Opinion
No. 12-05-00243-CR
Opinion delivered July 12, 2006. DO NOT PUBLISH.
Appeal from the 241st Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and Bass, Retired Justice, Twelfth Court of Appeals, TYLER, sitting by assignment.
MEMORANDUM OPINION
A jury convicted Appellant, William Bumgarner, of the offense of intoxication manslaughter. The trial court found that Appellant twice had been convicted of a felony offense and had used a deadly weapon in the commission of this offense. The trial court assessed Appellant's punishment at confinement for life. Appellant presents two issues on appeal challenging the legal and factual sufficiency of the evidence and the trial court's admission of expert testimony. We affirm.
BACKGROUND
Appellant was the driver of a vehicle that crossed over the center line of the roadway and collided head on with another vehicle. The driver of the other vehicle died in the collision. The absence of any skid marks on the pavement indicated that Appellant was apparently unaware that he crossed out of his lane into the oncoming traffic. Appellant sustained a broken leg and wrist and cuts to his face. He also suffered minor closed injuries to his head. Appellant remained pinned in his car for forty-five minutes after the accident. According to the paramedics who helped free him from his car, Appellant initially told them that he was not hurt and to leave him alone. He laughed and talked in a way that showed he did not understand the nature of his injuries. Dr. John Berne, the trauma surgeon at East Texas Medical Center, treated Appellant upon his arrival at the hospital. The emergency personnel told Dr. Berne that Appellant was drunk, and this, coupled with Appellant's confusion and otherwise strange behavior, led Dr. Berne to believe that Appellant was intoxicated. At some point while he was with Dr. Berne, Appellant lost consciousness. Dr. Berne acknowledged that Appellant's head injuries could account for his altered mental state. Appellant refused to voluntarily provide a blood sample. A sample of his blood was taken approximately one and one half hours after the accident. The preliminary analysis disclosed no alcohol in the sample. After the initial test, the Department of Public Safety (DPS) mailed the sample to the Austin DPS lab for further testing. The DPS lab did not test the sample for at least two months after it was received. The tests discovered trace amounts of cocaine and 0.59 milligrams per liter of a cocaine metabolite (benzoylecgone) in Appellant's blood. The DPS forensic toxicologist who made the analysis explained that cocaine metabolite is produced when cocaine breaks down in a person's system and that cocaine in the blood sample would continue to break down while it was in the test tube waiting to be tested. The toxicologist estimated that, given the level of cocaine metabolites found, Appellant would have had to have ingested "five or six hits" of cocaine fairly close to the time of the accident. The toxicologist further explained that any amount of cocaine affects the use of one's mental and physical faculties. She testified "with absolute certainty" that Appellant had more than a trace amount in his blood at the time of the accident. A DPS drug recognition expert, Sergeant Jackson, testified that he was qualified by training and experience to assess whether Appellant was under the influence of cocaine when the fatal accident occurred. The trial court allowed Sergeant Jackson to testify over Appellant's objection. Sergeant Jackson had not examined Appellant, but gave his opinion based solely on an examination of Appellant's file, which did not contain some information ordinarily relied upon by experts in drug recognition. Sergeant Jackson explained that any amount of cocaine in the user's body is dangerous, because even a small amount will cause the user to make "poor decisions driving down the highway." It was Sergeant Jackson's opinion, based upon Appellant's conduct, both at the scene and at the hospital, and the laboratory reports showing the presence of cocaine metabolites, that Appellant was impaired and under the influence of cocaine at the time of the accident and that Appellant's cocaine-induced impairment caused the wreck and fatal injuries to the other driver. Appellant called Dr. Springfield, a supervising toxicologist at the Tarrant County Medical Examiner's office. In Dr. Springfield's opinion, the presence of cocaine metabolites in Appellant's blood sample tested months after the accident did not constitute scientific proof that Appellant was under the influence of cocaine when the wreck occurred. The cocaine, she believed, could easily have been ingested a sufficient time in advance of the accident so that no cocaine remained in his system when the accident occurred. She believed that Appellant was not under the influence of cocaine when the wreck happened.LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE
In his first issue, Appellant challenges the legal and factual sufficiency of the evidence. Standard of Review The standard for reviewing a legal sufficiency challenge is whether, viewing the evidence in the light most favorable to the jury's verdict, 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, 317-18, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); see also Johnson v. State , 871 S.W.2d 183, 186 (Tex.Crim.App. 1993). In Zuniga v. State , 144 S.W.3d 477 (Tex.Crim.App. 2004), the court of criminal appeals explained the factual sufficiency standard.There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can "outweigh" the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.Id. at 484-85. The jury determines the credibility of the witnesses and it may "believe all, some, or none of the testimony." Chambers v. State , 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). It is for the jury to accept or reject reasonably equal competing theories of the case. Goodman v. State , 66 S.W.3d 283, 287 (Tex.Crim.App. 2001). Applicable Law A person commits the offense of intoxication manslaughter if the person 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. PEN. CODE ANN. § 49.08(a) (Vernon 2003). "Intoxicated" means not having the normal use of 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 those substances, or any other substance into the body. Id. § 49.01(2)(A). Discussion Although acknowledging that the presence of cocaine metabolites in his blood showed that he had taken cocaine sometime before the accident, Appellant contends no person could say that cocaine, as opposed to its waste products, was still present in his system and depriving him of the normal use of his faculties at the time of the fatal collision. The two head injuries, he argues, could easily account for his strange behavior at the scene and in the emergency room. Trooper Mitchum, a trained accident reconstruction specialist, testified that the accident was caused when Appellant crossed out of his clearly marked lane across the centerline of the roadway and ran head on into the victim's vehicle. There were no skid marks from either vehicle until after the collision. This, Trooper Mitchum said, indicated that Appellant was unaware before the crash that he was driving into oncoming traffic. Appellant initially refused medical attention at the scene and told the paramedics to leave him alone. He laughed and seemed not to understand the nature of his injuries, which were serious if not life threatening. He was at times combative and refused to voluntarily give a blood sample. James Ezell, a ten year veteran paramedic, said that the only time he had seen people behave as Appellant acted was when they were "on something or taking something." Dr. Berne said that Appellant's actions when he saw him in the emergency room led him to believe Appellant was intoxicated. The tests on Appellant's blood performed reasonably soon after the accident disclosed no alcohol. The tests for cocaine performed months later could have found little more than cocaine metabolites since the metabolic breakdown of cocaine into cocaine metabolites continued in the test tube while the sample awaited testing. From the level of metabolites present, Kathy Erwin, a DPS certified toxicologist, conservatively estimated that Appellant took "five or six hits of cocaine." She testified that she was absolutely certain that Appellant had more than a trace of cocaine in his system at the time of the accident. The jury heard a wealth of evidence about the effects of even small amounts of cocaine and that any amount affects one's mental and physical faculties. Even if Sergeant Jackson's conclusion that Appellant's cocaine intoxication caused the wreck is disregarded, there was an abundance of evidence from which the jury could have reached the same conclusion unaided by Sergeant Jackson's opinion. Appellant consumed cocaine prior to driving, crossed into oncoming traffic, made no effort to stop before the fatal collision, and appeared disoriented and intoxicated to the paramedics and officers at the scene and to the emergency room physician. The evidence was both legally and factually sufficient to support his conviction. Appellant's first issue is overruled.