Garrett William Nee v. State

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-18-00077-CR
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GARRETT WILLIAM NEE, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 9th District Court
Montgomery County, Texas
Trial Cause No. 16-09-10494-CR
__________________________________________________________________
MEMORANDUM OPINION
A police pursuit of a person evading arrest or detention ended with a motor
vehicle collision involving the pursuing patrol vehicle and a sport utility vehicle
containing seven members of the Hilario family returning from a Father’s Day
celebration. Sergeant Stacey Baumgartner perished from injuries he sustained in the
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collision.1 Garrett William Nee appeals a judgment of conviction and fifteen-year
sentence for evading arrest or detention with a motor vehicle resulting in death. In
four issues, Nee complains the evidence is legally insufficient to support the jury’s
verdict finding him guilty, the trial court erred by allowing guilt-phase admission of
evidence of Nee’s intoxication at the time of the offense because the evidence
concerned an uncharged extraneous offense, the trial court erred by allowing guilt-
phase admission of retrograde extrapolation testimony that failed to consider how
much food Nee consumed, and Nee suffered egregious harm from the omission of
an article 38.23 jury charge instruction concerning Sergeant Baumgartner’s violation
of the Transportation Code during his pursuit of Nee. We affirm the trial court’s
judgment.
Background
Sergeant Baumgartner responded to a call that a man was exposing himself to
teenagers in a gas station parking lot. An observer directed the officer to Nee, who
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The Montgomery County grand jury presented four indictments that alleged
Nee evaded arrest with a motor vehicle resulting in death or serious bodily injury.
The indictments differed in that they alleged that Sergeant Baumgartner and Adan
Hilario Jr. died as a direct result of the attempt by the officer to apprehend Nee while
he was in flight and that Andrea Hilario and Joel Santos suffered serious bodily
injury as a direct result of an attempt by the officer to apprehend Nee while he was
in flight. The trial court vacated three of the judgments and proceeded to punishment
on the case that is the subject of this appeal.
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was sitting in his vehicle. Nee admitted he had been drinking alcohol. When the
observer directed Sergeant Baumgartner to a spot in the parking lot where Nee
urinated in public, Nee sped away in his vehicle. Sergeant Baumgartner returned to
his patrol car and pursued Nee’s vehicle in a high-speed chase. The patrol car’s
emergency overhead lights and siren were activated as the vehicles approached an
intersection. Nee’s vehicle proceeded through the intersection without incident, but
the Hilario family’s sport utility vehicle collided with Sergeant Baumgartner’s patrol
car. The crash rolled the patrol vehicle and pushed it into a concrete light pole, and
children from the Hilario family’s vehicle were ejected upon impact.
According to the State’s accident reconstruction expert, Trooper Joseph
Taska, data recovered from the patrol vehicle’s computer system revealed the officer
was travelling over sixty miles-per-hour twenty seconds before impact and fifty-five
miles-per-hour just before impact. The recorded throttle reduced from 93.5% about
two seconds before the accident to 5% on impact, which in Trooper Taska’s opinion
reflected that Sergeant Baumgartner applied the brakes before impact.
Nee’s accident reconstruction witness, Cam Cope, testified that he used crash
data retrieval to conclude that Sergeant Baumgartner’s vehicle was travelling sixty-
six miles-per-hour. According to Cope, Sergeant Baumgartner died as a result of the
impact of his head on the passenger door. Cope offered his opinion that Sergeant
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Baumgartner would have remained in his seat if he had been wearing his seat belt.
According to Cope, the Hilario’s vehicle would not have struck the patrol car if
Sergeant Baumgartner had braked slightly before he entered the intersection.
Dr. Katheryn Pinneri, a forensic pathologist, testified that Sergeant
Baumgartner suffered multiple injuries that could have independently caused his
death. According to Dr. Pinneri, the transection of his aorta would have occurred
even if the officer was wearing a seatbelt.
Department of Public Safety Trooper Christopher Lucchesi investigated the
accident. He identified Nee as the person on the scene who identified himself as the
person Sergeant Baumgartner had been chasing. Trooper Lucchesi read Nee his
Miranda rights before questioning him. Nee explained that he had been out drinking
because he had marital issues. Nee exhibited all six clues on the horizontal gaze
nystagmus test. Nee refused to perform a field sobriety test and he was arrested for
driving while intoxicated. Trooper Lucchesi then obtained a search warrant for a
sample of Nee’s blood. Trooper Lucchesi stated that the factors he identified in his
initial crash report included Nee evading in a motor vehicle, Sergeant Baumgartner
disregarding a red light, and Hilario failing to yield right of way to an emergency
vehicle.
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A toxicology chemist, Heidi Christensen, testified without objection that
Nee’s blood sample test results revealed a blood alcohol concentration of 0.161.
Presented with a hypothetical situation in which a subject who claimed to have
consumed only light beer provided a sample measuring .161 blood alcohol
concentration at 10:00 p.m., Christensen replied that she would need additional
information, including the subject’s gender, weight and height, to determine the
approximate number of drinks he had consumed. Provided a hypothetical 6’3” male
weighing 230 pounds, Christensen stated the subject would have had to have
approximately ten to eleven light beers in his system at the time of the blood draw.
She added that for the subject to have been below .08 blood alcohol concentration at
7:30 p.m., at the time of the stop, he would have had to drink six to ten of those beers
in the thirty minutes just prior to the stop. On cross-examination, Christensen stated
that she was told that Nee ate a pork sandwich at lunchtime, and she opined that
information would not impact her calculations.
Sufficiency of the Evidence
Nee’s first issue claims the evidence is legally insufficient to support his
conviction for evading arrest or detention resulting in death to another. “A person
commits an offense if he intentionally flees from a person he knows is a peace officer
or federal special investigator attempting lawfully to arrest or detain him.” Tex.
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Penal Code Ann. § 38.04(a). Evading arrest or detention is a felony of the second
degree if “another suffers death as a direct result of an attempt by the officer or
investigator from whom the actor is fleeing to apprehend the actor while the actor is
in flight[.]” Id. § 38.04(b)(3)(A). Nee limits his challenge to the sufficiency of the
evidence supporting the jury’s finding of the facts that elevate the degree of the
offense under section 38.04(b)(3)(A), and he does not challenge the sufficiency of
the evidence supporting the elements of the offense under section 38.04(a).
When there is a challenge to the sufficiency of the evidence, we review the
evidence in the light most favorable to the verdict to determine whether any rational
factfinder could have found the essential elements of the offense beyond a
reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)
(citing Jackson v. Virginia, 443 U.S. 307 (1979)) (concluding the Jackson standard
“is the only standard that a reviewing court should apply” when examining the
sufficiency of the evidence); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.
2007). “[We] must evaluate all of the evidence in the record, both direct and
circumstantial, whether admissible or inadmissible.” Dewberry v. State, 4 S.W.3d
735, 740 (Tex. Crim. App. 1999). The jury is the sole judge of the witnesses’
credibility and weight to be given to their testimony. Tate v. State, 500 S.W.3d 410,
413 (Tex. Crim. App. 2016). Juries may draw multiple reasonable inferences from
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facts so long as each inference is supported by the evidence presented at trial. Id.
“Each fact need not point directly and independently to the guilt of the appellant, as
long as the cumulative force of all the incriminating circumstances is sufficient to
support the conviction.” Hooper, 214 S.W.3d at 13. Accordingly, we must defer to
the jury’s determinations of weight and credibility of the witnesses. See Brooks, 323
S.W.3d at 899.
Generally, in a sufficiency review, the appeals court is required to uphold the
jury’s verdict “unless a reasonable juror must have had a reasonable doubt as to at
least one of the elements of the offense.” Runningwolf v. State, 360 S.W.3d 490, 494
(Tex. Crim. App. 2012).
[W]hen the evidence is deemed legally insufficient to support a
person’s conviction for a greater offense, but the analysis as to
insufficiency raises the possibility that the record establishes the person
is nevertheless guilty of some lesser-included offense, the appellate
court should consider reforming the judgment to a lesser-included
offense before rendering a judgment of acquittal.
Lang v. State, 561 S.W.3d 174, 184 (Tex. Crim. App. 2018).
Nee argues Sergeant Baumgartner’s death occurred, not as a direct result of
Sergeant Baumgartner’s attempt to apprehend Nee while Nee was in flight, but
because of what Nee argues is Sergeant Baumgartner’s negligent and illegal act of
not slowing down at the red light. Nee argues that, but for Sergeant Baumgartner not
slowing or stopping at the intersection when he had the red light, the accident that
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claimed his life would not have occurred. Nee contends Sergeant Baumgartner’s
death is the direct result of the officer’s disregard of section 546.001 of the Texas
Transportation Code, not as a direct result of Nee fleeing Sergeant Baumgartner. See
Tex. Transp. Code Ann. § 546.001.
Generally, “[a] person is criminally responsible if the result would not have
occurred but for his conduct, operating either alone or concurrently with another
cause, unless the concurrent cause was clearly sufficient to produce the result and
the conduct of the actor clearly insufficient.” See Tex. Penal Code Ann. § 6.04(a).
If concurrent causes are present, two possible conditions exist to satisfy
the “but 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.
Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986).
Nee claims he cannot be held criminally responsible for an accident caused
by Sergeant Baumgartner failing to enter the intersection safely. Even so, the issue
is not whether the accident could have been avoided if Sergeant Baumgartner had
slowed more before entering the intersection, but whether Sergeant Baumgartner
died as a foreseeable consequence of his pursuit of Nee while Nee was in flight from
lawful arrest or detention. Nee ignores the fact undisputed at trial, that at the time
Sergeant Baumgartner entered the intersection, the officer was actively trying to
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apprehend Nee, while Nee was fleeing to avoid arrest or detention. Section
38.04(b)(3)(A) describes the circumstances under which the act for which Nee is
criminally responsible—intentionally fleeing from a person he knew to be a peace
officer attempting lawfully to arrest or detain him—is elevated to a second-degree
felony. See Tex. Penal Code Ann. § 38.04(a), (b)(3)(A). Nee was not convicted of
causing the death of Sergeant Baumgartner; Instead, Nee was convicted of evading
arrest or detention, and the grade of offense is greater because Sergeant Baumgartner
died as a direct result of trying to lawfully arrest or detain Nee. The undisputed
evidence at trial established that Sergeant Baumgartner was actively engaged in
pursuing Nee when the collision between the patrol car and the Hilario vehicle
occurred. The jury could rationally find that Nee intentionally fled from Sergeant
Baumgartner, a person Nee knew was a peace officer attempting lawfully to arrest
or detain Nee, and that Sergeant Baumgartner died as a direct result of his attempt
to apprehend Nee while Nee was in flight. We conclude the evidence is legally
sufficient to support the conviction. We overrule issue one.
Evidence of Intoxication
Nee’s second issue complains that the trial court erred in allowing unfairly
prejudicial testimony of extraneous offenses during the guilt/innocence phase of the
trial. See generally Tex. R. Evid. 403, 404(b). Nee admits that Trooper Lucchesi and
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other witnesses testified without objection to Trooper Lucchesi’s investigation of
potential intoxication offenses and reckless driving by Nee. Nee failed to preserve
the issue for appellate review. See Tex. R. App. P. 33.1(a). We overrule issue two.
Retrograde Extrapolation Evidence
In his third issue, Nee claims the trial court erred by allowing Christensen to
perform a retrograde extrapolation analysis without considering the quantity and
type of food that Nee consumed. He argues Christensen “clearly did not take into
account the quantity and type of food consumed by Appellant.” Nee’s argument is
unsupported by the record, which shows that Christensen considered Nee’s most
recent meal and disregarded it because he had eaten it too long before his drinking
to impact her analysis. And Christensen identified in her hypothetical several factors
that were in the record, including Nee’s sex, age, height and weight, as well as the
blood test result showing his blood alcohol concentration of 0.161.
To preserve error for appellate review, “the point of error on appeal must
comport with the objection made at trial.” Wilson v. State, 71 S.W.3d 346, 349 (Tex.
Crim. App. 2002). During trial, Nee objected that the witness had not been qualified
as an expert on retrograde extrapolation. The trial objection to the witness’s
qualifications does not match the argument raised for the first time in this appeal,
that the witness’s testimony is unreliable because she failed to identify whether and
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what any individual characteristics of the defendant were known to the expert. See
Mata v. State, 46 S.W.3d 902, 916 (Tex. Crim. App. 2001). Nee failed to preserve
the issue for appellate review. See Tex. R. App. P. 33.1(a). We overrule issue three.
Illegally Obtained Evidence
In his fourth issue, Nee argues the trial court erred by failing to include an
article 38.23 instruction in the jury charge when there was a factual dispute about
whether the accident was proximately caused by Sergeant Baumgartner’s illegal act
of disregarding section 546.001 of the Texas Transportation Code and so all
evidence of death resulted from a violation of law. See Tex. Code Crim. Proc. Ann.
art. 38.23; see also Tex. Transp. Code Ann. § 546.001. Nee argues he suffered
egregious harm because the jury could consider and convict him for a second-degree
felony offense of evading arrest resulting in death instead of a third-degree felony
offense of evading arrest in a motor vehicle. See Madden v. State, 242 S.W.3d 504,
513 (Tex. Crim. App. 2007) (applying egregious harm standard because the
appellant never presented a proposed jury article 38.23 instruction).
Article 38.23 provides:
No evidence obtained by an officer or other person in violation
of any provisions of the Constitution or laws of the State of Texas, or
of the Constitution or laws of the United States of America, shall be
admitted in evidence against the accused on the trial of any criminal
case.
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In any case where the legal evidence raises an issue hereunder,
the jury shall be instructed that if it believes, or has a reasonable doubt,
that the evidence was obtained in violation of the provisions of this
Article, then and in such event, the jury shall disregard any such
evidence so obtained.
Tex. Code Crim. Proc. Ann. art. 38.23(a).
“A defendant’s right to the submission of jury instructions under Article
38.23(a) is limited to disputed issues of fact that are material to his claim of a
constitutional or statutory violation that would render evidence inadmissible.”
Madden, 242 S.W.3d at 509–10. Article 38.23(a) does not apply to every violation
of law. Wilson v. State, 311 S.W.3d 452, 459 (Tex. Crim. App. 2010). “Article
38.23(a) may not be invoked for statutory violations unrelated to the purpose of the
exclusionary rule or to the prevention of the illegal procurement of evidence of
crime.” Id.
In Miles v. State, the appellant argued article 38.23(a) required the suppression
of evidence obtained by a tow truck driver who admitted to committing several
traffic violations during a citizen’s arrest. 241 S.W.3d 28, 42 (Tex. Crim. App.
2007). The Court of Criminal Appeals held that the exclusionary rule does not apply
to traffic violations that do not infringe on the defendant’s property or privacy rights.
Id. at 44. The Court recognized that “there might be situations in which the conduct
of the police officer or citizen in making an arrest is constitutionally unreasonable[.]”
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Id. at 45. In Nee’s case, however, it is undisputed that Nee evaded police pursuit in
a high-speed chase. Furthermore, under article 38.23(a), evidence obtained in
violation of the law “contemplates that a crime has been committed; that evidence
of that crime exists; and that officers violate the law in attempting to obtain evidence
of the previously committed crime.” State v. Mayorga, 901 S.W.2d 943, 945–46
(Tex. Crim. App. 1995). The evidence Nee argues should have been excluded did
not exist at the time Sergeant Baumgartner entered the intersection. We conclude the
trial court did not err by failing to charge the jury on article 38.23(a). We overrule
issue four and affirm the trial court’s judgment.
AFFIRMED.
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CHARLES KREGER
Justice
Submitted on June 3, 2019
Opinion Delivered November 13, 2019
Do Not Publish
Before Kreger, Horton and Johnson, JJ.
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