Veronica Yvonne Damon v. State

Opinion issued May 26, 2011

In

The

Court of

Appeals

For

The

First District

of Texas

———————————

NO. 01-09-01074-CR

———————————

Veronica Yvonne

Damon , Appellant

V.

The State of Texas , Appellee

On Appeal from the 183 District Court

Harris County, Texas

Trial

Court Case No. 1171538

MEMORANDUM

OPINION

Veronica

Yvonne Damon appeals her conviction for the offense of intoxication

manslaughter with a deadly weapon. [1] A jury found her guilty for the intoxication

manslaughter of Doris Kimbro and assessed her punishment at seven years’

confinement. In five issues, Damon

contends that the evidence is legally and factually insufficient to support her

conviction, the trial court erred by admitting the results of a blood test

showing her blood alcohol concentration, and the trial court erred by refusing

her proposed jury charge on concurrent causation. We conclude that the evidence is sufficient

to support the conviction. We further

conclude that the trial court did not err by admitting the blood test results

or by refusing the proposed jury charge.

We therefore affirm.

Background

Damon

was in a two-vehicle accident o n February 21, 2007 at approximately 5:15

p.m. that resulted in the deaths of Doris Kimbro and Yvette Cutia. Kimbro and Cutia were passengers in a Pontiac

Sunfire driven by Brittany Jones. The

three women were driving northbound on Miller Road 2. Damon was driving westbound on Highway 90. Damon was speeding and ran a stop sign in her Chevrolet

Tahoe, striking the right side of the Sunfire and killing both Kimbro and Cutia.

Two witnesses

discovered the accident. Alicia Trant testified

that she was driving home from work at the time of the accident. She was driving southbound on Miller 2 (the

direction opposite of Jones). As Trant

approached the intersection of Miller Road 2 and the feeder road for Highway 90

at approximately 5:15, she reached down for her sunglasses. She testified that the sun was bright but not

so bright that she could not see. When

she looked back up, she saw Damon’s Tahoe upside down in the middle of the

road. Trant got out of her car and spoke

to Damon, who was leaning against her overturned Tahoe. Trant asked Damon if she was okay, and she

responded, “Yeah. Why?” Trant thought that

Damon seemed rude. Trant approached the

Sunfire, which was in a ditch next to the road, to help the occupants. The passenger in the front was dead and the

passenger in the rear was not moving. Trant

and the other witness, a gentleman, attempted to calm the driver down and assured

her that help was on the way. During

this time Damon did not check on, or even ask about, the occupants of the Sunfire. Trant testified that Damon appeared to be

calm and carefree. Damon also smelled,

but Trant could not identify the smell. Trant

also said that when she saw Damon speaking with officers later she was

“somewhat uncooperative.” Within a few

minutes an ambulance arrived, and shortly thereafter Life Flight arrived.

Harris

County Sheriff’s Office Deputy G. Bloomfield arrived at the scene at 5:38 p.m. By the time Bloomfield arrived at the scene, another

officer and EMS were already on the scene, and he learned that Kimbro and Cutia

were dead. His primary responsibility was to direct the traffic. He observed Damon standing near her Tahoe

overturned in the intersection and Jones’s Sunfire in the ditch northwest of

the intersection. Damon told Bloomfield

that she was okay and that another deputy had taken her driver’s license. While Bloomfield was talking with Damon, he did

not notice any slurred speech, stumbling, or odor of alcohol. He placed the second witness to the accident,

Jesse Williams, in the back of a patrol car, and left to direct traffic.

Harris County

Sheriff’s Office Sergeant S. Cotter arrived at the

scene at approximately 6:00 p.m., while Life Flight was evacuating Jones. At that time, several other deputies were

already on the scene, including Deputy Anderson. EMS and Life Flight were also

there. Deputy Anderson informed Cotter

there were two fatalities in the Sunfire.

He also told her that Damon was still present and had refused medical

care and gave Cotter Damon’s license.

A few minutes later, Harris County Sheriff’s

Office Deputy P. Lillibridge, who was assigned as the lead investigator,

arrived. Damon at the time was standing

by a white truck on the scene, a little west of her Tahoe. After conferring with each other for a few

minutes, Lillibridge and Cotter spoke with Damon. At the time, Cotter did not notice any odor

of alcohol on Damon. Cotter testified

that Damon repeatedly insisted that she had not run the stop sign. Cotter left to interview Trant, leaving

Lillibridge to finish interviewing Damon.

Cotter took numerous photographs of the accident scene, but testified that

Damon was within her sight at all times.

When Lillibridge arrived at the scene, Cotter,

additional Sheriff’s Office deputies, at least two witnesses, and numerous fire

department and EMS personnel were on the scene.

The Sunfire had been moved from the ditch, but Damon’s Tahoe was still

on its roof. When a tow truck turned it

upright, a cooler and some water bottles, as well as empty small wine bottles,

fell out. Lillibridge also found two

wine bottles, one full and one empty, inside the Tahoe.

Lillibridge

spoke to Damon to try to determine what had happened. Damon told Lillibridge that she wasn’t

injured. At some point before

Lillibridge arrived, EMS personnel had checked on Damon, but she refused

treatment or transport to a hospital.

Damon told Lillibridge that she had left her house to go to a friend’s

house on Miller Road 3. Because the

accident occurred on Miller Road 2, Lillibridge asked Damon why she exited for

Miller Road 2. She said she didn’t

know. In response to a question of whether

Damon was disoriented, Lillibridge testified, “it seemed like something was

wrong with her,” but she did understand the questions and responded to them

appropriately. Concerning the collision

itself, Damon told him more than once that she had stopped at the stop sign and

the Sunfire had “come out of nowhere.” Damon

was aware of the stop sign; she mentioned it before Lillibridge brought it up

to her. Damon did not slur her speech. Nor did Lillibridge detect any odor of

alcohol on her or observe any visible signs of impairment. Lillibridge had no reason to suspect

that Damon was intoxicated. After

finishing his discussion with Damon, Lillibridge continued with his

investigation, delegated to Cotter the task of obtaining Damon’s formal

statement, and asked Deputy Wilkie and Deputy Capretta to obtain measurements at

the scene. He testified that he was

within sight of Damon at all times.

Lillibridge also checked with Damon several times to ensure she was

okay.

At

approximately 6:30, over an hour after the accident, Cotter approached Damon to

take her formal statement. Damon was

still standing by the white truck. Cotter

noticed a strong odor of alcohol from Damon.

When Cotter got Damon inside a patrol car, the odor became more

pronounced. Cotter remarked on the odor

and asked Damon, “How much have you been drinking?” Damon denied drinking anything. Cotter explained that there was a strong

breeze that may have prevented her from smelling the odor of alcohol on Damon

when she initially met with her shortly after 6 p.m. Lillibridge confirmed that it was very windy

that evening.

Cotter

performed the horizontal gaze nystagmus (HGN) test on Damon and observed four

of six clues that could indicate intoxication.

As part of the test, Cotter checked to verify that Damon’s eyes tracked

equally and that the pupil sizes were equal.

If they had not, it would indicate a neurological reason the HGN test

should not be performed, such as Damon having injured her head in the accident.

According to Cotter’s testimony (which

was disputed), four clues are sufficient to determine that a person is

intoxicated. Lillibridge repeated the

HGN test on Damon and observed the same four clues. As part of the test, he also checked to verify

Damon had equal tracking and pupil size.

With Damon confined in a vehicle, Lillibridge smelled alcohol on her.

Lillibridge

left to complete the investigation of the accident. Cotter then performed the

“walk and turn” test on Damon. Cotter explained

that during the walk and turn test, there are two clues of intoxication that

officers look for during the instruction phase and six clues during the walking

phase. She observed no clues from Damon

during the instruction phase and three clues during the walking phase. Cotter stated two clues during this test

would indicate the individual is intoxicated.

Cotter next performed the “one-leg

stand” test, and again the results indicated that Damon was intoxicated. Cotter explained there were four clues of intoxication

in the one-leg stand test and the presence of two or more clues would indicate

the person was intoxicated. Cotter observed two clues during Damon’s test performance.

While

Lillibridge and Cotter performed their investigations, other officers were also

on the scene assisting them. Cotter contacted

Deputy Capretta at 5:55 and asked him to check on Jones’s condition at the

hospital. After going to the hospital,

he came to the accident scene and assisted Deputy Wilkie in obtaining

measurements of the scene. Sergeant

Morris arrived at the scene at 6:36, observed multiple emergency vehicles,

ambulances and fire trucks, and obtained a written statement from witness Jesse

Williams.

Cotter placed Damon under

arrest. While Damon was in the back of the

patrol car, her speech was mumbled and she kept repeating that she “hadn’t been

drinking and she didn’t run the stop sign.”

Cotter asked Damon if she would be willing to provide a breath test, but

did not provide her with the required warnings concerning the breath test. Damon indicated she would take the breath

test. Cotter asked Deputy Maurice

Bucklin to take Damon to the station for the breath test. Bucklin took Damon into custody at 7:28 and

took her to the station.

Bucklin noticed a strong odor of alcohol

coming from the back seat where Damon was seated. Once at the station, Bucklin read Damon the

statutory warnings required for a breathalyzer and advised her of the

consequences of refusing the breathalyzer.

Damon refused the test. As a

consequence, Bucklin took her to a hospital where, at 8:32—over three hours

after the accident—Damon’s blood was drawn.

The subsequent test results revealed that Damon had a blood alcohol

concentration of 0.10, above the legal limit of 0.08, at the time her blood was

drawn. Damon’s blood also contained an

anti-depressant, an analgesic, and several central nervous system depressants,

which could have produced an additive effect with the alcohol. Bucklin also checked Damon’s handbag that she

had when she was taken into custody. He

found a pill bottle containing a diuretic and an appetite suppressant.

Once back at

the substation, at 9:45 p.m., over four and a half hours after the accident, Deputy

Todd Morris had Damon perform sobriety tests, which were recorded. Morris testified that she “did well,” “didn’t

look so bad,” and “appeared normal” to him.

At trial, the

State presented evidence obtained from the CDR, or “black box,” of Damon’s

Tahoe, along with other evidence to reconstruct the accident. Damon was driving approximately 57 miles per

hour, or 12 miles over the posted speed limit.

Approximately three seconds before the accident, she briefly touched her

brakes, but then released them. She did

not brake and took no evasive action before striking the Sunfire. Although the

stop signs were partially obscured, both sides of the intersection were marked

with a stop sign. The stop was also

marked by a stop line painted on the road surface. Because Damon had a stop sign and Jones did

not, Jones had the right of way.

The State

also presented evidence from the medical examiner concerning the cause of death

of Kimbro and Cutia. The force of the

collision crushed the side of the Pontiac inward, intruding 20 inches into the

passenger compartment. Both Kimbro and

Cutia suffered massive trauma in the collision and died as a result of their

injuries. In addition, Jones suffered

a broken spine, a severe brain injury, and internal bleeding.

In

her defense, Damon elicited testimony on cross-examination that the sun would

have been very low in the western sky at the time of the accident and she was

travelling westward. In addition, an

earthen berm or embankment obscured the line of sight for northbound vehicles,

such as Jones’s Sunfire. Based on

Damon’s speed (12 miles over the posted limit) and Jones’s speed (eight miles

over the posted limit), Damon would have approximately a second-and-a-half or,

perhaps a few tenths of a second more, in which to react.

Damon also

presented testimony from an accident reconstructionist, Ted Marules, Sr. Marules confirmed that the sun would have been

very low in the sky, causing a glare. Marules

testified that the sun glare would definitely have an effect on a driver’s

vision, and could keep a driver from seeing a road sign or an oncoming vehicle.

Marules opined that Damon’s vision had also

been obscured by the embankment on the side of the feeder road, which kept her

from seeing northbound vehicles on Miller Road 2. Marules testified that the stop sign depicted

in State’s Exhibit 1 would not be recognizable as a stop sign because of the

sun glare and the shape of the sign being obscured by a square sign affixed to

its back. Based on his experience and

training, Marules believed that the collision was an unavoidable accident.

Sylvester

Onwas, a Texas Department of Transportation traffic engineer, identified

changes made by the State after the accident to make the intersection safer. As a result of a traffic study, the

Department of Transportation installed additional stop signs that made it an

all-way stop, increased the size of the stop signs from 36 to 48 inches, and

placed additional signs that said “Stop Ahead.”

A toxicologist

also testified that the amounts of medication found in Damon’s blood would have

had no effect with any other substance on her central nervous system.

In rebuttal,

the State presented evidence from the Sheriff’s Office accident

reconstructionist. He testified that studies

have shown that drivers whose BAC was between .09 and .15 had slower responses

and vision problems with sun glare. He

also stated that he saw no evidence suggesting that Damon’s vision was affected

by sun glare, noting that Damon never mentioned sun glare as a cause of this

accident to any of the officers on the scene. Even if sun glare were an issue in this case,

he opined that Damon’s intoxication still played a role. He stated that there were no pre-impact skid

marks from Damon’s vehicle or other evidence suggesting that she made any

effort to avoid the crash. On

cross-examination, he admitted that he had no personal knowledge of whether

Damon was intoxicated at the time of the accident.

Sufficiency of the Evidence

In

her first and second issues, Damon asserts that the evidence is legally and

factually insufficient to support the jury’s guilty verdict.

A person commits the offense of intoxication manslaughter if the

person: (1) operates a motor vehicle in a public place; (2) is intoxicated; and

(3) by reason of that intoxication causes the death of another by accident or

mistake. See Tex. Penal Code Ann.

§ 49.08 (West Supp. 2010). To be

intoxicated is to (1) not have the normal use of mental or physical faculties

by reason of the introduction of alcohol, a controlled substance, a narcotic, a

drug, a dangerous drug, a combination of two or more of those substances, or

any other substance into the body; or (2) have an alcohol concentration of 0.08

or more. See Tex. Penal Code Ann . § 49.01(2)(A),

(B) (West 2003). Damon challenges the

sufficiency of the evidence to show that she operated a motor vehicle while

intoxicated and that she caused Kimbro’s death.

A. Standard of Review

This court

reviews sufficiency-of-the-evidence challenges applying the standard of review

enunciated in Jackson v. Virginia , 443 U.S. 307, 319 , 99 S. Ct. 2781,

2789 (1979). See Ervin v. State , 331 S.W.3d 49 , 52–55 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (construing

holding of Brooks v. State , 323 S.W.3d 893, 912 , 927–28 (Tex. Crim. App.

2010)). Under this standard, evidence is

insufficient to support a conviction if, considering all the record evidence in

the light most favorable to the verdict, no rational factfinder could have

found that each essential element of the charged offense was proven beyond a

reasonable doubt. See Jackson , 443 U.S. at 319 , 99 S. Ct. at 2789 ;

Laster v. State , 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams

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

evidence to be insufficient under the Jackson standard in two circumstances:

(1) the record contains no evidence, or merely a “modicum” of evidence,

probative of an element of the offense, or (2) the evidence conclusively

establishes a reasonable doubt. See Jackson , 443 U.S. at 314, 320 ,

99 S. Ct. at 2786, 2789 ; see also Laster , 275 S.W.3d at 518 ; Williams ,

235 S.W.3d at 750 .

The sufficiency-of-the-evidence

standard gives full play to the responsibility of the factfinder to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. See Jackson , 443

U.S. at 319 , 99 S. Ct. at 2789 ; Clayton v. State , 235 S.W.3d 772, 778

(Tex. Crim. App. 2007); see also Brown v. State ,

270 S.W.3d 564, 568 (Tex. Crim. App. 2008) (stating jury is sole judge of

credibility of witnesses and weight to give their testimony) . An

appellate court presumes that the factfinder resolved any conflicts in the

evidence in favor of the verdict and defers to that resolution, provided that

the resolution is rational. See Jackson , 443 U.S. at 326 , 99 S.

Ct. at 2793 ; see also Clayton , 235 S.W.3d at 778 (reviewing court

must “presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination”).

In viewing

the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the

guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt. Clayton , 235 S.W.3d at 778 . In

determining the sufficiency of the evidence, a reviewing court examines “ whether the necessary inferences are reasonable based upon the

combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict.” Id. (quoting Hooper v. State , 214 S.W.3d 9 , 16–17 (Tex. Crim. App. 2007)). Finally, the “cumulative force” of all

the circumstantial evidence can be sufficient for a jury to find the accused

guilty beyond a reasonable doubt, even if every fact does not “point directly

and independently to the guilt of the accused.” See Powell v. State ,

194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

B. Sufficiency

of the evidence of intoxication

Damon challenges the sufficiency of

the evidence to show that she operated a vehicle while intoxicated. Damon was charged with intoxication based on her

lack of “the normal use of her mental and physical faculties by reason of” alcohol,

a controlled substance, or a combination of alcohol and a controlled

substance. She was also charged with

intoxication by having a blood alcohol concentration of at least 0.08. The trial court, however, did not instruct

the jury that Damon could be found guilty based on a blood alcohol

concentration of 0.08 or greater. Rather,

the trial court only instructed the jury that “‘Intoxicated’ means not having

the normal use of mental or physical faculties by reason of the introduction of

alcohol, a controlled substance, a drug, a dangerous drug, a combination of two

or more of those substances, or any other substance into the body.”

Damon contends that the evidence is

insufficient to support a finding that she was intoxicated at the time of the

accident. She argues that the first

evidence of her intoxication was approximately an hour and 20 minutes after the

accident, when Sergeant Cotter smelled the odor of alcohol coming from Damon. The State was required to prove a “temporal

link” between her driving and her intoxication.

See Kuciemba v. State , 310

S.W.3d 460, 462 (Tex. Crim. App. 2010).

Damon relies on the Fourteenth Court of Appeals decision in Scillitani v. State , 297 S.W.3d 498

(Tex. App.—Houston [14th Dist.] 2009), reversed ,

315 S.W.3d 542 (Tex. Crim. App. 2010) (per curiam), to support her argument

that the evidence is legally insufficient to support the temporal link.

In Scillitani ,

an officer was dispatched to a single-vehicle accident. Scillitani ,

297 S.W.3d at 499 . No evidence showed

how much time elapsed between the accident and the officer’s arrival. Id. When the officer arrived, the defendant’s

mother and two tow truck drivers were already there. Id. The vehicle was in a ditch and the defendant,

who admitted to driving the vehicle, told the officer he did not know how he

lost control of his vehicle. Id.

Because the officer smelled alcohol on the defendant’s breath, the

officer performed field sobriety tests. Id.

The defendant displayed six of six clues on the HGN, two of eight clues

on the walk-and-turn test, and no clues on the one-leg stand. Id. A preliminary breath test also indicated the

presence of alcohol. Id.

The defendant was arrested and convicted for driving while

intoxicated. Id. On appeal, the court of appeals

held that the State was required to present independent evidence of “(1) how

recently the vehicle was driven or (2) how much time elapsed between the

accident and the arrival of law enforcement authorities.” Id.

at 500 . The court emphasized, “If law

enforcement officers do not observe an accused operating a motor vehicle,

evidence that the accused was intoxicated when law enforcement officers arrived

on the scene, alone, does not establish that the accused was intoxicated at the

prohibited time—while the accused was operating a motor vehicle in a public

place.” Id.

The Court of Criminal Appeals,

however, remanded Scillitani for

further review in light of its decision in Kuciemba

v. State . Scillitani , 315 S.W.3d at 542 (citing Kuciemba v. State , 310 S.W.3d 460, 462 (Tex. Crim. App. 2010)). In Kuciemba ,

an officer was dispatched to a single-vehicle accident. Kuciemba ,

310 S.W.3d at 461 . No evidence

established how soon after the accident the officer arrived. Id. The officer found a truck sitting upright in

a ditch but with a partially crushed roof, indicating it had rolled over. Id. The officer saw the defendant slide from

behind the wheel across the center console and exit the passenger side of the

truck. Id. The defendant had blood

running down his face from small cuts on his forehead. Id. The officer immediately noticed a strong odor

of alcohol on the defendant’s breath and that he had “glassy and bloodshot

eyes,” slurred speech, and difficulty standing.

Id. Approximately 3 minutes later, paramedics

arrived at the scene and, while treating the defendant, took a blood

sample. Id. Test results indicated that

the defendant’s blood alcohol concentration was .214. Id.

On appeal, the court of appeals, as it did in Scillitani , stated there must be

independent evidence of “(1) how recently the vehicle was driven or (2) how

much time elapsed between the accident and the arrival of law enforcement

authorities.” Kuciemba v. State , No. 14-08-00050-CV, 2009 WL 585978 , at *2 (Tex.

App.—Houston [14th Dist.] Mar. 10, 2009), reversed ,

310 S.W.3d 460 (Tex. Crim. App. 2010).

Like in Scillitani , the court

of appeals also stated that the defendant’s intoxication at the scene of the

accident did not, standing alone, establish that he was driving while

intoxicated. Id.

In reversing, the Court of Criminal Appeals recognized that

the State must prove the “temporal link” between an accused’s intoxication and

driving but emphasized that this link may be established by circumstantial

evidence. Kuciemba , 310 S.W.3d at 462 .

Moreover, the mere fact that the driver was “intoxicated at the scene of

a traffic accident . . . is some circumstantial evidence that the actor’s

intoxication caused the accident . . . .” Id.

Additionally, the driver’s actions that

cause the accident can be circumstantial evidence that the driver found

intoxicated at the scene was intoxicated at the time of the accident. See id.

at 463 . For example in Kuciemba , the “driver’s failure to brake

provides some evidence the accident was caused by intoxication.” Id. The Court also noted that the driver’s presence

behind the wheel and the fact that he was still bleeding when the officer

arrived “support an inference that the accident had occurred a short time

previously.” Id. Finally, the Court

stated that the high blood alcohol concentration in a sample taken at the scene

“supports an inference either that appellant was recently involved in the

accident or that he had been intoxicated for quite a while.” Id. The Court concluded that the “combination of

these facts is sufficient to support appellant’s conviction for driving while

intoxicated.” Id.

The Court of

Criminal Appeals also cited with approval a case from the Nebraska Supreme Court

that it found instructive due to its similar facts. Id.

at 463 n.9 (citing State v. Blackman , 580 N.W.2d 550, 551

(Neb. 1998)). The pertinent facts the

court recounted from Blackman were

that:

•

An officer arrived on the scene 15–20 minutes

after being informed of a motorcycle in a ditch.

•

The officer observed Blackman lying in the ditch

next to his motorcycle.

•

Blackman admitted to the officer that he had

been operating the motorcycle on the public road immediately before losing

control and landing in the ditch.

•

The officer “almost immediately” observed symptoms

of intoxication.

•

The record contained no evidence of “other

persons, liquor, or liquor containers” in the area near Blackman.

•

The record contained no “other evidence which

would support an inference that Blackman had the means or the opportunity of ingesting

alcohol from the time he lost control of the motorcycle until the officer found

him lying beside it in the ditch.”

Id. (citing Blackman , 580 N.W.2d at 551 ). The

Nebraska Supreme Court concluded that, from these facts, “it can reasonably be

inferred that the deputy found Blackman where he had come to rest after losing

control of his motorcycle and that Blackman’s state of intoxication at that

time existed when he last operated the motorcycle on the county road.” Following precedent identical to that in

Texas, the court observed that the State’s burden did not include disproving

every hypothesis other than guilt. Blackman , 580 N.W.2d at 551 .

Some of the circumstantial evidence present in Kuciemba and Blackman is not present in this case. Most significantly, unlike those two cases,

the officers did not immediately notice any signs of intoxication upon arriving

at the scene. There were also wine

bottles at the scene close to Damon’s location immediately after the

accident. Thus, some evidence supports

an inference that Damon had the means and opportunity to ingest alcohol after

the accident and before Cotter first noticed the smell of alcohol.

Based on this evidence, Damon contends that the State

did not negate the possibility that Damon could have ingested alcohol between

the time of the accident and the time that Cotter first observed the smell of

alcohol. More specifically, she argues

that “it would have been easy for the State to have elicited from any of the

witnesses who were present at the scene, and who presumably observed [Damon] in

the [time before] Cotter finally evaluating [Damon] as intoxicated, whether any

of them ever saw [Damon] ingest alcohol or medication.” The State, however, did not have the burden

to exclude every reasonable hypothesis other than her guilt. Geesa v. State , 820 S.W.2d 154 , 159–61 (Tex. Crim. App. 1991), overruled in

part on other grounds, Paulson v. State , 28 S.W.3d 570 (Tex. Crim. App. 2000). Before Geesa ,

in a circumstantial evidence case, the State had to exclude all reasonable

hypotheses, other than the defendant’s guilt, in order for the evidence to be

found sufficient on appeal. Carlsen

v. State , 654 S.W.2d 444,

447 (Tex. Crim. App. 1983), overruled by Geesa v. State , 820 S.W.2d 154, 161 (Tex. Crim.

App. 1991). That is no longer the

State’s burden.

Although the jury could have

inferred from the evidence that Damon consumed alcohol from the open wine

bottles after the accident, no evidence required the jury to draw such an

inference. From the existence of the empty wine bottles, the jury could

have reasonably inferred that she had been drinking before or while

driving. The jury could have likewise inferred from the small size of the

bottles that Damon could have consumed the wine readily while driving.

The State did not owe an obligation to exclude Damon’s reasonable hypotheses

that she drank from these bottles after the accident, despite her denial that

she had consumed any alcohol at all. See

Geesa , 820 S.W.2d at 161 .

From moments after the accident

until Cotter first noticed the smell of alcohol on her, Damon was observed by

and within sight of numerous people. The

presence of these witnesses from moments after the accident is stronger

circumstantial evidence of a temporal link than existed in Kuciemba and Blackman ,

because in this case virtually no post-accident time gap existed in which the

driver was not around other witnesses.

While there were small bottles of wine, they were discovered within the

vehicle itself, which was heavily damaged, overturned and had glass around

it. A jury could rationally believe it

was unlikely that Damon either (1) consumed them in her vehicle quickly after

the accident in the moments while her vehicle was turned upside down and before

Trant saw her or (2) surreptitiously climbed back into her damaged vehicle to

retrieve those bottles and drink from them around witnesses. Although the evidence did not address every

minute between the accident and Cotter’s first observation of signs of

intoxication, a jury could have reasonably inferred that Damon would not have

attempted to drink around the watchful eye of so many witnesses. The jury could have also found otherwise,

but because the State does not have the burden to disprove the hypothesis that

Damon drank after the accident, we defer to the jury who resolved this issue

against Damon. See Jackson , 443

U.S. at 326 , 99 S. Ct. at 2793 (noting that appellate court presumes conflicts

in evidence resolved in favor of verdict as long as resolution is rational); Evans v. State , 202 S.W.3d 158 , 164 n.19

(Tex. Crim. App. 2010) (stating that jury determinations “trump both trial and

appellate judges”); Wooten v. State , 267 S.W.3d 289,

294 (Tex. App. — Houston [14th Dist.] 2008 , pet. ref’d) (noting that

issue is not whether appellate court “ believe [s] the State ’ s evidence or believe [s] that appellant ’ s evidence outweighs the State ’ s evidence”) . W hen the record supports conflicting inferences, a reviewing

court must “presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination.” Clayton , 235 S.W.3d at 778 .

Viewing the circumstantial evidence of this case in the light most favorable to the

verdict, including presuming that the jury resolved any conflicts in favor of the

verdict, the evidence supports the finding that Damon was intoxicated at the

time of the accident. First, empty

alcohol containers were discovered in her vehicle shortly after the

accident. While officers did not notice

any smell of alcohol on Damon while initially talking with her, it was windy at

the time, and the smell was noticed when Cotter approached her to take her

statement and when she was in the patrol vehicle. Her speech was not slurred at that time, but

also was not slurred later when her blood alcohol level was 0.10.

Second, she was observed by Cotter to

be intoxicated at the accident scene. See Henderson

v. State , 29 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d.)

(“The testimony of a police officer that an individual is intoxicated is

probative evidence of intoxication.”). As

stated in Kuciemba , “Being

intoxicated at the scene of the accident in which the actor was the driver is

some circumstantial evidence that the driver’s intoxication caused the accident . . . .” Kuciemba ,

310 S.W.3d at 462 . Additionally, the

record does not show that she was observed consuming any alcohol after the

accident, and she was around a group of witnesses between the time of the

accident and when Cotter first observed signs of intoxication. Trant arrived moments after the

accident. In addition, at least one

other witness, at least one tow truck driver, and numerous Sheriff’s

Office ,

fire department, and EMS personnel were at the scene from shortly after the

accident until Cotter noticed the smell of alcohol coming from Damon. Specifically, Bloomfield arrived

approximately 23 minutes after the accident, at 5:38. [2] By approximately 6:05, Cotter and Lillibridge

were speaking with Damon, although the record does not show the length of this

conversation. After Lillibridge finished

speaking with Damon and turned to other aspects of the investigation, he

continued to check on her periodically.

By approximately 6:30, Cotter returned to speak with Damon and noticed

the smell of alcohol. Two officers

testified that they continued to observe Damon during the investigation. Indeed, Cotter testified that Damon was within

her sight “at all times” between her arrival on the scene and when she first

smelled alcohol on her. Neither

Lillibridge nor Cotter testified that they saw her consume any alcohol. Lillibridge testified that, during an investigation,

officers ensure that drivers cannot consume any alcohol. Cotter testified that Damon did not have the

opportunity to ingest alcohol because she was being observed by many witnesses

at the scene who would have reported it. No alcohol or central nervous system

depressants were found on her or in her handbag, although other medication was

in her handbag.

Damon’s demeanor and actions at the scene are further circumstantial

evidence in support of a finding of intoxication shortly after the

accident. Trant described her as rude and

uncaring about the injuries to the individuals in the Sunfire immediately after

the accident and before the police officers arrived. There was also evidence from which the jury

could have reasonably concluded that she was mentally impaired at the time of

the accident; around 6:15 she could not explain to Lillibridge why she had

exited for Miller Road 2, when she was going to a friend’s house on Miller Road

3. While her explanation occurred at

6:15, her driving on the wrong road occurred at the time of the accident.

Finally, the jury could have considered her repeated claim at the scene that

she had not had any alcohol, which subsequent tests proved contadicted. She did not claim to the officers that she had

not been drinking before the accident but had drunk after the accident; she

categorically denied any consumption of alcohol. Despite that denial, she refused a

breathalyzer. Her refusal was admissible

into evidence and is a circumstance from which the jury could rationally infer

a consciousness of guilt. See Tex.

Transp. Code Ann . § 724.061 (West 2011); Bartlett v. State , 270 S.W.3d 147, 153 (Tex. Crim. App. 2008).

Damon’s operation of her vehicle was additional

circumstantial evidence of intoxication.

She was speeding and ran through an intersection marked with two stop

signs and a stop line. The “black box”

showed that Damon did not attempt to brake or take any other evasive action to

avoid the collision. However, Damon

repeatedly claimed to Lillibridge and Cotter that she did not run the stop

sign. This evidence, taken together, is further

proof that Damon was intoxicated at the time she was driving her vehicle in a

public place. See Kuciemba , 310 S.W.3d at 463 (“[A] driver’s failure to brake

provides some evidence the accident was caused by intoxication.”).

Finally, the blood test results support an inference that

she “had been intoxicated quite a while.”

Kuciemba , 310 S.W.3d at 463 ; see also Stewart v. State , 129 S.W.3d

93, 96 (Tex. Crim. App. 2004) (evidence of breath test taken hour and 20

minutes after appellant drove relevant to and some evidence of issue of whether

she was intoxicated at time of driving).

Damon argues that the results are not admissible, an issue we discuss

below, but in a sufficiency determination, a reviewing court reviews all the

evidence from the trial court, admissible and inadmissible. Clayton , 235 S.W.3d at 778 ; Powell , 194 S.W.3d at 507 . A

jury could reasonably disbelieve that Damon stealthily ingested sufficient

alcohol after the accident to reach a blood alcohol concentration of 0.10 while

surrounded by witnesses. See Stephenson v. State , No. 01-96-01114-CR,

1997 WL 751109 , at *8 (Tex. App.—Houston [1st Dist.] Dec. 4, 1997, pet. ref’d)

(mem. op., not designated for publication) (holding that evidence was

sufficient that appellant was intoxicated at time of accident in part because a

witness observed the accident and the driver after the accident and did not

notice him consuming alcohol after the accident).

In

conclusion, the cumulative force of circumstantial evidence can be, and here

was, sufficient to find the accused guilty beyond a reasonable doubt. See

Powell , 194 S.W.3d at 507 . The

evidence showed:

• Damon had taken the wrong exit to get to her friend’s

house and could not explain why.

• She was speeding and failed to stop for a stop sign.

• She did not brake or attempt to avoid the accident.

• She falsely told officers she had stopped for the stop

sign.

• Three empty bottles of alcohol and one full bottle were

in her vehicle.

• Damon was at the scene among numerous police officers

and other people who were observing her.

No one testified that they saw her drinking.

• Her vehicle was badly damaged and upside down in the

middle of the road.

• When Damon was first in an area that was not windy and

Cotter approached her more closely, Cotter observed the smell of alcohol.

• When Sergeant Cotter noticed the odor of alcohol, Damon

falsely denied drinking anything.

• Damon failed sobriety tests at the scene.

• She refused a breathalyzer.

• Blood test results showed alcohol and central nervous

system depressants in Damon’s blood.

While a rational juror might not infer guilt from these

circumstances, a rational juror could.

Thus, we cannot say that there was no evidence of guilt or that a reasonable

doubt existed as a matter of law.

Therefore, the evidence was sufficient, and we overrule this portion of

Damon’s first and second issues.

C. Sufficiency

of the evidence of causation

Within this portion of her first and

second issue, Damon contends “the State failed to present sufficient evidence

from which a rational juror could have concluded beyond a reasonable doubt that

[Damon’s] intoxication was responsible for the death of complainants.” The next sentence of her brief states, “This

conclusion is fortified by the following evidence,” after which, Damon lists a

number of factors, including the embankment blocking her line of sight, the

obscured stop sign, and her expert’s testimony that the accident was

unavoidable. This ignores the proper

standard of review, which requires this Court to consider all the

evidence in the light most favorable to the verdict. See Jackson ,

443 U.S. at 319 , 99 S. Ct. at 2789 .

Viewing the

evidence in the light most favorable to the verdict, Damon was driving 12 miles

over the posted speed limit and ignored a stop sign and a stop line. She failed to brake or take any other action

to avoid the accident. The accident

severely injured Kimbro, who died as a result of her injuries. This is legally sufficient evidence to

support a finding that Damon’s driving while intoxicated caused the death of

the complainant. See Kuciemba , 310 S.W.3d at 463 (stating that driver’s failure to brake

is some evidence the accident was caused by driver’s intoxication); Hale v. State , 194 S.W.3d 39, 43 (Tex.

App.—Texarkana 2006, no pet.) (holding evidence of causation sufficient in

intoxication manslaughter case where appellant was intoxicated, driving at high

rate of speed, drove over hill where vehicles were either parked in road or

moving very slowly, and collided with vehicle despite having four-tenths of a

mile to stop or avoid collision). [3]

We overrule this portion of Damon’s

first and second issues.

Relevance of Blood Test

Evidence and Rule 403

In her third issue, Damon contends

that the trial court erred by overruling her objection to the relevance of the

evidence concerning the results of her blood tests. In her fourth issue, Damon contends that the

trial court erred by admitting the blood tests because the probative value of

the evidence was substantially outweighed by the risk of unfair prejudice.

A. Standard of review

We review a trial court’s ruling on a

challenge to the admission of evidence, including a motion

to suppress, for abuse of discretion. Amador v. State , 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). “In other words, the trial court’s ruling will

be upheld if it is reasonably supported by the record and is correct under any

theory of law applicable to the case.” Id.

at 878–79. In considering whether the

record reasonably supports a trial court’s determination, we view the evidence

in the light most favorable to the trial court’s determination. State v. Garcia-Cantu , 253 S.W.3d 236, 241 (Tex. Crim. App.

2008).

We

give almost complete deference to a trial court’s determination of a question

of historical fact if it is supported by the record. Id. Similarly, we give almost complete deference

to a trial court’s determination of a mixed question of law and fact that turns

on an evaluation of credibility and demeanor if that determination is supported

by the record. Crain v. State , 315 S.W.3d 43, 48 (Tex. Crim. App. 2010). However, we review de novo questions of law

and mixed questions of law and fact that do not turn on an evaluation of credibility

and demeanor. Garcia-Cantu , 253 S.W.3d at 241 . When the trial court does not make explicit

factual findings in support of its ruling, we will imply that it made all findings necessary to uphold the ruling if

such findings are supported by the record evidence, viewed in the light most

favorable to the ruling. Id.

B. Rule 401

In her third

issue, Damon asserts that the result of the blood test should have been

excluded because the State could not rule out the possibility that she had consumed

alcohol after the accident but before the test and, therefore, the blood test

result was not relevant.

Evidence is

relevant if it has a tendency to make existence of a fact that is of

consequence to determination of the action more probable or less probable. Tex. R. Evid. 401; Layton v. State , 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). “Evidence which is not relevant

is inadmissible.” Tex. R. Evid. 402 . “ Evidence need not by itself prove or disprove a particular

fact to be relevant; it is sufficient if the evidence provides a small nudge

toward proving or disproving some fact of consequence.” Stewart

v. State , 129 S.W.3d 93, 96 (Tex. Crim. App. 2004). In determining whether evidence is relevant, courts should

examine the purpose for which the evidence is being introduced. Layton ,

280 S.W.3d at 240 . “It is critical that

there is a direct or logical connection between the actual evidence and the

proposition sought to be proved.” Id.

The proposition for which the State

introduced the evidence was to show that Damon had ingested alcohol or other

substances that would impair her normal mental or physical faculties. The result of the blood test makes this fact

of consequence more probable. Damon’s

specific argument is that because of the lapse of over an hour from the time of

the accident until Cotter noticed a smell of alcohol on her, it is possible

that she ingested alcohol or medication after the accident.

In Verbois v. State ,

the court of appeals held that results of a breath test taken two and one half

hours after the accident were relevant. 909

S.W.2d 140, 142 (Tex. App.—Houston [14th Dist.] 1995, no pet.). The court noted that, although the results

“could not be extrapolated back to accurately measure intoxication at the time

of the accident,” they were “relevant in establishing that appellant had

consumed alcohol prior to the incident because he had no opportunity to take in

any alcohol after the accident.” Id.

Damon attempts to distinguish Verbois

by arguing that the evidence does not show that she, unlike the defendant

in Verbois , had “no opportunity to

take in any alcohol after the accident.”

But, as discussed earlier, the circumstantial evidence supports an

inference that Damon did not have a realistic opportunity to consume alcohol

after the accident. Moreover, that the

blood tests result “might not have been conclusive proof that [Damon] was

intoxicated at the time she drove . . . is of no consequence.” See

Stewart , 129 S.W.3d at 96 . The result of the blood test is still

circumstantial evidence that, coupled with the other evidence in this case, is

a “ piece[] in the evidentiary puzzle for the jury to consider in

determining whether [Damon] was intoxicated at the time she drove.” See id.

129 S.W.3d at 97 (holding evidence of breath test taken hour and 20 minutes

after defendant drove relevant to and some evidence of issue of whether

appellant was intoxicated at time she drove).

Additionally, the evidence

impeaches Damon’s statements to the officers that she had not been

drinking. The blood test results contradicted

her statement, which was not limited in time.

We overrule

Damon’s third issue.

C.

Rule 403

In her fourth

issue, Damon contends that the admission of the blood test result was unfairly

prejudicial under Rule 403 of the Texas Rules of Evidence.

Although

relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.

Tex. R.

Evid. 403. “Under Rule

403, it is presumed that the probative value of relevant evidence exceeds any

danger of unfair prejudice. The rule envisions exclusion of evidence only when

there is a ‘clear disparity between the degree of prejudice of the offered

evidence and its probative value.’” Hammer v. State , 296 S.W.3d 555, 568 (Tex.

Crim. App. 2009) (citations omitted). It

is the burden of the party objecting under Rule 403 to show that the probative

value is substantially outweighed by the danger of unfair prejudice. Runnels v. State , 193 S.W.3d 105, 107 (Tex.

App. — Houston

[1st Dist.] 2006 , no pet. ).

A Rule 403 analysis requires a court to balance (1) the probative

force of the proffered item of evidence along with (2) the proponent’s need for

that evidence against (3) any tendency of the evidence to suggest a decision on

an improper basis, (4) any tendency of the evidence to confuse or distract the

jury from the main issues, (5) any tendency of the evidence to be given undue

weight by a jury that has not been equipped to evaluate the probative force of

the evidence, and (6) the likelihood that presentation of the evidence will

consume an inordinate amount of time

or merely repeat evidence already admitted.

Gigliobianco v. State , 210 S.W.3d 637 ,

641 – 42 (Tex. Crim. App. 2006).

Great

deference is given to the trial court’s decision to admit or exclude evidence

under Rule 403. The Court of Criminal

Appeals has

repeatedly explained that Rule 403’s “use of the word ‘may’

reflects the draftsman’s intent ‘that the trial judge be given a very

substantial discretion in “balancing” probative value on the one hand and “unfair

prejudice” on the other, and that he should not be reversed simply because an

appellate court believes that it would have decided the matter otherwise.”’

Powell v. State ,

189 S.W.3d 285, 288 (Tex. Crim. App. 2006).

The court added, “We have emphasized that the trial judge, not the

appellate judge, is in the best position to assess the extent of the prejudice

caused a party by a piece of evidence.

We have also stated that if judicial self-restraint is ever desirable,

it is when a Rule 403 analysis of a trial court is reviewed by an appellate

tribunal.” Id. at 289 (quoting United

States v. Cruz , 326 F.3d 392,

396 (3d Cir. 2003)); see also Winegarner v. State , 235 S.W.3d 787, 791 (Tex. Crim. App. 2007)

(stating that Rule 403 grants trial courts “considerable latitude” and “allows

different trial judges to reach different conclusions in different trials on

substantially similar facts without abuse of discretion”); Montgomery

v. State , 810 S.W.2d 372, 378, 392 (Tex. Crim. App. 1990) (stating that

appellate deference to Rule 403 determination “is a rule of judicial restraint,

intended . . . to avoid the anomaly of having appellate courts usurp a function

that the system assigns to the trial courts” and grants trial judges

“considerable freedom in evaluating proffered evidence’s probative value in

relation to its prejudicial effect”); Rodda

v. State , 745 S.W.2d 415, 419 (Tex. App.—Houston [14th Dist.] 1988, pet.

ref’d) (“The trial judge, not the appellate judge, is in the best position to

assess the extent of the prejudice caused a party by a piece of evidence. The

appellate judge works with a cold record, whereas the trial judge is there in

the courtroom.”) (quoting United States

v. Long , 574 F.2d 761, 767 (3d Cir. 1978)).

Under the abuse of discretion standard, we will not overrule a trial

court’s decision under Rule 403 if the trial court’s decision is “within the

zone of reasonable disagreement.” Montgomery , 810 S.W.2d at 391 .

1. Probative

value

This factor

“looks to the evidence’s probativeness or how compellingly the evidence serves

to make a fact of consequence more or less probable.” State

v. Mechler , 153 S.W.3d 435, 440 (Tex. Crim. App. 2005). In Mechler ,

the Court of Criminal Appeals held that the result of a breath test taken

almost an hour and a half after Mechler was arrested was probative because the

result “indicated that Mechler had consumed alcohol” and therefore “tend[ed] to

make it more probable that he was intoxicated at the time of driving . . . .” Id. Therefore, the Court of Criminal Appeals

found this factor weighed in favor of admissibility. Id. ;

see also Gigliobianco , 210

S.W.3d at 642 . This factor is

particularly probative here, where Damon denied consuming any alcohol. Additionally, at that point in the trial, the

issue of whether Damon was intoxicated per se by reason of having a blood

alcohol concentration of over .08 was still part of the case. Certainly, the blood test results were

probative on that issue. See Kirsch v. State , 306 S.W.3d

738, 746 (Tex. Crim. App. 2010) (blood test results taken 80 minutes after

accident probative of per se intoxication even without extrapolation evidence). In this case, this factor weighs in favor of admissibility.

2. Need

for the evidence

This factor

includes a consideration of “whether the proponent has other evidence

establishing this fact and whether this fact is related to a disputed

issue.” Mechler , 153 S.W.3d at 441 . In

Mechler , the Court of Criminal

Appeals held that this factor weighed in favor of excluding the testimony

because the State had other evidence of Mechler’s intoxication. Id.

at 441–42. The arresting officer

testified that Mechler rolled through a stop sign and was driving erratically;

Mechler’s breath smelled of alcohol when the officer approached his car;

Mechler failed the field sobriety tests; and Mechler admitted to drinking “[a]

little” alcohol. Id. at 441 . Here, there was

similar evidence, except that Damon denied drinking alcohol. The absence of this admission, as well as the

eyewitnesses who did not observe any signs of intoxication shortly after the

accident makes this factor a close call.

Although the State had other evidence of Damon’s intoxication, this was

the only direct evidence establishing she had introduced alcohol in to her

system. And, as noted above, the

evidence related directly to an element of the charged offense. We conclude this factor weighs neither for

nor against excluding or admitting the evidence.

3. Unfair

prejudice

This factor

looks to whether the evidence has the potential to impress the jury in some

irrational but indelible way. Id. at 440 . However, Rule 403 does not exclude all

prejudicial evidence, only “unfairly” prejudicial evidence. Id. “‘Unfair prejudice’ refers only to relevant

evidence’s tendency to tempt the jury into finding guilt on grounds apart from

proof of the offense charged.” Id.

As discussed above, the blood test result was relevant and probative of whether

Damon drove while intoxicated, which is an element of the offense charged. Therefore, the evidence is not unfairly

prejudicial because it relates directly to the offense charged. See id.

at 440–41. We conclude that this factor

weighs in favor of admissibility.

4. Confusion

of the issues

“Because the

[blood test] results relate[d] directly to the charged offense, [the] jury

could not [have been] distracted away from the charged offense regardless of

the time required to present the results.”

Id. at 441 . This factor weighs in favor of admissibility.

5. Misleading

the jury

In Gigliobianco , the Court of Criminal

Appeals held that the trial court could have reasonably concluded that the test

results in that case, taken approximately 80 minutes after driving, would not

have any tendency to be given undue weight by the jury because the witness

through whom the results were introduced expressly testified that the results

could not, by themselves, show appellant was intoxicated at the time of driving. Gigliobianco , 210 S.W.3d at 642 . Here, the State’s witness did not offer the

same type of clarification to the jury.

Thus, this factor weighs in favor of exclusion.

6. Undue

delay and needless presentation of cumulative evidence

The trial

court could have reasonably concluded that there would be no undue delay or

presentation of cumulative evidence. See id.

In Mechler , the Court of Criminal Appeals

noted that because the evidence related directly to the charged offense, “a

jury could not be distracted away from the charged offense regardless of the

time required to present the results.” Mechler , 153 S.W.3d at 441 . We also note that the time to develop the

evidence was relatively short. The State

called the technician who analyzed the blood and a toxicologist who interpreted

the results; the direct examination of these two witnesses by the State took

approximately 26 pages of the reporter’s record; the cross-examination,

re-direct and rebuttal testimony took an additional 18 pages. We conclude that this factor weighs in favor

of admissibility.

Weighing all

of the factors, we conclude that the trial court’s decision that the probative

value was not substantially outweighed by any of the countervailing factors in

Rule 403 is, at worst, in the zone of reasonable disagreement. Accordingly, we cannot conclude, given the

deference and judicial restraint we must apply in reviewing a Rule 403

determination, that the trial court abused its discretion by admitting the

blood test results. See Gigliobianco , 210

S.W.3d at 642 ; Mechler , 153 S.W.3d at 442 ;

see also Powell , 189 S.W.3d at 289 .

We overrule Damon’s

fourth issue.

Jury Instruction Concerning

Concurrent Causation

In her fifth

issue, Damon contends that the trial court erred by denying her proposed jury

charge on concurrent causation.

A. Law concerning the jury charge

The trial court must provide the jury

with “a written charge distinctly setting forth the law applicable to the case;

not expressing any opinion as to the weight of the evidence, not summing up the

testimony, discussing the facts or using any argument in his charge

calculated to arouse the sympathy or excite the passions of the jury.” Tex. Code Crim. Proc. Ann. art. 36.14 (West

2007); Walters v. State ,

247 S.W.3d 204, 208 (Tex. Crim. App. 2007). The trial court is required to instruct the

jury on statutory defenses, affirmative defenses, and justifications whenever

they are raised by the evidence. See Tex.

Penal Code Ann . §§ 2.03(d), 2.04(d) (West 2003); Walters , 247 S.W.3d at 208–09. A defendant is entitled to an instruction on

every defensive issue raised by the evidence, regardless of whether the

evidence is strong, feeble, unimpeached, or contradicted, and even when the

trial court thinks the testimony is not worthy of belief. Walters , 247 S.W.3d at 209 .

Parties are not, however, entitled to a special jury

instruction relating to a statutory offense or defense if that instruction (1)

is not grounded in the Texas Penal Code, (2) is covered by the general charge

to the jury, and (3) focuses the jury’s attention on a specific type of

evidence that may support an element of an offense or a defense. Id. at 212 (relying on Giesberg v.

State , 984 S.W.2d 245, 250

(Tex. Crim. App. 1998)). In such a case,

the non-statutory instruction would constitute a prohibited comment on the

weight of the evidence. Id. A

jury charge on a defense properly includes specific descriptions of the type of

evidence that may establish that defense only when the statutory defense

includes the specific descriptions. See id. at 211–12.

B. The

proposed jury charge

Concerning causation, the Texas Penal Code

provides:

A person is criminally responsible if the result would

not have occurred but for his conduct, operating either alone or concurrently

with another cause, unless the concurrent

cause was clearly sufficient to produce the result and the conduct of the actor

clearly insufficient.

Tex. Penal

Code Ann. § 6.04(a) (West 2003). The charge given by the trial court tracks

the statutory language. The charge

provides:

A person is criminally responsible if the result would

not have occurred but for her conduct, operating either alone or concurrently

with another cause, unless the concurrent cause was clearly sufficient to

produce the result and the conduct of the defendant clearly insufficient. If you find from the evidence beyond a

reasonable doubt that on the occasion, and at the time and place alleged in the

indictment, the defendant, Veronica Yvonne Damon, did, while intoxicated,

operate a motor vehicle, to wit, an automobile, and while so operating said

vehicle did disregard a stop sign and drive her motor vehicle into and cause it

to collide with a motor vehicle occupied by Doris Kimbro, but you further find

from the evidence, or if you have a reasonable doubt thereof, that concurrently

with said intoxication of defendant, if any, other cause or causes also

operated to cause the collision in question and the death of Doris Kimbro and

that such other cause or causes were clearly sufficient to cause the collision

in question and the death of Doris Kimbro, and the alleged operating of said motor

vehicle while intoxicated, if any such intoxication there was, was clearly

insufficient to produce the collision and cause the death of Doris Kimbro, then

you will find the defendant not guilty of intoxication manslaughter.

Damon’s

proposed jury charge states:

If you find from the evidence beyond a reasonable doubt

that on the 21st day February, 2007, the defendant, Veronica Yvonne Damon, did,

while intoxicated, operate a motor vehicle, to wit, an automobile, and while so

operating said vehicle did collide with a motor vehicle occupied by Doris

Kimbro, but you further find from the evidence, or if you have a reasonable

doubt thereof, that concurrently with said intoxication of defendant, if

any, the other causes of: sun-glare, the effects of sun-glare upon the

shape of traffic control signage, the lack of appropriate traffic control

signage and the lack of an appropriate distance from the first line of sight to

oncoming traffic that would allow for an appropriate perception/reaction time, also

operated to cause the collision in question and the death of Doris Kimbro and

that such other cause or causes were clearly sufficient to cause the collision

in question and the death of Doris Kimbro, and the alleged operating of said

motor vehicle while intoxicated, if

any such intoxication there was, was clearly insufficient to

produce the collision and cause the death of Doris Kimbro, then you will find

the

defendant not guilty of intoxication manslaughter.

Unless you so find from the evidence beyond a reasonable

doubt, or if you have a reasonable doubt thereof, you will acquit the defendant

of intoxication manslaughter and next consider whether the defendant is guilty

of the lesser offense of intoxication assault.

(emphasis added). Damon’s proposed charge states that the

intoxication “if any” as a possible cause and then lists the other causes

without any conditional language. This

requested instruction would focus the jury’s attention on specific evidence

that would support the defense. Thus, it

is not a proper instruction under the third prong of Walters . [4] See

Walters , 247 S.W.3d at 212 . Additionally, section 6.04(a) does not

identify specific types of evidence that establish the defense. Therefore, a jury charge that lists specific

types of evidence is not proper. See id.

Accordingly, we hold that the trial court did not err by refusing

Damon’s proposed jury instruction.

We overrule Damon’s fifth issue.

Conclusion

We

affirm the judgment of the trial court.

Harvey

Brown

Justice

Panel consists of Justices

Higley, Brown, and Bennett. [5]

Do not publish. Tex. R. App. P. 47.2( b).

[1] See Tex. Penal Code Ann.

§ 49.08 (West Supp. 2010).

[2] We note that Deputy Anderson arrived

sometime before Bloomfield did. He spoke

with Damon and, after learning she was a driver involved in the accident, took

her driver’s license. However, Deputy

Anderson did not testify, so the exact timeline is unknown.

[3] Damon relies on the dissenting opinion

in Glauser v. State. 66 S.W.3d 307 , 322–23 (Tex. App.—Houston [1st

Dist.] 2000, pet. ref’d) (O’Connor, J., dissenting). However, this court’s holding was that the

evidence of causation in an intoxication manslaughter case was sufficient when

it showed that the appellant was intoxicated, was speeding, drove into the rear

of a disabled vehicle that had its headlights on and at least one taillight

showing, and never applied brakes. Id. at 313 .

[4] In addition, some of the items

proposed by Damon, such as the sun glare, the shape of the stop signs, and the

visibility of the stop signs, were controverted. Thus, a jury charge assuming the truth of

these controverted matters would constitute an erroneous comment on the weight

of the evidence. See Krause v. State , 243

S.W.3d 95, 107 (Tex. App.—Houston [1st Dist.] 2007, pet ref’d).

[5] The

Honorable Alfred H. Bennett of the 61st District Court, sitting by assignment.