Newkirk, Suzanne v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Memorandum Opinion filed June 19, 2003

Affirmed and Memorandum Opinion filed June 19, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00537-CR

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SUZANNE NEWKIRK, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris County, Texas

Trial Court Cause No. 903,301

M E M O R A N D U M O P I N I O N

Appellant, Suzanne Newkirk, was charged by indictment with the felony offense of intoxication assault. She was further charged with using and exhibiting a deadly weapon, namely, a motor vehicle, during the commission of the offense. The jury convicted appellant of the underlying offense but failed to find she used or exhibited a deadly weapon and assessed her punishment at 4 2years= imprisonment. On appeal, appellant contends (1) the evidence is legally and factually insufficient to support her conviction, (2) the prosecution conducted improper jury argument, and (3) she received ineffective assistance of counsel. We affirm.

On July 9, 2001, at approximately 10:00 p.m., Rafik Boubenider was driving his Isuzu Rodeo north on Highway 6. He stopped for a traffic light in the right lane of the intersection of Highway 6 and Meadow Forest Trail. When the light turned green, Boubenider proceeded northbound on Highway 6. Approximately fifty or sixty yards after Boubenider crossed the intersection, a southbound Geo Tracker, driven by appellant, turned across three lanes of northbound traffic in an attempt to enter the parking lot of a drug store. As the Geo Tracker crossed in front of Boubenider, he slammed on his brakes. Boubenider, nevertheless, struck the Geo Tracker, rolling it on its roof, and severely injuring the complainant, appellant=s eleven-year-old son.

Deputy Tracy Wright, with Harris County Sheriff=s Department Patrol Division, heard the impact, notified her dispatch of a major accident, and ran to the scene. Boubenider got of his car immediately and went to check on the other driver. Appellant was unconscious and suspended upside down in her seatbelt. The complainant had been thrown from the vehicle and was bleeding badly from a severe leg injury. Deputy Wright placed her hand on the wound to help stop the bleeding. Appellant=s fourteen-year-old daughter excited the vehicle by crawling out of a shattered window and the daughter=s boyfriend was taken out of the vehicle by ambulance personnel.

Life Flight transported appellant to a local hospital. Medical staff ran a series of standard tests for a person in appellant=s unconscious state and found that her blood alcohol level was approximately three times the legal limit. After a through investigation, appellant was charged, and subsequently convicted of, intoxication assault.

Legal and Factual Insufficiency

In her first and second issues, appellant contends the evidence is legally and factually insufficient to support her conviction. In evaluating a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 n. 12 (1979); Garrett v. State, 851 S.W.2d 853, 857 (Tex. Crim. App. 1993). We will not overturn the verdict unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, is the sole judge of the credibility of witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may believe or disbelieve any portion of the witnesses= testimony. Sharp. v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). Therefore, if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997).

Appellant argues the evidence is legally insufficient to prove that her intoxication, if any, caused the accident. Appellant contends instead, that the other driver, who was allegedly speeding, could have braked and avoided the collision.

To establish appellant committed the offense of intoxication assault, the State had to demonstrate that she, by accident or mistake, caused serious bodily injury to another while operating a motor vehicle in a public place while intoxicated. See Tex. Pen. Code Ann. '49.07(a)(1) (Vernon 2003). Causation needed to establish criminal responsibility exists when:

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.

Tex. Pen. Code Ann. '6.04(a) (Vernon 2003). When the accused as well as others could have caused the victim=s injuries, the accused nevertheless will be criminally responsible, unless the other causes were clearly sufficient to produce the injury and the accused=s conduct is clearly insufficient. See id; Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986). Thus, the evidence of causation will be legally insufficient only when the conduct of the accused, standing alone, was clearly insufficient to cause the injury. Robbins, 717 S.W.2d at 351.

Appellant contends the other driver=s excessive speed caused the accident; however, that issue alone does not negate appellant=s criminal responsibility. Instead, the issue is whether the State presented ample evidence establishing appellant=s conduct, that standing alone, was clearly insufficient to cause injuries to the victim.

The State presented ample evidence establishing appellant=s intoxication on the night at issue. Richard Kern, the Emergency Medical Technician that arrived at the scene, smelled alcohol on appellant while working eighteen to twenty inches from her. Deputy Suzanne Cotter, the accident investigator, noticed appellant smelled of alcohol when she arrived at the hospital. Approximately one hour after the accident, appellant=s blood plasma revealed 262 grams of alcohol per decaliter, which means appellant had approximately .24 to .25 grams of alcohol per 100 milliliters of blood at the time of the accident. Based on this evidence of intoxication, coupled with her failure to yield the right of way, Cotter opined that appellant had lost the normal use of her mental and physical faculties.

Finally, we must presume the jury resolved any conflicting inferences on the issue in favor of the prosecution. Farris v. State, 819 S.W.2d 490, 495 (Tex. Crim. App. 1990), overruled on other grounds by Riley v. State, 889 S.W.2d 290 (Tex. Crim. App. 1993). We test the evidence only to see if any reasonable trier of fact could find the elements established beyond a reasonable doubt. Jackson, 443 U.S. at 318. After examining the evidence, we find it is sufficient to permit a rational trier of fact to determine appellant caused the victim=s injuries.

Appellant, however, also contends the evidence is factually insufficient. When conducting a factual sufficiency review, the evidence is not viewed in the light most favorable to the verdict, and the verdict is set aside only if it is so contrary to the overwhelming weight of the evidence to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 6B7 (Tex. Crim. App. 2000). The evidence is considered equally, including the testimony of defense witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex. App.CAustin 1992, no pet.). We consider the factfinder=s weighing of the evidence and can disagree with the factfinder=s determination. Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). However, we are not free to reweigh the evidence and set aside a verdict merely because a different result is more reasonable. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We must defer to jury findings and find the evidence factually insufficient only where necessary to prevent manifest injustice. Id.

The State=s evidence of appellant=s intoxication is detailed above. Appellant argues, however, that several defense witnesses, including herself, testified she did not consume any alcoholic beverages before the accident and did not exhibit any symptoms of intoxication. Appellant=s fourteen-year-old daughter testified that her mother drove normally without hitting other drivers, swerving, or speeding; however, she did admit she was not sure if her mother had been drinking before the accident. Appellant=s eleven-year-old son testified he never saw his mother drink an alcoholic beverage before they got into the car. Marianne Pigott, a church friend of appellant=s, interacted with appellant a few hours before the accident. Appellant dropped her son off at Vacation Bible School where Pigott spoke with appellant at approximately 6:00 p.m. and 8:00 p.m., respectively. According to Pigott, appellant appeared to have the normal use of her faculties, and did not mumble or seem incoherent.

Appellant suggests the State=s medical evidence against her may be attributed to a medical condition. She suffers from a throat condition, esophagitis, which she treats with NyQuil. She took one dose of NyQuil about an hour and a half before the accident and had taken two or perhaps three doses the day before. However, Debby Stevens, from the Houston Police Department Crime Laboratory, testified the smell of alcohol in NyQuil is very slight, and thus, if one drank only medicine, the smell of alcohol would be very faint. Here, however, appellant had a strong odor of alcohol. Moreover, Dr. Julius Debroeck testified that if appellant had only one capful of NyQuil a few hours before the accident, as appellant stated, it would be impossible for her to have had a blood alcohol content as high as she did. Appellant also contends the accident would not have occurred but for Boubenider=s high rate of speed. Steven Nastasi, an eyewitness that was driving northbound on Highway 6, testified that seconds before the collision, a black Rodeo tailgated him and then passed him and entered the far right-hand lane at a high rate of speed. Appellant turned, from the left hand lane of the Southbound direction on Highway 6, in front of both drivers. Appellant passed in front of Nastasi=s vehicle but the Rodeo in the far right hand lane failed to brake before colliding with appellant=s vehicle. Appellant=s daughter testified that the Rodeo came really fast, out of nowhere, much faster than any of the other cars. Nastasi believed Boubenider caused the accident because the Rodeo passed Nastasi at such a high rate of speed when Nastasi himself was driving at least forty-five to fifty miles per hour.

Boubenider, however, testified he was driving approximately thirty-five miles per hour immediately before impact. When he saw appellant coming toward him from his left, he slammed on his brakes, but could not avoid the collision. Wayne Hughes, who was driving directly behind Boubenider, testified that appellant turned into on-coming traffic, and failed to yield the right of way. Hughes affirmed that Boubenider was driving approximately thirty-five to forty miles per hour at the time of the accident and that he could not have avoided the collision. Deputy H.A. Mifflin and Deputy Suzanne Cotter, both from the Harris County Sheriff=s Department, reconstructed the accident from the skid marks and the damage to both vehicles and estimated Boubenider was driving approximately forty-five to forty-six miles per hour immediately before impact.

The jury disregarded appellant=s version of her condition and fault in the accident as was its right. Moore v. State, 804 S.W.2d 165, 166 (Tex. App.CHouston [14th Dist.] 1991, no pet.) (holding jury is entitled to accept the State=s version of the facts and reject appellant=s version or reject any of the witnesses= testimony). We find the verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Jury Argument

In her third issue, appellant argues the prosecution misstated the evidence during final argument. Specifically, appellant contends the prosecution=s argument forced the jurors to consider speculative and extraneous matters when determining appellant=s guilt or innocence. The prosecution stated, in relevant part:

And, ladies and gentlemen of the jury, I submit to you that this is not the message we want to send to the people in Harris County that this kind of behavior is acceptable. Because it=s not. Because, frankly, when I read to you the charge of what Mrs. Newkirk was charged with, it=s called the indictment. And the last words that I read to you were against the peace and dignity of the State. And don=t we all deserve to live in a peaceable and dignified state where we can drive down the roads and hope that the other people on the roads are abiding by the same laws and conditions we are suppose to abide by? And hope that when we get in the car that the other drivers on the road are responsible for not only our lives, but their own lives. And that their blood alcohol levels are lower than .08 and they have their mental and physical faculties. Those are things we just hope that happens because don=t we know driving in Houston is dangerous enough. But now alcohol on top of it. And not just a little alcohol, nearly three times what it takes to be intoxicated and lose your mental and physical faculties as Debby Stevens said. Sometimes you read the papers and you read about these intoxication cases where someone has been seriously injured or killed. And you read these things. You ask yourselves.

MR. STILLER (appellant=s counsel): Objection, Your Honor. It=s arguing outside the record.

THE COURT: Overruled.

MS. KOLSKI (the State=s attorney): And you ask yourselves, they should do something about this. Or you say that to someone or you see that on T.V. or you feel that way . . . So when you ask yourselves they should do something about this, you 12 people are the they.

(Emphasis added).

The purpose of closing argument is to facilitate the jury=s analysis of evidence presented at trial to arrive at a just and reasonable conclusion based on the evidence alone and not on any fact not admitted into evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980). The four permissible areas of jury argument consist of summation of the evidence, answer to argument of opposing counsel, deduction from the evidence, and pleas for law enforcement. Mijores v. State, 11 S.W.3d 253, 257 (Tex. App.CHouston [14th Dist.] 1999, no pet.). An argument that exceeds these bounds is erroneous. Felder v. State, 848 S.W.2d 85, 94B95 (Tex. Crim. App.1992). However, in making jury argument, wide latitude is allowed without limitation in drawing inferences from the evidence, so long as the inferences drawn are reasonable, fair, legitimate, and offered in good faith. Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988).

First, it is common knowledge that in this state each year, many people are killed or seriously injured in automobile collisions as a result of alcohol intoxicated drivers. English v. State, 828 S.W.2d 33, 38 (Tex. App.CTyler 1991, pet. ref=d). Statements of common knowledge are an exception to the rule against arguing facts outside the evidence. Nenno v. Sate, 970 S.W.2d 549, 559 (Tex. Crim. App. 1998).

Second, it is clear from the context of the prosecutor=s argument, that she was making a proper plea for law enforcement. See Smith v. State, 846 S.W.2d 515, 517 (Tex. App.CHouston [14th Dist.]1993, pet. ref=d) (holding the following argument was a proper plea for law enforcement: You often hear people say, >What are they doing down there at the courthouse? The whole system has gone crazy. What are they doing down there that it=s gotten this way?= Well, today, folks, you are the >they,= so don't be fooled by argument by the defense. ).

Accordingly, appellant=s third issue is overruled.

Ineffective Assistance of Counsel

In her fourth issue, appellant complains her counsel was ineffective for failing to object to the prosecutor=s use of a hypothetical scenario during voir dire. Specifically, the State=s attorney asked prospective jurors if they could return a conviction for intoxication assault if the victim was a member of the defendant=s family and a passenger in the defendant=s automobile, as opposed to a third party in another vehicle. Some prospective jurors disagreed with the law and admitted they would have difficulty enforcing the law if the evidence showed the injured party was a family member or passenger of the defendant.

We find no error in the prosecutor=s question. However, even if the question were been improper, appellant failed to meet the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 688B93 (1984).

Under Strickland, appellant must demonstrate (1) counsel=s performance was deficient and not reasonably effective and (2) the deficient performance prejudiced the defense. Id. Essentially, appellant must show his counsel=s representation fell below an objective standard of reasonableness, based on prevailing professional norms, and there is a reasonable probability that, but for his counsel=s unprofessional errors, the result of the proceeding could have been different. Id. at 693; Valencia v. State, 946 S.W.2d 81, 83 (Tex. Crim. App. 1997).

Judicial scrutiny of counsel=s performance must be highly deferential and we are to indulge a strong presumption that counsel was effective. Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). We presume counsel=s actions and decisions were reasonably professional and that they were motivated by sound trial strategy. Id. Moreover, to rebut this presumption, appellant must show, by a preponderance of the evidence, why trial counsel did what he did. Id. Any allegation of ineffectiveness must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. McFarland v. State, 928 S.W.2d 482, 500 (Tex. Crim. App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998). If the record contains no evidence of the reasoning behind trial counsel=s actions, we cannot conclude counsel=s performance was deficient or speculate about the reasons behind trial counsel=s actions. Jackson, 877 S.W.2d at 771.

If appellant proves his counsel=s representation fell below an objective standard of reasonableness, he still must affirmatively prove prejudice as a result of those acts or omissions. Strickland, 466 U.S. at 693; McFarland, 928 S.W.2d at 500. Counsel=s errors, even if professionally unreasonable, do not warrant setting the conviction aside if the errors had no effect on the judgment. Strickland, 466 U.S. at 691. Appellant must prove that counsel=s errors, judged by the totality of the representation, denied him a fair trial, or his claim fails. McFarland, 928 S.W.2d at 500.

Appellant fails to provide this Court with any evidence to affirmatively demonstrate the ineffectiveness of his trial counsel. She did not file a motion for new trial, and the record contains no evidence of the reasoning behind her trial counsel=s action in failing to object to the prosecutor=s voir dire. Thus, appellant has failed to rebut the presumption that counsel=s actions were reasonably professional and motivated by sound trial strategy. Additionally, appellant has not demonstrated that trial counsel=s performance prejudiced her defense. Appellant=s fourth issue is overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed June 19, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).