Vincent Brassard Scillitani v. State ( 2009 )

Reversed and Rendered and Majority and Concurring Opinions filed September 30, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00430-CR

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VINCENT BRASSARD SCILLITANI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court at Law No. 2

Fort Bend County, Texas

Trial Court Cause No. 125238

C O N C U R R I N G   O P I N I O N

AJudges must beware of hard constructions and strained inferences;  for there is no worse torture than the torture of laws.@^[1] This case is simply another in a long line of decisions eschewing common sense in DWI appeals.  As an intermediate appellate court we are bound by the precedential decisions of the Texas Court of Criminal Appeals.  Thus, I do not dispute the holding or rationale of the majority opinion.  Nevertheless, my conscience and intellect Agroan@ when precedent obliges an irrational decision.

The issue presented here is Awhether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.@  Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979).  In reviewing the sufficiency of the evidence, we should look at Aevents occurring before, during and after the commission of the offense.@  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).  A[I]t is not necessary that every fact point directly and independently to the defendant=s guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances.@  Johnson v. State,  871 S.W.2d 183, 186 (Tex. Crim. App. 1993).  Moreover, A[j]uries are permitted to make reasonable inferences from the evidence presented at trial, and circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor.@  Hooper, 214 S.W.3d at 14B15.  Were we to apply these well-established doctrines to the facts of this case, I do not doubt that we would find the evidence sufficient to support the jury=s verdict.

Different rules were established many decades ago with regard to drunken driving.  In Hudson v. State, for example, two officers patrolling on a state highway at about 9:50 p.m. observed the tail lights of a number of cars parked on the right shoulder of the road ahead of them. See 510 S.W.2d 583, 583 (Tex. Crim. App. 1974).  On arriving at the location of the parked cars, the officers observed a blue 1966 Oldsmobile with a flat tire and warped front wheel resting in a ditch near the road.  Id.  When the officers approached the disabled vehicle, they saw the appellant sitting in the driver=s seat with his feet on the ground. Id.  As they neared it, he threw a number of empty beer cans and bottles from the car, began cursing, and was >very unruly.= Id.  The officers placed the appellant under arrest, since he smelled strongly of alcohol and was, in their opinion, intoxicated.  Id.  The Court of Criminal Appeals reversed the conviction because the jury could not have reasonably deduced from the evidence that the vehicle had ever been driven on a public highway, that the defendant had ever been driving the vehicle, or that he was intoxicated at the time of the accident.  See id. at 584.

Likewise, in Johnson v. State, a highway patrolman came across a crowd of people gathered around a pickup truck which was in the ditch beside the road.  See 517 S.W.2d 536, 537  (Tex. Crim. App. 1975).  An intoxicated man in the crowd told the patrolman that he had been driving the vehicle.  See id. 537-38.  The Court of Criminal Appeals found the evidence legally insufficient to support a conviction for driving while intoxicated.  See id.  The court first reasoned that there was no evidence to show the defendant had been driving on a public highway before veering into the adjacent ditch. See id. at 538.  (Presumably, the pickup could have been mysteriously dropped from the sky.)  Second, the court concluded there was no evidence to show the defendant was intoxicated at the time of the accident.  See id.

Capital murder convictions may be sustained on evidence more tenuous  than that presented in Hudson and Johnson.^[2] However, our cultural affinity for alcohol and automobiles has, in my judgment, prejudiced Texas jurisprudence.

I agree there must be some proof of a temporal connection between intoxication and driving.  It is, after all, an element of the offense.  We must also be mindful that Aintoxication does not occur immediately upon the consumption of alcoholic beverages.@  State v. Ollison, 236 S.W.3d 66, 69 (Mo. Ct. App. 2007).  In fact, the time interval between consumption and intoxication may be thirty to ninety minutes.  Id. However, collisions with fixed objects well off the roadway are, by their nature, indicative of intoxication.

Here, Trooper Hackney was dispatched to an accident scene at 1:58 a.m. where he observed a vehicle in the ditch adjacent a public road.  Two tow trucks and appellant=s mother had arrived moments before the trooper.  Appellant admitted he had been driving the vehicle on the roadway when he lost control and crashed into the ditch. Moreover, appellant could not recall or explain how he lost control of his vehicle.  The majority holds (as we must in light of Hudson and Johnson) that no reasonable jury could have concluded from this evidence that appellant was intoxicated at the time of the accident.  It is an interesting legal theory, but how does our decision square with reality?

It is true that both sober and intoxicated drivers have accidents.  But how many times does a sober driver inexplicably leave the roadway?  Certainly, a sober driver may be distracted, experience a mechanical failure, or lose traction.  However, one indicator of sobriety is that the sober driver has some opinion, understanding, or theory as to how he left the roadway and collided with a fixed object.  Here, appellant had no clue.  Moreover, the arrival of tow trucks and appellant=s mother, in the early morning hours, at the accident site, moments before the trooper=s arrival, indicate the recent nature of the accident.  However, the evidence presented here is no more compelling than that presented in Hudson and Johnson. As an intermediate appellate court, we are bound by precedent.  Nevertheless, Athere comes a point where [an appellate court] should not be ignorant as judges of what we know as men.@  Watts v. Indiana, 338 U.S. 49, 52, 69 S. Ct. 1347, 1349, 93 L.Ed 1801  (1949).  Accordingly, if we were not restrained by precedent, I would find the evidence legally sufficient.

With these observations, I reluctantly concur in the judgment.

/s/      J. Harvey Hudson

Justice

Panel consists of Chief Justice Hedges, Justice Frost, and Senior Justice Hudson (Frost, J., majority).^*

Publish C Tex. R. App. P. 47.2(b).

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^[1]   Francis Bacon, Essays or Counsels 131 (Charles W. Eliot ed., P. F. Collier & Son 1969) (1625).

^[2]  For example, in a DWI case, the State must prove (1) intoxication and (2) drivingCand the temporal relationship of these two facts is important.  Likewise, in some capital murder cases, the State must prove (1) robbery and (2) murderCand the temporal relationship of these two facts is important.  To constitute capital murder, the actor=s intention to take the victim's property must precede his murder of the victim; otherwise, the offense is murderCnot capital murder.

In a DWI case, proof that a police officer was dispatched to an accident scene where he encountered an intoxicated person who admitted he was driving the vehicle is legally insufficient.  However, in a capital murder case, proof that a defendant killed the victim and subsequently took the victim=s property, is sufficient to show his pre‑existing intent to rob the victim.  White v. State, 779 S.W.2d 809, 816 (Tex. Crim. App. 1989).  While acknowledging that it is certainly possible in such a scenario that the theft of property was an afterthought, the Court of Criminal Appeals has held such evidence sufficient to sustain the imposition of the death penalty.  See id.

^*  Senior Justice Harvey Hudson, sitting by assignment.