Baukus v. State
| Decision Date | 09 March 2016 |
| Docket Number | NO. 09-13-00397-CR,NO. 09-13-00398-CR,NO. 09-13-00399-CR,09-13-00397-CR,09-13-00398-CR,09-13-00399-CR |
| Parties | NICOLE NADRA BAUKUS, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 435th District Court Montgomery County, Texas
Trial Cause No. 12-06-07085 CR (Count 1, Count 2, Count 3)
Nicole Nadra Baukus changed her plea to guilty during a jury trial, without a plea-bargain agreement, to two counts of intoxication manslaughter and one count of intoxication assault. See Tex. Penal Code Ann. §§ 49.01(2), 49.07, 49.08 (West 2011). She also pled true to the allegation that she used a deadly weapon in committing these offenses. See id. § 1.07 (17)(B) (West Supp. 2015). At the close of the evidence, the jury assessed punishment at fifteen years imprisonment for each conviction of intoxication manslaughter and eight years imprisonment for her intoxication assault conviction. See id. §§ 12.33, 12.34 (West 2011). The trial court sentenced Baukus accordingly and ordered Baukus's sentences to run consecutively. See Tex. Code Crim. Proc. Ann. art. 42.08(a) (West Supp. 2015); Tex. Penal Code Ann. § 3.03(a)-(b) (West Supp. 2015).1 Baukus appeals her convictions and raises thirteen issues. We affirm the trial court's judgment.
On June 28, 2012, Baukus clocked out from her job at Bikinis Sports Bar and Grill and consumed two alcoholic drinks before leaving around 5:38 p.m. She later had dinner at a restaurant with a friend and left the restaurant around 8:15 p.m. At around 9 p.m., Baukus met some other friends at On the Rox Sports Bar and Grill to have drinks. According to an agent with the Texas Alcoholic Beverage Commission (TABC), security footage from On the Rox depicts Baukus consuming at least twenty-one drinks while socializing with her friends that evening. The video indicates that Baukus had at least five beers and sixteen liquor beverages during the approximately four and a half hours she was at the bar. From watching the video, the TABC agent observed Baukus consuming the beers she was served, though he could not confirm that she completely consumed each of thebeers because of the nature of the bottles. However, the TABC agent was able to observe that Baukus consumed the majority of the shots and mixed drinks she received that night. He testified that Baukus consumed a number of drinks that included Red Bull as an ingredient, which he explained causes delayed signs of impairment, a condition known as "wide awake drunk." The TABC agent identified observable signs of intoxication in Baukus's behavior at approximately 12:51 a.m. according to the video footage. Based on the video footage, by 1:46 a.m., Baukus was unsteady on her feet and clearly swaying. At approximately 1:53 a.m., the video shows Baukus struggling to walk and falling over tables. Baukus left On the Rox alone at 1:58 a.m. It is unclear from the record what Baukus did from the time she left On the Rox and 3 a.m., when the collision occurred. While there is some evidence that Baukus may have gone to a bar called Rebels, it is not clear from the record that she actually went to that bar or that she consumed any other alcohol after she left On the Rox.
Just before 3 a.m., Baukus drove her Ford F-150 truck in the wrong direction up one of the exit ramps of I-45 into oncoming traffic. According to eyewitness testimony, Baukus was driving "really fast" in the wrong direction on I-45 when she collided with a small Chevy Aveo occupied by Nicole Adams, Travis Saunders, and David Porras. The speed limit for the section of the highway wherethe collision occurred was sixty-five miles per hour. The black box data from the Chevy Aveo shows that it was traveling approximately sixty-nine miles per hour immediately before the collision. The evidence at trial supports that Baukus was also traveling at a similar speed. The impact of the collision was so great that it killed Adams and Saunders, and Porras suffered serious bodily injuries.
When an officer first arrived at the scene, he found that a passerby had helped Baukus exit her vehicle through the passenger's side door of the truck. Baukus told the officer that a friend had been driving the truck at the time of the collision. When he found no other person in the truck, the officer assumed that Baukus's friend had been ejected from the truck and immediately began searching for the other person. The officer found no evidence that anyone had been thrown from the truck or had otherwise been in the truck at the time of the collision. The officer did, however, observe that Baukus did not have a shoe or sock on her left foot upon exiting the vehicle. The officer located a bloody sock and a left shoe on the driver's side floorboard of the truck that matched the one Baukus was wearing on her right foot. Officers observed that Baukus's left foot was bleeding, she smelled strongly of alcohol, and her eyes were watery and bloodshot. Officers also noted that Baukus was sluggish at times, and appeared carefree with laughter at other times. DNA evidence from the driver's side airbag and the bloody sockadmitted during her trial matched that of Baukus. It was also noted for the jury that only the driver's side airbag deployed in the collision.
Video footage from the dashboard camera of one of the responding officer's vehicles showed Baukus telling paramedics that she had been driving, that she had consumed "a lot" of liquor and beer, but that she stopped driving at some point because she was drunk. She also told paramedics that she had been at On the Rox that night.
Once at the hospital, officers observed that Baukus's speech was mumbled and a little slurred, both her person and breath smelled strongly of alcohol, she had a hard time keeping her eyes open, and her eyes were glassy and bloodshot. Baukus informed officers that she had gone to two bars that night, had consumed four or five beers and an unknown quantity of shots, and that she had been driving the Ford-F-150 truck. Medical personnel observing Baukus also believed she was highly intoxicated based on Baukus's behavior and from Baukus's admission to them that she had consumed several alcoholic beverages. According to officers and medical personnel treating Baukus, she had random outbursts of laughter, which were inappropriate for the situation. According to one of the surgeons, when he told Baukus that she was responsible for killing two people, Baukus laughed.
Not only did Baukus's appearance, behavior, and statements suggest she was intoxicated, but laboratory analysis of her blood showed high levels of alcohol concentration. For purposes of treating Baukus, medical personnel drew Baukus's blood at approximately 4:05 a.m. Baukus consented to giving officers a blood sample around 4:20 a.m. Baukus consented to giving officers another sample of her blood at 5:34 a.m. The laboratory analysis of Baukus's blood indicates she had a blood-alcohol level of 0.268 at 4:05 a.m., a blood-alcohol level of 0.265 at 4:20 a.m., and a blood-alcohol level of 0.204 at 5:34 a.m. The State introduced evidence that estimated that Baukus's blood-alcohol level at the time of the collision was approximately 0.30. The legal limit of blood-alcohol concentration for driving is 0.08 grams of alcohol per 100 milliliters of blood. See Tex. Penal Code Ann. § 49.01 (2)(B). Baukus's blood-alcohol concentration was more than three times the legal limit. See id. The toxicology report also showed the presence of diazepam in her blood.
Not only did Baukus's statements, behavior, demeanor, and blood-alcohol analysis support that she was highly intoxicated, but an officer also performed the horizontal gaze nystagmus test on Baukus and observed six clues that indicated she was impaired that night. The officer only needed four of the six to have probablecause to make an arrest for intoxication. The officer also performed a vertical gaze nystagmus test on Baukus and identified a vertical nystagmus.
The State charged Baukus with two counts of intoxication manslaughter for causing the deaths of Adams and Saunders and one count of intoxication assault for causing serious bodily injury to Porras. See Tex. Penal Code Ann. §§ 49.07, 49.08. The State also alleged that Baukus used her vehicle as a deadly weapon in committing these offenses. See Tex. Penal Code Ann. § 1.07 (17)(B). Baukus initially entered a plea of not guilty; however, on the fourth day of trial, Baukus changed her plea to guilty. The trial then proceeded to the punishment phase. After both sides presented evidence, the jury returned a verdict of guilty. Baukus filed a motion for new trial, which the trial court denied.
In her first and second issues, Baukus contends the trial court abused its discretion in denying her motion for new trial, as she did not enter her pleas of guilty to the charges voluntarily or knowingly. She contends that her counsel had not informed her that she had a plausible defense at the time she pled guilty. She claims her counsel was unprepared for trial and rendered ineffective assistance of counsel, upon which she ultimately based her decision to change her pleas to guilty.
As an initial matter, we note in Baukus's motion for new trial that she requested a hearing to allow her to develop the evidence necessary to establish her contentions. There is no indication in the record that the trial court ruled on Baukus's request for a hearing on her motion for new trial. And, the record does not reflect that the trial court conducted a hearing on her motion.2 However, on September 26, 2013, the trial court signed an order denying Baukus's motion for new trial. The order states simply, "The defendant's motion for new trial is hereby DENIED."
In an effort to persuade the trial court that reasonable grounds existed for a new trial, Baukus attached both her own affidavit...
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