Melisa Ann Miller v. State ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-18-00378-CR
NO. 09-18-00379-CR
__________________
MELISA ANN MILLER, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 411th District Court
Polk County, Texas
Trial Cause Nos. 25454 & 25455
__________________________________________________________________
MEMORANDUM OPINION
A grand jury indicted Appellant Melisa Ann Miller (“Miller” or “Appellant”)
for the murder of James Bradberry, a first-degree felony, and for intoxication assault
with a vehicle causing serious bodily injury to Melissa Bradberry, a third-degree
felony. See Tex. Penal Code Ann. §§ 19.02, 49.07. Miller pleaded “not guilty,” but
a jury found Miller guilty on both charges. The jury also made a deadly weapon
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finding for both crimes charged. The court assessed punishment at fifty-five years
on the murder charge, and ten years on the intoxication assault charge, with the
sentences to run concurrently. Miller appeals her convictions, and in two issues, she
challenges the admission of autopsy photos and the legal sufficiency of the evidence
supporting the jury’s verdict. We affirm.
Indictments
A grand jury indicted Miller in cause number 25454 for felony murder, and
the indictment alleged that the underlying felony offense was driving while
intoxicated. The indictment alleged that Miller
. . . while in the course of and in the furtherance of the commission of
the felony of driving while intoxicated and having two prior convictions
for driving while intoxicated did commit an act clearly dangerous to
human life, to-wit: by operating her motor vehicle in such a manner as
the motor vehicle moved into an on-coming lane of traffic and did
collide with a motorcycle operated by James Bradberry and did cause
the death of James Bradberry[.]
A grand jury also indicted Miller in cause number 25455 for intoxication
assault with a vehicle causing serious bodily injury, alleging that Miller:
. . . operate[d] a motor vehicle in a public place while intoxicated, and
did by reason of such intoxication cause serious bodily injury to
another, Melissa Bradberry, through accident or mistake, namely: by
allowing her motor vehicle to move into an on-coming lane of traffic
and did collide with a motorcycle on which Melissa Bradberry was a
passenger[.]”
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Both indictments alleged that Miller used a deadly weapon, an automobile, in the
commission of the offense.
Evidence
Testimony of Trooper Kevin Burman
Trooper Kevin Burman, with the Texas Department of Public Safety (“DPS”)
highway patrol, testified that he was dispatched to a crash involving motorcycles and
severe injuries on FM 356 in Polk County on June 25, 2016, shortly after 9 p.m.
According to Burman it was dry, hot and clear that day. Burman observed an SUV
partly in the road and partly on the shoulder, close to the guardrail. He identified
four victims at the scene: Melisa Miller, the occupant of the SUV; Ronald Creech,
the operator of the first motorcycle; James Bradberry (“James”), the driver of the
second motorcycle; and Melissa Bradberry (“Melissa”), James’s passenger. When
Burman arrived on the scene, James was being treated, and a tourniquet had been
placed on his leg because it had been severed just below the knee. According to
Burman, Melissa was unconscious, had difficulty breathing, and was gravely
injured. She was transported from the scene by helicopter.
Trooper Burman testified that he spoke with other individuals who were riding
in a group of four motorcycles together, with two motorcycles in front and two riding
behind. Burman testified that the motorcyclists reported they had been driving about
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fifty or fifty-five miles per hour. Burman testified that he asked a local reporter at
the scene to take photographs, and Burman also took some photographs as well.
State’s Exhibits 8 through 37 were admitted, which Trooper Burman
recognized as photographs of the scene that night and the next day. Burman
estimated that the point of impact was about ten inches into the lane in which the
motorcycles were travelling. Burman testified that Exhibit 8 depicted the area of
impact, and it showed blood spatter, body tissue, and gouge marks where vehicles
collided and gouged out some of the asphalt. Burman testified that Exhibit 9 showed
marks in the northbound lane made by the SUV, and that the SUV was traveling
southbound. Burman testified that the damage to the SUV was to the front left wheel,
grille, and front bumper and there was “less damage to the side of the vehicle[,]” and
that State’s Exhibit 25 depicted damage to the driver’s side headlight assembly and
front fender. According to Burman, the damage to the SUV’s windshield was “likely
Mr. Bradberry’s left arm [that] was almost completely severed off.” Burman also
testified that the driver’s side airbag of the SUV was deployed, which suggested
frontal impact and not side impact. Burman believed that dents to the SUV hood
were from the left handlebar of the motorcycle. The Trooper testified that Melissa
ended up about fifty feet away from James.
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Trooper Burman testified that during his investigation on the night of the
crash, he received Miller’s purse and that he and Trooper Lenderman searched its
contents before taking it to the sheriff’s office. Burman identified State’s Exhibit 66
as an envelope that he packaged that contained evidence acquired from Miller’s
purse and Exhibit 67 was the contents. Burman identified State’s Exhibits 38, 39,
and 40 as photos of a pill bottle in Miller’s purse—a prescription bottle of
hydrocodone-acetaminophen. Burman also identified Exhibit 41 as a photo of four
Soma or carisoprodol pills taken from Miller’s purse that were not in a prescription
bottle although the pills were prescription medication. Burman also testified that
Trooper Lenderman obtained a “consensual blood sample” from Miller at the
hospital. According to Burman, analysis of the blood sample by the Houston crime
lab detected no alcohol, and the DPS crime lab in Austin did a narcotics analysis on
the blood sample.
Burman testified that he spoke with Miller at the hospital where “she still
seemed to be impaired[]” and lacked the “normal use of normal mental and physical
faculties . . . from the introduction of narcotics or alcohol in the person’s system.”
He observed Miller’s movements were slow and deliberate, her eyes appeared glassy
and bloodshot, her speech was slurred, her coordination was “off[,]” and she seemed
emotionless despite the traumatic situation. Burman agreed that in his driver
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examination report, he wrote that Miller “[a]ppeared to be under the influence of
medication.” Trooper Burman agreed that he arrested Miller the night of the accident
for intoxication manslaughter, intoxication assault, and possession of Soma without
a prescription. State’s Exhibits 73 and 74 were admitted into evidence and published
to the jury, and Burman testified that he recognized these as videos taken from the
patrol vehicle’s cameras that night as he was at the scene and interacting with Miller.
Testimony of Kaylie Allbright
Allbright testified that, while driving one night in June 2016, she observed a
vehicle pull onto the highway swerving to the right and left, and the vehicle
contacted at least one motorcycle:
She was swerving. The vehicle was swerving on the road and hit
-- well went over the yellow and the white lines -- the yellow line being
in the middle and the white line being on the outside -- and hit a couple
of motorcycles.
...
The vehicle was going onto the other side of the yellow line and
almost into the ditch, back and forth . . . [and] [s]werving across the
white line to my right almost into the ditch as well.
...
I could see her swerving, or the vehicle swerving, and it [] went
over the yellow line to my left and hit some motorcycles.
...
The vehicle that hit the motorcycles kept going . . . . It didn’t stop
right when the motorcycle was hit. It went farther on down before it
was stopped.
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Allbright recalled that at one point, both tires on the driver’s side of the vehicle “were
completely over the yellow line[.]”
Testimony of Ronald Creech
Ronald Creech testified that he rode motorcycles with James and Melissa,
who were “like family[,]” and that he was riding his motorcycle with them on the
day of the accident. According to Ronald, the motorcycles were traveling at the
speed limit, about fifty or fifty-five miles per hour, on a two-lane road. Ronald
testified that
. . . We were riding in formation down the road, and I was in
front, as I normally was on the center line side. They were directly
behind me. I saw someone veering toward the centerline, and I thought
someone was just crowding me off the centerline because a lot of times
cars will do that. I eased over a little bit. The vehicle kept coming over
across the centerline and basically hit me head on, on my left handlebar.
Ronald testified that he saw James lying on the side of the road “like a pile of
laundry[]” and his leg was across the road. Ronald testified that Melissa, who had
been riding on the back of James’s motorcycle directly behind Ronald, had been
thrown far enough into the tall grass that it took them fifteen or twenty minutes to
find her. Ronald testified that after James and Melissa were taken to the hospital, he
went to see them but when he arrived, he was told James had died.
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Testimony of Andrew Crane
On June 25, 2016, Andrew Crane testified that he was riding his motorcycle
northward with James, Melissa, Ronald, Robert Heifner, and Robert’s wife, when a
crash occurred. According to Andrew, an SUV came across the lane and Andrew
heard a crash. Andrew testified that James was lying on the side of the road, and the
SUV was “down the road[]” and had one of the front tires “just about ripped off of
it.” Andrew did not see the vehicle hit a motorcycle, but he heard the crash. When
Andrew turned around, he saw James lying in the road looking “like a pile of
clothes” and his left leg was missing. According to Andrew, Melissa was initially
“nowhere to be seen[]” but she was later found in a ditch, “bones sticking out of her
arm[,]” her “pinkie was about torn off[,]” her right leg from the knee down was “just
destroyed pretty much[,]” and she was initially unresponsive. Andrew identified
Miller as the driver of the SUV that night.
Testimony of Deborah Heifner
Deborah Heifner testified that she and her former husband Robert Heifner
were riding motorcycles with Creech, Nancy Smith, and James and Melissa on the
night of June 25, 2016. At one point she felt the motorcycle swerve and she heard a
loud noise. When she and Robert pulled over and got off the motorcycle, she saw
James lying in the road, she began to render first aid, including placing a tourniquet
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on James’s left leg and a belt on his left arm and tried to keep him from moving in
case there was a spinal injury. Deborah described what she saw: “[James’s] left leg
was pretty much gone. At about the knee, it was pretty much gone. The left arm was
completely busted open around the elbow. He was bleeding profusely.” Deborah
identified Miller as a person she saw at the site of the crash, and she recognized
Miller from a restaurant where she had seen Miller working.
Testimony of Robert Heifner
Robert Heifner testified that he rode motorcycles with James and Melissa, and
he had known them for about four months before June 25, 2016. According to
Robert, while riding that night, he saw an oncoming car veer over toward them, and
he and James both swerved. According to Robert, he saw the impact to James, and
James hit the bumper on the driver’s side of the car. Robert further testified that he
went to the driver of the car, who was standing outside her vehicle, to make sure she
was okay. Robert identified Miller as the driver of the car that night, and he described
her as “[i]ntoxicated.” According to Robert, when he asked her how she was doing,
she replied “[t]hey ran me off the road and kept going.” Robert recalled that Miller’s
vehicle was severely damaged.
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Testimony of Doug Crocker
Doug Crocker testified that he was driving “a car length or two” behind the
motorcycles and he saw the crash as it happened. Crocker testified that he observed
a van come about halfway into his lane and hit the handlebars of one of the
motorcycles and then it “plowed the other one head on.” According to Crocker, he
saw a man lying on the ground with one of his legs gone. Crocker agreed that when
the vehicle hit the motorcycles, it was in his lane of traffic when he was following
the motorcycles. Crocker recalled that he got out of his car and approached the man
lying on the road whose leg was missing. According to Crocker, he and another
person on the scene found the man’s wife in a ditch about fifty yards away, and one
of her legs was gone and both her elbows were broken.
Crocker identified Miller as the driver of the vehicle that caused the crash, and
he testified that he spoke with her that night to see if she was okay, she told him that
her wrist hurt, she kept repeating she was reaching for her phone, and her words
were slow.
Testimony of Peggy Samuels
Peggy Samuels testified that she and her husband were riding their ATV near
FM 356 and they heard an “awful noise[]” that they knew it was an accident.
According to Samuels, they went to the scene, and her husband, who is a police
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officer, went to help. Samuels remained on the ATV, and she observed a very
distraught woman, on a cell phone, who seemed to be speaking with her mother and
repeating “mother” several times. Samuels asked the woman if she was okay, and
the woman told her she had just been in an accident. According to Samuels, the
woman said, “I was driving, and they just swerved in my lane, came in my lane.”
Samuels testified that the woman placed her purse on the ATV even though Samuels
asked her not to, and then the woman headed back toward the accident. Samuels
used her cell phone as a flashlight to look in the woman’s purse, where she found
two hot dogs and several bottles of prescriptions. Samuels testified that she called
her husband over, who took the woman’s purse back to the accident scene. Samuels
identified Miller as the woman who left a purse on the ATV that night.
Testimony of Detective Dakota Hernandez
Detective Dakota Hernandez testified that she was currently with the San
Jacinto County Sheriff’s Office, but she was previously with the Onalaska Police
Department. According to Hernandez, she was dispatched to the scene of a crash in
Polk County. When she arrived at the scene, there was a man lying on the ground
whom Hernandez described as having broken bones, bleeding heavily, missing a leg,
and having “a broken body.” Hernandez learned that a woman (Melissa Bradberry)
had also been injured in the accident, but she was “a bit further away” from where
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the man who was injured in the accident. Hernandez recalled that the woman who
was injured appeared “lifeless[]” and there was “gurgling in her voice.” Hernandez
identified Miller as the driver of the vehicle at the scene.
Testimony of Lieutenant Mark Jones
Lieutenant Mark Jones with the Polk County Sheriff’s Office testified that he
is a certified fingerprint examiner, which gives him the ability to take known
fingerprints and compare them to a known source. Jones testified that he was asked
to take known prints of Miller, and he identified State’s Exhibit 70 as fingerprints
he personally obtained from Miller. According to Jones, he compared the known
prints to those on judgments obtained from the clerk’s office, and State’s Exhibits
47 and 48 appeared to be photocopies of the original judgments he examined. Based
on his comparison, Jones testified that the known prints he took of Miller were the
same as the prints on the two judgments.
Testimony of Trooper William Lenderman
Trooper William Lenderman with DPS testified that he was trained in
standardized field sobriety testing. He agreed that he was dispatched to the scene of
a “[v]ehicle versus motorcycle crash[]” that occurred just after 9 p.m. in Polk County
on June 25, 2016. According to Lenderman, upon arriving at the scene, Trooper
Burman asked him to check out the driver of the vehicle for possible intoxication,
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and he identified Miller as the driver of the vehicle. Lenderman testified that at the
scene, Miller “seemed kind of lost[]” but she did not have any visible injuries, and
he asked her if she had taken any drugs or drunk any alcohol. According to
Lenderman, Miller at first denied taking any medication, but later told him she had
taken two pills that were either a painkiller or muscle relaxer. Lenderman conducted
standard field sobriety testing, but only one portion was completed because Miller
reported to him that she had some physical limitations. Lenderman explained that
standardized field sobriety testing has three parts, including horizontal gaze
nystagmus (“HGN”), walk and turn, and one-leg stand test, but that he only
administered the HGN because Miller had back problems and did not believe she
could walk a straight line. Lenderman recalled that he observed “six out of six
clues[]” on Miller’s HGN test. Lenderman also agreed that the test is not one hundred
percent accurate, but he felt he had received one hundred percent accurate results in
this instance.
Lenderman identified State’s Exhibits 73 and 74 as recordings taken of his
conversations and interactions with Miller the night of the accident, which were
admitted and published to the jury. According to Lenderman, he had to start the test
over several times because when he instructed Miller to follow the movement
visually of his pen, Miller would quit following the stimulus. Lenderman testified
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that Miller told him she had taken two pills that day, and Exhibit 73 shows Miller
tell Lenderman that she took two Norco pills earlier in the day and later tell him she
took three pain pills that day. Exhibit 73 also shows Miller tell Lenderman that the
pills in her purse were Somas that she had had “forever.”
According to Lenderman, he requested a blood sample from Miller, and she
agreed. Lenderman agreed that he arrested Miller and read the standard warnings to
her explaining her rights. Lenderman also testified that “a few pills” were found
inside Miller’s purse, including 350-milligram carisoprodol, known as Soma, and
that Miller had mentioned to him she had a prescription for pain medication.
Lenderman identified State’s Exhibits 66 and 67 as the carisoprodol pills that were
in Miller’s possession. According to Lenderman, Miller had called the pills “Soma”
when talking about them, and he did not find a prescription for them. Lenderman
identified State’s Exhibit 75 as the blood draw kit used on Miller at the hospital the
night of the accident, and he agreed he was present for the blood draw.
Trooper Lenderman testified that State’s Exhibit 47 was a judgment for
Melisa Ann Miller dated 2009 for the offense of driving while intoxicated and that
State’s Exhibit 48 was a judgment for Melisa Ann Miller dated 2011 for the offense
of driving while intoxicated, second offense, and that the documents reflected that
Miller had pleaded guilty to both offenses. Lenderman agreed that a vehicle that
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veers across the center lane into oncoming traffic and strikes another vehicle is a
deadly weapon and that Miller’s vehicle was a deadly weapon in this case. Based on
his observations and the standardized field sobriety testing, Lenderman believed that
Miller had “lost the normal use of her mental and physical faculties due to the
introduction of medication into her body[,]” which contributed to the accident.
Lenderman agreed that Miller had told him she had worked ten hours earlier in the
day, she was tired, she thought the motorcycles came into her lane, and she had been
reaching for the phone she had dropped in her car.
Testimony of Dana Baxter
Dana Baxter testified that she is a forensic scientist with DPS and works in
the toxicology section of the Austin crime lab. She also testified that she is trained
on the effects of drugs on a person’s body. Baxter recalled testing a blood specimen
from Miller in 2016. Baxter recognized State’s Exhibit 75 as a sample received in
June 2016 that was marked with her initials. Baxter also recognized State’s Exhibit
51 as the report of her findings she prepared after testing the sample. According to
Baxter, the sample she tested detected carisoprodol at 4.6 milligrams per liter,
hydrocodone at .06 milligrams per liter, and meprobamate at 20 milligrams per liter.
She further testified that her testing detected amphetamine and methamphetamine.
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Baxter testified that carisoprodol, sold under the brand name of Soma, is a
muscle relaxer. Baxter further testified that when the body breaks down
carisoprodol, the breakdown produces meprobamate, an active metabolite that
affects the body. According to Baxter, carisoprodol is a central nervous system
(“CNS”) depressant, like alcohol, and side effects include sleepiness, mental
confusion, slowed reaction times, and balancing or vision problems. Baxter testified
that meprobamate is also a CNS depressant that results in sleepiness, anxiety, mental
confusion, and balance problems. Baxter further testified that hydrocodone is also a
CNS depressant and a painkiller, similar in its effects as carisoprodol or
meprobamate, and can cause drowsiness, mental confusion, and slowed reaction
times. Baxter described amphetamine and methamphetamine as CNS stimulants that
can lead to fast speech or agitation, but that on the “down[]side,” these drugs can act
like CNS depressants and create problems with alertness. According to Baxter,
carisoprodol, meprobamate, and hydrocodone taken together have additive effects.
Baxter testified that the levels of carisoprodol she detected were within but
“at the upper end of the therapeutic range[]” for this drug, the levels of meprobamate
were in the middle of the therapeutic range, and the concentration of carisoprodol
and meprobamate were at a level where there could be impaired driving. Based on
her test findings, Baxter testified that she would not feel comfortable riding in a car
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with someone who had this combination and amount of drugs in their system
because the levels detected are hazardous for driving and increase the likelihood of
poor judgment. Baxter agreed that there is no “per se limit” for intoxication for
carisoprodol, meprobamate, and hydrocodone as there is for alcohol intoxication and
the standard for intoxication for drugs other than alcohol is “loss of your mental and
physical faculties.”
Testimony of Megan Barton
Megan Barton testified that she is a technical leader for the toxicology section
of DPS in Austin and she works with Dana Baxter. According to Barton, the testing
of Miller’s blood sample for amphetamines and methamphetamines was performed
by Samuel Salinas, who left the DPS lab to work for a lab in another state, but Barton
had reviewed Salinas’s work on this sample, and she agreed with his procedures and
results. Barton testified that the results of testing Miller’s blood sample were
amphetamine at less than .05 milligrams per liter and methamphetamine at .10
milligrams per liter. According to Barton, amphetamines and methamphetamines are
“considered the same[,]”amphetamine is a metabolite of methamphetamine, and the
drugs make a person feel more excited, more energetic, or “better about
themselves[.]” Barton testified that a level of methamphetamine above .2 is
considered abuse when prescribed for ADD, ADHD, or narcolepsy.
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Testimony of Molly Horn
Molly Horn, a paramedic, testified that she responded to an accident on FM
356 in June 2016. Horn recalled that she was in the second ambulance to arrive at
the scene and when she arrived, the first ambulance was taking care of a male patient,
and a female patient was lying in the ditch on the side of the road. According to
Horn, the woman had pretty severe injuries and her leg was almost completely
amputated, she had been placed on a backboard, and a tourniquet was placed on her
leg. Horn further testified that the woman was not breathing effectively and had
injuries to her arms and hands, and Horn believed the woman might die within
minutes. Horn testified that the woman was sedated, a breathing tube was inserted,
and a flight crew took the woman onto a helicopter. According to Horn, the woman
was identified as Melissa Bradberry. Horn identified State’s Exhibit 5 as the EMS
report she wrote after the accident. In Horn’s opinion, the injuries to Melissa
constituted serious bodily injury.
Testimony of Dr. Tommy Brown
Dr. Brown testified that he is a forensic pathologist, a person who performs
autopsies to determine cause and manner of death, and he was asked to do an autopsy
of James Bradberry in June 2016. Dr. Brown testified that, in his external
examination, he noted that James had “severe trauma to the chest and the abdomen
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and pelvis and the lower left extremity.” He also noted three abrasions along the
right lower chest, a crushed left pelvis, the part of the left femur had been shoved
into the lower abdominal cavity, a crushed and fractured ball joint where the femur
joins the hip, an abrasion on his left hip and left inguinal area, a severe large
laceration extending from his left hip to just above the knee, a compound fracture of
the femur, destruction of the soft tissue in the leg, fractured tibia, a below-the-knee
amputation of the left leg and foot, abrasions to his right knee and left shoulder, and
a large fracture to the distal femur and proximal forearm. In his internal examination
he noted a fractured sternum and blood in the chest cavity.
Dr. Brown recognized State’s Exhibit 64 as the autopsy report and copy of the
toxicology results that he prepared on James Bradberry, and the autopsy report was
published to the jury. Brown agreed that State’s Exhibits 52, 54, 55, 58, 60, 62, and
63 accurately depicted the condition of James’s body at the time of the autopsy. Dr.
Brown testified that Exhibit 54 showed severe injuries to James’s left hip and leg,
including the below-the-knee amputation; Exhibit 55 showed a large laceration from
the left hip to left knee, soft tissue damage, and a compound fracture of the femur;
Exhibit 58 showed extensive injury below the knee of the left lower leg, including
amputation; Exhibit 60 showed fractures to the left elbow, a large laceration on the
left arm, and soft tissue damage; Exhibit 62 showed rib fractures; and Exhibit 63
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showed separation between the T9 and T10 vertebrae and a spinal fracture. Dr.
Brown agreed that his review of the records reflected that an “improvised”
tourniquet was applied to James at the scene of the accident, and another tourniquet
was placed and secured by the Life Flight crew.
In Dr. Brown’s opinion, the cause of James’s death was “[b]lunt force trauma
of the thorax, or the chest, and pelvis and the left lower extremity with traumatic
amputation of the left lower leg.” Dr. Brown determined that the manner of death
was a motor vehicle-motorcycle accident. On cross-examination, Dr. Brown agreed
that for these injuries to have been sustained, the driver that hit James’s motorcycle
did not have to be intoxicated, and the doctor could not say whether intoxication
played a role in the injuries. Dr. Brown testified that James appeared to have been
“a very healthy individual[]” and he found no medical issues or concerns that would
have shortened James’s life.
Testimony of Melissa Bradberry
Melissa testified that she and James had been married seventeen years, and
they had two teenaged children. Melissa testified that she and James were in a
motorcycle accident on June 25, 2016. Melissa did not remember the accident itself,
but she remembered being in a hospital room hooked up to a monitor and with her
arms bandaged.
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According to Melissa, when she first left the hospital, she went to a
rehabilitation facility for just under a month to get her to a point where she did not
require nursing care and to provide physical therapy. Once she was home, she had
to use a wheelchair and her mother moved in to help. Melissa testified she had two
more hospital visits for infections and reconstruction of her residual limb. Melissa
explained that she went home in August 2016 and she was fitted for a prosthetic leg
in about October 2016. She continued to have pain, including phantom pain. Melissa
testified that she lost her left pinkie finger and required occupational therapy for her
hand. Melissa recalled that she had two surgeries.
Melissa testified that she is a claims specialist for the Social Security
Administration, and she returned to work in November 2016, but she had problems
with memory and word usage, and it became harder for her to keep up with her work.
At the time of trial, Melissa was on extended leave and had filed for disability, and
she continued to have visits with doctors. Melissa could not attend James’s funeral
because she was in the hospital.
The defense did not call any witnesses.
Admission of Evidence
Appellant’s first issue argues that the trial court erred by admitting autopsy
photos because the photos had “little probative value[]” because “it was uncontested
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that James Bradberry died as a result of injuries sustained during a vehicle
collision[]” and “there is no question regarding the extent of the injuries Melissa
Bradberry suffered as a result of the accident.” Therefore, autopsy photos were
unnecessary for the jury to determine the cause of death, and the prejudicial value of
such photos outweighed their probative value. Appellant argues that the trial court
failed to conduct a required balancing test and erred in admitting State’s Exhibits 52,
54, 55, 58, 60, 62, 63, 64, and 65. 1 According to Appellant, the autopsy photos
“served no purpose other than inflaming the minds of the jurors as to the guilt or
innocence of the Appellant.”
According to the State, the photos were highly probative because “they
demonstrated the nature and extent of the injuries James Bradberry sustained,
provided evidence of the cause and manner of his death, and were necessary to the
State in developing its case.”
Applicable Law
We review a trial court’s ruling on the admission or exclusion of evidence
under an abuse of discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex.
1 Although Appellant objects to the admission of Exhibits 64 and 65 as
autopsy photos, these exhibits in the appellate record are not autopsy photos. Exhibit
64 is the autopsy report for James, and Exhibit 65 is a candid snapshot of James and
Melissa before the accident.
22
Crim. App. 2002). We will not reverse a trial court’s ruling absent a clear abuse of
discretion. Wyatt v. State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000). There is no
abuse of discretion as long as the court’s ruling is within the zone of reasonable
disagreement. De La Paz v. State, 279 SW.3d 336, 343-44 (Tex. Crim. App. 2009).
Moreover, error in the admission or exclusion of evidence will not support reversal
unless the error affected a substantial right of the complaining party. Tex. R. Evid.
103(a); Tex. R. App. P. 44.2(b). “A substantial right is affected when the error had
a substantial and injurious effect or influence in determining the jury’s verdict.” King
v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). If the record as a whole
provides fair assurance that the error in evidentiary rulings did not influence the jury,
or influenced the jury only slightly, reversal is neither required nor appropriate.
Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001).
“Rule 403 favors the admission of relevant evidence and carries a presumption
that relevant evidence will be more probative than prejudicial.” Jones v. State, 944
S.W.2d 642, 652 (Tex. Crim. App. 1996). “Once a Rule 403 objection as to prejudice
versus probative value is invoked, the trial judge has no discretion as to whether or
not to engage in the balancing test required by that rule.” Williams v. State, 958
S.W.2d 186, 195 (Tex. Crim. App. 1997). “However, a trial judge is not required to
sua sponte place any findings he makes or conclusions he draws when engaging in
23
this test into the record[.]” Id. “Rather, a judge is presumed to engage in the required
balancing test once Rule 403 is invoked[.]” Id.
A court may consider many factors in determining whether the probative
value of photographs is substantially outweighed by the danger of unfair prejudice.
Hayes v. State, 85 S.W.3d 809, 815-16 (Tex. Crim. App. 2002). These factors
include the number of exhibits offered, their gruesomeness, their detail, their size,
whether they are in color or in black and white, whether they are close-up and
whether the body depicted is clothed. See id. (citing Wyatt, 23 S.W.3d at 29). A
court, however, should not be limited to this list. Id. The availability of other means
of proof and the circumstances unique to each individual case may also be noted. Id.
“A trial court does not err merely because it admits into evidence photographs
which are gruesome.” Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App.
1995). If there is error in the admission of evidence, we must determine whether the
error was harmless under Rule 44.2(b). See Prible v. State, 175 S.W.3d 724, 736-37
(Tex. Crim. App. 2005) (concluding that although admission of autopsy photos was
error under Rule 403, the State’s use of these autopsy photographs did not affect
appellant’s substantial rights); Hayes, 85 S.W.3d at 816 (citing Tex. R. App. P. 44.2;
Tex. R. Evid. 103(a)).
24
Analysis
The State offered twelve autopsy photographs, Exhibits 52 through 63. The
defense objected to the photographs as “graphic in nature and so dramatic and
emotion-inducing” that the prejudicial effect of the photos would outweigh any
probative value. According to the defense, the testimony of the medical examiner
alone would be sufficient to explain the cause of death.
The trial court considered each exhibit individually outside the presence of
the jury, including hearing from Dr. Brown what each exhibit purported to show,
and after ruling on the objections on each exhibit, the trial court admitted seven—
Exhibits 52, 54, 55, 58, 60, 62, and 63. The record before us does not affirmatively
show that the trial court refused to conduct a Rule 403 balancing test. Rather, the
trial court overruled the Rule 403 objections. We presume the trial court engaged in
a balancing test before the court ruled on the objection. See Williams, 958 S.W.2d at
195. Furthermore, Rule 403 favors the admission of relevant evidence, and relevant
evidence carries a presumption that it is more probative than prejudicial. See id. at
196. Miller has failed to overcome the presumption that the evidence was more
probative than prejudicial. See id. at 195-96.
“We will not overturn a case on a non-constitutional error if, after examining
the record as a whole, we have a fair assurance that it did not influence the jury[] or
25
influenced them only slightly.” Hayes, 85 S.W.3d at 816 (citing Schutz, 63 S.W.3d
at 444). In addition to the objected-to autopsy photos, the record includes testimony
by Dr. Brown about the nature and extent of James’s injuries, the autopsy report, and
testimony of other witnesses at the scene who observed that James had lost a leg in
the accident. In addition, Appellant’s brief concedes that “[t]here was no question
that Melisa Ann Miller struck a motorcycle carrying James and Melissa Bradberry
and that James Bradberry died as a result of the injuries he sustained [and] that
Melissa Bradberry suffered serious bodily injuries as a result of the accident.”
Considering the weight of other evidence, we conclude that Miller has not
established that the admission of the autopsy unduly influenced the jury in its
decision, that the admission of the photos affected a substantial right, or that any
reversible harm resulted. See Tex. R. Evid. 44.2; Prible, 175 S.W.3d at 736-37;
Hayes, 85 S.W.3d at 816. We overrule Appellant’s first issue.
Sufficiency of the Evidence
Appellant’s second issue argues that the evidence was legally insufficient to
sustain the jury’s verdict. Appellant challenges the sufficiency of the evidence that
she was intoxicated at the time of the accident based on the testimony of Trooper
Lenderman and Dana Baxter. According to Appellant, the only testimony by
Lenderman that supported an inference of intoxication was that she performed
26
poorly on the HGN test, which she alleged was performed “in less than ideal
conditions[].” Appellant also argues that Baxter testified that the blood levels of
carisoprodol and meprobamate were within the therapeutic range.
Applicable Law
We understand Appellant’s brief to challenge only whether there was legally
sufficient evidence that she was intoxicated and had lost the normal use of her mental
or physical faculties. Intoxication is an element of felony murder, where the
underlying felony is a felony DWI, and it is an element of intoxication assault. See
Tex. Penal Code Ann. §§ 19.02(b)(3), 49.07(a)(1).
The State must prove each essential element of an offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). When reviewing the
sufficiency of the evidence, we consider all of the admitted evidence in the light
most favorable to the verdict to determine whether, based on that evidence and the
reasonable inferences from it, a jury was rationally justified in finding the defendant
guilty beyond a reasonable doubt. Id. Applying the Jackson standard, evidence is
insufficient in four circumstances: (1) the record contains no evidence probative of
an element of the offense; (2) the record contains a mere “modicum” of evidence
probative of an element of the offense; (3) the evidence conclusively establishes a
reasonable doubt; and (4) the acts alleged do not constitute the criminal offense
27
charged. See Brister v. State, 414 S.W.3d 336, 342 (Tex. App.—Beaumont 2013),
aff’d, 449 S.W.3d 490 (Tex. Crim. App. 2014) (citing Jackson, 443 U.S. at 314, 318
n.11; Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007)). The evidence is not legally sufficient
if it is based on only speculation. See Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim.
App. 2007).
The jury is the sole judge of the witnesses’ credibility and the weight to be
given to their testimony. See Jackson, 443 U.S. at 319. Juries can draw any
reasonable inference from the facts so long as each inference is supported by the
evidence. See id.; Hooper, 214 S.W.3d at 16-17. When the record supports
conflicting, reasonable inferences, we presume that the jury resolved the conflicts in
favor of the verdict. Jackson, 443 U.S. at 326.
Legally sufficient evidence need not exclude every conceivable alternative to
the defendant’s guilt. Johnson v. State, 560 S.W.3d 224, 226 (Tex. Crim. App. 2018)
(citing Ramsey v. State, 473 S.W.3d 805, 811 (Tex. Crim. App. 2015)). The law
requires no particular type of evidence: direct and circumstantial evidence are
equally probative, and “‘circumstantial evidence alone can be sufficient to establish
guilt.’” Id.; Hooper, 214 S.W.3d at 13.
28
Analysis
Trooper Burman testified that he found a prescription bottle of hydrocodone-
acetaminophen and four carisoprodol pills in Miller’s purse. He also testified that
Miller seemed to be impaired, had slow and deliberate movements, her eyes were
glassy and bloodshot, her speech was slurred, and her coordination was “off[.]” In
his driver examination report, he wrote that Miller appeared to be under the influence
of medication. Trooper Lenderman testified that Miller admitted to him that she had
taken two painkiller pills that day and that when he administered the HGN test,
Miller exhibited six out of six clues. Baxter testified that her analysis of Miller’s
blood sample detected carisoprodol, hydrocodone, meprobamate—CNS depressants
that have additive effects and can cause drowsiness, mental confusion, and slowed
reaction times. Baxter also testified that her analysis detected amphetamine and
methamphetamine. Robert Heifner, one of the motorcyclists riding with James and
Melissa, testified that Miller appeared intoxicated when he saw her at the scene.
Doug Crocker, a passing motorist who stopped at the accident, testified that he spoke
with Miller at the scene and her speech was slow. Peggy Samuels, who heard the
crash and went to the scene with her husband, testified that Miller left her purse on
Samuels’s ATV and there were prescription bottles in the purse. Exhibit 73 depicts
Miller telling Trooper Lenderman that she took three pain pills that day.
29
Deferring to the jury’s determination of the credibility and weight of
testimony, we cannot say there is no evidence or only mere speculation that Miller
was intoxicated at the time of the accident. See Hooper, 214 S.W.3d at 16; Brister,
414 S.W.3d at 342. To the degree the record supports conflicting inferences, we
presume the jury resolved them in favor of the verdict. See Jackson, 443 U.S. at 326.
We conclude there is legally sufficient evidence to support the jury’s verdict, and
we overrule Appellant’s second issue.
Having overruled Appellant’s issues, we affirm the trial court’s judgments.
AFFIRMED.
_________________________
LEANNE JOHNSON
Justice
Submitted on February 25, 2020
Opinion Delivered April 29, 2020
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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