Billy Jack Day v. The State of Texas--Appeal from 6th District Court of Lamar County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-02-00122-CR
______________________________
BILLY JACK DAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court
Lamar County, Texas
Trial Court No. 18040
Before Ross, Carter, and Cornelius,* JJ.
Opinion by Justice Cornelius

*William J. Cornelius, C.J., Retired, Sitting by Assignment
O P I N I O N

Billy Jack Day was indicted for intoxication manslaughter in the death of Brea Spencer. He was tried and convicted by a jury, which assessed his punishment at twelve years' confinement. The jury also found affirmatively that Day used a deadly weapon in committing the offense.

Day appeals, raising two points for reversal: (1) the evidence is factually insufficient to support the jury's verdict, and (2) it was error to include a deadly weapon finding in the judgment because the acts constituting the use of a deadly weapon for this offense are already an essential element of the offense itself.

Day does not raise a legal sufficiency of the evidence point. Under the first point, Day argues that the evidence is factually insufficient to prove that he was intoxicated at the time of the accident that killed Spencer, and he also argues that it is factually insufficient to prove that his intoxication was the cause of the accident. We overrule these contentions and affirm the judgment.

In reviewing the evidence for factual sufficiency, we view all of the evidence in a neutral light and determine whether the evidence, both for and against the verdict, is so weak as to undermine confidence in the verdict, or the proof of guilt, although adequate if considered alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

Day and his girlfriend, Brea Spencer, went to the home of their friends Michael and Candy Hoskins to prepare to go with the Hoskinses to a bar in Paris called the Longhorn Club. Day and Spencer showered at the Hoskinses' home and prepared to go to the club from there because the power was off at their residence. While at the Hoskinses, Day, Spencer, and the Hoskinses were drinking various alcoholic beverages. Specifically, Day was drinking beer and Crown Royal whiskey. Day and Spencer arrived at the Hoskinses' house at approximately 6:00 or 6:30 p.m. They all left for the club somewhere between 9:00 and 11:00 p.m. At the club, Day continued to drink, having at least one shot of tequila and one beer. After Day and his friends had been at the club for a short while, Doug Johnson, a friend of Spencer, came in. He went over to Spencer and danced with her. Day was angry about this, but did not create a disturbance at the time. Johnson told Spencer he needed to take his mother's van to her home and needed someone to go with him to bring him back to the club. Despite Day's displeasure, Spencer insisted that she and Day provide the ride back for Johnson. Johnson drove the van to his mother's home. Day and Spencer followed Johnson in Spencer's car, with Day driving. It was approximately a fifteen-minute drive. They left the van at Johnson's mother's home and began the trip back to the club. Day, again, was driving Spencer's car. Johnson was in the back seat, and Spencer was in the front passenger's seat. The road was under construction. It was dark, and there was a dangerous curve at the construction site. Day drove at a high rate of speed. According to Johnson, Day drove 100 miles per hour at one point. When Day approached the curve, Johnson and Spencer asked him to slow down, warned him there was a dangerous curve ahead, and screamed at him to slow down. Johnson looked at the speedometer at that point, and it showed ninety miles per hour. Instead of slowing down, Day speeded up. He was unable to control the car on the curve. He ran the car over a concrete culvert, it became airborne, hit another concrete culvert, and came to rest against a piece of road-building equipment. The impact with the second culvert was so strong that the culvert, which weighed 17,000 pounds, was moved twenty-one feet from its original location. The car then caught fire. Spencer was killed; Johnson and Day were seriously injured.

We first consider Day's contention that there is factually insufficient evidence that he was intoxicated at the time of the accident. When the accident occurred, intoxication was defined in Texas law as:

A. not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; or

 

B. having an alcohol concentration of 0.10 or more.

 

Act of May 29, 1993, 73rd Leg., R.S., ch. 900, 1.01, 1993 Tex. Gen. Laws 3586, 3696.

We find factually sufficient evidence to support a finding that, at the time of the accident, Day was intoxicated under both definitions. There is testimony that Day engaged in several hours of drinking beer and whiskey before he left the Hoskinses' house to go to the Longhorn Club; that he consumed nearly an entire bottle of Crown Royal whiskey and that he was already intoxicated when he left the Hoskinses to go to the club; that he continued to drink while he was at the club; that he spent an hour or so at the club; and that he was intoxicated when he left with Spencer to go with Johnson to return the van. Both Michael and Candy Hoskins testified that Day was intoxicated before he went with Spencer to take Johnson to return the van. Testimony showed it took only about fifteen minutes to drive from the club to Johnson's mother's house. Michael and Candy Hoskins testified Day was intoxicated when they all left their house to go to the club, and they based their opinions on the amount of alcohol he had consumed and because of the angry attitude he always had when he was intoxicated.

Paramedics Brad Bolton, Kelly Newman, and Sam Martin, who responded to the accident and gave emergency treatment to Day and Johnson, all testified that, in their opinions, Day was intoxicated when they observed him at the accident scene. They based their opinions on Day's slurred speech, glazed eyes, strong smell of alcohol, and his preoccupation with his own condition rather than the conditions of the other accident victims, a trait they said was typical for intoxicated persons. On cross-examination, these witnesses conceded that shock might cause a person to exhibit some of these same symptoms, but stated they were convinced that Day's condition was the result of intoxication, not shock.

Additionally, a blood alcohol test made at the hospital at 3:00 a.m. (the accident occurred at approximately 12:30 a.m.) showed Day to have a blood alcohol content of 0.10. Jose Zuniga, a criminologist with the Texas Department of Public Safety, testified at length about the variables involved in the elimination of alcohol from the system. He opined that, applying the elimination rate, if Day drank no more alcohol after 12:00 midnight, a measured 0.10 alcohol content at 3:00 a.m. would indicate that his blood alcohol concentration at 1:00 a.m. would have been 0.14.

Day also contends there is factually insufficient evidence to support the conclusion that his intoxication caused the accident that resulted in Spencer's death. We disagree. Undisputed testimony from Johnson showed that Day was intoxicated when he left the club; that on the way back from Johnson's mother's house, Day was driving at extremely high speeds in a construction area on a curving road at night; that Johnson and Spencer repeatedly screamed at Day to stop driving so fast; and that, when Johnson warned there was a dangerous curve ahead and Day could not negotiate it at that speed, Day ignored the warning and even speeded up and was travelling at least ninety miles per hour. This evidence of reckless and dangerous driving, coupled with Day's heedless disregard of Johnson's and Spencer's warnings and pleadings to slow down, is factually sufficient to support a conclusion that Day's intoxication caused the car crash and Spencer's resulting death. See Sanchez v. State, 398 S.W.2d 117, 120 (Tex. Crim. App. 1965); Martinez v. State, 66 S.W.3d 467 (Tex. App.-Houston [1st Dist.] 2001, pet. ref'd); Glauser v. State, 66 S.W.3d 307, 313 (Tex. App.-Houston [1st Dist.] 2000, pet. ref'd); Thomas v. State, 756 S.W.2d 59, 61 (Tex. App.-Texarkana 1988, pet. ref'd).

In his second point, Day contends it was error to include a deadly weapon finding in the judgment because the actions that constitute the use of a deadly weapon in intoxication manslaughter are an essential element of the offense itself. This exact contention has been rejected by the courts. Martinez v. State, 883 S.W.2d 771 (Tex. App.-Fort Worth 1994, pet. ref'd); see also Thomas v. State, 2 S.W.3d 640, 642 (Tex. App.-Dallas 1999, no pet.).

For the reasons stated, we affirm the judgment.

William J. Cornelius*

Justice

 

*Chief Justice, Retired, Sitting by Assignment

 

Date Submitted: September 8, 2003

Date Decided: September 10, 2003

 

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