Gregory Degrate v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00079-CR

Gregory Degrate,

Appellant

v.

The State of Texas,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court No. 2000-732-C

memorandum Opinion

Gregory DeGrate was convicted of manslaughter and sentenced to 75 years in prison. Because the evidence to support DeGrate s conviction is legally sufficient under both state and federal standards and is factually sufficient, we affirm the trial court s judgment.

Background

Waco police officers were engaged in a high speed chase of a vehicle which DeGrate was driving. They ended the chase but DeGrate continued driving at excessive speeds until he collided with a pickup driven by Batt Vernetti and occupied by Anna Vernetti, both in their eighties. DeGrate s car was traveling 75 miles an hour when the accident occurred. The posted speed limit was 30 miles an hour. DeGrate was convicted of manslaughter in the death of Anna Vernetti, and that conviction was affirmed by this Court. See DeGrate v. State, 86 S.W.3d 751 (Tex. App. Waco 2002, pet. ref d). This appeal pertains to the death of Batt Vernetti.

Legal Sufficiency

DeGrate s first two issues involve the legal sufficiency of the evidence as it pertains to the causal connection between DeGrate s conduct and the harm that followed.

Causal Connection

Under section 6.04 of the Texas Penal Code:

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). DeGrate contends that because of concurrent causes of failure to yield, failure to keep a proper lookout, and failure to wear a safety belt, the jury should have found DeGrate s speed was clearly insufficient to cause Batt Vernetti s death. Under section 6.04(a), a but for causal connection must be established between the defendant and the resulting harm. Robbins v. State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986). When the conduct of the accused as well as other potential actions or conditions could have caused the victim's injury, the accused will nevertheless be held criminally responsible, unless the other causes were clearly sufficient to produce the injury, and the conduct of the [accused] clearly insufficient. St. Clair v. State, 26 S.W.3d 89, 100 (Tex. App. Waco 2000, pet. ref d). The evidence of causation will be legally insufficient in such a case only when the conduct of the accused, standing alone, was "clearly insufficient" to cause the injury. Id. (Emphasis added).

Standards of Review

DeGrate argues the evidence of causation is legally insufficient under both the state and federal standards of review.

In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence in the light most favorable to the verdict to determine whether 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, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (emphasis in original); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2004).

Under the federal standard of Jackson, the sufficiency of the evidence is measured against the substantive elements of the offense as defined by state law. Fuller v. State, 73 S.W.3d 250, 252 (Tex. Crim. App. 2002). Under the state standard announced in Golihar,[1] evidentiary sufficiency should be measure against the elements as defined by a hypothetically correct jury charge. Fuller, 73 S.W.3d at 252. A materiality inquiry should be made in all cases that involve a sufficiency claim based on a variance between the indictment and the proof offered at trial, and only a material variance will render evidence insufficient. Id. at 253. A materiality inquiry requires a determination of whether the variance deprived the defendant of notice of the charges or whether the variance subjects the defendant to the risk of later being prosecuted for the same offense. Id.

Argument/Evidence

DeGrate presents the same argument for the two standards and says the correctly framed question for us to decide is whether Vernetti would have been ejected from the vehicle if he had worn his seatbelt. But DeGrate is wrong. The correct question is whether DeGrate s conduct, that is, excessive speed, standing alone, is clearly insufficient to produce the result. See St. Clair, 26 S.W.3d at 100.

DeGrate lead police on a high speed chase through a Waco residential area. He disregarded other traffic, traffic lights, and stop signs. Ultimately, the police decided to stop their pursuit of DeGrate. A short time later, officers were notified of a car wreck. One officer described the wreck as severe, as if the cars exploded on impact. Vernetti s pickup had been hit in the left front quarter panel which spun the vehicle 360 degrees and with enough force to eject both victims through either the driver s side door or window. The driver s side door was ripped open, the structural steel post for the cab of the pickup was hit with enough force from the inside to bend it, and the center console was bent toward the driver s side. Both driver s side windows were broken. The pickup had a camper on it which was ejected off the vehicle and thrown across the street. Batt Vernetti was still alive at the scene, but his wife, Anna, was not. DeGrate s car was partially wrapped around a tree. An accident reconstructionist concluded DeGrate s car speed prior to the impact was 75 miles an hour while the Vernetti s pickup speed was 6 miles an hour.

Based on a review of the evidence under the federal standard, DeGrate s excessive speed, standing alone, was not clearly insufficient to cause Batt Vernetti s ejection from the pickup and thus, cause his death. DeGrate s first issue is overruled.

DeGrate seems to argue, under the state standard, that there was a variance between the proof at trial and the indictment but does not fully develop that argument. Assuming without deciding that there was a variance, DeGrate only concludes, without discussion, that the variance was material. Nonetheless, there is nothing in the record that indicates DeGrate did not have notice of the charge against him or that he could be later prosecuted for the same offense. See Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002). Thus, the variance, if any, was immaterial. DeGrate s second issue is overruled.

Factual Insufficiency

In DeGrate s last issue, he contends the evidence was factually insufficient as it pertains to the element of the causal connection between DeGrate s conduct and the harm that followed. In a factual-sufficiency review, we view all of the evidence in a neutral light, and we set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust, or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met." Prible v. State, No. AP-74487, 2005 Tex. Crim. App. LEXIS 110, at *16 (Tex. Crim. App. Jan. 26, 2005)

In addition to the evidence recounted above, there was evidence presented at trial of concurrent causes of the accident other than DeGrate s excessive speed such as 1) the complicated intersection, 2) vegetation at the intersection, 3) Batt s pickup stopped and started several times before the accident, 4) Batt and his wife looked to be having a conversation, 5) Batt failed to yield the right-of-way, 6) Batt failed to keep a proper lookout, and 6) Batt and his wife were not wearing seat belts. However, after a neutral review of the evidence, DeGrate s excessive speed is not clearly insufficient to have caused Batt s ejection and his death and the contrary evidence is not so strong that the standard of proof beyond a reasonable doubt could not have been met. DeGrate s third issue is overruled.

Conclusion

Having overruled each issue on appeal, the trial court s judgment is affirmed.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed August 3, 2005

Do not publish

[CRPM]

[1] Golihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001)