Benito Vicente Lazarine v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-03-00206-CR
Benito Vicente LAZARINE,
Appellant
v.
The STATE of Texas,
Appellee
From the 144th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CR-0271
Honorable Mark R. Luitjen, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Paul W. Green, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: December 22, 2004

AFFIRMED

Benito Vicente Lazarine was convicted of intoxication manslaughter and failure to stop and render aid. On appeal, he claims the trial court erred in denying his motions to suppress, in finding sufficient evidence to convict, and in its instructions and charge to the jury. He also claims that the State's notice of intent to seek a deadly weapon finding was insufficient. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the conviction in this memorandum opinion under Tex. R. App. P. 47.4.

The Motions to Suppress

Lazarine claims the trial court erred by denying his motions to suppress certain evidence that was obtained without a warrant. He challenges the legality of the officers' warrantless search of the house, the carport and the car, and also his warrantless arrest and the taking of blood samples from him without his consent.

1. The search of the carport and exterior of the car. Lazarine did not own the house and lot where the carport was located, or the car that was found in the carport. Absent an ownership interest, he failed to establish any other basis for a reasonable expectation of privacy in either the carport or the contents of the car. See Goldberg v. State, 95 S.W.3d 345, 364 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd); Kann v. State, 694 S.W.2d 156, 159-60 (Tex. App.-Dallas 1985, pet. ref.'d). Moreover, the vehicle and its identifying registration plate were plainly visible to the officers from the street. A warrant to inspect the exterior of the car in the carport was therefore unnecessary. See Blount v. State, 965 S.W.2d 53, 55 (Tex. App.-Houston [1st Dist.] 1998, pet. ref'd).

2. The search of the house and the interior of the car. The search of the house and the interior of the car were done pursuant to a voluntary consent-to-search given by the owner of the house and the car. Although the testimony conflicts on whether the search was actually by consent, the trial court believed that it was. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000) (fact finder is exclusive judge of credibility and may believe or disbelieve any part of witness's testimony). Giving credit to the trial court's finding on consent, we hold the officers' warrantless search of the house and car was not improper. See Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002).

3. The warrantless arrest. Lazarine claims his warrantless arrest in the house was illegal, and the items seized from him as a result of his arrest should have been suppressed. Lazarine's warrantless arrest in the house was not improper because the officers had consent to enter the house. See Goldberg v. State, 95 S.W.3d 345, 362 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd); Tex. Code Crim. Proc. Ann. art. 14.05(1) (Vernon 2003). In the house, Lazarine was found under circumstances which reasonably showed him to be guilty of a felony and breach of the peace. Accordingly, his warrantless arrest was justified. See Tex. Code Crim. Proc. Ann. art. 14.03(a)(1) (Vernon Supp. 2003).

4. The blood draw. The evidence supported the taking of a blood draw from Lazarine without his consent. The police had reasonable grounds to believe Lazarine was intoxicated while operating a motor vehicle in a public place. The officers were thus statutorily authorized to compel the taking of blood samples. See Tex. Transp. Code Ann. 724.012(a) (Vernon 1999).

5. The blood test results. Lazarine also says the trial court erred by denying his motion to suppress evidence of his blood alcohol content. Because personal characteristics of Lazarine were known and the tests were conducted a reasonable length of time apart, the trial court acted within its discretion in admitting the blood alcohol test results in conjunction with the retrograde extrapolation evidence. See Mata v. State, 46 S.W.3d 902, 916-17 (Tex. Crim. App. 2001).

Insufficiency of the Evidence to Convict

Lazarine claims the evidence of intoxication was insufficient to support a conviction for intoxication manslaughter. He also says the evidence was insufficient to show that his intoxication was the cause of the victim's death.

1. Intoxication manslaughter. Lazarine's complaint is that the evidence of intoxication at the time of the offense was unreliable and was, therefore, legally and factually insufficient to support a conviction. We have already held that the blood-alcohol evidence was admissible. This evidence, together with the scientific retrograde extrapolation evidence, the evidence of his alcohol consumption before the collision, the evidence of his failure to stop before colliding with a pedestrian, the evidence that he fled after the collision, and the evidence he failed field sobriety tests, would lead a rational fact finder to conclude that Lazarine was intoxicated when the collision occurred. It is sufficient to support Lazarine's intoxication manslaughter conviction. See Tex. Penal Code 49.08; Jackson v. Virginia, 443 U.S. 307, 319 (1979); Ochoa v. State, 119 S.W.3d 825, 827 (Tex. App.-San Antonio 2003, no pet.).

2. Causation. Lazarine also says the evidence does not support a finding that the victim's death was the result of Lazarine's intoxication. The evidence described above is also sufficient to lead a rational fact finder to conclude that the victim's death occurred because of Lazarine's impairment. See Jackson, 443 U.S. at 319; Ochoa, 119 S.W.3d at 827.

The Jury Charge

Lazarine says the trial court erred in instructing the jury on the definition of causation and the elements of concurrent cause. The charge states, "if you have reasonable doubt thereof that concurrently with the conduct of the defendant another cause was or causes were clearly sufficient to produce the result of death...you will find the defendant not guilty." This language applied the law of causation to the facts of this case, and guided the jury to resolve the legal issue of concurrent causation properly. See Tex. Penal Code 6.04.

Yet, regardless of the charge, in order for concurrent causation to be raised by the evidence, there must be both evidence that a concurrent cause was sufficient to cause the result and that the conduct of the defendant was clearly insufficient to cause the result. See Hutcheson v. State, 899 S.W.2d 39, 42 (Tex. App. -Amarillo 1995, pet ref'd). Here, no evidence shows Lazarine's conduct was clearly insufficient to cause the victim's death; therefore, the issue of concurrent causation was not raised.

Lazarine further says the trial court erred by using a general charge regarding the deadly weapon rather than instructing the jury on each of his convictions. The charge instructed the jury on the effect of a deadly weapon to the intoxication manslaughter offense. However, because the theories of prosecution contained in the two counts of the indictment are interrelated, notice of one count is sufficient to give notice of the other count and Lazarine suffered no egregious harm by the court's use of a general charge. See Grettenberg v. State, 790 S.W.2d 613, 614-15 (Tex. Crim. App. 1990); Almanza v. State, 686 S.W.2d 157, 161 (Tex. Crim. App. 1985).

Lazarine also complains the trial court erred in not instructing the jury on the State's burden of proof regarding reasonable doubt on the issue of the deadly weapon. There was no objection to this failure. While such an instruction may have been required, the charge, viewed as a whole, properly informed the jury of the reasonable doubt standard. Any error was harmless. See Gowans v. State, 995 S.W.2d 787, 793-94 (Tex. App.-Houston [1st Dist.] 1999, pet. ref'd).

Notice of Deadly Weapon Finding

Finally, Lazarine claims the State's notice of intent to seek a deadly weapon finding was insufficient. However, the indictment alleged the use of a motor vehicle in the commission of the offense. We hold that this allegation is sufficient. See Grettenberg, 790 S.W.2d at 614 ("[A]ccused persons are only entitled to notice, in some form, that the use of a deadly weapon will be a fact issue at the time of trial.") (italics in original).

Conclusion

For the above reasons, all of Lazarine's issues are overruled. The judgment of the trial court is affirmed.

Paul W. Green, Justice

DO NOT PUBLISH