GABRIEL CASON v. THE STATE OF TEXAS--Appeal from County Court at Law No 2 of Nueces County

NUMBER 13-04-301-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

GABRIEL CASON, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the County Court at Law No. 2

of Nueces County, Texas.

  MEMORANDUM OPINION[1]

Before Justices Yanez, Castillo and Garza

Memorandum Opinion by Justice Castillo

A jury convicted appellant Gabriel Cason of driving while intoxicated.[2] The trial court assessed punishment at 180 days in jail, probated for one year, a $1,000 fine, and restitution in the amount of $360 for Lydia Adams and $1,823.14 to Miguel Escalante. By two issues, Cason challenges the legal sufficiency of the evidence and the basis for restitution.

I. BACKGROUND

On October 15, 2001, at approximately 4:00 a.m., Lydia Adams was asleep when she woke to a loud crash. A vehicle had crashed into her bedroom wall, pushing her bed a "few feet" against another wall. Her father, police officer Miguel Escalante, the homeowner, woke up when he heard the crash and his daughter screaming. When Escalante finally forced open the door to her bedroom, he observed a Ford Explorer had crashed into the residence. He observed Cason "coming around from the driver's side on toward the passenger side" of the vehicle, while the front part of the vehicle was lodged in the bedroom wall. Cason told Escalante he "didn't mean to drive into [the] house." Escalante observed that Cason was "very intoxicated," smelled strongly of alcohol, and staggered. Cason's eyes were bloodshot.

Officer Joseph Christian arrived at the scene and observed Cason, who was standing by the driver's side of the vehicle, walk over towards Escalante. As he walked, Cason staggered and held onto the vehicle. Officer Phillip Bintliff approached Cason at the scene to investigate the vehicular accident, "since he was the only person by the car." When officer Bintliff asked Cason for his driver's license, Cason "fumbled" with his wallet, dropped his license without realizing it, and Bintliff picked it up for him. Officer Bintliff noticed Cason had bloodshot eyes, staggered, and had to think before responding to his questions. When officer Bintliff asked Cason if it was his car, he said, "yes." When asked if he was driving Cason answered, "yes." When officer Bintliff asked Cason if he was drunk, Cason responded he was "wasted" and said "I know I shouldn't have driven drunk." Cason also told officer Bintliff he swerved to avoid hitting a dog that ran out in front of his vehicle and ran into the yard and hit the house. Based upon these observations, officer Bintliff became suspicious of Cason's sobriety. After administering two field sobriety tests,[3] officer Bintliff determined Cason was intoxicated due to alcohol consumption and arrested him. At the jail, Cason told officer Bintliff that the brakes failed on his vehicle.

II. LEGAL SUFFICIENCY

By his first issue, Cason asserts that the evidence is legally insufficient because his extrajudicial confession is not corroborated by other evidence tending to show the truth of his statement. The State responds that the circumstances of the accident itself, including Cason's sole presence at the scene in an intoxicated state immediately after the accident, provided sufficient corroboration to satisfy the requirements of the corpus delecti rule.

A. Standard of Review

A legal sufficiency challenge calls on us to review the relevant evidence in the light most favorable to the verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (en banc); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). We consider all the evidence that sustains the conviction, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App. 1994) (en banc)); Cook v. State, 858 S.W.2d 467, 470 (Tex. Crim. App. 1993) (en banc); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (en banc). In this review, we do not reevaluate the weight and credibility of the evidence, but rather, act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993) (en banc).

 B. Hypothetically Correct Jury ChargeBDWI

The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case.[4] Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Swartz v. State, 61 S.W.3d 781, 786 (Tex. App.BCorpus Christi 2001, pet. ref'd). We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7.

In this case, a hypothetically correct jury charge against which we measure legal sufficiency would ask the jury if Cason (1) on or about October 15, 2001, (2) operated (3) a motor vehicle, (4) in a public place, (5) while intoxicated. Tex. Pen. Code Ann. ' 49.04(a) (Vernon 2003). "Intoxicated" is defined as (1) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or any combination of those substances into the body; or (2) having an alcohol concentration of 0.08 or more. Tex. Pen. Code Ann. ' 49.01(2) (Vernon 2003). Each of these elements must be proved to sustain a conviction. See Tex. Pen. Code Ann. ' 2.01 (Vernon 2003).

C. The Extrajudicial Statements

At the outset, we are confronted with the evidentiary effect of Cason's extrajudicial statements made first to off-duty officer Escalante and, second, to officer Bintliff at the scene, that he was driving the Ford Explorer. The corpus delicti of driving while intoxicated is that someone drove or operated a motor vehicle in a public place while intoxicated. Threet v. State, 250 S.W.2d 200, 200 (Tex. Crim. App. 1952). While proof of the corpus delicti of an offense may not be made by an extrajudicial confession alone, proof of the corpus delicti need not be made independent of the extrajudicial confession. Self v. State, 513 S.W.2d 832, 835 (Tex. Crim. App. 1974). As long as there is some evidence corroborating the confession, the confession may be used to aid in the establishment of the corpus delicti.[5] Id. Under the corpus delicti rule, our task as an appellate court is to consider all the record evidence, other than Cason's extrajudicial confessions to officers Escalante and Bintliff, in the light most favorable to the jury's verdict and to determine whether that evidence tended to establish that Cason operated a motor vehicle in a public place while intoxicated. See Fisher v. State, 851 S.W.2d 298, 303 (Tex. Crim. App. 1993) (en banc).

D. Discussion

Viewed in the light most favorable to the verdict, the testimony of officers Escalante and Bintliff was sufficient for a rational trier of fact to have found beyond a reasonable doubt the essential elements of driving while intoxicated. Cason was the sole person near a vehicle that left a public roadway, traversed a yard, and collided with a house for no apparent intervening reason. Cason was the sole person near the vehicle immediately after impact. Cason failed field sobriety tests administered after officer Bintliff, while investigating a vehicular accident, observed physical manifestations of intoxication. Viewed in the same light, the evidence tends to establish that Cason operated a motor vehicle in a public place while intoxicated. Thus, the evidence is also sufficient to satisfy the corpus delecti rule. See Fisher, 851 S.W.2d at 304. Accordingly, we conclude the evidence is legally sufficient. We overrule the first issue.

III. RESTITUTION

By his second issue, Cason asserts that it is unlawful to make him pay for the depreciation which was used to reduce the insurance company's payment to Escalante.[6] He further asserts that amount has no factual basis. The State responds, in part, that Cason waived error.

A. The Record

Two exhibits admitted in evidence concerning restitution are not in the record. After discussion concerning payments that Cason and the insurance company made to officer Escalante for the residential damage, the trial court ordered $1,823.14 in restitution to officer Escalante, apparently in the amount he requested in State's exhibit 1. The trial court arrived at the figure by "allowing the $847.10 on the depreciation plus the difference between the $1,000 he's claiming on the furniture minus what the insurance company allowed for that."

The defense made two statements regarding the restitution. First, apparently reviewing Escalante's request for reimbursement, State's exhibit 1, the defense stated, "Well, we don't think that's legitimate" because Cason paid $8,000 to reimburse Escalante's insurance company for the "legitimate expenses caused by the wreck." Apparently, the statement meant Cason should not pay for "improvement to [Escalante's] property" occasioned by Escalante's own work to repair it. The statement was made before the trial court ordered restitution and was directed to improvement to the property, apparently over the amount the insurance company paid. Second, the defense stated, "I don't understand," after the trial court ordered and confirmed that the restitution amount included depreciation.

B. Discussion

All the party must do to avoid the forfeiture of a complaint on appeal is to let the trial court know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the trial court to understand him at a time when the trial court is in a proper position to do something about it. See Keeter v. State, 2005 Tex. Crim. App. LEXIS 521, at *10 n.11 (Tex. Crim. App. April 6, 2005) (citing Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992) (en banc)). Further, making the trial court aware of the complaint requires that both the grounds and what is being objected to be apparent. See Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. App. [Panel Op.] 1980) (en banc) (op. on reh'g).

In this case, our review is limited by and based on the absence of the two exhibits from the record. Cason did not specifically object to (1) restitution for depreciation, and (2) the lack of a factual basis for the amount. Because he did not present his complaint to the trial court before raising it as an issue on appeal, he forfeited his complaint. Id.; see also Tex. R. App. P. 33.1. Accordingly, we overrule the second issue.

IV. CONCLUSION

Having overruled Cason's two issues, we affirm the trial court judgment.

ERRLINDA CASTILLO

Justice

Do not publish.

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

Memorandum Opinion delivered and filed

this 21st day of July, 2005.

[1] See Tex. R. App. P. 47.2 & 47.4.

[2] See Tex. Pen. Code Ann. ' 49.04 (Vernon 2003).

[3] Officer Bintliff administered the Horizontal Gaze Nystagmus and the walk-and-turn. During the latter test, Bintliff walked beside Cason "to make sure he didn't fall over."

[4] This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

[5] The rule does not require that the independent evidence fully prove the corpus delicti, only that it tend to prove the corpus delicti. Fisher v. State, 851 S.W.2d 298, 302 03 (Tex. Crim. App. 1993) (en banc) (citing Self v. State, 513 S.W.2d 832, 835 37 (Tex. Crim. App. 1974) and Wood v. State, 152 S.W.2d 335, 339 (Tex. Crim. App. 1941)). The primary purpose of the corpus delicti rule is to assure that no person is convicted without some independent evidence showing that the very crime to which he confessed was actually committed by someone. See id. at n.3 (citing Gribble v. State, 808 S.W.2d 65, 71 (Tex. Crim. App. 1990) (en banc) (plurality opinion)); see also Salazar v. State, 86 S.W.3d 640, 644 45 (Tex. Crim. App. 2002).

[6] The defense did not object to restitution in the amount of $360, representing lost wages for Lydia Adams.