Opinion
Nos. 05-03-01472-CR, 05-03-01473-CR, 05-03-01474-CR, 05-03-01475-CR, 05-03-01476-CR, 05-03-01477-CR
Opinion issued October 28, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause Nos. F03-00331-RI, F03-00332-RI, F03-00333-RI, F03-00334-RI, F03-00336-Ri F02-51104-UI. Affirmed.
Before Justices MORRIS, WHITTINGTON, and MAZZANT.
OPINION
Jim Tijerina appeals his convictions for three counts of aggravated assault, two counts of manslaughter, and one count of failure to stop and render aid. After finding appellant guilty of all six offenses, the jury assessed punishment at twenty years' confinement and a $5,000 fine in each aggravated assault and manslaughter conviction and five years' confinement in the failure to stop and render aid conviction. In addition, the jury made an affirmative finding that appellant used a deadly weapon in each aggravated assault and manslaughter case. In nine issues, appellant contends the evidence is legally and factually insufficient to support his convictions and the judge erred in (i) refusing to grant a challenge for cause, (ii) denying his motion to dismiss, and (iii) admitting and excluding certain evidence. We affirm the trial court's judgments.
Background
Around 12:30 a.m. on May 19, 2002, Carlos Ybarra Sr., his wife, Leona, and their three children, Carlos Jr., Mario, and Ariel, were driving home in their Chevrolet Cavalier. As the car approached the intersection of Kiest and Hampton, the light turned green. Several cars traveling in the same direction had cleared the intersection by the time the Cavalier entered it. At the same time, a black Chevrolet Camaro driven by appellant entered the intersection, striking the Cavalier and sending it into a pole. The Camaro continued until it struck and entered a building. Although Ybarra was able to get out of the car, he was unable to free his family members before the car burst into flames. An individual who witnessed the accident pulled Carlos Jr. from the car. Mario had been thrown out of the car. Leona and her sixteen-month-old daughter, Ariel, died in the burning car. Appellant left the scene of the accident and was later arrested at his home. He was subsequently tried and convicted of aggravated assault of Ybarra, Mario, and Carlos Jr., manslaughter of Leona and Ariel, and the failure to stop and render aid. The trial judge denied appellant's motion for new trial, and these appeals ensued.Sufficiency of the Evidence
In his first, second, third, and fourth issues, appellant contends the evidence is legally and factually insufficient to support his first five convictions because (i) the State failed to prove appellant recklessly caused the deaths and serious bodily injuries and (ii) appellant's conduct did not cause the deaths and serious bodily injuries. In his fifth issue, appellant claims the evidence is factually insufficient to support his conviction for failure to stop and render aid because the evidence shows appellant did not have "knowledge of the circumstances surrounding his conduct." When reviewing challenges to the legal sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex.Crim.App. 2001), cert. denied, 537 U.S. 1195 (2003). We view the evidence in the light most favorable to the verdict. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). We determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 2004 WL 840121, at *5 (Tex.Crim.App. April 21, 2004); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim.App. 2003); Santellan v. State, 939 S.W.2d 155, 160 (Tex.Crim.App. 1997). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). Thus, the factfinder is free to accept or reject any or all of the evidence presented by either side. Thomas v. State, 3 S.W.3d 89, 92 (Tex.App.-Dallas 1999), aff'd, 65 S.W.3d 38 (Tex.Crim.App. 2001); see Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). The factfinder may draw reasonable inferences from basic to ultimate facts. See Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003); Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000). In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla, 143 S.W.3d at 817 (citing Zuniga v. State, 2004 WL 840786, at *7 (Tex.Crim.App. April 21, 2004)). The question under a factual sufficiency challenge is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 2004 WL 840786, at *7. Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 2004 WL 840786, at *7. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). A person commits manslaughter if he recklessly causes the death of an individual. Tex. Pen. Code Ann. § 19.04 (Vernon 2003). He commits aggravated assault if he recklessly causes bodily injury to another and (i) the injury is serious bodily injury or (ii) he uses a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. § 22.01(a)(1), 22.02(a)(1), (2) (Vernon Supp. 2004-05). A personacts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.Tex. Pen. Code Ann. § 6.03(c) (Vernon 2003). A person commits the offense of failing to stop and render aid if he is involved in an accident resulting in injury to or death of a person and does not
(i) immediately stop the vehicle at the scene of the accident or as close to the scene as possible;
(ii) immediately return to the scene of the accident if the vehicle is not stopped at the scene of the accident; and
(iii) remain at the scene of the accident until the operator complies with the requirements of Section 550.023.Tex. Transp. Code Ann. § 550.021(a) (Vernon 1999). The culpable mental state for the offense of failing to stop and render aid is "that the accused had knowledge of the circumstances surrounding his conduct, i.e., had knowledge that an accident had occurred." Gross v. State, 582 S.W.2d 782, 785 (Tex.Crim.App. 1979) (citation omitted). Although appellant claims the evidence is legally insufficient to show he acted recklessly in killing Leona and Ariel and in seriously injuring Ybarra, Mario, and Carlos Jr. and legally insufficient to show he failed to stop and render aid, we disagree. At trial, Ybarra testified that at the time of the accident, he, Leona, and their children lived with Leona's mother in her house in Pleasant Grove. Around three o'clock on the afternoon of May 18, 2002, the family drove to Ybarra's mother's house in Oak Cliff for a birthday party. Ybarra had one beer with dinner around six o'clock and drank Cokes the rest of the evening. Around midnight, the family left. When they left, Ybarra mentioned wanting to visit his cousin who was going into the army. Initially, Leona did not want to go but as they drove home, she agreed to stop by for a little while. Ybarra turned around and headed toward his cousin's home on Kiest Boulevard. Ybarra turned onto Kiest headed west. Ybarra testified he traveled that road frequently and described the traffic as "medium." When he approached the intersection with Hampton Road, he noticed the red traffic light and slowed. The light turned green before he reached the intersection so he kept going. Several cars ahead of him drove through the intersection. He entered the intersection going between 30 and 35 miles per hour. Leona suddenly told him to watch out, and their car was struck by appellant's which was headed south on Hampton. Ybarra testified the car was pushed into a light pole. He felt his wife fall into his lap. He was in a daze, but managed to get out of the car. He felt he could not stand up. He saw the car in flames. He ran back to the car and tried to get Leona out but she was too heavy for him. He reached in the backseat for Ariel who was in a carseat. He felt himself on fire. A bystander pulled him out by his legs and, when he fell, he passed out. When he came to, the car exploded. Paramedics took him to an ambulance and transported him to Parkland Hospital. Ybarra was burned on his arms, hands, back, and the top of his head. He spent a little over a month in the hospital, one week of which was spent in ICU. According to Ybarra, Carlos Jr. was burned from his face down to his feet. He spent nearly two months in the hospital. Mario had head trauma and lacerations. He was taken to Children's Hospital and, although hospital personnel did not know if he would survive the first night, he was treated and released two months later. The day after the accident, Ybarra was told his wife and his sixteen-month-old daughter had burned to death in the car. Harvey Rainville testified he, his girlfriend, Elaina Hurst, appellant, appellant's girlfriend, Rosie Sanchez, and Jessica Perales met at Sanchez's house around nine o'clock on the evening of May 18, 2002. Appellant was driving a "new" Chevrolet Camaro SS. According to Rainville, the plan was to attend a graduation party that night. Rainville testified there was beer and liquor at Sanchez's, and they "were all drinking." He was drinking beer, and the girls were mostly doing liquor shots. He did not see appellant drink any beer or shots. He testified that if appellant drank, "it would have been maybe a couple of sips from somebody else's drink," but that he "never saw him have his own drink." After thirty minutes, the group got ready to leave, taking the beer and liquor with them. When they first got in the Camaro to leave, smoke billowed up from the floorboard. The girls got out. Appellant and Rainville drove around in the Camaro to make sure it operated all right. When it appeared to be fine, the girls got in the car. Appellant stopped at a mechanic's house en route to the party. He got out and spoke with two people. He returned to the car and mentioned the remote keyless entry or starter to Rainville. They then drove to Sanchez's brother's house. They ate and drank at Sanchez's brother's house and after twenty minutes, left for another party in Duncanville. Appellant was driving, and Rainville was in the front passenger seat. The three girls were in the back seat. Jessica rode behind appellant, Rosie in the middle, and Elaina behind Rainville. About ten minutes later, they reached the top of the hill on Hampton Road. From that vantage point, Rainville saw the red traffic light below at the intersection with Kiest, approximately one-quarter mile away. He thought it would be difficult to stop the car because of the car's momentum, the weight of the car with five passengers, and the fact they were traveling downhill. Rainville testified he thought the car was going about 55 miles per hour and that the speed limit sign showed the limit as 40 miles per hour. The light did not turn green but remained red as they entered the intersection and collided with a car in the middle of the intersection. The Camaro veered off into an abandoned gas station. Rainville might have passed out briefly. When he was aware the car had stopped, he heard someone call, "Fire, fire." He tried to wake up everyone in the car and get them out of the car. There was broken glass, and appellant's face was bloody. Rainville crawled out of the window and tried to pull Elaina out. Other people came and helped them out of the Camaro to a grassy area. Rainville could hear the fire and screaming. At some point, appellant got out of the car. From a distance, Rainville saw him talking to a police officer. Rainville left with Elaina in an ambulance. Rainville testified he had been drinking enough to impair his judgment at the time they left the second house and "wouldn't have wanted to drive." He believed appellant was very mildly under the influence of alcohol at the time of the accident. He remembered giving a written statement to police at the hospital later that morning in which he stated everyone was concerned when the car came over the hill and that someone in the car asked appellant to slow down. Rainville also testified his statement to police said "[appellant] was intoxicated, that [they] were all intoxicated at the time of the collision." He testified that following the accident, he was mad at appellant. On cross-examination, Rainville testified that if he thought appellant was intoxicated that night, he would not have gotten in the car with him. He testified it felt as though the car decelerated at the top of the hill and slowed, as though it were coasting, as they began to go down the hill just prior to the accident. Rainville did not look at appellant's feet to see if he had attempted to brake the car. Perales testified she was at Sanchez's house the night of May 18. She met appellant for the first time that night. He brought beer and two types of liquor, Alize and 99 Bananas, to Sanchez's house. Perales believed the "99" in the name was because the liquor was "99 proof." Perales testified appellant drank two or three shots with the girls. Rainville drank beer only. When they left, they took the liquor and beer with them. When asked about appellant's driving, Perales said it was fast. He was "speeding down the neighborhood streets. Just fast over the speed limit." Perales thought he was trying to impress them with his driving. She estimated the car was going 60 to 70 miles per hour as they came over the hill on Hampton. Perales was on the phone at the time and did not remember the accident. She did not remember hearing anyone asking appellant to slow down, nor did she notice the red traffic light in the intersection. She remembered talking to a police officer but did not remember specifics of what he asked or what she told him. A man in a sports utility vehicle gave Sanchez, Perales, and appellant a ride to appellant's house. During the ride, appellant repeatedly asked Sanchez what happened. Perales called a friend to come pick her up. Once they arrived at appellant's house, Perales went inside and washed up. She testified that no one consumed any alcohol at appellant's house. The police arrived shortly thereafter and arrested appellant. On cross-examination, Perales testified she saw appellant do a shot of liquor in the car but not in the house; only the girls were doing shots in the house. James Campbell testified he lived nearby and was reading at the time of the accident. He heard a loud crash and screaming. He got dressed and drove to the intersection. By the time he arrived, the emergency units were there. He talked to a few people standing around. He noticed a young man speaking with a police officer. When the officer asked about the man's involvement, he responded he was "just there helping to tend to the victims." Campbell identified appellant as the young man. After a while, Campbell decided to leave. Appellant stopped him and, saying he lived nearby, asked for a ride. Campbell agreed. Appellant, Perales, and Sanchez got in Campbell's Ford Explorer. On the way to appellant's house, Campbell noticed appellant was "a little bit out of it . . . [and] smelled like alcohol." Appellant repeatedly asked one of the girls what had happened. One of the girls called someone on her cell phone and told him they had been in an accident. Campbell dropped the three off at appellant's home and spoke to appellant's father, telling him appellant had been in an accident and someone had died. He then returned to the scene of the accident and told the police what had happened, that appellant had been involved in the accident and Campbell had taken appellant to his house. Riding in a police car, Campbell directed the police to appellant's house and identified appellant. He estimated that no more than five or ten minutes had elapsed from the time he had left appellant and the girls at appellant's house. Dallas Police Officer Robert Wilcox testified he was dispatched to the accident involving appellant and the Ybarras. When he arrived, the Dallas Fire Department was already on the scene. They informed him there were fatalities and told him where everyone was located, except the driver of the Camaro who could not be found. Wilcox saw appellant standing near the Camaro. He approached and asked if appellant had been involved in the accident. Appellant clearly stated he had not, that all he did was help pull people out of the Camaro. Wilcox told appellant to stay at the scene because the officer needed to talk to him. Wilcox saw two females sitting nearby and similarly told them to stay there. He spoke with Rainville and Hurst before the ambulance took them away. He then spoke to the two females, taking their information. Both denied being the driver; both said they did not know the driver. When another officer finally arrived, Wilcox filled him in on the accident and what had been happening. When Wilcox returned to talk to appellant, he discovered appellant and the two females were gone. Later, Campbell told the officers he had taken appellant home. The officers took Campbell in one of the cars and drove to appellant's house where they placed appellant in handcuffs. Wilcox testified that at the time appellant left the scene with Campbell, he had not, as required by law, given his name, address, registration number of his car, or the name of his motor vehicle liability insurer. Dallas Police Officer Casey Clark testified he accompanied Campbell and Officer Wilcox to appellant's house. After placing appellant in handcuffs, the officers transported appellant and Sanchez back to the scene. Appellant was treated for the cuts on his forehead and face. Clark placed appellant in the squad car and, after placing him under arrest, transported him to the jail. Officer Clark interviewed appellant. During that conversation, appellant denied being the driver of the car. Clark noted, however, that appellant had marks on his left shoulder and upper left collarbone consistent with the mark that a seatbelt would make. During that time, nurse Cynthia Rabb drew a blood sample. Rabb testified she took the sample at 3:10 a.m. on May 19, and that appellant told her he had last consumed alcohol on May 17, 2002. Monica Lopez, a toxicology chemist with the Southwestern Institute of Forensic Sciences, testified she tested appellant's blood samples on May 21, and they showed .081 and .083 grams of ethanol. She testified the legal limit in Texas is .08 grams of ethanol per hundred millimeters of blood. Senior Corporal Brian Smith, an accident investigator with the City of Dallas, testified the crest of the hill on Hampton Road was approximately 880 feet from the intersection, roughly the equivalent length of three football fields. He testified that an unimpaired driver of a car traveling the posted speed limit would need to begin applying the brakes approximately 200 feet before the intersection in order to stop at the intersection. Smith concluded the Camaro was driving at a high speed and collided with the Cavalier because the Camaro's driver disregarded the red traffic light and was impaired by alcohol. Smith testified he had contact with appellant when he was brought back to the scene and smelled alcohol on his breath. Smith also testified his examination of the Camaro, the evidence from the roadway, and the statements made by the occupants of the Camaro showed "no indication of mechanical failure." David Hollender, a professor of mechanical engineering at the University of Texas at Arlington, testified he inspected the Camaro in May of 2003 and examined the photographs from the night of the accident. According to Hollender, the connecting rod of the braking system had sheered off from the main brake pedal during impact. Hollender explained appellant must have had "his foot on the brake pedal to provide the resistence for that pin to sheer off during impact." He further testified that if the tires had been on the Camaro at the time he examined it, he could have determined whether there was any other evidence of braking. Viewed in the light most favorable to the judgment, the evidence shows appellant drove his car in excess of the posted speed limit while under the influence of alcohol and disregarded a red traffic light. Upon entering the intersection, appellant's car ran into Ybarra's Cavalier, causing the Cavalier to drive into a pole and burst into flames. Although Ybarra was able to get out, he was unsuccessful in getting his family members out of the car. Ybarra suffered multiple burns as did his son Carlos Jr. His other son, Mario, suffered serious head trauma and lacerations. His wife and baby daughter burned to death in the car. Appellant did not inform police he was the driver of the car, nor did he give his name, address, vehicle registration information, or liability insurer information to the police or anyone else at the scene. He left the scene after Officer Wilcox specifically instructed him to remain. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's convictions for aggravated assault and manslaughter. We overrule appellant's first and third issues. In his second, fourth, and fifth issues, appellant raises the same argument to challenge the factual sufficiency of the evidence. Appellant claims the "defective braking system was `clearly sufficient' to cause the collision" and appellant's conduct was "clearly insufficient" to cause the deaths and injuries, and that he did not have knowledge of the circumstances surrounding his conduct. The jury was the factfinder in this case and, as such, was entitled to believe or disbelieve the witnesses' testimony. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude, after reviewing the evidence in this case in a neutral light, that the jury was rationally justified in finding guilt beyond a reasonable doubt. The State's evidence was not too weak to support the finding of guilt beyond a reasonable doubt. Furthermore, contrary evidence, strong enough that the beyond-a-reasonable-doubt standard could not have been met, does not exist. We therefore conclude the evidence is factually sufficient to support appellant's convictions. We overrule appellant's second, fourth, and fifth issues.
Motion to Dismiss
In his sixth issue, appellant contends the trial judge erred in denying his motion to dismiss the indictments. Under this issue, appellant claims he was entitled to dismissal of the indictments because the Camaro he was driving the night of the accident was no longer available for inspection and therefore he could not present exculpatory evidence that the brakes failed. For the reasons that follow, we conclude appellant's issue lacks merit. We consider three factors in determining whether the failure to preserve evidence has resulted in a violation of due process: (i) the likelihood the lost evidence was exculpatory; (ii) the likelihood the defendant was significantly prejudiced at trial by the absence of the evidence, and (iii) the level of government culpability. Gardner v. State, 745 S.W.2d 955, 958-59 (Tex.App.-Austin 1988, no pet.); see also Ariz. v. Youngblood, 488 U.S. 51, 58 (1988). Thus, the criminal defendant must establish the evidence would have been both material and favorable to his defense. Partida v. State, 133 S.W.3d 738, 741 (Tex.App.-Corpus Christi 2003, no pet.). Then, he must establish the State acted in bad faith when it failed to preserve the potentially exonerating evidence. Davis v. State, 831 S.W.2d 426, 442 (Tex.App.-Austin 1992, pet. ref'd). Assuming the lost evidence was exculpatory, we find no evidence in the record of misconduct sufficient to compel the conclusion that the prosecutor, the police, or their agents acted in bad faith regarding the failure to preserve evidence. See Youngblood, 488 U.S. at 58 ("[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law."); Davis, 831 S.W.2d at 442 (denial of appellant's motion to dismiss not error when record fails to show evidence of misconduct). We overrule appellant's sixth issue.Challenge for Cause
In his eighth issue, appellant claims the trial judge erred in refusing to grant appellant's challenge for cause against venireperson, Matt Myers. Appellant contends he was forced to exercise a strike on Myers and, when the trial judge denied his request for an additional peremptory challenge, another objectionable venireperson was seated on the jury. When reviewing a trial judge's decision to grant or deny a challenge for cause, we examine the entire record to determine if there is sufficient evidence to support the judge's ruling. See Patrick v. State, 906 S.W.2d 481, 488 (Tex.Crim.App. 1995). We give great deference to the trial judge's decision because the judge is present to observe the demeanor and responses of the venireperson. King v. State, 29 S.W.3d 556, 568 (Tex.Crim.App. 2000); Patrick, 906 S.W.2d at 488. In reviewing the record below, we ask whether the totality of the voir dire testimony supports the judge's finding that the prospective juror was able or unable to follow the law as instructed and reverse only if a clear abuse of discretion is evident. King, 29 S.W.3d at 568. An appellant may properly challenge any prospective juror who demonstrates a bias or prejudice against any phase of the law upon which he is entitled to rely. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (Vernon 1989). Thus, a venireman may be challenged for cause under article 35.16(a)(9) if he cannot impartially judge the credibility of witnesses. Ladd v. State, 3 S.W.3d 547, 560 (Tex.Crim.App. 1999) (citing Jones v. State, 982 S.W.2d 386, 389 (Tex.Crim.App. 1998)). This means only that jurors must be open-minded and persuadable, with no extreme or absolute positions regarding the credibility of any witness. Ladd, 3 S.W.3d at 560. "Veniremen are not challengeable for cause simply because they would give certain classes of witnesses a slight edge in terms of credibility, because `[c]omplete impartiality cannot be realized as long as human beings are called upon to be jurors.'" Ladd, 3 S.W.3d at 560. Although appellant claims Myers stated he would consider a police officer more credible than other witnesses, we cannot agree. During voir dire, the following discussion occurred:DEFENSE: Second row? Mr. Myers, you're a detective with Garland?
[MYERS]: Yes, sir.
DEFENSE: In that capacity, would you tend to believe a police officer just simply because he's a police officer before they [sic] started testifying.
[MYERS]: You'd have to give me a reason not to believe them.
DEFENSE: Okay. So then, your answer is yes?
[MYERS]: I'd have to have a reason not to believe.
DEFENSE: Before you hear any testimony, you're going to believe a police officer first of all?
[MYERS]: Right. Like I said, my decision would be the same for any witness. I'd have to have a reason not to believe what they say.
DEFENSE: So you believe any witness that takes an oath is telling the truth?
[MYERS]: Yes. I'm observing their testimony, and I have to have a reason not to believe their testimony.
DEFENSE: Would you start a police officer any higher than you would a civilian?
[MYERS]: Maybe slightly.Thus, although Myers stated he might "start a police officer" higher than another witness, he unequivocally stated he would believe "any witness" until he had a reason not to believe that witness's testimony. On this record, we discern no abuse of discretion on the part of the trial judge. See Ladd, 3 S.W.3d at 560 (venireman not challengeable for cause because he would tend to believe policemen and doctors slightly more than others). We overrule appellant's eighth issue.