Zuniga v. State

• Decision Date: 21 April 2004
• Docket Number: No. 539-02.,539-02.
• Citation: 144 S.W.3d 477
• Parties: Jose ZUNIGA, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

144 S.W.3d 477

Jose ZUNIGA, Appellant, v. The STATE of Texas.

No. 539-02.

Court of Criminal Appeals of Texas.

April 21, 2004.

Petition for review from the Court of Appeals.

Charles W. Lanehart, Lubbock, for Appellant.

Sammy M. McCrary, Assistant District Attorney, Lamesa, Matthew Paul, State's Attorney, Austin, for State.

OPINION

MEYERS, J., delivered the opinion of the Court, in which PRICE, JOHNSON, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

Appellant Jose Zuniga was charged in two counts with intoxication manslaughter and manslaughter. The jury acquitted him of intoxication manslaughter but found him guilty of manslaughter. He was sentenced to 20 years imprisonment and a $10,000 fine. The Court of Appeals reversed the conviction for factual insufficiency of the evidence and remanded the case for a new trial. Zuniga v. State, No. 07-00-0461-CR, 2001 WL 1464147 (Tex.App.-Amarillo November 19, 2001, pet. granted) (not designated for publication). We granted review to determine whether the Court of Appeals' review of the factual sufficiency of the evidence conflicts with decisions of this Court and the United States Supreme Court.

FACTS

Appellant was a driver for a trucking company. While driving a semi-tractor from Lubbock to Sweetwater to pick up a trailer, appellant attempted to pass a pickup truck on a two-lane road. Due to a long "S" curve, the section was marked as a no-passing zone and the posted speed limit was 60 miles per hour. While traveling approximately 70 miles per hour in the left lane to pass the pickup truck, appellant saw an oncoming vehicle and applied his brakes. The air brakes on the semi-tractor locked, and appellant's vehicle skidded sideways across the pavement for over 200 feet before the tractor went into a ditch. The driver of the oncoming vehicle, Alfredo Cantu, also veered into the ditch in an effort to avoid the skidding semi-tractor. The Cantus' vehicle and appellant's semi-tractor collided in the ditch, killing Alfredo Cantu. Mr. Cantu's wife and his two granddaughters survived the collision. The driver of the pickup truck witnessed the wreck and stopped to render aid to the Cantu family.

Although appellant denied that he had been drinking, investigating officers noticed the odor of an alcoholic beverage on appellant's breath and administered a preliminary breath test and the horizontal gaze nystagmus test (HGN). The breath test indicated that appellant had consumed an alcoholic beverage but the HGN did not produce enough clues to provide probable cause to arrest appellant for driving while intoxicated. No other field sobriety tests were administered at the scene. Officers testified that appellant was cooperative and that he was not staggering, he did not have difficulty standing or walking, and his speech was not slurred. Appellant waived his rights and voluntarily gave a blood sample, which indicated a blood-alcohol content of .03. Due to the amount of time that had elapsed between the accident and the blood test, investigators testified that appellant's estimated blood-alcohol content at the time of the collision was .06. When the accident occurred in May of 1998, the per se definition of intoxication was .10 blood-alcohol content. However, under the transportation code, it is a violation for a driver of a commercial vehicle to have any detectable amount of alcohol in his system. Officers testified that the collision was caused by appellant's failure to obey the speed limit, passing in a no-passing zone and operating a commercial vehicle with a detectable amount of alcohol in his system. Although appellant did not appear to be intoxicated and did not have a blood-alcohol level that would meet the per se definition of intoxication, officers stated that, due to the measurable amount of alcohol in his system, appellant's judgment was impaired, as indicated by his decisions to exceed the speed limit and to pass in a no-passing zone.

The jury was given instructions about both intoxication manslaughter and manslaughter. The charge first described intoxication manslaughter, including definitions of intoxication and recklessness. Next, the jury charge for manslaughter listed three separate means of commission: passing in a no-passing zone, speeding, and operating a commercial vehicle with a measurable or detectable amount of alcohol in his system. Each was listed in a separate paragraph marked "A.", "B.", and "C.", respectively. The heading for operating a commercial vehicle while having a measurable amount of alcohol in his system read, "C. COUNT ONE, PARAGRAPH THREE OF THE INDICTMENT." The charge stated:

If you find from the evidence beyond a reasonable doubt that the conduct attributed to the defendant as charged in paragraphs A, B, and C above, either singularly or collectively, were reckless, as that term has been herein described, and that such conduct, either singularly or collectively, did thereby recklessly cause the death of the said Alfredo Cantu, then you will find the defendant guilty as charged under count one of the indictment. If you do not so find from the evidence, beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of manslaughter.

The jury returned the verdict form finding appellant not guilty of intoxication manslaughter and guilty of manslaughter. Handwritten on the verdict form for the manslaughter charge was the notation "Count one, par. C." The judge read the form of verdict aloud in court, stating: "Form of Verdict — Manslaughter. `We, the jury, find the Defendant guilty of the offense of manslaughter, as charged in the indictment in Cause No. 98-2419. Count 1, Paragraph "C,"' signed Marian Wood, foreman." The judge then asked the parties whether they would like for the jury to be polled and both sides declined.

On appeal, appellant argued that the evidence was factually insufficient to support the verdict that he recklessly caused the death by operating a commercial vehicle while having a measurable and detectable amount of alcohol in his system. The Court of Appeals cited Robbins v. State, 717 S.W.2d 348, 351 (Tex.Crim.App.1986), holding that under Texas Penal Code section 6.04(a), an accused cannot be convicted unless the death of the victim would not have occurred but for the actions of the accused. The Court of Appeals reasoned that the jury's manslaughter verdict indicated that it found that speeding and passing in a no-passing zone were not causes of the accident. Therefore, it disregarded evidence of speeding and passing in a no-passing zone, and, because appellant's conduct was not per se reckless, it held that the proof that the accident would not have occurred but for appellant having a measurable and detectable amount of alcohol in his system was so weak as to undermine confidence in the determination of guilt. Zuniga,. The Court of Appeals also stated that appellant's factual insufficiency argument was supported by the jury's verdict of not guilty of intoxication manslaughter. The court reasoned that the jury's acquittal for intoxication manslaughter indicated that the evidence was not sufficient to establish either that: a) appellant's mental and physical faculties were impaired, or b) that the impairment was the cause of the accident. And, if the jury found that intoxication was not the cause of the accident, then logically, they could not have found that having a measurable or detectable amount of alcohol in his system caused the accident. The Court of Appeals reversed the judgment of the trial court and remanded the cause for a new trial.¹

The State argues that the Court of Appeals did not conduct a neutral review of the evidence; rather it ignored evidence supporting the jury's verdict and advanced its own hypothesis. This, according to the State, is in direct conflict with this Court's holding in Cain v. State, 958 S.W.2d 404 (Tex.Crim.App.1997), where we stated that courts of appeals should examine all evidence impartially and give deference to the jury's verdict. The State also contends that the Court of Appeals ignored our holding in Goodman v. State, 66 S.W.3d 283 (Tex.Crim.App.2001), by substituting its own theory as to the cause of the wreck. In Goodman, we stated that "it is a jury, not a reviewing court, that accepts or rejects reasonably equal competing theories of causation." Id. at 287.

In its second ground for review, the State contends that the Court of Appeals should not have used any purported inconsistency in the jury's verdicts as support for its holding that the evidence of appellant's guilt was factually insufficient. The Court of Appeals stated that the jury's verdict of not guilty of intoxication manslaughter indicated that the evidence was insufficient to support a finding of recklessness or causation. The State contends that such speculation about the reasons for the jury's verdicts conflicts with the United States Supreme Court's holding in Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932), stating that consistency in the verdict is not necessary and that courts of appeals should not speculate about the reasons for the jury's verdict. The State also cites United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), upholding the Dunn rule and refusing to overturn the jury's inconsistent verdicts.

Appellant responds that the Court of Appeals conducted a proper review of the relevant evidence and determined that the State's evidence — that the measurable alcohol in appellant's system caused the collision — was so weak as to undermine confidence in the jury's determination of guilt. Appellant argues that the trial court's acceptance of the jury's verdict of guilty of manslaughter by having a measurable amount of alcohol in his system was effectively an acquittal of the speeding and passing in a no-passing zone allegations. Thus, the Court of Appeals properly disregarded evidence of speeding and...