George Larry Harvey v. State ( 2011 )

NUMBER 13-11-00038-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
GEORGE LARRY HARVEY, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 221st District Court
of Montgomery County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Garza
A jury found appellant, George Larry Harvey, guilty of the third-degree felony
offense of driving while intoxicated (DWI). See TEX. PENAL CODE ANN. §§ 49.04 (West
2003), 49.09(b)(2) (West Supp. 2010). The jury found two enhancement paragraphs
―true‖ and sentenced appellant to life imprisonment. See id. § 12.42(d) (West Supp.
2010). By two issues, appellant contends: (1) the evidence was insufficient to establish
the corpus delicti of the DWI offense, i.e., that he was the person operating the motor
vehicle; and (2) the evidence was legally insufficient to support his conviction. We
affirm.
I. BACKGROUND1
A. State’s Evidence
1. Robert Layman
Robert Layman, an officer with the Montgomery County Sheriff’s Office, was the
first officer to arrive at the scene of a two-car accident in the New Caney area of
Montgomery County, Texas. Appellant was sitting on the back tailgate of his pickup
truck. Appellant’s speech was ―extremely slurred,‖ and Officer Layman had difficulty
understanding him. When Officer Layman approached him, appellant said he ―was
ready to go to jail.‖ On cross-examination, Officer Layman stated that he identified the
driver of the other vehicle and secured the scene. Officer Layman was at the end of his
shift; other officers arrived to conduct the investigation.
2. Brian Ihnen
Brian Ihnen, a trooper with the Texas Department of Public Safety, testified that
when he arrived at the scene, he spoke to the other officers. He also spoke to Ronald
Penny, a passenger in the vehicle that struck appellant’s truck. Penny said his wife,
later identified as Wanda Medford, was driving; appellant pulled out of a driveway, and
Medford’s vehicle struck appellant’s truck. Penny told Trooper Ihnen that appellant
appeared to be intoxicated. Trooper Ihnen interviewed appellant but had difficulty
understanding him because his speech was ―slurred and mumbly.‖ Appellant told
Trooper Ihnen that he was backing out of his driveway and ―[s]omebody hit [his] ass.‖
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This case is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West 2005).
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Trooper Ihnen asked appellant to submit to field sobriety tests because appellant’s
speech was slurred, he was unsteady on his feet, and his breath smelled of alchohol.
Appellant told Trooper Ihnen he had been drinking ―everything‖ for three days.
Appellant said he did not want to perform a field sobriety test because his knees hurt
and he was too old. Appellant told Trooper Ihnen that his speech was slurred because
he had a neck injury. He also told Trooper Ihnen that he knew he was going to jail.
Appellant was arrested for driving while intoxicated. Appellant refused to take a breath
test. After conducting field sobriety tests on Medford, Trooper Ihnen also arrested her
for driving while intoxicated.
On cross-examination, Trooper Ihnen said that although he did not conduct field
sobriety tests on Penny, he believed Penny was intoxicated. Trooper Ihnen also
testified that Penny gave several versions of events and was trying to shift blame for the
accident away from himself and Medford.
On re-direct, Trooper Ihnen said that he concluded that appellant was driving the
truck because: (1) appellant stated that he was backing out of the driveway when he
was hit; (2) appellant stayed on the scene with his truck; and (3) the truck was
registered to appellant.
3. Ronald Penny
Penny testified that as he and his wife rounded a corner, a vehicle appeared ―out
of nowhere‖ in the middle of the highway. Penny testified that the truck did not have its
lights on. According to Penny, appellant had three passengers in the truck when it was
hit, but when the collision occurred, they jumped out of the truck and ran. Penny saw
appellant exit the truck from the driver’s side. Penny said when he approached
appellant after the accident, appellant kept saying he was sorry. Penny testified that
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appellant appeared to be ―drunk‖ because he was ―[s]taggering around incoherent.‖
Penny stated that Medford had been drinking but ―was driving fine.‖ Penny said he was
not intoxicated the night of the accident because he does not drink.
On cross-examination, Penny admitted that he initially told the officers that his
son was driving the vehicle; he then changed his story and said that Medford was
driving. Penny stated he was not driving because his license had been suspended.
Penny testified that appellant and three other passengers were all in the front seat of
appellant’s truck when the collision occurred. Because the passenger side was ―bashed
in,‖ all of the occupants exited from the driver’s side of the truck. When Penny
approached the truck after the collision, three of the passengers ―took off running‖ and
only appellant remained. Penny stated that he did not see appellant driving the truck
and could not say ―for sure‖ that he was driving.
4. Joseph Sclider
Joseph Sclider, a lieutenant in the communications division of the Montgomery
County Sheriff’s Office, identified State’s Exhibit 4, a DVD of the 911 call related to the
accident, and State’s Exhibit 5, the 911 dispatcher’s call notes related to the accident.
B. Defense Evidence
After the State rested and prior to the presentation of testimony by defense
witnesses, the trial court permitted appellant to present a voice exemplar, by which
appellant read several paragraphs from the court’s rules governing courtroom conduct.
1. Elizabeth Swindle
Elizabeth Swindle has known appellant through mutual friends for about six
years. His speech has always been slurred, and she sometimes has difficulty
understanding him. Swindle attended a barbeque held at the home of appellant’s next-
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door neighbor. Appellant was at the barbeque in the afternoon and evening. Swindle
testified that appellant drank ―[n]o more than three or four‖ beers throughout the day and
evening. Swindle did not think appellant appeared to be intoxicated. Swindle saw
appellant pull out of the driveway. Appellant’s truck was parked in the driveway with the
front of the truck facing the street; he pulled out slowly, but the truck hit a pothole next to
the driveway and stalled in the middle of the road. Swindle did not see the collision but
heard a ―huge crash.‖ Swindle did not see appellant exit the vehicle but saw him sitting
on the tailgate after the collision. Appellant appeared to be ―dazed‖ after the accident.
On cross-examination, Swindle testified that she knew approximately how many
beers appellant consumed at the barbecue because she sat next to him and brought
him beer from the cooler because he could not get up and walk to the cooler. Swindle
stated that even when appellant is in his normal non-intoxicated state, he ―has trouble
walking‖ and his speech is ―slurry and jumbly.‖ Swindle did not see appellant in the
driver’s seat the night of the accident but did see the truck leave the driveway. Swindle
has never seen appellant drive. Generally, he relies on others to drive him places.
Swindle drives him to the grocery store on a regular basis.
2. Bradley Henderson
Bradley Henderson testified that he has known appellant for twenty-five years
and has been his next-door neighbor for five years. Henderson stated that after
appellant suffered a neck injury, his speech has been slurred and it is difficult to
understand him. Appellant also has difficulty standing for long periods and moves ―like
an old man.‖ He testified that appellant does not drive. Appellant’s truck was in
Henderson’s driveway because they had used appellant’s truck to jump-start the battery
in Henderson’s truck. Henderson saw appellant drink ―two or three beers‖ at the
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barbeque. Appellant did not appear to be intoxicated. Henderson did not witness the
accident. He saw appellant sitting on the back of the truck after the accident.
3. Larry Chmiel
Larry Chmiel testified that he lives next door to appellant and has known him for
approximately eighteen years. According to Chmiel, appellant is hard to understand
and is not very physically fit. Appellant gets around using a riding lawn mower. Chmiel
did not see the collision but heard the crash and ran out to check on appellant. Chmiel
stated that appellant was conscious but was unable to respond. Before the accident,
Chmiel saw appellant around 11:30 p.m., and he did not appear intoxicated. Chmiel
heard appellant’s truck leaving and heard it stall. The back window of appellant’s truck
shattered as a result of the collision.
On cross-examination, Chmiel testified that appellant does not drive. When
Chmiel approached appellant’s truck after the accident, appellant was in the driver’s
seat of the truck.
4. Nancy Rector
Rector testified that appellant is her younger brother. In 1995, he slashed his
own throat with a razor blade. Since that injury, it is difficult to understand him and his
speech has not improved. Rector takes appellant to doctor’s appointments because he
does not drive. Appellant had surgery on one of his knees.
II. CORPUS DELICTI
By his first issue, appellant contends that the evidence was insufficient to
establish the corpus delicti of the DWI offense, i.e., that he was the person driving the
truck at the time of the accident.
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The rule of corpus delicti requires that some evidence exist outside of an extra-
judicial confession which, considered alone or in connection with the confession, shows
that the crime actually occurred. Salazar v. State, 86 S.W.3d 640, 644–45 (Tex. Crim.
App. 2002). While the State may not rely solely on the defendant's own extrajudicial
confession to establish the corpus delicti of the offense, it need only present some
evidence to corroborate the confession and the confession itself may be used to aid in
the establishment of the corpus delicti. Zavala v. State, 89 S.W.3d 134, 137 (Tex.
App.—Corpus Christi 2002, no pet.); Turner v. State, 877 S.W.2d 513, 515 (Tex. App.—
Fort Worth 1994, no pet.). To be sufficient, the corroborating evidence need only permit
a rational finding of guilt beyond a reasonable doubt when considered in conjunction
with the extrajudicial confession. Turner, 877 S.W.2d at 515. The corpus delicti of
driving while intoxicated is that someone drove or operated a motor vehicle in a public
place while intoxicated. Zavala, 89 S.W.3d at 137 (citing Threet v. State, 250 S.W.2d
200, 200 (Tex. Crim. App. 1952)).
Appellant argues that ―there is simply no evidence to corroborate his alleged
extra-judicial confessions to the corpus delicti of operating the vehicle at the time of the
accident.‖ We disagree.
While neither of the investigating officers saw appellant driving the truck, there
was other corroborating evidence from which the jury could draw a reasonable
inference that appellant was the driver. See Laster v. State, 275 S.W.3d 512, 522–23
(Tex. Crim. App. 2009) (holding a factfinder may draw reasonable inferences from the
evidence and choose which inference is most reasonable). Based on the corroborating
evidence consisting of appellant’s presence at the scene, the fact that appellant was the
registered owner of the truck and testimony that he was the owner of the truck,
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evidence that appellant told Penny he was sorry after the accident, and Chmiel’s
testimony that he saw appellant in the driver’s seat immediately after the accident, the
jury could rationally find, beyond a reasonable doubt, that appellant was the driver of the
truck at the time of the accident. See Zavala, 89 S.W.3d at 137 (finding evidence that
defendant was purchasing and had taken possession of the vehicle was sufficient
corroboration of his extrajudicial confession); Folk v. State, 797 S.W.2d 141, 144 (Tex.
App.—Austin 1990, pet. ref’d) (finding evidence that wrecked vehicle was registered to
a person with whom the defendant lived was sufficient to corroborate his admission that
he was driving the vehicle); Fancher v. State, 319 S.W.2d 707, 708 (Tex. Crim. App.
1958) (holding that defendant’s presence at scene of accident and ownership of vehicle
were sufficient to corroborate extrajudicial confession). We conclude that the
corroborating evidence was sufficient to establish that appellant was the person
operating the truck at the time of the accident. We overrule appellant’s first issue.
III. LEGAL SUFFICIENCY
By his second issue, appellant contends the evidence is legally insufficient to
support his DWI conviction. Specifically, he challenges the sufficiency of the evidence
to establish that he was the person operating the truck at the time of the accident.
The court of criminal appeals has held that there is ―no meaningful distinction
between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-
sufficiency standard‖ and that the Jackson standard ―is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.‖ Brooks v. State, 323 S.W.3d 893, 902–03, 912 (Tex. Crim. App.
2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly,
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we review claims of evidentiary sufficiency under ―a rigorous and proper application of
the Jackson standard of review.‖ Id. at 906–07, 912. Under the Jackson standard, ―the
relevant question is whether, 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, 443 U.S. at 319; see Brooks, 323 S.W.3d
at 898–99 (characterizing the Jackson standard as: ―Considering all of the evidence in
the light most favorable to the verdict, was a jury rationally justified in finding guilt
beyond a reasonable doubt‖).
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (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.‖ Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).
A person commits the offense of driving while intoxicated if (1) the person (2) is
intoxicated (3) while operating a motor vehicle (4) in a public place. TEX. PENAL CODE
ANN. 49.04(a). Appellant challenges the sufficiency of the evidence establishing the first
and third elements: that he was the person that was operating the truck at the time of
the accident.
No witnesses testified that they saw appellant operating the truck at the time of
the accident. However, the following evidence established that appellant was operating
the truck when the accident occurred: (1) Trooper Ihnen’s testimony that appellant said
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he was backing out of his driveway and ―[s]omebody hit [his] ass‖; (2) Trooper Ihnen
concluded appellant was the operator of the truck because of appellant’s statement, the
fact that appellant stayed at the scene with the truck, and the truck was registered to
appellant; (3) Penny’s testimony that immediately after the accident, appellant said he
was sorry; and (4) Chmiel’s testimony that when he approached the truck immediately
after the accident, appellant was sitting in the driver’s seat. ―Circumstantial evidence is
as probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt.‖ Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007). We hold that the evidence is legally sufficient to show that
appellant was operating the truck at the time of the accident. We overrule his second
issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS GARZA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
29th day of August, 2011.
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