JOHN VELTES GARRETSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued September 26, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01259-CR
No. 05-06-01260-CR
No. 05-06-01261-CR
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JOHN VELTES GARRETSON, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the 203rd Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F04-56792-JP, F04-56793-JP, F04-56794-JP
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OPINION
 
Before Justices Morris, Francis, and Mazzant
Opinion By Justice Morris
 
 
        In these cases, John Veltes Garretson waived a jury and pleaded not guilty to three counts of manslaughter. After finding appellant guilty, the trial court assessed punishment at twenty years' imprisonment in each case. In two issues, appellant contends the evidence is factually insufficient to support the convictions and the trial court's judgments should be modified to show he did not enter open guilty pleas. We affirm the trial court's judgments as modified.
Factual Background
        On October 1, 2004, appellant sped through a red light at Industrial and Interstate 35, colliding with a Ford Escort. All of the occupants in the Escort, twenty-nine-year-old Joyce Kirk, five-year-old Alexus Booker, and one-year-old Tyra Booker, were killed. Before the fatal accident, appellant's red Camaro collided with several other cars on Interstate 35. Witnesses testified appellant rear-ended Terry Sherman's black Cadillac as she drove southbound on the highway. After colliding with Sherman's car, appellant pulled in front of Sherman, hit his brakes, looked at Sherman, then stuck his arm out the window and raised his middle finger. Appellant sped away, rear-ending Barbara Romberger's Toyota Camry. Romberger's car spun around, hit a tractor- trailer's tire, then spun back around. Witnesses testified that after appellant collided with the Camry, he “hit the gas,” traveled across several lanes of traffic from left to right, and exited the highway at Industrial at a “very high speed.” Witnesses saw appellant run through a red light and “T-bone” the Ford Escort.
        After the fatal crash, appellant was belligerent and combative. He yelled racial slurs at the victims, witnesses, and police officers. Toya Smith testified that when she approached appellant's car to see if he was injured, appellant jumped out and cursed her. Appellant drew his hand back to hit her, but a paramedic ran between them and appellant hit the paramedic instead. According to Smith, appellant was “more or less trying to get away from the scene” when he jumped out of his car, and that is when the paramedic prevented appellant from hitting her. Appellant cursed and yelled, “I'm having a seizure . . . .” While police officers were restraining appellant, he called them “pigs” and said, “Let me go, can't you see I'm having a seizure.”
        Rowland Thompson testified that when he ran to the passenger side of appellant's vehicle to check for injuries, appellant was sitting with his hands at his side. Appellant looked at Thompson and started shaking. Thompson testified he believed appellant was “trying to fake an epileptic fit or something like that.” Jose Olveda testified he saw appellant jump from his wrecked car, hit a paramedic, then run toward a nearby gas station. Olveda believed appellant was trying to run away, so he ran after appellant and was going to hit him. Appellant turned around and said, “No, no, stop, I'm sorry, I'm sorry.” As an officer handcuffed appellant, he yelled and cursed at everyone there. Olveda testified that when he asked appellant if he realized what he had done, appellant made a disparaging comment about the race of the victims. After appellant was told he had killed the people in the Escort, appellant laughed and started whistling.
        Dallas police officers Ronald Cathcart and Michael Williams testified various news stations were there video recording the accident scene and appellant's belligerent, uncooperative behavior. Cathcart testified he saw appellant lean over and attempt to hit people's feet as they stood there, then claim the people were kicking him. Cathcart further testified he believed appellant was “putting on a little show” because everyone around the area was watching him. Williams, who is certified to administer field sobriety tests, testified that, due to appellant's combativeness and lack of cooperation, he was unable to administer tests to appellant. When Williams asked appellant if he had been drinking alcohol or using drugs, appellant claimed he had been smoking marijuana and using cocaine, methamphetamine, and LSD. Appellant was transported to a hospital for evaluation and a blood test. Analysis of appellant's blood showed the only drugs in his system were marijuana metabolites and Benadryl.
        Officer Richard Wilson, an accident investigator, testified the exit ramp from Interstate 35 onto Industrial has a ninety-degree curve with a posted thirty mile-per-hour speed limit. The traffic light cycle showed appellant's vehicle had the red light and the Escort had the green light. The traffic light and approaching traffic are clearly visible from the exit ramp. There was no evidence at the scene that appellant had applied his brakes or attempted to steer to avoid the collision. Wilson testified appellant's high rate of speed on the sharply curved exit ramp was “extremely reckless,” and showed a lack of regard for public safety. Wilson further testified appellant had complete control of himself at the scene but appeared to be “acting” like he was not cognizant of what was going on to evade responsibility.
        In his own defense, appellant testified he had a history of substance abuse and mental illness, has been diagnosed with bipolar disorder, and has taken medication for that condition. Appellant said he purchased Xanax “on the street” from a friend who also sold him marijuana. He testified he typically smoked marijuana daily, but the last time he either smoked marijuana or took Xanax was about eleven days before the accident. Appellant was hospitalized on September 22, 2004 because he had a seizure. Hospital records indicated the week before the seizure he had ingested a thirty-day supply of Xanax over a seven-day time period. He stayed in the hospital for a few days and was discharged on September 24, 2004. Appellant went back to the hospital on September 27, 2004 because he felt he was “losing it.” On that date, he called his mother to drive him to the hospital because he “didn't feel safe behind the wheel of a car.” The hospital sent appellant home a few hours later. On September 29, 2004, appellant tried to get into a psychiatric facility, but was not admitted. After the facility would not take him, appellant went home and stayed inside all the next day.
        Appellant testified that on October 1, 2004, he felt well enough to accompany his employer to a job site at about one o'clock. Appellant followed Phillip Evans to the site driving his own car. He drove himself home at approximately 2:30 p.m. Appellant testified he later decided to drive to his mother's house to get his dog. He remembered leaving his house at about 5:30 p.m. and driving almost to Interstate 35. Appellant claimed he did not remember hitting any cars on the highway or crashing into the Ford Escort. Appellant testified he did recall the impact of his air bag going off, but did not remember much after that, except that everyone at the scene was against him and telling him he was drunk or intoxicated on drugs or to “shut up.” Appellant testified he knew he had a seizure while driving that day because he had one previously, and the impact of the collision “jostled” him out of the seizure. Appellant admitted the hospital never prescribed any treatment for him other than vitamins and follow-up psychiatric care. He insisted he was able to drive on Interstate 35 for several miles through traffic while having a seizure.
        Phillip Evans testified he employed appellant in his vacuum cleaner business and also rented appellant an apartment. On September 22, 2004, appellant had a seizure while Evans and appellant's mother were with him. An ambulance transported appellant to the hospital. Appellant was discharged a few days later, but went back to the hospital on September 27, 2004. Appellant also tried to get admitted into a psychiatric care facility, but he could not get funding. On October 1, 2004, appellant met Evans at a house to discuss installing a central vacuum system. Evans testified appellant seemed “very hyper and nervous and not really himself.” Evans was not with appellant when the fatal crash occurred.
        Gilda Kessner, a licensed psychologist, testified for the defense. She stated she believed appellant had a seizure when he caused the fatal crash. According to Kessner, having periods of time he could not recall was not unusual for someone with a history of seizures. Kessner testified that a person who stopped taking Xanax without medical attention could have withdrawal seizures, and that a person who had a complex partial seizure could continue to drive and not be consciously aware they were driving. Kessner admitted there was no medical documentation that appellant was treated for a seizure on October 1, 2004 and acknowledged the records, reports, and statements she reviewed showed appellant never told any medical personnel at the scene or hospital that he had a seizure before the fatal crash. Kessner further admitted she has never specifically treated anyone for remediation of seizure and would refer such a person to a medical doctor for a thorough examination.         The State called three rebuttal witnesses. Fernando Acuna, a paramedic, testified he transported appellant to the hospital. When he asked appellant if he was hurting, appellant cursed him and demanded Acuna's name and badge number. Acuna gave appellant his name, and appellant called him a racial slur. Acuna testified appellant never said he had a seizure or was in pain.
        Doctors Michael Pipkin and Lisa Clayton also testified in rebuttal. Both doctors specialize in psychiatry with a sub-specialty in forensic psychiatry. Pipkin and Clayton testified that after reviewing the videotapes, police records, and appellant's medical and jail records, neither believed appellant had a seizure during or after the fatal accident. Pipkin testified a person having a seizure would lose attentiveness and consciousness so that he would immediately lose control of a vehicle. It would be impossible to have a seizure and engage in a complicated task such as driving for any period of time. Pipkin testified there was nothing in the records he reviewed to show appellant has a seizure disorder, but there is ample proof appellant has a bipolar disorder. Pipkin stated appellant's behavior at the scene was not consistent with seizures because aggression is not common after a seizure. Pipkin further testified the videotape of appellant at the scene of the fatal accident shows appellant was trying to fake a seizure.
        Clayton testified there is no type of seizure that would allow someone to drive very fast, hit several cars on the highway, exit the highway, converse with others at the scene, and recognize people and individuals. Clayton further testified that, in her clinical experience, she has never seen someone recover from a seizure in a few seconds.
Discussion
 
        In his first issue on appeal, appellant complains the evidence against him is factually insufficient. He specifically claims that because there was testimony he was suffering from a seizure at the time of the crash, the evidence fails to show he recklessly caused the accident. To obtain convictions for manslaughter, the State was required to prove beyond a reasonable doubt that appellant recklessly caused the deaths of Joyce Kirk, Alexus Booker, and Tyra Booker. See Tex. Pen. Code Ann. § 19.04(a) (Vernon 2003). A person acts recklessly when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. See Tex. Pen. Code Ann. § 6.03(c).
        In a factual sufficiency review, we view all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007), petition for cert. filed (U.S. Jul. 17, 2007) (No. 07-5500). Evidence that is legally sufficient to support a verdict of guilt may still be factually insufficient when the verdict seems clearly wrong or manifestly unjust, or it is against the great weight and preponderance of the evidence. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), petition for cert. filed, (U.S. Mar. 13, 2007) (No. 06-11318). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        Here, appellant claimed he had a seizure while driving his car, but had no recollection of being on the highway, hitting several cars, or causing a fatal accident. Appellant's expert witness testified she believed appellant had a seizure at the time of the fatal accident and that memory loss is not uncommon when having a seizure. The State's expert witnesses, however, testified that there was no evidence appellant had a seizure during or after the fatal accident, and that appellant's medical records show he suffers from a mood disorder and not a seizure disorder. An expert further testified combative behavior is not associated with seizures, and it would be impossible for a person having a seizure to drive down a highway, collide with several cars, and exit the highway at a high rate of speed.         As the fact finder in this case, the trial court was the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. See Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). After viewing all the evidence under the proper standard, we conclude it is factually sufficient to support appellant's manslaughter convictions. We resolve appellant's first issue against him.
        In his second issue, appellant argues the trial court's judgments should be modified to show there were no open guilty pleas in the cases. The State concedes that the trial court's judgments should be modified to reflect appellant did not enter guilty pleas and there were no open pleas.
        The records show appellant entered not guilty pleas before the trial court in these cases. The trial court's judgments nevertheless recite appellant entered open pleas in these cases. Thus, the trial court's judgments are incorrect. We sustain appellant's second issue. We modify the trial court's judgments to reflect that appellant did not enter open pleas of guilty. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        We affirm the trial court's judgments as modified.
 
 
                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
061259F.U05