Jose Serrano v. State ( 2007 )

Affirmed and Memorandum Opinion filed February 6, 2007

Affirmed and Memorandum Opinion filed February 6, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00646-CR

____________

JOSE SERRANO, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 21800

M E M O R A N D U M   O P I N I O N

Appellant, Jose Serrano, was found guilty of intoxication manslaughter and was sentenced to five years in prison.  In his two points of error, appellant contends that the evidence is legally and factually insufficient to find him guilty of intoxication manslaughter.  We affirm.

I.  Background

Sometime in the early evening of February 5, 2002, appellant, the decedent Manuel Ramirez Sr., Manuel Ramirez Jr., and Ivan Bautista set out in search of a goat to barbecue for appellant=s wedding.  Appellant was driving the vehicle the group was traveling in.  It was raining throughout the day and the roads were somewhat wet.  About two to three hours into their trip, on Highway 75 outside of Huntsville, the vehicle left the roadway and crashed into a tree.  Manuel Ramirez Sr. was killed as a result of the crash. All of the other circumstances leading up to and surrounding the wreck are in dispute.

Officer Christopher Wilhite arrived on the scene at 7:42 p.m.  Appellant was not at the scene when Officer Wilhite arrived.  The officer found Manuel Ramirez Sr. deceased within the wreckage.  While investigating the accident, Officer Wilhite observed several beer cans in the car including one beer can on the driver=s floorboard.  At some point later during Officer Wilhite=s investigation, Officer Justin Smith arrived on the scene with appellant.  Officer Wilhite began questioning appellant about the incident and noticed that appellant had bloodshot eyes, slurred speech, and an odor of alcohol on his breath.  Based on these observations, Officer Wilhite performed a field sobriety test which indicated that appellant was intoxicated.  Appellant was then placed under arrest and taken to a hospital.  A blood sample was taken from appellant at 10:20 p.m., more than three hours after Officer Wilhite had initially arrived on the scene.  The results of that blood sample test showed appellant=s blood alcohol concentration to be .12.  Appellant was later arrested and charged with intoxication manslaughter.

II.  Analysis

In his two points of error, appellant challenges the sufficiency of the evidence finding him guilty of intoxication manslaughter. In order to prove intoxication manslaughter, the State was required to show that appellant (1) operated a vehicle in a public place while intoxicated, (2) and by reason of such intoxication, caused the death of another (3) by accident or mistake.  Tex. Penal Code ' 49.08.  Appellant argues that the evidence is insufficient to show that he operated a vehicle while intoxicated.  Appellant also argues that the evidence was insufficient to establish his intoxication as the cause of Ramirez=s death.

In his first point of error, appellant argues that the evidence is legally insufficient.   In evaluating the legal sufficiency of the evidence, we determine whether, when viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002).  This standard of review applies to both direct and circumstantial evidence cases.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995).  Although we consider all of the evidence presented at trial, we may not substitute our judgment for that of the jury.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).  The jury is the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence.  Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).

After a review of all evidence in favor of the verdict, we find that a rational trier of fact could have found beyond a reasonable doubt that appellant was intoxicated when he operated the vehicle involved in the accident at issue.  AIntoxicated@ is defined in the Texas Penal Code as either: (1) not having the normal use of mental or physical faculties or (2) having a blood alcohol concentration of .08 or more.  Tex. Penal Code ' 49.01(2).  The State offered evidence under both theories to show intoxication.  Several witnesses testified that when they encountered appellant immediately after the accident, he had slurred speech, bloodshot eyes, and smelled of alcohol. Ramirez Jr., who was also in the car with appellant, testified that appellant was drinking the entire two to three-hour period he was driving before the accident.  Officer Wilhite testified that he observed several beer cans in the car and that appellant failed a field sobriety test administered some time after the accident.  Most convincingly, the results of appellant=s blood sample showed an alcohol concentration of .12.  Appellant=s blood sample was taken more than three hours after the accident occurred.  James Burris, the forensic toxicologist who examined appellant=s blood sample, testified that after such a period of time, appellant=s blood alcohol level would have certainly been eliminating (decreasing), or at the very least, plateauing (leveling off).  Because appellant has not tried to argue that he consumed alcohol between the time of the accident and when he gave the blood sample, the only logical conclusion for the jury to reach was that appellant had at least a .12 alcohol concentration at the time of the accident.  Under Texas law, an individual having a blood alcohol of .08 or more is per se intoxicated. Id.  For these reasons, we find the evidence legally sufficient for the jury to have found that appellant was intoxicated while driving.

We also find the evidence legally sufficient to establish appellant=s intoxicated driving as the cause of Ramirez=s death.  The Texas Penal Code defines causation as Abut for@ causation.  AA 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.@  Tex. Penal Code ' 6.04(a).  The State offered several pieces of evidence supporting the jury=s finding that Ramirez=s death would not have occurred but for appellant=s intoxicated driving.  Appellant=s intoxication at the time of the accident is evidence of causation.  Additionally, Ramirez Jr. testified that appellant was driving in excess of seventy-five miles per hour on the wet road and was drinking while driving.  Officer Wilhite, an expert in accident reconstruction, testified that appellant appeared to have left the roadway on a straight stretch of road.  Appellant then drove in a ditch adjacent to the road for some period of time before he eventually Ajerked@ the car back onto the roadway.  Officer Wilhite further testified that the road did not appear to have any impediments in it, such as potholes, which might have caused appellant to leave the roadway.  Officer Wilhite concluded that the accident was the result of appellant=s intoxication based on these observations and appellant=s failure of his field sobriety test. Officer Johnson, another accident reconstructionist, testified that based on his investigation of the scene of the accident, it took appellant a considerably longer amount of time to apply the brakes after he left the roadway than it would a Anormal person.@  All of these facts paint a picture of an accident caused by appellant=s impaired use of his faculties, one that would have been avoided by an individual operating in a normal capacity.  Consequently, we hold that a rational jury could have found, beyond a reasonable doubt, that appellant=s impairment caused the accident in which Ramirez was killed.  See Garcia v. State, 112 S.W.3d 839, 853-54 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (finding evidence that the defendant=s intoxication caused the death of the victim was sufficient where there was evidence that the defendant was intoxicated while he was driving, hit the reflectors in the road as he approached complainant, drove in excess of the posted speed, and had a slow reaction time as evidenced by the length of skid marks); Glauser v. State, 66 S.W.3d 307, 313 (Tex. App.CHouston [1st Dist.] 2000, pet. ref=d) (finding sufficient evidence that the defendant=s intoxication was the cause of death where there was evidence that the defendant drove thirty‑five miles per hour above posted speed, hit complainant in a well-lit area without applying the brakes, and was intoxicated while he was driving).  We overrule appellant=s first point of error.

In his second point of error, appellant argues that the evidence is factually insufficient.  When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party.  Watson v. State, No. PD‑469‑05, 2006 WL 2956272, at *8 (Tex. Crim. App. Oct. 18, 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).  We will set the verdict aside only if: (1) the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the fact‑finder=s determination is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence.  Watson, 2006 WL 2956272, at *8, *10; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).  We cannot conclude a conviction is Aclearly wrong@ or Amanifestly unjust@ simply because we would have voted to acquit. Watson, 2006 WL 2956272, at *8.  In other words, we may not simply substitute our judgment for the fact‑finder=s.  Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997).  To reverse for factual sufficiency, we must determine, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the verdict.  Watson, 2006 WL 2956272, at *10.  In examining a factual sufficiency challenge, we defer to the fact-finder=s determination of the credibility of the evidence.  Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). 

Appellant first argues the evidence proving he was intoxicated while driving is factually insufficient.  As discussed above, the State offered evidence showing both that appellant=s blood alcohol concentration was over the statutorily defined limit for intoxication and that appellant did not have the normal use of his faculties.  The only evidence appellant offered on the issue was the testimony of Ivan Bautista that appellant was not drinking while he was driving, and that immediately after the accident, appellant did not have bloodshot eyes, did not slur his speech, and did not appear to be intoxicated.  Appellant also cross-examined all of the State=s witnesses, however, we are excluded from determining the credibility of the witnesses.  See Swearingen, 101 S.W.3d at 97 (AIn examining a factual sufficiency challenge, we defer to the fact finder=s determination of the credibility of the witnesses.@)  Viewing all of this evidence in a neutral light, and keeping in mind our deference to the trier of fact on issues of credibility, we find that the evidence is factually sufficient. 

We also find that the evidence supporting the jury=s finding that appellant=s intoxication caused Ramirez=s death is factually sufficient.  Appellant offered the testimony of Ivan Bautista, who stated that appellant did not appear to be intoxicated immediately after the accident and that the accident was caused by appellant striking a pothole in the roadway.  Ramirez Jr. also testified that there were holes in the road. Officer Wilhite, however, testified that there were no impediments, such as potholes, in the roadway.  Appellant also points to the fact that it was raining and that there was water in the road as the cause of the accident. After considering the evidence offered by the State proving the causal link between appellant=s intoxication and the resulting accident, we do not find that these other asserted causes were clearly sufficient to cause the accident or that appellant=s intoxication was clearly insufficient.  See Tex. Penal Code ' 6.04(a); see also Hale v. State, 194 S.W.3d 39, 42 (Tex. App.CTexarkana 2006, no pet.) (finding that a stopped or slow-moving car in the road was not clearly sufficient to be the cause of the accident and that defendant=s intoxication was not clearly insufficient); Martinez v. State, 66 S.W.3d 467, 470 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d) (finding that the defendant=s driving while intoxicated at a high rate of speed could not be considered clearly insufficient to cause the accident despite the vehicle=s defective front axle and faulty brakes).  We cannot say that the evidence as to causation is so weak that the jury=s finding was clearly wrong or manifestly unjust; nor can we say that the verdict is against the great weight and preponderance of the evidence.  We overrule appellant=s second point of error.

We affirm the trial court=s judgment.

/s/      Adele Hedges

Justice

Judgment rendered and Memorandum Opinion filed February 6, 2007.

Panel consists of Chief Justice Hedges and Justices Fowler and Edelman.

Do Not Publish C Tex. R. App. P. 47.2(b).