Gibson v. State

• Decision Date: 01 August 2007
• Docket Number: No. 10-05-00426-CR.,10-05-00426-CR.
• Citation: Gibson v. State, 233 S.W.3d 447 (Tex. App. 2007)
• Parties: Jeremy D. GIBSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

233 S.W.3d 447

Jeremy D. GIBSON, Appellant, v. The STATE of Texas, Appellee.

No. 10-05-00426-CR.

Court of Appeals of Texas, Waco.

August 1, 2007.

David S. Barron, Bryan, for appellant.

David P. Weeks, Crim. Dist. Atty., Huntsville, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

A Madison County jury found Appellant Jeremy Gibson guilty of intoxication manslaughter (count 1) and intoxication assault (count 2).¹ The jury assessed a nine-year prison sentence and a $6,000 fine on count 1 and a two-year sentence and a $2,000 fine on count 2. Raising four issues, Gibson appeals. We will affirm.

Sufficiency of the Evidence

Gibson's first two issues assert that the evidence is legally and factually insufficient to support the intoxication manslaughter and intoxication assault convictions. When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of a penal offense, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to determine if the finding of the trier of fact is rational by viewing all of the evidence admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d 418, 422 (Tex.Crim.App. 1992). In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000).

In a factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim.App.2006); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000). "The court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact." Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App.1996)). The appellate court "does not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . ." Id. (quoting William Powers and Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Texas L.Rev. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the so-called "thirteenth juror" to review the factfinder's weighing of the evidence and disagree with the factfinder's determination. Watson, 204 S.W.3d at 416-17.

Gibson specifically asserts that the evidence is legally and factually insufficient on the element of his intoxication at the time of the accident. Gibson was convicted under Penal Code sections 49.07 (intoxication assault) and 49.08 (intoxication manslaughter). These statutes require the actor to have caused serious bodily injury or death, by accident or mistake, by operating a motor vehicle while intoxicated and by reason of that intoxication. See TEX. PEN.CODE ANN. §§ 49.07(a)(1), 49.08(a) (Vernon 2003). "Intoxication," as it pertains to this case, means "not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body; . . . ." Id. § 49.01(2)(A).

Gibson was driving a vehicle on a rural road (FM 1374) in Walker County. The front seat passenger was Gibson's friend Marshall Phillips; the backseat passenger was Amber Brown, Gibson's girlfriend who was six-months' pregnant. As Gibson neared his home around 1:00 p.m. (the responding DPS trooper received the dispatch on the accident around 1:20 p.m.), he failed to negotiate a curve. The vehicle became airborne, hit a tree, and ended up overturned and on fire on the roadside. Gibson did not suffer life-threatening injuries, and Phillips suffered a broken leg. Brown was thrown from the vehicle; she suffered severe head injuries, and her unborn baby died en route to the hospital. Brown died soon after arriving at the hospital.

Phillips testified that, in his opinion, Gibson was not intoxicated at the time of the accident. He said that Gibson had stopped using drugs about thirty-six hours before the accident—on the morning before the day of the accident, Gibson and Phillips had used marihuana, cocaine, and methamphetamine.² On the day of the accident, they had gone from Huntsville to Lovelady and were on their way back from Lovelady when the accident happened; Gibson pulled Phillips from the wrecked vehicle.³ Phillips did not notice any problems with Gibson's driving, and he did not think that Gibson was speeding; he was going sixty to seventy miles-per-hour, although Phillips admitted that Gibson "could have been" going faster. Phillips said that Gibson was familiar with the road, having driven it many times.

DPS trooper Steven Jeter responded to the accident scene at 1:30 p.m., finding the vehicle on fire off the road and Phillips and Brown lying near the wreck. Gibson was on his knees holding Brown's head. Gibson was in "shock and disarray" and told Jeter that he went off the road and he was speeding. In response to questioning about drug and alcohol use, Gibson admitted to Jeter that he had smoked marihuana that morning. Jeter detected no alcohol odor on Gibson's breath and could not recall if Gibson's speech was slurred. Several syringes and a can of beer were found at the accident scene. Based on his observations at the accident scene and his suspicion that Gibson was intoxicated, Jeter felt that a blood sample should be taken from Gibson to determine any intoxication. Jeter had another trooper and a nurse take a blood sample from Gibson with his consent at 5:15 p.m. in a Houston hospital.⁴ Jeter also did an accident reconstruction that revealed Gibson failed to take any evasive action (braking or steering) to prevent the accident and that estimated the vehicle to have been going approximately 91 m.p.h. at the time it left the roadway.

Eduardo Padilla, a DPS toxicologist/forensic scientist, testified about Gibson's blood sample analysis. Two drugs in the sample were diazepam and nordiazepam, commonly known as Valium and its metabolite, and which are from the benzodiazepine class of drugs that are used to treat anxiety and as sedatives. The amount of diazepam was insufficient to quantify, and the nordiazepam was .22 mg/liter. Padilla explained that the presence of those substances indicated that Gibson had taken Valium within fifty to ninety hours of the time the sample was taken. The level of nordiazepam was within a prescribed therapeutic dosage, but impairing effects such as drowsiness or dizziness were still possible because the intended effect of Valium is to act as a depressant on the central nervous system. Padilla said that even a therapeutic level of Valium can affect a person's motor skills and judgment. Xanax (or alprazolam), another benzodiazepine, was in Gibson's blood sample at a therapeutic level (.05 mg/liter), but it too acts as a depressant on the central nervous system and affects a person's motor skills and judgment; its sedative properties can impair a person's ability to drive by, for example, slowing down response time. A combination of Valium and Xanax causes an additive or greater effect that could further impair a person's ability to operate a vehicle. Finally, Padilla's initial drug screen revealed the possible presence of cocaine metabolite, but further analysis was not done because the remaining sample amount was insufficient. On cross-examination, Padilla said that he was describing the effects of Valium and Xanax on the general population and that their impairing effects on individuals can vary and are only possible, not a certainty, in part because a person can build up a tolerance to the drugs.

Cathy Erwin, another DPS forensic scientist, did further analysis of Gibson's blood sample, finding a positive for the presence of completely metabolized cocaine, meaning that Gibson had probably used cocaine within twenty-four hours, and possibly forty-eight hours, of the sample's taking. She also found methamphetamine, a central nervous system stimulant, in the amount of .33 mg/liter and opined that Gibson had taken it within seven to fifteen hours. A therapeutic level of methamphetamine, medically used for obesity, narcolepsy, and attention deficit disorder, would be from .02 to .05 mg/liter for obesity or ADD. Gibson had over six times the therapeutic level, an amount found with drug abuse. While methamphetamine is increasing and reaching its peak in the blood, the effect is euphoric and leads to overconfidence and affects judgment. As the level decreases, people generally become fatigued and extremely sleepy, which is accentuated by Valium, Xanax, and marihuana. Thus, Erwin said, methamphetamine users have impaired judgment and motor skills "on the way up" and "on the way down." Typical driving behaviors include wandering out of the lane, speeding, and driving off the road. Erwin reiterated a study's conclusion that any use of methamphetamine is likely to produce impairments that are inconsistent with safe driving. On cross-examination, Erwin admitted that she was describing the possible and potential effects of the drugs on the general population and that she could not say "a hundred percent" that Gibson was impaired; all she could say was that the drugs were in his blood and that those drugs have impairing effects.

Ted Marulas, a defense...