Randall Lynn Maynard 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

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No. 06-03-00029-CR

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RANDALL LYNN MAYNARD, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 6th Judicial District Court

Lamar County, Texas

Trial Court No. 18395

Before Morriss, C.J., Ross and Carter, JJ.

Opinion by Justice Carter

O P I N I O N

On October 11, 2002, a Lamar County jury convicted Randall Lynn Maynard of intoxication manslaughter // and assessed his punishment at forty-five years in the Texas Department of Corrections Institutional Division. The trial court denied Maynard's motion for new trial, after which he timely perfected his appeal to this Court, bringing forth two points of error. Maynard complains that the evidence was insufficient to sustain his conviction for intoxication manslaughter and jury misconduct prevented him from receiving a fair trial. He contends the trial court abused its discretion by overruling his motion for new trial on these grounds.

Standards of Review

Analysis of the factual sufficiency of the evidence is not required if the issue is not specifically raised. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). Since it is unclear as to whether Maynard refers to legal or factual sufficiency, we are authorized to limit our analysis to legal sufficiency of the evidence. See Dorsey v. State, 940 S.W.2d 169, 173 (Tex. App. Dallas 1996, pet. ref'd). In the interest of fairness, however, we will address and employ the standards for reviewing both legal and factual sufficiency.

The standard of review for assessing the legal sufficiency of the evidence is whether, after viewing the evidence in a light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). When reviewing the factual sufficiency of the evidence to support a conviction, we must view the evidence in a neutral light and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust. Johnson v. State, 23 S.W.3d 1, 6 7 (Tex. Crim. App. 2000). We determine whether a neutral review of all the evidence, both for and against the verdict, demonstrates that either the proof of guilt is so obviously weak as to undermine confidence in the jury's determination or that the proof of guilt, although adequate if standing alone, is greatly outweighed by contrary proof. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000); Johnson, 23 S.W.3d at 11.

We review a trial court's denial of a motion for mistrial based on juror misconduct for an abuse of discretion. Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). The reviewing court does not substitute its judgment for that of the trial court, but rather decides whether the trial court's decision was arbitrary or unreasonable. Id. The trial court is the sole judge of the credibility of the testifying jurors. Thomas v. State, 699 S.W.2d 845, 854 (Tex. Crim. App. 1985). Where there is conflicting evidence on an issue of fact as to jury misconduct, the trial court determines the issue, and it is not an abuse of discretion to overrule the motion for new trial. Id.

Factual History

Viewed in a light most favorable to the verdict, the facts of this case depict the following sequence of events: On May 12, 2000, at approximately 8:00 p.m., Maynard went to Jimmy Marion's house in Paris, Texas. Marion was married to Maynard's cousin, Shawna Marion. Maynard and Marion visited and drank beer for approximately one and one-half hours. The two men left the residence at approximately 9:30 p.m. to use the telephone down the street. Ten minutes later, they returned to Marion's house, where they continued to drink beer until approximately 10:30 p.m. They then went to shoot pool and have a drink at the bowling alley, where they stayed for approximately thirty minutes.

From the bowling alley, Maynard and Marion went to Baby Dolls, a strip club at the outskirts of Paris. Marion's sister-in-law, Selina Noel, saw the two men at the club and testified that, while at the strip club, Maynard was behaving obnoxiously cursing and being loud. This conduct was reported to a bouncer at the club, who asked Maynard to leave. Outside the club, Maynard became aggressive and combative toward the bouncer. Marion, on the other hand, acted in a calm manner and wanted to leave without further incident. Marion helped the bouncer get Maynard into the passenger's side of the vehicle. At approximately 11:30 or 11:40 p.m., Marion drove the truck away from the club. According to the bouncer, however, the vehicle stopped at the end of the club's parking lot. The two men exited the vehicle, switched positions, and then continued driving away, now with Maynard at the wheel.

No one knew the whereabouts of the two men after they left the club until approximately 12:23 a.m., when two men, Phillip Strickland and Chad Bramblett, came upon a one-car accident on FM 196 approximately two miles south of FM 195. According to Strickland and Bramblett, both Maynard and Marion were located outside the vehicle, lying on the road. One man was near the vehicle on the passenger's side, and the other a short distance from the vehicle toward the middle of the road. Neither man appeared conscious. The car caught fire very soon after the two men arrived at the accident scene. The two men pulled the man near the passenger's side of the vehicle away from his location near the burning car. According to Bramblett, it was obvious the man near the car was already deceased. Strickland woke the other man. Danya Heise, another passerby whom Strickland and Bramblett flagged down, instructed Maynard not to move and told him she was going to call the police. To this, Maynard protested calling the police, got up from the road, and wandered into the nearby wooded area.

Volunteer firefighters arrived shortly thereafter, followed by Trooper James Kain of the Texas Department of Public Safety (DPS) at 12:30 a.m. Paramedics arrived at 12:38 a.m. and confirmed that one occupant of the vehicle was deceased. Kain identified the deceased man as Jimmy Marion through an identification card on his person, and he and Captain L. D. Ruthart of the Lamar County Sheriff's Office then began a search for the other occupant. Ten minutes later, Ruthart found the other occupant, identified as Maynard, lying in a ditch beside the road 228 feet from the accident scene. Paramedics immobilized Maynard, placed him in an ambulance, and, at Kain's request, drew blood from Maynard before transporting him to the hospital.

Maynard was treated for minor injuries at the hospital. Blood samples taken at the hospital revealed that Maynard had a .16 blood alcohol content. Kain arrived at the hospital an hour or two later. He asked Maynard where Marion was in the car, and Maynard responded Marion was a passenger. // Maynard also told Kain he had pulled Marion out of the car. Results of the DPS tests performed on the blood taken at the accident scene yielded a blood alcohol content of .17.

As part of the investigation of the accident, several photographs were taken of the scene, depicting the damage to the vehicle, the position of Marion's body in relation to the car, and the marks indicating the nature of the impact. Later, by examining the accident scene, Kain and Lieutenant Bob Hundley of the Paris Police Department also gathered measurements to create a computer-generated diagram representing the trajectory and points of impact associated with the accident.

Sufficiency of the Evidence

One commits intoxication manslaughter if he or she operates a motor vehicle in a public place while he or she was intoxicated and that, by reason of that intoxication, caused the death of another by accident or mistake. Tex. Pen. Code Ann. 49.08 (Vernon 2003). Maynard challenges the proof pertaining to only one of these elements, contending the State failed to present evidence that proves beyond a reasonable doubt he was operating the vehicle at the time of the accident.

Maynard relies primarily on two cases to support his contention the evidence is insufficient to establish he was the driver at the time of the accident. First, Maynard points to Young v. State, 544 S.W.2d 421 (Tex. Crim. App. 1976). In Young, police arrested the driver of a car with two passengers and, at the driver's request, left the keys with Young. Id. at 422. Approximately one hour later, the officers were called to the scene of a two-car accident involving this same car. Id. The car had flipped over, but both occupants survived. Id. A witness who from his home saw the accident occur testified that he went to the overturned car and saw that Young was toward the front and the other occupant was toward the back. Id. With no other evidence Young was driving the vehicle at the time of the accident, the Texas Court of Criminal Appeals reversed his conviction for murder without malice. // Id. at 424.

Maynard also relies heavily on Coleman v. State, 704 S.W.2d 511 (Tex. App. Houston [1st Dist.] 1986, pet. ref'd), in which the court reversed a driving while intoxicated conviction based on insufficient evidence to establish that the appellant was driving the vehicle involved in a two-car accident. In response to an officer's questions at the accident scene, Coleman stated he had been driving. Id. at 511. Coleman also told another officer he had "run into" the vehicle in front of him. Id. Aside from these extrajudicial confessions, there was no evidence presented that Coleman was the driver of the vehicle at the time of the accident. Id. As a result, the court reversed his conviction. Id. at 512.

Legal Sufficiency

Marion's widow, Shawna, testified that Marion rarely drove and that he did not have a driver's license. Maynard had been driving the vehicle involved in the accident earlier in the day. The bouncer at the club where the two men were last seen testified that, while Marion first drove the car from the club, the two men exited the vehicle, crossed behind the car to switch positions, and Maynard drove off the club parking lot.

Testimony of Strickland and Bramblett, the two men who first arrived at the accident scene, that Marion's body was positioned near the passenger's side of the car supports the conclusion that Maynard was driving the vehicle at the time of the accident. Marion's position is confirmed by the fact that his blood was pooled near the passenger's side door. Maynard's flight from the accident scene on hearing that witnesses were going to summon the police and his subsequent reluctance to talk to the police indicate he was driving the vehicle and feared what might happen as a result of his involvement.

The investigation of the accident revealed that the vehicle left the road at a forty-five-degree angle and collided with trees alongside the road. The initial impact occurred at the front of the car on the passenger's side. The momentum of the car caused it to spin into a second impact at the passenger's side of the car. The third and final impact along the tree line occurred at the rear of the car and sent it another thirty-two feet back toward the road, leaving the car in the position in which it was found partially on the road. The points of impact are consistent with substantial damage to the passenger's side of the vehicle as reflected in the photographs taken of the accident scene. It stands to reason that a person located in the passenger's seat of the vehicle could sustain far more substantial injuries than a person located elsewhere in the car. // Maynard was treated for minor injuries from the accident; Marion suffered "major" skull fractures caused by blunt force trauma. Indeed, this conclusion was confirmed by the conversation at the hospital in which Maynard told Kain that Marion was a passenger in the car.

Additionally, Shawna managed to place a call to the jail and spoke with Maynard later on the day of the accident. Shawna testified Maynard told her something popped up in the road and he swerved. When asked by counsel to clarify to whom "he" referred to in the original conversation, Shawna made clear that Maynard told her it was Maynard who swerved. In the letter to his cousin Shawna, Marion's widow, Maynard apologizes "that this happened" and that he asks himself every night "why him" and "not me." Although not conclusive, a rational trier of fact could conclude that such statements tend to show he feels guilt associated with his role in the accident.

These facts distinguish Maynard's case from both Young and Coleman. Again, the court in Young employed the now defunct outstanding reasonable hypothesis analysis to arrive at the conclusion the evidence was insufficient. Young, 544 S.W.2d at 423. Second, according to the witnesses' accounts, the positions of the occupants of the vehicle after the accident are less certain in Young as they are on these facts. See id. at 422. While Young is similar in that there was a time period in which there is no direct testimony as to who was driving, Young lacks any evidence as to the nature of the injuries, any admission as to being the driver, and any testimony from the other occupant. Coleman, too, is easily distinguished. It is marked by an absence of any evidence that Coleman was the driver other than his statements at the scene of the accident. Here, the record contains a great deal more evidence that Maynard was the driver.

The case before the Court is most analogous to Redmond v. State, 30 S.W.3d 692 (Tex. App. Beaumont 2000, pet. ref'd). Redmond was convicted of intoxication manslaughter after her truck, occupied by herself and two others, collided with another vehicle. Id. at 695. As she was leaving the scene in an ambulance, she stated to a DPS trooper, "I was going down the road." Id. The trooper then asked her to confirm she was the driver, and she nodded in the affirmative. Id. Maynard made similar confessions to Trooper Kain and also to Marion's widow. Another of the occupants of Redmond's truck testified she was the driver. Id. Additionally, Redmond sustained injuries one would expect from being a driver of a vehicle in a collision of that nature. Id. at 695 96. Here, the converse is true. Maynard suffered virtually no injuries, while Marion sustained the massive head injuries consistent with being in the passenger's position when the vehicle hit the trees.

One of the occupants of Redmond's truck testified Redmond was the driver. Id. at 695. Here, however, the Court does not have the benefit of an occupant's testimony as to who was driving. Instead, the Court is limited to testimony of the bouncer as to who was driving approximately forty-five minutes before the accident, coupled with the physical evidence at the scene that supports the bouncer's testimony, and Maynard's own admissions. Viewing the evidence in a light most favorable to the jury's verdict of guilty, we conclude the evidence is sufficient to enable a rational jury to conclude Maynard was driving the vehicle at the time of the accident and overrule Maynard's contention to the contrary.

Factual Sufficiency

Maynard contends the bouncer's testimony that he saw Maynard and Marion switch positions at the edge of the club's parking lot is undermined by the photographs taken at the Baby Dolls' premises. Maynard maintains the bouncer could not have seen such a switch from such a distance and at such a vantage point. However, as the State points out, the record does not clearly indicate the bouncer's exact location when he saw the men exit the vehicle. Therefore, the photographs do little to undermine the bouncer's testimony. Additionally, the jury was well within its authority in resolving any conflict raised by the photographs and the testimony.

Maynard also makes much of the fact that photographs taken at the accident scene show that the passenger's side door is open and the driver's side door is closed. He argues he opened the passenger's side door and pulled Marion from his position in the driver's seat through the passenger area and out the passenger door. However, the State counters with the explanation, supported by Maynard's testimony at the hospital and other evidence, that he opened the passenger's side door when he pulled Marion from the passenger's seat.

A neutral review of the evidence does not convince us that the proof of guilt is so weak as to undermine our confidence in the jury's determination. Additionally, the evidence that would tend to show that Maynard was not the driver does not greatly outweigh the testimony, physical evidence, and Maynard's own admissions that tend to prove he was the driver of the vehicle at the time of the accident. We overrule Maynard's point of error challenging the factual sufficiency of the evidence. Juror Misconduct

Maynard also contends he was denied a trial by an impartial jury since one of the jurors had a conversation with his mother related to the case. Therefore, he argues, the trial court abused its discretion when it overruled his motion for new trial based on juror misconduct.

Conversations about the pending case between jurors and other persons are prohibited except in the presence of or with the permission of the court. Tex. Code Crim. Proc. Ann. art. 36.22 (Vernon 1981). A violation of this rule gives rise to a rebuttable presumption of harm and requires the granting of a new trial absent sufficient rebuttal. McMahon v. State, 582 S.W.2d 786, 793 (Tex. Crim. App. 1978) (en banc); Williams v. State, 463 S.W.2d 436, 440 (Tex. Crim. App. 1971).

Maynard complains of an alleged conversation between juror Ricky Golden and Golden's mother regarding the moral impact associated with strip clubs like Baby Dolls. The juror's mother testified that she and her son had a conversation over dinner and that she made known her opinion that clubs like Baby Dolls corrupt young people. The juror, on the other hand, denies that the conversation took place and that he upheld his oath as a juror not to talk about the case.

Before we can assess the sufficiency of the State's rebuttal, we must first determine whether a violation of Article 36.02 occurred. As stated, the trial court is the sole judge of the credibility of the testifying jurors. Thomas, 699 S.W.2d at 854. When the trial court has before it conflicting evidence on a fact issue as to juror misconduct, the trial court determines the fact issue and does not abuse its discretion by overruling the motion for new trial. Id.

Here, there was conflicting testimony heard on whether the conversation took place as alleged. Golden testified that his mother was in the courtroom the whole time and that the two never had a conversation about the case because, "I was sworn in not to tell." While his mother testified that she and her son did talk about Baby Dolls, the trial court, not the appellate court, judges the credibility of the witnesses. It was within the trial court's sound discretion to determine that no prohibited conversation occurred. See Bratcher v. State, 771 S.W.2d 175, 190 (Tex. App. San Antonio 1989, no pet.). Therefore, there is no need for us to address the sufficiency of the State's rebuttal of the harm presumed on a violation of Article 36.02. The trial court did not abuse its discretion in overruling Maynard's motion for new trial.

Conclusion

Since we find evidence in the record to be legally and factually sufficient to establish that Maynard was operating the vehicle at the time of the accident, we overrule Maynard's first point of error. We also overrule Maynard's contention that the trial court abused its discretion when it overruled his motion for new trial. When the trial court is confronted with conflicting evidence concerning alleged juror misconduct, resolution of the conflict is within the trial court's sound discretion.

Accordingly, we affirm the judgment.

Jack Carter

Justice

Date Submitted: December 4, 2003

Date Decided: December 17, 2003

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