Marcus Rodney Vandermeer v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-93-247-CR

&

No. 10-93-248-CR

MARCUS RODNEY VANDERMEER,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court Nos. 20022-CR & 20023-CR

O P I N I O N

In a combined trial of two separate indictments, the jury found Marcus Vandermeer guilty of the involuntary manslaughter of two victims of a car wreck and assessed punishment at ten years' imprisonment in each cause, probated for ten years. See Tex. Penal Code Ann. 19.05(a)(1) (Vernon 1989). As a condition of probation, the court ordered Vandermeer to pay $32,475.54 restitution in cause number 10-94-247-CR. See Tex. Code Crim. Proc. Ann. art. 42.12, 11(a)(8), (b) (Vernon Supp. 1995). He appeals from each cause; thus, we combine the appeals for disposition. In the first of five points of error, Vandermeer argues that the evidence is insufficient to support his convictions. // In point two he complains that the court admitted evidence of statements he made to police. By point three he argues that the court erred in denying him a mistrial after the prosecutor indicated to the jury during closing argument that the lesser-included offense of negligent homicide was a misdemeanor. See Tex. Penal Code Ann. 19.07. In the last two points, he complains about the court's restitution order, claiming that the order was error and an abuse of discretion. We will affirm.

Vandermeer and Christina Tucker drove to Austin from Dallas on May 22, 1993, to attend a party for a friend who had graduated from the University of Texas. After the party, they left Austin to drive back to Dallas, leaving Austin between 11:00 and 11:30 p.m. Just north of Waxahachie, at approximately 1:30 a.m. on May 23, Vandermeer drove his pickup truck onto the shoulder of I-35 striking a parked car. Two people were inside the car when it was hit Karen Stracener, the driver, died within minutes of the collision; William Daniel, the passenger, died later that day at a hospital. Tucker was also severely injured, but Vandermeer suffered only a broken nose.

The Ellis County grand jury issued two indictments against Vandermeer, each with two paragraphs. The indictments are identical except for the victims: the first indictment, cause number 10-93-247-CR, charges him with the death of Daniel, while the other cause involves the death of Stracener. Paragraph one of each indictment charges that Vandermeer caused the deaths because he was operating his vehicle while intoxicated. See id. 19.05(a)(2). The second paragraph in both indictments charge that he caused their deaths by "recklessly . . . driving his vehicle off of the main traveled portion of the roadway of I35E, onto the shoulder of same when a parked car was then and there located . . . . " See id. 19.05(a)(1). The jury found him not guilty of the intoxication-manslaughter allegations in the first paragraph of each indictment, but guilty of the reckless-manslaughter charges contained in the second paragraphs.

In his first point, Vandermeer claims that the evidence is insufficient to support a finding that he acted recklessly. "A person acts recklessly . . . with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur." Id. 6.03(c) (Vernon 1994). The trier of fact is to make this determination by inferences drawn from all of the circumstances surrounding the event. Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978). The issue is "whether, given all the circumstances, it is reasonable to infer that the particular individual on trial was in fact aware of the risk." Id. at 95. Thus, we must examine the evidence to determine if a rational trier of fact could have inferred that Vandermeer was aware that he had driven his pickup truck onto the shoulder of I35E when the car occupied by Stracener and Daniel was parked there and consciously disregarded any risk involved. See Rodriguez v. State, 834 S.W.2d 488, 489 (Tex. App. Corpus Christi 1992, no pet.).

At trial, Troopers Tom Prudom and Mark Lockridge of the Texas Department of Public Safety testified that they were in a restaurant near the scene of the wreck when it occurred. Their attention was drawn to the collision by the noise from the impact of the two vehicles. Accompanied by three Waxahachie police officers they immediately ran to the location. Prudom examined the car driven by Stracener and Lockridge went to Vandermeer's pickup. Lockridge, who first talked with Vandermeer, testified that Vandermeer said, "I saw some lights and I ran into them." Trooper Prudom, who talked to Vandermeer at the scene and later at a hospital, testified Vandermeer "made a statement that there was a car in front of him."

Reconstructing the collision, Prudom determined that Vandermeer was driving completely on the shoulder at the time of the wreck. Prudom sponsored a photograph of the location, showing that the collision occurred on a long, straight stretch of I35E. The nearest obstruction was a hill, which Vandermeer had just traversed, at least one-half mile before the scene of the wreck. Because there were no skid marks leading up to the point of impact, Prudom could not determine the speed with which Vandermeer's pickup struck Stracener's car. However, the jury saw a videotape made at the scene the night of the wreck and pictures of Stracener's car and Vandermeer's truck. From this evidence, the jury could have reasonably deduced that Vandermeer was travelling at a high rate of speed, based on the condition of Stracener's car after the collision.

Thus, the jury was presented with evidence that Vandermeer was driving completely on the shoulder of a long, straight portion of the highway, at a high rate of speed, when he saw "some lights" which he was able to identify before the collision as a car in front of him. From this evidence, we conclude that a rational trier of fact could find that Vandermeer was aware that he was driving on the shoulder, but consciously disregarded the substantial and unjustifiable risk thereby created. Therefore, the jury was justified in finding that he was reckless in driving his truck, and the evidence is sufficient to support his conviction. Point one is overruled.

In point two, Vandermeer complains that the court erroneously allowed Trooper Prudom to testify to his (Vandermeer's) oral statements made at a hospital. Vandermeer and the others were taken to a hospital in Waxahachie after the collision, which Prudom went to after he finished his investigation at the scene. There he read Vandermeer his Miranda rights // and asked him standard questions from a D.P.S. form. Among the questions asked were if Vandermeer was driving the vehicle, where he was going, where he came from, whether he had been drinking, and, if so, what and how much. Vandermeer's responses indicated that he was driving the truck "home" from Austin and that he had had three "Bartle & James . . . a little while ago."

Vandermeer argues that his answers are unrecorded oral statements made as a result of custodial interrogation and are thus inadmissible. See Tex. Code Crim. Proc. Ann. art. 38.22, 3 (Vernon Supp. 1995). At trial, he presented the same argument to the court in a hearing outside the presence of the jury. The court overruled his objection, however, and allowed the statements to be presented to the jury. We do not make an independent determination of the merits of his suppression claim, but review the trial court's decision for an abuse of discretion. See Meek v. State, 790 S.W.2d 618, 620 (Tex. Crim. App. 1990). We will uphold the decision on a motion to suppress if it is correct under any theory. See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).

The parties join issue on the point of custodial interrogation, with Vandermeer arguing that he was "clearly" in custody at the time of the statements, while the State insists that he was not. See Shiflet v. State, 732 S.W.2d 622 (Tex. Crim. App. 1985). We need not resolve this dispute because we find that the court's ruling was correct for a different reason: Vandermeer's oral statement contains a fact which the police later found to be true and which tended to establish his guilt. See Tex. Code Crim. Proc. Ann. art. 38.22, 3(c); Gunter v. State, 858 S.W.2d 430, 448-49 (Tex. Crim. App.), cert. denied, ___ U.S. ___, 114 S. Ct. 318, 126 L. Ed. 2d 264 (1993).

Vandermeer told Prudom that he was driving the truck at the time of the wreck. Prior to this statement, the police did not know that he was the driver. One of the officers had seen Vandermeer getting out of the truck from the driver's door at the scene, but nothing at the scene indicated that he was the driver. The officers were not able to speak with Tucker, Vandermeer's passenger, because she was being treated for a broken back sustained in the collision. Only after she was released from treatment were police able to establish, apart from Vandermeer's statements, that she was asleep at the time of the wreck and, therefore, that Vandermeer was the driver.

If even one assertion in a statement which tends to show the guilt of an accused is found to be true, the entire statement is admissible. Gunter, 858 S.W.2d at 449. Finding that the court could have denied Vandermeer's motion to suppress because his statement contained a fact which tended to establish his guilt, we overrule point two.

By point three Vandermeer complains that the court should have granted him a mistrial after the prosecution in closing argument alluded to the fact that the lesser-included offense of criminally negligent homicide is a misdemeanor. See Tex. Penal Code Ann. 19.07. Any harm which may have sprung from the prosecutor's use of the word misdemeanor in reference to the lesser-included charge was cured by the court's instruction to disregard the statement. See Blackwell v. State, 818 S.W.2d 134, 138-39 (Tex. App. Waco 1991, pet. ref'd). Thus, the court did not err in denying Vandermeer's motion for a mistrial. Point three is overruled.

In points four and five, Vandermeer attacks the order directing him to pay restitution as a condition of probation and the amount of the restitution set in cause 10-94-247-CR. In point four, he claims that the court erred in ordering him to pay restitution to Daniel's estate because, according to Vandermeer, only the victim of the offense is eligible for restitution payments. See Tex. Code Crim. Proc. Ann. art. 42.12, 11(a)(8), (b); Martin v. State, 874 S.W.2d 674 (Tex. Crim. App. 1994). However, Vandermeer failed to raise this argument in the trial court and, thus, cannot now raise it for the first time on appeal. See Tex. R. App. P. 52(a); Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992). Point four is overruled.

In point five, Vandermeer claims that the court abused its discretion in setting the amount of restitution to be paid. The court ordered him to pay $32,475.54 in restitution to Daniel's estate. The amount set is within the sound discretion of the court, so long as it has a factual basis in the record and is just. Martin, 874 S.W.2d at 676. A probation officer testified that Daniel's medical expenses were $27,130.54, funeral costs were $3,575, and that the cost of moving his belongings and his family's travel expenses were $1,770. These figures add up to $32,475.54, the amount ordered as restitution. Thus, the amount ordered has a factual basis in the record. We conclude that Vandermeer is in no position to claim that requiring him to pay these expenses is unjust. Thus, we overrule point five.

Having overruled points one, two and three in cause number 10-94-248-CR, that judgment is affirmed. Likewise, having overruled points one, two, three, four, and five in cause number 10-94-247-CR, that judgment also is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 2, 1995

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