Nos. 05-07-00904-CR, 05-07-00905-CR
Opinion Filed July 24, 2008. DO NOT PUBLISH Tex. R. App. P. 47
On Appeal from the 416th Judicial District Court Collin County, Texas, Trial Court Cause No's. 416-83310-06 and 416-83311-06.
Before Justice FITZGERALD, RICHTER, and LANG-MIERS.
Opinion By Justice RICHTER.
Appellant Gonzalo Villasana appeals his convictions for intoxication assault and intoxication manslaughter. A jury found appellant guilty of both offenses in a single trial and sentenced him to sixty years' imprisonment in the intoxication assault case and life imprisonment in the intoxication manslaughter case. Appellant challenges these convictions in six issues and argues: (1) the trial court erred by admitting a photograph of a corpse into evidence; (2) the trial court should have excluded the blood evidence because the chain of custody was not established; (3) the trial court should have excluded the blood evidence because it violated appellant's right of confrontation; (4) the trial court erred when it permitted the State to impeach appellant with prior remote felonies; (5) the evidence is legally insufficient to support the jury's verdict; and (6) the evidence is factually insufficient to support the jury's verdict. For the reasons discussed below, we affirm the trial court's judgments.
Background
At approximately 6:30 a.m. on February 15, 2006, Christopher Hales was driving a Honda Civic in the eastbound lane of Parker Road in Collin County. Appellant was driving a Ford truck in the westbound lane of Parker Road. As the two vehicles approached each other, the truck crossed over the double no-passing stripe into the eastbound lane and struck the Honda head on. Hales died at the scene of the accident and a passenger in the Honda, Wesley Herod, suffered broken bones, internal bleeding, and a permanent brain injury. Johnny Grantham, a passenger in appellant's truck also suffered injuries. At the time of the accident, Lucinda Solis was traveling three car lengths behind the Honda in the same lane. Solis had to slam on her brakes to avoid being involved in the accident. Immediately after the collision, Solis called for emergency assistance. When she looked inside the Honda, both occupants were unconscious. Appellant was still in his truck and was yelling for help. When Solis approached the truck, she observed appellant behind the steering wheel on the driver's side of the vehicle. Appellant said his knees were pinned and he was unable to get out of the truck. Solis noticed an odor of alcohol when she approached the truck. Solis also saw Grantham stumble out of the passenger side of the truck, cross the street, and lie down in a ditch. Several police officers and paramedics responded to the accident. Numerous broken beer bottles were found in the truck, and the internal compartment of the truck was covered in beer. When appellant was taken to the hospital, the blood test conducted by the hospital for the purpose of treatment showed the presence of alcohol and methamphetamine in appellant's blood. An officer ordered and observed another blood draw six hours later. The blood tested positive for the presence of methamphetamine and amphetamine but not for alcohol. A medical technician also discovered syringes on appellant's person. In a subsequent search of the truck conducted pursuant to a warrant, additional syringes of the same type discovered on appellant's person were found. One of the syringes tested positive for methamphetamine. Appellant was charged with intoxication assault and intoxication manslaughter in separate indictments. Both charges were tried before a jury in a single trial. During the guilt/innocence phase of the trial, the State called numerous witnesses. J.R. Odom, a trooper from the Texas Department of Public Safety (DPS) testified concerning the scene of the accident, the blood draw, and his investigation. Kenneth Parker, an emergency room technician, testified about finding the syringes on appellant's person. Two forensic scientists from DPS labs, Drew Font and Kathy Erwin, testified about the tests conducted on the blood and syringes. Solis testified about the accident and Herod testified about his injuries. Dr. Laura Petrey testified about appellant's medical records. The jury also heard testimony from several paramedics: Katherine Willoughby, Jeff Pynes, Robert Ballard, and Brian Moriarty. The paramedics told the jury about the scene of the accident and the treatment and condition of the individuals involved. When the Sate rested, against the advice of counsel, appellant testified on his own behalf. Appellant testified that Grantham, his passenger, caused the accident by reaching over and jerking the steering wheel. Appellant also denied owning the syringes or having amphetamine or methamphetamine in his system. Four individuals serving time in jail for various offenses also testified as witnesses for appellant. Three of these individuals, Joseph Eade, Fletcher Isenminger, and Farris Sawan all testified about conversations they had with Grantham in jail. During these conversations, Grantham told them he had caused the accident. Joseph Henson, a long-time acquaintance of Grantham, testified about a similar conversation with Grantham. Hensen also testified about mechanical difficulties with the steering in the truck. The jury found appellant guilty of both offenses, and sentenced him to sixty years' imprisonment in the intoxication assault case and life imprisonment in the intoxication manslaughter case. This appeal followed. Discussion
Admission of the Photograph
In his first issue, appellant complains about the admission of a photograph of Hales' body that was taken at the scene of the accident. When the photograph was introduced during the guilt/innocence stage of the trial, appellant objected that the probative value of the photograph was less than its prejudicial effect "in that it does not fairly and accurately describe the scene." After the photograph was admitted, it was enlarged on a screen in the courtroom for the jury to see. Appellant did not object to the enlargement. We review the trial court's admission of a photograph for an abuse of discretion. See Gallo v. State, 239 S.W.3d 757, 762 (Tex.Crim.App. 2007) cert. denied, 128 S.Ct. 2872 (2008); Shuffield v. State, 189 S.W.3d 782, 787 (Tex.Crim.App. 2006). The trial court does not abuse its discretion merely because it admits gruesome photographs. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex.Crim.App. 1995). And the fact that a photograph was enlarged does not render it inadmissable unless the sole purpose of the enlargement was to inflame the minds of the jurors. See Losada v. State, 721 S.W.2d 305, 311 (Tex.Crim.App. 1986). Appellant now complains that the probative value of the photograph was less than its prejudicial effect because the photograph was gruesome, the element of death was not contested, and the enlargement of the photograph on the courtroom screen was unnecessary. Although appellant's complaints have a common thread based on Tex. R. Evid. 403, the objection appellant made at trial does not comport with his complaint on appeal. See Heidelberg v. State, 144 S.W.3d 535, 536 (Tex.Crim.App. 2000); Schultze v. State, 177 S.W.3d 26, 38 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). As a result, appellant's complaint has not been preserved for our review. See Tex. R. App. P. 33.1(1); Ibarra v. State, 11 S.W.3d 189, 196 (Tex.Crim.App. 1999). Even if appellants' complaints had been properly preserved for review, we note at the outset that the photograph was probative of the fact that Hales died at the scene of the accident. See Ladd v. State, 3 S.W.3d 547, 568 (Tex.Crim.App. 1999). The question then becomes whether the probative value was outweighed by a potentially prejudicial effect. Ramirez v. State, 815 S.W.2d 636, 647 (Tex.Crim.App. 1991). See Rule 403 favors the admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. See Hayes v. State, 85 S.W.3d 809, 815 (Tex.Crim.App. 2002). Some of the factors a court may consider when determining whether the probative value of evidence is substantially outweighed by a danger of unfair prejudice include: the number of photographs offered, the gruesomeness, size, and detail of the photographs, whether the photographs are black and white or in color, whether the photographs are close-up, whether the body is depicted clothed or naked, the availability of other means of proof, and other circumstances unique to the case. See Long v. State, 823 S.W.2d 259, 272 (Tex.Crim.App. 1991). Here, the photograph was the only image admitted into evidence that showed only Hales. The photograph showed Hales' condition at the scene of the accident. Hales was clothed and depicted lying face up on a flat board after he was removed from the car. The photograph was not particularly gruesome, and showed only some blood on Hales' face. The photograph was also taken at a distance, and does not show Hales' injuries in graphic detail. In addition, Hales' condition as depicted in the photograph was the subject of trial testimony. See Threadgill v. State, 146 S.W.3d 654, 671 (Tex.Crim.App. 2004) (photographs generally admissible if verbal testimony regarding what is depicted in the photographs and probative value not outweighed by Rule 403 counter-factors). We see nothing about the photo that renders its probative value substantially outweighed by its prejudicial effect. Therefore, we cannot conclude the trial judge abused his discretion by admitting the photograph. Appellant's first issue is overruled. Chain of Custody
In his second issue, appellant contends the trial court erred in admitting his blood specimen and the toxicology report containing his drug test results because the State did not establish the chain of custody. The crux of appellant's argument is that the State's failure to call the person who drew his blood to testify destroys the chain of custody. We disagree. The State is required to establish a proper chain of custody for a blood sample. See Durrett v. State, 36 S.W.3d 205, 208 (Tex.App.-Houston [14th Dist.] 2001, no pet.). Unless there is evidence of alteration or tampering, proof at the beginning and end of the chain will support admission of the evidence. See Stoker v. State, 788 S.W.2d 1, 10 (Tex.Crim.App. 1989). When there is no evidence of tampering, most questions concerning care and custody go to the weight rather than the admissibility of the evidence. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex.Crim.App. 1997). After the accident, appellant was transported to Baylor hospital where the blood draw was conducted. Trooper Odom ordered the blood draw and observed it. Although Odom did not know whether the person drawing the blood was a registered nurse or a qualified technician, the blood was drawn by a licensed medical professional. Immediately after being drawn, the blood was handed to Odom. Odom sealed the blood tube, placed the tube in a zip lock baggie, and then placed the baggie inside a box. The box was sealed and remained with Odom until he placed it in a lock box to which only he had access. Odem then personally mailed the box to the DPS crime lab. Erwin, a forensic scientist with the DPS Austin lab, testified the blood specimen was first sent to the DPS Garland lab. The Garland lab sent the specimen to the Austin lab, where it was kept in a secured location until Erwin hand-carried it to court for the trial. There was no evidence of tampering with the specimen. Appellant cross-examined both Erwin and Odom about the storage of the blood sample and other pertinent matters pertaining to the care and custody of the sample. We reject appellant's argument that the drawer of the blood was required to testify in order to establish the first link in the chain of custody. The fact that the person who drew the blood did not testify goes to the weight, not the admissibility of the blood evidence. See Yeary v. State, 734 S.W.2d 766, 769 (Tex.App.-Fort Worth 1987, no pet.); Mora v. State, 263 S.W.2d 787, 788 (Tex.Crim.App. 1954). The State established the beginning and end of the chain, so the chain of custody was complete. Appellant's second issue is overruled. The Right to Confrontation
In his third issue, appellant maintains his Sixth Amendment right to confrontation was violated because he was not able to cross-examine the person who drew his blood. The Confrontation Clause of the Sixth Amendment provides "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. Amend. VI. This procedural guarantee bars the admission of testimonial statements of a witness who does not appear at trial unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him. See Crawford v. Washington, 541 U.S. 36, 59 (2004). The threshold question in determining whether the trial court erred in admitting the complained-of evidence is whether the evidence is testimonial in nature. See Woods v. State, 152 S.W.3d 105, 113 (Tex.Crim.App. 2004). Generally speaking, a statement is testimonial if it is a solemn declaration made for the purpose of establishing some fact. Crawford, 541 U.S. at 51. Although the Crawford court declined to provide a comprehensive definition of "testimonial," it noted three formulations of "core" testimonial evidence: 1) "ex parte in-court testimony or its functional equivalent," such as affidavits, custodial examinations, prior testimony not subject to cross-examination, or "similar pretrial statements that declarants would reasonably expect to be used prosecutorially;" (2) "extrajudicial statements" of the same nature "contained in formalized testimonial materials; "and (3) "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52; see also, Wall v. State, 184 S.W.3d 730, 735 (Tex.Crim.App. 2006) Appellant appears to argue the blood evidence and toxicology report were testimonial. According to appellant, the toxicology report contained testimony that the person drawing blood was a registered nurse or qualified technician and that proper procedures were followed when the blood was drawn. Appellant fails to articulate, however, how the blood evidence might be testimonial. Our review of the record differs from appellant's characterization. The toxicology report contains no testimony. There are no statements by the person who drew appellant's blood, nor are there any statements about the qualifications of that person or how the blood was drawn. In fact, there is no reference to the person who drew the blood at all. The report states that a blood specimen was received in the Austin DPS lab from the Garland DPS lab. The report is signed by Erwin, who testified at trial and was cross-examined by appellant. The toxicology report does not fall within the categories of testimonial evidence described in Crawford. There is no statement or testimony from the individual appellant claims he was entitled to cross-examine. The same holds true for the blood evidence. The record reflects that the handwriting on the envelope and the blood tube was that of officer Odom, and appellant cross-examined Odom. And the blood specimen itself is not testimonial. In the context of the Fifth Amendment, "real or physical evidence" does not constitute "communications" or "testimony." See Schmerber v. California, 384 U.S. 757, 764-65 (1966); see also, Sims v. State, 735 S.W.2d 913,917 (Tex.App.-Dallas 1987, writ ref'd) (only evidence that "testimonially incriminates" a defendant is protected by the Fifth Amendment).We see no meaningful reason to characterize a blood specimen as testimonial for purposes of the Sixth Amendment when it is not so characterized for purposes of the Fifth Amendment. Appellant's third issue is overruled. Evidence of Prior Convictions
During the guilt/innocence phase of the trial, the court conducted a hearing outside the presence of the jury to determine whether the State would be permitted to impeach appellant with two prior felony convictions. The two convictions included a 1992 conviction for the delivery of marijuana and a 1986 conviction for burglary of a vehicle. Appellant objected to the introduction of these convictions and the trial court overruled the objections. Subsequently, against the advice of counsel, appellant elected to testify on his own behalf. During his direct examination, appellant testified about both convictions. On cross-examination, the State did not elicit any additional information other than the cause numbers of the convictions. In his fourth issue, appellant asserts the trial court erred in allowing the State to impeach him with the two prior felony convictions. Because appellant preemptively introduced evidence of these prior convictions on direct examination, he has waived his right to complain about this evidence on appeal. See Ohler v. U.S., 529 U.S. 753, 759 (2000); Johnson v. State, 981 S.W.2d 759, 760 (Tex.App.-Houston [1st Dist.] 1999, pet ref'd). Appellant's fourth issue is overruled. Sufficiency of the Evidence
In his fifth and sixth issues, appellant challenges the legal and factual sufficiency of the evidence to support his convictions. Specifically, appellant contends the evidence was not sufficient to establish he was intoxicated at the time of the offense or that his intoxication caused the accident. In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). A review of the evidence for legal sufficiency does not involve a re-weighing of the evidence or a substitution of the jury's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The fact-finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000); Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). As the reviewing court, we must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). When reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight is to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). A person commits the offense of intoxication assault if, by accident or mistake, while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication he causes serious bodily injury to another. See Tex. Penal Code Ann. § 49.07(a) (Vernon Supp. 2007). "Serious bodily injury" means injury that creates a substantial risk of death or that causes permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ. Id. 49.07(b). A person commits the offense of intoxication manslaughter if he operates a motor vehicle in a public place and is intoxicated and by reason of that intoxication causes the death of another by accident or mistake. Tex. Penal Code Ann. § 49.08 (Vernon Supp. 2007). For both offenses, a person is "intoxicated" if he does not have the normal use of his mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of these substances, or any other substance in the body. See Tex. Penal Code Ann. § 49.01(2) (A) (Vernon 2003). To prove causation, the State is required to prove the defendant's intoxication, and not just his operation of the vehicle, caused the accident. See Glauser v. State, 66 S.W.3d 307, 313 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) . The existence or nonexistence of a causal connection is normally a question for the jury. See Hardie v. State, 588 S.W.2d 936, 939 (Tex.Crim.App. 1979). The toxicology report reflects that blood drawn from appellant within six hours of the accident contained .05mpl of amphetamine and .45 mpl of methamphetamine. Erwin testified that an amount of methamphetamine greater than 2 mpl would indicate an abuse of the drug and that the amount found in appellant's system would impair an individual's mental and physical capabilities. Erwin explained that methamphetamine and amphetamine have two effects; euphoric and depressant. The euphoric effect results in restlessness and tremors. The depressant effect makes a person very sleepy and may result in a person uncontrollably nodding off. The blood test conducted by the hospital for the purpose of treatment was administered within an hour of the accident. The test showed the presence of alcohol and methamphetamine in appellant's blood. Broken beer bottles were found in the truck and witnesses testified about a strong odor of beer. The jacket appellant was wearing at the time of the accident contained two syringes that matched a syringe in the truck that contained methamphetamine. Officer Odom testified that his investigation showed appellant crossed over the no-passing stripe and struck the Honda. Odom also testified that the Honda's lights were on at the time of the accident. There is no evidence which suggests the Honda or the stripe were not fully visible. To underscore his sufficiency argument concerning intoxication, appellant points to his own testimony denying intoxication. Appellant claimed he did not consume alcohol on the day of the accident and he does not "do" methamphetamine. Appellant denied there were drugs in his system and having a syringe on his person at the hospital. Appellant also argues there is insufficient evidence of intoxication because the forensic scientist could not specify when appellant had consumed the drugs in his system and whether appellant was experiencing the depressant or euphoric effect of the methamphetamine. As with the other evidence, the jury was the sole judge of appellant's credibility and was free to reject his denials. See Margraves, 34 S.W.3d at 919. In support of his sufficiency argument concerning causation, appellant maintains the four witnesses he called to testify established he did not cause the accident. At the time of their testimony, all of these witnesses were serving time in the Collin county jail. The first witness, Eade, was serving time on an injury to a child charge. Eade testified Grantham fell asleep while appellant was driving the truck. According to Eade, Grantham woke up, saw appellant going straight where the road curved to the right, and grabbed the wheel and pulled it toward himself. The second witness, Isenminger, told the jury he had been to prison three times on burglary, robbery, and other felony convictions, and had also committed "quite a few" misdemeanor thefts. Isenminger testified Grantham told him he caused the collision. Sawan, an individual with three prior felony convictions serving a sentence for identity theft, was also one of the witnesses who testified on appellant's behalf. Sawan stated Grantham told him appellant fell asleep in the truck while they were stopped at a motel. Grantham and a woman tried to wake appellant up by blowing methamphetamine smoke in his face. According to Sawan, appellant was driving at the time of the accident. Sawan stated Grantham woke up, told appellant he was turning down the wrong road, and jerked the steering wheel to the right. Henson testified he had known Grantham for a number of years and had been a passenger in the truck many times. Henson told the jury the truck had front-end problems that caused the steering to get "out of whack." Henson was previously convicted of possession of a controlled substance in a jailhouse. Henson testified about a conversation with Grantham five or six months after the accident and was "pretty sure" Grantham told him about the jerking of the steering wheel. Hesnon later spoke with appellant while in jail and testified the conversation "pretty much matched up" with his conversation with Grantham. The record does not reflect why Henson was in jail again at the time of this conversation. The foregoing evidence does not necessarily conflict with the State's evidence, or establish that appellant's intoxication was not the cause of the accident. Even if Grantham jerked the steering wheel, the jury could reasonably conclude that appellant's intoxication resulted in an inability to take corrective action and control the vehicle and that this state of impairment accused the accident. The jury was also free to reject the witnesses' testimony as not credible. By returning a verdict of guilty, the jury resolved any conflicts in the evidence in favor of the State. As the sole judge of the witnesses credibility, the jury was free to do so, and we will not disturb its finding. See Watson, 204 S.W.3d at 427, n. 37. Viewing all of the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient. Giving deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflict, we cannot conclude that a rational jury could not have found appellant guilty of the elements of each offense beyond a reasonable doubt. Viewing all the evidence in a neutral light, we conclude the evidence is factually sufficient to support the jury's finding of guilt. Appellant's fifth and sixth issues are overruled. Conclusion
Having resolved all of appellant's issues against him, we affirm the trial court's judgments.