Opinion Issued April 7, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00819-CR
BRANDY ALIS MILLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 23rd District Court
Brazoria County, Texas
Trial Court Cause No. 42936
MEMORANDUM OPINION
A jury convicted appellant, Brandy Alis Miller, of manslaughter for recklessly striking and killing a bicyclist with her vehicle, and the trial court assessed punishment at seven years in prison. See Tex. Pen. Code Ann. § 19.04(a) (Vernon 2003). We determine whether (1) the evidence was legally sufficient to support the conviction, (2) the evidence was factually sufficient to support the conviction, (3) the trial court erred in failing to instruct the jury on a lesser-included offense, (4) the trial court erred in failing to grant appellant’s motion for continuance, (5) the trial court erred in instructing the jury on the crime of manslaughter, (6) the trial court erred in admitting evidence of extraneous offenses at punishment, and (7) the trial court erred in instructing the jury on voluntary intoxication. We affirm.
Facts
On May 24, 2004, appellant left her grandmother’s home at midday, approximately one and one-half hours after having arrived, during which time she had ingested four different prescription medications: Vicoden, Baclofen, Soma, and Arthrotec. Of these drugs, Vicoden, Baclofen, and Soma cause drowsiness and are distributed with both verbal and written warnings regarding their side effects. Each of the drugs is distributed with a warning that it may impair one’s ability to drive.
After having ingested the medications, appellant left her grandmother’s home with her son and proceeded to drive to the grocery store. In route, appellant came upon traffic congestion. Responding to the traffic, appellant pulled off of the roadway and onto the shoulder, where she proceeded driving toward the approaching intersection. Appellant was driving between 55 and 60 miles per hour, faster than the posted speed limit. While driving on the shoulder of the road, appellant struck the complainant, who was riding a bicycle, with her vehicle. Appellant never changed her route of travel or speed. Witnesses never saw appellant’s brake lights come on and never heard the squeal of tires. Appellant continued to drive down the shoulder of the roadway until she ran into a trailer stopped at a red light, which caused her car to collide into other vehicles and eventually come to a halt.
The complainant died at the scene. Appellant was life-flighted to Hermann Hospital with her son. Sabrina Briggs, a paramedic at the hospital, noticed that appellant’s speech was slurred, that her movement was sluggish, and that appellant “appeared to be under the influence of something.” Briggs did not smell alcohol, however. When hospital personnel removed appellant’s clothes, pink pills fell out of her pocket. Appellant identified the pills as medication for tension headaches, but could not recall their brand name.
Sufficiency of the Evidence
In her first and second points of error, appellant contends that the evidence was legally and factually insufficient to support her conviction for manslaughter because there was no evidence to show that appellant was reckless.
A. Standards of Review
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the crime’s essential elements beyond a reasonable doubt. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We may not re-weigh the evidence and substitute our judgment for that of the fact finder. King, 29 S.W.3d at 562. In our review of the factual sufficiency of the evidence, we view all of the evidence neutrally, and we ask whether the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004). Although our analysis considers all the evidence presented at trial, the trier of fact is the exclusive judge of the facts, the credibility of witnesses, and the weight to be given their testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
B. The Law
A person commits manslaughter if she recklessly causes the death of an individual. Tex. Pen. Code Ann. § 19.04(a). A person acts recklessly with respect to circumstances surrounding her conduct or the result of her conduct when she is aware of, but consciously disregards, a substantial and unjustifiable risk that the circumstances exist or the result will occur. Id. § 6.03(c) (Vernon 2003). The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all circumstances as viewed from the actor’s standpoint. Id.; Garza v. State, 50 S.W.3d 559, 564 (Tex. App.—Houston [1st Dist.] 2001, no pet.). “At the heart of reckless conduct is conscious disregard of the risk created by the actor’s conduct.” Lewis v. State, 529 S.W.2d 550, 553 (Tex. Crim. App. 1975). Recklessness can be applied generally to the act of driving. See Porter v. State, 969 S.W.2d 60, 63 (Tex. App.—Austin 1998, pet. ref’d).
C. Legal Sufficiency
Appellant asserts that the evidence is legally insufficient to support the conclusion that she acted recklessly because no evidence showed that her driving constituted deliberate, conscious indifference and because no proof was offered to show that she knew the complainant was cycling along the shoulder of the highway when the collision occurred.
Appellant relies on the definition of “reckless driving” provided by the Texas Transportation Code, which provides that a person commits the offense of reckless driving by driving a vehicle in wanton and willful disregard for the safety of persons or property. See Tex. Transp. Code Ann. § 545.401(a) (Vernon 2003). Under section 545.401 of the Texas Transportation Code, willful and wanton disregard means the deliberate, conscious indifference to the safety of others. Id. However, a jury convicted appellant of manslaughter, a criminal offense. Therefore, appellant’s conduct should be evaluated under the definition of “recklessness” in the Texas Penal Code, rather than the definition of “reckless driving” found in the Texas Transportation Code. Under section 6.03 of the Texas Penal Code, recklessness means that a person consciously disregards a substantial and unjustifiable risk that the circumstances exist or that the result will occur. Tex. Penal Code Ann. § 6.03(c). Viewed in the light most favorable to the verdict, the evidence shows that appellant ingested four different medications: Vicoden, Baclofen, Soma, and Arthrotec. Then, less than one and one-half hours later, appellant proceeded to drive to the grocery store. In route, appellant drove on the right shoulder of the highway at a rate exceeding the legal speed limit of 50 miles per hour. While on the shoulder, appellant struck a bicyclist with her car, who died upon impact. Appellant never slowed down or altered her route of travel. Appellant’s vehicle came to a stop in an intersection only after she collided with a trailer and other vehicles.
At trial, appellant admitted that she was familiar with the roadway and its traffic laws; knew that a person might be changing a tire, walking, or riding a bicycle on the shoulder at any given time; knew that driving on the shoulder in excess of the speed limit was dangerous; and knew that the medications that she had taken could impair her ability to drive.
Contrary to appellant’s contention, the State had no obligation to prove that appellant knew that the complainant was riding his bicycle along the shoulder of the road. It is not necessary to prove that appellant was aware of the specific risk of another’s death in order to commit manslaughter. See Trepanier v. State, 940 S.W.2d 827, 829 (Tex. App.—Austin, 1997, pet. ref’d) (holding that appellant created substantial and unjustifiable risk when he moved onto shoulder in order to pass delivery truck on right-hand side and that appellant consciously disregarded risk of killing bicyclist traveling on that shoulder).
We hold that there was legally sufficient evidence from which the jury could have concluded beyond a reasonable doubt that appellant voluntarily created a substantial and unjustifiable risk when she moved onto the shoulder of the road in order to pass other traffic and that she consciously disregarded the admitted risk of killing a bicyclist traveling legally on that shoulder.
We overrule appellant’s first point of error.
D. Factual Sufficiency
Appellant also contends that the evidence was factually insufficient to support her conviction for manslaughter. Specifically, appellant contends that there was no evidence of conscious indifference, no evidence to show that the prescription drugs that she had ingested caused the accident, and no evidence to prove that she was driving while intoxicated.
Relying on White v. State, 647 S.W.2d 751, 753 (Tex. App.—Fort Worth 1983, pet. ref’d), appellant contends that “willful and wanton disregard” in the context of reckless driving means “the deliberate conscious indifference to the safety of others.” Appellant asserts that because she testified that she never saw the complainant before she struck him, she could not have acted with conscious indifference.
Appellant’s own testimony at trial contradicts her assertion that she did not act with conscious indifference. Appellant admitted that she had driven on the road where the accident took place many times before, that she was not in the habit of driving on the shoulder because people might be there if they had a flat tire or were riding a bicycle, and that driving on the shoulder of the road is a dangerous act. The jury, as the exclusive trier of the facts, could apply recklessness to appellant’s act of driving generally and not focus its attention only on whether appellant saw that she had struck the complainant. See Porter, 969 S.W.2d at 63.
Appellant also contends that there was no evidence to show that the prescription medications that she ingested caused the accident or that she was driving while intoxicated. Specifically, appellant asserts that the nurse at the hospital could not rule out a head injury to account for appellant’s slurred speech and sluggish movements and that the pharmacist who testified regarding the side effects of the drugs that she had ingested did not offer any testimony as to appellant’s level of impairment.
First, the State was not required to show that appellant was intoxicated; intoxication is not an element of manslaughter. See Tex. Pen. Code Ann. § 19.04. Second, the fact that the State did not introduce an expert to testify that appellant’s ingestion of the medications actually caused her to become intoxicated and to strike the complainant does not negate the evidence in the record that appellant was intoxicated. Although appellant denies having been impaired in any way at the time of the accident, she admitted that she remembered nothing about driving on the shoulder or striking the complainant with her car. Furthermore, a paramedic testified that appellant was “definitely impaired.”
After examining all of the evidence neutrally, we find that the proof of guilt was not so obviously weak as to undermine confidence in the jury’s determination; nor was the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. Therefore, the evidence at trial was factually sufficient to show that appellant acted recklessly.
We overrule appellant’s second point of error.
Jury Instruction
In her sixth point of error, appellant contends that, because the evidence was legally insufficient to support her conviction for manslaughter, the trial court erred in submitting the jury charge on manslaughter.
We review the trial court’s submission of jury instructions under an abuse-of-discretion standard. Wesbrook, 29 S.W.3d at 122. A jury charge on an offense is appropriate when the evidence in the case is legally sufficient to support a conviction for that offense. Felters v. State, 147 S.W.3d 488 (Tex. App.—Fort Worth 2004, pet. filed).
Because we have concluded that the evidence was legally sufficient to support appellant’s conviction for manslaughter, the trial court did not err in submitting the jury charge. See id.
We overrule appellant’s sixth point of error.
Motion for Continuance
In her third and fourth points of error, appellant contends that the trial court abused its discretion in denying her motion for continuance based on the State’s alleged failure to give her notice of its intent to introduce extraneous acts during the punishment phase and that the trial court erred in admitting those extraneous acts because of lack of proper notice.A.Standard of Review
We review a trial court’s ruling on a motion for continuance under an abuse-of-discretion standard. Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). We review the trial court’s determination regarding the admissibility of extraneous offenses for abuse of discretion. Id. So long as the trial court’s ruling was within the “zone of reasonable disagreement,” there is no abuse of discretion, and we must uphold the ruling. Id.
B. The Law
Rule 404(b) of the Texas Rules of Evidence provides that, upon an accused’s timely request, reasonable notice must be given prior to trial of the State’s intent to introduce extraneous evidence in its case-in-chief. Tex. R. Evid. 404(b). The purpose behind rule 404(b) is to prevent surprise. Hayden v. State, 66 S.W.3d 269, 272 (Tex. Crim. App. 2001). Texas Code of Criminal Procedure article 37.07, pertaining to sentencing, provides that, upon a defendant’s request, notice of intent to introduce evidence of extraneous acts during the punishment phase must be given in the same manner as required by rule 404(b). Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2004-2005).
Appellant did not properly request notice of the extraneous acts that the State used at the punishment stage of trial. Appellant made a request on March 24, 2004 that stated, “Let this letter serve as my request for any extraneous offenses or 404(b) matters that you intend to use at the trial . . . ” Appellant’s request was made pursuant to rule 404(b) and made no reference to article 37.07 of the Code of Criminal Procedure. A request made pursuant to rule 404(b) is not sufficient to obligate the State to disclose extraneous evidence that it intends to introduce at the punishment phase of trial. Williams v. State, 933 S.W.2d 662, 666 (Tex. App.—Eastland 1996, no pet.). Because appellant’s request was made pursuant to rule 404(b), and made no mention of article 37.07, the State was required to disclose only those extraneous offenses that it intended to use during its case-in-chief. See Tex. R. Crim. Evid. 404(b). “Case-in-chief” concerns only evidence relevant to the guilt phase of the trial; thus, the State was obligated to disclose only those extraneous offenses that it intended to use during the guilt phase of the trial. See Williams, 933 S.W.2d at 666. Because the State was not obligated to inform appellant regarding extraneous offenses that it intended to use during the punishment phase of trial, the trial court did not abuse its discretion in refusing to grant appellant’s motion for continuance based on lack of notice or in admitting the extraneous offense evidence during punishment. We overrule appellant’s third and fourth points of error.Lesser-Included Offense
In her fifth point of error, appellant contends that the trial court erred by failing to instruct the jury on the lesser-included offense of criminally negligent homicide.
A. Standard of Review
In determining whether a charge on a lesser-included offense is required, we apply a two-step analysis. See Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). Under Rousseau, first a party must establish that the lesser included offense must be included within the proof necessary to establish the charged offense. Id. at 672. Second, the record must include some evidence that would permit a jury rationally to find that, if guilty, the defendant is guilty only of the lesser included offense. Rousseau, 855 S.W.2d at 672; Royster v. State, 622 S.W.2d 442, 447 (Tex. Crim. App. 1981).
In determining whether any evidence exists in the record that would permit a rational jury to find that the defendant is guilty only of the lesser-included offense, anything more than a scintilla of evidence is sufficient to entitle a defendant to a lesser charge. Forest v. State, 989 S.W.2d 365, 367 (Tex. Crim. App. 1999). We review all evidence introduced at trial to determine whether the trial court erred in failing to instruct the jury on a lesser-included offense. Enriquez v. State, 21 S.W.3d 277, 278 (Tex. Crim. App. 2000); Banda v. State, 890 S.W.2d 42, 60 (Tex. Crim. App. 1994). Credibility determinations and conflicts in the evidence are not factors to consider in determining whether the trial court erred in failing to instruct the jury on a lesser-included offense. Banda, 890 S.W.2d at 60.
B. The Law
A person commits manslaughter if he recklessly causes the death of an individual. Tex. Pen. Code Ann. § 19.04(a). A person commits criminally negligent homicide if he causes the death of an individual by criminal negligence. Tex. Pen. Code Ann. § 19.05(a) (Vernon 2003). A person acts with criminal negligence when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or that the result will occur. Tex. Pen. Code Ann. § 6.03(d) (Vernon 2003). The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint. Id. Criminally negligent homicide is a lesser-included offense of manslaughter. Lewis, 529 S.W.2d at 553.Appellant contends that the trial court erred in failing to instruct the jury on criminally negligent homicide because she lacked the necessary mens rea to support the conviction for manslaughter. The State concedes that the first requirement of Rousseau has been met; however, the parties dispute whether there is evidence showing that appellant, if guilty, is guilty only of criminally negligent homicide. Appellant asserts that the fact that she told a paramedic that she “had looked down for just a second, and when she looked back up, she had been in an accident” is evidence that her conduct was a gross deviation from the standard of care of an ordinary person, rather than evidence demonstrating conscious indifference on her part. Thus, appellant asserts that evidence exists to show that she is guilty only of criminally negligent homicide.
We hold that appellant fails to meet the second prong under Rousseau. The evidence adduced at trial showed that appellant was aware of the fact that driving along the shoulder of the highway at a speed exceeding the posted limit was dangerous because a person could be present on the shoulder of the road. The fact that appellant stated that she looked down and that, when she looked back up, she had been in an accident does not show that appellant was unaware of the risk that driving along the shoulder of the road posed.
We overrule appellant’s fifth point of error.
Jury Instruction on Voluntary Intoxication
In her seventh point of error, appellant contends that the trial court erred by expressing an opinion on the facts of the case by instructing the jury on voluntary intoxication. Appellant contends that the court’s instruction was error because appellant did not raise temporary insanity as a defense. A. Standard of Review
A trial court may not express an opinion on the weight of the evidence, summarize testimony, or discuss facts in its charge to the jury. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2004-2005); Posey v. State, 840 S.W.2d 34, 40 (Tex. App.—Dallas 1992, pet. ref’d). When a complaint is made that the trial court expressed its opinion or commented upon the weight on the evidence in the charge, we must review the language of the jury charge to determine whether the language used therein was sufficiently limited so as not to express the court’s opinion as to the truth or accuracy of the disputed facts. Taylor v. State, 7 S.W.3d 732, 739 (Tex. App.—Houston [14th Dist.] 1999, no pet.). When sufficiently limiting language is used, the jury will not presume that the defendant is guilty of the crime charged from the court’s language; if limiting language is not used, a jury charge should be reviewed as a whole, rather than as a series of isolated statements, to determine whether the defendant suffered egregious harm. Id.
B. The Law
Voluntary intoxication will not excuse a defendant’s actions. Tex. Pen. Code Ann. § 8.04 (Vernon 2003); Taylor v. State, 885 S.W.2d 154, 156 (Tex. Crim. App. 1994). A defendant need not rely upon intoxication as a defense in order to implicate voluntary intoxication. See Taylor, 885 S.W.2d at 156. Rather, if there is evidence from any source that might lead a jury to conclude that the defendant’s intoxication somehow excused his actions, an instruction is appropriate. Id. at 158.
Appellant contends that the trial court expressed an opinion on the facts by instructing the jury that voluntary intoxication was not a defense because the instruction can be given only when the defendant relies on temporary insanity as a defense and appellant did not rely on it in this case. Indeed, appellant argues that there was no evidence raised by any party suggesting that appellant relied on temporary insanity as a defense.
Appellant relies on Gonzales v. State, 838 S.W.2d 848 (Tex. App.—Houston [1st Dist.] 1992), pet. dism’d as improvidently granted, 864 S.W.2d 522 (Tex. Crim. App. 1993)), to support her contention that instructing the jury on voluntary intoxication was error. In Gonzales, on appeal from a conviction on a lesser-included charge of voluntary manslaughter, this Court reversed the judgment of conviction because the trial court had given an instruction on voluntary intoxication during the guilt stage of trial. Id. at 864. This Court, citing authority of the Court of Criminal Appeals, held that such an instruction is proper during the guilt stage only if the defendant claimed as a defense that he was too intoxicated to have committed the offense. Id. at 866 (referring to Jaynes v. State, 673 S.W.2d 198, 201-02 (Tex. Crim. App. 1984)).
However, in Taylor v. State, the Court of Criminal Appeals more recently discussed whether a defendant must rely on intoxication in an effort to excuse her actions before an instruction on voluntary manslaughter is called for. See Taylor, 885 S.W.2d at 156. The Court noted that, in Jaynes v. State, 673 S.W.2d 198 (Tex. Crim. App. 1984), it had held that, when there was considerable evidence of the defendant’s intoxication, and the defendant asserted a lack-of-knowledge defense, the trial court properly instructed that voluntary intoxication is no defense. Jaynes, 673 S.W.2d at 202.
Likewise, here, ample evidence was adduced at trial that appellant was intoxicated at the time that she struck the complainant, and appellant asserted that she did not remember driving on the shoulder of the roadway or striking the complainant. Specifically, a paramedic testified that appellant’s speech was slurred, that her movement and speech were sluggish, and that appellant was “definitely impaired.” Also, a pharmacist testified that the combination of drugs that appellant had ingested would have caused drowsiness and impaired her ability to drive. Finally, appellant herself testified that she had ingested four prescription medications, that she did not remember ever driving on the shoulder of the road, and that she had looked down and, when she looked back up, she had been in an accident. All of this evidence supports the conclusion that appellant was impaired and that her impairment might have contributed to her defense of lack of knowledge that she had struck the complainant. Because there was considerable evidence that appellant was intoxicated and because she asserted a lack-of-knowledge defense, the trial court did not err in instructing the jury regarding involuntary intoxication. See Taylor, 885 S.W.2d at 158; Haynes v. State, 85 S.W.3d 855, 858 (Tex. App.—Waco 2002, pet. ref’d) (holding that instruction on voluntary intoxication is appropriate when defendant charged with manslaughter did not advance defense based on intoxication).
We overrule appellant’s seventh point of error.Conclusion
We affirm the judgment of the trial court.
Tim Taft Justice
Panel consists of Justices Taft, Keyes, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).