Opinion
No. 05-06-00969-CR
Opinion Filed August 13, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 86th Judicial District Court Kaufman County, Texas Trial Court Cause No. 21890.
Before Justices FITZGERALD, RICHTER, and FRANCIS.
OPINION
A jury convicted Stevie Lynn Davis of intoxication manslaughter and found he used a deadly weapon during the commission of the offense. On appeal, Davis now contends in four points of error that the trial court erred in denying his motion to dismiss for failure to afford him his right to a speedy trial, the evidence is factually insufficient to support the conviction and legally and factually insufficient to support the deadly weapon finding, and the trial court erred in submitting a causation paragraph in its charge to the jury. We affirm.
Background
On May 4, 2002, Davis, his two daughters, twelve-year old Kelly and seven-year old Katrina, and his sister Kimberly Warter's sons, nine-year old Jacob and seven year-old Joshua, were driving home from the store at around 7:00 p.m. when Davis's truck rolled-over, pinning Joshua and killing him instantly and injuring Davis and Katrina. Seventeen months later, Davis was charged with intoxication manslaughter and arrested. He spent seven days in jail before being released on bond. The trial began April 10, 2006, almost four years after the accident. Among the witnesses testifying for the State were the surviving children, Davis's ex-wife Tina, Texas Department of Public Safety (DPS) Trooper Kevin Pederson, and DPS scientist Chris Youngkin. Tina testified she was married to Davis for twenty years and divorced him after the accident. According to Tina, Davis got up the morning of the accident around 6:00 and began drinking. About three hours later, Warters dropped off the boys at Davis's house and Davis and she went to run an errand. When Davis returned home around 4:30 p.m., he began drinking a quart of beer. About thirty minutes later, Warters left for her home, but the boys stayed to spend the night. Around the same time, Tina left for a quick trip to the store, leaving the boys and Kelly and Katrina with Davis. When Tina returned "fifteen to twenty minutes later," Davis and the children were gone and so was Davis's truck. Tina became concerned because Davis had been drinking and his truck, a Blazer, had not been working well and did not have proper safety restraints. Tina learned of the accident around 8:00 p.m. from a neighbor. Testimony from the children showed that Kelly was sitting in the front passenger seat and Katrina, Jacob, and Joshua were in the back. At some point, while coming back from the store, Joshua moved to the front seat. Around that same time, the truck hit some loose gravel on the road and started to spin. Although Davis tried to regain control, one of the back tires blew out and the truck "flipped." Joshua and Davis were ejected from the truck and Katrina was thrown into the open trunk area. Both Jacob and Kelly testified that Davis had been drinking before the accident. Pederson, a sixteen-year veteran of the Department of Public Safety, testified he responded to the scene and found empty beer cans on the road, the truck on its side, Joshua's covered body laying next to the truck, and emergency personnel tending to Katrina, who had injured her leg and arm, and Davis, who was unconscious. Pederson learned from Kelly that Davis had gone off the road and then lost control of the truck. Pederson testified "a strong odor of alcohol" was present at the scene and he also smelled "a strong odor of alcohol" coming from Davis. After Davis and the children were taken to the hospital, Pederson photographed the scene and marked on the road where it appeared Davis had lost control of the truck, where Davis tried to re-gain control, where the tire blew, and where the truck finally rested. An analysis of this data led Pederson to believe the accident occurred after Davis ran off the road and overcorrected. To determine whether the condition of the truck played a role in the accident, Pederson also inspected the truck about one week after the accident. Pederson found only one working seat belt, a broken shock suspension in the rear of the truck, and different size tires in the front. The smell of alcohol and car fluids still permeated the truck. Pederson testified that he also interviewed Davis once Davis was released from the hospital. Davis could not recall the accident "at all" but stated to him that he had "one beer" the day of the accident and that Warters "would not have let him drive if he were drunk." Based on his observations, reconstruction of the accident, and investigation, Pederson concluded the accident was the result of Davis's intoxication. Speed and the condition of the truck were not factors. On cross-examination, Pederson testified he learned from Tina that the truck had "just started running the day before [the accident]." He was unaware of the pressure in the tires, but agreed with counsel that a "tire losing air could have caused" the accident. He also agreed with counsel that loose gravel, an apparently common condition in the winding road where the accident occurred, could have caused Davis to lose control of the truck and that the mismatched tires and the broken shock compounded the situation. Pederson admitted that his report did not state Davis's intoxication caused the accident and that he based his initial belief that Davis was intoxicated on the smell of alcohol alone, even though the smell alone does not conclusively establish a person in intoxicated. Pederson also admitted he tape recorded his interview with Davis, but the tape had been lost. On re-direct, Pederson testified many possibilities existed for the cause of the accident but, in his opinion, the cause was Davis's intoxication. Youngkin testified that toxicology results showed, two and a half hours after the accident, that Davis had a blood alcohol content of .18, over twice the legal limit. Youngkin testified that, depending on the circumstances, Davis's blood alcohol content could have been below the legal limit at the time of the accident, higher than when it was tested, or the same as when it was tested. Youngkin explained that for Davis's blood alcohol content to have been below the legal limit at the time of the accident, Davis need to consume "a large amount of alcohol" immediately before the accident. Davis did not testify but called in his defense Warters and Ronald Wood, who stopped and helped at the scene. Wood testified the truck had passed him and he saw Kelly driving and Davis seemingly passed out in the passenger seat. Wood further testified he smelled a "very strong" odor of beer at the scene and on Davis. According to a written statement Wood gave police, Kelly told him a child in the back had tried to climb into the front and that "they hit some rocks near the shoulder of the road and lost control." Warters testified she was with Davis most of the day of the accident and saw him drink two beers at noon. Davis did not seem intoxicated when she left for home around five that afternoon and she did not believe Davis was intoxicated at the time of the accident. After finding Davis guilty and that he used a deadly weapon — the truck — during the commission of the offense, the jury assessed punishment, enhanced by two prior non-DWI felony convictions, at thirty-five years confinement.Speedy Trial
Davis's first point of error stems from the almost four-year delay between the date of the accident and the date of trial. On the eve of trial, Davis retained new counsel who moved to set aside the indictment for failure to afford him his right to a speedy trial. In the motion and at the hearing on the motion, Davis alleged his right to a speedy trial had been violated and his indictment should be dismissed because (1) the truck had been "lost, destroyed, misplaced, or otherwise been placed and kept beyond [his] reach" preventing him from presenting a defense that "the defective tire(s) and defective vehicle" caused the accident; (2) the basis for the delay was that the district attorney's office had obtained Davis's cooperation as a witness in two murder cases and did not want to try this case until Davis had testified "favorably" in the murder cases; and (3) the children were having "difficulty remembering facts they ha[d] previously recollected," were "remembering things differently," and were seemingly "being tampered with." At the hearing on the motion, held immediately before jury selection, the prosecutor responded that part of the delay was attributable to Davis's original counsel who had been suspended for part of 2005 and been reinstated in early 2006. The trial judge noted the case was first set for trial in November 2004, reset to January 2005, and reset to two different dates in March 2005. The judge also noted that in fact Davis's original counsel had been suspended, had also been ill during the period in question, and was unavailable for any of those trial settings. Then, in June 2005, Davis's original counsel filed a motion for continuance and "for a long period of time" was "unreachable." Finding that the motion for speedy trial could have been brought at "any time" after the indictment, the trial court denied the motion. Davis now asserts the trial court's ruling was reversible error, relying on the same reasons urged in his motion as well as a defense exhibit admitted at punishment showing Davis had obtained medical treatment for "stress and anxiety" following the accident and Pederson's testimony that the tape of his interview with Davis was lost. We review a speedy trial claim under the test set out in Barker v. Wingo, 407 U.S. 514 (1972). Kelly v. State, 163 S.W.3d 722, 726 (Tex.Crim.App. 2005). Under the Barker test, we first consider the length of the delay. Zamorano v. State, 84 S.W.3d 643, 648 (Tex.Crim.App. 2002). This factor serves as a "triggering mechanism" and if we conclude the delay was presumptively unreasonable — generally recognized as a delay approaching one year, we then consider three additional factors: (a) the reasons for the delay; (b) the date the right to a speedy trial was asserted; and (c) any prejudice resulting from the delay as evidenced by oppressive pretrial incarceration, the defendant's level of anxiety and concern, and impairment to the defense. Shaw v. State, 117 S.W.3d 883, 888 (Tex.Crim.App. 2003); Zamorano, 84 S.W.3d at 648. In conducting this analysis, we review legal issues de novo but give deference to the trial court's resolution of factual issues. Kelly, 163 S.W.3d at 726. Reviewing the record here under the appropriate standard, we conclude the trial court did not err in denying Davis's speedy trial motion. Although the thirty-month delay between the date of the indictment and trial is presumptively unreasonable and weighs in favor of Davis, the remaining factors do not. As the State points out, the record is silent as to the reason for the one-year delay between the date of the indictment and the date of the first trial setting but reflects the reason for the delay between the first trial setting and the date the case went to trial was due largely in part to the unavailability of Davis's counsel. Although the record also reflects the delay was due in part to the district attorney wanting to ensure Davis testified favorably for the State in the murder cases prior to trying him for the instant offense, the trial court could infer that Davis also wanted the delay in hopes the district attorney would make a favorable plea offer in his case in exchange for his testimony. See Kelly, 163 S.W.3d at 726-27 (trial court may draw reasonable inferences from facts in determining reason for delay). A delay attributable to the defense weighs heavily against the defense. State v. Munoz, 991 S.W.2d 818, 822 (Tex.Crim.App. 1999). So, too, does a delay in asserting the right to a speedy trial. See id. at 825. Although a defendant has no duty to bring himself to trial, it is presumed the longer it takes to bring a case to trial, the more likely a defendant who really wants a speedy trial would take some action to obtain one. Barker, 407 U.S. at 527, 531; State v. Jones, 168 S.W.3d 339, 348 (Tex.App.-Dallas 2005, pet. ref'd). Here, Davis filed his speedy trial motion on the eve of trial. His delay in asserting his right weighs heavily against him. Finally, as to prejudice, Davis had to make "some showing" he was harmed by the delay. Jones, 168 S.W.3d at 349. While he may have suffered anxiety and stress during the period in question, he was not subjected to an oppressive incarceration because he was free on bond. Moreover, although he argues his defense was impaired by the children's changing testimony and loss of the truck and tape of his interview with Pederson, Davis offers no support for this contention, relying solely on his bare assertion. As the State points out, Davis fails to show how the children's testimony changed, how the original testimony would have resulted in a different outcome, and how the truck and tape would have revealed additional evidence not elicited from Pederson. Davis also fails to show he exercised due diligence in attempting to secure the truck and tape. Davis's contention that the trial court erred in denying his speedy trial motion is without merit. We overrule Davis's first point of error.Sufficiency of Evidence to Support Conviction and Deadly Weapon Finding
In his second and third points, Davis contends the evidence is factually insufficient to support his conviction and legally and factually insufficient to support the deadly weapon finding. In arguing the evidence is factually insufficient to support his conviction, Davis relies on Pederson's testimony that other possibilities existed for the cause of the accident including low air in the tires, mismatched tires, the broken shock, and hitting loose gravel on the road. Davis also relies on a perceived inconsistency in Pederson's testimony and the accident report. Finally, he relies on Pederson's testimony that the smell of alcohol alone does not conclusively establish a person is intoxicated. Davis maintains this evidence undermines the jury's finding that his intoxication caused the accident and warrants a reversal. In arguing the evidence is legally and factually insufficient to support the deadly weapon finding, Davis notes no witness specifically testified the truck as driven was capable of causing serious bodily injury or death and that the testimony showed he was not speeding, was using the truck to transport the children home, and Joshua had been climbing into the front when the accident happened. We review a challenge to the legal sufficiency of the evidence to support a verdict of guilt by viewing the evidence in the light most favorable to the verdict to determine if any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). Under this standard, the fact-finder is the exclusive judge of the witnesses' credibility and the weight given to the evidence, may draw reasonable inferences from basic to ultimate facts, and is entitled to resolve any conflicts in testimony and reject or accept any or all of the evidence presented by either side. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). Under the standard of review for a challenge to the factual sufficiency of the evidence, we determine whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt by viewing the evidence in a neutral light. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In conducting this review, we are permitted to substitute our judgment for the fact-finder's on the question of witness credibility and weight of evidence determinations, "albeit to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), petition for cert. filed (U.S. March 13, 2007) (No. 06-11318). We will reverse a verdict of guilty on a factual sufficiency challenge only when we can say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. Based on the indictment in this case, to obtain a conviction, the State had to prove beyond a reasonable doubt that Davis operated his truck in a public place while intoxicated and by reason of that intoxication accidentally caused Joshua's death. See Tex. Pen. Code Ann. § 49.08 (Vernon 2003). To obtain the deadly weapon finding, the State had to show that the truck "in the manner of its use or intended use" was capable of causing serious bodily injury or death. Id. § 1.07(a)(17)(B). Here, Davis hinges his argument that the evidence is factually insufficient to support the conviction on perceived inconsistencies in Pederson's testimony, Pederson's testimony that his initial conclusion that Davis was intoxicated was based solely on the smell of alcohol, and Pederson's testimony that other possibilities existed for the cause of the accident. However, although Davis questions Pederson's initial conclusion that Davis was intoxicated, the testimony of a police officer that an individual is intoxicated is probative evidence of intoxication. Henderson v. State, 29 S.W.3d 616, 622 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). Additionally, although Davis may perceive inconsistencies in Pederson's testimony and argue Pederson was not credible, what weight to give Pederson's testimony was for the jury to decide. Jones, 944 S.W.2d at 647. Finally, Pederson's testimony that other possibilities existed for the cause of the accident did not in itself preclude the jury from concluding Davis's intoxication caused the accident. From (1) the testimony of Tina, the children, and Warters that they each saw Davis drinking at different times throughout the day of the accident; (2) Wood's testimony that he smelled a "very strong" odor of beer at the scene and on Davis; and (3) Youngkin's testimony that Davis's blood alcohol content was over twice the legal limit two-and-a-half hours after the accident, the jury could have rationally concluded beyond a reasonable doubt that Davis drove while intoxicated and his intoxication caused the accident and Joshua's death. See, e.g., Martinez v. State, 66 S.W.3d 467, 469 (Tex.App.-Houston [1st Dist.] 2001, pet. ref'd) (concluding evidence factually sufficient to support involuntary manslaughter conviction where one witness saw appellant driving "too fast" and another witness saw appellant swerving and thought he had been drinking, even though evidence also showed appellant's eighteen-wheeler had several safety violations and was improperly loaded); Holloway v. State, 698 S.W.2d 745, 747-48 (Tex.App.-Beaumont 1985, pet. ref'd) (concluding evidence sufficient to support involuntary manslaughter conviction where several witnesses testified they smelled alcohol on appellant, two hours after the accident appellant's blood alcohol content was .22, and appellant admitted drinking "some" day of accident). Viewing the evidence in a neutral light, we conclude the evidence is factually sufficient to support the conviction. Davis's argument to the contrary is without merit. Similarly, Davis's contention that the evidence is legally and factually insufficient to support the deadly weapon finding is also without merit. Although no witness specifically testified Davis drove the truck in a manner capable of causing serious bodily injury or death and the record showed he was not speeding, was "simply" driving the children home, and Joshua had climbed into the front seat moments before the accident, the jury could rationally conclude beyond a reasonable doubt that the truck as driven was a deadly weapon from the evidence that Davis's truck had no safety restraints, rolled over, pinned Joshua and killed him instantly, and injured Katrina and Davis. See Callison v. State, 218 S.W.3d 822, 827 (Tex.App.-Beaumont 2007, no pet.) (evidence sufficient to show car driven as deadly weapon where appellant drove car with victim hanging out of driver's window); Moya v. State, 204 S.W.3d 509, 510-11 (Tex.App.-Amarillo 2006, no pet.) (evidence legally and factually sufficient to show that tractor as driven was deadly weapon where tractor driven into oncoming traffic, collided with truck, and totaled truck); Noyola v. State, 25 S.W.3d 18, 20 (Tex.App.-El Paso 1999, no pet.) (evidence sufficient to show car driven as deadly weapon where appellant quickly accelerated in reverse and dragged victim behind car). We overrule Davis's second and third points of error.Charge Error
Davis's fourth point of error stems from the trial court's overruling his request that the concurrent causation instruction in the jury charge be tailored to reflect the conduct at issue was his intoxication. As stated, the trial court instructed the jury thatA person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.Davis sought to replace the word "conduct" in the instruction with "intoxication" so the jury would not "improperly criminalize [Davis's] mere faulty or negligent maintenance of the vehicle all of which facts, factors and circumstances should have been treated by the jury as exculpatory, superseding intervening cause, rather than as an expansive basis for conviction." The trial court denied Davis's request. Davis now asserts this was error. We examine jury charge error under the standards set forth in Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984). Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App. 2005). When reviewing a challenge to the jury charge, we must first determine whether error actually exists in the charge. Id. If we determine error exits, we then assess whether any resulting harm requires reversal. Almanza, 686 S.W.2d at 171. When, as here, error is preserved, we will reverse the conviction upon a showing of "some harm." Id. The burden of proof lies with the appellant to "persuade us that he suffered some actual harm as a consequence of the charging error." Abdnor v. State, 871 S.W.2d 726, 732 (Tex.Crim.App. 1994) (quoting LaPoint v. State, 750 S.W.2d 180, 191 (Tex.Crim.App. 1986) (op. on reh'g)). The error will not result in a reversal of the conviction if the appellant fails to satisfy his burden of proof. Id. Here, assuming error exists in the charge, we cannot conclude it is reversible. Although Davis argues the court's ruling was erroneous, he wholly fails to show us any harm. In arguing this point, Davis does not explain how he was harmed or cite any authority in support that he was harmed. See Tex. R. App. P. 38.1(h); Abdnor, 871 S.W.2d at 732; Remsburg v. State, 219 S.W.3d 541, 547 (Tex.App.-Texarkana 2007, no pet.). As such, we cannot conclude any error in the court's ruling warrants reversal. We overrule Davis's fourth point of error. We affirm the trial court's judgment.