Affirmed and Memorandum Opinion filed December 1, 2011.
In The
Fourteenth Court of Appeals
___________________
NO. 14-10-01093-CR
NO. 14-10-01094-CR
NO. 14-10-01095-CR
NO. 14-10-01096-CR
___________________
JIM HOWARD, III, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause Nos. 09CR1076, 09CR1077, 09CR1078, 09CR1079
MEMORANDUM OPINION
Jim Howard, III appeals two life sentences for intoxication manslaughter and two
twenty-year sentences for intoxication assault. See TEX. PENAL CODE ANN. §§ 49.07,
49.08 (West 2011). He argues that the trial court failed to correctly admonish him on the
consequences of his guilty plea; that the trial court should have excluded testimony by an
accident-reconstruction expert; and that the sentences assessed constituted cruel and
unusual punishment under the Eighth Amendment. Because the trial court substantially
complied with the statutory admonition requirements and properly admitted the expert
testimony, and because appellant did not preserve his Eighth Amendment argument, we
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Just before 2:00 a.m. on March 21, 2009, appellant drove his car at approximately
eighty miles per hour into the back of a stopped car occupied by six teenagers. The impact
of the collision was so great that the back seat of the teenagers’ car completely caved in and
the car was propelled over 100 feet into the intersection where it had been stopped. An
officer surveying the crash scene testified that when he saw the damage, he ―thought
nobody in the rear of that vehicle survived . . . It was just a mass of metal and people.‖ At
the time of the collision, Sara Rogers1 was sitting on the lap of her friend, Rachel Murphy,
in the back-middle seat of the struck vehicle. Rogers died instantly. Murphy sustained
multiple devastating injuries and died in a hospital twelve days later. Jane Porter, sitting
to the left of the two girls, was left with a shattered pelvis and permanent scars; Bobby
Herman, to their right, suffered back and head injuries. The car’s driver, Pamela Smith,
suffered permanent damage to her right pelvis and foot. Jason Collins, who was in the
front passenger seat, sustained minor injuries.
When Officer Forest Gandy of the La Marque Police Department arrived at the
scene, he found appellant sitting on the ground next to the wreckage. Officer Gandy
spoke with appellant and noticed that appellant’s eyes were red and glassy; his speech was
slurred; and he smelled strongly of alcohol. Later tests showed that appellant’s
blood-alcohol level was more than double the legal limit.
Officer Julius Campbell of the La Marque Police Department was the on-call
accident investigator on the night of the crash. When he arrived at the scene, he examined
the damage to the cars; took measurements of their positions; had photographs of the scene
1
All six victims—Rogers, Murphy, Porter, Herman, Smith, and Collins—were minors at the time of
the accident. All six of these names are pseudonyms that we have assigned to protect the victims’
identities.
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taken; and marked the location of evidence with paint, flags, and other markings. He later
called Sergeant Paul Adkins of the Texas Department of Public Safety, who had extensive
training and experience in accident reconstruction, to help investigate the scene and make a
forensic map of the evidence. Sergeant Adkins initially testified that he came ―two or
three days‖ later, but stated in response to defense counsel’s questioning that his visit may
not have been until several weeks after the crash. After examining Officer Campbell’s
markings and some ―gouging and scraping‖ still visible on the road, Sergeant Adkins used
special surveying equipment to construct a map of the scene showing the point of impact
and the relative positions of the cars before and after the crash. He testified that the
―scraping from the vehicles involved in the crash . . . [was] very consistent with a great
speed difference rear end collision.‖ He also determined, based on the absence of rubber
residue on the road, that appellant had taken no evasive action before the crash. Sergeant
Adkins estimated the speed of the impact by calculating the momentum and direction of
appellant’s car after the crash, taking into account the relative weights of the cars and the
friction between the cars and the road. Based on these factors, he concluded that appellant
was travelling ―well in excess of the speed limit‖ at the time of impact.
Appellant was charged with two counts of intoxication manslaughter for causing the
deaths of Rogers and Murphy and two counts of intoxication assault for causing serious
bodily injuries to Porter and Smith. See TEX. PENAL CODE ANN. §§ 49.07, 49.08. Each
count was accompanied by a notice of the State’s intent to seek an affirmative
deadly-weapon finding for appellant’s use of a motor vehicle. Each count was also
enhanced by a prior conviction for aggravated sexual assault of a child.
Appellant waived his right to a jury trial and pled guilty to each charge and true to
each affirmative deadly-weapon finding and enhancement. He also signed written plea
admonishments informing him that, if convicted, he faced the range of punishment for a
first-degree felony—―[a] term of life or a term of not more than 99 years or less than 5
years in the Institutional Division of the Texas Department of Criminal Justice and in
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addition, a possible fine not to exceed $10,000.00.‖ He further affirmed that, ―joined by
[his] counsel[,] . . . [he understood] the foregoing admonishments of the court and [was]
aware of the consequences of [his] plea . . . [and] that [his] plea was freely and voluntarily
made.‖ He certified that he ―freely and voluntarily [pled] guilty and confessed [his] guilt
to having committed each and every element of the offense alleged in the indictment . . .
[and pled] true to the enhancement plead in this cause . . . [and] to the deadly weapon
allegation in the indictment.‖ At appellant’s arraignment, the following exchange took
place:
THE COURT: Mr. Howard, in each of these cases you were charged by
indictment with offenses alleged to have occurred on or about the 21st day of
March, 2009 in Galveston County, Texas. The first two we are going to
look at are allegations of intoxication manslaughter with an affirmative
finding of a deadly weapon with a motor vehicle with an enhancement
paragraph alleged . . . Do you understand what you are charged with in each
of those cases?
[APPELLANT]: Yes, sir.
THE COURT: Do you have any questions about the charges?
[APPELLANT]: No, sir.
THE COURT: You understand in each of these you face the following range
of punishment: A term of life or any term of not more than 99 years.
Actually, with the enhancement the punishment range will be—
[THE STATE]: Manslaughter, first degree five to ninety-nine.
THE COURT: Okay. Not more than 99 or less than five years in the
Institutional Division of the Texas Department of Criminal Justice and in
addition a possible fine not to exceed $10,000. Have you discussed that
potential range of punishment with your attorney?
[APPELLANT]: Yes, sir.
THE COURT: Any questions about that?
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[APPELLANT]: No, sir.
....
[THE STATE]: I am going to show you each of these [written admonishment
forms]. Do you recognize these documents?
[APPELLANT]: Yes, ma’am.
[THE STATE]: On the back did you sign each of these documents under plea
of guilty?
[APPELLANT]: Yes, ma’am.
[THE STATE]: Are you also pleading guilty to the enhancement and the
charge in each one of these [documents]?
....
[APPELLANT]: Yes, ma’am.
[THE STATE]: Did you sign these freely and voluntarily?
[APPELLANT]: Yes, ma’am.
[THE STATE]: Did you understand what you were signing?
[APPELLANT]: Yes, ma’am.
The trial court then proceeded to trial on punishment. After hearing evidence and
arguments, the trial court assessed a life sentence for each intoxication-manslaughter
charge and a twenty-year sentence for each intoxication-assault charge.
II. ISSUES PRESENTED
In his first issue, appellant argues that his guilty plea was not knowing and voluntary
because the trial court failed to correctly admonish him about the range of punishment for
his intoxication-manslaughter charges and the effect of a deadly-weapon finding on all
four charges. He next contends that the trial court erred in admitting Sergeant Adkins’s
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accident-reconstruction testimony. Finally, he argues that the sentence constituted cruel
and unusual punishment under the Eighth Amendment to the United States Constitution.
III. ANALYSIS
A. Failure to Admonish
Appellant first argues that the trial court failed to correctly admonish him on the
consequences of his guilty plea. Prior to accepting a plea of guilty, the trial court must
admonish the defendant of the range of the punishment attached to the offense. TEX.
CODE. CRIM. PROC. ANN. art. 26.13(a) (West 2011). The court may make the
admonitions either orally or in writing. Id. art. 26.13(d). If it does so in writing, it must
receive a statement signed by the defendant and the defendant’s attorney that the defendant
understands the admonitions and is aware of the consequences of his plea. Id.
Substantial compliance with Article 26.13 is sufficient, unless the defendant affirmatively
shows that he was not aware of the consequences of his plea and that he was misled or
harmed by the admonishment of the court. Id. art. 26.13(c).
Appellant contends that the trial court failed to admonish him correctly as to the
range of punishment for intoxication manslaughter. He cites the following exchange:
THE COURT: You understand in each of these you face the following range
of punishment: A term of life or any term of not more than 99 years.
Actually, with the enhancement the punishment range will be—
[THE STATE]: Manslaughter, first degree five to ninety-nine.
THE COURT: Okay. Not more than 99 or less than five years in the
Institutional Division of the Texas Department of Criminal Justice and in
addition a possible fine not to exceed $10,000. Have you discussed that
potential range of punishment with your attorney?
[APPELLANT]: Yes, sir.
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Appellant ultimately was sentenced to life in prison on each count. He argues that the
State’s interjection, which the trial court seemed to adopt, misstated the range of
punishment for intoxication manslaughter.
Intoxication manslaughter is a second-degree felony. TEX. PENAL CODE ANN. §
49.08(b). Because appellant was previously convicted of aggravated sexual assault of a
child, however, he was subject to the range of punishment for a first-degree felony. See
TEX. PENAL CODE ANN. § 12.42(a)–(b) (prior felony conviction causes third-degree felony
to be punishable as second-degree felony, and second-degree felony to be punishable as
first-degree felony); § 22.021(e) (aggravated sexual assault, including that of a child, is a
felony). The range of punishment for a first-degree felony is, as relevant here,
imprisonment for life or for any term of not more than 99 years or less than five years. Id.
§ 12.32(a).
Appellant does not specify how the range of punishment stated by the trial court was
incorrect, but he implies that the trial court erred when it adopted the prosecutor’s
statement that the penalty was ―[n]ot more than 99 or less than five years.‖ We
understand appellant to assert that this statement contradicted the trial court’s initial
admonishment that the maximum punishment was a life sentence. The trial court’s two
statements, however, tracked precisely the language of the statute, which provides that the
range of punishment for a first-degree felony is ―imprisonment . . . for life or for any term
of not more than 99 years or less than five years.‖ Id. (emphasis added). In addition,
appellant signed written admonishments for both intoxication-manslaughter charges, each
of which correctly stated the applicable range of punishment in accordance with the statute.
Even assuming, without deciding, that the trial court’s oral admonishment did not
substantially comply with the statutory admonition requirements, the signed
admonishments unambiguously complied with those requirements. See TEX. CODE.
CRIM. PROC. ANN. art. 26.13(d) (allowing for either oral or written admonishments).
Moreover, appellant has not affirmatively shown that he was not aware of the
consequences of his plea or that he was misled or harmed by the admonishment of the
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court, as required by the rule. See id. art. 26.13(c). There is therefore no basis for his
complaint.
Appellant next argues that the trial court’s admonishments did not substantially
comply with Article 26.13 because the trial court did not warn him about the consequences
of an affirmative deadly-weapon finding. See TEX. CODE CRIM. PROC. art. 42.12 §
3g(a)(2) (if it is shown that a deadly weapon was used or exhibited during the commission
of a felony offense, a judge may not order community supervision). A defendant need
only be made fully aware of those consequences of a guilty plea that are both direct and
punitive; failure to admonish about a consequence that is either collateral or non-punitive
in nature will not render a plea involuntary. See Mitschke v. State, 129 S.W.3d 130, 136
(Tex. Crim. App. 2004). An affirmative deadly-weapon finding does not affect the
assessment of punishment; it merely affects a defendant’s eligibility for community
supervision. See Papke v. State, 982 S.W.2d 464, 467 (Tex. App.—Austin 1998, pet.
ref’d, untimely filed) (holding that admonishment substantially complied with Article
26.13 even though trial court failed to inform defendant about consequences of
deadly-weapon finding); see also Ex Parte Huskins, 176 S.W.3d 818, 820–21 (Tex. Crim.
App. 2005) (holding that failure of trial court to orally announce deadly-weapon finding
did not destroy defendant’s expectation of serving announced sentence because ―[a]
deadly-weapon finding may affect how the sentence is served, but it is not part of the
sentence.‖). Further, the effect of a deadly-weapon finding is not ―direct‖ to the extent
that the trial court’s failure to admonish a defendant about it would render a guilty plea
involuntary. See Ex Parte Evans, 690 S.W.2d 274, 278 (Tex. Crim. App. 1985) (―The
speculative nature of parole attainment is such as to discount its legal importance on the
subject of voluntariness of a guilty plea.‖). Appellant makes no attempt to show that he
was not aware of the consequences of his plea or that he was misled or harmed by the
admonishment of the court. See TEX. CODE. CRIM. PROC. ANN. art. 26.13(c). To the
contrary, the record shows that appellant repeatedly affirmed, orally and in writing, that he
understood the consequences of his plea. Appellant specifically pled true to the
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deadly-weapon findings at his arraignment and in the signed admonishments. He also
affirmed, both orally and in writing, that he understood what he was signing and that he did
so freely and voluntarily. Accordingly, we overrule appellant’s first issue.
B. Expert Testimony
Appellant next contends that the trial court erred in admitting Sergeant Adkins’s
accident-reconstruction testimony. To be considered reliable, evidence derived from a
scientific theory must satisfy three criteria in any particular case: (1) the underlying
scientific theory must be valid; (2) the technique applying the theory must be valid; and (3)
the technique must have been properly applied on the occasion in question. Coble v.
State, 330 S.W.3d 253, 273 (Tex. Crim. App. 2010) (citing Kelly v. State, 824 S.W.2d 568,
573 (Tex. Crim. App. 1992)). We apply an abuse-of-discretion standard in reviewing a
trial court’s admission of expert testimony. Ellison v. State, 201 S.W.3d 714, 723 (Tex.
Crim. App. 2006). Absent a clear abuse of discretion, we will not disturb the trial court’s
decision to admit or exclude testimony. Id. A trial court abuses its discretion when its
decision lies outside the zone of reasonable disagreement. Casey v. State, 215 S.W.3d
870, 879 (Tex. Crim. App. 2007).
Appellant argues that Sergeant Adkins’s testimony was not reliable because he
―based his calculations on weeks old marks on the road[,] not on any measurements that
were originally taken at the time of the accident.‖ Appellant does not clarify whether he is
arguing that using such markings in accident reconstruction is an inherently invalid
technique, or that doing so is a valid technique but Sergeant Adkins misapplied it on this
occasion. In any event, he cites no authority to support either assertion. See Wooten v.
State, 267 S.W.3d 289, 303 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d) (―Appellant
contends that . . . the latest technology . . . is more reliable than [that used by an
accident-reconstruction expert in that case], but appellant offers no authority for this
conclusion beyond this assertion.‖). Appellant offered no evidence that either the
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methodology Sergeant Adkins described or the way Sergeant Adkins applied it was
unreliable.
Moreover, virtually all of Sergeant Adkins’s testimony was cumulative of the
testimony of other witnesses who were present at the time of the crash. One witness, for
example, testified that appellant was travelling at ―very high rate . . . about 80 miles per
hour‖ and that he hit the teenagers’ car from behind. Another added that appellant drove
straight into the victims’ car without stopping, braking, or swerving. Numerous witnesses
also testified, and photographs taken at the scene showed, that the force of the impact was
such that it completely destroyed the back of the teenagers’ car and propelled the car into
the intersection where it had been stopped. In light of this evidence, any alleged error in
admitting Sergeant Adkins’s testimony would have been harmless. See TEX. R. APP. P.
44.2(b). Accordingly, we overrule appellant’s second issue.
C. Cruel and Unusual Punishment
In his final issue, appellant argues that his sentence was cruel and unusual under the
Eighth Amendment to the United States Constitution because he ―evidenced remorse
numerous times during his testimony‖ and ―testified that he did not commit the accident
because of his intoxication . . . but because he fell asleep.‖ See Graham v. Florida, 130 S.
Ct. 2011, 2021, 176 L. Ed. 2d 825 (2010) (recognizing prohibition of ―extreme sentences‖
that are ―grossly disproportionate to the crime‖ even in noncapital cases). To preserve a
complaint that a sentence is unconstitutionally cruel and unusual, a defendant must present
to the trial court a timely request, objection, or motion stating the specific grounds for the
ruling desired. Arriaga v. State, 335 S.W.3d 331, 334 (Tex. App.—Houston [14th Dist.]
2010, pet. ref’d) (citing Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim. App. 1996)).
Appellant did not raise his complaint in the trial court, so it has not been preserved for our
review. See id. We overrule appellant’s third issue.
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IV. CONCLUSION
We conclude that that the trial court correctly admonished appellant about the
consequences of his guilty plea; that the trial court did not abuse its discretion in admitting
Sergeant Adkins’s testimony; and that appellant failed to preserve his Eighth Amendment
argument for review. We therefore affirm the trial court’s judgment.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Hedges and Justices Anderson and Christopher.
Do Not Publish — TEX. R. APP. P. 47.2(b).
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