Cantu v. State
| Decision Date | 18 August 2021 |
| Docket Number | 04-20-00096-CR |
| Parties | Ricky CANTU, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
DO NOT PUBLISH
From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2018CR5992 Honorable Catherine Torres-Stahl, Judge Presiding
Sitting: Patricia O. Alvarez, Justice, Irene Rios, Justice Beth Watkins, Justice
MEMORANDUM OPINION
AFFIRMED
After the State presented evidence that Appellant Ricky Cantu, a repetitive DWI offender, drove while intoxicated and caused a collision with Rudy Borrego, who died as a result, a Bexar County jury found Cantu guilty. Cantu was sentenced to forty years in prison. On appeal, Cantu raises several issues arguing that (1) the evidence was legally insufficient to establish that Cantu committed an act clearly dangerous to human life in the course of driving while intoxicated, or to support the inferences the jury made to convict him; (2) the trial court committed charge error by failing to include the definition of "omission" in the jury charge; and (3) the evidence was legally insufficient to establish that Cantu's actions rather than Borrego's actions caused Borrego's death. We affirm the trial court's judgment.
On February 24, 2018, Cantu was driving eastbound on Laredo Street in San Antonio. A motorcyclist was driving westbound. A witness driving behind Cantu noted that Cantu was driving extremely slowly, about fifteen miles per hour, and weaving in and out of his lane. He remarked to his wife that the driver must be falling asleep or drunk. The witness watched as Cantu swung to the right and then back to the left in a wide, slow left turn into a gas station. Before Cantu cleared the lane of oncoming traffic, the witness heard an impact, and then he saw a motorcycle under Cantu's truck. The witness got out of his car to check on the motorcyclist, but the motorcyclist was unconscious. The witness tried to tell the motorcyclist that he had called 911 and emergency responders were enroute, but the motorcyclist remained unresponsive. The witness saw Cantu get out of his truck shaking his head, but Cantu did not look at the motorcyclist under his truck. A clerk at the gas station heard the crash and saw Cantu get out of his truck. She observed that he looked shocked, but she did not approach the scene.
When police arrived and spoke to Cantu, Cantu reported that the motorcyclist was coming out of the gas station without his headlamp on and that they hit each other. But the investigation revealed that the motorcyclist was driving about forty-five miles per hour west on Laredo Street with his headlamp on when Cantu turned in front of him. At trial, the State's reconstructionist explained that, as Cantu made a left turn in front of the motorcyclist, the motorcyclist braked and laid the motorcycle on the ground to avoid colliding against the truck but nonetheless slid underneath Cantu's truck. As a result, the motorcyclist, later identified as Rudy Borrego, died.
At the scene, Cantu exhibited red, glassy eyes, he slurred his speech, and he emitted an odor of intoxicants from his breath. He submitted to the investigating officer's horizontal gaze nystagmus test, from which the officer observed four out of six cues of possible impairment. Cantu refused any further field sobriety tests. The officer arrested Cantu and read him the statutory advisory informing him that he was obligated to provide a breath or blood sample for alcohol testing. Cantu refused, and the officer obtained a warrant for the sample. The officer then took Cantu to a nurse's station for a blood draw. Cantu's blood sample revealed a blood alcohol concentration of .21. Cantu now appeals.
Cantu argues that the evidence against him was legally insufficient to establish that he committed an act clearly dangerous to human life while driving intoxicated, and that the evidence did not support the inferences necessary for the jury to convict him. Cantu further argues that Borrego's actions, not Cantu's own actions, caused Borrego's death. The State argues that the evidence against Cantu was legally sufficient to establish that he committed felony murder and that his convictions should be affirmed.
When determining whether there is sufficient evidence to support a conviction, the reviewing court "consider[s] the combined and cumulative force of all admitted evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, a jury was rationally justified in finding guilt beyond a reasonable doubt." Tate v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)); accord Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010). "Because the jury is the sole judge of the credibility of witnesses and of the weight given to their testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict." Espino-Cruz v. State, 586 S.W.3d 538, 543 (Tex. App.-Houston [14th Dist.] 2019, pet. ref'd) (). "The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt." Gamelin v. State, No. 14-08-00977-CR, 2010 WL 1037944, at *2 (Tex. App.-Houston [14th Dist.] Mar. 23, 2010, no pet.) (citing Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991)).
For the jury to convict Cantu of a felony murder, the jurors had to agree that Cantu committed an act clearly dangerous to human life, which the State identified as a failure to keep a proper lookout, and/or failure to yield the right of way, and/or turning in front of Borrego and causing him to crash into Cantu. See Tex. Penal Code Ann. § 19.02; Alami v. State, 333 S.W.3d 881, 888 (Tex. App.-Fort Worth 2011, no pet.). The jury also had to agree that Cantu's dangerous act caused Borrego's death. See Tex. Penal Code Ann. § 19.02; Fraser v. State, 593 S.W.3d 883, 890 (Tex. App.-Amarillo 2019, pet. ref'd).
"The felony murder statute makes clear that an 'act clearly dangerous to human life' must be the cause of the death of the victim." Rodriguez v. State, 454 S.W.3d 503, 507 (Tex. Crim. App. 2014) (citing Tex. Penal Code Ann. § 19.02(b)(3)). A failure to act, i.e., an omission, will not satisfy a felony murder charge. See id. (citing Tex. Penal Code Ann. § 1.07(a)(34)). But in some circumstances, omissions may be regarded or described as voluntary acts. McGuire v. State, 493 S.W.3d 177, 190 (Tex. App.-Houston [1st Dist.] 2016, pet. ref'd) (distinguishing Rodriguez, 454 S.W.3d 503). Specifically, since Texas law imposes a duty on drivers to keep a proper lookout and yield to oncoming traffic, [1] driving in such a way that disregards these duties can be described as an affirmative act. McGuire v. State, No. 01-11-01089-CR, 2012 WL 344952, at *2 (Tex. App.-Houston [1st Dist.] Feb. 2, 2012, pet. ref'd) () (citing Lomax v. State, 233 S.W.3d 302, 304 n.5 (Tex. Crim. App. 2007)); see also Schmidt v. State, No. 09-09-00149-CR, 2010 WL 4354027, at *6 (Tex. App.-Beaumont Nov. 3, 2010, no pet.) (mem. op., not designated for publication) (affirming conviction in DWI murder case in which Appellant failed to yield to a motorcycle by turning left in front of it thereby causing the motorcycle to crash). In other words, failing to yield constitutes an act rather than a non-act. See McGuire, 493 S.W.3d at 190. In McGuire, the court explained how failing to maintain a proper lookout, as an example, constituted an act in contrast to the non-acts described in Rodriguez:
Unlike the omissions in the Rodriguez indictment, the omissions in the McGuire indictment could be regarded, in some circumstances, as voluntary acts. For example, if the facts supported the statement, the indictment could have alleged that McGuire failed to maintain a proper lookout because he was texting or looking at the floorboard for something he had dropped. These clearly would be acts.
McGuire, 493 S.W.3d at 190. In Rodriguez, the omissions included not feeding a child enough food, not providing a child with a coat in the winter, and not taking a child to the hospital to treat an injury-true non-acts, distinguishable from failing to yield or to keep a proper lookout. Compare Rodriguez, 454 S.W.3d at 508, with McGuire, 493 S.W.3d at 190. Accordingly, for felony murder DWI cases in which the State has described the defendant's dangerous act as a "failure to yield" or a "failure to keep a proper lookout," a conviction my be affirmed if the evidence supports the allegation, despite the use of the word "failure." See, e.g., Lomax, 233 S.W.3d at 304 n. 5; McGuire, 493 S.W.3d at 190.
Under Texas transportation law, "[a]n operator may not turn the vehicle to enter a private road or driveway, otherwise turn the vehicle from a direct course, or move right or left on a roadway unless movement can be made safely." Tex Transp. Code Ann. § 545.103. "'Safely' means, 'free from harm or risk,' 'secure from threat of danger, harm, or loss, or 'affording safety or security from danger, risk, or difficulty.'" Leming v. State, 493 S.W.3d 552, 568 (Tex. Crim App. 2016) (citing Merriam-Webster's Collegiate Dictionary 914 (10th ed. 1997)); cf. Schmidt, No. 09-09-00149-CR, 2010 WL 4354027 (). In...
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