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COURT OF CRIMINAL APPEALS, 7-6-11
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COURTS OF APPEAL
CARMEN, 01-10-00124-CR (Tex.App.– Houston [1st Dist.] 6-30-11)
Murder from the 300th District Court, Brazoria County. Affirmed.
1. SEARCH: Murder Scene – Crime Scene Investigator
Ashton Carmen shot and killed his father. They had a stormy
relationship and once CPS stepped in and took Carmen out of the home
until his father completed anger management classes. On the day of the
murder, Carmen came home from school and tried to enter his father’s
bedroom but the door was locked. He broke out a glass and entered the
bedroom through the window. He found a locked suitcase containing
several thousand dollars cash and a .40-caliber pistol. He forced the
suitcase open and took $2,000 dollars and the pistol. When his father
arrived, Carmen shot him multiple times and killed him. He put bandana
over his father’s face, took a shower, and left in his father’s car.
Some 30-minutes after officers found the body, a crime scene
investigator, Officer Bort, arrived. He searched the premises and
video-taped a walkthrough of the murder scene. Carmen was arrested the
same day in his father’s car. The pistol was seen in plain view on the
rear floorboard but was not seized at that time. Carmen and the car
were taken back to Brazoria County. He was taken before a magistrate
who read him his rights. After waiving his rights, Carmen gave two
statements. In the first oral statement, he said he was having some
problems with gang members and heard that they were going to come over
to his house. He claimed that he shot his father because he mistook
him for a gang member. Within an hour, he disavowed this statement,
and reduced his second statement to writing. He said his father told
his mother that he was going to impose corporal punishment on him
sometime soon; this brought back memories of the whipping seven years
earlier when he was hospitalized. The police obtained a search warrant
for the father’s car and house. They seized the items that Officer
Bort saw and documented during his walkthrough. They also seized the
pistol from the car. Carmen filed two motions to suppress, alleging:
(1) an unlawful arrest; (2) an illegal detention by being intensively
questioned before taken before the magistrate; (3) unauthorized
promises that induced him to sign a written confession; and (4) he was
not properly Mirandized. He sought to suppress (1) his two statements;
and (2) evidence obtained by a search of his person or his premises
without a search warrant. The motions were denied. At trial, Officer
Bort who did the walkthrough testified, without objection, to what he
saw. But when the State introduced Bort’s photographs and video
recording, Counsel objected because this was the product of an
unreasonable search and seizure. The objection was overruled. The
State then introduced the items seized from the house without
objections. The jury found Carmen guilty and assessed punishment at
life and a $5,000 fine. Carmen argued the trial court erred by
admitting photographs and a video recording made during the
walkthrough because it was done before a search warrant was issued.
Carmen conceded that the initial officers properly searched the house
pursuant to their community caretaking duty and that, under the plain
view doctrine, could have seized any of the evidence Bork photographed
or videotaped. However, he argued that, once officers secured the
scene, and determined there were no other victims or suspects
present, the exigencies that justified the warrantless entry search
came to an end; that the subsequent search and walkthrough constituted
an unreasonable, warrantless search, and the photographs and video
were the fruit of that unlawful search.
The CA held: (1) the warrant requirement may be set aside when the
State shows that exigent circumstances existed at the time of the
warrantless search; (2) the State bears the burden to prove that
exigent circumstances existed through a two-step process: (a) the
police must have probable cause to enter or search a specific
location; and (b) the exigent circumstance must require the police to
make an immediate warrantless entry to a particular place; (3) there
are three exigent circumstances that justify an immediate warrantless
entry by police officers: (a) when the police must provide assistance
to persons whom the police reasonably believe are in need of
assistance; (b) when the police need to protect themselves from
persons whom the police reasonably believe to be present, armed, and
dangerous; (c) when the police attempt to prevent destruction of
evidence or contraband; (4) to satisfy the requirements of a
plain-view analysis of obtained evidence, the police must meet two
requirements: (a) the police must have a right to be in the location
where the article is in plain view, and (b) the article in plain view
must be evidence that leads the police to have the immediately
apparent belief that the article may be evidence of a crime,
contraband, or otherwise subject to seizure; (5) when officers see an
article in plain view, they are permitted to photograph or video it;
(6) agreed with Carmen that the exigencies that justified the initial
warrantless search ended before Officer Bort’s search began. The
question, therefore, is whether a subsequent search that is no more
intrusive or expansive than the initial search is unreasonable merely
because the exigencies have ended. Once the privacy of a residence has
lawfully been invaded during an exigency, it makes no sense to require
a warrant for other officers to enter and complete what officers on
the scene could have properly done. Because the subsequent search
merely documented what had already been observed in plain view during
the initial, reasonable search, the trial court properly overruled
Carmen’s objections.
2. EVIDENTIARY SEARCH WARRANT: Article 18.02(10) V.A.C.C.P.
Carmen argued that his trial counsel was ineffective because he
should have objected on the ground that the search warrant was an
evidentiary search warrant that failed to meet the requirements of an
evidentiary search warrant. To prevail on an ineffective assistance
claim based on Counsel’s failure to file a motion to suppress, the
Accused must show by a preponderance of the evidence that the motion
to suppress would have been granted and that the remaining evidence
would have been insufficient to support his conviction. And the
Accused must develop facts and details of the search sufficient to
conclude that the search is invalid – simply contending that there may
be questions about the validity of the search is not enough to support
an ineffective assistance claim based on failure to move to suppress
evidence. Property subject to seizure under §18.02(10) V.A.C.C.P. is
often referred to as “mere evidence.” Mere evidence is evidence
connected with a crime, but does not consist of fruits,
instrumentalities, or contraband. Accordingly, a 18.02(10) warrant is
known as an evidentiary search warrant or a mere evidentiary search
warrant. A mere evidentiary search warrant differs from other warrants
in two pertinent respects. First, an evidentiary warrant may be issued
only if accompanied by an affidavit setting forth sufficient facts to
establish probable cause: (1) that a specific offense has been
committed, (2) that the specifically described property or items that
are to be searched for or seized constitute evidence of that offense
or evidence that a particular person committed that offense, and (3)
that the property or items constituting evidence to be seized are
located at or on the particular person, place, or thing to be
searched. Second, although it is well established that the plain-view
exception is available during searches conducted pursuant to warrants
issued under other subdivisions, there is a split of authority as to
whether the plain view exception is available when unnamed items are
seized during the execution of an evidentiary search warrant. Some
courts of appeals have held that during a search pursuant to an
evidentiary search warrant, the police may seize only those items
specifically described in the warrant even if they discover additional
items that would otherwise fall within the plain-view exception.
The CA held: (1) paragraph two of the search warrant affidavit stated
the ground for issuance: “There is at said suspected place and
premises property or items, accept [sic] the personal writings by the
accused, constituting evidence of an offense or constituting evidence
tending to show that a particular person committed an offense as
follows: Any object used in the commission of murder, any physical
evidence relating to the crime of murder, any evidence that
characterized the nature of the relationship between the [sic]
Reginald Carmen and Ashton Carmen. Including the body of the
deceased, shell casings, bullets, weapons, blood, hair, fibers,
clothing, DNA, [or] electronically captured data from answering
machine, computer, and alarm system.”; (2) since it authorized the
search for and seizure of “[a]ny object used in the commission of
[the] murder . . . [i]ncluding . . . shell casings, bullets, [and]
weapons,” the warrant was issued pursuant to Article 18.02(9), which
authorizes the search for and seizure of “implements or instruments
used in the commission of a crime.”– this was not an evidentiary
warrant.
Carmen agreed that the affidavit set forth sufficient to establish
probable cause that a murder had been committed. However, he argued
that the affidavit failed to set forth facts to establish probable
cause that hair, fibers, clothing, DNA, or electronically captured
data from an answering machine, computer, or alarm system constitutes
either evidence of the murder’s occurrence or evidence that he
committed the murder; that the affidavit failed to set forth facts to
establish probable cause that hair, fibers, clothing, DNA, or
electronically captured data from an answering machine, computer, or
alarm system were located at the address. The CA held: (1) the warrant
was not a mere-evidentiary search warrant, hence was not subject to
the heightened probable-cause requirement, accordingly, this argument
failed.
Carmen argued that 25 items seized from his father’s house were
subject to suppression because they were not specifically described in
the affidavit or warrant. The CA held: (1) the search warrant was not
a mere-evidentiary search warrant, hence was not subject to the
limitation on the plain-view doctrine, and each of the 25 items was
observed, and photographed, in plain view during Officer Bort’s
walkthrough; (2) this argument was without merit.
3. JURY ARGUMENT – STATE: Proper
The State argued at punishment that, “if he kills again, that is on
you.” Carmen claimed that the State’s argument was not reasonable
because it intimidated jurors by placing them in the shoes of a future
victim. A proper plea for law enforcement may argue the relationship
between the jury’s verdict and (1) the deterrence of crime in general,
(2) the deterrence of specific crimes, (3) the impact it will have on
the community at large, or (4) the impact it will have on narrower
segments of the community (e.g., law enforcement officers, highway
drivers, women, or children). However, the State may not argue that
the community at large or a particular segment of the community
expects or demands a guilty verdict or a particular punishment, and
the State may not ask the jurors to place themselves in the shoes of
the victim.
The CA held: (1) the State’s argument did not suggest that the
jurors. themselves, would be the victims – it was merely that, if
there were a future victim, the jurors would bear some part of the
moral responsibility because they had the option to prevent that
outcome.; (2) Carmen also argued that the argument interjected new
facts not on the record relating to his propensity to commit a future
murder. But, the State’s argument did not indicate the likelihood of
such a future occurrence – It merely poses the hypothetical
possibility that a person who has murdered once could do so again; (3)
the State’s argument that Carmen might kill again was a reasonable
deduction from the evidence.
MARTINES, 01-10-00172-CR (Tex.App.– Houston [1st Dist.] 6-23-11)
Sexual assault and indecency from the 149th District Court, Brazoria
County. Affirmed.
1. SEXUAL ASSAULT: Sufficient Evidence
The 15-year-old complainant and a friend skipped classes and were
caught. She told officials that she ran away from home and school
because her father, Jose Martines, had touched her and tried to have
sex with her. In a subsequent forensic interview, she claimed the
molesting began when she was 12-year-old and related several instances
of touching and digital penetration. The complainant testified on
direct examination, that a week before trial, she told the prosecutor
that everything she had said was a lie; that she lied because she was
afraid that she would get into trouble for skipping school, and did
not want to go home. At this point, the prosecutor questioned the
complainant about the extraneous offenses in her forensic interview
over Defense objections of (1) inadequate notice, (2) the extraneous
offense allegations would be a different crime from the charged
offense because the complainant was under the age of 14, and Rule 404.
Before the prosecutor questioned the complainant about the extraneous
offenses, the trial court gave the jury a limiting instruction (1)
they had to believe beyond a reasonable doubt that Martines committed
other offenses or bad acts, and (2) then only consider the offenses
for its bearing on the previous and subsequent relationship between
Martines and the complainant and for no other purpose. Following the
complainant’s initial accusation, Martines was interviewed at his home
by an investigator from the sheriff’s office. He was Mirandized and
the interview was recorded. Martines admitted touching and kissing the
complainant’s breasts several times and said that her touched her on
the day she skipped school. He did not deny the attempted intercourse
allegation; rather, he stated, “I don’t recall that.” It was difficult
to hear Martines on the tape because he was speaking “very lowly” and
was “slumped over” in his chair during the conversation. He also
“seemed sad” during the conversation. Ten days later, Martines
contacted the Investigator and told him that everything that the
complainant said was true. But he refused to provide a written
statement or allow the conversation to be recorded. Martines request
to supress the recording because (1) the tape recorder was not capable
of making an accurate recording, (2) the investigator was not
competent in operating the recorder, and (3) the recording was not
accurate was denied. Martines’ wife, Sandra, testified that when the
complainant was in the in seventh grade, she accused Martines of
touching her buttocks and breasts. Sandra confronted Martines and he
cried and said he would not do it again. Martines was referred to a
treatment program stated during his initial intake session that “he
had offended his daughter,” and expressed remorse for his actions.
Martines skipped out before closing arguments, and his bond was
forfeited. During deliberations, the jury wanted to hear the
investigator’s tape recording. When it was being played, the
prosecutor failed to press stop at the end of the first section of
admissible material. As a result, the jury heard the tnvestigator ask
Martines if he would take a polygraph. The jury did not hear Martines’
answer. After the prosecutor belatedly stopped the recording, the
trial court stated, “That’s not admissible in evidence and y’all are
to disregard that.” The prosecutor then apologized and stated that
she “looked at the numbers on the tape player wrong.” A request fora
mistrial was denied. The jury convicted Martines of sexual assault of
a child and indecency and assessed punishment at eight and ten years’
confinement, respectively. Martines argued the evidence was
insufficient to prove that he sexually assaulted the complainant
because the State failed to establish that his penis contacted the
complainant’s vagina. She testified that Martines never entered her
and that she “pushed him away because it hurt.” Martines argued it was
highly doubtful that the hurt or pain came from the mere contact of
his penis with her vagina, and, thus, the State failed to present
evidence of contact. The CA held: (1) sexual assault by contact and
sexual assault by penetration are distinct offenses under
§22.011(a)(2) V.A.P.C. and the indictment alleged that Martines caused
the complainant’s vagina to contact his penis; it did not allege that
he caused the penetration of the complainant’s vagina. Thus, the State
was not required to prove that Martines “entered” the complainant; (2)
the complainant told the forensic interviewer that Martines’s penis
touched her vagina but did not enter her and the DVD of the interview
was admitted into evidence; (3) the complainant’s recantation did not
destroy the probative value of that testimony because the jury
observed the complainant’s demeanor and was entitled to reconcile
conflicts in her testimony and to disbelieve her recantation.
2. TAPE RECORDING: Predicate for Admissibility – Rule 901
Martines argued the the trial court erred in admitting the tape
recording because (1) e State failed to show that the recording was
authentic and correct, as required by Edwards v. State, 551 S.W.2d 731
(Tex.Crim.App. 1977), and (2) the tape recorder was not capable of
making an accurate recording, as required by Article 38.22, §3(a)(3)
V.A.C.C.P. Martines conceded that he was not in custody when his
interview was recorded, hence the State was not required to establish
the five elements of article 38.22, §3(a). Martines relied on the
seven-factor test for the admission of audiotape recordings in Edwards
but Rule 901 superceded Edwards and contains a nonexclusive list of
methods for authenticating evidence, including testimony from a
witness with knowledge that a matter is what it is claimed to be.
Martines did not argue that the tape recording was not a recording of
his conversation with the investigator; rather, he challenged the
accuracy of the recording based on the frequent “pops” caused by the
particular tape recorder. The CA held: (1) Maldonado v. State, 998
S.W.2d 239 (Tex.Crim.App. 1999) considered if two “skips” or
“anomalies” in the audio recording made during custodial interrogation
rendered the tape inadmissible under Article 38.22, §3 and concluded
based on the testimony of a sound recording expert and the
interrogating officer, there was adequate evidence that the anomalies
were inadvertent and did not affect the overall reliability of the
tape, and that the tape was accurate and had not been impermissibly
altered in the sense contemplated by Article 38.22 §3(a)(3); (2) here,
the investiator: (a) used a five or six-year-old Sony microcassette
recorder to record the conversation; (b) he did not manually stop and
re-start the tape recorder; (c) he identified the two voices on the
recording; and (d) testified that the tape offered into evidence was
an accurate copy of the original and had not been altered; (3) the
court did not abuse its discretion in holding that the tape recorder
was capable of making an accurate recording, that the investigator was
competent in making that recording, and that the recording was
accurate and was not altered.
3. SEXUAL ASSAULT: Prior Relationship Evidence – Article 38.37 V.A.C.C.P.
Martines argued the trial court erroneously admitted evidence of
extraneous offenses involving him and the complainant because the
offenses were more prejudicial than probative, amd inadequate notice.
The CA held: (1) Article 38.37, §2 states that notwithstanding Rules
404 and 405, other crimes, wrongs, or acts committed by the Defendant
against the child-complainant shall be admitted for its bearing on
relevant matters, including the state of mind of the Defendant and the
child, and the previous and subsequent relationship between the
Defendant and the child; (2) this statute supersedes Rule 404 but is
subject to exclusion if its probative value is substantially
outweighed by the danger of unfair prejudice. But Counsel made no such
objection, hence waived error; (3) Counsel did not request a
continuance, hence waived error for lack of notice – to preserve error
regarding the State’s failure to provide reasonable notice of its
intent to use extraneous offense evidence, the Defendant must request
a continuance to mitigate the effects of surprise.
4. MISTRIAL: Polygraph Evidence
Martines argued the trial court erred by denying his request for a
mistrial after they heard mention of a polygraph on his tape recorded
interview with the investigator. The CA held: (1) the existence and
results of polygraph examinations are inadmissible for any purpose in
a criminal proceeding on proper objection, but the mere mention of a
polygraph does not automatically constitute reversible error, even if
the results of the exam are revealed; (2) generally, when polygraph
results are mentioned but not revealed to the jury, an instruction to
disregard is sufficient to cure any error; (3) in determining whether
the trial court erroneously refused to grant a mistrial, courts may
also consider (a) whether the questioning party exhibited bad faith by
asking a question designed to elicit polygraph evidence; and (b)
whether polygraph evidence bolstered the State’s case[ (4) numerous
cases have held that where a witness gives a nonresponsive answer that
mentions a polygraph test was offered or taken, but does not mention
the results of such a test, there is no error in failing to grant a
mistrial; (5) the trial court did not err in refusing to grant the
mistrial because: (a) the trial court explicitly stated its belief
that the prosecutor did not intentionally play the inadmissible
portion of the tape, and (b) trial court promptly informed the jury
that polygraph evidence was inadmissible and briefly instructed the
jury to disregard.
SKILLERN, 01-07-00997-CR Tex.App.-- Houston [1st Dist.] 6-23-11)
Misapplication of fiduciary property from the 400th District Court.
Fort Bend County Reversed and acquittal rendered.
1. MISAPPLICATION OF FIDUCIARY PROPERTY: Insufficient Evidence
Kenneth Skillern was suffering from dementia and was place in
Silverado, an assisted living facility specializing in the care of
people with dementia. His V.A. benefits, Social Security and pension
payments, were deposited directly into a joint bank account owned by
him and his daughter, Peggy. His monthly income barley covered the
costs of the living facility and all his bills were paid by Peggy.
Before Peggy died the Defendant, Mellisa Ann Skillern, was put on the
joint account and she took over paying Kenneth’s bills. When payments
were not made to Silverado, they contacted Skillern and she claimed
the checks had been stolen and that she was trying to get things
straightened out. When the social workers at Silverado were able to
reach Melissa, they contacted Adult Protective Services who along with
the Missouri City police initiated an investigation. The investigation
indicated that Skillern withdrew $32,000 from the joint account and
deposited it into her personal account, and that she had no primary
income during that time. $8,000 was spent for the grandfather’s care
and Skillern spent more than $16,500 from her personal account on
herself. A jury convicted her of misapplication of fiduciary property
valued between $20,000 and $100,000 from an elderly person. Skillern
challenged the sufficiency of the evidence. The CA held: (1) a person
is guilty of misapplication of fiduciary property if he (a)
intentionally, knowingly, or recklessly (b) misapplies (c) property
he holds as a fiduciary or property of a financial institution (d) in
a manner that involves substantial risk of loss (e) to the owner of
the property or to a person for whose benefit the property is held;
(2) Skillern did not violate any statute; thus the State had to prove
(a) that the Kenneth and Skillern had an agreement regarding how the
money from their Joint Account was to be spent and (b) that Skillern
violated that agreement; (3) the only evidence of a written agreement
was an agreement that Skillern was a joint owner of the Joint Account
with Kenneth and that his checks were the only funds deposited into
the account; (4) the State presented no evidence showing how Kenneth
intended the money deposited into the account to be spent or what his
agreement with Skillern was with respect to that money; (5) Skillern
was a co-owner of the Joint Account, and had the same rights and
privileges to the money as Kenneth, hence, the evidence was
insufficient to support a conclusion that Skillern had agreed to
handle the money from the Joint Account solely for Kenneth’s benefit
or that she otherwise handled the money in contravention of that
agreement; (6) the record contained no evidence probative of an
element of the offense of misapplication of fiduciary property, hence,
the jury could not rationally find Skillern guilty of that offense
accordingly, the judgment of the trial court was reversed and a
judgment of acquittal was rendered.
EX PARTE MELLO, 02-10-200-CR (Tex.App.– Fort Worth 6-30-11)
11.072 writ from Criminal District Court No. 3. Tarrant County. Relied denied.
1. POST-CONVICTION WRIT: Claim of Actual Innocence
James Mello pleaded guilty to indecency and was placed on deferred.
After he was released from community supervision, he filed an
application for writ of habeas corpus pursuant to Article 11.072
V.A.C.C.P., alleging that newly discovered evidence established that
he was actually innocent of indecency. The State filed a response in
opposition, and there was an evidentiary hearing. The habeas court
entered findings of fact and conclusions of law and denied relief.
Mello raised a Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853 (1993)
claim – a substantive claim in which the person asserts a bare claim
of innocence based solely on newly discovered evidence, a Herculean
task. In reviewing a Herrera claim, the habeas court must first
consider whether the applicant presented newly discovered evidence
that affirmatively establishes his innocence. The habeas court must
examine the newly discovered evidence and determine whether the new
evidence, when balanced against the old inculpatory evidence,
unquestionably establishes the applicant’s innocence. If the applicant
entered a guilty plea, the guilty plea along with any evidence
entered, or stipulation must be considered in weighing the old
evidence against the new evidence, and courts should give great
respect to knowing, voluntary, and intelligent pleas of guilty. In the
early 1990s, the State began investigating the alleged sexual abuse of
J.A.L. (a child younger than 17 years of age) and her siblings, J.H.
and J.E., by various individuals, including their parents, Joseph and
Wanda L. During the investigation, J.A.L. and J.H. told officials
that “Jimmy” had sexually abused J.A.L. The State charged the parents,
Mello, Donald Tomlin, and Frank Montgomery with varying degrees of
sexual offenses. The parents were tried and sentenced to lengthy
prison sentences. Tomlin and Montgomery both entered guilty pleas and
were sentenced to prison terms, which they have served. The habeas
record did not delineate the evidence introduced at Mello’s 1994 plea
hearing, but the habeas court, without objection, took judicial notice
of and considered: (1) a 1993 Investigative Report where Mello was
identified as an accomplice in the crimes by the other Defendants;
admitted being in the home many times; (2) Frank Montgomery’s 1993
sworn statement admitting that he sexually assaulting J.A.L. and J.H.,
and saw Mello fondling J.A.L. and touching her private area; and (3)
Donald Tomlin’s 1993 sworn statement and plea admonishment admitting
that seven or eight year old J.E. performed oral sex on him three or
four times; that Mello claimed that he also had oral sex with the
children. The newly discovered evidence consisted of affidavits from
J.A.L., and Frank Montgomery who were shown Mello’s 1993 photograph
and said he was not the “Jimmy” who molested the children. There were
several other affidavits attesting that Mello never went by the name
of “Jimmy,” but, instead, was called, “James. At the habeas hearing,
J.A.L. testified in accordance with her affidavit. The State called
J.H. who viewed the same photographs as J.A.L. and recognized the
person in the photograph as “the guy we called Jimmy, and also
identified Mello in open court. The habeas court denied relief. The CA
held: (1) the record supported the habeas court’s conclusion that: (a)
Mello failed to present affirmative evidence of his innocence; (b)
there was evidence that Mello was “Jimmy”; (c) Mello pleaded guilty to
indecency and a convicting court is not free to ignore a guilty plea
when reviewing a collateral attack.
VALLADO, 04-10-00328-CR (Tex.App.– San Antonio 6-22-11)
Aggravated assault from the 144th District Court. Bexar County. Affirmed.
Rudy Vallado stabbed the complainant in the parking lot of a bar. A
witness saw the knife and saw intestines protruding from a wound in
the complainant’s stomach. Some of the bar customers caught Vallado a
short distance from the bar, and held him till the police arrived. A
security guard handed the officer a knife he said he had taken from
Vallado. The complainant underwent a skin graft to his abdomen
because the injury to his stomach became infected and would not close.
He also suffered a ruptured bowel and had been wearing a colostomy bag
for one and one-half years at the time of trial. It was not clear
whether the colostomy was required by the injuries the complainant
suffered in the attack or by subsequent complications. The aggravated
assault indictment alleged that the knife was a dealy weapon and the
jury found Vallado guilty as alleged in the indictment. Vallado argued
the evidence was insufficient to prove the knife was a deadly weapon.
Vallado did not directly attack the sufficiency of the evidence under
Paragraph B alleging that the complainant suffered serious bodily
injury. Normally, an appellate court will conduct a sufficiency review
when the July 10, 2011efendant fails to attack all theories of
conviction submitted alternatively to the jury, but in the interest of
justice the CA considered whether the evidence was sufficient under
either theory. The CA held: (1) a weapon used to cause serious bodily
injury is by definition a deadly weapon, and serious bodily injury is
bodily injury that creates a substantial risk of death or that causes
death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or
organ; (2) the evidence was sufficient to support the jury’s verdict
under both theories – serious bodily injury or the use of a deadly
weapon because there was sufficient evidence to allow a rational jury
to conclude beyond a reasonable doubt that the complainant suffered
serious bodily injury.
Scillitani v. State, 297 S.W.3d 498 (Tex.App.– Houston [14th Dist.]
2009): DWI. Reversed and acquittal rendered.
1. DWI: Insufficient Evidence
A trooper responded to a dispatch call at 1:58 a.m involving a
single-vehicle accident. Upon his arrival, the trooper saw a vehicle
resting in a ditch. The trooper encountered Scillitani, who admitted
driving the vehicle. He said he did not know how he lost control of
the vehicle. The trooper also encountered two tow truck drivers and
Scillitani’s mother. Scillitani had notified his mother and she
arrived before the trooper. The trooper smelled alcohol on
Scillitani’s breath, but Scillitani denied drinking. After an HGN and
field sobriety tests, Scillitani was arrested for DWI. Scillitani
submitted two breath samples. The first sample showed Scillitani’s
breath alcohol level to be 0.135. A second sample revealed
Scillitani’s breath alcohol level to be 0.133. His motion to suppress
the results of the Intoxilyzer breath test was denied and Scillitani
was found guilty by a jury. Scillitani challenged the legal and
factual sufficiency of the evidence showing that he drove at a time
when he was intoxicated. The CA held: (1) for there to be legally
sufficient evidence that Scillitani operated a motor vehicle while
intoxicated, there must be independent evidence of (a) how recently
the vehicle was driven or (b) how much time elapsed between the
accident and the arrival of law enforcement authorities; (2) 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
operating a motor vehicle in a public place; (3) absent evidence
establishing the time of the accident or of the Accused’s driving in a
public place, the evidence was legally insufficient to show that the
Accused drove while he was intoxicated; (4) in light of Scillitani’s
admission that he was the driver of the vehicle and testimony from
Scillitani’s mother that he acknowledged being in an accident, the
evidence was legally sufficient to show that he was driving at the
time of the accident; (5) the evidence was legally sufficient to
establish that Scillitani was intoxicated when the trooper arrived on
the scene. However, neither direct nor circumstantial evidence
established the necessary temporal link between Scillitani’s driving
and his intoxication because: (a) no witnesses testified regarding
Scillitani’s driving before the accident; (b) there was no evidence
establishing how soon after the accident the trooper arrived on the
scene; (6) the State argued the conviction was supported by facts
establishing the approximate time of Scillitani’s driving and his
intoxication at that time; that Scillitani’s mother testified that he
called her and told her that he had been in an accident. However,
Scillitani’s mother did not so testify; rather, she testified that, at
some point during that night, Scillitani called her and told her that
there had been an accident. A reasonable juror could conclude that
“during that night” meant sometime during the night of July 6-7, 2006.
She did not specify when Scillitani called her. Though it would be
reasonable to conclude that the accident occurred before Scillitani
called his mother, but she did not offer any testimony as to how long
before this call the accident occurred; (7) the State notes that
Scillitani did not dispute that he crashed his vehicle, either at
trial or on appeal. However, neither in the complaint nor in any
testimony did any person ever assert that Scillitani crashed his
vehicle on July 7, 2006. More importantly, Scillitani’s failure to
deny that the crash occurred on July 7, 2006, did not constitute
independent evidence of (a) how recently the vehicle was driven or (b)
how much time elapsed between the accident and the trooper’s arrival;
(8) the State noted that there was no evidence that Scillitani was
drinking after the accident, or that he left the accident scene and
returned, or that he became intoxicated after he stopped driving, this
absence of evidence does not constitute such independent evidence; (9)
the State argued that Scillitani’s denial that he had been drinking
was evidence that he was conscious that he was guilty of DWI. This
argument was rejected because this evidence did not constitute
independent evidence of (a) how recently the vehicle was driven or (b)
how much time elapsed between the accident and the trooper’s arrival;
(10) the State relied heavily on Zavala v. State, 89 S.W.3d 134
(Tex.App.– Corpus Christi 2002, no pet.). However, in Zavala the
court was able to pinpoint the Accused’s driving to a time between
11:00 p.m., when Zavala admitted to his last drink and 3:40 a.m., when
the officer was dispatched to the accident and determined the Accused
was intoxicated. There was no similar testimony in this case as to the
timing of any drinking by Scillitani therefore, Zavala is not on
point; (11) the evidence was legally insufficient to support the
jury’s determination that Scillitani was intoxicated while operating a
motor vehicle, accordingly, the judgment of the trial court reversed
and an acquittal was rendered.
SCILLITANI, 14-08-00430-CR (Tex.App.– Houston [14th Dist.] 6-21-11)
Affirmed on remand from the CCA, holding: (1) in light of Scillitani’s
admission that he was the driver of the vehicle, the evidence was
sufficient to show that he was driving at the time of the accident,
but there must be a temporal link between Scillitani’s intoxication
and his driving; (2) Scillitani relied upon Johnson v. State, 517
S.W.2d 536 (Tex.Crim.App. 1975) where a police officer arrived at the
scene of a single-vehicle accident and found the vehicle in a ditch.
Nobody was inside, but there were several people nearby, one of whom
admitted he was driving the vehicle at the time of the accident.
Johnson was arrested for DWI and a test administered more than
two-and-a-half hours after the officer arrived indicated that Johnson
had an alcohol concentration of .20. There was no direct evidence
showing when the accident occurred, and the CCA concluded that (a)
there was no evidence showing when Johnson drove the vehicle; (b)
there was no evidence of how recently the vehicle had been driven; and
(c) there was no evidence that Johnson was intoxicated when he drove
the vehicle. The Johnson court held the evidence was legally
insufficient to support the conviction; (3) the CCA impliedly
overruled Johnson in Kuciemba v. State, 310 S.W.3d 460 (Tex.Crim.App.
2010) which held that a person’s intoxication at the scene of an
accident in which the person was driving a vehicle is some
circumstantial evidence that the person was DWI; (4) viewing the
evidence in the light most favorable to theverdict, a rational trier
of fact could have found beyond a reasonabledoubt that Scillitani was
intoxicated while operating a motor vehicle in a public place.
There was a concurring opinion disageeing with the notion that the
CCA, through its decision in Kuciemba impliedly overruled Johnson.
1. DWI: Motion to Suppress
Scillitani argued the trial court erred in denying his motion to
suppress evidence of the breath test results. DPS set forth the
requirements for breath-alcohol-testing procedures in the Texas
Administrative Code. See 37 Tex. Admin. Code §19.4(c) (Dep’t of Pub.
Safety, Approval of Techniques, Methods, and Programs). There is a
presumption of admissibility when the DPS procedures are followed.
Scillitani argued the trooper did not follow DPS procedures based on
his testimony that he did not check the reference sample temperature.
A forensic scientist and technical supervisor familiar with the
Intoxilyzer, testified at first that the trooper, in failing to check
the temperature of the reference sample, did not conduct the test in
accordance with the Texas Breath and Alcohol Testing regulations.
Despite this hearing testimony, the supervisor later testified that
the current regulations no longer require that the reference sample be
taken at a known temperature and that the trooper administered the
test in accordance with regulations. She attributed her prior
testimony – that the test was not in compliance with regulations – to
a lapse in memory given that the regulations had been revised several
months before Scillitani’s test. The CA held: (1) the evidence in the
record established that the readings produced by the Intoxilyzer were
obtained in conformity with procedures prescribed in the governing
regulations; (2) the regulations do not require a known temperature
for the reference sample, see 37 Tex. Admin. Code §19.4(c), therefore,
the breath-test results were admissible, and the trial court did not
err in denying the motion to suppress.
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