Opinion
No. 05-10-01178-CR No. 05-10-01179-CR No. 05-10-01180-CR No. 05-10-01181-CR No. 05-10-01182-CR
05-23-2012
DAVID CALHOUN JONES, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM as Modified; Opinion Filed May 23, 2012.
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause Nos. 199-81720-08, 199-81721-08,
199-81722-08, 119-81723-08, 119-81724-08
OPINION
Before Justices Morris, Fillmore, and Myers
Opinion By Justice Morris
A jury convicted David Calhoun Jones of five separate manslaughter offenses. He complains on appeal that the trial court erred by admitting autopsy photographs and a crash data retrieval report into evidence, by denying his request for a voluntary act instruction in the jury charge, and by admitting testimony about his seizure history into evidence. Finding no reversible error, we modify the trial court's judgments to reflect the correct presiding judge and a $10,000 fine in cause number 05-10-01178-CR and affirm them as modified. Factual Background
Other drivers observed appellant's car traveling far faster than the speed limit as he approached the intersection of Legacy Drive and Custer Road in Plano, Texas. Estimates of his speed ranged from sixty to over ninety miles per hour. Witnesses reported the car precariously weaving in and out of traffic, ultimately driving off westbound Legacy and over a curb to a grassy area just before the red light at Legacy and Custer. When the car went over an area of the grass where the city was digging to put in a sidewalk, it went airborne and flew into a van occupied by a family. It continued to crash into two more vehicles, demolishing a pickup truck and injuring the driver inside. It ultimately landed on its side at a gas station across the intersection. The mother, father, and teenage daughter in the van were killed almost instantly, the parents being nearly decapitated. One of the family's foster children was thrown from the van and received medical assistance from volunteers and paramedics at the scene, but she was dead when an ambulance arrived to transport her to the hospital. A second foster child was found when witnesses saw a child's foot or leg in the debris of the wreck and heard cries from where she was encased in the back of the van. She was sent by helicopter to the hospital but was pronounced dead there.
Witnesses who observed the wreck described it in grisly terms. Experienced police officers testified that it was the worst accident scene they had ever worked. There was no evidence of appellant braking while he was on or off the roadway.
Testifying in his defense, appellant claimed that he was driving his rental car the speed of the other drivers around him, approximately forty miles per hour, when he stepped on the brakes upon seeing a yellow light turn red. According to appellant, he could hear a metal-on-metal sound but the car did not slow at all, even after he put both feet on the brakes. He did not attempt to use the emergency brake. The next thing appellant claimed to remember was waking up in a hospital bed. Appellant was on his way to pick up his daughter when the collision occurred. He offered evidence to show that he was not running late at the time. He also testified that it was not his habit to drive recklessly.
As a result of the collision, appellant is a paraplegic. Appellant suffered a brain injury during the crash, and when he was hospitalized, he was confused, agitated, and hallucinating. The neurologist who treated appellant at the hospital said that he did not mention any history of seizures when he gave the doctor his medical history. Based on appellant's records, however, the doctor said appellant “must have” mentioned to one of the other doctors that he had seizures in the past because they put him on prophylactic seizure medication while he was in the hospital. The neurologist noted that several days after the collision, appellant told her he had a seizure five years earlier and was unaware of how it was treated. She further acknowledged that appellant's hospital records showed he had a seizure approximately three months before the collision and, also, approximately three weeks before the collision. Appellant was not taking any medication when he was admitted to the hospital.
When he got out of the hospital, appellant did not tell his rehabilitative physician that he had any history of seizure disorder, nor did he ever tell the doctor that he had a history of being treated with seizure medication. The doctor nevertheless agreed that appellant's hospital records showed he had reported previous seizures. It was impossible to determine medically whether appellant had suffered a seizure before the crash. There was no evidence of alcohol or drug intoxication in appellant's blood after the crash.
The crash data retrieval system from appellant's car showed the car was traveling over ninety miles per hour. According to the CDR, the car was functioning properly. The CDR also indicated that the car's accelerator was all the way down and the engine's throttle was 100 percent open at the time appellant's air bags deployed. The CDR showed a recording of 0 for steering, which indicated that the car either was not equipped to measure steering, the measurement of steering malfunctioned, or the steering wheel never turned during the incident. Discussion
In his first point of error, appellant complains the trial court erred in admitting into evidence autopsy photographs of the five deceased victims during the guilt-innocence phase of trial. He contends the photographs were irrelevant to the guilt-innocence phase of trial and their prejudicial impact greatly outweighed their probative value. The State offered a single autopsy photograph of each victim, and each photograph showed the person's face and a bit of his or her unclothed neck and chest, in addition to that person's autopsy case number. Due to the nature of their injuries, the photographs of the two parents were notably more gruesome than the other three photographs. Other, more graphic, photographs of the crime scene and the autopsies were admitted into evidence for record purposes only.
Admissibility of photographs lies within the sound discretion of the trial court. Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002). Rule of Evidence 403 provides that even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Rule 403 nevertheless favors admissibility and contains a presumption that relevant evidence will be more probative than prejudicial. Rayford v. State, 125 S.W.3d 521, 529 (Tex. Crim. App. 2003). Autopsy photographs are generally admissible unless they depict mutilation caused by the autopsy itself. Id.
The photographs admitted were relevant, as they linked the victims to their individual autopsies, which were discussed at trial. See Young v. State, 283 S.W.3d 854, 875 (Tex. Crim. App. 2009). Moreover, the single photograph of each deceased portrayed “no more than the condition of the victim due to the injuries inflicted.” Id. We conclude the trial court did not abuse its discretion in admitting the photographs into evidence. We overrule appellant's first point of error.
In his next point of error, appellant complains the trial court erred by admitting into evidence the crash data retrieval report from his car. Appellant contends the State failed to lay the foundation to admit the hearsay document as a business record and the testimony about the report constituted inadmissible expert testimony. At trial, when the CDR was offered into evidence, defense counsel stated, “. . . the only objection we have is the failure to lay the proper predicate for legal admissibility. Other than that we don't have any objection.” After the trial court overruled appellant's objection, the officer who retrieved the report testified without objection about the details of the CDR, including the car's speed. When the State offered a video recording the officer had taken of the three vehicles appellant's car had damaged, defense counsel stated, “We first urge our objections to the failure to lay a proper predicate on the CDR, but that's the only objection. We'd just re-urge that . . . .” The officer went on to testify about the details of the report during cross- examination.
An objection of failure to lay the proper predicate is worthless in terms of its informing the trial court of the valid reasons for excluding the evidence. See Price v. State, 627 S.W.2d 253, 255 (Tex. App.-Fort Worth 1982, no pet.). To preserve error for appeal, counsel must inform the court “just how the predicate is deficient.” Bird v. State, 692 S.W.2d 65, 70 (Tex. Crim. App. 1985). By failing to do so here, appellant has waived any error in the trial court's admission of the CDR. We overrule appellant's second point of error.
In his third point of error, appellant complains the trial court erred in denying his request for a voluntary act instruction in the jury charge. He argues he was entitled to such an instruction because there was evidence that a brake failure precipitated the collision. A defendant is entitled to an instruction on the voluntariness of his acts when warranted by the evidence. Trujillo v. State, 227 S.W.3d 164, 169 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd). To claim the involuntary-act defense, however, the defendant must concede that his own body made the motion but deny responsibility for it. See id.
Voluntariness, in the context of penal code section 6.01(a), refers only to one's own physical body movements. Rogers v. State, 105 S.W.3d 630, 638 (Tex. Crim. App. 2003). If those movements are the nonvolitional result of someone else's act, are set in motion by some independent non-human force, are caused by a reflex or convulsion, or are the product of unconsciousness, hypnosis, or other nonvolitional impetus, then the movements are not “voluntary.” Trujllo, 227 S.W.3d at 169. A claim that the defendant cannot remember the events in question is not sufficient to raise a voluntariness instruction. See Peavey v. State, 248 S.W.3d 455, 465 (Tex. App.-Austin 2008, pet. ref'd). Nor is an accident the equivalent of the absence of a voluntary act under section 6.01(a). Rogers, 105 S.W.3d at 639.
Here, appellant testified at trial that his brakes failed while he was driving the speed limit. This evidence does not amount to an admission by appellant that his body's movements caused the high-speed collision but were due to someone else's act or other nonvolitional impetus. Rather, it is a claim that he lacked the requisite mental state to commit the offenses. Furthermore, no evidence showed appellant was having a seizure at the time of the collision, and his weaving through traffic before the crash does not show that he was involuntarily operating the car at the time of the offenses.
Because the evidence in these cases did not raise the issue of voluntariness, the trial court did not err in rejecting appellant's request for a jury instruction on the matter. We overrule his third point of error.
Appellant's fourth point of error concerns his admissions at the hospital that he previously had seizures. Appellant argues on appeal that the trial court erred in permitting testimony on the subject because the evidence was hearsay and its prejudicial impact outweighed its probative value. Because appellant did not object to the evidence on the basis of its prejudice to him at trial, we will not consider that complaint on appeal. See Tex. R. App. P. 33.1(a).
At trial, the State elicited testimony from appellant's rehabilitative doctor and the neurologist who treated him at the hospital. They testified about appellant's report of previous seizures. When the rehabilitative doctor testified, appellant objected that the prosecutor was trying to elicit from him something that was outside the record and the prosecutor was attempting to testify through his questions of the witness. He did not object that the testimony was hearsay. The doctor testified that appellant's medical records from the hospital showed he had a seizure about five years before the collision and also three weeks before it occurred.
Appellant did not object when the hospital neurologist testified that she had prescribed anti- seizure medication for appellant because he had reported to one of the doctors that he had a history of seizures. The defense objected to hearsay when the doctor was permitted to testify about appellant's hospital records, which indicated he had seizures approximately five years before the crash and approximately three weeks before it. The prosecutor then asked, without defense objection, “Okay, the five years and three weeks and you also recall reviewing the records where he indicated a seizure while driving approximately three months prior to that June 22nd, 2008 date?” The doctor responded affirmatively. On cross-examination, the neurologist agreed she had heard that appellant had told another doctor at the hospital he had previously had seizures. She admitted that he had not told her about seizures when she first took his medical history. Later, the neurologist testified from her own notes without objection that appellant had indeed told her he had seizures in the past, the last one occurring approximately five years earlier. Under Texas law, if a defendant claims on appeal that the trial judge erred in admitting evidence offered by the State, the error must have been preserved by a specific and timely objection and a ruling on that objection. Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). Moreover, with two exceptions, the law in Texas requires a party to continue to object each time inadmissible evidence is offered. The two exceptions require counsel either to obtain a running objection or request a hearing outside the presence of the jury. Id. In these instances, appellant did not consistently object on the basis of hearsay to all the evidence about his previous seizures, nor did he obtain a running objection or request a hearing outside the presence of the jury. Accordingly, he failed to preserve his complaint for appeal. See Tex. R. App. P. 33.1(a). We overrule his fourth point of error.
The State notes that the judgments erroneously state the presiding judge in the cases was the Honorable Robert T. Dry, Jr. and that the actual presiding judge was the Honorable Quay Parker. We have confirmed that Quay Parker, sitting by appointment, presided over the cases. We therefore sustain the State's cross-point and modify the judgments to reflect the correct presiding judge. In addition, noting that the judgment in cause number 05-10-01178-CR fails to reflect the jury's assessment of a $10,000 fine in that case, we modify the judgment in that case to reflect the fine assessed. See Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). We affirm the trial court's judgments as modified.
JOSEPH B. MORRIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101178F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DAVID CALHOUN JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01178-CR
Appeal from the 199th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 199- 81720-08).
Opinion delivered by Justice Morris, Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to list the presiding judge as HON. QUAY PARKER and to show the fine assessed as $10,000.
As modified, the judgment is AFFIRMED.
Judgment entered May 23, 2012.
JOSEPH B. MORRIS
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DAVID CALHOUN JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01179-CR
Appeal from the 199th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 199- 81721-08).
Opinion delivered by Justice Morris, Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to list the presiding judge as HON. QUAY PARKER.
As modified, the judgment is AFFIRMED.
Judgment entered May 23, 2012.
JOSEPH B. MORRIS
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DAVID CALHOUN JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01180-CR
Appeal from the 199th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 199- 81722-08).
Opinion delivered by Justice Morris, Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to list the presiding judge as HON. QUAY PARKER.
As modified, the judgment is AFFIRMED.
Judgment entered May 23, 2012.
JOSEPH B. MORRIS
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DAVID CALHOUN JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01181-CR
Appeal from the 199th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 199- 81723-08).
Opinion delivered by Justice Morris, Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to list the presiding judge as HON. QUAY PARKER.
As modified, the judgment is AFFIRMED.
Judgment entered May 23, 2012.
JOSEPH B. MORRIS
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DAVID CALHOUN JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01182-CR
Appeal from the 199th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 119- 81724-08).
Opinion delivered by Justice Morris, Justices Fillmore and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to list the presiding judge as HON. QUAY PARKER.
As modified, the judgment is AFFIRMED.
Judgment entered May 23, 2012.
JOSEPH B. MORRIS
JUSTICE