Aidan Vitela v. the State of Texas

Opinion

Fourth Court of Appeals San Antonio, Texas OPINION

Nos. 04-19-00737-CR, 04-19-738-CR

Aidan VITELA, Appellant

v.

The STATE of Texas, Appellee

From the 451st Judicial District Court, Kendall County, Texas Trial Court Nos. 5942 & 6023 Honorable Kirsten B. Cohoon, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Patricia O. Alvarez, Justice Luz Elena Chapa, Justice Lori I. Valenzuela, Justice

Delivered and Filed: September 29, 2021

AFFIRMED

In this appeal from a consolidated guilty verdict for one count of criminally negligent

homicide and one count of aggravated assault, Appellant Aidan Vitela argues that the trial court

abused its discretion 1) by denying his motion to suppress evidence of his car’s “black box” event

data recorder, 2) by allowing the State’s expert witnesses to testify and admitting black box

evidence after a Daubert hearing, and 3) committed reversible error by denying a request for a

mistrial due to improper closing statements by the prosecutor. He also argues that the evidence 04-19-00737-CR, 04-19-00738-CR

against him was legally insufficient to support a conviction for criminally negligent homicide. For

the reasons given below, we affirm the trial court’s judgment.

BACKGROUND

On March 12, 2015, Vitela was driving his two friends, Victoria Snell and Sydney Smith,

down Scenic Loop in Boerne. He sped around a curve and lost control of his car, crashing into a

tree. Smith died due to her injuries in the crash. As part of the police investigation, officers

obtained a search warrant to recover Vitela’s black box event data recorder from his car. Once

officers collected the evidence, they performed a download of the recorder’s data to gain

information on the car’s speed at and before the time of the crash.

In preparation for trial, Vitela challenged the officers’ authority to seize his car’s black box

and access its information. He also challenged the black box’s reliability. But the trial court

denied Vitela’s pretrial motion to suppress as well as his pretrial request to disqualify the State’s

expert witnesses or exclude the black box data as unreliable evidence. After the jury heard the

State’s evidence, the prosecutor argued that Vitela had driven recklessly, which Vitela disputed.

The jury convicted Vitela of the lesser offense of criminally negligent homicide and found him

guilty of aggravated assault for injuring Snell. Vitela now appeals, arguing for this court to reverse

and remand his case for a new trial.

ADMISSIBILITY OF BLACK BOX EVIDENCE UNDER THE 4TH AMENDMENT

A. Parties’ Arguments

Vitela argues that the warrant police used to seize his car’s black box was not based on

probable cause and that the black box was not found in the place where police expected to find it.

Consequently, he argues that his motion to suppress the evidence should have been granted. The

State responds that Vitela abandoned his car and had no standing to complain of any seizure related

to it.

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B. Standard of Review

A trial court’s ruling refusing to suppress evidence is generally reviewed for an abuse of

discretion. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Guzman v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997). But the appellate court uses a bifurcated standard,

reviewing applications of law de novo. State v. Ruiz, 581 S.W.3d 782, 785 (Tex. Crim. App. 2019)

(citing Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013)). This standard gives

almost total deference to a trial court’s determination of historical facts, especially when resolving

the mixed questions of law and fact turning on evaluation of credibility and demeanor. Crain, 315

S.W.3d at 48 (citing St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007)).

C. Applicable Law

To collect evidence from a suspect’s vehicle, police must obtain a warrant based on

probable cause, unless an exception to the warrant requirement applies. See Gonzales v. State, 190

S.W.3d 125, 134 (Tex. App.—Houston [1st Dist.] 2005, pet. ref’d) (citing Katz v. United States,

389 U.S. 347, 357 (1967)). However, if a suspect has abandoned a vehicle, he may have no

standing to challenge any evidence collected from it. See Gonzales, 190 S.W.3d at 135 (citing

Swearingen v. State, 101 S.W.3d 89, 101 (Tex. Crim. App. 2003)). The test to determine whether

a suspect has abandoned his vehicle turns on whether the suspect showed intent to abandon it and

whether the suspect’s intent was based on any police misconduct. Gonzales, 190 S.W.3d at 135

(citing McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim. App. 1997) (holding automobile

abandoned when left in motel parking lot for six days and defendant went to another state)).

D. Analysis

In its Findings of Fact, the trial court found that Vitela’s car was towed to a wrecker’s lot

following the crash and that the company notified Vitela he could collect his car after he paid the

towing and storage fees. Vitela made no effort to collect the car, and his insurer sent it to an auto

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auction. The auto auction is where law enforcement officers discovered the car, and it is where

they ultimately collected the black box evidence. The State is correct that the record reflects

Vitela’s apparent intent to abandon his car by his lack of effort to collect it or to communicate with

anyone about whether he planned to collect it. When the police obtained evidence from the car, it

was about to be sold by Geico. Therefore, Vitela maintained no standing to challenge the evidence

collected. See Gonzales, 190 S.W.3d at 135. We overrule his argument regarding the trial court’s

ruling on his motion to suppress the black box evidence.

ADMISSIBILITY OF BLACK BOX EVIDENCE, STATE’S EXPERT TESTIMONY UNDER DAUBERT

A. Parties’ Arguments

Vitela argues that the State’s expert witnesses lacked adequate expertise and should not

have been permitted to testify. He also argues that the black box evidence associated with his car

was unreliable because the black box police discovered on the passenger seat of his car was not of

the same make as his car, 1 the data itself showed many errors, and it was unclear how the data

related to Vitela’s crash, if it corresponded at all. At trial, he challenged the admissibility of this

evidence under Daubert, but the trial court overruled his objection.

The State argues that Vitela waived his argument in part by not objecting to the science

underlying the black box evidence at trial. The State further argues that its expert witnesses were

qualified to assist the jury in deciding the case, and that Vitela suffered no prejudice from the

evidence admitted through the State’s expert witnesses because Vitela offered and admitted similar

evidence.

1 The black box was labeled Subaru, though his vehicle was a Toyota.

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B. Standard of Review

An appellate court reviews a trial court’s admission of evidence and expert testimony for

an abuse of discretion, i.e., whether the trial court’s ruling was within the zone of reasonable

disagreement. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (citing Prystash

v. State, 3 S.W.3d 522, 527 (Tex. Crim. App. 1999); Montgomery v. State, 810 S.W.2d 372, 391

(Tex. Crim. App. 1990)).

C. Applicable Law

“A witness who is qualified as an expert by knowledge, skill, experience, training, or

education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or

other specialized knowledge will help the trier of fact to understand the evidence or to determine

a fact in issue.” TEX. R. EVID. 702; Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019);

Wooten v. State, 267 S.W.3d 289, 297 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). In other

words, to testify as an expert, a witness must be qualified in their area of testimony, the area of

testimony must be appropriate for an expert witness, and the anticipated testimony should help the

jury decide the case. Rhomer, 569 S.W.3d at 669 (citing Vela v. State, 209 S.W.3d 128, 131 (Tex.

Crim. App. 2006)). But “[t]his is not the same thing as requiring every expert to be the best

possible witness.” Id. at 670. For example, additional education might make a witness more

authoritative on a topic but may not be necessary to adequately help a jury decide a case. See id.

In fact, “experience alone can provide a sufficient basis to qualify a person as an expert.” Carter

v. State, 5 S.W.3d 316, 319 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). Ultimately, the

decision to allow a witness to testify as an expert lies within the sound discretion of the trial court

and will not be overturned absent an abuse of discretion. See id. at 320.

Furthermore, the data that an expert might analyze is not likely to be precluded at trial or

censured on review unless it is too unreliable to help the jury decide the case. See Tex. Workers’

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Comp. Comm’n v. Garcia, 862 S.W.2d 61, 105 (Tex. App.—San Antonio 1993), rev’d on other

grounds, 893 S.W.2d 504 (Tex. 1995) (citing Thompson v. Mayes, 707 S.W.2d 951, 956 (Tex.

App.—Eastland 1986, writ ref’d n.r.e.)). Evidence is usually accepted in relevant scientific fields

which are not new or novel. LaBorde v. Shelter Mut. Ins. Co., 80 So. 3d 1, 1–2 (La. Ct. App.

2011). Introducing black box evidence in a collision case, for example, is not new or novel. See

id. (citing Commonwealth v. Zimmermann, 873 N.E.2d 1215 (Mass. App. Ct. 2007); Matos v.

State, 899 So. 2d 403 (Fla. Dist. Ct. App. 2005); State v. Shabazz, 946 A.2d 626 (N.J. Super. Ct.

Law Div. 2005)). Such evidence may be subjected to rigorous cross-examination at trial. See,

e.g., In re Melton, 597 A.2d 892, 903–04 (D.C. 1991). But objections to its reliability will most

likely go to the weight of the evidence rather than to its admissibility. Id. (citing Bertolotti v.

Dugger, 883 F.2d 1503, 1517 (11th Cir.1989), cert. denied, 497 U.S. 1032 (1990)).

D. Analysis

The State’s expert witnesses in this case were both crash investigators for the Texas

Department of Public Safety. The lead investigator, Trooper Kendrick, testified that he had been

an officer with DPS for over eleven years. He testified that he first received crash investigation

training at the DPS academy, and then later went on to attend two additional crash schools with

DPS. As a highway trooper, investigating crash scenes was part of his job duties. Trooper

Kendrick estimated that over the course of his career, he had worked hundreds of crash scenes. In

this case, Trooper Kendrick measured the skid marks at the crash scene, inspected Vitela’s car,

and he collected the black box evidence. He also used computer software and crash investigation

equipment to determine a drag factor for Scenic Loop. He testified that this process allowed him

to calculate Vitela’s minimum speed from the skid mark measurements. Based on Trooper

Kendrick’s DPS training and extensive experience, we cannot agree with Vitela that it was an

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abuse of discretion to allow Trooper Kendrick to testify regarding the crash investigation he

conducted in this case. See Rhomer, 569 S.W.3d at 669.

Trooper Bacon assisted Trooper Kendrick in the crash investigation. At trial, Trooper

Bacon testified that he had worked for DPS for fifteen years and attended all six levels of crash

school offered by DPS as well as several continuing education conferences. Part of his job duties

included investigating crash scenes. In this case, Trooper Bacon was responsible for downloading

black box data. At trial, he provided context for data obtained from the black box, including errors

listed in the data printout, and he offered expertise in crash investigations generally. Based on

Trooper Bacon’s significant training and experience in this area, we cannot conclude that the trial

court abused its discretion by allowing Trooper Bacon to testify regarding crash investigations.

See id.

Furthermore, the black box data was not too unreliable to admit for the jury’s consideration,

especially considering that the evidence did not stand alone, and it was corroborated by other

evidence at trial. See Garcia, 862 S.W.2d at 105. Given that black box data is neither new or

novel, the trial court did not abuse its discretion by admitting the evidence and allowing parties to

examine and explain its significance for the jury to consider. See LaBorde, 80 So. 3d at 1–2. We

overrule Vitela’s arguments pertaining to Daubert.

LEGAL SUFFICIENCY

A. Parties’ Arguments

Vitela argues that the evidence against him was legally insufficient to establish that his

crash on Scenic Loop was due to criminal negligence. The State argues that the evidence against

Vitela was legally sufficient to establish that he committed criminally negligent homicide and that

his convictions should be affirmed.

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B. Standard of Review

When determining whether there is sufficient evidence to support a conviction, the

reviewing court “consider[s] the combined and cumulative force of all admitted evidence in the

light most favorable to the verdict to determine whether, based on that evidence and the reasonable

inferences therefrom, a jury was rationally justified in finding guilt beyond a reasonable doubt.”

Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citing Jackson v. Virginia, 443 U.S.

307, 318–19 (1979)); accord Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010).

“Because the jury is the sole judge of the credibility of witnesses and of the weight given to their

testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict.”

Espino-Cruz v. State, 586 S.W.3d 538, 543 (Tex. App.—Houston [14th Dist.] 2019, pet. ref’d)

(citing Jackson v. State, 530 S.W.3d 738, 741–42 (Tex. App.—Houston [14th Dist.] 2017, no

pet.)). “The verdict may not be overturned unless it is irrational or unsupported by proof beyond

a reasonable doubt.” Gamelin v. State, No. 14-08-00977-CR, 2010 WL 1037944, at *2 (Tex.

App.—Houston [14th Dist.] Mar. 23, 2010, no pet.) (citing Matson v. State, 819 S.W.2d 839, 846

(Tex. Crim. App. 1991)).

C. Applicable Law

For the jury to convict Vitela of criminally negligent homicide, the jurors had to agree that

the State proved beyond a reasonable doubt that Vitela caused Smith’s death and that he ought to

have been aware of the substantial and unjustifiable risk posed by speeding down Scenic Loop of

possibly crashing and causing a person’s death. See TEX. PENAL CODE ANN. §§ 6.03(d), 19.05;

Stadt v. State, 182 S.W.3d 360, 364 (Tex. Crim. App. 2005) (citing Aliff v. State, 627 S.W.2d 166,

171 (Tex. Crim. App. 1982)). The jurors also had to agree that the risk was of such a nature and

degree that the failure to perceive it was a gross deviation from the standard of care that an ordinary

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person would exercise in Vitela’s position. See TEX. PENAL CODE ANN. §§ 6.03(d), 19.05; Stadt,

182 S.W.3d at 364 (citing Aliff, 627 S.W.2d at 171).

D. Analysis

Five seconds before Vitela entered a curve in the road and crashed into a tree, the black

box from his car recorded his speed at 115 miles per hour. In the following seconds, the event

data recorder documented Vitela’s diminishing speed as he neared the crash site: 113.7, 113.1,

110, 106.9, 101.9, 95.7, and 85.7 miles per hour. In the final second before the crash, the black

box recorded Vitela’s decreasing speeds as 80.8, 67.1, and 64.6 miles per hour. The lead crash

investigator for the State measured skid marks in the road and gleaned through his training and

experience that Vitela’s minimum possible speed just before he collided with the tree would not

have fallen below 61.7 miles per hour. Vitela’s expert witness estimated that Vitela was driving

88 miles per hour at some point before the collision and that Vitela was driving 66 miles per hour

where the car’s skid marks began.

As noted by the State, the speed limit approaching the curve was posted as 15 miles per

hour. One eyewitness to the crash who lived directly off Scenic Loop testified that Vitela was

audibly speeding faster than he had previously heard at that stretch of road. As Vitela attempted

the curve, the eyewitness said aloud, “He ain’t going to make it.” Vitela then missed the turn and

crashed into a tree, killing his friend. In reviewing all of the evidence taken together and resolving

any discrepancies in favor of the verdict, we conclude that it was not unreasonable for the jury to

find beyond a reasonable doubt that Vitela failed to perceive a substantial and unjustifiable risk

that he could crash his car and kill or injure his passengers by driving about fifty miles per hour

over the posted speed limit when he entered the fatal curve, and that it was a gross deviation from

the standard of care that an ordinary person would exercise in Vitela’s position.

We overrule Vitela’s sufficiency argument and next address his improper argument issue.

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IMPROPER ARGUMENT BY THE PROSECUTOR DURING CLOSING STATEMENTS

A. Parties’ Arguments

Vitela argues that the prosecutor’s closing argument contradicted trial evidence, injected

new harmful facts to the jury, and the court’s instructions did not cure the impact of the

prosecutor’s statements so that Vitela would likely not have been convicted but for the statements’

injurious effect. The State argues that the prosecutor’s statements were proper, that the trial court’s

instruction to disregard the prosecutor’s statements was effective, and Vitela did not consistently

make the correct objection.

B. Standard of Review

An appellate court reviews a trial court’s denial of a mistrial for abuse of discretion. Archie

v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007).

C. Applicable Law

“In order to be appropriate, jury argument must fall within one of the following areas: (1)

summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument

of opposing counsel; or (4) a plea for law enforcement.” Pittman v. State, 9 S.W.3d 432, 434 (Tex.

App.—Houston [14th Dist.] 1999, no pet.) (citing Hughes v. State, 878 S.W.2d 142, 157–58 (Tex.

Crim. App. 1992)). To be reasonable, “a deduction may only be based upon evidence which was

actually introduced.” Id. (citing Lovelace v. State, 662 S.W.2d 390, 392 (Tex. App.—Dallas 1983,

pet. ref’d untimely filed)).

If a prosecutor’s closing argument is found to be improper on review, the appellate court

must determine whether the improper argument warrants reversal. Id. (citing Mosley v. State, 983

S.W.2d 249, 259 (Tex. Crim. App. 1998), cert. denied, 526 U.S. 1070 (1999)). “The following

three factors are used to analyze the harm associated with improper jury argument: (1) severity of

the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures

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adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3)

the certainty of conviction absent the misconduct (the strength of the evidence supporting the

conviction).” Jones v. State, 38 S.W.3d 793, 797 (Tex. App.—Houston [14th Dist.] 2001, pet.

ref’d) (citing Mosley, 983 S.W.2d at 259)). Instructions to disregard are presumed to be complied

with by the jury. Archie, 340 S.W.3d at 741.

D. Analysis

During the prosecutor’s closing argument, Vitela made two requests for a mistrial after the

State argued in the first instance that Vitela drove around the fatal curve at 113 miles per hour, and

in the second instance that Vitela drove 115 miles per hour around the curve. After the first

instance, Vitela objected to facts not in evidence, and the trial court agreed that there was no

evidence to support the argument that Vitela drove 113 miles per hour around a curve. The trial

court instructed the prosecutor to remove a slide related to the improper argument and instructed

the jury to disregard the statement. The trial court denied Vitela’s first request for a mistrial.

Immediately following the bench conference, the prosecutor said, “Recklessness: driving 115

miles per hour around a curve.” Vitela objected to facts not in evidence, and the trial court

instructed the prosecutor to return for another bench conference, explaining for a second time why

such an argument could not be based on the evidence elicited during trial. The prosecutor clarified

what she could properly argue, and Vitela requested a mistrial once more, which the trial court

again denied. After closing arguments, the jury acquitted Vitela of manslaughter and convicted

him of negligent homicide.

We agree that the prosecutor’s statements at issue were not based on the evidence elicited

at trial and were therefore improper. However, we do not agree that the statements caused Vitela

to be convicted when he otherwise might not have been. First, the jury is presumed to have

followed the trial court’s instruction to disregard the prosecutor’s argument regarding the speed at

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which Vitela drove around the curve where the crash occurred. It must have been clear to the jury

that the prosecutor was called to the trial court’s bench for correction each time she claimed that

Vitela was driving over one hundred miles per hour in the fatal curve, and that she had to change

her closing argument as a result. During trial, the jury heard both parties’ expert testimony

regarding Vitela’s speed up to the point of collision. Nowhere does the record reflect that the jury

substituted the prosecutor’s statements for the actual evidence, especially considering that Vitela

was acquitted of manslaughter. Second, the trial evidence supported a jury finding that Vitela

disregarded a substantial and unjustifiable risk that he should have perceived, and that it was a

gross deviation from the standard of care that an ordinary person would have taken in his position.

See Jones, 38 S.W.3d at 797. Vitela’s data recorder documented his speed at 115 miles per hour

five seconds before his collision. Vitela’s expert witness estimated that Vitela was driving 66

miles per hour where his skid marks began. The State’s expert calculated that Vitela’s speed would

not have fallen below 61.7 miles per hour just before he collided with the tree. The posted speed

limit for the curve was fifteen miles per hour, significantly lower than any of the evidence

established as Vitela’s speed at the time. For these reasons, we overrule Vitela’s argument

regarding the prosecutor’s improper statements.

CONCLUSION

We conclude that the trial court did not abuse its discretion by admitting Vitela’s black box

as evidence after determining that Vitela abandoned his car and lacked standing to challenge the

evidence seized from it. Likewise, the trial court did not abuse its discretion by allowing the State’s

crash investigators to testify regarding their investigation and on their reading of the crash data

from the black box. We also conclude that the evidence was legally sufficient to establish that

Vitela caused Smith’s death when he drove at a high rate of speed into a curve, disregarding a

substantial and unjustifiable risk that he should have perceived, and that it was a gross deviation

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from the standard of care that an ordinary person would have taken in his position. Lastly, we

conclude that while the State made an improper argument regarding the speed at which Vitela

drove around the curve where the crash occurred, the trial court effectively corrected the State’s

argument and instructed the jury to disregard the unfounded statements. Vitela did not show he

would likely not have been convicted absent the State’s conduct.

We overrule Vitela’s issues on appeal and affirm the judgment of the trial court.

Patricia O. Alvarez, Justice

PUBLISH

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