DAMIEN MORALES v. THE STATE OF TEXAS--Appeal from 105th District Court of Nueces County

NUMBER 13-05-442-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

DAMIEN MORALES, Appellant,

 
v.

THE STATE OF TEXAS, Appellee.

On appeal from the 105th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

 
Before Justices Rodriguez, Garza, and Benavides
Memorandum Opinion by Justice Rodriguez

Appellant, Damien Morales, was charged by indictment with the offense of failure to stop and render aid, intoxication manslaughter, and manslaughter. See Tex. Transp. Code Ann. 550.021, 550.023 (Vernon 1999); Tex. Penal Code Ann. 49.08, 19.04 (Vernon 2003). Appellant pleaded not guilty, and a jury convicted him of both failure to stop and render aid and intoxication manslaughter and assessed punishment at five and eight years in prison, respectively. By three points of error, appellant contends (1) the trial court erred in denying his motion to suppress, (2) the evidence is insufficient to support the deadly weapon finding, and (3) the trial court abused its discretion in not permitting appellant to offer evidence regarding Michael Gonzales's driving history. We affirm.

I. Motion to Suppress

By his first point of error, appellant contends that the trial court erred in denying his motion to suppress the blood, and the results of the blood alcohol test conducted thereon, which was taken from appellant at the hospital after the accident, without his consent as provided by section 724.012 of the transportation code. See Tex. Transp. Code Ann. 724.012(b) (Vernon Supp. 2006).

A. Standard of Review and Relevant Law

The appropriate standard for reviewing most trial court's rulings on a motion to suppress is a bifurcated standard of review, giving almost total deference to the trial court's determination of historical facts and reviewing de novo the court's application of the law. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002) (en banc); State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000) (en banc); Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2002); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997) (en banc). When reviewing a trial court's ruling on a mixed question of law and fact, the amount of deference afforded to a trial court's ruling "often is determined by which judicial actor is in a better position to decide the issue." Guzman, 955 S.W.2d at 87. We review de novo the application of the law to facts in this case, but we also afford almost total deference to the trial court's evaluation of the credibility and demeanor of the witnesses who testified at the pre-trial hearing. See id. When there are no explicit findings of historical fact, the evidence must be viewed in the light most favorable to the trial court's ruling, and we must assume the trial court made implicit findings of fact that support its ruling as long as those findings are supported by the record. Carmouche, 10 S.W.3d at 327-28. "The trial court's ruling must be upheld if it is correct under any theory of law applicable to the case." Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005) (citing Romero v. State, 800 S.W.2d 539, 543-44 (Tex. Crim. App. 1990) (en banc)).

Section 724.012(b) of the Texas Transportation Code mandates the taking of a person's blood or breath if:

(1) the officer arrests the person for an offense under Chapter 49, Penal Code, involving the operation of a motor vehicle or a watercraft;

 

(2) the person was the operator of a motor vehicle or a watercraft involved in an accident that the officer reasonably believes occurred as a result of the offense;

 

(3) at the time of the arrest the officer reasonably believes that as a direct result of the accident:

 

(A) any individual has died or will die; or

 

(B) an individual other than the person has suffered serious bodily injury; and

 

(4) the person refuses the officer's request to submit to the taking of a specimen voluntarily.

 

Tex. Transp. Code Ann. 724.012(b) (Vernon Supp. 2006). When several officers are cooperating, their cumulative information is sufficient, and it is not necessary that the arresting officer share his observations with the officer who requests the test be performed. McBride v. State, 946 S.W.2d 100, 101-02 (Tex. App.-Texarkana 1997, pet. ref'd) (reviewing case law in other contexts where cumulative or shared knowledge of several police officers is sufficient to establish reasonable belief or probable cause, the McBride Court stated, "We see no reason why one officer should not be able to rely on the statements and observations of another in this particular context."); see Tex. Dep't of Pub. Safety v. Walter, 979 S.W.2d 22, 25 (Tex. App.-Houston [1st Dist.] 1998, no pet.); Porter v. State, 969 S.W.2d 60, 65 (Tex. App.-Austin 1998, pet. ref'd); see also Woodward v. State, 668 S.W.2d 337, 344 (Tex. Crim. App. 1984) (op. on reh'g) (en banc); Fonseca v. State, 881 S.W.2d 144, 150 (Tex. App.-Corpus Christi 1994, no pet.).

B. Analysis

In his first point, appellant specifically alleges that Investigator Christopher Lynch, who ordered the blood draw, had insufficient evidence from which to form a reasonable belief that appellant was intoxicated and that his intoxication caused or contributed to the accident. In this case, however, we conclude that the collective knowledge of the officers was sufficient to have a reasonable belief that appellant was intoxicated, and that his intoxication caused or contributed to the accident. At the time the blood was drawn, the officers had knowledge of the following facts: appellant ran a stop sign, struck Gonzales, (1) and fled the scene; marihuana was found in appellant's vehicle; appellant smelled of marihuana; appellant was "glassy-eyed" and "stared into space;" and appellant seemed confused and hesitant and "glossy-eyed."

Considering the cumulative knowledge of the officers working on the case, including witness interviews at the scene regarding the facts of the accident, as well as the officers' knowledge regarding appellant, his use of marihuana and his appearance of being under its influence, the police had a reasonable belief that appellant was intoxicated and that the accident was caused by appellant driving into Gonzales and doing so while he was intoxicated by marihuana. See McBride, 946 S.W.2d at 101-02; Walter, 979 S.W.2d at 25; Porter, 969 S.W.2d at 65. We conclude that the requirements of section 724.012(b) were met. The trial court did not err in overruling appellant's motion to suppress. We overrule appellant's first point of error.

II. Sufficiency of the Evidence to Support Deadly Weapon Finding

In his second point of error, appellant challenges the sufficiency of the evidence to support the jury's affirmative finding of the use or exhibition of a deadly weapon--his vehicle--in the commission of the offense of intoxication manslaughter.

A. Standard of Review and Relevant Law

In a legal sufficiency review, (2) we consider all of the properly or improperly admitted evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (en banc).

When a challenge is made to the legal sufficiency of a deadly weapon finding, the reviewing court must determine whether the evidence demonstrated that: (1) the object meets the statutory definition of a dangerous weapon; (2) the deadly weapon was used or exhibited during the transaction from which the felony conviction was obtained; and (3) other people were put in actual danger. Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005) (en banc). In this case, the applicable definition of a deadly weapon is "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Penal Code Ann. 1.07(a)(17)(B) (Vernon Supp. 2006). "A motor vehicle may become a deadly weapon if the manner of its use is capable of causing death or serious bodily injury." Drichas, 175 S.W.3d at 798. "Specific intent to use a motor vehicle as a deadly weapon is not required." Id. Moreover, "[o]ur precedents establish that anything, including a motor vehicle, which is actually used to cause the death of a human being is a deadly weapon." Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995) (citing Ex parte McKithan, 838 S.W.2d 560, 561 (Tex. Crim. App. 1992) en banc)); see Jimenez v. State, 67 S.W.3d 493, 508 (Tex. App.-Corpus Christi 2002, pet. ref'd). "This is necessarily so because a thing which actually causes death is, by definition, 'capable of causing death.'" Tyra, 897 S.W.2d at 798; Ex parte Beck, 769 S.W.2d 525, 526-27 (Tex. Crim. App. 1989).

B. Analysis

Having found appellant guilty of intoxication manslaughter, the jury also found "beyond a reasonable doubt that a deadly weapon was used or exhibited during the commission of the offense and that [appellant] used or exhibited the deadly weapon." Appellant specifically contends that although he ran a stop sign and entered the intersection, because Gonzales was speeding around a white limousine and appellant did not see him when he went through the intersection, "he is not responsible for the recklessness of the white limousine or the motorcycle Gonzales was operating," and, thus, the evidence was "insufficient to establish beyond a reasonable doubt that Appellant was using his vehicle in a manner that constitutes a deadly weapon."

Considering all of the evidence in the light most favorable to the verdict, appellant drove a vehicle into an intersection after failing to stop at a stop sign, almost hitting a pickup truck. Appellant hit Gonzales's motorcycle broadside, and Gonzales sailed into the air hitting a pole and fell to the ground. Gonzales fractured his neck and died shortly thereafter. We conclude this evidence demonstrates that (1) appellant's vehicle meets the statutory definition of a dangerous weapon--the vehicle was actually used to cause the death in this case; (2) the vehicle was used or exhibited during the events from which the felony conviction was obtained; and (3) other people were put in actual danger--in fact, a person was killed. See Drichas, 175 S.W.3d at 798. The actions of other drivers, including Gonzales, do not impact this analysis, as appellant suggests. Thus, we find that the evidence in this case, viewed in a light most favorable to the State, supports a conclusion that a rational trier of fact could have found use of a vehicle as a deadly weapon beyond a reasonable doubt. Appellant's second point of error is overruled.

III. Appellant's Right to Present a Defense

By his third point of error, appellant contends that the trial court erred in excluding evidence that Gonzales had several traffic convictions for speeding which denied him the right to present a defense and that the trial court's failure to allow such evidence is a Sixth Amendment constitutional violation. However, although appellant asserts his rights under the Sixth Amendment Right to present a defense, appellant neither made this objection to the trial court, nor received a ruling on any such objection. (3) Therefore, this point of error has not been preserved for our review. See Tex. R. App. P. 33.1(a); Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (holding appellant did not preserve error as to argument that exclusion of evidence violated Sixth Amendment because appellant did not refer to the constitution in the trial court and did not put the trial court on notice that he was alleging a constitutional violation); Eaves v. State, 141 S.W.3d 686, 690-91 (Tex. App.-Texarkana 2004, pet. ref'd) (holding appellant failed to preserve error as to trial court's alleged violation of Sixth Amendment by refusal to admit evidence that child sexual-assault complainant previously had been sexually assaulted, given that appellant did not voice this argument in the trial court). We overrule appellant's third point of error.

III. Conclusion

Accordingly, we affirm the judgment of the trial court.

NELDA V. RODRIGUEZ

Justice

 

Do not publish.

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

 

Memorandum Opinion delivered and

filed this 9th day of August, 2007.

1. Appellant notes that upon impact, Michael Gonzales was thrown from his motorcycle into a lamp post and killed almost instantly.

2. In this point of error, appellant only generally complains of the sufficiency of the evidence to support the jury's finding regarding the use or exhibition of a deadly weapon. Appellant does not specify whether his challenge is to the legal sufficiency of the evidence or its factual sufficiency. Because appellant provides only the legal sufficiency standard of review and arguments related to legal sufficiency, we construe this point of error only as a challenge to the legal sufficiency of the evidence to support the finding. See Cardenas v. State, 30 S.W.3d 384, 386 n.2 (Tex. Crim. App. 2000) (conducting only legal sufficiency review where defendant requested acquittal and did not adequately brief factual sufficiency); Chavero v. State, 36 S.W.3d 688, 693 (Tex. App.-Corpus Christi 2001, no pet.) (same).

3. Following the State's objection to testimony regarding Gonzales's citations for speeding, and after the jury left the courtroom, the State argued that the witness had no personal knowledge of the citations and that the testimony would have no relevance to his case. In response, defense counsel asserted that speed was at issue; that Gonzales had to speed around a vehicle, and that two deferred speeding citations were relevant. After the trial court sustained the State's objection, the following exchange took place:

 

Defense Counsel: Okay. So I don't violate any ruling from the [c]ourt, are you telling me I can't ask anything about speeds?

 

The Court: Anything about speeding citations or convictions or deferred adjudications.

 

Defense Counsel: Okay, so the court is not going to bother - not going to - I'm not in violation if I ask every witness whether or not he has got a traffic citation for speeding?

 

The Court: No, you would be in violation if you ask a witness whether Gonzales had a citation, a conviction, or deferred adjudication for speeding.

 

Defense Counsel: Okay, so you're prohibiting me from asking all the witnesses -

 

The Court: Yes, sir.

 

Defense Counsel: - and I want for the purpose of the record, Your Honor, I want this witness [and other witnesses], if they intend to testify, I intend to offer that testimony and, Your Honor, I will tender to the Court the records that I have in my file that show that Gonzales had at least two deferred adjudications for speeding in Corpus Christi.

 

The Court: Very well. Let's bring the jury in.