JUAN JOSE SOULAS v. THE STATE OF TEXAS--Appeal from 214th District Court of Nueces County

   NUMBER 13-99-002-CR,13-99-003-CR,13-99-004-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

  CORPUS CHRISTI  B EDINBURG

JUAN JOSE SOULAS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the 214th District Court

of Nueces County, Texas.

M E M O R A N D U M O P I N I O N

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

   Opinion by Chief Justice Valdez

Appellant, Juan Jose Soulas, appeals his conviction for two counts of intoxication manslaughter and one count each of intoxication assault and aggravated assault. This Court originally found the evidence to be legally insufficient to support the verdict, reversed the conviction and rendered an acquittal. See Soulas v. State, Nos. 13 99 002 CR, 13 99 003 CR and 13 99 004 CR, 2000 Tex. App. LEXIS 3132, at *8 (Tex. App.BCorpus Christi May 11, 2000, pet. granted) (not designated for publication). On petition for discretionary review, the Texas Court of Criminal Appeals reversed our decision and concluded that this Court had improperly applied the standard of review for legal sufficiency and, furthermore, that the evidence was legally sufficient to support the verdict. See Soulas v. State, Nos. 1730-00, 1731-00 and1732-00 (Tex. Crim. App. October 23, 2002) (not designated for publication). The court of criminal appeals remanded the case back to this Court for consideration of appellant=s remaining points of error, which we now address.

Appellant raises three remaining issues on appeal: (1) the evidence is factually insufficient to support the verdict against appellant for intoxication manslaughter, (2) the evidence is legally and factually insufficient to support appellant=s conviction for aggravated assault and intoxication assault, and (3) the trial court erred in denying appellant=s motion for a new trial based on newly discovered evidence. We affirm.

Intoxication Manslaughter

Appellant complains that the trial court erred by ruling that the evidence was factually sufficient to support his conviction for two counts of intoxication manslaughter. Specifically, he alleges that the evidence did not conclusively establish that he was the driver of the car that caused the accident.[1]

A reviewing court, in conducting a factual sufficiency review, must ask whether a neutral review of all the evidence both for and against the finding demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). In conducting a factual sufficiency review, Aan appellate court reviews the fact finder's weighing of the evidence and is authorized to disagree with the fact finder's determination." Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). The appellate court, however, must employ appropriate deference in order to avoid substituting its judgment for that of the fact finder, and its evaluation must not intrude upon the jury=s role as the judge of the weight and credibility given to witness testimony. See Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). In cases involving circumstantial evidence, it is the jury, not a reviewing court, that accepts or rejects reasonably equal competing theories of causation. See Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001).

Appellant was convicted on two charges of intoxication manslaughter in the deaths of Diana Escobar and Carol Cantu, who were both killed in a two-car automobile accident. The following evidence led to the conviction.

At approximately 9:30 p.m. on December 30, 1996, appellant=s Dodge Spirit ran a two-way stop sign at the intersection of two roads in Nueces County, Texas. The Dodge collided with the driver=s side of Carol Cantu=s Toyota Tercel. The impact sent both cars into an adjacent field. Carol, who was driving the Toyota, died instantly from a broken neck. Her passenger and brother, Juan Cantu, was injured but able to extricate himself from the car. He testified that he saw an injured, bleeding woman on the ground several feet away from the passenger side of the Dodge. This woman was Diana Escobar, who later died from her injuries.

A motorist who witnessed the collision and stopped to assist testified that she saw Diana lying on the ground about ten to fifteen feet away from the passenger side of the Dodge and appellant lying near a culvert twenty feet away from the driver=s side. Another witness made similar observations, adding that appellant smelled of alcohol and had a red indentation in his chest. The first police officer to arrive at the scene testified as to the position of Diana on the passenger side and appellant on the driver=s side and also noted that the Dodge=s driver=s side air-bag had deployed. The officer also testified that when he arrived at the scene, AI was approached by a female who said that she did witness the accident, and she told me that there was a male lying by a concrete culvert that was the driver.@[2] This female witness, however, was not identified and did not testify at trial. The paramedic who treated appellant on the scene reported that appellant had suffered a broken neck and two broken legs, was extremely uncooperative, and smelled of alcohol.

Two state troopers testified about the scene of the accident, noting that both vehicles were upright and did not appear to have rolled over during the collision. One officer, State Trooper Mark Ellison, also testified that, according to their driver licenses, Diana was shorter than appellant, and that the passenger seat was pulled closer to the dashboard than was the driver=s seat, implying that the shorter individual was sitting there. He also observed that appellant=s face showed signs of having been abraded or burned, as if by the deployment of an air-bag. The only air-bag to deploy in the Dodge was on the driver=s side.

Trooper Ellison also testified that, in his experience, when vehicle occupants are ejected during a collision, the driver typically lands on the driver=s side of the car and the passenger lands on the right side, unless the car rolls from the collision=s impact. There was no evidence that the cars had rolled. Trooper Ellison reported interviewing appellant in the hospital, where appellant admitted to having been drinking but denied being the driver of the car. Appellant allegedly told the trooper that he had been out drinking, had met a Achick@ while out, and they had been driving to her house in his car.

There were no witnesses at trial who testified to having seen Soulas driving the car or to having seen him thrown from the driver=s side during the accident. The defense argued that Diana, not Soulas, was driving at the time of the wreck and, in support of this theory, presented testimony from an expert in accident reconstruction, who argued that both appellant and Diana exited the car from the passenger side during the collision but, based on their positions outside the car, Diana had been the driver.

The jury clearly disagreed with this interpretation of events and, in its evaluation of the evidence, determined that appellant had been the driver of the Dodge. See Johnson, 23 S.W.3d at 11. We have reviewed all of the evidence and conclude that this outcome is not so obviously weak as to undermine confidence in the jury's determination. See Johnson, 23 S.W.3d at 11. The circumstantial evidence in this case could have led a rational jury to determine beyond a reasonable doubt that appellant was driving the Dodge. Appellant=s first issue is accordingly overruled.

Assault

Appellant argues in his second issue that the trial court erred in concluding that the evidence is legally and factually sufficient to support his conviction for aggravated assault and intoxication assault on Juan Cantu.[3] Specifically, appellant contends that the element of Aserious bodily injury@ was not established.[4]

We first analyze the evidence for legal sufficiency. We must view the evidence in the light most favorable to the verdict and then determine whether any rational trier of fact could have found all the essential elements of the offense proven beyond a reasonable doubt. See Threadgill v. State, 146 S.W.3d 654, 663 (Tex. Crim. App. 2004). If we conclude that the evidence is legally sufficient to support the judgment, we then review all of the evidence for factual sufficiency. See Johnson, 23 S.W.3d at 11; Dornbusch v. State, 156 S.W.3d 859, 867-68 (Tex. App.BCorpus Christi 2004, no pet.).

ASerious bodily injury@ is defined as Abodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.@ Tex. Pen. Code Ann. ' 1.07(a)(46) (Vernon Supp. 2004-05). While appellant concedes that Juan suffered bodily injury, he disagrees that the additional elements of serious bodily injury were established.

Juan testified that he Afelt deformed in his face@ after the accident. In addition to various superficial cuts, scrapes and bruises, he suffered an Aorbital blowout@ in his left eye, which required surgery and the insertion of a metal plate in his eye socket. His hip was permanently indented, possibly from being pressed against the seat belt. Juan=s two front teeth were both cracked, and he underwent extensive dental work to repair the injuries and replace the teeth.

Juan also testified that months after the accident he Astarted experiencing some sharp jolts of pain on my left side of my hip . . . it just felt like glass piercing me@ whenever he stood or turned. He also continued to have Asharp pains to the left side of my head,@ Aextreme dizziness every once in awhile,@ and spontaneous twitching in his left eyelid. He also bore scars from surgeries he had undergone and had a permanent indentation in the side of his head, in addition to the indentation in his hip.

These injuries have clearly caused permanent disfigurements to Juan=s body and have also affected the functioning of various body parts. We have reviewed all the evidence for legal sufficiency and conclude that the element of serious bodily injury was adequately established by the prosecution so as to survive this challenge on appeal. See Threadgill, 146 S.W.3d at 663. For factual sufficiency, we have also considered whether the evidence regarding serious bodily injury is so weak as to undermine confidence in the verdict, and we conclude it is not. See Dornbusch, 156 S.W.3d at 867-68. Accordingly, appellant=s second issue is overruled.

Newly Discovered Evidence

In his third point of error, appellant contends that the trial court erred and abused its discretion in denying his motion for new trial based on newly-discovered evidence. Appellant=s attorney claims that following appellant=s conviction, he was contacted by a witness who reported seeing Diana Escobar driving a car with appellant as a passenger several hours before the accident. Appellant argued at the motion for new trial hearing that this evidence established that he had not in fact been the driver of the Dodge Spirit when the collision occurred. The trial court denied appellant=s motion for new trial.

The standard for determining whether newly-discovered evidence merited a new trial utilizes a four part test that the movant must satisfy: (1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial; (2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence; (3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and (4) the new evidence is probably true and will probably bring about a different result on another trial. Keeter v. State, 74 S.W.3d 31, 36-37 (Tex. Crim. App. 2002); Strong v. State, 138 S.W.3d 546, 556 (Tex. App.BCorpus Christi 2004, no pet.). The trial court has discretion to decide whether to grant a new trial based upon newly discovered evidence, and its ruling will not be reversed absent an abuse of discretion. See Keeter, 74 S.W.3d at 37. This Court therefore cannot substitute its judgment for that of the trial court, but rather must examine the record to determine whether the trial court refused to grant the new trial without reference to any guiding rules or principles. Strong, 138 S.W.3d at 556.

The Anewly-discovered@witness, Jose Arebalo, testified at the hearing on appellant=s motion for new trial. He claimed to have seen appellant, who had previously been Arebalo=s student in a welding class, with Diana drinking at the V.F.W. Hall in the city of Alice around 5:30 p.m. Diana allegedly expressed discomfort with her clothes and urged appellant to accompany her to her house so she could change. Arebalo testified that he saw Diana get into the driver=s side of a car, appellant entered the passenger side, and they drove away. Arebalo said he decided to contact appellant=s attorney when he heard about appellant=s conviction; he had not stepped forward earlier because he did not know about the case. Arebalo could neither describe what Diana was wearing nor their car. He also could not remember any other people or the identity of the bartender at the V.F.W. Hall that night.

Given that the episode Arebalo describes in his testimony involves appellant himself, we find it difficult to believe that this information was unknown or unavailable to appellant at the time of his trial. See Keeter, 74 S.W.3d at 36. However, appellant, when testifying during the punishment phase of the trial, claimed not to remember anything that occurred in the evening. The last thing he recalled was playing with Diana=s child while at her home several hours before the collision occurred. A timeline of events is difficult to establish from the evidence before the Court; this last-remembered incident could have conceivably occurred either before or after the events Arebalo describes at the V.F.W. Hall. Regardless of whether this first prong could be met, we nonetheless conclude that Arebalo=s testimony did not satisfy the fourth prong of the newly-discovered evidence test. The trial court could reasonably conclude that the new evidence was not demonstrably true, given that Arebalo could essentially only remember that appellant, Arebalo=s former student, had been on the passenger side of the car Diana was driving. All other details about the incident were missing, including the important detail of whether the car was even the red Dodge Spirit involved in the collision. See Williams v. State, 504 S.W.2d 477, 483 (Tex. Crim. App. 1974) (AThe probable truth of the new evidence is primarily a determination for the trial judge. Here, the judge saw the witnesses, observed their demeanor, and was required to determine the issue of their credibility.@).

Furthermore, even if the evidence is taken as true, it would not necessarily result in a different outcome in the case. See Keeter, 74 S.W.3d at 37. The described incident happened several hours before the collision occurred, could have involved a different car, and does not reflect which party was driving appellant=s car later that night. Arebalo=s testimony fails to controvert any of the circumstantial evidence adduced at trial involving the collision itself. Therefore, we conclude that the trial court did not abuse its discretion in overruling appellant=s motion for new trial, and we accordingly overrule appellant=s final issue.

Conclusion

The judgment of the trial court is affirmed.

Rogelio Valdez,

Chief Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 16th day of June, 2005.

[1] A person commits the offense of intoxication manslaughter if the person (1) operates a motor vehicle in a public place, operates an aircraft, a watercraft, or an amusement ride, or assembles a mobile amusement ride; and (2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake. Tex. Pen. Code Ann. ' 49.08 (Vernon 2003).

[2]Although this statement is hearsay, there was no objection to it, and it therefore could be considered probative by the jury. See Tex . R. Evid. 802 (AInadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay.@).

[3]A person commits intoxication assault when he operates a motor vehicle while intoxicated, and by reason of that intoxication causes serious bodily injury to another. Tex. Pen. Code Ann. ' 49.07(a)(1) (Vernon 2003). A person commits the offense of aggravated assault if the person commits assault as defined in section 22.01 of the penal code and the person: (1) causes serious bodily injury to another, including the person's spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault. Tex. Pen. Code Ann. ' 22.02(a) (Vernon Supp. 2004-05).

[4]The court of criminal appeals found the evidence legally sufficient to support the finding that appellant was the driver of the vehicle. Appellant, however, here questions the legal sufficiency of the evidence establishing the seriousness of Juan Cantu=s bodily injuries, and not the legal sufficiency of the evidence establishing that he drove the car that hit Juan. Therefore we will treat his legally sufficiency issues as previously unresolved by our court=s original opinion and the court of criminal appeals= opinion, and we will address them here.