Monica Galvan v. State

Opinion

ACCEPTED

13-14-00059-CR

THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS

9/28/2015 9:44:36 PM

Dorian E. Ramirez

CLERK

No. 13–14–00059–CR

COURT OF APPEALS FILED IN 13th COURT OF APPEALS

FOR THE THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI/EDINBURG, TEXAS CORPUS CHRISTI/ EDINBURG, TEXAS 9/28/2015 9:44:36 PM

DORIAN E. RAMIREZ

Clerk

MONICA GALVAN, § Appellant, § Appeal from the § 347th Judicial District Court versus § of Nueces County, Texas § Cause No. 11–CR–3519–H THE STATE OF TEXAS, § Appellee. §

REPLY BRIEF FOR APPELLANT

ORAL ARGUMENT REQUESTED

[Scheduled October 15, 2015]

DANTE E. DOMINGUEZ Bar No. 24086677 LAW OFFICE OF DANTE ELI DOMINGUEZ 310 S. St. Mary’s St. Suite 1215 San Antonio, Texas 78205 210-227-9399 210-229-1445 facsimile E-mail: ddominguez.law@gmail.com

TABLE OF CONTENTS

Index of Authorities ...................................................................................................1

Prayer .......................................................................................................................19

Certificate of Compliance ........................................................................................20

Certificate of Service ...............................................................................................21

Appendix………………………………………………………………………….22

ii

INDEX OF AUTHORITIES

Cases:

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)………………………..3

Elliot v. State, No. 13-13-00220-CR, 2015 WL 1869472 (Tex. App—Corpus

Christi, April 23, 2015)……………………………………………………12, 13, 14

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979)………………………………………………………………........................3

Johnson v. State, 364 S.W.3d 742 (Tex. Crim. App. 2012)…………………..16, 17

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)………………………...11

Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005)………………………….18

Rodriguez v. State, 834 S.W.2d 488 (Tex. App.—Corpus Christi 1992, no

writ.)…………………………………………………………………………..13, 14

Trepanier v. State, 940 S.W.2d 827 (Tex. App.—Austin 1997, writ

ref’d)......................................................................................................12, 13, 14, 15

Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007)…………….11, 13, 15

Rules and Statutes:

Texas Penal Code § 22.05………………………………………………………...19

Texas Transportation Code § 545.401…………………………………………….19

2

No. 13–14–00059–CR

COURT OF APPEALS

FOR THE THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI/ EDINBURG, TEXAS

MONICA GALVAN, § Appellant, § Appeal from the § 347th Judicial District Court versus § of Nueces County, Texas § Cause No. 11–CR–3519–H THE STATE OF TEXAS, § Appellee. §

REPLY BRIEF FOR APPELLANT, MONICA GALVAN

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS, THIRTEENTH JUDICIAL DISTRICT:

Appellant, MONICA GALVAN, by and through undersigned counsel

submits this, her Reply Brief, and seeks that her conviction be reversed and the

judgement of the trial Court be rendered, or in the alternative, that she be granted a

new trial.

INSUFFICIENT EVIDENCE

Points of Error 1 and 2 of Appellant’s Brief argue that “The Evidence is

Legally Insufficient To Sustain Conviction.” The State must produce “sufficient

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evidence to justify a rational trier of the facts to find guilt beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 313 (1979). This “is a test of

adequacy, not mere quantity.” Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim.

App. 2010) (Cochran, J., concurring). Evidence “cannot be ‘semi-sufficient,’” it

either is or is not legally sufficient to support a conviction. Id. at 913.

The State’s brief lists out, by bullet point, the evidence upon which it relies

to sustain Appellant’s conviction. State’s Brief at 22–23. For example, the State’s

simple, three word sentence, “Appellant was intoxicated,” is without foundation in

the record. State’s Brief at 22. In support of that statement, the State provided two

citations. The first cites the testimony of the arresting officer, as he described his

decision to arrest Mrs. Galvan-Manka on the night of the accident [3RR26–27],

and the second citation, “4 R.R. at 47” is a page in the record in which Mr. Manka

speculates, due to his poor memory of the day in question, as to how he arrived in

Corpus Christi from Alice, Texas, and the plans that he and Mrs. Galvan-Manka

had for that night. 4RR47. The State’s brief also cites the testimony of “Emily

Bovino, a forensic scientist with the Department of Public Safety,” [State’s Brief at

9–10], whose testimony included that “at the time of the collision, Appellant’s

blood alcohol level would have been anywhere between .10 and .15. 4 R.R. at 98-

99 & 104-105.” State’s Brief at 10. This testimony, is based upon a hypothetical

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asked by the State which did not include significant factors that are in the facts of

this case. The State asked Ms. Bovino:

Q. If I were to give you the hypothetical of say 120 to 130 pound person, female, rather who had three beers and one shot between the hours of 10:00 and 11:00, stopped drinking at 11:00, what could you tell the court about their BAC at 11:22?... 4RR98.

Q. Can you tell me one more time what based on our little hypothetical you thought her blood alcohol level would be right at 11:22? A. I would say if she is an average human, based on elimination rates, et cetera, I would say her BAC would be anywhere between a .10 and a .15. 4RR99.

This hypothetical rests upon the State’s assumption of the times in this case and

fails to take into account that Mrs. Galvan-Manka ate at Whataburger after leaving

the Pelican’s Lounge. 4RR22. This testimony was further debunked by Dr. Gary

Wimbish who testified that Mrs. Galvan-Manka’s blood alcohol concentration

“would have been lower at the time of the accident rather than post-accident… .05

is very reasonable” as to her probable blood alcohol level. 4RR158.

The State’s Brief attempts to advance the State’s trial theory that Mrs.

Galvan-Manka and Mr. Manka were angry with one another and engaged in a fight

immediately before the accident, and that the exchange between the two led to the

accident. The State’s Brief states, “[a] couple of seconds before the collision,

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Appellant was arguing with Manka and striking him on the shoulder three times to

make him shut up. 4 R.R. at 27, 33 & 96-97.” State’s Brief at 22 (citing the

testimony of Joseph Salinas).

Mr. Salinas’ testimony on the “tapping” [4RR96] clearly describes that the

event was not a forceful exchange, stating, it was “[m]ore like a ‘be quiet.’ There

was not excessive force behind that.” 4RR33. Further, Mr. Salinas testified that

the tapping had nothing to do and did not cause the accident. 4RR96. Mr. Salinas

testified,

A. … We wrecked afterwards. Q. What was the time lapse in between? A. I don't remember. I know there was a bit of a hiatus, possibly a minute or so. Q. Do you remember that it was a minute or? A. You know a minute, couple of minutes. Q. Do you remember the vehicle swerving at all? A. No.

It is clear that Mr. Salinas, the person relied upon by the State to show that an

altercation had taken place immediately before the accident, did not testify as such.

The State’s Brief also states that “[r]ather than following the slight bend in

the road, Appellant drove straight off the roadway and never veered. 3 R.R.at 34.”

State’s Brief at 22. At trial the arresting officer placed an “X” on a map provided

by the State to mark the accident location. 3RR18. The State’s Exhibit clearly

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shows that the stretch of road is a straightaway and does not curve. SE1–3;

10RR23–25.

The State’s Brief includes in its bullet point list,

● Just before the collision, Appellant’s vehicle was observed swerving and fishtailing. 5 R.R. at 7. ● Rather than following the slight bend in the road, Appellant drove straight off the roadway and never veered. 3 R.R. at 24. State’s Brief at 22.

These statements are contradictory. One has Mrs. Galvan-Manka “swerving and

fishtailing” as though she lost control of her vehicle after attempting to perform an

evasive maneuver; and the other has Mrs. Galvan-Manka driving “straight off the

roadway,” without veering, into a collision. Mrs. Galvan-Manka testified that

upon seeing a vehicle, without its lights on, approaching her, she veered to avoid a

collision. 5RR51. This is consistent with her having to take an evasive maneuver

to avoid a collision.

The State’s contention that “[a]fter the collision, Appellant disposed of the

beer bottles in a location where they were not likely to found. 3 R.R. at 48-49 &

51” [State’s Brief at 22] attempts to characterize that action as though Mrs.

Galvan-Manka took steps to remove evidence. That is clearly not the case. Some

of the beer bottles at the feet of Mr. Manka were broken [5RR53] and Mrs.

Galvan-Manka took this action, in view of Mrs. Cepeda, because the bottles were

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underneath the feet of Mr. Manka [5RR52] and Mrs. Galvan-Manka was

concerned that “it would cut Chris when I was trying to get him out.” 5RR53. It is

reasonable for one to remove sharp pieces of broken glass, from the feet of an

injured person trapped in a vehicle. It also shows that Mrs. Galvan-Manka was in

control of her mental and physical faculties, as she was taking action to help the

situation following the accident.

The State’s Brief states that “Appellant contends that since the jury acquitted

[Mrs. Galvan-Manka] of the intoxication assault charges, those verdicts preclude a

finding that she was impaired. Appellant’s Brief at 14.” State’s Brief at 24. This

is a mischaracterization of Appellant’s Brief. The statement to which the State

refers is when Appellant’s Brief points out that the jury acquitted Mrs. Galvan-

Manka of intoxication assault [6RR51–52] and goes on to state “[t]his is further

indication that Mrs. Galvan-Manka did not drink enough to become intoxicated.”

Appellant’s Brief at 14.

The State’s Brief incorrectly contends that “Appellant misstates the

evidence.” State’s Brief at 21. The State’s Brief then attempts to point out four (4)

instances in which the State claims that the Appellant’s Brief misstated the

evidence. See Id.

8

First, the State points out that on page 31, the Appellant’s Brief indicates

that “the highest rate of speed she was reported driving was only 58 miles per hour

[4RR111].” This is indeed correct. Officer Connor explained that the “pre-crash

data” revealed the speed of the vehicle “five seconds prior to the crash” and the

highest speed the system reported was “58 miles an hour, according to the data that

was received in the air bag control module.” 4RR111. The speed then decreased

to forty-seven (47) miles per hour, one (1) second prior to the collision. 4RR112.

Second, the State takes issue with the Appellant’s Brief stating that Mrs.

Galvan-Manka had “two Michelob Ultra beers.” State’s Brief at 21. Appellant’s

Brief is consistent with Mrs. Galvan-Manka’s testimony that she had “two to three

drinks of Michelob Ultra” [5RR49] and the next sentence of Appellant’s Brief cites

the testimony of Joseph Salinas who testified, “Monica did not have no more than

two drinks.” 4RR20. Appellant’s Brief also includes:

As to the amount of alcohol Mrs. Galvan-Manka drank that night, the testimony is clear as well. Mrs. Galvan-Manka testified that she “had two to three drinks of Michelob Ultra,” an extremely light beer. 5RR49. Mr. Salinas testified that he was certain that Mrs. Galvan- Manka had “no more than two drinks,” as he “would not have gotten in the car otherwise.” 4RR20. Mr. Manka testified that although he, understandably due to the accident, could not specifically remember how many drinks Mrs. Galvan-Manka had that night, he has “never seen her drink more than three drinks in [his] entire life.” 4RR61. In the, more than a decade, that he has known Mrs. Galvan-Manka, he has “never seen her take a shot,” [4RR62] and he has never seen her drunk. 4RR50. According the Officer Ramirez’s report, to which he

9

referred during his testimony, Mrs. Galvan-Manka reported to him that she had “three beers and… A bull blaster shot.” 3RR54–55. Appellant’s Brief at 14.

It is clear that the Appellant’s Brief did not attempt to mischaracterize the

testimony regarding the amount of alcohol Mrs. Galvan-Manka consumed the

night of the accident.

Third, the State’s Brief takes issue with the statement in Appellant’s Brief

that “Mrs. Cepeda testified that she could smell alcohol on the scene, moments

after Mrs. Galvan-Manka removed the broken bottles from the feet of Mr. Manka.”

Appellant’s Brief at 8. See State’s Brief at 21. Appellant’s brief cites 5RR11, and

does not misstate the testimony, as Mrs. Cepeda testified,

Q. Okay. Did you hear any noise when she threw it? A. It sounded like glass. Q. Did you observe anything else when you were nearby the defendant? A. I could smell alcohol when she was trying to rouse the young man. She was just acting really scared. I am sure she was. I would have been too. Just seem to be in a hurry, seemed to be anxious for him to wake up. I could smell alcohol on her breath when we were at the window. 5RR11.

As quoted above, Mrs. Cepeda testified that after hearing the sound of glass being

thrown, she “could smell alcohol when [Mrs. Galvan-Manka] was trying to rouse”

Mr. Manka. 5RR11. Appellant’s Brief also states that Officer Ramirez testified

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that he could smell alcohol on Mrs. Galvan-Manka’s breath. Appellant’s Brief at

16; 3RR24.

Four, on page 21, the State’s Brief takes issue with the Appellant’s Brief

referencing “the broken beer bottles on the floorboard of the vehicle.” See

Argument section of Appellant’s Brief at 32. This reference is consistent with the

testimony of Mrs. Galvan-Manka,

Q. The six pack, where was that before the accident? A. It was underneath Christopher. Q. Under his leg? A. Under his legs in the front seat, yes. 5RR52.

Q. So some of those bottles in the six pack were broken? A. Yes. Q. Some were not? A. A lot of them were broken. Yeah, there were some that were not broken. Q. You threw them out why? A. Because I was worried that it would cut Chris when I was trying to get him out. 5RR53.

The State points out that Mrs. Cepeda testified that “Once I looked in the window,

I could see blood on the man's face and again she was right next to me when she

was trying to wake him. Then eventually she ran around the back of the vehicle

and started doing something in the vehicle.” 5RR10. As such, saying that “the

smell of alcohol at the scene can be explained by the broken bottles of beer on the

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floorboard of the vehicle” [Appellant’s Brief at 32] is clearly not a misstatement of

the evidence.

The State’s Brief states the correct standard of review for a reviewing court

to examine the legal sufficiency of the evidence and includes that “[a]s long as the

verdict supported by a reasonable inference, it is within the province of the

factfinder to choose which inference is most reasonable.” Laster v. State, 275

S.W.3d 512, 523 (Tex. Crim. App. 2009). However, the State’s Brief does not

mention, as cited by Appellant’s Brief, Williams v. State, 235 S.W.3d 742 (Tex.

Crim. App. 2007), in which the Court of Criminal Appeals “granted appellant’s

petition for discretionary review to examine the culpable mental state of

recklessness.” Williams, 235 S.W.3d at 745. In Williams, the Court thoroughly

discussed the culpable mental state of recklessness, as described in Appellant’ s

Brief, and the Court stated,

Recklessness requires the defendant to actually foresee the risk involved and to consciously decide to ignore it. Such a “devil may care” or “not giving a damn” attitude toward the risk distinguishes the culpable mental state of criminal recklessness from that of criminal negligence, which assesses blame for the failure to foresee the risk that an objectively reasonable person would have foreseen. Williams, 735 S.W.3d at 751–52 (emphasis added) (internal citations omitted).

12

The State’s Brief argues that,

in a case of this nature, the defendant need not be aware of the specific risk posed to another. Trepanier v. State, 940 SW2d at 829; Elliott, 2015 WL 1869472, at *3. “[W]hat matters is that she consciously created an unjustified risk of danger to others.” Elliott, 2015 WL 1869472, at *3. State’s Brief at 25.

The State’s Brief relies heavily upon Elliot v. State, No. 13-13-00220-CR,

2015 WL 1869472 (Tex. App—Corpus Christi, April 23, 2015) 1 and Trepanier v.

State, 940 S.W.2d 827 (Tex. App.—Austin 1997, writ ref’d).

In Elliot, this Honorable Court examined a case in which the appellant

admitted “that she was intoxicated, fatigued, and distracted on the road [which]

demonstrated to a rational jury that she consciously created a substantial and

unjustifiable risk of danger to others.” Elliot, 2015 WL 1869472 at *3. Further,

“the jury could have inferred appellant’s recklessness from her furtive conduct

after the accident that demonstrated her consciousness of guilt.” Id. at *4. This

furtive conduct included, continuing to drive after she hit a pedestrian, making no

attempt to stop, going to an auto glass shop the next morning to replace her broken

windshield, telling someone that she was “too drunk” to remain at the scene of the

incident and she fled the scene to avoid arrest, and using bleach to wash the blood

1 Included in Appendix.

13

from her vehicle. Id. The facts of Elliot are strikingly different from the facts in

this case, especially the admissions made by the appellant in Elliot.

The State concedes this fact and states,

While Appellant made no such concession in this case, there is sufficient evidence in the record from which the jury could have reasonably concluded that Appellant created a substantial and unjustifiable risk of danger to others. See Trepanier, 940 SW2d 827, 830 (Tex. App.-Austin 1997, pet. ref’d) (despite lack of concession by appellant, evidence was sufficient to show that appellant created a substantial and unjustifiable risk). State’s Brief at 23–24.

The State ignores the Court of Criminal Appeals’ instruction that “[r]eckless

requires the defendant to actually foresee the risk involved and to consciously

decide to ignore it.” Williams, 235 S.W.3d at 751.

Trepanier v. State, 940 S.W.2d 827 (Tex. App.—Austin 1997, writ ref’d), is

a case decided a decade prior to the Court of Criminal Appeals’ decision in

Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007). In Trepanier, the

appellant was convicted of manslaughter after “rapidly accelerating” away from a

red light, cutting “between cars in the middle and right lanes until he reached the

unimproved right shoulder of the road,” and passing a delivery “truck on the right,

driving on the shoulder of the road” killing a bicyclist. Trepanier, 940 S.W.2d at

828. The court in Trepanier cited Rodriguez v. State, 834 S.W.2d 488 (Tex.

14

App.—Corpus Christi 1991, no writ)2, and noted that unlike Rodriguez, the

appellant in Trepanier did not make a concession, however,

there was sufficient evidence from which a reasonable juror could have concluded beyond a reasonable doubt that Trepanier voluntarily created a substantial and unjustifiable risk when he moved onto the shoulder in order to pass the delivery truck on the right, and that he consciously disregarded the risk of killing a bicyclist traveling legally on that shoulder when he continued on around the delivery truck. Trepanier, 940 S.W.2d at 829.

This Honorable Court cited Trepanier in its decision in Elliot for the

proposition that “In a manslaughter case, the jury is not required to find that a

defendant was aware of the specific risk of the victim’s death to find recklessness,”

noting that the specificity of knowing a particular victim could be injured was not

required. Elliot, 2015 WL 1869472 at *3. This Honorable Court went on to

describe that the appellant in Elliot was quite aware of the danger she caused, as

her admission, described above, indicated. Id. at *3–4.

This Honorable Court also cited Trepanier in a footnote in Elliot as an

example of finding recklessness in driving. Id. at *3, n. 3 (“determining driver was

reckless when he attempted to illegally pass traffic on right shoulder of the road”).

The aforementioned footnote cites four (4) cases in which appellate courts have

upheld the legal sufficiency of convictions involving the culpable mental state of

2 The facts and holding of Rodriguez v. State, 834 S.W.2d 488 (Tex. App.—Corpus Christi 1992, no writ) are discussed in Appellant’s Brief pages 29–30, and distinguished from the present case at page 32.

15

recklessness and drivers who blatantly disregarded safety. Id. All but Trepanier

were cited in Appellant’s Brief, which cites a total of seven (7) cases and

distinguishes the facts in those cases which would lead to a finding of recklessness,

from the facts in this case. See Appellant’s Brief at 27–33.

The actions of Mrs. Galvan-Manka and the situation she entered into by

driving on the night of the accident do not amount to a substantial and unjustifiable

risk which she consciously decided to take. Further, there is no evidence to

support that Mrs. Galvan-Manka “actually [did] foresee the risk and consciously

decide to ignore it” as required by Williams v. State, 235 S.W.3d 742 (Tex. Crim.

App. 2007). Even in a light most favorable to the verdict, there is insufficient

evidence for a rational juror to conclude that Mrs. Galvan-Manka acted recklessly

and her conviction should be reversed.

EVIDENCE INSUFFICIENT TO PROVE THE ALLEGATIONS IN THE INDICTMENT AND IN THE CHARGE OF THE COURT

Appellant’s Points of Error 3 and 4 argue that the State failed to produce any

evidence that Mrs. Galvan-Manka crasher her vehicle “INTO AND AGAINST A

BULLDOZER” as alleged in the indictment [1CR3–5] and as was instructed in the

Charge of the Court [1CR1261–68, paragraphs 10–11]. This was a fatal variance

16

and Mrs. Galvan-Manka’s rights to due process and due course of law were

violated.

In its brief, the State cites the same cases as Appellant, with the addition of

Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012). In Johnson, which the

State’s Brief relied heavily upon, the variance involved “the charged acts of

‘hitting the victim with his hand’ and ‘twisting the victim’s arm with his hand’

versus the proved act of ‘throwing the victim against the wall.’” Johnson, 364

S.W.3d at 298. The Court provided the following example to illustrate the

variance it was examining,

“Stabbing with a knife” and “bludgeoning with a baseball bat” are two possible ways of murdering Dangerous Dan, but they do not constitute separate offenses. These methods of committing murder do describe an element of the offense: the element of causation. But murder is a result-of-conduct crime. What caused the victim's death is not the focus or gravamen of the offense; the focus or gravamen of the offense is that the victim was killed. Id.

The Court goes on to explain that this type of variance cannot be material because

it cannot show “an ‘entirely different offense’ than what was alleged.” Id.

Here, the State’s use of “bulldozer” as the object struck by Mrs. Galvan-

Manka’s vehicle was heavily relied upon by the State, as described in Appellant’s

Brief. Unlike Johnson, this is not the difference between an allegation that the

defendant hit another with his hand and twisted the arm of another with his hand,

17

versus throwing another into a wall, this is the difference between twisting the arm

of the victim and throwing the victim off of the Grand Canyon. See Johnson, 364

S.W.3d at 298. The variance in this case was utilized again and again by the State

to conjure notions within the minds of the jury of Mrs. Galvan-Manka plowing her

vehicle into a steel bulldozer, capable of destroying buildings. The testimony of

Officer Ramirez is one example of this reliance, “It was not an average accident.

She had crashed into a bulldozer which never happens. I've never seen that before

in my ten years.” 3RR32. Officer Ramirez then admits that he does not know if it

was a bulldozer and another officer described it differently. 3RR33. The State

latched onto the term bulldozer to promote the effects of that term. The use of this

term prejudiced Mrs. Galvan-Manka and impaired her ability to prepare her defend

herself against an object which the State would describe over and over, but never

show. This prejudiced Mrs. Galvan-Manka and her conviction should be

overturned.

NON-UNANIMOUS VERDICT

Appellant’s Point of Error 5 argues that the Charge of the Court and the

closing argument of the State resulted in a non-unanimous verdict.

The State’s Brief contends that trial counsel did not object to the change in

the Charge of the Court, which the State argued in closing. State’s Brief at 31.

18

However, the trial court and the State were on notice of the object to the change.

The State requested a change “in Courts 3 and 4 to change ‘and’ to ‘or’” and

stated, “I have case law coming on that.” 5RR73–74. The trial court then went

into recess. 5RR74. In arguing the Motion for New Trial, defense counsel

reminded the trial court that the State, in its indictment, listed “a litany of things

that the defendant did wrong but when it came to charging the jury on the guilt

innocence charge, they wanted to use the word ‘or.’ We objected to it…” 9RR24.

This served the purpose of objecting to the change in the Charge of the Court

which the State argued in closing arguments.

The State’s Brief contends that reliance on Ngo v. State, 175 S.W.3d 738

(Tex. Crim. App. 2005), “is misplaced because that case dealt with an indictment

that contained three paragraphs within a single count that alleged three distinct

offenses." State’s Brief at 31–32. In Ngo, the Court of Criminal Appeals stated,

The State is mistaken in its first argument that the trial court simply submitted a single “credit card abuse” offense with three different statutory manners and means. The phrase “manner or means” describes how the defendant committed the specific statutory criminal act. It does not mean that the State can rely upon a laundry list of different criminal acts and let the individual jurors take their pick on which each believes the defendant committed. Ngo, 175 S.W.3d at 745.

19

Here the State, relying on the Charge of the Court argued to the jury, “juror

number 6 could think that it is by failing to keep the motor vehicle operated by the

defendant on the roadway while juror number 7 could say it is by operating a

motor vehicle while impaired.” 6RR9. The Charge of the Court, as illustrated by

this statement by the State allowed the jurors to convict Mrs. Galvan-Manka of

crimes which could range from Reckless Driving, [Tex. Transp. Code Ann. §

545.401(a) (“A person commits an offense if the person drives a vehicle in wilful

or wanton disregard for the safety of persons or property.”)] to Deadly Conduct

[Tex. Penal Code Ann. § 22.05 (a) (“A person commits this offense is he recklessly

engages in conduct that places another in imminent danger of serious bodily

injury.”).

As argued by Appellant’s Brief, this resulted in a non-unanimous verdict,

which harmed Mrs. Galvan-Manka. Thus, her conviction should be reversed.

PRAYER

As the evidence was legally insufficient to sustain Mrs. Galvan-Manka’s

conviction, it should be reversed and rendered. With regard to all other error, Mrs.

Galvan-Manka respectfully requests that her conviction be reversed and she be

granted a new trial.

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Respectfully submitted:

DANTE ELI DOMINGUEZ Bar No. 24086677 Law Office of Dante Eli Dominguez 310 S. St. Mary’s St. Suite 1215 San Antonio, Texas 78205 Phone: (210) 227-9399 Facsimile: (210) 229-1445 E-mail: ddominguez.law@gmail.com

By:__________/s/_________________ DANTE ELI DOMINGUEZ

Attorney for Appellant, MONICA GALVAN

CERTIFICATE OF COMPLIANCE I hereby certify that this document complies with the typeface requirements of

Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes. This document does

comply with the word-count limitations of Tex. R. App. P. 9.4(i) because it

contains 4,172 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

By:___________/s/________________ DANTE ELI DOMINGUEZ

21

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above foregoing Appellant’s Brief has been

served electronically, in compliance with Tex. R. App. P. 9.5(b)(1) to Mark

Skurka, District Attorney, 901 Leopard Street, Room 206, Corpus Christi, Texas,

on this the 28th day of September, 2015.

By:__________/s/_________________ DANTE ELI DOMINGUEZ

22

No. 13–14–00059–CR

COURT OF APPEALS

FOR THE THIRTEENTH JUDICIAL DISTRICT CORPUS CHRISTI/ EDINBURG, TEXAS

MONICA GALVAN, § Appellant, § Appeal from the § 347th Judicial District Court versus § of Nueces County, Texas § Cause No. 11–CR–3519–H THE STATE OF TEXAS, § Appellee. §

REPLY BRIEF FOR APPELLANT

APPENDIX

Elliot v. State, No. 13-13-00220-CR, 2015 WL 1869472 (Tex. App—Corpus Christi, April 23, 2015).

Elliott v. State, Not Reported in S.W.3d (2015)

defense; (3) the trial court erred in not allowing appellant 2015 WL 1869472 to cross-examine several State’s witnesses on their Only the Westlaw citation is currently available. personal driving habits to determine how an ordinary person would operate a vehicle; and (4) the trial court erred SEE TX R RAP RULE 47.2 FOR DESIGNATION in denying her motion to suppress text messages found on AND SIGNING OF OPINIONS. appellant’s company-issued phone under the Fourth Amendment. We affirm.

DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).

Court of Appeals of Texas, Corpus Christi-Edinburg.

Tabatha Elliott, Appellant, I. Background1 v.

The State of Texas, Appellee. On May 29, 2012, at approximately one o’clock in the morning, appellant was driving home in her Chrysler PT NUMBER 13–13–00220–CR | Delivered and filed Cruiser with an intoxicated passenger after leaving a bar April 23, 2015 when she struck a pedestrian, Gilbert Reyna, who died as a result of the injuries he sustained. At the time, Gilbert was On appeal from the 319th District Court of Nueces pushing a bicycle on the side of the road. He was County, Texas. Thomas Greenwell, Judge accompanied by his brother, Jesse Reyna. Jesse testified that he and Gilbert were walking on the shoulder of the Attorneys and Law Firms road when, suddenly, a vehicle struck Gilbert; however, Jesse could not identify the vehicle nor its driver, since the Andrew W. Loveall, Attorney at Law, Corpus Christi, TX, driver continued driving without stopping and “a lot of dirt for Appellant. and dust” obstructed his view as the vehicle drove away.

When morning came, appellant’s passenger informed Mark Skurka, District Attorney, Douglas K. Norman, Asst. investigating officers that appellant might have been District Attorney, Corpus Christi, TX, for The State. involved in the accident. Based on this tip, investigators Before Chief Justice Valdez and Justices Garza and made contact with appellant, who admitted that she struck Longoria something on the road and continued driving without stopping. Appellant was then taken into custody.

During a police interview admitted into evidence, appellant acknowledged that she considered the possibility MEMORANDUM OPINION that she had hit a person, but consistently stated that she thought it was an animal or a sign. She admitted that she Memorandum Opinion by Chief Justice Valdez had been reaching down to pick up a cigarette when, suddenly, she heard something hit her windshield. She *1 A jury found appellant, Tabatha Elliot, guilty of admitted that she had been drinking at a bar earlier that manslaughter, see TEX. PENAL CODE ANN. § 19.04 night with her passenger, that she was tired at the time of (West, Westlaw through 2013 3d C.S.), tampering with or the accident, that her intoxicated passenger was distracting fabricating physical evidence, see id. § 37.09 (West, her by being loud, and that she had to turn up the radio to Westlaw through 2013 3d C.S.), and accident involving drown him out. Appellant first stated that she went straight personal injury or death, see TEX. TRANSP. CODE ANN. to sleep after she arrived home, but later revealed that her § 550.021 (West, Westlaw through 2013 3d C.S.). By four passenger drove her back to the scene. She stated that the issues, which we have reorganized, appellant contends (1) police had already arrived when they returned to the scene the evidence was legally insufficient for a rational jury to and that, although she wanted to talk to the authorities, her convict her of manslaughter; (2) the trial court erred in passenger persuaded her to wait until the morning. allowing the State to introduce certain evidence concerning the situs of the accident on the basis that it constituted an *2 Vivian Sanchez, an inmate who was in jail with improper expert or lay opinion and unfairly prejudiced her appellant after her arrest, testified that appellant admitted © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1

Elliott v. State, Not Reported in S.W.3d (2015)

that she had consumed two shots of tequila and two beers manslaughter.2 Specifically, appellant contends that no on the night of the accident and that, after the accident, she evidence was presented that she “recklessly” caused attempted to wash blood off her car with Clorox and water. Gilbert’s death. See TEX. PENAL CODE ANN. § 19.04. Regarding appellant’s reason for not stopping, Sanchez testified: We conduct our sufficiency review by applying the Jackson v. Virginia standard of review. See Brooks v.

[Appellant] said, “I was too drunk to go back. I’m not State, 323 S.W.3d 893, 906 (Tex.Crim.App.2010) going to go back. Do you think I’m going to go back and (plurality op.). Under this standard, the relevant question is get arrested? No.” And then [appellant] was upset whether, after viewing the evidence in the light most because whoever she was with, I don’t know the name, I favorable to the prosecution, “any rational trier of fact don’t recall the name, that person was yelling for her to could have found the essential elements of the crime go back. And she said, “No. I’m going to wash this off, beyond a reasonable doubt.” See Jackson v. Virginia, 443 and I’ve got to get it done tonight.” And she did. U.S. 307, 319 (1979); see Brooks, 323 S.W.3d at 902 n.19.

The jury is the “exclusive judge of the credibility of The police investigation revealed that, a few hours after the witnesses and of the weight to be given testimony, and it is accident, appellant replaced her broken windshield with a also the exclusive province of the jury to reconcile new one, and that there were white marks on appellant’s conflicts in the evidence.” Wesbrook v. State, 29 S.W.3d car indicative that someone had tried to clean it. The lead 103, 111 (Tex.Crim.App.2000). The standard for investigator on the case testified that he elected not to reviewing the sufficiency of the evidence is the same for request a blood sample from appellant to determine alcohol both direct and circumstantial evidence. Kutzner v. State, content because too much time had elapsed between the 994 S.W.2d 180, 184 (Tex.Crim.App.1999). time of the accident and his initial contact with her to get an accurate result. *3 Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury The evidence showed that on the night of the hit-and-run, charge. Malik v. State, 953 S.W.2d 234, 240 Gilbert was wearing a black shirt and khaki shorts; his (Tex.Crim.App.1997). A hypothetically correct jury bicycle was dark and chrome in color; and there was “a lot charge is one that “sets out the law, is authorized by the of light” in the area where the accident occurred. indictment, does not unnecessarily increase the state’s According to Jesse, lights from a nearby building provided burden of proof or unnecessarily restrict the state’s theories additional visibility. Officers who collected evidence at the of liability, and adequately describes the particular offense accident scene testified that, although they were able to for which the defendant was tried.” Id. recover Gilbert’s bicycle, they could not locate a bicycle reflector at the scene; however, Jesse testified that the A person commits manslaughter if she recklessly causes bicycle was equipped with a reflector underneath the seat the death of an individual. See TEX. PENAL. CODE prior to the accident. ANN.. § 19.04(a). A person acts recklessly with respect to the result of her conduct when she is aware of, but The jury found appellant guilty and assessed punishment at consciously disregards, a substantial and unjustifiable risk fifteen years in prison for manslaughter, ten years in prison that the result will occur. Id. § 6.03(c) (West, Westlaw for tampering with or fabricating physical evidence, and through 2013 3d C.S.). The risk must be of such a nature ten years in prison for accident involving personal injury or and degree that its disregard constitutes a gross deviation death, with the sentences to run concurrently. The jury also from the standard of care that an ordinary person would assessed a $10,000 fine on each of the three counts. This exercise under all circumstances as viewed from the appeal followed. actor’s standpoint. Id.; Garza v. State, 50 S.W.3d 559, 564 (Tex.App.–Houston [1st Dist.] 2001, no pet.). “[P]roof of a culpable mental state generally relies on circumstantial evidence.” Lopez v. State, 630 S.W.2d 936, 942 (Tex.Crim.App. [Panel Op.] 1982) (quoting Dillon v.

II. Discussion State, 574 S.W.2d 92, 94 (Tex.Crim.App. [Panel Op.]

1978)). A culpable mental state may be inferred from the A. Sufficiency of the Evidence defendant’s acts, words, and conduct. Dues v. State, 634 By her fourth issue, appellant contends the evidence was S.W.2d 304, 306 (Tex.Crim.App.1982). “At the heart of insufficient for a rational jury to convict her of reckless conduct is conscious disregard of the risk created © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2

Elliott v. State, Not Reported in S.W.3d (2015)

by the actor’s conduct.” Lewis v. State, 529 S.W.2d 550, the sound of any squealing tires before appellant struck 553 (Tex.Crim.App.1975). Recklessness can be applied Gilbert, and investigators could not locate any skid marks generally to the act of driving. See Porter v. State, 969 at the scene. Furthermore, appellant admitted that she was S.W.2d 60, 63 (Tex.App.–Austin 1998, pet. ref’d).3 In a searching for a cigarette in her car when, suddenly, she hit manslaughter case, the jury is not required to find that a something on the road. Appellant’s admission that she was defendant was aware of the specific risk of the victim’s distracted on the road could have indicated to a rational death to find recklessness. See Trepanier v. State, 940 jury that the accident was not due to poor visibility S.W.2d 827, 829 (Tex.App.–Austin, 1997 pet. ref’d). conditions, as appellant argued at trial; rather, it was due to her failure to keep a proper lookout and maintain a single Appellant challenges the sufficiency of the evidence as to lane, as the State alleged in its indictment. the mental state element of manslaughter requiring the State to prove that she recklessly caused Gilbert’s death.4 Finally, the jury could have inferred appellant’s The State’s manslaughter indictment alleged that appellant recklessness from her furtive conduct after the accident was reckless “by failing to control her motor vehicle, that demonstrated her consciousness of guilt. See Cockrum [failing] to keep a proper lookout, [failing] to maintain a v. State, 758 S.W.2d 577, 581 (Tex.Crim.App.1988) single lane of travel, [failing] to keep her vehicle on the (holding that the defendant’s demeanor after the crime, in roadway, and by driving her motor vehicle onto the the form or nervous or furtive behavior, may indicate shoulder of the roadway.” Here, by her own admission, guilty knowledge and be used as evidence of guilt). The appellant was voluntarily intoxicated and distracted at the evidence showed that appellant continued driving after she time of the accident. Appellant admitted that she consumed hit Gilbert, that she made no attempt to stop, and that she two shots of tequila and two beers at a bar before the went to an auto glass shop to replace her broken windshield accident. She also admitted that she was “drunk,” tired, as soon as the morning came. The investigating officer distracted by her passenger, and reaching for a cigarette in who made initial contact with appellant noticed white her car moments before she struck Gilbert. Appellant’s marks on the surface of appellant’s car, which appeared to admission that she was intoxicated, fatigued, and distracted the officer as though someone had tried to remove on the road demonstrated to a rational jury that she something from the surface. Appellant further showed a consciously created a substantial and unjustifiable risk of consciousness of guilt when she told Sanchez that she was danger to others. See Rodriguez v. State, 834 S.W.2d 488, “too drunk” to remain at the accident scene, that she fled to 490 (Tex.App.–Corpus Christi 1992, no pet.) (holding avoid being arrested, and that she washed blood off her car evidence legally sufficient based on appellant’s statement with Clorox and water after the accident. that she took the corner “too fast,” which indicated that she was aware of the risk created by her conduct); see also Viewed in the light most favorable to the prosecution, the Rubio v. State, 203 S.W.3d 448, 452 (Tex.App.–El Paso evidence showed that appellant allowed her vehicle to veer 2006, pet. ref’d) (observing that driving under the onto the shoulder of the road as a result of a combination of influence of alcohol can be used to show conscious factors that, taken together, indicated she consciously disregard of substantial risk). It does not matter that created and disregarded a substantial and unjustified risk of appellant may not have perceived the specific risk that her harm to the people around her. Because we do not believe conduct would cause another person to die; what matters is it was unreasonable for the jury to find the element of that she consciously created an unjustified risk of danger to recklessness beyond a reasonable doubt, we overrule her others. See id. fourth issue.

*4 Moreover, the jury could have reasonably inferred that nothing prevented appellant from noticing Gilbert on the side of the road before she struck him. The jury heard B. Evidentiary Rulings evidence that (1) the bicycle Gilbert pushed was partially By her first and third issues, appellant contends that the chrome in color and equipped with a reflector underneath trial court made improper evidentiary rulings that the seat, (2) lights from a nearby building illuminated the prejudiced her ability to present a defense. area, (3) Gilbert was wearing khaki shorts, and (4) Gilbert was walking on the shoulder of the road.5 Although Gilbert was reasonably visible to drivers on the road, there was no evidence that appellant made any attempt to avoid the a. Area of Impact (State’s Exhibit Number 9) accident; for instance, Jesse testified that he did not hear By her first issue, appellant contends that the trial court © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3

Elliott v. State, Not Reported in S.W.3d (2015)

erred in allowing the State to introduce a diagram of the accident scene into evidence. Specifically, appellant After hearing all of this testimony, the trial court overruled complains of a representation in the State’s diagram, which appellant’s objections and allowed the State to introduce indicated that her car struck Gilbert in an area that was the diagram into evidence; however, the court provided the situated exclusively within the shoulder of the road, following cautionary instruction to the State: referred to in the diagram as “AOI” or “area of impact.” Appellant asserts the area of impact designation should not Okay, I’m going to let [the diagram have been admitted into evidence on the basis that (1) the depicting the area of impact into officers who investigated the accident scene were not evidence] as long as the State proper lay witnesses under Texas Rule of Evidence 701 understands, that the State needs to because they did not see the accident occur and, therefore, have sufficient explanation of what could not render an opinion about the area within which the it is and not mislead the jury that it’s impact could have occurred; (2) the officers were not something other than what it is. It’s qualified as experts under Rule 702 to render an opinion not scientific evidence, it’s not about where the impact could have occurred; and (3) the based on any sort of scientific probative value of the evidence concerning area of impact determination, and also that the was substantially outweighed by the danger that it could circle that’s drawn in the shoulder is mislead the jury and unfairly prejudiced her case under not necessarily ... even accurate. Rule 403. Both officers already testified that the area of impact could be much greater than [it is depicted in the diagram] and could extend out into the roadway.

1. Pertinent Facts

*5 The trial court held a hearing outside the presence of the jury to determine the admissibility of the area of impact designation in the State’s diagram. Two officers testified 2. Analysis

about how they determined the area of impact. Regarding the area of impact, the officers testified to the following: We review a trial court’s decision to admit or exclude (1) they based the area of impact on the first piece of debris evidence for an abuse of discretion. Shuffield v. State, 189 they came upon on the right side of the road; (2) Jesse, who S.W.3d 782, 793 (Tex.Crim.App.2006). A trial court does was present for the accident, did not know where the not abuse its discretion if its decision falls within the zone impact actually occurred and did not aid the officers in of reasonable disagreement. See Walters v. State, 247 making the determination; (3) the area of impact was not S.W.2d 204, 217 (Tex.Crim.App.2007). We will sustain determined by utilizing any kind of scientific theory or the trial court’s decision if that decision is correct on any principle; (4) the officers were not experts in the field of theory of law applicable to the case. Romero v. State, 800 accident reconstruction or the like; and (5) it is common in S.W.2d 539, 543 (Tex.Crim.App.1990). the investigation of an accident involving a fatal hit-and-run of a pedestrian with no witnesses to determine Generally, “observations which do not require significant the area of impact by reviewing the spread of debris found expertise to interpret and which are not based on a on the road. The officers also testified that “area of impact” scientific theory can be admitted as lay opinions if the is not the same as “point of impact.” The “area of impact” requirements of [Texas Rule of Evidence] 701 are met.” refers to the general area within which the “point of Osbourn v. State, 92 S.W.3d 531, 537 impact” is believed to have occurred. The officers testified (Tex.Crim.App.2002). Under Rule 701, a lay witness can that it was not possible to identify a point of impact in this testify in the form of an opinion if the opinion is (a) case. On cross-examination, both officers testified that the rationally based on his or her perceptions and (b) helpful to diagram may not accurately depict the actual size of the the clear understanding of the testimony or the area of impact; they testified that, although the diagram determination of a fact in issue. See TEX. R. EVID. 701; limited the area of impact to the shoulder of the road, the see also Fairow v. State, 943 S.W.2d 895, 898 actual area could be six to ten feet wider than it is shown in (Tex.Crim.App.1997). the diagram and could have extended onto the road.

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Elliott v. State, Not Reported in S.W.3d (2015)

The first requirement for admissibility, perception, refers It appears that the trial court, after hearing the testimony of to a “witness’s interpretation of information acquired the officers, determined that the diagram’s depiction of the through his or her own senses or experiences at the time of area of impact was not necessarily reflective of the the event (i.e., things the witness saw, heard, smelled, officers’ opinion concerning the actual size of the area of touched, felt, or tasted).” Osbourn, 92 S.W.3d at 535. impact; although the diagram limited the area of impact to Thus, a witness’s testimony can include opinions, beliefs, the shoulder of the road, the officers testified that the actual or inferences “as long as they are drawn from his or her area of impact was not necessarily limited to the shoulder own experiences or observations.” Id. Once the perception and could have extended out onto the roadway. Although requirement is satisfied, the trial court must then determine the trial court acknowledged that the diagram’s depiction if the opinion is “rationally based on that perception. An of the area of impact was “not necessarily ... accurate,” the opinion is rationally based on perception if it is an opinion trial court reasonably determined that this evidence would that a reasonable person could draw under the be helpful to the jury as long as the State, in presenting the circumstances.” Fairow, 943 S.W.2d at 899–900. evidence, “sufficient[ly] explain[ed]” the inaccuracy and did not mislead the jury into believing that the area of The second requirement for admissibility under Rule 701 impact was limited to the shoulder of the road. Our review is that the opinion must be “helpful to the trier of fact to of the record indicates that the State heeded the trial court’s either understand the witness’s testimony or to determine a curative instruction by presenting the diagram in a manner fact in issue.” Id. There is no bright line indicating when an that accurately illustrated the officers’ testimony opinion is helpful, but the court of criminal appeals has concerning the area of impact. Considering the manner in explained that “general evidentiary considerations of which the jury received the evidence at issue, we cannot relevance and balancing will invariably assist the trial conclude that the trial court abused its discretion in ruling judge in making his determination.” Id. For example, “a the way it did.6 See Fairow, 943 S.W.2d at 899–900. trial court properly acting within its discretion may determine that the confusing, misleading or cumulative Even if we were to assume that the trial court erred in nature of an opinion renders it not helpful to the trier of fact admitting the complained—of portion of the diagram into and thus improper under Rule 701.” Id. at 900. Even if a evidence, we would nevertheless be compelled to conclude lay opinion meets both requirements under Rule 701, a trial that the error, if any, was harmless. We review the court has discretion under Rule 403 to exclude the opinion erroneous admission of evidence under a harm analysis for if its probative value is substantially outweighed by a nonconstitutional error. See Walters v. State, 247 S.W.3d danger of unfair prejudice or misleads the jury. See TEX. 204, 219 (Tex.Crim.App.2007). Under this analysis, we R. EVID. 403. must disregard a nonconstitutional error that does not affect the defendant’s substantial rights. See TEX. R. APP.

*6 Here, the trial court could have reasonably concluded P. 44.2(b). The erroneous admission of evidence does not that the officers’ opinion as to the area of impact was not affect substantial rights if this Court, “after examining the based on a scientific theory and did not require significant record as a whole, has fair assurance that the error did not expertise to interpret because the officers based their influence the jury, or had but a slight effect.” See Solomon opinion on a review of the spread of debris found on the v. State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001). In road, which they personally witnessed. See Osbourn, 92 making this determination, we consider “everything in the S.W.3d at 537; see also Brown v. State, 303 S.W.3d 310, record, including any testimony or physical evidence 320 (Tex.App.–Tyler 2009, pet. ref’d) (holding that officer admitted for the jury’s consideration, the nature of the did not require expert qualification to render an opinion evidence supporting the verdict, the character of the about where the vehicle accident occurred because he alleged error and how it might be considered in connection observed the evidence at the accident scene first hand and with other evidence in the case.” Morales v. State, 32 formed his opinion, in part, on a review of the spread of S.W.3d 862, 867 (Tex.Crim.App.2000). We also consider debris on the road). Thus, following Osbourn, the diagram other factors, including jury instructions, the State’s limiting the area of impact to the shoulder of the road was theory, any defensive theories, and closing arguments. See admissible if it met the requirements of Rule 701—i.e., a Motilla v. State, 78 S.W.3d 352, 355 reasonable person under the circumstances could draw the (Tex.Crim.App.2002). same conclusion regarding the area of impact, and the diagram was helpful to the jury. Osbourn, 92 S.W.3d at After examining the record as a whole, we have a fair 537; Fairow, 943 S.W.2d at 899–900. assurance that the diagram limiting the area of impact to the shoulder of the road did not influence the jury. The © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5

Elliott v. State, Not Reported in S.W.3d (2015)

record shows the State heeded the trial court’s Gilbert by recklessly driving on the shoulder of the road. admonishment to not mislead the jury when presenting the See Anguiano v. State, 774 S.W.2d 344, 347 (Tex.App.– evidence concerning area of impact; none of the officers on Houston [14th Dist.] 1989, no pet.) (finding error was direct examination testified that their determination of the harmless because “there was other testimony [other than area of impact was based on a scientific principle or theory, the erroneously admitted testimony] upon which the jury and they were candid about their lack of expertise in any could reach its own determination”). Appellant’s first issue relevant field. See Brown, 303 S.W.3d at 321 (concluding is overruled. that any error in admitting an improper lay witness opinion concerning the situs of the vehicle accident was harmless because the witness was candid about the limitations of his training in accident investigation, and he did not profess to b. Personal Driving Experiences of Witnesses have more training and experience than he actually By her third issue, appellant contends the trial court erred possessed). Furthermore, the State, in its closing argument in not allowing her to question certain witnesses about to the jury, made no mention of the area of impact in the their personal driving habits and experiences on the road. diagram and, thus, did not emphasize the alleged error—a Specifically, appellant asserts she had a constitutional right consideration which weighs against a finding of harm. See to poll several witnesses, who were all police officers, to Motilla, 78 S.W.3d at 356 (observing that the State’s determine whether they had ever divided their attention emphasis of the error at trial is a factor to be considered in while driving on the road in order to change the radio harm analysis); King v. State, 953 S.W.2d 266, 272 station, use a cell phone, turn to talk to a passenger, or (Tex.Crim.App.1997) (same). Moreover, the officers reach for a dropped item.7 In support of this proposition, testified on cross-examination that the area of impact could appellant cites the cases of In re Winship, 397 U.S. 358 extend beyond the shoulder and onto the roadway, and they (1970) and Crocker v. State, 573 S.W.2d 190 even went so far as to edit the State’s previously introduced (Tex.Crim.App.1978), and argues the trial court’s diagram to accurately depict the size of the area of impact; evidentiary rulings were contrary to those cases. However, the record reflects that both officers, using a pen on the In re Winship and Crocker concern the constitutional witness stand, drew a wider circle on an identical copy of standard of proof required to secure a juvenile or adult the State’s diagram, which expanded the area of impact criminal conviction; they do not concern evidentiary beyond the shoulder and onto the roadway. These edited rulings at the trial level involving cross-examination of versions of the State’s diagram were introduced into witnesses, and appellant does not adequately explain, nor evidence as defense exhibits eight and eleven for the jury can we discern, how they apply to this case. Appellant has to review. failed to provide a clear and concise argument with citations to the record and authority to support her third *7 In finding harmless error, we recognize that appellant’s issue; it is therefore inadequately briefed for our review. defensive theory involved refuting the State’s evidence See TEX. R. APP. P. 38.1(i). that she drove on the shoulder of the road by attempting to demonstrate that Gilbert was walking in her lane of travel Nevertheless, we conclude that appellant’s argument is at the time of the accident. We also recognize that the without merit. A review of the record indicates that, prior State’s diagram, which limited the area of impact to the to the evidentiary rulings made the basis of this issue, shoulder of the road, was at odds with appellant’s appellant had already polled not one, but two State’s defensive theory. However, even without the State’s witnesses with questions identical to the ones she sought to diagram in evidence, the jurors were presented with other ask subsequent witnesses.8 The trial court has broad evidence indicating appellant struck Gilbert on the discretion to impose reasonable limits on shoulder; for instance, Jesse testified that Gilbert stayed on cross-examination to prevent the injection of cumulative the shoulder of the road at all times during their walk evidence. See Lopez v. State, 18 S.W.3d 220, 222 home. Additionally, appellant, in her video interview, (Tex.Crim.App.2000) (citing Lagrone v. State, 942 S.W.2d stated that she believed she might have hit a sign, which, 602, 613 (Tex.Crim.App.1997)); see also TEX. R. EVID. by way of reasonable inference, meant the impact did not 403 (stating that even relevant evidence may be excluded if occur in her lane of travel unless there was a sign in her the trial court determines that “its probative value is lane of travel, and there was no evidence of that. Thus, substantially outweighed by ... needless presentation of while the State’s diagram was inconsistent with appellant’s cumulative evidence.”). Thus, even assuming the questions defensive theory, the jurors could have reasonably rejected appellant sought to ask subsequent witnesses were relevant her theory based on other testimony indicating she struck to the case, the trial court acted within its discretion to © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6

Elliott v. State, Not Reported in S.W.3d (2015)

avoid the presentation of cumulative evidence. We [Defense]: Okay. Did the company have any written therefore overrule appellant’s third issue. protocols or requirements for the use of that phone?

[Butler]: No.

C. Motion to Suppress [Defense]: Did the company do any searches of that *8 By her second issue, appellant contends the trial court phone or checks of the actual physical phone, itself, at erred in denying her motion to suppress certain text any time? messages found on appellant’s company-issued cell phone that police obtained after appellant’s employer, who is also [Butler]: No. appellant’s mother, provided written permission to search the phone. Specifically, appellant, citing State v. Granville, [Defense]: Was that something that was not any type argues she had a legitimate and reasonable expectation of of overt policy for the company to regularly check privacy in the contents of her cell phone. 423 S.W.3d 399 that phone? (Tex.Crim.App.2014) (holding a defendant normally has a [Butler]: No.

reasonable expectation of privacy in his or her cellular telephone that is stored temporarily in a jail property room [Defense]: You, as the owner of the company, did you following arrest); Riley v. California, ––– U.S. ––––, 134 consider that to be [appellant’s] phone? S.Ct. 2473 (2014) (holding police generally may not, without a warrant, search digital information on a cell [Butler]: Yes. phone seized from a person who has been arrested). The State responds that appellant did not reasonably expect On cross-examination, the State elicited testimony from privacy in the contents of her cell phone under the Fourth Butler that the phone was purchased with company funds Amendment, and, even if she did, appellant’s employer and that appellant would not be able to make use of it if the had actual or apparent authority to consent. company stopped paying the phone bill. After hearing Butler’s testimony, the trial court asked the prosecutor whether the police obtained consent from any party to search the phone. The prosecutor responded that Sergeant 1. Pertinent Facts Schwartz, a State’s witness, would be able to speak The trial court held a hearing on appellant’s oral motion to directly to the issue of consent, but that he was not suppress certain text messages that police obtained from scheduled to testify until later in the trial. Appellant’s appellant’s company-issued cell phone. At the hearing, counsel then proposed that the trial court reserve ruling on Teresa Ann Butler, appellant’s employer and mother, the motion to suppress until after the State adduced testified that she owns a transportation company, that additional evidence from Sergeant Schwartz on the issue of appellant worked for the company, and that appellant was consent. The trial court took the consent issue under issued a cell phone as part of her employment. Butler advisement and reserved ruling on appellant’s suppression testified to the following facts regarding the nature of motion. appellant’s use of this cell phone:

Later at trial, immediately prior to Sergeant Schwartz’s [Defense]: Was the phone for the exclusive use of testimony, the trial court asked the State if it had additional [appellant]?

evidence to present on the issue of consent, and the State [Butler]: Yes. responded, “[w]e talked to [Sergeant Schwartz], Judge. He said that he obtained consent from [Butler] and never [Defense]: Did anybody else use that phone? asked [for consent] from [appellant].” The trial court then ruled the cell phone messages were admissible. After the [Butler]: No. trial court ruled on appellant’s motion to suppress, defense counsel asked the State to stipulate that Sergeant Schwartz [Defense]: Okay. Was she authorized to use [the never obtained consent from appellant to search her phone. phone] for her personal use as well? The State did not agree to the stipulation at that time but indicated that it would do so “after talking to [Sergeant [Butler]: Yes. Schwartz].” Trial on the merits recommenced with

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Elliott v. State, Not Reported in S.W.3d (2015)

Sergeant Schwartz testifying to the following facts relevant, but not dispositive, to this determination. Id. regarding consent, which drew no objection from the Common authority is shown by the parties’ joint access, defense: mutual use, or control over the property for most purposes, so that “it is reasonable to recognize that any of the *9 When I took [appellant] into co-inhabitants has the right to permit the inspection in his custody, I—the phone was given to own right and that the others have assumed the risk that [Butler]. I contacted [Butler] to see one of their number might permit the common area to be about getting the phone so I could searched.” Id. at 560–61 (quoting United States v. Matlock, search it. I was able to get 415 U.S. 164, 172 (1974)). When a defendant assumes the permission from [Butler] since the risk that another may permit a search of shared property, he phone is paid for by [Butler]. may not complain of that search under the Fourth [Butler] told me it’s a company Amendment. Id. at 561. phone. So she gave me consent to—a handwritten consent to search A third party’s actual authority over the property is not a the phone for text messages. prerequisite for a valid consensual search. Id. Our law also recognizes that, in some circumstances, a valid consensual Defense counsel also cross-examined Sergeant Schwartz search may occur when a third party has “apparent on the consent issue. Later at trial, when the State sought to authority” over the property. Id. The Texas Court of introduce the content of these text messages into evidence, Criminal Appeals recently explained: appellant objected on Fourth Amendment grounds. The trial court overruled appellant’s objection, and admitted, as [W]hen an officer reasonably, State’s Exhibit 33, the text messages into evidence. though erroneously, believes that a Included in State’s Exhibit 33 is a handwritten letter, third party purporting to provide signed by Butler and dated May 30, 2012, in which Butler consent has actual authority over the expressly grants Sergeant Schwartz permission to place or thing to be searched, “download any text or voicemail messages” from the cell apparent authority exists and the phone. In this consent letter, Butler described the phone as purported consent from the third “one of my company cell phones.” The State also party can serve to make the search introduced appellant’s May 29, 2012 video interview with reasonable. Even if the third party Sergeant Schwartz, wherein appellant referred to her lacks actual authority to phone as a “company phone.” consent—that is, he does not actually have joint access to or control over the premises—his purported consent can nevertheless 2. Applicable Law and Standard of Review validate a search if it reasonably The Fourth Amendment to the United States Constitution appears to the police that he does in provides protection from “unreasonable” searches and fact have authority. seizures by government officials. Hubert v. State, 312 S.W.3d 554, 560 (Tex.Crim.App.2010). A search *10 Id. at 561. Apparent authority is judged under an conducted without a warrant is generally deemed objective standard: “would the facts available to the officer unreasonable. Id. The general warrant requirement yields at the moment warrant a man of reasonable caution in the to several well-established exceptions. Id. One exception belief that the consenting party had authority over the applies when a person voluntarily consents to a search. Id. premises?” Limon v. State, 340 S.W.3d 753, 756 We examine the totality of the circumstances to determine (Tex.Crim.App.2011) (quoting Illinois v. Rodriguez, 497 whether it is reasonable under the Fourth Amendment for U.S. 177, 188 (1990)). an officer to rely on the consent of another person to justify a warrantless search of property. Id. It is the State’s burden to show by a preponderance of the evidence that the person who consented to the search had A third party may consent to a search of the property of actual or apparent authority to consent. Hubert, 312 another if the third party has actual authority over the thing S.W.3d at 561–62. Thus, the State has the burden to show to be searched. Id. The property interests of the parties are that a third party either had mutual access to and control over the property that was searched (i.e., actual authority), © 2015 Thomson Reuters. No claim to original U.S. Government Works. 8

Elliott v. State, Not Reported in S.W.3d (2015)

or that the officer conducting the search reasonably evidence, and the appellate court’s review incorporates the believed, based on facts known to him at the time, that the relevant trial testimony and evidence). consenting party had authority over the property (i.e., apparent authority). Id. *11 Under the doctrine of apparent authority, even if Butler lacked actual authority to consent, her purported Whether a search was reasonable under the Fourth consent will validate the search at issue if it reasonably Amendment is a mixed question of law and fact. St. appeared to Sergeant Schwartz that Butler did in fact have George v. State, 237 S.W.3d 720, 725 authority. See Hubert, 312 S.W.3d at 561; Davis v. State, (Tex.Crim.App.2007). We review de novo the issue of 93 S.W.3d 664, 668 (Tex.App.—Texarkana 2002, pet. whether a third party had actual or apparent authority to ref’d) (observing that “it is arguable [whether the consent to a search of another’s property because this third-party consenter had] actual authority to consent to a inquiry involves a mixed question of law and fact. Hubert, search. That is not, however, the operative question, 312 S.W.3d at 559–60. However, we must defer to the trial because even when the facts do not support a finding of court on determinations of credibility and historical fact. actual authority, a search is reasonable if the consent-giver Id. When the trial court does not make findings of fact, we apparently has actual authority.”) (emphasis added). On view the evidence in the light most favorable to the trial May 29, 2012, during her video interview with Sergeant court’s rulings and assume that the trial court resolved any Schwartz, appellant described her phone as a “company issues of historical fact or credibility in a manner that is phone.” The next day, when Sergeant Schwartz sought consistent with its ultimate ruling. Id. at 560. consent from Butler to search the phone, Butler described it as “one of my company cell phones.” Butler was also in In reviewing a trial court’s ruling on a motion to suppress, possession of the phone at that time. See Wilson v. State, we generally consider only evidence presented at the No. 04–02–00805, 2004 WL 624541 at *3 suppression hearing because the trial court based its ruling (Tex.App.—San Antonio Mar. 31, 2004, no pet.) (mem. on it rather than evidence adduced later in trial. See Rachal op., not designated for publication) (holding apparent v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996). authority to consent to search vehicle was established However, when the parties “consensually relitigate” the where consent-giver asserted it was his vehicle and was in suppression issue after the trial court’s ruling on the possession of it at time of search, even though it was not suppression motion, our review is not limited to the his vehicle). Under these circumstances, there was no evidence adduced at the suppression hearing, but also ambiguity in the situation that should have given Sergeant includes the relevant trial testimony and evidence. Id. Schwartz pause to doubt Butler’s authority over the phone, an item that both appellant and Butler admittedly identified as a company phone. See Corea v. State, 52 S.W.3d 311, 317 (Tex.App.— Houston [1st Dist.2001], pet. ref’d)

3. Discussion (noting that law enforcement officers should not be As a threshold matter, we note that our review of the permitted to proceed when ambiguous circumstances exist evidence is not limited to the evidence adduced at the that merit further inquiry into the consenting party’s suppression hearing because the record reflects that the apparent claim of authority to allow the search); State v. parties consensually relitigated the suppression issue after Krall, No. 13–12–00469–CR, 2013 WL 6547388, at *5 the trial court ruled on appellant’s motion to suppress. See (Tex.App.—Corpus Christi Aug. 1, 2013, no pet.) (mem. id. As noted earlier, appellant sought a stipulation from the op., not designated for publication) (finding that State on the issue of consent after the trial court had defendant-passenger’s statement that duffel bag belonged already denied her motion to suppress. The State did not to him gave rise to “ambiguous circumstances” that should agree to enter this stipulation until Sergeant Schwartz have raised a question in the mind of the officer as to testified at trial, and, when Sergeant Schwartz did testify at whether the driver had actual authority to consent to a trial, the defense cross-examined him on the consent issue. search of defendant-passenger’s bag). Moreover, nothing Thus, appellant elected to reopen the evidence after the in the record indicates that Butler, at the time she trial court made its suppression ruling, and we accordingly consented, told Sergeant Schwartz that the phone was also consider the evidence introduced at trial in our review intended for appellant’s exclusive use, as she had of this issue. See id. (holding that when the State raises the represented at the suppression hearing. Finally, there is no suppression issue at trial, either without objection or with indication in the record that appellant prevented Butler or the defense’s subsequent participation in the inquiry, the anyone else from viewing the contents of her phone—for defendant is deemed to have elected to reopen the example, by installing a password-protection © 2015 Thomson Reuters. No claim to original U.S. Government Works. 9

Elliott v. State, Not Reported in S.W.3d (2015)

feature—which would have alerted Sergeant Schwartz to question Butler’s authority. A review of the record indicates that the jury heard the substantive equivalent of the incriminating text-message Having considered the arguments of the parties, we content through other admissible evidence and testimony conclude that the trial court properly denied appellant’s at trial. For instance, during her video interview with motion to suppress on the basis that Butler had apparent Sergeant Schwartz, which was admitted at trial, appellant authority to consent to a police search of appellant’s revealed that (1) she thought initially the object she hit company-issued phone. See Hubert, 312 S.W.3d at 561. might have been a sign; (2) she replaced her windshield the Based on the facts known to Sergeant Schwartz at the time morning of the hit-and-run; (3) she consumed one vodka of the search, it was reasonable for him to believe that tonic at a bar before the accident occurred; and, (4) she Butler possessed authority to consent. See id. received a text message from Brian Welch the morning of the accident, in which Welch advised her that he read a report on the internet about a hit-and-run in the area and asked if she believed the object she hit might have been a 5. Harm person. The jury also heard, through the testimony of Even if we were to decide that the trial court erred in Sanchez, appellant’s admission that she consumed alcohol admitting the text messages into evidence, we would find on the night of the accident, that she attempted to get rid of the error was harmless. Because the error, if any, impacted incriminating evidence, and that her reason for fleeing the appellant’s constitutional rights under the Fourth scene was to avoid apprehension. Thus, the incriminating Amendment, we must determine whether the error was content found on appellant’s phone and admitted into harmless beyond a reasonable doubt. See Brown v. State, evidence was merely cumulative of what she told others 960 S.W.2d 265, 271 (Tex.App.—Corpus Christi 1997, no after the accident. Accordingly, we conclude beyond a pet.) (observing that “[i]mproperly admitted evidence reasonable doubt that the admission of the text messages [impacting constitutional rights] does not call for reversal into evidence, even if error, did not contribute to if the reviewing court determines beyond a reasonable appellant’s conviction or punishment and was, therefore, doubt that admission of the evidence did not contribute to harmless. See Brown, 960 S.W.2d at 272; Coble v. State, the conviction or punishment”); see also TEX. R. APP. P. 330 S.W.3d 253, 286 (Tex.Crim.App.2010). We overrule 44.2(a). appellant’s second issue.

To analyze harm, we provide the following summary of the incriminating content found on appellant’s phone and admitted into evidence: (1) a few hours after the accident, appellant texted Brian Welch, her passenger, that she III. Conclusion passed by the scene and noticed that a sign had been knocked down; (2) appellant referenced her broken *12 We affirm appellant’s conviction. windshield and indicated the need to replace it; (3) appellant texted Welch that she consumed only “one” drink on the night of the accident and then accused him of All Citations

telling others she was “drunk,” which Welch, in a subsequent responsive text to her, denied;9 and (4) Welch Not Reported in S.W.3d, 2015 WL 1869472 texted appellant, “[D]ude you ran over and killed someone[.] [H]ere is the police report[.]”

Footnotes 1 Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons for it. See TEX. R. APP. P. 47.4.

2 Appellant’s fourth issue asserts that the trial court erred in denying her motion for a directed verdict. A challenge to the denial of a motion for directed verdict is essentially a challenge to the legal sufficiency of the evidence. See Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App.1993). Thus, we review appellant’s fourth issue as a challenge to the legal sufficiency of the evidence to support her conviction.

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3 See also Aliff v. State, 627 S.W.2d 166, 172 (Tex.Crim.App.1982) (finding recklessness was shown where defendant operated motor vehicle at over 100 miles per hour, passed a car on the shoulder, locked his brakes, and skidded into a collision with another car); Trepanier v. State, 940 S.W.2d 827, 830 (Tex.App.–Austin, 1997, pet.ref’d) (determining driver was reckless when he attempted to illegally pass traffic on right shoulder of the road); Arellano v. State, 54 S.W.3d 391, 393 (Tex.App.–Waco 2001, pet. ref’d) (finding reckless element satisfied where there were visible signs indicating reduced speed ahead and skid marks showed defendant was driving at an excessive speed under the circumstances); Bannister v. State, 761 S.W.2d 849, 850 (Tex.App.–Beaumont 1988, no pet.) (holding that recklessness was shown where truck driver put his truck in reverse during heavy fog on a highway and struck driver proceeding legally in the same lane).

4 Appellant does not challenge the sufficiency of the evidence on any other element to support her conviction for manslaughter.

5 See Lopez v. State, 731 S.W.2d 682, 684 (Tex.App.–Houston [1st Dist.] 1987) (holding recklessness shown where defendant struck a pedestrian on the shoulder of the road after failing to maintain a single lane on the road, and where the section of the road on which accident occurred was straight and there was nothing that would obstruct a driver’s view), rev’d on other grounds, 779 S.W.2d 411 (Tex.Crim.App.1989); see also Manning v. State, 84 S.W.3d 15, 20–21 (Tex.App.–Texarkana 2002) (determining recklessness element was satisfied where the defendant swerved when approaching a lane of stopped traffic with visible warning signs of road construction, and never slowed down or applied his brakes), rev’d on other grounds, 114 S.W.3d 922 (Tex.Crim.App.2003).

6 For the same reason, we find the trial court did not abuse its discretion in ruling in favor of admissibility under Rule 403.

7 The purpose of asking these questions, according to appellant’s offer of proof at trial, was to challenge the State’s evidence of recklessness by showing that ordinary people might get distracted in various ways while driving; that such distractions are not a gross deviation from the standard of care that ordinary people would exercise; and that, if anything, it was appellant’s normal distracted state that probably caused the accident to occur. Because the element of recklessness requires a gross deviation from the standard of care that ordinary people would exercise, appellant argued that she should be able to poll State’s witnesses with questions to discover ordinary driving habits.

8 Appellant asked one witness the following questions, the substance of which is identical to the questions she posed in her offer of proof to the trial court:

[Trial Counsel]: When you operate a motor vehicle, are you changing the radio? [Sergeant Kronk]: Yes, sir. [Trial Counsel]: When you change the radio sometimes you look down for a second, right? [Sergeant Kronk]: Yes, sir. [Trial Counsel]: Sometimes you talk—there will be someone in your car next to you, right? [Sergeant Kronk]: Yes, sir. [Trial Counsel]: You look over and talk to them, right? [Sergeant Kronk]: Yes, sir. [Trial Counsel]: You’ve done that before, right? [Sergeant Kronk]: Certainly. [Trial Counsel]: You have a cell phone? [Sergeant Kronk]: Yes, I do. [Trial Counsel]: You’ve answered your cell phone while you’re driving before? [Sergeant Kronk]: Yes, I have. [Trial Counsel]: And there’s been times you might have dropped an item while you’re driving, right? I don’t mean outside the window, I mean inside the car? [Sergeant Kronk]: I’m sure there is. [Trial Counsel]: And you’re reached down to pick up an item, right? [Sergeant Kronk]: Once or twice, perhaps. [Trial Counsel]: You’ve done all of these things, haven’t you? [Sergeant Kronk]: Yes, sir.

9 Appellant sent the following text message to Welch: “Why did [you] say [I] was drunk? [I] wasn’t! [I] took ONE OF your vodka tonics, that wa[s] IT!”

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