SHERRI L. GILES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM as modified; Opinion issued November 7, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01346-CR
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SHERRI L. GILES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F07-50062-LU
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OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice Whittington
        Sherri L. Giles appeals her conviction for intoxication manslaughter. See Tex. Penal Code Ann. § 49.08 (Vernon Supp. 2008). After finding appellant guilty as charged and making an affirmative finding that appellant used or exhibited a deadly weapon, namely a motor vehicle, during the commission of the offense, the jury assessed punishment at twenty years' imprisonment and a $10,000 fine. In four issues, appellant claims the evidence is legally and factually insufficient to support her conviction, the trial judge abused her discretion in admitting into evidence appellant's book-in photograph, and the judgment should be reformed to reflect the correct date of sentencing. We modify the judgment to reflect the correct sentencing date and, as modified, we affirm.
Background
 
        Appellant was driving a black Dodge Durango on the morning of March 19, 2007 when she ran into a pick-up truck driven by Eddie Moncada at the intersection of Northwest Highway and Buckner Boulevard. The force of the impact propelled Moncada's truck airborne over the center median where the truck crashed into other cars. Moncada died of the injuries he suffered as a result of blunt force trauma of the head and neck. Appellant was charged with and convicted of intoxication manslaughter. This appeal followed.
Sufficiency of the Evidence
        In her first and second issues, appellant claims the evidence is legally and factually insufficient to support her conviction. Under these issues, appellant argues no rational fact finder could have found she was intoxicated at the time of the accident and the evidence supporting the verdict is so weak that the jury's determination seems clearly wrong and manifestly unjust. We disagree.
        When reviewing sufficiency of the evidence challenges, we employ well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). Under a legal sufficiency review, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). The jury is the sole judge of the witnesses' credibility and the weight to be given their testimony and, as such, is free to accept or reject any or all of the evidence presented by either side. Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Lawrence v. State, 211 S.W.3d 883, 885 (Tex. App.-Dallas 2006), aff'd, 240 S.W.3d 912 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 2056 (2008). In circumstantial evidence cases, it is unnecessary for every fact to point directly and independently to appellant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper, 214 S.W.3d at 13; Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether the fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006, pet. ref'd). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the verdict. Watson, 204 S.W.3d at 417. We cannot conclude a conviction is “clearly wrong” or “manifestly unjust” simply because we would have voted to acquit. Watson, 204 S.W.3d at 417. The jury, as fact finder, is in the best position to evaluate the credibility of the witnesses, and our factual-sufficiency jurisprudence still requires an appellate court to afford “due deference” to the fact finder's determinations. See Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S. Ct. 87 (2007). Although the reviewing court is permitted “to substitute its judgment” for the jury's when considering credibility and weight determinations, it may do so only “to a very limited degree.” Marshall, 210 S.W.3d at 625 (citing Watson, 204 S.W.3d at 417).
        A person commits the offense of intoxication manslaughter if she (i) operates a motor vehicle in a public place and (ii) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake. Tex. Penal Code Ann. § 49.08. Intoxicated means “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body.” Tex. Penal Code Ann. § 49.01 (Vernon 2003). Circumstantial evidence of intoxication and a causal connection with the death of the deceased may include evidence of the defendant's appearance, condition, and actions at or near the time of the accident; the manner in which the defendant managed her vehicle; and the victim's injuries. Kennemur v. State, 2008 WL 1991730, *7 (Tex. App.-Amarillo 2008, pet. filed) (citing Sanchez v. State, 398 S.W.2d 117, 120 (Tex. Crim. App. 1966) (speed prior to collision probative); Allen v. State, 149 Tex. Crim. 612, 197 S.W.2d 1013 (1946) (speed and force of collision relevant); Mercer v. State, 143 Tex. Crim. 196, 157 S.W.2d 919, 920 (1941) (witness testified he saw appellant driving in peculiar manner, weaving back and forth from shoulder of road to center, and that appellant's speech was thick and “not very intelligent”)).
        At trial, Linda Rochner testified that, around 8 a.m. on March 19, 2007, she was driving to work when she noticed a black Dodge Durango SUV driving east on Northwest Highway. The vehicle was swerving, moving erratically, and speeding. Rochner focused on the car because she thought there was something wrong and was contemplating calling 911. She tried catching up to the vehicle and, although she sped up to 60 miles per hour, she could not catch the SUV. According to Rochner, Northwest Highway is a heavily traveled street and was very busy that morning. Rochner estimated the SUV was traveling between 65 and 70 miles per hour although the posted speed limit is 45 miles per hour. Rochner lost sight of the SUV when she had to stop for a red traffic light at Lawther Drive. After the light changed, Rochner continued east. She then came upon the multiple-car accident at the intersection of Northwest Highway and Buckner Boulevard. Rochner stopped her car, got out, and walked over to the driver's side of the SUV. The dash board was “horribly” smashed in, and the air bags were deployed. Appellant was in the driver's seat. She looked unconscious but was moaning. There was no doubt in Rochner's mind that the SUV was the same one that had been driving erratically and speeding on Northwest Highway.         Henry Lloyd Davis, a former patrolman and sheriff, testified he was traveling east on Northwest Highway on the morning of March 19 when he stopped at the traffic light at Buckner Boulevard. He heard a loud explosion and looked in his rearview mirror. He saw debris and a tire coming toward his car at a very high rate of speed. The tire hit the back of his car, moving it about eight feet. At the same time, he saw a truck going over the center median. He got out of his car and walked toward the truck. He saw several people trying to help the person inside so he went back to the Durango where he saw appellant. She was dressed in a terry cloth gown, something like bed clothes or a nightgown. She was mumbling, then said “Is this fucking Saturday night?” Davis testified that, although he was no longer a police officer, he had arrested people for driving while intoxicated and knew the definition of intoxication was someone not having the normal use of her mental or physical facilities due to the introduction of drugs or alcohol. Davis testified that, as a thirteen-year veteran police officer, he thought appellant was intoxicated. He also testified that, as a forty-nine-year-old lay person, he believed appellant had been out all night partying and that she was intoxicated. He based his belief on her dress, erratic behavior, her driving behavior, and the statements she made. Appellant was injured and had to be cut out of her vehicle. Davis testified he can no longer be a peace officer because he was convicted of forging prescription medication and is currently on probation. He testified he had been in a very serious accident three years before and was on life support for 89 days. During his hospital stay, he had 1,159 doses of morphine and codeine. After he was released, he was still in pain and forged the prescriptions. He has been off prescription drugs since October 2004. Detective Joe Greco, an accident investigator with the Dallas Police Department, testified he responded to a call about the accident at Northwest Highway and Buckner. After interviewing the witnesses and based on his training and experience, he concluded the black SUV driven by appellant caused the wreck. No witnesses heard screeching sounds or the sound of brakes being applied before the accident. According to Detective Greco, the damage to appellant's SUV and Moncada's truck was consistent with witness statements that appellant was traveling “upwards of 70 miles per hour” at the time of the crash.
        Officer Scott Reinert with the Dallas Police Department testified he went to the hospital where he assisted Officer James in giving appellant her statutory warnings before having a blood sample drawn. Appellant told the officers she was taking the prescription medications Lexapro, Respidol, and Xanax. When asked about the last time she took her medications, she asked what day it was. Officer Reinert asked her what day she thought it was, and she responded “Friday.” It was Monday. The officers also asked whether she took illegal drugs, and appellant stated she took methamphetamine and marijuana. She was unable to recall when she last took either illegal drug. Officer Reinert was present when nurse Tonya Oglesby drew appellant's blood. Officer James received the blood samples and deposited them in the evidence locker. Officer Reinert testified that, based on his ten years' experience on the DWI squad and multiple years' experience as a police officer, appellant did not have the normal use of her mental or physical facilities due to the introduction of either her prescription medication or the illegal drugs.
        Aria McCall, forensic toxicologist with the Southwest Institute of Forensic Sciences for Dallas County, testified she tested appellant's blood for alcohol and drugs. A complete drug screen was performed: the alcohol concentration was zero, but the test revealed 0.18 milligrams per liter of methamphetamine and 0.095 milligrams per liter of carboxy-tetrahydrocannabinol, the inactive metabolite of tetrahydrocannabinol or marijuana. McCall testified that, unlike alcohol, there is no per se limit for drugs. She also testified that although there are limited therapeutic uses for methamphetamine, the level in appellant's blood was above a therapeutic range. McCall stated the most intoxicating substance in appellant's blood was the methamphetamine and described the effects the drug had on people using it. Initially, the drug has a stimulative action on the body causing the user to have rapid speech, continual talking, euphoric feelings, and a potential for aggression. As the amount of drug in the body decreases, the user goes through a “crash phase” when the body becomes largely fatigued, the mind slows down, and the user may have an inability to stay awake at all.
        Appellant testified she traveled to Dallas on Friday, March 16 because she had a job interview in Plano on Monday at 3 p.m. She spent Friday and Saturday nights with friends, Bobby and Danny, who lived on Gaston Avenue. Friday night they smoked marijuana and rearranged furniture. Appellant snorted “three lines of methamphetamine” and stayed up all night. She denied using any drugs Saturday or Saturday night. On Sunday, appellant drove to Richardson and spent the night with another friend, Eddie, because his house was closer to her interview in Plano. Appellant testified she arrived at Eddie's around 7 p.m. and that they “did methamphetamines” and watched movies. According to appellant, she did not sleep much Sunday night but she estimated the effects of the methamphetamine wore off around 3 a.m. Around 7 a.m., Eddie told appellant she had to leave because he was going to work. Appellant decided to return to Bobby and Danny's house to get some sleep. She admitted she felt tired but did not feel impaired. She recalled driving south on Interstate 75. Traffic was heavy so she exited on Northwest Highway. She did not recall much about Northwest Highway except that she felt groggy. She did not remember approaching the intersection at Buckner or the accident; the next thing she could recall was waking up in the hospital with a policeman putting handcuffs on her. She did not deny being involved in the accident or hitting the other cars. She admitted being responsible for Moncada's death, however, she denied being intoxicated at the time of the accident. She admitted she was tired Monday morning when she left Eddie's house and that she was tired because of the drug use.         Viewed in the light most favorable to the judgment, the evidence shows appellant stayed up all night Friday and Sunday nights, doing drugs with friends. She left Eddie's house in Richardson on Monday morning around 7 a.m. because Eddie had to go to work. Appellant decided to drive south to Bobby and Danny's house to get some sleep. Although she had been up all night after ingesting methamphetamine, she did not think she was impaired. She drove south until she reached the Northwest Highway exit. She turned east on Northwest Highway where she drove erratically and at an excessive speed. As she approached the intersection at Buckner Boulevard, she did not slow down. She hit Moncada's truck, causing it to become airborne and crash into other cars. Moncada died as a result of his injuries. Davis, a former police officer who was involved in the multiple car wreck, checked on appellant and testified he believed she was intoxicated. Appellant was transported to the hospital where her blood was drawn and tested for drugs. The test was positive for methamphetamine and marijuana. Officer Reinert oversaw the blood draw and testified that, in his opinion, appellant was intoxicated. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for intoxication manslaughter. Furthermore, after reviewing all the evidence in this case, we cannot conclude that the great weight and preponderance of evidence contradicts the verdict. Because the jury was rationally justified in finding guilt beyond a reasonable doubt, we conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's first and second issues.
Admission of Evidence
 
        In her third issue, appellant claims the trial judge abused her discretion in admitting appellant's book-in photograph during trial. Appellant contends the photograph was irrelevant, prejudiced and confused the jury, and resulted in reversible harm to her. We disagree.         We review the decision to admit evidence under an abuse of discretion standard and will not reverse that decision absent a clear abuse of discretion. McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). The trial judge abuses her discretion when the decision lies outside the zone of reasonable disagreement. McCarty, 257 S.W.3d at 239; Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992).
        Evidence is relevant if it has any tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Tex. R. Evid. 401. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. Nevertheless, when a trial judge balances the probative value of the evidence against the danger of unfair prejudice, a presumption exists that favors the evidence's probative value. Feldman v. State, 71 S.W.3d 738, 754-55 (Tex. Crim. App. 2002); Andrade v. State, 246 S.W.3d 217, 227 (Tex. App.-Houston [14th Dist.] 2007, pet. ref'd) (citing Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997)).
        Detective D.T. Marchetti testified he assisted in the investigation of the case. The detective identified appellant in court and identified her book-in photograph. With respect to the latter, Detective Marchetti testified appellant was booked into jail several days after the offense because she spent those days in the hospital. He also testified the photograph fairly and accurately reflected the way appellant looked at the time of her arrest. The photograph showed appellant's head and face; it would therefore demonstrate the extent of any head and facial injuries appellant sustained. Thus, the photograph was relevant.
        In addition, the probative value of the photograph was not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See Tex. R. Evid. 403 (relevant evidence may still be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusion of issues, or misleading jury, or by considerations of undue delay, or needless presentation of cumulative evidence). The relevant criteria for determining whether the prejudice of admitting the evidence substantially outweighs the probative value include the following: (i) the probative value of the evidence; (ii) the potential the evidence has to impress the jury in an irrational but nevertheless indelible way; (iii) the time needed to develop the evidence; and (iv) the proponent's need for the evidence to prove a fact of consequence. State v. Mechler, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). If the record reveals one or more of these considerations led to a risk that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice, then we should conclude the trial judge abused her discretion in admitting the evidence. See Reese v. State, 33 S.W.3d 238, 241 (Tex. Crim. App. 2000).
        As previously noted, the photograph is probative to show what appellant looked like shortly after the offense as well as the extent of the injuries to her head. And while the photograph alone could have impressed the jury in an irrational but indelible way, the testimony surrounding its admission clarified that the photograph was taken at book-in days after the offense. The State's witness testified appellant had been in the hospital during that time. On cross-examination, the same witness testified “everyone would agree that [appellant's] not under the influence of any drugs in that photo.” It did not take much time to lay the foundation for admission of the photograph or to develop the evidence.   See Footnote 1  Finally, appellant concedes the State needed this evidence. In light of these factors and under these circumstances, we cannot conclude the trial judge abused her discretion in allowing the photograph. We overrule appellant's third issue.
        In her final issue, appellant contends the judgment reflects 9/28/2007 as the date sentence was imposed when the reporter's record reflects sentence was imposed on 9/27/2007. Appellant requests we reform the judgment to correctly reflect September 27, 2007 as the sentencing date. The State concedes the judgment should be reformed.
        We have the authority to modify an incorrect judgment when we have the necessary data and information to do so. Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); McCoy v. State, 81 S.W.3d 917, 920 (Tex. App.-Dallas 2002, pet. ref'd). Here, the reporter's record shows the jury assessed punishment and the trial judge sentenced appellant on September 27, 2007. We sustain appellant's final issue. We modify the judgment deleting “9/28/2007” under “Date Sentence Imposed” and replacing it with “9/27/2007.”
        We affirm the trial court's judgment as modified.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071346F.U05
 
Footnote 1 Although appellant complains the photograph was particularly harmful because it “remained on display before the jury-at least until the defense began its case on the next day of trial,” the record does not reflect appellant's book-in photograph was so displayed. The State introduced fifty-four exhibits during its case in chief, forty of which were photographs. There was also one diagram of the scene, used by several witnesses during their testimony. Although defense counsel's requested to “take down all the State's Exhibits during my case in chief,” there is nothing in the record to suggest which of the fifty-four exhibits was displayed throughout trial. Under these circumstances, we cannot conclude appellant's argument has merit.