Case Information

*0 RECEIVED IN 5th COURT OF APPEALS DALLAS, TEXAS 2/19/2015 4:54:02 PM LISA MATZ Clerk *1 ACCEPTED 05-14-01066-CR FIFTH COURT OF APPEALS DALLAS, TEXAS 2/19/2015 4:54:02 PM LISA MATZ CLERK

In the Court of Appeals for the Fifth District of Texas at Dallas KRISTIE LYN HERMES, §

Appellant §

v. § No. 05-14-01066-CR

THE STATE OF TEXAS, §

Appellee §

Trial Number 416-81667-2013, in the 416th District Court Collin County, Texas.

The Honorable Chris Oldner, Judge Presiding. ________________

STATE’S BRIEF

________________

GREG WILLIS Criminal District Attorney Collin County, Texas JOHN R. ROLATER, JR. Assistant Criminal District Attorney Chief of the Appellate Division LIBBY LANGE Oral argument is not requested, Assistant Criminal District Attorney unless Appellant requests argument. 2100 Bloomdale Rd., Suite 200 McKinney, Texas 75071 (972) 548-4323 FAX (214) 491-4860 State Bar No. 11910100 llange@co.collin.tx.us GEETA SINGLETARY & CYNTHIA WALKER Assistant Criminal District Attorneys *2 TABLE OF CONTENTS

TABLE OF CONTENTS ............................................................................................ i

INDEX OF AUTHORITIES .................................................................................... iii

STATEMENT REGARDING ORAL ARGUMENT ............................................... 1

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 1

The Accident ......................................................................................................... 1

Appellant’s Recorded Statements ......................................................................... 7

The Blood Evidence .............................................................................................. 8

Franco’s Injuries ................................................................................................. 10

SUMMARY OF THE STATE’S ARGUMENTS ................................................... 15

STATE’S REPLY TO APPELLANT’S ISSUES

(The Corpus Delicti Rule & Sufficiency of the Evidence) .................................. 16

The corpus delicti rule was satisfied because the State introduced evidence other than Appellant’s extrajudicial statements showing that the crime of intoxication assault occurred. Because the corpus delicti rule was satisfied, Appellant’s own admissions were sufficient to establish that she was driving at the time of the accident. Also, Appellant’s .091 blood-alcohol level two hours after the accident, coupled with her admissions to drinking alcohol and smoking marijuana and other corroborating evidence, established that she was driving while intoxicated at the time of the accident. While the victim downplayed the severity of his injuries, his testimony along with that of an attending doctor, established that he suffered serious bodily injury.

I. The Corpus Delicti Rule Was Satisfied .................................................... 17 II. The Evidence Supports the Conviction .................................................... 21 i *3 PRAYER .................................................................................................................. 32

CERTIFICATE OF SERVICE ................................................................................ 33

CERTIFICATE OF COMPLIANCE ....................................................................... 33

ii *4 INDEX OF AUTHORITIES Statutes, Codes, and Rules

T EX . P ENAL C ODE § 49.01(2)(A) .............................................................................23

T EX . P ENAL C ODE § 49.07 ............................................................................. 1, 18, 26

Cases

Andrus v. State ,

Nos. 05-08-00703-CR, 05-08-00704-CR, 2010 WL 797196 (Tex. App.—Dallas Mar. 10, 2010, no pet.)

(not designated for publication) ............................................................................27

Barrera v. State ,

820 S.W.2d 194 (Tex. App.—Corpus Christi 1991, pet. ref’d) ...........................31 Boney v. State ,

572 S.W.2d 529 (Tex. Crim. App. 1978) .............................................................31 Brooks v. State ,

323 S.W.3d 893 (Tex. Crim. App. 2010) .............................................................21 Cardenas v. State ,

30 S.W.3d 384 (Tex. Crim. App. 2000) ...............................................................18 Carrizales v. State ,

414 S.W.3d 737 (Tex. Crim. App. 2013) ...................................................... 17, 22 Coleman v. State ,

704 S.W.2d 511(Tex. App.—Houston [1st Dist.] 1986, pet. ref'd) .....................19 Coshatt v. State ,

744 S.W.2d 633 (Tex. App.—Dallas 1987, pet. ref'd) .........................................28 Folk v. State ,

797 S.W.2d 141 (Tex. App.—Austin 1990, pet. ref'd) ........................................20 iii *5 Gribble v. State ,

808 S.W.2d 65 (Tex. Crim. App. 1990) ...............................................................20 Hacker v. State ,

389 S.W.3d 860 (Tex. Crim. App. 2013) .............................................................22 Hanson v. State ,

781 S.W.2d 445(Tex. App.—Fort Worth 1989), abated on other grounds, 790 S.W.2d 646 (Tex. Crim. App. 1990) .............................................................19

Henderson v. State ,

29 S.W.3d 616 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) ......................25 Hooper v. State ,

214 S.W.3d 9 (Tex. Crim. App. 2007) ................................................................21 Jackson v. State ,

399 S.W.3d 285 (Tex. App.—Waco 2013, no pet.) .............................................27 Jackson v. Virginia ,

443 U.S. 307 (1979) .............................................................................................21 Johnson v. State ,

299 S.W.3d 491 (Tex. App.—Tyler 2009, no pet.) ..............................................17 Kellis v. State ,

No. 14-04-01044-CR, 2006 WL 278380

(Tex. App.—Houston [14th Dist.] Feb. 7, 2006, no pet.)

(not designated for publication) ............................................................................20

Kirsch v. State ,

306 S.W.3d 738 (Tex. Crim. App. 2010) ...................................................... 23, 24 Kuciemba v. State ,

310 S.W.3d 460 (Tex. Crim. App. 2010) .............................................................23 Madden v. State ,

911 S.W.2d 236 (Tex. App.—Waco 1987, pet. ref'd) ..........................................28 iv *6 McCann v. State ,

433 S.W.3d 642 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ........... 18, 19, 23 Mechell v. State ,

374 S.W.3d 454 (Tex. App.—Waco 2011, pet. ref'd) ..........................................31 Moore v. State ,

739 S.W.2d 347 (Tex. Crim. App. 1987) .................................... 26, 27, 28, 29, 30 Salazar v. State ,

86 S.W.3d 640 (Tex. Crim. App. 2002) ...............................................................17 Scillitani v. State ,

343 S.W.3d 914 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) .................25 Taylor v. State ,

71 S.W.3d 792 (Tex. App.—Texarkana 2002, pet. ref'd) ....................................27 Threet v. State,

250 S.W.2d 200 (Tex. Crim. App. 1952) .............................................................19

Vaughn v. State ,

833 S.W.2d 180 (Tex. App.—Dallas 1992, pet. ref'd) .........................................22 Wesbrook v. State ,

29 S.W.3d 103 (Tex. Crim. App. 2000) ...............................................................21 Williams v. State ,

235 S.W.3d 742 (Tex. Crim. App. 2007) .............................................................21 Zill v. State ,

355 S.W.3d 778 (Tex. App.—Houston [1st Dist.] 2011, no pet.) ........................25 v *7 STATEMENT REGARDING ORAL ARGUMENT The State does not believe oral argument will assist the Court in developing the issues in this case; however, if the Court grants Appellant’s request for

argument, the State requests the opportunity to argue.

STATEMENT OF THE CASE A jury convicted Appellant Kristie Lyn Hermes of intoxication assault, found that she used or exhibited a deadly weapon, assessed punishment at four

years in prison, and recommended that she be granted community supervision. ^[1]

CR 11, 56-57, 61-62; 4 RR 96-97, 108. The trial court suspended Appellant’s

sentence and placed her on community supervision for five years. CR 63; 4 RR

112.

STATEMENT OF FACTS The Accident

The Civilian’s Account

Around 4:30 on the morning of November 27, 2011, Holly Love was driving to work southbound on Custer Road in Frisco when she saw a woman, identified as

Appellant, in the road waving her arms. 2 RR 175-76, 203. When Love slowed

down, Appellant, who appeared to be in her twenties and was crying, approached

her window and said she had been in a bad accident. 2 RR 176-77, 202.

*8 Appellant’s face was covered in blood that appeared to be flowing from the top of

her head. 2 RR 183-84. The accident scene was not immediately visible, so Love

got out of her car and walked with Appellant up an incline. 2 RR 177. As they

walked, Appellant spontaneously stated, “I drank three beers.” 2 RR 202. She

kept repeating, “I want to call my mom, we only had a few beers, I want to call my

mom.” 2 RR 177. Appellant also said she had been at a party and smoked

marijuana. 2 RR 177, 196.

When Love saw the vehicle that Appellant had led her to, Love could tell that it had obviously rolled, and it appeared to have been a one-car accident. There

were no other cars around. 2 RR 177, 180. A young man was lying in the road,

and Appellant said she had been driving and that he had been ejected from the car.

2 RR 177, 180, 186-87, 196. Love called 911, and in a very distressed voice, told

the operator that there had been a “horrible accident.” 2 RR 181-82; SX 1 at 0:26-

0:28.

Love did not notice an odor of drugs or alcohol on Appellant, and she did not remember Appellant slurring her words. 2 RR 191-93. Appellant made sense

enough that Love understood what she was trying to tell her, although she also

made some “random statements.” 3 RR 192, 198. Love felt that Appellant told

her about the beer and marijuana because she knew it contributed to the accident

and “it was a guilty conscious speaking.” 2 RR 201.

It was cold and very dark that morning, but it was not raining, snowing, or windy. 2 RR 178, 182-83, 190. The road was smooth, and Love had never had

any trouble navigating that road, which she traveled often on her way to work. 2

RR 179.

Law Enforcement’s Accounts

When first-responder Frisco Police Officer Kevin Kryczkowski arrived, he saw both Appellant and a man—later identified as Cesar Franco—lying in the

roadway. ^[2] 2 RR 258-61; 3 RR 21-24. Franco had suffered so much trauma that he

did not understand what was going on. 3 RR 24-25. Appellant was initially

unconscious, but as Officer Kryczkowski spoke with her, she became “frantic.” 3

RR 23. The blood from the top of her head was running down her face. 3 RR 23.

Appellant volunteered that, the evening before the accident, she had consumed

three to four beers and smoked marijuana. 3 RR 27-28. She also said that she had

been driving at the time of the accident. 3 RR 52-53; SX 2 at 3:23-3:26. Officer

Kryczkowski did not smell the odor of alcohol or marijuana on Appellant, although

it would have been difficult to discern alcohol in a situation like this due to the

wind, the smell of burnt metal, and the distraction of blood running down her face.

*10 3 RR 82. He could not tell if Appellant was slurring her words because of the state

she was in. 3 RR 72-73.

When Officer Kryczkowski asked her about the last thing she remembered, Appellant recalled passing through the intersection at “Stonebriar” but did not

know how she got to where she was. 3 RR 25-27. Officer Kryczkowski knew that

the nearest intersection north of the accident was “Stonebridge” and that it was

several hundred yards back from where the skid marks began and between a fourth

and a half mile from where he found Franco and Appellant. 3 RR 26-27.

Appellant’s lack of memory about what may have precipitated the crash did not

make sense to Officer Kryczkowski, and in his opinion, Appellant had been

driving while intoxicated that night. 3 RR 27, 82.

Officer Jason Hinkle conducted the crash scene investigation. 3 RR 244-45.

He initially observed that the Jeep’s windows were “busted,” there was blood

inside and out of the Jeep, the Jeep’s roof was caved in, and there were scrape

marks on the Jeep’s roof, fenders, and hood. 3 RR 252-53, 258; SX 10. The

roadway evidence, including visible skid marks on the road, deep gouges in the

grass of the median, and debris from the Jeep, revealed that the Jeep had been

traveling in the left lane when it began to drift gradually toward the right lane. It

then ran up on the right-lane curb, headed back toward the left lane, flipped

multiple times, and ended up in the road’s center median. 3 RR 246-58; SX 10. It

was not entirely clear whether the brakes had been applied. 3 RR 256-57.

On cross-examination, Officer Hinkle testified to the following: Q. [Defense Counsel]: You didn’t know whether or not the cause of that roll was the intoxication of [Appellant], correct?

A. [Officer Hinkle]: It is possible.

* * *

Q. You would also agree with me that something other than her intoxication caused that roll, correct?

A. It could be.

Q. That means it’s a possibility; is that right?

A. Yes.

Q. And when we’re talking about proof beyond a reasonable doubt, you would agree with me that there’s no way anybody can say beyond a reasonable doubt that her intoxication caused that roll if you’re conceding that it’s possible that it didn’t.

A. No, I can’t say.

Q. Beyond a reasonable doubt.

A. Yes.

* * *

Q. [I]f you’re sitting here telling [the jurors] that it’s possible as the lead investigator in this case, that it’s possible that there was something other than intoxication that caused that car to roll, how are the 12 or them, or 11 of them, supposed to say beyond a reasonable doubt she’s guilty of intoxication assault?

A. I don’t have any evidence that anything else caused that accident . Q. Okay. But you don’t have any evidence that intoxicated caused it, correct?

A. Just the admission of drinking and the smoking, which tends to dull one’s reflexes and ability to drive a vehicle.

* * *

Q. You don’t have any indication that she was intoxicated other than her admission of consuming alcohol and marijuana; is that right?

A. Well, I also have the loss of mental and physical faculties due to the fact that the defendant’s vehicle did not maintain a lane down the lane of traffic and ended up safely at its destination. It ended up [in] a single vehicle accident.

3 RR 274-77 (emphasis added).

Cesar Franco’s Account

The night before the accident, nineteen-year-old Cesar Franco and his twenty-year-old girlfriend Appellant, decided to go out. ^[3] Appellant drove them in

her car to a party at her friend’s apartment, and they arrived around 10:30 p.m. 2

RR 205-06, 210. Franco did not know anyone at the party, so he began drinking

with three or four “random guys.” 2 RR 207. Between them, they drank a twenty-

four pack of beer. 2 RR 223. While drinking, Franco “started blurring and then

blacked out.” 2 RR 208-09, 222. He was “real drunk.” 2 RR 222-23. Finishing

the case of beer was the last part of the night he remembered. 2 RR 207. He did

*13 not remember whether he smoked marijuana that night, although he smoked

marijuana about once a week at that time. 2 RR 208-10, 224. He did not

remember the drive home from the party or who was driving. 2 RR 210. Franco

explained, however, that he did not have a driver’s license at that time and that

Appellant was the one “mainly driving all the time while [they] were dating.” 2

RR 247.

Appellant’s Recorded Statements

The day of the accident, Officer Hinkle interviewed Appellant at the hospital. ^[4] 4 RR 5; SX 12. Appellant said that she and her boyfriend had been at a

friend’s apartment off of Coit and Highway 380 and that they had gotten there

about 11:15 or 11:30 at the latest. SX 12-1 at 1:07-1:30, 3:30-3:55, 4:25-4:45.

Appellant admitted to drinking two shots of liquor and to smoking a small bowl of

marijuana; she claimed, however, that she “didn’t even pick up one beer.” 4 RR 4;

SX 12-1 at 4:05-4:25, 6:05-7:05; SX 12-2 at 0:22-0:27. When asked if she had

been the one driving, Appellant stated, “Yeah, it was me, definitely.” SX 12-2 at

6:19-6:23. At the end of the interview, Appellant stated, “I know I was in the

wrong.” 4 RR 8; SX 12-2 at 8:08-8:14. Officer Hinkle understood that to mean

that Appellant felt she had been wrong in deciding to drive after smoking

marijuana and drinking.

*14 Appellant’s medical records also contained the following notation: “8:28 a.m., general, patient alert and oriented. Patient states, ‘I really hate myself for

what happened.’” 3 RR 285-86; SX 8. Officer Hinkle testified that this sounded

like someone who caused the accident. 3 RR 286.

The Blood Evidence

Officer Kryczkowski went to the hospital to obtain a blood sample from Appellant. After he read the applicable statutory warnings to Appellant, she

consented, and a registered nurse drew Appellant’s blood at 9:04 a.m. 3 RR 30-32,

34-37, 134-36; SX 3, 4, 5, 6, 7. The results of this blood draw showed that

Appellant’s blood alcohol level was 0.019 grams of alcohol per 100 millileters of

blood; meaning it was below the .08 legal limit, approximately four hours after the

accident. 3 RR 177-83, 191-92, 198; SX 6, 7.

Prior to the law enforcement blood draw, at 6:30 that same morning, a registered nurse had drawn Appellant’s blood for medical purposes. 3 RR 108-

113, 191-93; SX 8. Forensic scientist Chris Youngkin testified that, after

analyzing the serum test results contained in Appellant’s hospital records, and after

converting the results to a forensically-useable whole-blood-alcohol-test result, he

determined that Appellant had a .091 blood-alcohol level approximately two hours

after the accident. 3 RR 192-93, 198-99, 201, 209-10. Youngkin agreed with

defense counsel that the most he could say without additional information—such

as when Appellant stopped drinking—was that Appellant’s blood-alcohol level

could have been higher, lower, or the same at the time of the accident. 3 RR 196,

201-02. He explained, however, that according to studies accepted by the

scientific community, alcohol can begin to affect the body in an amount as low as

.01 grams of alcohol. 3 RR 203-04. And alcohol can have an effect on a person’s

lateral vision, making it more difficult to follow the curve of the road, for instance.

3 RR 194-95.

Toxicologist Eduardo Padilla analyzed a sample of Appellant’s blood to identify the presence of drugs. 3 RR 223-29; SX 9. In addition to finding

morphine, which was given to Appellant at the hospital, he also found a small

amount of Clonazepam, a muscle relaxant, which can cause central nervous system

depressant effects. 3 RR 231-32. Some of its intoxicating effects include

drowsiness, dizziness, blurred vision, confusion, and a general lack of motor

coordination. 3 RR 232. He did not test for marijuana in the blood. 3 RR 242; SX

9. Padilla testified that if alcohol, Clonazepam, and marijuana are taken together,

they can produce an additive effect, meaning that the overall effect is greater. 3

RR 234-35.

Franco’s Injuries

Franco’s Account

Franco did not remember getting into the car to drive home. 2 RR 210-11.

He was told by other people that he was thrown from the car. 2 RR 210. Franco

was flown by Care Flight to the hospital because his injuries needed immediate

attention. 3 RR 28. His mother told him he was in the hospital for four days, and

he was unconscious three or four of those days. 2 RR 211, 213. He did not

remember what type of medical treatment he received, and he had not reviewed his

medical records. ^[5] 2 RR 211, 213. According to Franco, he suffered “just [a] lower

back and side hip injury. That’s it.” 2 RR 211. He denied that he sustained a

brain contusion. 2 RR 211.

When he was released from the hospital, he could walk, but it was “very difficult.” 2 RR 213. He wore a back brace for two straight months to assist him

with walking, and he took it off only to shower and when he slept on hot days. 2

RR 213, 215, 241-42. The brace was very uncomfortable, but it appeared that it

was also necessary, as Franco admitted that it was “the only brace [he] could have

used to walk better.” 2 RR 213, 215, 241-42. He also admitted he wore the brace

*17 to keep from accidently bending his back, which would “hurt very bad.” 2 RR

216. He took pain medication and antibiotics. 2 RR 217.

During his two-month recovery period, he rarely left the house, leaving only to visit Appellant. 2 RR 214-15, 241. He had planned before the accident to “start

working at a kitchen,” but he could not do “full fast movement.” 2 RR 241. He got

the job after he was “able to walk and everything.” ^[6] 2 RR 214, 241.

Franco acknowledged that he had not asked a lot of questions about his injuries because he felt happy just to be alive and his injuries were not as bad as

Appellant’s. 2 RR 242. He agreed, however, that he might not fully grasp the

extent of his injuries because he did not ask. 2 RR 242. When asked if he was

permanently disfigured, Franco stated that his back hurts “very bad” on cold winter

days. 2 RR 217, 252. He added that, since leaving the hospital, he had not gotten

his back “checked out,” stating, “I thought I was fine, and I am.” 2 RR 215-16,

252. He explained, however, that while he can still work and it is not a “major

issue,” he cannot do “certain things,” so he is “going to get [himself] checked out.”

2 RR 252-53.

*18 Dr. Al West’s Account

Trauma surgeon Dr. Al West testified that, due to the accident, Franco suffered several spine fractures, meaning that several of his back bones were

broken. 3 RR 91-93. Surgery was not required because the breaks did not

interrupt the structural integrity of the spine; the injury would hurt, but there was

no risk for paralysis. 3 RR 94. In his opinion, residual back pain due to fractured

vertebrae constituted “protracted impairment” of the “function of a bodily

member.” 3 RR 107.

According to Dr. West, Franco also suffered from a brain contusion, which is “basically a bruise of the tissue of the brain itself, usually bleeding into the tissue

of the brain itself.” 3 RR 95. This is dangerous because it interrupts the

functioning of some of the brain cells in the area and because the swelling

increases pressure on the brain. 3 RR 95-96. Franco’s CT scan showed blood in

the fluid that cushions the brain, indicating that “there was enough of a blow to

cause some bleeding in and around the brain.” 3 RR 96.

When defense counsel asked Dr. West whether the brain contusion created a

substantial risk of death in Franco, the following dialogue ensued:

A. [Dr. West]: Depends what you mean. I don’t know what “substantial” means in that case. I mean, greater than 5 percent? Greater than 100? I mean, you know, about – about 5 percent of people with a brain contusion that size can go on to die.

Q. [Defense Counsel]: Okay. Well, I’m talking specifically about him.

A. That’s what I’m talking about.

* * *

Q. Is it possible that this brain contusion that Cesar Franco had would not be considered a substantial risk of death? I know this is legalese. A. It’s possible, yes. It is possible that it would not be considered substantial. Those words are very vague. But yes, it is possible that it would not be considered [a] substantial risk of death.

Q. . . . And I guess the payoff question here, in your medical opinion was there a substantial risk of death in Cesar Franco’s case with regard to his brain contusion?

A. Initially, yes. As he – you know, again, you’re getting – when I first see him, there’s a snapshot, and he’s got a brain contusion. You don’t know if that brain contusion is going to get bigger, going to get worse, so when I see somebody with a brain contusion, I always put them in the intensive care unit for 24 hours because there is a substantial chance that that gets worse and causes death.

3 RR 99-101.

While Dr. West testified that he could not speak to the contusion’s long-term effects on Franco because Franco had not done any specific neuropsychiatric

testing, he could say that “a portion of [Franco’s] brain died because of his

contusion. Every contusion, no matter how big or small, a portion of your brain

dies.” 3 RR 102-03. When asked if Franco’s brain repaired itself, Dr. West stated:

“[I]t may have repaired itself with scar portion. Again, a portion of his brain died,

so depends on how you define ‘repaired itself.’” 3 RR 104. Dr. West testified

that, medically speaking, a brain contusion constitutes serious bodily injury and

that the death of a portion of someone’s brain constitutes a protracted loss of a

bodily member. 3 RR 97, 107.

SUMMARY OF THE STATE’S ARGUMENTS The corpus delicti rule was satisfied because the State introduced evidence other than Appellant’s extrajudicial statements showing that the crime of

intoxication assault occurred. Because the corpus delicti rule was satisfied,

Appellant’s own admissions were sufficient to establish that she was driving at the

time of the accident. Also, Appellant’s .091 blood-alcohol level two hours after

the accident, coupled with her admissions to drinking alcohol and smoking

marijuana and other corroborating evidence, established that she was driving while

intoxicated at the time of the accident. While Franco downplayed the severity of

his injuries, his testimony along with that of an attending doctor, established that

Franco suffered serious bodily injury.

STATE’S REPLY TO APPELLANT’S ISSUES (The Corpus Delicti Rule & Sufficiency of the Evidence) In three issues, Appellant asserts that the evidence is insufficient to support a conviction for intoxication assault because: (1) her own extrajudicial admissions

were the only evidence that she operated the vehicle, and the State failed to

introduce any corroborating evidence, as required by the corpus delicti rule; and

the State failed to produce sufficient evidence (2) that she was intoxicated at the

time of the accident and (3) that Cesar Franco suffered serious bodily injury.

Appellant’s first argument comingles two concepts: the Jackson v. Virginia sufficiency review and the corpus delicti rule. The corpus delicti rule was satisfied

here because the State introduced evidence other than Appellant’s extrajudicial

statements showing that the crime of intoxication assault occurred. Because the

corpus delicti rule was satisfied, Appellant’s own admissions were sufficient to

establish that she was driving at the time of the accident. Also, Appellant’s .091

blood-alcohol level two hours after the accident, coupled with her admissions to

drinking alcohol and smoking marijuana and other corroborating evidence,

established that she was driving while intoxicated at the time of the accident.

While Franco downplayed the severity of his injuries, his testimony along with that

of an attending doctor, established that Franco suffered serious bodily injury.

I. The Corpus Delicti Rule Was Satisfied

“The corpus delicti rule is a common law, judicially created, doctrine—the purpose of which was to ensure that a person would not be convicted based solely

on his own false confession to a crime that never occurred.” Carrizales v. State ,

414 S.W.3d 737, 740 (Tex. Crim. App. 2013). The rule is satisfied if “some

evidence exists outside of the extra-judicial confession which, considered alone or

in connection with the confession, shows that the crime actually occurred.”

Salazar v. State , 86 S.W.3d 640, 645 (Tex. Crim. App. 2002).

Although Appellant argues that the corroborating evidence is not sufficient because it does not corroborate her extrajudicial confession that she was the driver,

“this is not the test or the purpose for the corpus delicti rule.” ^[7] Johnson v. State ,

299 S.W.3d 491, 499 (Tex. App.—Tyler 2009, no pet.). “The corpus delicti rule

has the effect of requiring evidence to corroborate a confession, but only to the

extent that there must have been a crime committed.” Id. (citing Salazar , 86

S.W.3d at 644-45). The rule does not “require any independent evidence that the

defendant was the criminal culprit.” Salazar , 86 S.W.3d at 644.

The corpus delicti of intoxication assault is that someone (1) by accident or mistake (2) while driving a motor vehicle (3) in a public place (4) while

*24 intoxicated (5) and by reason of that intoxication (6) caused serious bodily injury

to another. See Tex. Penal Code § 49.07(a); McCann v. State , 433 S.W.3d 642,

646 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (setting out the corpus delicti

of DWI). “The corroborating evidence need not prove the underlying offense

conclusively; there simply must be some evidence that renders the commission of

the offense more probable than it would be without the evidence.” McCann , 433

S.W.3d at 646; see Cardenas v. State , 30 S.W.3d 384, 390 (Tex. Crim. App. 2000).

Here, there was sufficient corroborating evidence that the crime of intoxication assault actually occurred and that it had not been merely invented by

Appellant. According to Franco, Appellant drove the two of them to a party in her

car. They arrived at about 10:30 p.m., and Franco began drinking beer, got drunk,

and blacked out. 2 RR 205-06, 208-10, 222. By all accounts, at about 4:30 a.m.,

Franco and Appellant were found near a badly-damaged car located in the median

of a public roadway. No other people or cars were associated with the accident. 2

RR 176-77; 3 RR 21-28. The crime scene investigation revealed that the car had

been heading southbound (in the direction of Franco’s Plano home) and that the car

had simply drifted gradually from the left to right lane until it hit the curb and

flipped several times. 2 RR 204; 3 RR 244-58. There was no evidence that the

weather or road conditions played a part in the accident. 2 RR 178-79, 182-83.

Franco and Appellant both sustained severe injuries that were consistent with

having been inside the car at the time of the accident. ^[8] 3 RR 91-93, 95; SX 8; DX

5. Two hours after the accident, Appellant’s blood-alcohol level was over the legal

limit at .091. 3 RR 192-93.

Because the State produced some evidence (other than Appellant’s statements that she had been drinking and driving) that renders the commission of

intoxication assault more probable than it would be without the evidence, the

corpus delicti rule is satisfied. See McCann , 433 S.W.3d at 646.

Appellant’s reliance on Threet , Coleman , and Hanson is misplaced. ^[9] See App. Br. 12-14; see also McCann , 433 S.W.3d at 647-48 (distinguishing Threet

and Coleman ). For instance, in Threet , the Court of Criminal Appeals held that the

evidence was insufficient to prove DWI where a highway patrolman found a

wrecked pickup truck with no driver, the patrolman was directed to the hospital

where he found an intoxicated Threet, and Threet confessed to being the driver of

the crashed truck. ^[10] 250 S.W.2d at 200. Threet is most obviously distinguishable

from the instant case because, unlike Threet, Appellant was found at the accident

scene instead of at the hospital. Further, to the extent Threet suggests that corpus

*26 delicti includes the identity of the person who committed the offense, this holding

was disapproved of in Gribble v. State , 808 S.W.2d 65, 70 n.11 (Tex. Crim. App.

1990). Likewise, the holdings of the courts of appeals in Coleman and Hanson are

questionable to the extent they suggest that evidence of the defendant’s driving is

required to prove the corpus delicti of DWI. See Folk v. State , 797 S.W.2d 141,

144 (Tex. App.—Austin 1990, pet. ref’d) (declining to follow Coleman and

Hanson for this reason). Because Threet is distinguishable, and Coleman and

Hanson are not decisions of this Court, none of these cases is binding authority.

In sum, because there is evidence outside of Appellant’s extrajudicial confession showing that the crime of intoxication assault occurred, the corpus

delicti rule was satisfied. See generally Kellis v. State , No. 14-04-01044-CR, 2006

WL 278380, at *3 (Tex. App.—Houston [14th Dist.] Feb. 7, 2006, no pet.) (not

designated for publication) (“There is no serious question whether the crime of

intoxication assault actually occurred. The State presented expert testimony

regarding accident reconstruction, the condition of the vehicles, the medical

condition of complainant, and appellant’s intoxication levels, which provided more

than ‘some independent evidence’ to prove that the crime actually occurred.”).

This portion of Appellant’s first issue should be overruled.

II. The Evidence Supports the Conviction

The instant indictment alleged that Appellant operated a motor vehicle in a public place while intoxicated, and by reason of such intoxication, caused serious

bodily injury to Cesar Franco by accident or mistake, by causing the vehicle she

was driving to roll over while Franco was a passenger. CR 11.

A. Standard of Review

In determining the sufficiency of the evidence, the reviewing court considers all evidence in the light most favorable to the jury’s verdict and determines

whether any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979);

Brooks v. State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). The trier of fact is

the sole judge of the weight and credibility given to witness testimony, and it is

within the sole province of the jury to resolve any conflicts in the evidence.

Wesbrook v. State , 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The jury may

draw multiple reasonable inferences as long as each inference is supported by the

evidence presented at trial. See Hooper v. State , 214 S.W.3d 9, 15 (Tex. Crim.

App. 2007). The reviewing court may not act as a “thirteenth juror” and reweigh

the jury’s determinations of the weight or credibility of the evidence. Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

B. Appellant was the Driver

Provided there is other evidence that a crime occurred, the identity of the defendant as the perpetrator may rest alone upon her confession. See Vaughn v.

State , 833 S.W.2d 180, 182 (Tex. App.—Dallas 1992, pet. ref’d); see also

Carrizales , 414 S.W.3d at 743 (“[A] defendant’s extrajudicial confession does not

constitute legally sufficient evidence of guilt absent independent evidence of the

corpus delicti .”) (emphasis added) (quoting Hacker v. State , 389 S.W.3d 860, 865-

66 (Tex. Crim. App. 2013)). Because the evidence in this case satisfied the corpus

delicti rule, Appellant’s statement that she had been driving at the time of the

accident can be considered in determining the sufficiency of the evidence.

Indeed, Appellant volunteered to the first person on the scene, Holly Love, that she had been driving. 2 RR 180. And when asked by Officer Kryczkowski

who had been driving, Appellant stated, “Me,” and she described driving through

the intersection at Stonebridge and Custer, which the officer verified as being the

last intersection before the accident. 3 RR 26-27, 52-53; SX 2 at 3:23. When

asked during a recorded interview whether she had been the one driving, Appellant

stated, “Yeah, it was me, definitely.” SX12-2 at 6:20-6:22. No controverting

evidence was introduced. Moreover, Franco testified that he did not have a

driver’s license at the time, that Appellant drove them to the party in her car, that

Appellant was the one “mainly driving all the time while [they] were dating,” and

that he had blacked out at the party. 2 RR 210, 247. Viewed in the light most

favorable to the verdict, the jury could have rationally determined beyond a

reasonable doubt that Appellant had been driving at the time of the accident. This

portion of Appellant’s first issue should be overruled.

C. Appellant Was Driving While Intoxicated at the Time of the Accident

The State need not establish the precise time of an accident or the defendant’s driving to prove the offense of DWI. See McCann , 433 S.W.3d at 649.

To establish the DWI element of intoxication assault, however, there must be a

temporal link between Appellant’s intoxication and her driving. ^[11] See Kuciemba v.

State , 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). Such a finding can be

supported solely by circumstantial evidence. See id. at 462; McCann , 433 S.W.3d

at 649.

Here, Appellant’s .091 blood-alcohol level two hours after the accident was highly probative, and, coupled with other evidence, was sufficient to prove

intoxication at the time of driving. See Kirsch v. State , 306 S.W.3d 738, 745 (Tex.

Crim. App. 2010). Indeed, the whole window of events was fairly narrow. By

Appellant’s account, she and Franco arrived at the party at about 11:15 or 11:30

p.m. SX 12-1 at 4:25-4:45. Appellant also estimated that she drank about an hour

*30 and fifteen minutes prior to the crash. SX 12-1 at 1:32-1:39. And the evidence

suggests that the accident happened sometime between 4:00 and 4:30 a.m. ^[12]

In addition, Appellant’s admissions to drinking alcohol and smoking marijuana within this relatively limited timeframe before the accident strengthened

the inference that she was intoxicated at the time of driving. See Kirsch , 306

S.W.3d at 745. Appellant admitted to Officer Kryczkowski at the scene and in her

recorded interview with Officer Hinkle that she had consumed alcohol and smoked

marijuana. 3 RR 27-28; 4 RR 4; SX 12-1 at 4:05-4:25, 6:05-7:05; SX 12-2 at 0:22-

0:27. Appellant also spontaneously admitted to civilian Love that she had drank

three beers and smoked marijuana at a party, and the jury could have believed, as

Love did, that this was Appellant’s guilty conscience speaking. 2 RR 196, 201-02.

Further, the jury could have reasonably concluded that, in admitting during her

interview that she was “in the wrong,” Appellant was connecting her intoxicated

driving with the accident. 4 RR 8; SX 12-2 at 8:08-8:14.

That Appellant was involved in a single-car accident is still further evidence of the link between her intoxication and her driving at the time of the accident. See

*31 Scillitani v. State , 343 S.W.3d 914, 918-19 (Tex. App.—Houston [14th Dist.]

2011, pet. ref’d). Indeed, while Officer Hinkle testified that he did not have any

evidence as to the exact cause of the accident, he underscored that he did not have

any evidence that anything besides Appellant’s intoxication caused the accident. 3

RR 276-77. Not only that, the last thing Appellant remembered was an

intersection approximately a half mile back from the accident, and she had no

explanation of how the accident occurred. 3 RR 25-27. Finally, Officer

Kryczkowski offered his expert opinion that Appellant had been driving while

intoxicated that night, further confirming the sufficiency of the evidence on this

point. 3 RR 78, 82; see Henderson v. State , 29 S.W.3d 616, 622 (Tex. App.—

Houston [1st Dist.] 2000, pet. ref’d); see also Zill v. State , 355 S.W.3d 778, 785-86

(Tex. App.—Houston [1st Dist.] 2011, no pet.) (holding that a police officer’s

testimony about a defendant’s behavior and opinion that the defendant is

intoxicated provides sufficient support to uphold a jury verdict).

Viewing the evidence in the light most favorable to the verdict, a rational jury could have found beyond a reasonable doubt that Appellant was driving while

intoxicated at the time of the accident. Appellant’s second issue should be

overruled.

C. Cesar Franco Suffered Serious Bodily Injury

For purposes of intoxication assault, serious bodily injury includes an injury that “creates a substantial risk of death or that causes serious permanent

disfigurement or protracted loss or impairment of the function of any bodily

member or organ.” Tex. Penal Code § 49.07(b). Courts decide whether an injury

qualifies as serious bodily injury on a case-by-case basis. See Moore v. State , 739

S.W.2d 347, 352 (Tex. Crim. App. 1987).

Appellant asserts that the only evidence presented regarding Cesar Franco’s actual injuries indicated that they were not serious. App. Br. 22. While Franco

downplayed the severity of his injuries, the record nonetheless demonstrates that

his broken back bones and his brain contusion constituted serious bodily injury. ^[13]

i. Franco’s Back

Appellant argues that there is no evidence of any protracted impairment of the functioning of Franco’s back because Franco returned to work after two

months, he did not seek additional medical treatment, and he did not suffer any

lingering effects from his injury except some pain, which he contends does not

constitute impairment of “the function of a bodily member.” App. Br. 25-27.

*33 In assessing the sufficiency of the evidence to establish serious bodily injury, however, the relevant issue is the impairing quality of the injury as it was

inflicted , not after the effects had been ameliorated or exacerbated by other actions

such as medical treatment. See Taylor v. State , 71 S.W.3d 792, 794 (Tex. App.—

Texarkana 2002, pet. ref’d). To establish protracted impairment, an organ or

bodily member must lose some function. See Andrus v. State , Nos. 05-08-00703-

CR, 05-08-00704-CR, 2010 WL 797196, at *2 (Tex. App.—Dallas Mar. 10, 2010,

no pet.) (not designated for publication). The loss of function, however, need only

be protracted, not permanent. Id. “Protracted” has been defined as “extended,

lengthened, prolonged, or continued.” See Moore , 739 S.W.2d at 349. The jury is

free to apply common sense, knowledge, and experience gained in the ordinary

affairs of life in drawing reasonable inferences from the evidence presented. See

Jackson v. State , 399 S.W.3d 285, 292 (Tex. App.—Waco 2013, no pet.) (applying

the principle in assessing whether there was serious bodily injury).

Here, Franco was ejected from a car during a horrible rollover accident, and several of his back bones were broken. As a result, Franco was virtually

homebound, could not walk well without a brace, could not bend over without

excruciating pain, and could not work for two months. ^[14] At the time of trial (two

*34 years and eight months later), Franco’s back still hurt “very bad” on cold days, he

still had to be careful of his back at work, and there were still certain things that he

could not do. ^[15] 3 RR 217, 241, 252-53. A rational jury could conclude that Franco

suffered the protracted impairment of the function of his back, a bodily member.

See Madden v. State , 911 S.W.2d 236, 244 (Tex. App.—Waco 1987, pet. ref’d)

(inability to walk for four weeks because of injured left hip constituted serious

bodily injury); Coshatt v. State , 744 S.W.2d 633, 636 (Tex. App.—Dallas 1987,

pet. ref’d) (fractured vertebrae requiring six weeks of bed rest, no heavy work for

three months, and loss of partial use of back constituted serious bodily injury). Cf.

Moore , 739 S.W.2d at 351-52 (holding that evidence of an injured back that

required a few hours in the hospital and rest for a week was insufficient to establish

serious bodily injury).

ii. Franco’s Brain Contusion

Appellant asserts that Dr. West provided no testimony regarding the actual long-term effects of the brain contusion or whether it created a substantial risk of

death. App. Br. 23. He contends that Dr. West’s answers to several hypothetical

scenarios were insufficient to establish serious bodily injury, citing Moore v. State ,

*35 739 S.W.2d at 352. ^[16] The situation warned against in Moore is distinguishable

from the instant case, however. In Moore , the victim suffered a stab wound to his

back, he was taken to the emergency room where he was treated and stayed for

three hours, he was bedridden, and it was “at least a week” before he could go out

and see people. See 739 S.W.2d at 349-52. At trial, the attending physician in

Moore testified that the victim’s wounds were not the type of injuries that would

create a substantial risk of death or that would cause a protracted loss or

impairment of the function of any bodily member or organ. Id. at 350-51. Only

when asked if the wound could have created a substantial risk of death if it had

been left untreated did the doctor respond that there was a possibility that the

wound could have become infected, which could have been fatal. Id. at 350. The

Court held that there was insufficient logical support in the evidence to sustain the

jury’s implicit finding of serious bodily injury. Id . at 355.

Here, while Dr. West did answer some hypothetical questions, he also testified that Franco’s brain contusion as inflicted created both a substantial risk of

death and the protracted impairment of the function of his brain. Indeed, while

Dr. West initially agreed with defense counsel that it was possible that Franco’s

brain contusion would not be considered a substantial risk of death, when asked

*36 again for his medical opinion whether Franco’s brain contusion caused a

substantial risk of death, Dr. West stated: “Initially, yes. . . . [W]hen I see

somebody with a brain contusion, I always put them in the intensive care unit for

24 hours because there is a substantial chance that that gets worse and causes

death.” 3 RR 99-101. A jury could rationally believe that Franco’s brain

contusion created a substantial risk of death. In fact, in Moore , the Court

explained:

We do not mean by this to say that the risk of death must be grave, or that the injury be more likely [than] not to produce death even if treated. Rather, if the injury presents an appreciable risk of death, whether treated or not, that risk is substantial enough for a rational trier of fact to conclude or infer that “serious bodily injury” has been sustained by the victim.

739 S.W.2d at 354. The instant situation differs dramatically from Moore in that

the doctor in Moore noted that any type of stab wound to the back carries a

potential risk of serious harm and death, but reiterated several times over that the

victim’s stab wound did not constitute serious bodily injury. See Moore , 738

S.W.2d at 349-51.

Dr. West also testified that a portion of Franco’s brain died as a result of the brain contusion, that the death of a portion of someone’s brain constitutes a

protracted loss of a bodily member, and that a brain contusion constitutes serious

bodily injury. 3 RR 97, 107. A doctor’s testimony that a wound constituted

serious bodily injury has been held to be sufficient to establish serious bodily

injury. See Barrera v. State , 820 S.W.2d 194, 196 (Tex. App.—Corpus Christi

1991, pet. ref’d) (citing Boney v. State , 572 S.W.2d 529, 532 (Tex. Crim. App.

1978)); see also Mechell v. State , 374 S.W.3d 454, 457 (Tex. App.—Waco 2011,

pet. ref’d) (citing Boney ). The jury could have reasonably concluded that Franco’s

brain contusion created both a substantial risk of death and the protracted

impairment of the function of his brain. Appellant’s third issue should be

overruled.

PRAYER

Appellant’s trial was without prejudicial error. The State prays that Appellant’s conviction and sentence be affirmed.

Respectfully submitted, GREG WILLIS Criminal District Attorney Collin County, Texas JOHN R. ROLATER, JR. Assistant Criminal District Attorney Chief of the Appellate Division /s/ Libby J. Lange LIBBY J. LANGE Assistant Criminal District Attorney 2100 Bloomdale Rd., Suite 200 McKinney, TX 75071 (972) 548-4323 FAX (214) 491-4860 State Bar No. 11910100 llange@co.collin.tx.us *39 CERTIFICATE OF SERVICE The State has e-served counsel for Appellant, Charles Pelowski, and sent a courtesy copy of the State’s Brief to c.pelowski@vitzlaw.com, on this the 19th day

of February, 2015.

/s/ Libby J. Lange Libby J. Lange CERTIFICATE OF COMPLIANCE This brief complies with the word limitations in Texas Rule of Appellate Procedure 9.4(i)(2). In reliance on the word count of the computer program used to

prepare this brief, the undersigned attorney certifies that this brief contains 7,226

words, exclusive of the sections of the brief exempted by Rule 9.4(i)(1).

/s/ Libby J. Lange Libby J. Lange

[1] See Tex. Penal Code § 49.07.

[2] The officer’s in-car camera remained stationary and illuminated the median and some of the debris from the accident. It did not capture the accident scene, other than the EMS workers, police officers, and firefighters walking back and forth in front of the camera. 2 RR 261-62; SX 2. Officer Kryczkowski’s body microphone captured several conversations and other sounds, including moaning and crying.

[3] Franco and Appellant began dating in high school and had an off-and-on relationship for four years. They were no longer dating at the time of trial. 2 RR 205, 238.

[4] Officer Hinkle recorded the interview, although he inadvertently failed to visually capture Appellant on the recording. 4 RR 5-6; SX 12.

[5] Prior to trial, Franco filed an affidavit of non-prosecution, which stated that he did not want Appellant to be prosecuted and that he did not want to testify against her. This remained his position at trial. 2 RR 233-35; DX 6.

[6] Although Franco testified that he started working “a month or two” after the accident, he otherwise consistently testified that he stayed at home for two months after the accident. 2 RR 214-15, 241-42.

[7] Appellant did not assert at trial that the corpus delicti rule had not been satisfied. Although she argued that there was no evidence that she operated a motor vehicle, she did so in the context of asking for a directed verdict. 4 RR 45-46. No instruction on corpus delicti was given in the jury charge.

[8] Although the extent of Appellant’s injuries were not at issue at trial, there is evidence that she suffered an open scalp wound and other injuries for which she was in the hospital for seven days. SX 8.

[9] Threet v. State , 250 S.W.2d 200 (Tex. Crim. App. 1952); Hanson v. State , 781 S.W.2d 445, 446 (Tex. App.—Fort Worth 1989), abated on other grounds , 790 S.W.2d 646 (Tex. Crim. App. 1990); Coleman v. State , 704 S.W.2d 511, 512 (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d).

[10] Appellant misstates that Threet was found standing next to the overturned pickup. App. Br. 12.

[11] “Intoxication” is defined as: (1) not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, or a combination of two or more of those substances into the body; or (2) having an alcohol concentration of 0.08 or more. See Tex. Penal Code § 49.01(2)(A). Here, the jury instructions included both definitions. CR 53.

[12] Holly Love arrived at the scene between 4:00 and 4:30 a.m. 2 RR 175-76. While the exact time of the accident (and thus Appellant’s driving) was not known, Appellant accounted for all of the time between the accident and the arrival of Love and the other civilians. In the recorded police interview, Appellant described the accident itself, saying that the vehicle flipped three or four times and that she knew she had to get out of the vehicle. She also described initially not knowing where her boyfriend was, finding him injured, and then by her estimate, the first cars came by three or four minutes later. SX 12-1 at 2:16-3:09; SX 12-2 at 3:28-3:41.

[13] Franco was essentially a reluctant State’s witness, and his attempts to downplay his knowledge of the severity and impact of his injuries are apparent in the record. For instance, he testified that he did not break any bones and did not suffer from a brain contusion, although Dr. West established otherwise.

[14] The fact that Franco had not sought additional medical treatment at the time of trial did not change the fact that he could not walk well enough (even with the brace) to function effectively outside of the house, much less go to work. See Taylor , 71 S.W.3d at 794.

[15] Further, Dr. West testified that residual back pain due to fractured vertebrae constituted impairment of the function of a bodily member. 3 RR 107.

[16] The Moore Court stated that “the prosecution must present relevant and probative evidence from which a rational trier of fact could infer beyond a reasonable doubt that the bodily injury the victim sustained created a substantial risk of death from the injury itself, and not from some hypothetical or mere possibility that the bodily injury created a substantial risk of death.” Id.