflect the correct statute for the offense. We affirm the trial court's judgment in the intoxication assault case (F08-53833-NP). We modify the trial court's judgment in the intoxication manslaughter case (F08-53832-NP) to reflect Silmon was convicted under section 49.08 of the penal code and, as modified, affirm the trial court's judgment.
Background
On April 5, 2008, Monte Hurt picked up Silmon from work between 3:00 and 4:00 p.m. Hurt was driving a white Toyota Avalon that his mother had rented earlier that day. Hurt and Silmon went to Hurt's apartment in North Dallas and began drinking gin and beer. After drinking for several hours, Hurt and Silmon decided to drive to Silmon's hometown of Jacksonville. According to Hurt, he was driving when the two men left his apartment. They stopped at a liquor store and a gas station and then went to Silmon's girlfriend's apartment in East Dallas. Hurt testified that Silmon went inside the apartment. While Silmon was inside the apartment, Hurt passed out in the driver's seat of the car. When Silmon returned to the car, he asked Hurt if he could drive. Hurt agreed, moved into the passenger seat, and fell asleep as they left. According to Hurt, he woke up three weeks later in Baylor University Medical Center (Baylor). His lower right leg had been amputated and the ligaments in his left knee were damaged. Hurt admitted he was convicted of driving while intoxicated (DWI) in 2005. Contrary to Hurt's testimony, Latonya Billups, Silmon's girlfriend, testified that Hurt and Silmon did not come to her apartment. Rather, Billups met Silmon in the parking lot of Hurt's apartment complex so that Silmon could give her some money. Michael Horn, Silmon's cousin, testified he was drinking beer with Hurt and Silmon at Hurt's apartment and accompanied Silmon to the parking lot to see Billups. Horn saw Hurt and Silmon leave the apartment complex at approximately 8:50 p.m. with Hurt driving the car. Carolyn Garrett has been Silmon's friend since 1996. She has also met Hurt on several occasions. On April 5, 2008, Garrett was sitting in a car at her sister's house with her cousin, Tamaica Franklin. The house was located in Mesquite, approximately five or ten minutes from 6600 Bruton Road. Garrett and Franklin were attending a barbecue for Franklin's brother's birthday. According to Garrett, Hurt and Silmon came to the party. Hurt was driving the car, and Silmon was in the passenger seat. Hurt and Silmon went into the house for a short period of time. Silmon then came over to Garrett's car, and Hurt got into the driver's seat of his car. Garrett, Franklin, and Silmon walked over to Hurt's car to introduce Hurt to Franklin. Garret testified that she and Silmon then walked to a nearby store for some ice. Hurt was "flirting" with Franklin and was not passed out when she left or when she returned. After they came back from the store, Silmon stayed only four or five more minutes and then said he was going to Tyler to a party. Garrett walked Silmon to the passenger side of Hurt's car and said goodbye. Hurt drove away between 10:00 and 10:15 p.m. Franklin testified she was standing in the yard of the house when Hurt and Silmon arrived. Hurt was driving the car. Franklin had met Silmon, but had not met Hurt. Franklin and Garrett walked over to Hurt's car. Garrett and Silmon walked to the store, but Franklin stayed and talked to Hurt. According to Franklin, she was in Hurt's car for approximately twenty minutes, and Hurt did not pass out. However, it was apparent Hurt had been drinking, and he was slurring his words "real bad." Both Hurt and Silmon were "pretty wasted." When Silmon returned from the store, he got into the passenger seat, and Hurt drove away. Franklin does not know if they subsequently switched drivers. Dominic Barrance testified he was driving on Bruton Road in the middle lane when a white car going sixty or sixty-five miles per hour passed him on the right. The white car moved back into the middle lane and approached a green car. As the white car moved into the right lane to pass the green car, the green car "moved over a little bit" as if it was trying to get out of the white car's way. The white car hit the left side of the back bumper of the green car, went over the center median, and flipped. Barrance saw the green car "spin out" twice. Barrance stopped to help. He confirmed the driver of the green car was dead. There were two men in the white car. One was in the back seat from the impact, and the other was hanging with his seatbelt a "little between the driver and the back seat." At trial, Barrance could not identify who was driving the white car, but testified he knew who the driver was on the date of the accident and was able to point out the driver to the police while the driver was still in the car. According to Barrance, the passenger was the individual in the back seat. Santiago Landa was also driving in the middle lane on Bruton Road when he saw a car behind him. Landa thought the car was going to hit him, so he tapped his brakes. The car swerved into the right lane and passed him on the right. Landa estimated the white car's speed was seventy-five to eighty miles per hour. The white car moved back into the middle lane after passing him. According to Landa, the white car swerved a little bit as it changed lanes. When the white car was approximately 100 yards in front of Landa, it tried to change lanes again and clipped the corner of a green car. The white car bounced off the guard rails, flew into the air, rolled over twice, and landed upside down on the other side of Bruton Road. Albert Chacon, a traffic accident investigator with the Dallas Police Department, was called to the accident scene. The accident occurred at 10:20 p.m. Chacon testified the white car had been occupied by Silmon and Hurt and that it caused the accident by crashing into the back of the blue car. The crash was a "straight on" collision, and the driver of the white car did not brake prior to impact. Larry Shaw, Jr., the driver of the blue or green car, was dead at the scene from a broken neck. Chacon found alcohol in the white car. A firefighter told Chacon the driver of the white car was wearing all orange. Corporal R.E. Balluch testified that Chacon requested the DWI squad go to Baylor and check on the victim and the driver. As Balluch walked into the emergency room, he saw some of the paramedics who had responded to the accident. He asked the paramedics where the victim and the driver were, and they pointed to different locations. He went to the location the paramedics indicated for the driver and contacted Silmon. A pair of orange pants and an orange shirt were on the gurney below Silmon. The clothes smelled of alcohol. Balluch testified Silmon consented to a blood draw. Aria McCall, a forensic toxicologist, testified Silmon's blood alcohol level was 0.16. Detective Delaney testified he interviewed Silmon four days after the accident. Silmon was still in the hospital, but was alert, awake, and cooperative. Silmon gave a statement in which he admitted he was driving the car and "ran into the back" of the blue car. Silmon stated he was driving the car because Hurt "was driving pretty bad before the wreck" and Silmon "told him to move over and let me drive." In Silmon's opinion, Shaw caused the accident by pulling out in front of him. Delaney admitted he provided some of the information in the statement, such as the license plate of the white car, but testified Silmon told him to include the information in the statement. Delaney also admitted certain medications could have affected Silmon's mental faculties, but did not believe Silmon was intoxicated at the time he gave his statement. Justin Hood, a Dallas firefighter, testified he was in the second group of firefighters who responded to the accident. Other firefighters were attempting to remove Hurt and Silmon from the car. According to Hood, the two men were "scattered" in the vehicle. Hood provided emergency assistance to Hurt and transported him to the hospital. His report stated Hurt was in an unknown position in the car. Hurt's medical records identified him as the driver of the car and in an unknown position in the car. Silmon's medical records identified him as the passenger in the car and the driver of the car. The jury convicted Silmon of intoxicated manslaughter and intoxicated assault and this appeal ensued. Sufficiency of the Evidence
In his first four issues, Silmon asserts the evidence is legally and factually insufficient to prove he was the driver of the car. In conducting a legal sufficiency review, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia., 443 U.S. 307, 318-19 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). The trier of fact is the sole judge of the weight and credibility of the evidence and is responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We may not reevaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Laster, 275 S.W.3d at 517; Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Instead, we determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). When conducting a factual sufficiency review, we view all of the evidence in a neutral light. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We will set aside the verdict only (1) if the evidence supporting the conviction is too weak to support the verdict, or (2) when the evidence supporting the verdict is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Laster, 275 S.W.3d at 518; Grotti v. State, 273 S.W.3d 273, 283 (Tex. Crim. App. 2008). We are permitted to substitute our judgment for the fact finder's when considering credibility and weight determinations, but only to a "very limited degree." Marshall, 210 S.W.3d at 625. Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705; Marshall, 210 S.W.3d at 625; Revels v. State, No. 05-07-01555-CR, 2008 WL 5177374, at *5 (Tex. App.-Dallas Dec. 11, 2008, no pet.). We must have a "high level of skepticism about the jury's verdict" before we may reverse based on factual insufficiency. Steadman v. State, 280 S.W.3d 242, 246-47 (Tex. Crim. App. 2009). A person commits intoxication manslaughter if he operates a motor vehicle in a public place while intoxicated and, by reason of that intoxication, causes the death of another by accident or mistake. Tex. Penal Code Ann. § 49.08 (Vernon Supp. 2009). A person commits intoxication assault if the person, by accident or mistake, while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another. Id. § 49.07(a). The State had the burden to prove beyond a reasonable doubt that Silmon is the person who committed the crimes charged. See Miller v. State, 667 S.W.2d 773, 775 (Tex. Crim. App. 1984); Wiggins v. State, 255 S.W.3d 766, 771 (Tex. App.-Texarkana 2008, no pet.). Identity may be proved by direct evidence, circumstantial evidence, or reasonable inferences from such evidence. Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.-Austin 2000, pet. ref'd). Here, Hurt testified Silmon was driving at the time of the accident, and Silmon gave a statement in which he admitted he was driving. Further, Barrance testified he pointed out the driver to the police on the date of the accident. A firefighter told Chacon that the driver was wearing all orange clothes. When Balluch arrived at the hospital, the paramedics told him the driver was in a specific location. When Balluch went to that location, he found Silmon and noted an orange pair of pants and an orange shirt were on the gurney beneath Silmon. Silmon argues his statement is unreliable because it was given while he was on pain medication and includes information that was clearly provided by Delaney. He also asserts Hurt's testimony was refuted by Billups, Horn, Garrett, and Franklin. However, the jury was not required to accept Silmon's version of the events, and we may not substitute our judgment for that of the jury. See Laster, 275 S.W.3d at 517; Lancon, 253 S.W.3d at 705. Viewing the evidence in the light most favorable to the verdicts, we conclude a rational jury could find Silmon was driving the white car at the time of the accident. Further, viewed in a neutral light, the evidence supporting the convictions is not so weak or so against the great weight and preponderance of the contrary evidence that the verdicts seem clearly wrong or manifestly unjust. Accordingly, we conclude the evidence is legally and factually sufficient to support the jury's determination Silmon was the driver of the car. We overrule issues one through four. We affirm the trial court's judgment in case number F08-53833-NP. Modification of Judgment
In his fifth issue, Silmon contends the trial court's written judgment in the intoxication manslaughter case should be modified to reflect the correct statute under which he was convicted. The State agrees that the judgment should be corrected to reflect the proper statute. We sustain Silmon's fifth issue. We modify the trial court's judgment in case number F08-53832-NP to reflect Silmon was convicted under section 49.08 of the penal code. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). As modified, we affirm the trial court's judgment in case number F08-53832-NP.