Juan Jose Soulas v. State ( 2000 )

NUMBER 13-99-002-CR, 13-99-003-CR and 13-99-004-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

JUAN JOSE SOULAS,

Appellant,

v.

THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 214th District Court of Nueces County, Texas.

___________________________________________________________________

O P I N I O N

Before Justices Dorsey, Chavez and Rodriguez

Opinion by Justice Chavez

A jury found appellant Juan Jose Soulas guilty of two counts of intoxication manslaughter, one count of intoxication assault, and one count of aggravated assault. It assessed his punishment for intoxication manslaughter at five years each, for intoxicated assault at five years, and aggravated assault at two years, each sentence running concurrently with the other sentences. The jury also assessed a fine of $2,500 for each offense.

The appellant challenges the legal and the factual sufficiency of the evidence. The appellant also filed a motion for new trial based on newly discovered evidence, and seeks relief from the trial court's denial of this motion. The State argues that even if the appellant's arguments are correct, he is not entitled to appellate review because he did not present a complete record on appeal as required by Texas Rule of Appellate Procedure 34.6(c)(5). We reject this argument, reverse the trial court's ruling on the basis of the legal sufficiency of the evidence, and render judgment of acquittal.

On December 30, 1996, Soulas was involved in a violent, high-speed, two car collision in Nueces County. Soulas, with a blood alcohol level of 290 milligrams per deciliter, was in the car that caused the wreck. One individual died and another was injured in the other car. A third individual, who was in Soulas's car, died soon after the collision. Soulas suffered injuries. He admitted to having been in the car at the time of the collision, but denied he was the driver. There were no witnesses who testified to having seen Soulas drive the car or to having seen him thrown from the driver's side of the car. There was testimony that Soulas was found, in a debilitated state, about twenty to thirty feet outside of the driver's side of his vehicle.

Although the air bag did inflate in Soulas's car, one witness testified that she saw the imprint of a steering wheel on his chest at the scene of the wreck. Soulas, however, has an unusual scar on his chest from a shotgun blast he suffered during childhood. The witness also stated that she may have been mistaken about the steering wheel mark if the air bag had been deployed. A police officer investigating the incident testified that Soulas had a mark on his face that could have been a rug burn from the air bag.

There was testimony that Soulas was uncooperative when being questioned; it is also clear that he was inebriated and in poor physical condition from the wreck. The State did no investigation of the interior of Soulas's car for blood, hair, skin or any other evidence that would connect Soulas or the other person in his car to the driver's seat of the car. The other person in the car was a woman whom Soulas had recently met at a bar; the State argued that Soulas would not let a stranger drive his car. The State also argued that because the driver's side of the car was relatively undamaged when compared to the passenger side of the vehicle, and because Soulas survived and the other person in the car did not, it is more likely that Soulas was on the driver's side of the vehicle.

The State presented very little evidence regarding reconstruction of the accident, nor did it have an accident reconstruction expert study the scene where the wreck took place. The defense argued that the other person in Soulas's vehicle, not Soulas, was driving at the time of the wreck, and presented an expert in accident reconstruction whose testimony provided one of many possible scenarios that could describe how the collision happened. The State could not refute the expert's testimony.

The State presented the testimony of a police officer, who, with little investigation, concluded in the immediate disorder after the collision that Soulas was the driver of the car, and filled in Soulas's name as the driver on his paperwork. He made no measurements, took no photographs, made no notes about where the two cars collided or rested after the impact, and interviewed only one witness.

There were two state highway patrolmen who also served as witnesses for the State. Neither officer was a certified accident reconstructionist. They took photos at the scene that provided ample evidence of the intoxication of Soulas and the other person in his vehicle, but did not provide any evidence in regard to the identity of the driver of Soulas's vehicle. One diagramed the scene of the accident, the other made a rough sketch. Both agreed that Soulas's car had run a stop sign to cause the collision. Neither attempted to mark where Soulas or the other individual thrown out of his car landed, nor provided any other evidence in regard to the identity of the driver of the vehicle.

Except for aggravated assault, which requires Soulas to have used or exhibited a deadly weapon,⁽¹⁾

an essential element of all of the charges against him is that he must have operated a motor vehicle. Tex. Penal Code Ann. §§ 49.07, 49.08 (Vernon 1979). Here, the motor vehicle or deadly weapon is Soulas's vehicle. The finder of fact must determine beyond a reasonable doubt that Soulas was the driver of the car at the time of the collision. Otherwise, Soulas is presumed innocent. Tex. Code Crim. Proc. Ann. § 38.03 (Vernon 1979).

The jury is the finder of fact, and the exclusive judge of the credibility, weight, and balance of all testimony. Penegraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981); Tex. Code Crim. Proc. Ann. § 38.04 (Vernon 1979). When this court reviews the legal sufficiency of the evidence, we determine whether, after viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense charged against the defendant beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Mosley v. State 983 S.W.2d 249, 254 (Tex. Crim. App. 1998); Cano v. State, 3 S.W.3d 99, 104-105 (Tex. App.--Corpus Christi 1999, pet. ref'd).

The evidence that puts Soulas behind the wheel of his vehicle is extremely sparse. No witnesses could testify to having seen Soulas operating his vehicle. The jury may nonetheless draw reasonable inferences from the evidence presented to it in order to determine ultimate facts, and may choose among reasonable constructions of the evidence. Stanfield v. State, 213 S.W.2d 837, 837 (Tex. Crim. App. 1948); Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App.--Corpus Christi 1988, pet. ref'd). The evidence is undisputed that Soulas was in the vehicle and that the vehicle belonged to him. But here, to determine that he was the driver of the vehicle, a fact-finder must make broad inferences from the scant evidence available.

The State failed to provide an adequate accident reconstruction, and did not offer physical evidence of blood, hair, skin or other evidence linking Soulas to the driver's side of the vehicle at the time of the collision. The State did point out problems with the defendant's accident-reconstruction expert. The expert's conclusion was only one of many possible conclusions; his computer simulation was two dimensional, not three dimensional; he did not account for possible variables that could affect the results of his reconstruction. But the State failed to controvert his testimony. The only other evidence is vague and circumstantial. All of the evidence presented, viewed in a light most favorable to the jury's finding, is insufficient to establish guilt beyond a reasonable doubt. We hold that the evidence is legally insufficient to support the conviction.

The State points out that the trial exhibits were not included in the reporter's record presented to this court on appeal. The Texas Rules of Appellate Procedure provide that in a criminal case, if the statement contains a point complaining that the evidence is insufficient to support a finding of guilt, the record must include all of the evidence admitted at the trial on the issue of guilt or innocence and punishment. Tex. R. App. P. 34.6(c)(5). Another section of the same rule, however, states that if anything relevant is omitted from the reporter's record, the appellate court may direct the official court reporter to supplement it with the omitted items. Tex. R. App. P. 34.6(d). Any supplemental reporter's record is part of the appellate record. Id. In this case, the missing exhibits were presented to this court upon our order to the official court reporter of the trial court. Accordingly, we find no merit in the State's argument.

Because we find the evidence legally insufficient, we need not look at the remaining arguments. Tex. R. App. P. 47.1. The trial court's ruling is reversed; the appellant is acquitted.

MELCHOR CHAVEZ

Justice

Do not publish.

TEX. R. APP. P. 47.3.

Opinion delivered and filed this

the 11^th day of May, 2000.

1. Tex Penal Code Ann. § 22.02 (Vernon 1994).