Kennemur v. State

• Decision Date: 08 May 2008
• Docket Number: No. 07-07-0096-CR.,07-07-0096-CR.
• Citation: 280 S.W.3d 305
• Parties: Kevin Dwayne KENNEMUR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

280 S.W.3d 305

Kevin Dwayne KENNEMUR, Appellant, v. The STATE of Texas, Appellee.

No. 07-07-0096-CR.

Court of Appeals of Texas, Amarillo.

May 8, 2008.

Rehearing Overruled June 17, 2008.

Discretionary Review Refused November 5, 2008.

Paul E. Mansur, Denver City, TX, for Appellant.

Richard Clark, Criminal District Atty., Plains, TX, for The State.

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

OPINION

PATRICK A. PIRTLE, Justice.

Appellant, Kevin Dwayne Kennemur, was convicted by a jury of intoxication manslaughter and sentenced to forty years confinement. By three issues, Appellant contends the evidence at trial was both (1) legally and (2) factually insufficient to support a conviction for intoxication manslaughter; and (3) the trial court erred in denying his motion to suppress evidence. We affirm.

Background

Sunday evening, August 8, 2005, Appellant and Lana McLaurin drove to the Border Bar located in New Mexico. Because the Border Bar would not accept credit cards, they traveled to the Western Bar located approximately five miles west of the Texas-New Mexico state line on U.S. Highway 380. En route, they were drinking from a bottle of wine they purchased at the Border Bar.

They entered the Western Bar at approximately 10:20 p.m.¹ Michelle Rubio was tending bar and preparing to close at 11:00 p.m. After learning the Western Bar accepted credit cards, McLaurin ordered two Colorado Bulldogs and obtained quarters for the jukebox and pool table. After Appellant finished his drink, he and McLaurin began arguing. McLaurin ordered another round of Colorado Bulldogs and took the drink to Appellant. Rubio went to the kitchen to clean and could overhear the two continuing to argue. There were no other patrons in the bar.

Rubio returned from the kitchen and asked if there was a problem. Appellant responded it was none of her "damn" business and started cursing and screaming at her. Rubio told them, if they continued arguing, they would have to leave. Appellant told Rubio to leave them alone and they would handle matters themselves. Rubio told them to keep it down and she returned to the kitchen.

After Appellant finished his drink, McLaurin went to the kitchen to order a third round of drinks. When Rubio returned to the bar, Appellant was standing behind the bar with a bottle of whiskey in hand. When Rubio confronted him, he indicated he was taking the bottle because she had his credit card. After arguing back and forth with Rubio, he put the bottle back. Appellant continued to argue with Rubio while McLaurin tried to calm him down. Rubio told Appellant she was going to tab them out and they could leave. When she went to the credit card machine, Rubio noticed her tip jar was empty. She asked Appellant to put her tip money back, and he denied having the money. After arguing with Rubio further, Appellant returned the money. At that time, Appellant cursed and threatened to strike Rubio. Appellant also cursed McLaurin. Rubio was frightened and upset. At trial she testified she had never encountered a situation like that before.

After Rubio totaled up their tab and returned his credit card, Appellant offered to take McLaurin home and left for his vehicle. Rubio was concerned for McLaurin's safety and pleaded with McLaurin to allow her to take her home. While the two stood in the doorway of the bar, Appellant revved his Camaro's engine repeatedly. McLaurin left the bar and entered the vehicle from the passenger side. Before she could close her vehicle door, Appellant put the Camaro in reverse and sped so fast he backed into the barrow ditch in front of the bar.

When Appellant's vehicle came out of the ditch, the Camaro fish-tailed sideways across the gravel lot, ran a stop sign, and entered the highway in the wrong lane facing an oncoming truck. Rubio was concerned there would be a wreck, however, an accident was averted. The time was 10:50 p.m.

The following morning at 5:45 a.m., Appellant woke Brad Palmer at his residence on U.S. 380, commonly known as State Line Road. Appellant told Palmer that he and his girlfriend had been involved in an automobile accident. He indicated he had come from the Western Bar but wasn't sure where the accident had occurred. He stated that he had been walking dirt roads for some time looking for help. Palmer called 911. At trial, Palmer testified his house was located approximately thirteen miles from the Western Bar, his house was not the closest to the scene of the accident, and the speed limit on State Line Road was seventy miles per hour.

Mark Traweek, an Emergency Medical Technician, responded to Palmer's call. He arrived first at the scene of the accident, approximately 1.1 miles from Palmer's residence, and pronounced McLaurin dead on the scene. He then went to Palmer's house. Traweek drew three tubes of blood from Appellant at approximately 6:30 a.m. He suspected alcohol was involved in the accident because Appellant smelled of alcohol and appeared to be in an "altered level of consciousness." Traweek described Appellant as very agitated, not normal, distraught, and crying. He further testified that he believed Appellant's behavior indicated there was "something that caused him to be that way."

At 7:05 a.m., Appellant was admitted to the Emergency Room at Yoakum County Hospital. When he was admitted, he appeared confused, was crying, smelled of alcohol, and had slurred speech. Appellant told a nurse that he remembered waking up on the ground and walking several miles to get help. He did not remember the accident or how long he had been unconscious, but recalled McLaurin was driving. At 7:30 a.m., he was seen by Dr. Amir Menon who ordered blood tests to determine his blood alcohol content (BAC). Menon noted that Appellant smelled as if he was probably drunk. The blood drawn by Traweek at 6:30 a.m. was tested and yielded a serum BAC of 114, which converts to a whole BAC of .098, or .018 above the legal limit of .08.²

Menon testified 114 was high, with a normal BAC being between 0 to 100. He further testified that a normal person's BAC should drop on the average 20 to 30 points every couple of hours. He stated that this was the standard used by internists in the emergency room for determining how long a patient under the influence of alcohol should be held before being released. Thus, he testified, if a person has a serum BAC level of 114 at a particular point in time, a couple of hours earlier it might have been 200 or 150. He opined that Appellant's BAC may have been as high as 184 to 194 at the time of the accident. Based upon Appellant's history and elevated liver enzyme level, Menon believed Appellant had an alcohol appetite and was probably a chronic drinker.

At 10:03 a.m., DPS Trooper Mark Matlock visited Appellant and obtained a voluntary statement. Appellant's statement indicated that McLaurin was driving at the time of the accident. Appellant told Matlock that, when they left the Western Bar, he laid his seat back to rest and fell asleep in the passenger seat. When he woke up, the vehicle was upside down. He shook McLaurin and she would not wake up. He pulled her from the vehicle and went for help. He could not see well because he did not have his glasses and searched a long time before finding Palmer's house. Matlock testified Appellant's breath and person emanated a strong odor of alcoholic beverage and his eyes were red and bloodshot. Matlock had a mandatory blood draw taken that subsequently yielded a BAC of .03.

Sheila Barrientes, an acquaintance of Appellant, also visited him in the Emergency Room between 11:00 a.m. to 12:00 p.m. She testified Appellant smelled very strongly of alcoholic beverage, that it was "horrendous" and like "nothing that I had ever encountered."

On August 23, 2005, Matlock and DPS Sergeant Mike McClure confronted Appellant with Rubio's statement that he was driving when the couple left the Western Bar. Appellant indicated it was possible he was driving when they left the bar because he remembered that they later stopped for McLaurin to urinate. Appellant further recalled that it was at that point they switched seats and McLaurin began driving.

At trial, Matlock was permitted to give opinion testimony regarding intoxication and accident reconstruction. Matlock's investigation indicated the Camaro was traveling at a minimum of 113 miles per hour when the vehicle skidded into the oncoming lane of traffic and turned completely sideways before traveling backwards. At that point, the passenger side of the vehicle dug into a narrow berm in the ditch opposite its original lane of traffic and started to roll. The Camaro then inverted with the rear passenger side hitting a utility pole two to three feet above the ground. The passenger side of the vehicle sustained severe damage, while damage to the driver's side was minimal.

Matlock opined that the accident occurred at 11:30 p.m., the approximate time necessary to drive from the Western Bar to the crash site. He also opined McLaurin was in the passenger seat at the time of the accident because she was found on the ground just outside the passenger side and the massive damage to the passenger side of the vehicle was consistent with her injuries. He indicated Appellant's injuries were minimal consistent with the damage to the driver's side. Furthermore, Matlock testified Appellant's version of what occurred post-accident was inconsistent with the crash site, i.e. Appellant could not have exited through the passenger door because it was jammed shut and there was no evidence McLaurin's body had been pulled from the vehicle as he had described. Furthermore, the passenger seat was in an upright position-not a reclined position as described by Appellant. Matlock further opined that the cause of the accident was Appellant's intoxicated state, combined with vehicular speed. He based his opinion upon Appellant's highly agitated state leaving the Western Bar after drinking, his BAC of .098...