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observing that Texas courts "have found evidence sufficient to support a conviction for reckless conduct based upon impaired driving due to the consumption of any amount of alcohol"
Summary of this case from Padon v. StateOpinion
NUMBER 13-14-00059-CR
04-07-2016
MONICA GALVAN, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 347th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Longoria
Memorandum Opinion by Justice Benavides
The State indicted Monica Galvan with two counts of intoxication assault, a third-degree felony, see TEX. PENAL CODE ANN. § 49.07 (West, Westlaw through 2015 R.S.), and two counts of aggravated assault, a second-degree felony, see id. § 22.02(a)(1) (West, Westlaw through 2015 R.S.), related to a car crash in which Galvan was the driver and two of her passengers were injured. Galvan pleaded not guilty to each count and tried her case to a jury. The jury returned verdicts of not guilty on both counts of intoxication assault, but found Galvan guilty on both counts of aggravated assault and assessed her punishment for each offense at concurrent terms of five years' imprisonment in the Texas Department of Criminal Justice's Institutional Division. The trial court suspended the sentences and placed Galvan on community supervision for five years.
By five issues, which we construe as three, Galvan asserts that (1) the evidence is insufficient to support her convictions for aggravated assault; (2) a fatal variance exists between the facts alleged in the indictment and the proof at trial; and (3) the charge of the court and the State's closing argument resulted in a non-unanimous verdict. We affirm.
I. BACKGROUND
On the night of October 15, 2011, Galvan and her then-boyfriend (now husband) Christopher Manka picked up Manka's childhood friend Joseph Salinas from his apartment to visit Pelican's Lounge, a bar in Corpus Christi. Shortly after picking up Salinas, but before arriving at Pelican's Lounge, the group stopped at a convenience store to purchase a six-pack of beer. Salinas testified that he purchased the beer to consume later that night, after leaving Pelican's Lounge. According to Salinas, the three arrived at Pelican's Lounge at approximately 10 p.m. and stayed for no more than one hour. Galvan testified that at Pelican's Lounge, she consumed "two or three" Michelob Ultra beers.
After leaving Pelican's Lounge, the three entered Galvan's vehicle with Galvan seated in the driver's seat, Manka seated in the front-passenger seat, and Salinas seated behind Manka. From Pelican's Lounge, the group visited a Whataburger drive-thru across the street from Pelican's Lounge to pick up food. After picking up the food, the group ate their meals inside of Galvan's vehicle in the Whataburger parking lot. At approximately 11:30 p.m., the group then left Whataburger to head back to Manka's apartment to continue to "socialize and drink beer."
Salinas testified that on the way to Manka's apartment, a "little disagreement" that was "not really forceful at all" ensued between Galvan and Manka. Salinas testified that during the disagreement in the car, Galvan "tapped" Manka on the shoulder instructing him to "be quiet." Galvan testified that while driving to Manka's apartment, they reached the Flour Bluff area when a car with its lights turned off came toward Galvan's car, causing Galvan to "veer" and "get off the road" to avoid a collision. Instead, Galvan's car crashed into some heavy construction equipment that was parked along the side of the road, causing the airbags of her vehicle to engage. Neither Manka nor Salinas had any direct recollection of how, or under what circumstances, the collision occurred.
Galvan recalled that her "first instinct" prior to the crash was to press on her vehicle's brakes and control the vehicle. After the crash, however, Galvan testified that she was "frantic . . . [ , ] scared," and concerned for Manka and Salinas. According to Galvan, the collision caused some of the bottles of the six-pack of beer to break, and she admitted to throwing the bottles outside of the car because she was worried that some of the broken bottles would cut Manka.
Martina Cepeda testified that she witnessed the crash on October 15, 2011 as she traveled behind Galvan's car. According to Cepeda, she noticed Galvan's vehicle "swerving" and "fishtailing . . . going from side to side really drastically" before the car accelerated and ran into the heavy equipment on the side of the road. Cepeda stated that she called 9-1-1 to report the crash and eventually approached the vehicle to offer her assistance. As she approached Galvan's vehicle, Cepeda observed Galvan exit the vehicle and attempt to "rouse" the front seat passenger—who appeared "unconscious"—by shaking him. Cepeda recalled that after witnessing Galvan shake the passenger, she told her not to do that in case he had some sort of injury. Cepeda also testified that Galvan grabbed a bag from inside of the vehicle, which sounded as if it had glass inside of it, and threw it away onto the construction equipment. Cepeda stated that she smelled alcohol on Galvan's breath, but Galvan's speech was not slurred and Galvan acted "frantic." Cepeda also stated that she did not witness any other vehicles on the road prior to the crash, nor did she observe Galvan's brake lights engaged prior to the collision.
Corpus Christi police officer Ruben Ramirez first responded to the crash scene located near the Oso Bridge. Upon his arrival, Officer Ramirez observed "heavy front-end damage" to Galvan's vehicle and saw "somebody lying on the ground" while two other females tended to another male in the front passenger seat. Officer Ramirez spoke to Galvan whom he described as "dazed," with her clothing in "disarray[]," and speaking with a "thick tongue[]." According to Officer Ramirez, Galvan's breath also smelled of alcohol, and Galvan admitted to drinking "three beers and one shot." Officer Ramirez also noted that his investigation showed that the road where the accident occurred takes a slight left, but it appeared as if Galvan missed the slight left and drove straight into the construction equipment located along the side of the road. Officer Ramirez further noted that he found broken beer bottles inside of the heavy equipment located near the crash scene.
Manka and Salinas were transported by ambulance to the hospital for treatment of their injuries. Salinas testified that as a result of the collision, he suffered from posterior dislocation of his hip and has undergone surgery to repair it, while Manka testified that he suffered from a head injury, twenty-seven broken bones, and has had three major surgeries to repair his foot and pelvis. Officer Ramirez placed Galvan under arrest at the scene. Later, Galvan consented to a blood alcohol search and was taken to Spohn Memorial Hospital for the blood draw. Texas Department of Public Safety forensic scientist Emily Bonvino testified that she tested Galvan's blood, and it revealed a blood alcohol concentration of 0.08 grams of alcohol per 100 milliliters of blood. However, later separate and independent testing of Galvan's blood sample facilitated by Galvan's expert witness, Gary Wimbish, Ph.D, showed at trial that Galvan had a blood alcohol concentration of 0.06 grams of alcohol per 100 milliliters of blood.
Corpus Christi Police Officer David Lee Conner, who is an expert in gathering data from a vehicle's crash data retrieval system, testified that he retrieved the crash data from Galvan's vehicle. According to Officer Conner, the data from this system records the "dynamics of the crash" and provides, among other things, information of what the vehicle's speed was up to one second prior to impact, how much speed was lost in the crash, and whether the brakes were pressed in the eight seconds leading up to the crash. Officer Conner testified that his analysis showed that five seconds prior to the crash, Galvan's vehicle traveled at fifty-eight miles per hour; fifty-seven miles per hour at four seconds prior; fifty-six miles per hour at three seconds prior; fifty-three miles per hour at two seconds; and forty-seven miles per hour at one second. Further, the data showed that Galvan's vehicle's velocity changed by 43.25 miles per hour "at the snap of your fingers." Finally, the crash data also revealed that Galvan did not press her brakes during the eight seconds leading up to the crash.
Following Galvan's arrest, the State indicted her for two counts of intoxication assault, a third-degree felony, see id. § 49.07, and two counts of aggravated assault, a second-degree felony, see id. § 22.02(a)(1). At trial, the jury acquitted Galvan of both counts of intoxication assault, but found her guilty of both counts of aggravated assault. The jury assessed Galvan's punishment at five years' confinement in the Texas Department of Justice's Institutional Division, but the trial court suspended Galvan's confinement and placed her on community supervision for five years. This appeal followed.
II. SUFFICIENCY CHALLENGE
By her first issue, Galvan asserts that the evidence is insufficient to support her conviction.
A. Standard of Review and Applicable Law
In reviewing sufficiency of evidence to support a conviction, we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013); Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). In viewing the evidence in the light most favorable to the verdict, we defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. Brooks, 323 S.W.3d at 899. It is unnecessary for every fact to point directly and independently to the guilt of the accused; it is enough if the finding of guilt is warranted by the cumulative force of all incriminating evidence. Winfrey, 393 S.W.3d at 768.
The elements of the offense are measured as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. Under a hypothetically correct jury charge in this case, Galvan is guilty of aggravated assault if she recklessly caused serious bodily injury to Manka or Salinas. See TEX. PENAL CODE ANN. § 22.02(a)(1).
B. Discussion
In its charge to the jury, the trial court instructed the jury in the following manner, with respect to both counts of aggravated assault:
Now, if you find from the evidence beyond a reasonable doubt that on or about October 15, 2011, in Nueces County, Texas the defendant, [Galvan], did then and there recklessly to wit: by FAILING TO CONTROL THE MOTOR VEHICLE OPERATED BY THE DEFENDANT, or BY FAILING TO KEEP A PROPER LOOKOUT FOR ANOTHER VEHICLE, or BY FAILING TO KEEP THE MOTOR VEHICLE OPERATED BY THE DEFENDANT ON THE ROADWAY, or BY OPERATING A MOTOR VEHICLE WHILE IMPAIRED, cause serious bodily injury to [Manka/Salinas] by DRIVING A MOTOR VEHICLE THAT WAS OCCUPIED BY [Manka/Salinas] INTO AND AGAINST A BULLDOZER, then you will find [Galvan] guilty of the offense of . . . Aggravated Assault.Galvan argues that the evidence is legally insufficient to establish that she acted recklessly in order to sustain her convictions for aggravated assault against Manka and Salinas.
We begin by analyzing the mens rea of recklessness.
A person acts recklessly, or is reckless, with respect to circumstances surrounding [her] conduct or the result of [her] conduct when [she] 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.Id. § 6.03(c) (West, Westlaw through 2015 R.S.). Recklessness, unlike the culpable mental state of criminal negligence, which depends upon a morally blameworthy failure to appreciate a substantial and unjustifiable risk, see id. § 6.03(d), depends upon a more serious moral blameworthiness—that is, the actual disregard of a known substantial and unjustifiable risk. See Williams v. State, 235 S.W.3d 742, 751 (Tex. Crim. App. 2007). At the heart of reckless conduct is a conscious disregard of the risk created by the actor's conduct. Id.
Put another way, mere lack of foresight, stupidity, irresponsibility, thoughtlessness, ordinary carelessness, however serious the consequences may happen to be, do not suffice to constitute recklessness. Id. Instead, recklessness requires the defendant to actually foresee the risk involved and to consciously decide to ignore it. Id. The Texas Court of Criminal Appeals has described a reckless mental state as one in which a defendant has a "devil may care" or "not giving a damn" attitude toward the risk associated with the conduct. Id. at 751-52. A critical component of reckless conduct involves a combination of an awareness of the magnitude of the risk and the conscious disregard for consequences. See id. at 752-53. A defendant charged with reckless conduct must have a callous disregard of risk, and not awareness vel non of risk. Id. In reviewing whether an act or omission involves a substantial and unjustifiable risk, we must examine the events and circumstances from the viewpoint of the defendant at the time the events occurred, without viewing the matter in hindsight. Id. at 753. Furthermore, whether a defendant's conduct involves an extreme degree of risk must be determined by the conduct itself and not by the resultant harm. Id. Nor can criminal liability be predicated on every careless act merely because its carelessness results in death or injury to another. Id.
In addressing the sufficiency of evidence to prove criminal recklessness, it is not enough to provide jurors with a set of legally correct definitions and then simply turn them loose and accept whatever they decide. Id. Instead, there are more intermediate and progressively more demanding burdens of production that must be met by the State, as a matter of law, before the fact-finding process is even ratcheted up from one to the next higher level of possible culpability. Id. Thus, the State cannot be permitted to submit its case to the jury unless it has offered a prima facie case of a defendant's actual, subjective "disregard [of] a substantial and unjustifiable risk" which is "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." Id. The incremental risk and mens rea that may transform mere civil negligence into criminal negligence and then possibly criminal recklessness are, although elusive, substantive elements with unique burdens of production that must be satisfied as a matter of law. Id. However, we re-emphasize that in our review, we view the evidence in the light most favorable to the verdict, and we defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given to their testimony. See Brooks, 323 S.W.3d at 899.
Finally, Texas courts—including this one—have found evidence sufficient to support a conviction for reckless conduct based upon impaired driving due to the consumption of any amount of alcohol. See, e.g., Rubio v. State, 203 S.W.3d 448, 454 (Tex. App.—El Paso 2006, pet. ref'd) (holding that the fact that one may legally drive after consuming alcohol does not prevent the State from alleging the driver was reckless in doing so); see also Elliot v. State, No. 13-13-00220-CR, 2015 WL 1869472, at *3 (Tex. App.—Corpus Christi 2015, no pet.) (mem. op., not designated for publication) (citing the proposition stated in Rubio); Buie v. State, No. 03-02-00280-CR, 2003 WL 21189757, at *2 (Tex. App.—Austin 2003, no pet.) (mem. op., not designated for publication) (holding that the State may allege reckless conduct based upon a driver's consumption of alcohol).
Here, the record shows that Galvan consumed three beers and one shot of liquor during her time at the Pelican Lounge and consciously chose to drive her vehicle with Manka and Salinas as her passengers. Additionally, the undisputed evidence shows that Galvan had some alcohol in her body. The State's witness testified that Galvan's blood alcohol content tested at 0.08 grams of alcohol per 100 milliliters, whereas Galvan's expert testified that his testing revealed that Galvan's blood alcohol content measured at 0.06 grams of alcohol per 100 milliliters. However, whether the amount of alcohol was enough to amount to the legal definition of intoxication, see TEX. PENAL CODE ANN. § 49.02(2)(B) (defining "intoxicated" as having an alcohol concentration of 0.08), is not dispositive of whether Galvan acted recklessly. See Rubio, 203 S.W.3d at 454; see also Burke v. State, 28 S.W.3d 545, 549 (Tex. Crim. App. 2000) (recognizing that intoxication assault and aggravated assault are two distinct offenses and the State has the discretion as to which offense to prosecute). Furthermore, the evidence shows that Martina Cepeda witnessed Galvan's crash. Cepeda testified that Galvan's vehicle fishtailed and swerved prior to the accident, no vehicle swerved in front of Galvan's vehicle, and she did not observe Galvan's brake lights pressed prior to the crash with the construction equipment. Officer Conner's testimony regarding his analysis of Galvan's vehicle's crash data retrieval system further corroborates Cepeda's testimony. According to Officer Conner's analysis, Galvan's brakes were not pressed once during the eight seconds leading up to the crash. Finally, Salinas testified that Galvan and Manka engaged in a disagreement in the car, in which Galvan took her hand off of the steering wheel to "tap" Manka's shoulder. After viewing the evidence in the light most favorable to the verdict and deferring all credibility and weight determinations to the jury, we conclude that a rational fact finder could have found that Galvan recklessly caused serious bodily injury to Manka and Salinas. See Rubio, 203 S.W.3d at 454. We overrule Galvan's first two issues.
III. VARIANCE
By her third and fourth issues, Galvan asserts that a fatal variance between the facts alleged in the indictment and the proof adduced at trial exists in this case because the State failed to produce any evidence that Galvan crashed her vehicle "INTO AND AGAINST A BULLDOZER" as alleged in the State's indictment and charged to the jury.
A. Applicable Law and Standard of Review
A "variance" occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). In a variance situation, the State has proven the defendant guilty of a crime, but has proven its commission in a manner that varies from the allegations in the charging instrument. Id. When analyzing variance claims, we treat them the same as sufficiency challenges to the evidence. See id. at 247. However, a variance is immaterial if the variance is not prejudicial to a defendant's substantial rights. See id. at 248. In determining whether a defendant's substantial rights have been prejudiced in this context, we ask two questions: (1) whether the indictment, as written, informed the defendant of the charge against her sufficiently to allow her to prepare an adequate defense at trial, and (2) whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id. A material variance is also known as a "fatal variance." Id. at 249. When faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a "material" variance will render the evidence insufficient. Id. at 257. The hypothetically correct charge will take into consideration the fatal variance doctrine—that is, allegations giving rise to immaterial variances may be disregarded in the hypothetically correct charge, but allegations giving rise to material variances must be included.
The Texas Court of Criminal Appeals has classified variances into three categories, depending upon the type of allegation that the State has pled in its charging instrument but failed to prove at trial. See Johnson v. State, 364 S.W.3d 292, 298-99 (Tex. Crim. App. 2012). First, a variance involving statutory language that defines the offense always renders the evidence legally insufficient to support the conviction, meaning that such variances are always material. Id. at 298. Second, a variance involving a non-statutory allegation that describes an allowable unit of prosecution element may or may not render the evidence legally insufficient, depending on whether the variance is material. Id. at 298-299. Third, other types of variances involving immaterial non-statutory allegations do not render the evidence legally insufficient. Id. at 299.
B. Discussion
In this case, the State alleged that Galvan committed aggravated assault by "DRIVING A MOTOR VEHICLE THAT WAS OCCUPIED BY [Salinas and Manka] INTO AND AGAINST A BULLDOZER." Galvan contends that at trial, there was no proof that Galvan's vehicle struck a bulldozer and such variance was fatal. We disagree.
The State's indictment sufficiently informed Galvan of the charge against her (aggravated assault) to allow her to prepare an adequate defense at trial, and prosecution under the purported deficiently drafted indictment would not subject Galvan to the risk of being prosecuted later for the same crime. Gollihar, 46 S.W.3d at 249. Therefore, we conclude that the variance was not fatal. Galvan's third and fourth issues are overruled.
IV. JURY CHARGE
By her fifth and final issue, Galvan asserts that the charge of the court resulted in a non-unanimous verdict.
A. Standard of Review
Our first duty in analyzing a jury-charge issue is to decide whether error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If we find error, we analyze that error for harm. Id.
B. Discussion
Galvan argues that the charge in this case resulted in a non-unanimous verdict because the charge listed the alleged acts by which Galvan acted recklessly (failing to control the motor vehicle, or by failing to keep a proper lookout for another vehicle, or by failing to keep the motor vehicle operated by Galvan on the roadway, or by operating a motor vehicle while impaired) in the disjunctive. We disagree.
Texas law requires a unanimous jury verdict in all criminal cases. Saenz v. State, 451 S.W.3d 388, 390 (Tex. Crim. App. 2015). More specifically, the jury must be unanimous in finding every constituent element of the charged offense in all criminal cases. Id. The unanimity requirement is not violated by instructing the jury on alternate theories of committing the same offense, in contrast to instructing the jury on two separate offenses involving separate incidents. Id. Further, a jury need not always decide unanimously which of several possible sets of underlying brute facts make up a particular element, such as which of several possible means the defendant used to commit an element of the crime. Id.
Here, Galvan was charged with two counts of aggravated assault. As we stated previously, under a hypothetically correct jury charge, Galvan is guilty of aggravated assault if she recklessly caused serious bodily injury to Manka or Salinas. See TEX. PENAL CODE ANN. § 22.02(a)(1). Whichever act the jury found beyond a reasonable doubt to establish how Galvan acted recklessly does not present a unanimity problem because the four acts alleged do not result in four separate offenses. See Johnson, 296-97 (explaining that principles of jury unanimity are not violated if two separate methods of committing murder were both submitted in support of a single murder offense to the jury). Therefore, we hold that no error exists in this charge with respect to jury unanimity. Galvan's final issue is overruled.
V. CONCLUSION
We affirm the trial court's judgment.
GINA M. BENAVIDES,
Justice Do not publish.
TEX. R. APP. P. 47.2 (b). Delivered and filed the 7th day of April, 2016.