Tyree Jack Jones II v. State ( 2008 )

Affirmed as Reformed and Memorandum Opinion filed July 1, 2008

Affirmed as Reformed and Memorandum Opinion filed July 1, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00879-CR

____________

TYREE JACK JONES, II, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 1053945

M E M O R A N D U M   O P I N I O N

Appellant Tyree Jack Jones, II, was found guilty of felony murder and sentenced to thirty-eight years= confinement in the Texas Department of Criminal Justice, Institutional Division.  On appeal, appellant raises eight issues: (1) whether the underlying charged driving while intoxicated (ADWI@) offense was appropriately considered a felony under Texas Penal Code section 49.09; (2) whether the trial court erred in denying his motion to quash the indictment because it failed to allege a culpable mental state; (3) whether the trial court erred in denying his motion to quash because the felony murder and intoxication manslaughter statutes are in pari materia; (4) whether his punishment violates equal protection; (5) whether the evidence is factually sufficient to support the jury=s verdict; (6) whether the evidence is legally sufficient to support the jury=s verdict; (7) whether the trial court erred in denying his motions to suppress evidence; and (8) whether the trial court=s judgment includes an incorrect entry that appellant used a Afirearm@ during the commission of the offense.  We find no merit in appellant=s first seven issues, sustain his eighth issue in which appellant requests this court to reform the trial court=s judgment, and we affirm the judgment as reformed.

Factual Background

On January 15, 2006, appellant and his friend, Rene Peralez, spent the afternoon and evening drinking and driving to various locations.  Around 11:00 p.m., appellant decided to drive home from Peralez=s house.  Peralez tried to convince appellant to stay the night because appellant appeared intoxicated, but appellant refused.  Appellant got in his Chevrolet Silverado pickup truck and drove away from Peralez=s house, even though he had at least two prior DWI convictions.

The weather was clear and the roads were dry as appellant drove north on Highway 249 toward the intersection of Highway 249 and Holdereith.  At the intersection, five vehicles were stopped at a red light on Highway 249, waiting for the light to change.  The fifth car in the line of cars was a Lexus driven by Sandy Laine.  Laine=s 80-year-old mother, Rita Gervais, was seated in the back seat on the driver=s side.  Gervais always sat in the back seat because the air conditioning was too cool in the front.  She also did not wear a seat belt, because she was very short and it was uncomfortable for her.

As Laine waited for the light to change, appellant=s pickup truck smashed into the back of her Lexus.  At the time of the crash, the light was still red.  Appellant=s truck was traveling at approximately fifty-five miles per hour at the time it collided with Laine=s car; there was no braking, and the force of the truck crushed together all six of the vehicles.  The truck traveled an additional fifty feet after striking Laine=s car as it pushed each vehicle in line into the next. 

The force of the crash caused Laine to lose consciousness. Gervais=s head struck the door framing on the side of the car, causing her to sustain several serious injuries, including a gaping laceration across her forehead, extensive skull fractures, and bleeding around her brain.  The force of the crash also tore her aorta, fractured her vertebrae, and dislocated her femur.  These injuries caused Gervais=s death. 

The driver of the car in front of Laine=s car, Gary Fly, may have been knocked unconscious by the collision, because the next thing he remembered after the collision was an ambulance at the scene.  Fly=s car was so damaged that he could not drive it home.  The force of the collision propelled the second car in line, driven by George Reynolds, into the first car, despite the fact that Reynolds=s foot was on the brake.  Reynolds=s car was totaled.  The driver of the first car, Debra Enlow, and her daughter, Aflew forward and back@ in their seatbelts, and her car sustained damage in the rear.^[1]

When Laine regained consciousness, she turned to check on Gervais and saw her lying on the floor of the car.  Laine tried to get out of the car to help her mother, but she was unable to open the door.  She then climbed over the center console and got out through the passenger side door. She realized that her shoes had Ablown off@ her feet, and there was glass everywhere.  The back of Laine=s head was cut, her fingernails were broken, and her arm was cut.  Police and ambulance personnel arrived and began assisting Gervais. 

Officer Rick Garza with the Tomball Police Department was one of the police officers who arrived at the scene.  He saw that all six cars were involved in the wreck, and all of the drivers of the vehicles were present except for appellant.  Garza learned that the Silverado pickup truck was registered to Brandy Jones, appellant=s wife.  A name tag with appellant=s name on it was found in the truck. There was also an empty bottle of vodka in the bed of the truck.  The airbags had deployed, and there was blood on the driver=s side airbag. There was also blood on the driver=s side door and along the outside rear of appellant=s truck, indicating that the driver may have run into a vacant field on the corner of Holdereith and Highway 249.  DNA testing on the blood samples confirmed that the blood came from appellant.

Tomball Police requested a canine unit from the Harris County Sheriff=s Department, and the officers started looking for the driver of the truck when Deputy Connie Anderson and her dog ABeleuw@ arrived at 12:15 a.m.  Beleuw first took the officers around a large dirt pile on the side of the road to a large pool of blood.  He then located a second pool of blood, and after Anderson and Beleuw searched some nearby buildings, they returned to the second pool of blood, where Beleuw resumed tracking appellant.  Beleuw eventually found appellant lying still in a ditch.  Appellant=s face and clothing were bloody, his speech was slurred, and he had a strong odor of alcohol on him. 

Appellant was arrested at 1:53 a.m. and taken to a nearby hospital, where he told hospital personnel that he had been in a fight.  The hospital staff drew blood for treatment purposes at around 3:00 a.m., and it showed an alcohol concentration of 0.26. 

Meanwhile, Gervais was taken by a Life Flight helicopter to the same hospital.  Laine was also brought to the same hospital, where she repeatedly asked to see her mother.  When Laine eventually was told that her mother was dead, she started screaming.  Appellant, who was nearby, heard Laine=s screams and asked, AWhat is that ungodful noise?@^[2] 

Officer Garza met appellant at the hospital and conducted a mandatory blood draw on him.  The blood from the mandatory draw was taken at 5:02 a.m. and showed an alcohol concentration of 0.20.  A toxicologist from the Harris County Medical Examiner=s Office testified that, at the time of the crash, appellant=s blood alcohol concentration would have been 0.32, which was four times the legal limit.

Analysis of Appellant=s Issues

I.        Whether the Underlying Charged DWI Offense was Appropriately Considered a Felony Under Texas Penal Code Section 49.09.

In his first issue, appellant contends that his third DWI offense was not a felony until it was proved at the time of trial that it was a felony; therefore, when he actually committed the offense, it had not yet been proved that he had committed a felony.  As support for this theory, appellant cites the highlighted language of the following subsection of the Texas Penal Code:

(b) An offense under Section 49.04 . . . is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted . . .

(2) two times of any other offense relating to the operating of a motor vehicle while intoxicated, operating an aircraft while intoxicated, operating a watercraft while intoxicated, or operating or assembling an amusement ride while intoxicated.

Tex. Penal Code ' 49.09(b)(2) (emphasis added).  Because the underlying offense had not been proven to be  a felony at the time of the collision resulting in Gervais=s death, appellant urges, he cannot legally be convicted of felony murder.

Appellant filed a motion to quash the indictment in which he claimed that the indictment failed to allege a culpable mental state and violated the merger doctrine.  After a hearing, the trial court denied the motion.  Appellant never argued to the trial court that the indictment should be dismissed because the DWI offense with which he was charged does not become a felony until the prior DWI convictions are proved at trial.  Therefore, he has not preserved this issue for appellate review.  See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004).

Even if appellant had preserved the issue, it would be without merit.  The statutory language appellant relies upon provides that an Aoffense under Section 49.04 . . . is a felony of the third degree if it is shown on the trial of the offense that the person has previously been convicted [two times of DWI].@  Tex. Penal Code ' 49.09(b)(2) (emphasis added).  The statute does not provide that DWI becomes a felony only when it is shown that the suspect had two prior DWI convictions; it provides that the offense is a felony.  Thus, the felony is committed and completed when the suspect drives while intoxicated while having two prior DWI convictions.  It is not completed months later at trial when those prior DWI convictions are actually proven.  Additionally, we note that the prior convictions are elements of the offense of felony murder just like the operation of a motor vehicle and the intoxication elements.  See Robles v. State, 85 S.W.3d 211, 213 (Tex. Crim. App. 2002) (AProof of the convictions is necessary in that the prior convictions are elements of felony DWI.@).  The fact that they have not yet been proven does not alter the nature of the offense.  We overrule appellant=s first issue.

II.       Whether Appellant=s Motion to Quash Should Have Been Granted Because the State Failed to Allege a Culpable Mental State in the indictment.

In his second issue, appellant contends that the trial court erred in denying his motion to quash the felony murder indictment because the State failed to allege a culpable mental state.  However, the Court of Criminal Appeals recently settled this issue against him.  In Lomax v. State, 233 S.W.3d 302 (Tex. Crim. App. 2007), the appellant was charged with felony murder based on a felony DWI, and he claimed that the felony murder statute required a culpable mental state.  Id. at 304.  Examining the issue at length, the Court stated the following:

[D]eciding that Section 19.02(b)(3) [the felony murder statute] dispenses with a culpable mental state is consistent with the historical purpose of the felony-murder rule, the very essence of which is to make a person guilty of an Aunintentional@ murder when he causes another person=s death during the commission of some type of a felony . . . We hold that Section 19.02(b)(3) plainly dispenses with a culpable mental state. 

Id. at 305 (citations omitted).  We overrule appellant=s second issue.

III.      Whether Appellant=s Motion to Quash Should Have Been Granted Because the Felony Murder and Intoxication Manslaughter Statutes are in Pari Materia.

In his third issue, appellant contends that the trial court erred in denying his motion to quash the indictment because it violated the in pari materia doctrine.  The in pari materia doctrine is a rule of statutory construction for determining which statutory provision controls when a general statutory provision and a more specific statutory provision deal with the same subject matter and they irreconcilably conflict.  Ex parte Smith, 185 S.W.3d 887, 889 n.5 (Tex. 2006).  The doctrine has been codified in section 311.026 of the Government Code:

' 311.026. Special or Local Provision Prevails Over General

(a) If a general provision conflicts with a special or local provision, the provisions shall be construed, if possible, so that effect is given to both.

(b) If the conflict between the general provision and the special or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.

Tex. Gov=t Code ' 311.026.  Appellant argues that the felony murder and intoxication manslaughter statutes are in pari materia, and therefore the intoxication manslaughter statute, as the more specific statute, governs his alleged criminal act.

As an initial matter, the State contends that appellant failed to preserve this issue because he did not raise it in his motion to quash.  However, under the heading AMerger Doctrine@ in appellant=s motion to quash, appellant argued that he should have been charged with intoxication manslaughter instead of felony murder, and that A[t]he State is trying to ignore a specific statute while seeking a felony murder indictment.@  Therefore, we conclude that appellant=s argument below was sufficient to preserve the issue for appellate review.

The doctrine of in pari materia applies if two statutes share a common purpose or object.  See Burke v. State, 28 S.W.3d 545, 547 (Tex. Crim. App. 2000).  Similarity of purpose or object is the most important factor in assessing whether two provisions are in pari materia; the two provisions must have been enacted with the same purpose in mind for the doctrine to apply.  Id.  To determine whether two statutes are in pari materia, a court may consider whether (1) the two statutes are contained in the same legislative act; (2) the same elements of proof are required by the two statutes; (3) they involve different penalties; and (4) they were designed to serve the same purpose and objective.  See id.

Appellant concedes that the two statutes were not passed in the same legislative act and do not require the same elements of proof, but contends that the last two factors identified in Burke fall in his favor.  However, the Court of Criminal Appeals rejected similar arguments in the recent Lomax opinion.  In that case, the dissenting opinion adopted the same argument appellant makes on appealCthat felony murder based on felony DWI must be prosecuted as intoxication manslaughter.  See Lomax, 233 S.W.3d at 313B15 (Johnson, J., dissenting).  However, the majority disagreed, noting that felony murder and intoxication manslaughter Aobviously cover different situations and apparently were not intended to be considered together. . . . The felony-murder statute covers a variety of homicides during the commission of a felony while the intoxication manslaughter statute is specifically limited to a DWI homicide.@  Id. at 312. 

We follow the holding of the Court of Criminal Appeals in concluding that the felony murder statute and the intoxication manslaughter statute are not in pari materia.  See also Hollin v. State, 227 S.W.3d 117, 122 (Tex App.CHouston [1st Dist.] 2006, pet. ref=d) (concluding that the felony murder and intoxication manslaughter statutes are not in pari materia because the two statutes do not satisfy the Burke criteria); Strickland v. State, 193 S.W.3d 662, 665B69 (Tex. App.CFort Worth 2006, pet. ref=d) (same).  We therefore overrule appellant=s third issue.

IV.      Whether Punishing Appellant as a First-Degree Felon While Others Committing Intoxication Manslaughter are Punished as Second-Degree Felons Violates Equal Protection.

In his fourth issue, appellant contend the State is punishing him as a first degree felon for a conviction for felony murder, while others who commit the same act are punished as second-degree felons for an intoxication manslaughter conviction, and this application of the law violates equal protection as provided by the United States and Texas Constitutions. However, appellant failed to argue in the trial court that prosecution for felony murder violated his constitutional right to equal protection under the law.  Therefore, he has failed to preserve the issue for appellate review.  See Saldano v. State, 70 S.W.3d 873, 889B91 (Tex. Crim. App. 2002) (holding that many constitutional rights, including equal protection, may be forfeited by failing to object); Hull v. State, 67 S.W.3d 215, 216B18 (Tex. Crim. App. 2002 (holding that defendant failed to preserve due process claim when raised for first time on appeal).  We overrule appellant=s fourth issue.

V.      Whether the Evidence is Legally Sufficient to Prove Appellant Caused Gervais=s Death While Driving Drunk.

In his sixth issue, appellant contends that the evidence is legally insufficient to prove that he caused the complainant=s death while driving drunk.  Specifically, he contends that the State failed to prove that he was the driver of the pickup truck and, if he were the driver, that his actions were the legal cause of Gervais=s death.  Although appellant reasserts the arguments he makes in his fifth issue, in which he contends that the evidence is factually insufficient, we address his legal sufficiency issue first, because an affirmative finding on this issue would result in a rendition of a judgment of acquittal, while a finding of factual insufficiency would result in a remand for a new trial.  See Hartis v. State, 183 S.W.3d 793, 803 (Tex. App.CHouston [14th Dist.] 2005, no pet.).

A.      Standard of Review

In addressing legal sufficiency complaints, we consider all 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.  Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).  The jury, as sole judge of the witnesses= credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side.  See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000).  We must give deference to the responsibility of the jury to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.  Hooper, 214 S.W.3d at 13.

Evidence can be both legally and factually sufficient for a conviction even if it is entirely circumstantial.  See King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000).  The standard of review for circumstantial and direct evidence is the same.  Id.  It 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).

B.      Legal Sufficiency

A person commits the offense of felony murder if the person commits or attempts to commit a felony other than manslaughter and, in the course of and in furtherance of the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.  Tex. Penal Code ' 19.02.(b)(3). Under Texas Penal Code section 49.04, a person commits the offense of DWI if the person is intoxicated while operating a motor vehicle in a public place.  Tex. Penal Code ' 49.04.^[3] The offense is elevated to a felony if the person has previously been convicted at least twice for DWI.  Id. ' 49.09(b)(2). Here, the State alleged in the indictment that appellant caused Gervais=s death by speeding and failing to take evasive action while in the course of committing a DWI and while having two prior DWI convictions. 

Appellant first claims that the evidence is legally insufficient to show that he was actually driving the truck at the time of the collision.  He contends that there is a Areasonable alternative hypothesis@ that Peralez was driving the truck, and even if appellant was in the truck at the time of the collision, he could have been on the passenger side.  Appellant points to the blood found on the passenger side of the pickup and the fact that the passenger side airbag deployed as evidence indicating someone was likely sitting on the passenger side. Appellant also asserts that the pattern of blood evidence in the truck shows that he could not exit through the passenger door and had to get out of the truck through the driver=s side door, and that Peralez also exited through that door and went to his home nearby.^[4]

However, although there was no direct testimony that appellant was operating the vehicle, ample circumstantial evidence supports the jury=s finding.  The truck was registered to appellant=s wife, and his personal effects, including his name tag, were inside the truck.  Peralez testified that he saw appellant driving the truck in the direction of the collision just a few minutes before it happened.  Further, DNA tests on all of the blood taken from the various locations where it was found on the truck confirmed that the blood was appellant=s.^[5] Finally, a tracking dog followed appellant=s scent from the scene to the ditch where he was found with injuries consistent with such a collision.  This evidence is sufficient to show that appellant was operating the vehicle at the time of the crash.  See Ramirez v. State, Nos. 01-05-00383-CR, 01-05-00384-CR, 2006 WL 1549750, at *3 (Tex. App.CHouston [1st Dist.] June 8, 2006, no pet.) (mem. op., not designated for publication) (holding circumstantial evidence legally sufficient to show that appellant was driver when his passenger was bleeding, but there was no blood on driver=s side airbag and blood inside car did not match appellant=s DNA); Freeman v. State, 69 S.W.3d 374, 376 (Tex. App.CDallas 2002, no pet.) (holding circumstantial evidence showed defendant operated vehicle when defendant started the vehicle, turned the lights on, shifted the gear to drive, ran the vehicle into the curb, and fell asleep at the wheel).  Further, there is no evidence to support appellant=s contention that Peralez could have been the driver.

Appellant next claims that, although he may have initiated the chain of causation, Gervais=s failure to wear her seatbelt ultimately caused her death.  Appellant points out that everyone else involved in the collision was wearing a seatbelt, and none of them sustained serious injuries. Further, appellant contends that photographs of the Lexus show the passenger compartment was relatively intact, indicating Gervais would not have been seriously injured if she had used her seatbelt.  Appellant also notes the medical examiner=s acknowledgment that, in other cases, people properly restrained have walked away from accidents.  Therefore, appellant posits, a reasonable fact finder would conclude that Gervais=s death would not have occurred but for her failure to wear a seatbelt.

Section 6.04(a) of the Texas Penal Code provides that a Aperson 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 was clearly insufficient.@  Tex. Penal Code ' 6.04(a).  The existence or nonexistence of such a causal connection is normally a question for the jury=s determination.  Dorsche v. State, 514 S.W.2d 755, 757 (Tex. Crim. App. 1974); Hale v. State, 194 S.W.3d 39, 42 (Tex. App.CTexarkana 2006, no pet.).

The Texas Court of Criminal Appeals has held that the Abut for@ causal connection in section 6.04(a) must be established between the defendant=s conduct and the resulting harm.  Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986).  If concurrent causes are present, two possible combinations exist to satisfy the Abut for@ requirement:  (1) the defendant=s conduct may be sufficient by itself to have caused the harm, regardless of the existence of a concurrent cause; or (2) the defendant=s conduct and the other cause together may be sufficient to have caused the harm.  Id.  However, section 6.04(a) further defines and limits the Abut for@ causality for concurrent causes by the last phrase, Aunless the concurrent cause was clearly sufficient to produce the result and the conduct of the actor clearly insufficient.@ Id. If the additional cause, other than the defendant=s conduct, is clearly sufficient, by itself, to produce the result and the defendant=s conduct, by itself, is clearly insufficient, then the defendant cannot be convicted.  Id.

Applying section 6.04(a) to the facts of this case, appellant is criminally responsible because his conduct and the other causeCGervais=s failure to wear her seat beltCtogether were sufficient to cause her death, and Gervais=s conduct alone was not sufficient to cause her death.  The evidence showed that, at the time of the collision, appellant was intoxicated; he was traveling approximately fifty-five miles per hour toward an intersection where five other cars were stopped waiting for a red light to change; he failed to apply his brakes or take any evasive action as he approached the line of cars, even though the weather was clear and dry and the traffic light was clearly visible; and the injuries Gervais sustained when she was thrown from her seat and struck the interior of the Lexus caused Gervais=s death.  Gervais=s conductCnot wearing a seat beltCclearly was not sufficient by itself to cause the result, i.e., her death.  Considering these facts, a rational jury could have found, beyond a reasonable doubt, that appellant=s impairment caused the accident in which Gervais was killed.  See Serrano v. State, No. 14-05-00646-CR, 2007 WL 324606, at *2 (Tex. App.CHouston [14th Dist.] Feb. 6, 2007, no pet.) (mem. op, not designated for publication) (holding legally sufficient evidence supported finding that accident was caused by appellant=s impairment when he was intoxicated and drinking while driving, he drove in excess of seventy-five miles per hour on a wet road, and he drove into a ditch before he Ajerked@ the car back onto the roadway); see also Garcia v. State, 112 S.W.3d 839, 853B54 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (finding evidence that appellant=s intoxication caused death when there was evidence that appellant was intoxicated while 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 legally sufficient evidence that appellant=s intoxication caused death when there was evidence that appellant drove thirty-five miles per hour above posted speed, hit complainant in a well-lit area without applying the brakes, and was intoxicated while driving).  We therefore overrule appellant=s sixth issue.

VI.      Whether the Evidence is Factually Sufficient to Prove Appellant Caused Gervais=s Death While Driving Intoxicated.

In his fifth issue, appellant contends that the evidence is factually insufficient to support the jury=s verdict, because the record fails to establish that he was the driver, and Gervais=s failure to wear her seat belt caused her death.

A.      Standard of Review

Evidence supporting guilt, though legally sufficient, may be factually insufficient because it is so weak that the jury=s verdict is clearly wrong and manifestly unjust, or because evidence contrary to the verdict is such that the jury=s verdict is against the great weight and preponderance of the evidence.  Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); Watson v. State, 204 S.W.3d 404, 414B15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). In a factual  sufficiency review, we consider all the evidence in a neutral light. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d at 414.  Although our authority to review factual sufficiency permits us to disagree with the jury=s determinations, we must accord them due deference, particularly those determinations concerning the weight and credibility of the evidence.  Johnson, 23 S.W.3d at 9.

B.      Factual Sufficiency

Appellant makes the same claims in both his legal and factual sufficiency issues.  First, appellant claims that his Areasonable alternative hypothesis@ that Peralez was driving the truck is relevant to a factual sufficiency review because in Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), the Court of Criminal Appeals held that to determine whether the evidence presented is factually sufficient, the reviewing court should consider all of the evidence in a neutral light.  See id. at 129; see also Richardson, 973 S.W.2d at 386B87 (reviewing post-Clewis cases involving factual-sufficiency challenges and concluding that a factual sufficiency analysis necessarily considers any reasonable alternative hypotheses raised by the evidence, because the very nature of a factual-sufficiency review requires the court to consider all the evidence presented at trial).  However, in Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999), the Court of Criminal Appeals stated that Athe existence of alternative reasonable hypotheses may be relevant to, but are not determinative in, a factual review.@  Further, the Court of Criminal Appeals has since held that an appellate court must first be able to say, with some objective basis in the record, that Athe great weight and preponderance of the (albeit legally sufficient) evidence contradicts the jury=s verdict@ before it is justified in exercising its appellate fact jurisdiction to order a new trial.  Watson, 204 S.W.3d at 417 (emphasis in original).

In any event, it is unnecessary to consider the substance of appellant=s argument, because, based upon our review of the record, we find appellant=s alternative hypothesis to be unreasonable. As discussed above, there is no evidence to support the conclusion that Peralez could have been the driver of the truck at the time of the collision. Moreover, appellant never argued this theory at trial.  Therefore, we hold that this contention is without merit.

We also hold that the evidence is factually sufficient to support the jury=s finding that appellant=s intoxication caused Gervais=s death.  As discussed above, appellant pointed to evidence that the others involved in the collision who were wearing their seatbelts were not seriously injured, the medical examiner acknowledged that seatbelts have prevented serious injuries in other cases, and photographs of the Lexus=s passenger compartment to support his claim that, but for Gervais=s failure to wear her seatbelt, she would not have died from the collision.  However, the evidence also showed that appellant stipulated to the two prior DWI convictions, his blood alcohol level was four times the legal limit at the time of the collision, and he drove into a line of cars while traveling approximately fifty-five miles per hour without applying his brakes and without taking any sort of evasive action.  Having considered the evidence offered by the State proving the causal link between appellant=s intoxication and the resulting collision and the evidence cited by appellant, we cannot conclude that Gervais=s failure to wear a seatbelt was clearly sufficient to cause the accident or that appellant=s intoxication was clearly insufficient.  See Tex. Penal Code ' 6.04(a); Serrano, 2007 WL 324606, at *3 (holding evidence of causation was factually sufficient despite testimony that appellant did not appear intoxicated after accident, and accident was caused by appellant striking a pothole in the roadway, it was raining, and there was water in the road); Hale, 194 S.W.3d at 43B44 (holding 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); see also Martinez v. State, 66 S.W.3d 467, 469B70 (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).  Therefore, we cannot say that the evidence relative 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 fifth issue.

VII.     Whether the Trial Court Erred in Denying Appellant=s Motions to Suppress Evidence.

In his seventh issue, appellant contends that the trial court should have granted his motions to suppress evidence obtained from his truck and evidence from medical records, including the results of blood samples.  Specifically, appellant contends that it was not proven, at the time the search warrant for the truck was issued, that he was the driver of the vehicle.  In addition, he contends that evidence from his medical records and blood samples were obtained in violation of his privacy rights and without his consent. We review a trial court=s ruling on a motion to suppress evidence under an abuse-of-discretion standard.  See Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); see also State v. Ross, 32 S.W.3d 853, 855B56 (Tex. Crim. App. 2000) (discussing appropriate level of appellate review).

Appellant filed two motions to suppress.  In the first, he moved to suppress evidence seized from his truck, including all photographs, tests on physical evidence, and testimony of any officers who observed the physical evidence, based on a lack of probable cause for the search warrant. In the second, he moved to suppress his medical records, blood samples, and statements to mental health workers in jail based on the Health Insurance Portability and Accountability Act (AHIPAA@).  The trial court held a hearing over two days, at which three police officers and a nurse testified.  After the hearing, the trial court denied most of appellant=s requests, but granted the motion to suppress as to certain of appellant=s statements made to medical personnel.  The trial court did not file findings of fact.^[6]

On appeal, appellant first contends that evidence obtained from his truck should be suppressed due to a lack of probable cause because the officers did not have sufficient evidence to show that he was the driver at the time the search warrant was obtained.  However, as noted above, there was considerable circumstantial evidence at the scene that appellant was the driver of the truck.  The drivers of all of the cars involved in the collision were present except for the driver of the truck.  The truck=s airbag had deployed and had blood on it, and a blood trail from the truck indicated that the driver had fled.  The truck was registered to appellant=s wife, and a name tag with appellant=s name on it was found inside.  An empty bottle of vodka was found in the bed of the truck.  A canine unit later located appellant laying in a ditch with blood on his face and clothing, his speech was slurred, and he smelled of alcohol.  Further, a driver of one of the cars that was damaged had seen the driver of the truck before he fled, and gave a physical description that matched appellant.  The affidavit supporting the search warrant included much of this evidence.  Therefore, we reject appellant=s argument that the State lacked probable cause because there was insufficient evidence to show he was the driver of the truck.

Additionally, even if we accepted for purposes of appellant=s argument that the affidavit was insufficient, the police officers could have searched the vehicle without any warrant because they had probable cause to believe the vehicle contained evidence of a crime.  See Chambers v. Maroney, 399 U.S. 42, 48B49 (1970); Powell v. State, 898 S.W.2d 821, 827 (Tex. Crim. App. 1994); Amos v. State, 819 S.W.2d 156, 160B61 (Tex. Crim. App. 1991).  This Aautomobile exception@ to the constitutional requirement of a warrant does not require the existence of exigent circumstances in addition to probable cause.  See Michigan v. Thomas, 458 U.S. 259, 261B62 (1982); State v. Guzman, 959 S.W.2d 631, 634 (Tex. Crim. App. 1998). 

Here, officers at the scene knew that the truck had been involved in a serious traffic collision involving multiple vehicles and at least one seriously injured, dying, or dead person.  They saw the empty bottle of vodka and the blood inside the cab of the truck.  From this evidence, the officers would have had probable cause to believe that the driver had committed at least the crime of reckless driving, if not negligent homicide or intoxication manslaughter.  On the facts of this case, the officers would have had probable cause to believe that the truck would contain evidence of any such crimes.  See Wiede v. State, 214 S.W.3d 17, 26 (Tex. Crim. App. 2007) (AThe court of appeals should not have eliminated the accident as a relevant fact and circumstance in its probable cause analysis when reviewing the trial judge=s decision to deny Wiede=s motion to suppress.@).  Therefore, the trial court could have properly denied the motion to suppress because officers did not need a warrant to search the vehicle.

We also note that appellant affirmatively stated that he had no objection to the admission of a DNA analysis which confirmed that it was his blood on the driver=s side airbag and the truck.  Therefore, to the extent appellant complains on appeal about the admission of this evidence, he has failed to preserve any error in its admission despite the pretrial ruling.  See Moody v. State, 827 S.W.2d 875, 889 (Tex. Crim. App. 1992); Dean v. State, 749 S.W.2d 80, 83 (Tex. Crim. App. 1988); see also Heidelberg v. State, 36 S.W.3d 668, 672 n.2 (Tex. App.CHouston [14th Dist. 2001, no pet.) (stating that Aif the defendant=s attorney affirmatively states that he has no objection to the admissibility of the evidence when it is subsequently introduced at trial, he waives the right to complain of its admission on appeal.@).  By these actions appellant waived this complaint.

Appellant next contends that statements in his medical records were illegally obtained because the State did not comply with the requirements of HIPAA.  See 45 C.F.R. ' 164.512 (providing for uses and disclosures of protected health information without the written authorization of the individual or the opportunity for the individual to agree or object). However, appellant acknowledges in his brief that disclosure under HIPAA is permissible without an individual=s permission when the information is disclosed for law enforcement purposes and is obtained pursuant to 45 C.F.R. section 164.512(f)(1)(ii)(B), which permits disclosure of such information in response to a grand jury subpoena.  Although appellant contends that the State Adid not comply with the statutory requirements,@ the State obtained appellant=s medical records by a grand jury subpoena, which was admitted into evidence attached to appellant=s medical records.  Therefore, appellant=s contention that the State failed to comply with HIPAA=s requirements is without merit.

Finally, appellant also complains that evidence from blood samples is inadmissible because the State failed to comply with the mandatory blood draw requirements, and the nurse took the samples at the direction of law enforcement personnel without his consent in violation of his expectation of privacy.  Appellant cites section 724.011 of the Texas Transportation Code, entitled AConsent to Taking of Specimen,@ which provides as follows:                (a) If a person is arrested for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in a public place, or a watercraft, while intoxicated, or an offense under Section 106.041, Alcoholic Beverage Code, the person is deemed to have consented, subject to this chapter, to submit to the taking of one or more specimens of the person=s breath or blood for analysis to determine the alcohol concentration or the presence in the person=s body of a controlled substance, drug, dangerous drug, or other substance.

(b) A person arrested for an offense described by Subsection (a) may consent to submit to the taking of any other type of specimen to determine the person's alcohol concentration.

Tex. Transp. Code ' 724.011. Appellant again argues that there was insufficient evidence that he was the driver of the truck at the time of the blood draw.  However, as discussed above, there was sufficient evidence from which to conclude appellant was the driver at that time.

Additionally, Section 724.012 of the Transportation Code, entitled ATaking of Specimen,@ provides for the taking of blood or other specimens in the following circumstances:

(a) One or more specimens of a person=s breath or blood may be taken if the person is arrested and at the request of a peace officer having reasonable grounds to believe the person:

(1) while intoxicated was operating a motor vehicle in a public place, or a watercraft; or

(2) was in violation of Section 106.041, Alcoholic Beverage Code.

(b) A peace officer shall require the taking of a specimen of the person=s breath or blood if:

(1) the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft;

(2) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense;

(3) at the time of the arrest the officer reasonably believes that as a direct result of the accident:

(A) any individual has died or will die; or

(B) an individual other than the person has suffered serious bodily injury; and

(4) the person refuses the officer=s request to submit to the taking of a specimen voluntarily.

(c) The peace officer shall designate the type of specimen to be taken.

(d) In this section, Aserious bodily injury@ has the meaning assigned by Section 1.07, Penal Code.

Tex. Transp. Code ' 724.012.  Here, appellant was under arrest when he was taken to the hospital.  At the time, the officers believed that Gervais was very seriously injured or that she was dying or dead as a result of the collision.  Before the mandatory blood draw, Officer Garza read appellant the statutory warning, known as a DIC-24, which informed him that he was under arrest for a DWI offense and advised him of the possible consequences of refusing to give the blood specimen requested.  Appellant nevertheless refused to consent to give a specimen and refused to sign the form.  Officer Garza then filled out the statutory authorization form for a mandatory blood draw, directing the nurse to obtain the blood specimen from appellant.

Appellant does not address section 724.012=s provisions for implied consent or contend that the State failed to comply with the statute=s requirements. Therefore, appellant=s contention that his expectation of privacy was violated by the taking of blood samples without his consent is without merit.^[7] Further, we note that appellant affirmatively stated that he had no objection to the admission of the toxicology report from the medical examiner=s office, which showed his blood alcohol level at 2:35 a.m and 5:02 a.m.  Therefore, to the extent appellant complains of the admission of such evidence, he has failed to preserve the error for appeal.  See Moody, 827 S.W.2d at 889; Dean, 749 S.W.2d at 83; Heidelberg, 36 S.W.3d at 672 n.2.  We overrule appellant=s seventh issue.

VIII.    Whether the Trial Court=s Judgment Includes an Incorrect Entry.

In his eighth issue, appellant contends that the trial court=s judgment incorrectly states that appellant used a firearm as a deadly weapon during the commission of the offense, and requests that the judgment be corrected to indicate that a motor vehicle was used.  The State concedes that the judgment is incorrect and also requests that this court reform the judgment to reflect that the deadly weapon affirmative finding was for a motor vehicle rather than a firearm. 

We therefore sustain appellant=s issue and order the judgment reformed to omit the reference to a firearm and to reflect that the deadly weapon used to commit the offense was a motor vehicle.

Conclusion

We overrule appellant=s issues one through seven.  We sustain appellant=s eighth issue and reform the judgment below to reflect  that the deadly weapon used to commit the offense was a motor vehicle and not a firearm.  We affirm the remainder of the judgment as reformed.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed July 1, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.

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

---

^[1]  The driver of the third car in line did not testify at appellant=s trial.

^[2]  In other places in the record, appellant was quoted as saying, AWhat is that god awful noise?@

^[3]  AIntoxicated@ means (A) not having the normal use of mental or physical faculties by reason of the introduction of alcohol or (B) having an alcohol concentration of .08 or more.  Tex. Penal Code ' 49.01(2).

^[4]  To the extent appellant relies on Richardson v. State, 973 S.W.2d 384 (Tex. App.CDallas 1998, no pet.), to advance his Areasonable alternative hypothesis,@ we note that the Richardson court recognized that the Court of Criminal Appeals has abandoned the Areasonable alternative hypothesis@ construct as it applies to a legal  sufficiency review.  See id. at 386 (citing Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991), overruled in part on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000)). Consequently, to be legally sufficient, the evidence need not exclude all reasonable alternative hypotheses.

^[5]  In addition, Officer Garza testified that there did not have to be anybody in the passenger seat of that model truck for the passenger airbag to deploy, and Monty Highsmith, the State=s accident reconstruction expert, testified that both airbags deployed because the passenger side airbag was not suppressed to prevent deployment.

^[6]  Because the trial court did not file findings of fact, we view the evidence in the light most favorable to its ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record.  Ross, 32 S.W.3d at 855.  We will sustain the trial court=s decision if it is correct on any applicable theory of law.  Id. at 855B56.

^[7]  In support of his argument that the nurse was required to get his consent before taking a blood sample, appellant cites a 1966 Attorney General Opinion, No. C-766.  However, appellant does not explain the relevance of this opinion in light of the legislature=s provisions for implied consent.