Bigon v. State

• Decision Date: 16 January 2008
• Docket Number: No. PD-1770-06.,No. PD-1769-06.,PD-1769-06.,PD-1770-06.
• Citation: 252 S.W.3d 360
• Parties: Edwin Glen BIGON, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

252 S.W.3d 360

Edwin Glen BIGON, Appellant, v. The STATE of Texas.

No. PD-1769-06.

No. PD-1770-06.

Court of Criminal Appeals of Texas.

January 16, 2008.

Joseph A. Turner, Christopher M. Perri, Austin, for Appellant.

Jeffrey Van Horn, State Prosecuting Atty., for State.

OPINION

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

In two separate indictments,¹ Appellant was indicted for the following offenses: two counts of felony murder, with the underlying felony of driving while intoxicated with a passenger under 15 years of age; two counts of intoxication manslaughter; and two counts of manslaughter.² After a one-day bench trial, Appellant was convicted on all six counts, and the judge sentenced him to 18 years' confinement for each count, to be served concurrently. Appellant appealed the trial court's admission of expert testimony, medical records, and test results. Appellant also challenged the legal and factual sufficiency of the evidence supporting his convictions. The court of appeals affirmed the two convictions for felony murder, but vacated the other four convictions on the unassigned error of violation of double-jeopardy guarantees of the Eighth Amendment of the United States Constitution. The court of appeals also held that the trial court did not err in admitting the expert's testimony, the medical records, or test results, and held that the evidence was legally and factually sufficient to support the convictions. Bigon v. State, Nos. 03-05-00692-CR & 03-05-00693-CR, 2006 WL 2852476, 2006 Tex.App. LEXIS 8756 (Tex.App.-Austin Oct. 4, 2006)(mem. op., not designated for publication). We granted both Appellant's and State's petitions for discretionary review. We affirm the decision of the court of appeals.

FACTS

Appellant was driving home from a trip with his 8-year-old son. At approximately 8:35 p.m., while cresting a hill, Appellant crossed the middle line of the roadway, slamming head-on into an oncoming vehicle. Both Appellant and his son were injured and two occupants of the other vehicle, the driver and her infant daughter, were pronounced dead at the scene of the accident.

Appellant and his son were airlifted to the hospital to receive treatment for their injuries. At 9:58 p.m., Appellant's blood was drawn by the hospital for lab purposes, and the hospital performed a serum blood analysis to determine the blood-alcohol concentration. Based upon witness reports,³ the officers responding to the accident scene believed that Appellant's erratic driving had caused the accident. As a result, a second blood sample was taken at approximately 11:35 p.m., at which time Appellant was informed that he was under arrest.⁴

Dr. Charles Mott, at the DPS laboratory, analyzed the second blood sample for blood-alcohol content using whole-blood analysis. Serum blood analysis and whole-blood analysis report results use different terminology. Dr. Mott converted the results of the hospital's serum blood analysis into whole-blood analysis terminology and performed a retrograde extrapolation.

COURT OF APPEALS

In a memorandum opinion, the court of appeals affirmed the convictions for felony murder, vacated the intoxication manslaughter and manslaughter convictions, and overruled all of Appellant's grounds for appeal. Appellant argued six points of error in his appeal, but did not raise the double-jeopardy issue. Although neither party argued this error on appeal, the court of appeals determined that it could be raised for the first time on appeal because it was apparent from the face of the record that the totality of Appellant's convictions stemming from the two indictments constituted double jeopardy.

Following our decision in Ex parte Ervin, the court held that there was a multiple-punishments violation. 991 S.W.2d 804 (Tex.Crim.App.1999). Because the offenses of intoxication manslaughter and manslaughter involved the same victims, imposing convictions for both violated the double-jeopardy clause. Id. at 817. The court decided that since there was only one act alleged in the indictments that could support the convictions on all three counts, Appellant could not be punished for all three offenses. The court determined that, in this case, felony murder is the same offense as intoxication manslaughter and manslaughter for double-jeopardy purposes.

To remedy the violation, the court applied the "most serious offense" test, set out in Landers v. State, to decide which convictions to vacate.⁵ 957 S.W.2d 558 (Tex.Crim.App.1997). Based on this test, the court of appeals reversed Appellant's convictions for manslaughter and intoxication manslaughter and affirmed the convictions for felony murder.

The second issue that the court addressed was the trial court's denial of Appellant's motion to quash the indictments. Appellant argued that his actions did not constitute a charge of felony murder and that the indictments were flawed because the State never alleged a culpable mental state. The court of appeals conducted a de novo review of the sufficiency of the indictment. The court held that a felony murder charge does not require proof of a culpable mental state because the underlying felony provides the culpable mental state. In this case, the underlying felony was felony DWI for driving while intoxicated in a public place with a passenger younger than 15 years of age. TEX. PEN. CODE ANN. § 49.045. Because this statute clearly dispenses with a culpable mental state, the court held that the felony murder charge also did not require a culpable mental state and upheld the trial court's decision not to quash the indictments.

Next, the court of appeals considered Appellant's argument that the evidence was legally and factually insufficient to support the murder convictions. Appellant alleged that the evidence was insufficient to show that he acted recklessly or that the act of hitting the other vehicle head-on was "in furtherance" of the underlying felony. The court of appeals stated that, under our holding in Johnson v. State, 4 S.W.3d 254, 258 (Tex.Crim.App. 1999), "the primary concern of the `course and furtherance' requirement" was the merger of the offenses, which did not occur in this case. The court concluded that a fact-finder could rationally have found beyond a reasonable doubt that Appellant committed an act clearly dangerous to human life in furtherance of felony DWI by driving a heavily loaded SUV over the center line and into oncoming traffic.

Finally, Appellant alleged that the trial court abused its discretion in admitting the testimony of Dr. Charles Mott because the testimony was unreliable and did not meet the standards set out in Mata v. State, 46 S.W.3d 902, 908-909 (Tex.Crim.App.2001). The court of appeals held that Dr. Mott explained retrograde extrapolation in a clear and understandable manner, explained his testing methods in a straightforward way, clarified which factors he did know about Appellant, and articulated the reasons for his assumption that Appellant was in the elimination phase of alcohol consumption. For all of these reasons, the court concluded that it was not an abuse of discretion to admit Dr. Mott's testimony.

Appellant's felony murder convictions were affirmed, and the other four convictions were vacated. Both Appellant and the State filed a petition for discretionary review, each requesting three grounds for review. We granted both petitions to consider the following six grounds for review:

Appellant's Grounds:

1. Whether a felony murder conviction can be based upon an underlying felony that expressly requires no culpable mental state.

2. Whether the "act clearly dangerous to human life" has to be "in furtherance" of the underlying felony in order to be convicted of felony murder.

3. Whether Mata precludes the results of a retrograde extrapolation when a testifying chemist assumes a defendant is in the elimination phase of alcohol consumption at the time of the accident.

State's Grounds:

1. Whether the court of appeals erred by reversing Appellant's convictions for double-jeopardy reasons without providing the parties an opportunity to brief the issue.

2. Whether it is apparent from the face of the record, in this case, that Appellant's convictions for both felony murder and either manslaughter or intoxication manslaughter constitutes a violation of the multiple punishments branch of double-jeopardy protection.

3. Whether a State's preference should be taken into account when deciding which convictions to vacate due to a violation of due process.

DISCUSSION

Lack of a Culpable Mental State for a Felony Murder Conviction

In his first ground for review, Appellant argues that the State failed to allege a culpable mental state for felony murder, and the court of appeals erred in its decision that the trial court did not err in refusing to quash the indictments. He contends that it goes against the intent of the Legislature to say that a felony that expressly has no culpable mental state may serve as the underlying felony in a felony murder conviction. This Court has already addressed this issue in a recent case, Lomax v. State, 233 S.W.3d 302 (Tex. Crim.App.2007). In Lomax, we held that the felony murder statute plainly dispensed with a culpable mental state, and that a felony DWI, which also does not require proof of a culpable mental state, may serve as the underlying felony. Id. Appellant has not presented a new argument that would warrant our reconsideration of this issue.

Definition of "in furtherance" as Applied to "clearly dangerous act"

In his second ground for review, Appellant argues that the court of appeals failed to consider the plain language of the felony murder statute when determining if there was sufficient evidence to show that the act clearly dangerous to human life was actually in furtherance of felony DWI. Appellant points out that the Texas Penal Code does not...