Branum v. State

535 S.W.3d 217
Court of Appeals of Texas·Decided November 22, 2017·No. NO. 02-16-00285-CR·Published·Cited by 33 cases

Opinion

OPINION

LEE GABRIEL, JUSTICE

Appellant Beth M. Branum appeals from her conviction for intoxication manslaughter and twenty-year sentence. She argues that the trial court erred by denying her discovery requests, allowing testimony from an expert whom the State did not timely designate, admitting the results of her diagnostic, blood-serum test, and failing to incorporate the concurrent-cause instruction into the jury charge’s application paragraph for the offense. She asserts that each of these alleged errors mandates reversal of her conviction and a remand to the trial court for a new trial. Because we find no reversible error, we affirm-the trial court’s judgment.

I. BACKGROUND

- A. Facts Leading to Indictment

On March 8, 2014, Branum met several friends at a bar in Fort Worth. She arrived at 9:35 p.m., met her friend Jacquelyn Seltzer at the bar, and they each had a shot1 and a'beer before going to the table where the others were sitting. Within the next two hours, Branum bought four shots and four beers while at the table. Other people at Branum’s table also ordered drinks for each other throughout the evening. Branum closed her tab at 12:16 a.m. on March 9, 2014. Seltzer and her boyfriend, who was Seltzer’s designated driver, offered to take Branum home once the gathering began to break up because Bra-num had been drinking. But while Seltzer was closing her tab at the bar, Branum left without saying goodbye.

At 1:00 a.m., Branum called her ex-boyfriend, Yuri Tulchin, and asked if he would pick her up at the bar. She was intoxicated, was scared, and could not find her purse. Tulchin explained that he also had been drinking that night and suggested that Branum call a cab to take her to a hotel. The call was disconnected, and Bra-num began repeatedly texting Tulchin for the next two hours. The texts were mostly two- to three-word pleas for help, several of which contained nonsensical words such as “Usurp p” and ‘Yudizp.” Branum’s texts stopped at 3:14 a.m. after Tulchin texted: “[W]hat a mess. Did you get the hotel room?” It appears that Branum’s phone was “broken and inoperable” as of approximately 4:00 a.m.

At 5:00 a.m. on March 9, 2014, Rebecca Thompson was driving to work, approaching an intersection, when she saw a two-car accident and a woman standing in the street waving her arms to get Thompson’s attention. When she stopped and got out of her car, Thompson noticed that the woman — Branum—had a swollen ankle. When Thompson approached the other car, she immediately recognized that the driver— Brandon Bennett — was dead.2 Branum reached in and “rubbed his chest and kind of shook him to get him to wake up” to no avail. Thompson called 911. While they waited for police, Branum told Thompson that the accident happened after she had “escaped” from a gas- station where an attendant “was trying to make her stay,” fled to her car, and “just started driving.” There was no gas station in the surrounding area.

The responding police officer, Lynette Gilliam, arrived at the scene at approximately 5:13 a.m. Branum told Gilliam that she had been at a bar the night before where she had two shots, that she had left the bar in a cab, and that she had been driving the car that hit Bennett. She elaborated to Gilliam that the cab driver had driven her around randomly and would not let her out of his cab until she paid. After she escaped from the cab, she ran to her car and drove away. Branum related that she stopped at a gas station and that the next thing she remembered was reaching into Bennett’s car to check on him.

Gilliam noticed that Branum’s eyes were “bloodshot and watery,” that her breath “moderately]” smelled of alcohol, and that she spoke slowly. Gilliam began administering field-sobriety tests to Branum. Because of her injured ankle, Branum was unable to perform the walk-and-turn test or the one-leg-stand test. With the horizontal-gaze-nystagmus test, Gilliam noted that Branum’s pupils were equally sized and that she could track equally for “one pass” but that she could not concentrate on the stimulus, forcing Gilliam to stop the test before it was complete. After Branum was taken to a hospital, Gilliam obtained a search warrant for a specimen of Branum’s blood.

Branum arrived at the hospital at 6:14 a.m. She again reported to a nurse that a cab driver had tried to keep her in his cab until she paid, that she jumped out of the cab once she saw her car, that she drove around after no one would help her, and that she was driving fifty miles per hour when she “T-boned another vehicle.” She stated that she had consumed two shots and three beers before the accident. The nurse smelled alcohol on Branum and concluded that she was intoxicated. For diagnostic purposes, the attending physician ordered blood samples, which were drawn at 6:50 a.m. These results showed that Branum had 150 milligrams of ethyl alcohol per deciliter. At 7:44 a.m., police officers arrived at the hospital with the search warrant and obtained two samples of Bra-num’s blood. The blood drawn under the warrant was tested six times — one sample was tested four times on two separate days and the other sample was tested two times on one day — and Branum’s blood-alcohol concentration at the time of the two draws ranged from 0.0953 to 0.1033 grams of ethanol per deciliter, all above the legal limit.3 See Tex. Penal Code Ann. § 49.01(2)(B) (West 2011). The variances between the results from the samples drawn pursuant to the warrant were not scientifically significant.

B. Pretrial

On June 30, 2014, a grand jury indicted Branum with the intoxication manslaughter of Bennett and included an allegation that Branum had used a deadly weapon — a motor vehicle — during the commission of the offense. See Tex. Penal Code Ann. § 1.07(a)(17)(B) (West Supp. 2017), § 49.08(a) (West 2011); see also Tex. Gov’t Code Ann. § 508.145(d) (West Supp. 2017) (explaining effect of deadly-weapon finding on parole eligibility). On May 12, 2015, a grand jury presented a reindictment additionally charging her with manslaughter. See Tex. Penal Code Ann. § 19.04(a) (West 2011).

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Branum v. State, 535 S.W.3d 217 (Tex. Ct. App. 2017).

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