Opinion
No. 05-14-01073-CR
11-04-2015
WARREN RAY PATTON, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 422nd Judicial District Court Kaufman County, Texas
Trial Court Cause No. 14-00353-422-F
MEMORANDUM OPINION
Before Justices Lang, Evans, and Whitehill
Opinion by Justice Whitehill
After a fatal head-on collision with another vehicle on a dark country road, appellant was charged with intoxication manslaughter and manslaughter. A jury convicted him of manslaughter and assessed punishment at eighteen years' imprisonment.
In three appellate issues, appellant asserts that the evidence is insufficient to support his manslaughter conviction, and the trial court abused its discretion in admitting medical records showing his blood and alcohol screens and testimony concerning retrograde extrapolation. Because we conclude that the evidence is sufficient to support the conviction and any error in admitting the medical records or the retrograde extrapolation testimony was harmless, we affirm the trial court's judgment.
I. Background
On June 9, 2012, Guy Farley and his wife drove two separate cars to attend their daughter's first dance recital. The recital ended at about 10:00 p.m., and Farley planned to pick up dinner on his way home. As he traveled north on F.M. 741, however, his truck was hit head-on by a southbound BMW driven by appellant. Farley was dead when the police arrived. Appellant was injured and was transported to the hospital.
Appellant was later charged with intoxication manslaughter and manslaughter, and pled not guilty to both charges. A jury acquitted him of intoxication manslaughter, but convicted him of manslaughter and sentenced him to eighteen years imprisonment.
II. Analysis
A. First Issue: Was the evidence sufficient to support the manslaughter conviction?
1. Standard of Review and Applicable Law.
We review the sufficiency of the evidence establishing the elements of a criminal offense for which the State has the burden of proof under the single legal sufficiency standard stated in Jackson v. Virginia, 443 U.S. 307 (1979). See Matlock v. State, 392 S.W.3d 662, 673 (Tex. Crim. App. 2013). Under that standard, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences from it, whether any rational factfinder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). The factfinder is the exclusive judge of witness credibility and the weight to be given to the evidence. See Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). We defer to the factfinder's responsibility to fairly resolve or reconcile any evidentiary conflicts. Id. We draw from the evidence all reasonable inferences in favor of the verdict. Id.
A person commits manslaughter if he recklessly causes an individual's death. TEX. PENAL CODE ANN. § 19.04(a) (West 2011). A person acts recklessly with respect to the circumstances surrounding his conduct or result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. Id. §6.03(c). The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint. Id. "At the heart of reckless conduct is conscious disregard for the risk created by the actor's conduct." Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975). Ordinarily, the culpable mental state must be inferred from the accused's acts or the surrounding circumstances. See Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998).
2. The Trial Evidence.
Nelson
Jerry Nelson lived all of his life near where the wreck occurred. At about 11 p.m. on the night of the collision, Nelson was traveling south on F.M. 741 toward his home in Crandall, when he "looked in the rearview mirror and noticed a vehicle riding very closely up behind my—the tail of [his] truck."
Nelson explained that the car behind him was "following real close," and he kept looking in the rearview mirror. The car would slow down, then accelerate and try to pass, and then jump back in behind him when oncoming traffic would approach. He saw the vehicle go to the edge of the "side road that's almost to the ditch" and then come back onto the road. This continued for a while. The car tried to pass him two or three times, but was prevented from doing so because of vehicles approaching from the other direction.
According to Nelson, the car behind him was driving erratically. Nelson was driving the speed limit "like he always did." The car finally passed him on a curve in the road about 1/2 mile from U.S. Highway 175. Nelson saw the car's tail lights as it accelerated and got about a quarter mile ahead. He said the road was dark at that location, but he could see the tail lights ahead. Then the tail lights veered to the left, and Nelson saw "this horrific thing." The car that had been following Nelson hit Farley's truck head on.
Nelson stopped and went to the truck. Farley was slumped over, with his eyes looking at Nelson. Farley started gasping for air and closed his eyes. Nelson tried to get him out of the truck so he could start CPR. Although he pulled at the truck's doors as hard as he could, he could not get Farley out. Farley's breathing was becoming very shallow, so Nelson crawled "up into the door of the vehicle." He started trying to breathe into Farley, but "it didn't feel right." So Nelson put his head on Farley's shoulder and told him he wouldn't leave him.
Nelson identified State's exhibits 13-15, photos of the road taken the morning after the collision, and State's exhibits 16 and 17, showing Farley in his truck, all of which were admitted without objection. Nelson also identified his statement given to officers at the scene that night, which states that the BMW (appellant's car) was swerving all over the road and hit the truck head-on.
Nelson admitted that he did not see the collision's impact, he just saw the explosion. When defense counsel challenged Nelson about whether he could say for sure what appellant's vehicle was doing when the collision happened, Nelson responded that appellant was "driving erratically behind me all the way there, passed me, went up about a quarter of a mile in front of me, veered onto the next lane, and hit the oncoming vehicle. That's what happened."
Dr. Gibbons
Dr. Steve Gibbons, an orthopedic surgical resident at Parkland Hospital, treated appellant the night of the crash. Appellant had two open fractures to his leg, including a displaced ankle, as well as a broken arm. Based on his observations, Dr. Gibbons wrote "drunk" on appellant's chart. On cross-examination, Dr. Gibbons said he knew the difference between someone who was intoxicated and someone in shock.
Appellant arrived in the emergency room at about 12:46 a.m., and was admitted at 1:04 a.m. Blood samples were drawn at 12:54 and 1:00 a.m. The lab tests confirmed Dr. Gibbons' visual observation that appellant was drunk. Gibbons testified that a person who was as intoxicated as appellant would have some loss of their normal function with slowed decision-making and lowered inhibitions.
Dr. Gibbons explained that in nearly every case of major trauma, toxicology through blood and urine samples is ordered by the trauma staff, in part so the treating physicians will know what medications can safely be given to the patient for treatment and anesthesia.
The hospital's drug screen on appellant was positive for benzodiazepines. Benzodiazepines are prescription drugs that include drugs like Valium and Xanax, also called alprazolam. Dr. Gibbons noted that appellant said that he took alprazolam and hydrocodone. Benzodiazepine prescription bottles include warnings about driving and drinking alcohol, and taking the two in combination can have a greater effect than either on its own. Gibbons agreed that drinking even one beer with Xanax could affect a person's normal use of mental or physical faculties.
Dr. Gibbons also said that appellant could not consent to surgery because he didn't make sense. Instead, Gibbons had to consult with appellant's mother before taking appellant to the operating room.
Dr. Gwin
Dr. Chester Gwin testified about Farley's autopsy. Farley had no drugs or alcohol in his system at the time of death. The cause of death was the totality of his blunt force injuries, which were consistent with involvement in a head-on collision.
Troopers Schumann and Leonard
Texas DPS Trooper Justin Schumann and Trooper Everest Leonard were called to the collision scene and saw a silver BMW and a white Chevy pickup, both in the northbound lane. When they checked the truck, they discovered that Farley was dead. Appellant was pinned behind the steering wheel of his BMW and the roof of the vehicle had to be cut off to get him out.
Schumann described a diagram of the collision scene showing the two vehicles in the northbound lane and skid marks in the northbound lane showing that Farley attempted to brake just before the collision. The diagram also shows gouge marks in the road that the undercarriage of Farley's truck created during the wreck. Schumann explained that it is common to find gouge marks at the point of contact in a head-on collision because the energy of the impact is dissipated downward.
Schumann also identified accident scene photographs that were admitted into evidence without objection. In one exhibit, the skid marks from Farley's truck are visible. One photograph shows that the road was "pretty straight" at the point of the contact, and there were no obstructions. It is also very dark at that location. And, there was no construction or any hazardous conditions on the road that night.
Schumann found smashed beer bottles, some intact beer bottles, bottles of hydrocodone, alprazolam and oxycontin, and a six-pack box of Bud Light in appellant's car. Some of these items can be seen in the photographs that were admitted into evidence.
According to Schumann, appellant failed to maintain a single lane of traffic, drove on the wrong side of the road, drove toward the lights of the oncoming vehicle, and failed to maintain a proper lookout for others, all of which were reckless conduct.
Wanda Koller
Wanda Koller was sitting outside her house with family and friends about 100 yards away from the collision. She and her son were the first people on the scene and called 911. She said that she could tell from tire tracks in the grass and the position of the vehicles how the collision happened. She testified that appellant swerved out of his lane, then "went to correct himself, and that's evidently when the collision happened . . . You could tell that Farley tried to swerve because [appellant] was in that lane—his lane, and then, when [appellant] corrected himself, that's when they hit." Koller admitted that she did not look at the tire tracks around the scene that night, but saw the tracks when she went out after daylight the next day.
Josh Koller
Josh Koller testified that he saw appellant's BMW coming down the road prior to the collision, and thought his speed was excessive. F.M. 741 "is not the best of roads," and "in theory" a driver should not attempt to pass another vehicle on that road.
Hays
Earnest Hays, a local tattoo artist, worked on appellant the day of the accident and several months later. When appellant visited the shop after the accident, Hays asked appellant what had happened to him. Appellant told him that when he left the shop the day of the accident he got "totally wasted" and did not remember the wreck at all. He also said that he had "killed a f-ng cop."
Farley was a peace officer with the Dallas County Constable's office.
The Verdict and Related Evidence
The jury was authorized to find that appellant committed one of three alternate forms of reckless conduct: (i) failing to keep a proper lookout, (ii) failing to maintain a single lane, or (iii) introduction of a combination of controlled substances into his body, causing the two vehicles to collide. The verdict must stand if the evidence is sufficient to support any of the three charged reckless acts. See Turner v. State, 435 S.W.3d 280, 285 (Tex. App.—Waco 2014, pet. ref'd).
It was undisputed that the collision caused Farley's death. And Schumann testified that appellant failed to maintain a single lane of traffic, drove toward the lights of the oncoming vehicle, and drove on the wrong side of the road, which was reckless. Nelson testified that appellant was driving erratically, passed him, veered into the next lane, and then hit Farley's truck. Josh Koller explained that the road conditions were not conducive to passing. And Wanda Koller testified that the tire tracks showed that appellant veered out of his lane.
Based on this evidence, even without the evidence concerning appellant's intoxication, it was reasonable for the jury to infer from the circumstances that appellant was aware of but consciously disregarded a substantial and unjustifiable risk that his failure to keep a proper lookout or maintain a single lane could likely cause a collision. Accordingly, viewing the evidence in the light most favorable to the verdict, we conclude that the evidence was sufficient for a reasonable juror to find appellant guilty of manslaughter.
For all of these reasons, we overrule appellant's first issue.
B. Did the trial court abuse its discretion in admitting evidence?
The trial court admitted a few pages out of 2,123 pages of appellant's hospital records, which showed his blood alcohol and drug screens and his status reports. The court also allowed Dr. Gibbons to give retrograde extrapolation testimony regarding appellant's blood-alcohol concentration when the crash occurred. Appellant asserts that admitting these medical records violates code of criminal procedure article 38.23 and the Health Portability and Accountability Act ("HIPPA"). He further urges that the court should not have allowed retrograde extrapolation testimony concerning his blood-alcohol concentration at the time of the offense because the testimony was not reliable.
Retrograde extrapolation is the computation of blood-alcohol level at the time of driving based on a test from some later time. See Mata v. State, 46 S.W.3d 902, 908-09 (Tex. Crim. App. 2001).
Dr. Gibbons testified that the result of appellant's initial blood alcohol test was 0.086. He further explained that alcohol is a depressant that alters thinking, slows reaction time, and slows down respiration and that the body eliminates alcohol over time. Gibbons also said that medical treatment providers use a chart that shows average alcohol metabolism over time; the average is ".015 percent . . . elimination per hour," which would be about one beer's worth. According to that guideline, a person would eliminate approximately .03 percent in two hours. To extrapolate the blood alcohol content to see what it would have been one or two hours earlier, the .03 elimination rate would be added to the .86, to reach a blood alcohol level of 0.116 percent when appellant was driving.
The legal limit is blood alcohol concentration of .08 or more See TEX. PENAL CODE ANN. § 49.01 (2) (West 2015). --------
Gibbons agreed with the variable factors defense counsel listed during cross examination as necessary to achieve an accurate retrograde extrapolation determination, and he agreed that without that information, any extrapolation would not be exact. Gibbons said that he had no idea what the range of possible results would be. He also agreed with defense counsel that if the time of last consumption of alcohol was unknown, it would not be possible to accurately state the level of intoxication two hours before testing because appellant's blood alcohol could still have been rising at the time of the offense and could then have peaked and fallen after the offense.
1. Standard of Review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses its discretion only if its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court, however, does not abuse its discretion if evidence supports its decision. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). And, we uphold a trial court's evidentiary ruling if it was correct on any theory of law applicable to the case. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
But here we need not consider whether the trial court erred in admitting excerpts from the medical records or Dr. Gibbons' testimony because, even if there was error, the record does not demonstrate that appellant suffered harm.
2. Did the Allegedly Improperly Admitted Evidence Cause Appellant to Suffer Harm?
A violation of evidentiary rules resulting in the erroneous admission of evidence is nonconstitutional error, subject to rule 44.2(b) harm analysis. See TEX. R. APP. P. 44.2(b); Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010). Any nonconstitutional error that does not affect substantial rights must be disregarded. 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. Coble, 330 S.W.3d at 280. A criminal conviction thus should not be overturned for nonconstitutional error if the appellate court, after examining the record as a whole, has fair assurance the error did not influence the fact-finder, or had but a slight effect on its verdict. Id.
We have already concluded that, even without the intoxication evidence, the evidence is sufficient to support the manslaughter conviction. And the jury acquitted appellant on the intoxication manslaughter charge.
Because there is no reason to believe that the intoxication evidence, either in the form of medical records or testimony, influenced the jury's verdict or had more than a slight effect, we conclude appellant suffered no harm. See Casey v. State, 215 S.W.3d 870, 888 (Tex. Crim. App. 2007) (holding admission of prejudicial evidence harmless because jury acquitted one defendant and convicted appellant of lesser-included offense); Dusek v. State, 978 S.W.2d 129, 136 (Tex. App.—Austin 1998, pet ref'd) (error rendered harmless by acquittal verdict). We thus overrule appellant's second and third issues.
For all of the above reasons, we affirm the trial court's judgment Do Not Publish
TEX. R. APP. P. 47
141073F.U05
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
JUDGMENT
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas
Trial Court Cause No. 14-00353-422-F.
Opinion delivered by Justice Whitehill. Justices Lang and Evans participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.