Alami v. State

• Decision Date: 06 January 2011
• Docket Number: No. 02–09–00151–CR.,02–09–00151–CR.
• Citation: 333 S.W.3d 881
• Parties: Christopher Blake ALAMI, Appellant,v.The STATE of Texas, State.
• Court: Texas Court of Appeals

333 S.W.3d 881

Christopher Blake ALAMI, Appellant,

v.The STATE of Texas, State.

No. 02–09–00151–CR.

Court of Appeals of Texas, Fort Worth.

Jan. 6, 2011.Rehearing Overruled Jan. 20, 2011.

J. Warren St. John, Fort Worth, TX, for Appellant.Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallin, Chief of the Appellate Section, Andy Porter, Richard B. Alpert, Betty R. Arvin, Assistant Criminal Attorneys, Fort Worth, TX, for State.PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

OPINION

BILL MEIER, Justice.

I. INTRODUCTION

Appellant Christopher Blake Alami appeals his conviction for felony murder. In five points, Alami argues that the evidence is legally and factually insufficient to support his conviction and that the trial court abused its discretion by overruling his rule 403 objections and his motion for a mistrial. We will affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

On June 13, 2008, at around 7:45 p.m., Alami's mother dropped Alami off at a Buffalo Wild Wings (the “restaurant”) located in South Fort Worth. Alami met Madhuri Kumar at the restaurant, where they both consumed alcohol before leaving at around 10:55 p.m. in Kumar's Lexus. Alami was driving Kumar's Lexus northbound on Interstate 35 West with Kumar in the passenger seat when the left front corner of the Lexus struck the right rear corner of a Hyundai being driven by Sharmon Teel in the center lane of the roadway. Teel maintained control of her Hyundai, but the Lexus passed by the right side of Teel's vehicle, overcorrected to the right side of the roadway, crossed onto the right shoulder, overcorrected to the left in an attempt to move back onto the roadway, started skidding and rotating counterclockwise across the roadway, and collided into a barrier on the left side of the roadway. The passenger side of the Lexus made contact with the barrier, crushing the center post of the vehicle into Kumar and pushing Kumar towards the center of the vehicle. Kumar sustained severe internal injuries and died as a result of the collision. Alami suffered a jaw fracture and a fracture in the back of his head.

Kayden Bathory, an emergency medical technician, arrived at the scene and helped Alami exit the wrecked Lexus. Bathory smelled alcohol coming from Alami's breath and asked him how much he had had to drink. Alami responded, “Too much.”

Officer Vincent Brown also arrived on the scene and spoke to Alami, who was leaning against the center concrete dividing wall. Officer Brown noticed that Alami had red, bloodshot eyes; slow, slurred speech; and a moderate smell of alcohol on his breath. Alami's condition gave Officer Brown the indication that Alami “had possibly been drinking and maybe had been intoxicated.”

Bathory helped transfer Alami to a different ambulance, where Nick Lowery, a paramedic, examined Alami. Lowery smelled an alcohol-like odor coming from Alami and questioned him about how much he had had to drink. Alami responded, “Too much.”

Alami was transported to John Peter Smith Hospital. There, he refused Officer Jonathan McKee's request to provide a blood sample, so Officer McKee initiated procedures for a mandatory blood draw, which Nurse Denise Nemia performed. Test results showed that Alami had a blood-alcohol content of 0.19 grams of alcohol per 100 millimeters of blood.

The State indicted Alami for felony murder, alleging felony DWI as the underlying felony offense. Specifically, the indictment alleged in relevant part that on June 13, 2008, Alami did

then and there commit a felony, to-wit: driving while intoxicated, after having been previously convicted two times of the offense of driving while intoxicated and in the course of and in furtherance of the commission of said felony, he committed or attempted to commit an act clearly dangerous to human life, to-wit: by causing the motor vehicle he was driving and operating to collide with and strike another motor vehicle which resulted in the defendant's losing control of the motor vehicle he was driving and operating which did cause it to collide with a concrete barrier and guardrail which caused the death of Madhuri Kumar who was an occupant in the motor vehicle being driven and operated by the defendant.

A jury convicted Alami of felony murder and assessed his punishment at forty years' confinement. The trial court sentenced him accordingly. This appeal followed.

III. EVIDENTIARY SUFFICIENCY

In his first and second points, Alami argues that the evidence is legally and factually insufficient to support his conviction. He contends that several witnesses—who were also present at the restaurant on June 13, 2008—testified that he appeared to be sober prior to when he and Kumar left the restaurant and that he did not commit an act clearly dangerous to human life that caused Kumar's death because he “tried to avoid Ms. Teel's slower moving vehicle and by doing so overcorrected the Lexus, which caused it to slide into the safety barrier.”

The court of criminal appeals recently held that there is “no meaningful distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis [ v. State, 876 S.W.2d 428 (Tex.App.-Dallas 1994) ] factual-sufficiency standard” and that “the Jackson v. Virginia standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. All other cases to the contrary, including Clewis, are overruled.” See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex.Crim.App.2010). Accordingly, we will apply the same standard of review to all of Appellant's sufficiency complaints.

A. Standard of Review

In our due process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the prosecution in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex.Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex.Crim.App.2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009). Thus, when performing a sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007). Instead, we “determine 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.” Hooper v. State, 214 S.W.3d 9, 16–17 (Tex.Crim.App.2007). We must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Clayton, 235 S.W.3d at 778.

B. DWI and Felony Murder

A person commits the offense of DWI “if the person is intoxicated while operating a motor vehicle in a public place.” Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). “Intoxicated” is defined in part as having an alcohol concentration of 0.08 or more. Id. § 49.01(2)(B) (Vernon 2003). Under chapter 49 of the penal code, proof of a culpable mental state is not required for a DWI conviction. Brown v. State, 290 S.W.3d 247, 249 (Tex.App.-Fort Worth 2009, pet. ref'd) (citing penal code section 49.11, which provides in part that “proof of a culpable mental state is not required for conviction of an offense under this chapter”).

An offense under section 49.04 is a third-degree felony if the defendant has previously been convicted two times of any offense relating to the operating of a motor vehicle while intoxicated. Tex. Penal Code Ann. § 49.09(b)(2) (Vernon Supp. 2010). “The Legislature has plainly dispensed with proof of a culpable mental state for felony DWI.” Lomax v. State, 233 S.W.3d 302, 304 n. 6 (Tex.Crim.App.2007) (citing penal code section 49.11).

A person commits felony murder if he “commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in the immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.” Tex. Penal Code Ann. § 19.02(b)(3) (Vernon 2003). A felony DWI offense may serve as the underlying felony in a felony-murder prosecution:

[D]eciding that Section 19.02(b)(3) dispenses with a culpable mental state is consistent with the historical purpose of the felony-murder rule, the very essence of which is to make a person guilty of an “unintentional” murder when he causes another person's death during the commission of some type of a felony. We hold that Section 19.02(b)(3) plainly dispenses with a culpable mental state.

Lomax, 233 S.W.3d at 305 (citations omitted), 309 (“The plain language of Section 19.02(b)(3) also does not exclude felony DWI as an underlying felony for a felony-murder prosecution, and we must understand the Legislature to have meant what the plain language of Section 19.02(b)(3) expresses.”); see Paniagua v. State, No. 13–08–00228–CR, 2010 WL 672886, at *2–4 (Tex.App.-Corpus Christi Feb. 25, 2010, no pet.) (mem. op., not designated for publication); Talamantes v. State, No. 03–07–00668–CR, 2009 WL 416521, at *1 (Tex.App.-Austin Feb. 19, 2009, pet. ref'd) (mem. op., not designated for publication).C. Sufficient Evidence

The record...