William Bumgarner v. The State of Texas--Appeal from 241st District Court of Smith County

OPINION HEADING PER CUR

NO. 12-05-00243-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

WILLIAM BUMGARNER, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

 

MEMORANDUM OPINION

A jury convicted Appellant, William Bumgarner, of the offense of intoxication manslaughter. The trial court found that Appellant twice had been convicted of a felony offense and had used a deadly weapon in the commission of this offense. The trial court assessed Appellant s punishment at confinement for life. Appellant presents two issues on appeal challenging the legal and factual sufficiency of the evidence and the trial court s admission of expert testimony. We affirm.

Background

Appellant was the driver of a vehicle that crossed over the center line of the roadway and collided head on with another vehicle. The driver of the other vehicle died in the collision. The absence of any skid marks on the pavement indicated that Appellant was apparently unaware that he crossed out of his lane into the oncoming traffic. Appellant sustained a broken leg and wrist and cuts to his face. He also suffered minor closed injuries to his head.

Appellant remained pinned in his car for forty-five minutes after the accident. According to the paramedics who helped free him from his car, Appellant initially told them that he was not hurt and to leave him alone. He laughed and talked in a way that showed he did not understand the nature of his injuries.

 

Dr. John Berne, the trauma surgeon at East Texas Medical Center, treated Appellant upon his arrival at the hospital. The emergency personnel told Dr. Berne that Appellant was drunk, and this, coupled with Appellant s confusion and otherwise strange behavior, led Dr. Berne to believe that Appellant was intoxicated. At some point while he was with Dr. Berne, Appellant lost consciousness. Dr. Berne acknowledged that Appellant s head injuries could account for his altered mental state. Appellant refused to voluntarily provide a blood sample. A sample of his blood was taken approximately one and one half hours after the accident. The preliminary analysis disclosed no alcohol in the sample. After the initial test, the Department of Public Safety (DPS) mailed the sample to the Austin DPS lab for further testing.

The DPS lab did not test the sample for at least two months after it was received. The tests discovered trace amounts of cocaine and 0.59 milligrams per liter of a cocaine metabolite (benzoylecgone) in Appellant s blood. The DPS forensic toxicologist who made the analysis explained that cocaine metabolite is produced when cocaine breaks down in a person s system and that cocaine in the blood sample would continue to break down while it was in the test tube waiting to be tested. The toxicologist estimated that, given the level of cocaine metabolites found, Appellant would have had to have ingested five or six hits of cocaine fairly close to the time of the accident. The toxicologist further explained that any amount of cocaine affects the use of one s mental and physical faculties. She testified with absolute certainty that Appellant had more than a trace amount in his blood at the time of the accident.

A DPS drug recognition expert, Sergeant Jackson, testified that he was qualified by training and experience to assess whether Appellant was under the influence of cocaine when the fatal accident occurred. The trial court allowed Sergeant Jackson to testify over Appellant s objection. Sergeant Jackson had not examined Appellant, but gave his opinion based solely on an examination of Appellant s file, which did not contain some information ordinarily relied upon by experts in drug recognition. Sergeant Jackson explained that any amount of cocaine in the user s body is dangerous, because even a small amount will cause the user to make poor decisions driving down the highway. It was Sergeant Jackson s opinion, based upon Appellant s conduct, both at the scene and at the hospital, and the laboratory reports showing the presence of cocaine metabolites, that Appellant was impaired and under the influence of cocaine at the time of the accident and that Appellant s cocaine-induced impairment caused the wreck and fatal injuries to the other driver.

Appellant called Dr. Springfield, a supervising toxicologist at the Tarrant County Medical Examiner s office. In Dr. Springfield s opinion, the presence of cocaine metabolites in Appellant s blood sample tested months after the accident did not constitute scientific proof that Appellant was under the influence of cocaine when the wreck occurred. The cocaine, she believed, could easily have been ingested a sufficient time in advance of the accident so that no cocaine remained in his system when the accident occurred. She believed that Appellant was not under the influence of cocaine when the wreck happened.

Legal and Factual Sufficiency of the Evidence

In his first issue, Appellant challenges the legal and factual sufficiency of the evidence.

Standard of Review

The standard for reviewing a legal sufficiency challenge is whether, viewing the evidence in the light most favorable to the jury s verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). In Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004), the court of criminal appeals explained the factual sufficiency standard.

There is only one question to be answered in a factual-sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and contrary to the verdict. Weighing all evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so [that] the guilty verdict should not stand. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard.

Id. at 484-85.

The jury determines the credibility of the witnesses and it may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). It is for the jury to accept or reject reasonably equal competing theories of the case. Goodman v. State, 66 S.W.3d 283, 287 (Tex. Crim. App. 2001).

Applicable Law

A person commits the offense of intoxication manslaughter if the person operates a motor vehicle in a public place while intoxicated and by reason of that intoxication causes the death of another by accident or mistake. Tex. Pen. Code Ann. 49.08(a) (Vernon 2003). 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. Id. 49.01(2)(A).

Discussion

Although acknowledging that the presence of cocaine metabolites in his blood showed that he had taken cocaine sometime before the accident, Appellant contends no person could say that cocaine, as opposed to its waste products, was still present in his system and depriving him of the normal use of his faculties at the time of the fatal collision. The two head injuries, he argues, could easily account for his strange behavior at the scene and in the emergency room.

Trooper Mitchum, a trained accident reconstruction specialist, testified that the accident was caused when Appellant crossed out of his clearly marked lane across the centerline of the roadway and ran head on into the victim s vehicle. There were no skid marks from either vehicle until after the collision. This, Trooper Mitchum said, indicated that Appellant was unaware before the crash that he was driving into oncoming traffic. Appellant initially refused medical attention at the scene and told the paramedics to leave him alone. He laughed and seemed not to understand the nature of his injuries, which were serious if not life threatening. He was at times combative and refused to voluntarily give a blood sample. James Ezell, a ten year veteran paramedic, said that the only time he had seen people behave as Appellant acted was when they were on something or taking something. Dr. Berne said that Appellant s actions when he saw him in the emergency room led him to believe Appellant was intoxicated.

The tests on Appellant s blood performed reasonably soon after the accident disclosed no alcohol. The tests for cocaine performed months later could have found little more than cocaine metabolites since the metabolic breakdown of cocaine into cocaine metabolites continued in the test tube while the sample awaited testing. From the level of metabolites present, Kathy Erwin, a DPS certified toxicologist, conservatively estimated that Appellant took five or six hits of cocaine. She testified that she was absolutely certain that Appellant had more than a trace of cocaine in his system at the time of the accident. The jury heard a wealth of evidence about the effects of even small amounts of cocaine and that any amount affects one s mental and physical faculties. Even if Sergeant Jackson s conclusion that Appellant s cocaine intoxication caused the wreck is disregarded, there was an abundance of evidence from which the jury could have reached the same conclusion unaided by Sergeant Jackson s opinion.

Appellant consumed cocaine prior to driving, crossed into oncoming traffic, made no effort to stop before the fatal collision, and appeared disoriented and intoxicated to the paramedics and officers at the scene and to the emergency room physician. The evidence was both legally and factually sufficient to support his conviction. Appellant s first issue is overruled.

Error in the Admission of Expert Testimony

In his second issue, Appellant complains that the trial court erred in allowing the State s drug recognition expert to testify, over objection, regarding Appellant s intoxication even though the expert (Sergeant Jackson) had performed none of the tests required in order to form his expert opinion.

Standard of Review

The question of whether a witness offered as an expert possesses the required qualifications rests largely in the trial court s discretion. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000). Absent a clear abuse of that discretion, the trial court s decision to admit or exclude testimony will not be disturbed. Id. The special knowledge which qualifies a witness to give an expert opinion may be derived from specialized education, practical experience, a study of technical works, or a varying combination of these things. Id. Because the range of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses sufficient qualifications to assist the jury as an expert on a specific topic in a particular case. See Joiner v. State, 825 S.W.2d 701, 708 (Tex. Crim. App. 1992).

Discussion

During voir dire examination, Sergeant Jackson testified that he had been a highway patrolman for eleven years, a trained drug recognition expert (DRE) for six years, and an instructor in the program for four years. The basic seminar lasts two weeks, followed by approximately three months of field studies. The DRE program of the Texas Department of Public Safety is administered by Sam Houston State University. The participants receive intensive training regarding how various drugs affect the human body and how to identify the drug involved. In a typical case, the DRE interviews a subject for forty-five minutes and makes an evaluation based upon the subject s objective symptoms such as blood pressure, pupil dilation, and the subject s behavior. The recognition methods are based on scientific principles. A DRE must be re-certified every two years, and their evaluations are subject to peer review. Sergeant Jackson acknowledged that he had not interviewed Appellant and had not observed the symptoms that a DRE would typically rely on in a field interview. In this case, he was testifying based on the documents in the file including the blood test, as well as his knowledge of how cocaine affected the human body. Sergeant Jackson told the court that the knowledge and experience he had gained in face-to-face interviews could be applied to subjects he had not observed firsthand.

At the close of voir dire Appellant objected to the admission of Sergeant Jackson s testimony based on Kelly v. State,1 Daubert v. Merrell Dow Pharmaceuticals, Inc.,2 and Texas Rule of Evidence 702. The trial court made extensive and detailed findings that all the requisites to the admissibility of expert testimony had been satisfied and overruled Appellant s objection. Midway through Sergeant Jackson s testimony before the jury, Appellant s counsel reiterated his objection and was granted a running objection by the trial court.

On appeal, Appellant specifically urges that Sergeant Jackson s testimony was not admissible because Sergeant Jackson had been trained to conduct a forty-five minute interview with a suspect where he could observe the suspect s blood pressure, pulse, and pupil dilation in order to determine what drug, if any, affected the person examined. Since Sergeant Jackson did not interview Appellant, the argument continues, he had done nothing his training and experience required him to do in order to form an opinion as to Appellant s intoxication. Therefore, he argues, the trial court erred in admitting his testimony.

Sergeant Jackson had substantial training and experience, not only in drug recognition from objective symptoms, but also in the mechanism and effects of various drugs, including cocaine. He acknowledged during his voir dire examination that he had not interviewed Appellant, but that he was qualified to give his opinion based on the tests and observations in Appellant s file. He said that he had testified as an expert in numerous cases where he had not interviewed the defendant. As he noted in his testimony before the jury, it would have been impossible to conduct a face-to-face interview with a subject trapped in a car with a broken femur and wrist. In this case, he could rely on a test that showed that Appellant had ingested a considerable amount of cocaine, and he had the benefit of the observations of the paramedics, police officers, and the emergency room physicians.

The record reflects that Sergeant Jackson was qualified as a DRE by his training and experience, the subject matter of his testimony was an appropriate one for expert testimony, and his testimony would assist the fact finder. The trial court did not abuse its discretion in admitting his testimony. Appellant s second issue is overruled.

Disposition

The judgment is affirmed.

BILL BASS

Justice

Opinion delivered July 12, 2006.

Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment.

(DO NOT PUBLISH)

 

1 824 S.W.2d 568, 569 (Tex. Crim. App. 1992).

2 509 U.S. 579, 590, 113 S. Ct. 2786, 2795, 125 L. Ed. 2d 469 (1993).