Opinion
No. 05-11-00345-CR
08-03-2012
JERRELL GLENN DITTMAN, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed August 3, 2012.
On Appeal from the 292nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F10-00566-V
OPINION
Before O'Neill, Richter, and Lang-Miers
Opinion By Justice Richter
A jury found appellant guilty of felony murder and the trial court sentenced him to thirty-five years' imprisonment. In three issues on appeal, appellant argues the evidence was insufficient to support his conviction, the trial court erred in denying his motion to quash the indictment, and the trial court erred in admitting two autopsy photographs into evidence. Concluding appellant's arguments are without merit, we affirm the trial court's judgment. Background
While driving a motor vehicle under the influence of alcohol, appellant crashed into a truck driven by Willie Kind. Mr. Kind's wife, Fannie Kind, was a passenger in the truck and was killed in the accident.
Appellant was charged with felony murder. Specifically, appellant was charged with committing an act dangerous to human life that caused the death of Fannie Kind in furtherance of the crime of felony DWI. At the time of trial, defense counsel stipulated that appellant was legally intoxicated at the time of the collision. Defense counsel also stipulated that appellant had been previously convicted of driving while intoxicated on two prior occasions.
The jury convicted appellant of felony murder, and the court sentenced him to thirty- five years' imprisonment. The appeal followed.
Analysis
Sufficiency of the Evidence
In his first issue, appellant contends the evidence was insufficient to support his conviction for felony murder. Specifically, appellant maintains the State failed to prove beyond a reasonable doubt that he committed an act clearly dangerous to human life in furtherance of the offense of felony driving while intoxicated. We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011); see also Bell v. State, 326 S.W.3d 716, 720 (Tex. App.-Dallas 2010, pet. dism'd). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard recognizes “the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319; see also Adames, 353 S.W.3d at 860. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We consider both direct and circumstantial evidence, and all reasonable inferences that may be drawn from the evidence in making our determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (stating appellate court may not re-evaluate the weight and credibility of the record evidence and thereby substitute its own judgment for that of the fact finder).
A person commits murder if he “commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of the individual.” See Tex. Penal Code Ann. § 19.02(b)(3) (West 2005). Felony DWI may serve as the underlying felony in a felony murder prosecution. See Lomax v. State, 233 S.W.3d 302, 311 (Tex. Crim. App. 2007).
There is no dispute that appellant committed felony DWI, or that he caused the death of Fannie Kind when his vehicle collided with the truck in which she was a passenger. But appellant maintains the evidence does not show that he committed an act clearly dangerous to human life. Instead, appellant maintains the evidence only shows, at best, that he caused the death of Fannie Kind by accident or mistake.
Officer Greg McMillan, one of the officers investigating the case, testified that appellant was behind an 18-wheeler, made a lane change into the lane in which Mr. Kind was driving, and struck Mr. Kind's truck. Officer McMillan opined that there was no breaking prior to the impact between the car and the truck. Based on his investigation, the officer concluded that appellant had been driving at a high and unsafe rate of speed, made an unsafe lane change, and caused the collision. Officer McMillan testified that both speeding and unsafe lane changes can be acts clearly dangerous to human life.
Tim Hockaday, a paramedic who responded to the accident, testified that he transported appellant to the hospital. Hockaday stated that appellant smelled of alcohol.
Curtis Benge, the driver of the 18-wheeler, testified that he was driving his truck on the night of the offense. He observed a truck driving in the far left lane of the highway, and kept noticing a car behind him that was “coming up too fast” and “bothering” him. Benge had his cruise control set a sixty-four miles per hour, and estimated that the car behind him was traveling at eighty to eighty-five miles per hour. Benge was concerned that the car would “run up under the back of his trailer,” so he decided to exit the highway. Just before he reached the exit, the car behind him swerved quickly to the left, and Benge heard a loud noise. Benge subsequently learned that the car had struck the truck.
Mr. Kind testified that he was driving on the highway, and at about 10:30 in the evening, passed an 18-wheeler. All of the sudden, his truck was hit from behind. Mr. Kind described his truck as “accelerat[ing] at a high rate of speed, like [it was] going out in space.” Then, 'everything went blank.” The next thing Mr. Kind remembered was his truck “tumbling and flipping.” When the truck finally came to a stop, Mr. Kind saw his wife laying beside the road, and he crawled to her.
Brady Bishop was traveling on the highway and came upon the accident after it occurred. He saw a man and a woman laying on the road and called 911. The man was crying, and when he checked the woman for a pulse, he could not detect that she was breathing. He then went over to appellant's car, which was on fire. Once the fire was out, Bishop and an off-duty police officer opened the door by breaking the window. Appellant was slumped over and unconscious. Bishop thought he smelled the odor of an alcoholic beverage.
Appellant insists the jury “unfairly and irrationally inferred” that he committed an act clearly dangerous to human life in furtherance of the commission of DWI. But there was no dispute that appellant was driving while intoxicated, a crime for which he had been convicted on two prior occasions. Based upon the evidence, the jury could have found that appellant's acts of speeding and making an unsafe lane change were committed in furtherance of felony DWI. See Almani v. State, 333 S.W.3d 881, 888 (Tex. App.-Fort Worth 2011, no pet.); see also Bignon v. State, 252 S.W.3d 360, 366 (Tex. Crim. App. 2008) (driving loaded jeep across center stripe in road constituted clearly dangerous act); Adams v. State, 357 S.W.3d 387, 390 (Tex. App.-Waco 2011, pet. ref'd) (same).Therefore, viewing the evidence in the light most favorable to the verdict, we conclude a rational jury could have found appellant guilty of felony murder beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Appellant's first issue is overruled.
Motion to Quash the Indictment
In his second issue, appellant contends the trial court erred in refusing to quash the indictment. In particular, appellant claims because the indictment failed to allege his two prior DWI convictions, it failed to specify the underlying felony offense on which the State relied for the charge of felony murder. The State responds that the indictment for felony murder was not required to allege the elements of the underlying felony. We agree with the State.
We review a trial court's decision whether or not to quash an indictment under a de novo standard. See Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007). An indictment must convey adequate notice from which the accused may prepare his defense. See Tex. Code Crim. Proc. Ann. arts. 21.02, .11 (West 2009); State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998); Smith v. State, 895 S.W.2d 449, 453 (Tex. App.-Dallas 1995, pet. ref'd). With few exceptions, an indictment which tracks the statutory language is sufficient. Smith, 895 S.W.2d at 453; Walker v. State, 828 S.W.2d 485, 490 (Tex. App.-Dallas 1992, pet. ref'd) (citing Moreno v. State, 721 S.W.2d 295, 300 (Tex. Crim. App.1986)).
In the present case, the indictment charged, in pertinent part, that appellant:
Did then and there commit a felony, to wit: driving while intoxicated and after having been previously convicted two times of the offense of driving while intoxicated and in the course of and in furtherance of the commission or in immediate flight from the commission of said felony, he committed and attempted to commit an act clearly dangerous to human life, to wit: operate a motor vehicle at a speed unsafe for the surrounding circumstances and by making an unsafe lane change and by failing to keep a proper lookout and by colliding said motor vehicle into and against a motor vehicle operated by Fannie Kind, and did thereby cause the death of Fannie Kind.
And it is further presented in and to said court that during the commission of the above described felony, the said defendant did use a deadly weapon, to wit: A MOTOR VEHICLE, that in the manner of its use or intended use was capable of causing death or serious bodily injury.
The indictment charged appellant with felony murder, and named the underlying felony-felony DWI. It is well-established that an indictment that charges one offense during the commission of another crime need not allege the elements of the latter offense. See Hammet v. State, 578 S.W.2d 699, 708 (Tex. Crim. App. 1979). Therefore, an indictment for felony murder is not fundamentally defective if it does not charge all of the elements of the underlying offense. See McGuire v. State, 2012 WL 344952 at * 3 (Tex. App.-Houston [1st Dist.] Feb. 2, 2012, pet. ref'd) (not designated for publication).
Appellant urges that the prior convictions used to elevate the underlying offense from a misdemeanor DWI to a felony DWI should be specifically asserted in the indictment. But all of the authority appellant relies upon to support this proposition involves prosecutions for felony DWI, not felony murder. Appellant cites no authority, nor have we found any, requiring that the elements of an underlying felony DWI offense be pleaded in an indictment charging felony murder. Appellant's second issue is overruled.
Admission of Evidence
In his third issue, appellant argues the trial court erred in admitting two autopsy photographs into evidence because the probative value of such photographs was substantially outweighed by the danger of unfair prejudice. We disagree.
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Id. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Unfair prejudice refers to the likelihood that the jury woulddecide the case on an improper basis, commonly, though not necessarily, an emotional one. See Gigliorianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). There is a presumption that relevant evidence is more probative than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997).
The court of criminal appeals has identified a non-exclusive list of factors to apply in making a Rule 403 analysis. These factors include, but are not limited to: (1) how probative the evidence is; (2) the potential of the evidence to impress the jury in an irrational but indelible way; (3) the time the proponent needs to develop the evidence; and (4) the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex. Crim. App. 2000). Autopsy photographs are generally admissible unless they depict mutilation of the victim caused by the autopsy itself. See Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 1990).
Here, the two photographs depict an unclothed Ms. Kind prior to or during the autopsy, but her private areas are covered by what appears to be white tape. Neither photograph depicts any mutilation of the body resulting from the autopsy and neither photograph is a close-up. Both photographs show the external injuries- swelling, bruises and abrasions Ms. Kind sustained in the collision. These two photographs were among only three photographs admitted into evidence during the medical examiner's testimony, and were used during such testimony to describe Ms. Kind's injuries. The prosecutor's examination of the medical examiner was brief, comprising only four pages out of a several volume record.
To the extent the photographs could be described as disturbing because they depict a lifeless Ms. Kind, the photographs portray no more than the disturbing consequences of appellant's felony-murder offense. Weighing the rule 403 factors, the trial court could have reasonably concluded that the probative value of the photograph was not substantially outweighed by its inflammatory nature, if any. See Garcia v. State, 201 S.W.3d 695, 704 (Tex. Crim. App. 2006) (“[W]hen determining whether evidence is admissible under Rule 403, we do not consider just whether the evidence is more prejudicial than probative, we consider whether the probative value is substantially outweighed by the danger of unfair prejudice.”). Accordingly, we conclude the trial court did not abuse its discretion by overruling appellant's rule 403 objection to State's Exhibits 63 and 64 and by admitting the photographs. Appellant's third issue is overruled.
Having resolved all of appellant's issues against him, we affirm the trial court's judgment.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110345F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JERRELL GLENN DITTMAN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00345-CR
Appeal from the 292nd Judicial Distict Court of Dallas County, Texas. (Tr.Ct.No. F10- 00566-V).
Opinion delivered by Justice Richter, Justices O'Neill and Lang-Miers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered August 3, 2012.
MARTIN RICHTER
JUSTICE