Redmond v. State

• Decision Date: 08 November 2000
• Citation: 30 S.W.3d 692
• Parties: (Tex.App.-Beaumont 2000) CATHY CARMEN REDMOND, Appellant v. THE STATE OF TEXAS, Appellee NO. 09-99-294 CR NO. 09-99-295 CR
• Court: Texas Court of Appeals

Page 692

30 S.W.3d 692 (Tex.App.-Beaumont 2000)

CATHY CARMEN REDMOND, Appellant v. THE STATE OF TEXAS, Appellee

NO. 09-99-294 CR

NO. 09-99-295 CR

In The Court of Appeals Ninth District of Texas at Beaumont

Submitted October 12, 2000

Decided November 8, 2000

On Appeal from the 221st District Court Montgomery County, Texas Trial Cause Nos. 98-11-01296 and 98-11-01297

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Walker, C.J., Burgess and Stover, JJ.

OPINION

RONALD L. WALKER, Chief Justice.

A jury found Cathy Carmen Redmond guilty of Intoxication Manslaughter and Intoxication Assault, in a single trial on two indictments. The trial court assessed as punishment concurrent sentences of four years' confinement in the Texas Department of Criminal Justice, Institutional Division. Redmond raises ten issues on appeal.

The first two issues challenge the legal and factual sufficiency of the evidence to support the convictions. Redmond argues the State failed to prove she and not one of the other occupants was the driver of the vehicle. When reviewing the legal sufficiency of the evidence, we look at the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). When reviewing the factual sufficiency of the evidence, we view all the evidence impartially and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

Three people, all of them intoxicated, were in the appellant's truck at the time of the accident: Redmond, Chad Pearson, and Nick Gottardo¹. The truck crossed into the oncoming lane of traffic, colliding with a vehicle driven by Donna Beth Mendez². Daniel House and Timothy White came upon the scene within two minutes of the accident. One male, Gottardo, was up the road a short distance, laying on the side of the road. Another male, Pearson, was in front of the appellant's truck and walked around behind the appellant's pickup towards the driver's side. He said, "I really messed up this time." Redmond lay unconscious face down right next to the pickup by the driver's side door. Redmond regained consciousness and started screaming about her legs.

Ronald Riley, the paramedic on the scene, treated Redmond as the driver, but he did not recall why he believed she had been driving. Trooper George Holleway spoke with the appellant while she was in the ambulance. Asked what happened, Redmond responded, "I was going down the road." Holleway asked, "Are you telling me you were driving the vehicle?" Redmond nodded in the affirmative.

Pearson testified Redmond was driving when the accident occurred. At the hospital, Pearson told Trooper Holleway Redmond was the driver. Redmond testified she gave the keys to her truck to the men, but she could not recall who drove. She could not recall being in the ambulance or speaking with Trooper Holleway.

The pickup's steering column broke from the impact of the driver's body in the collision. Redmond's injuries included fluid around her lungs, a collapsed lung and multiple rib fractures, a broken tooth and nose, and fractures to the tibia and fibula of her right leg. These injuries were consistent with having been the driver. Her blood was recovered from the steering wheel. Neither Gottardo nor Pearson suffered chest injuries.

A rational trier of fact, having heard Pearson's testimony, Redmond's admission to Holleway, and the physical evidence, could have found Redmond was operating the vehicle at the time of the accident. Issue one is overruled.

There is evidence in the record supporting the appellant's claim that she was a passenger, including her testimony that she was not capable of driving at the time. The first eyewitness on the scene thought Pearson was the driver because Pearson stated he had really messed up. Defense counsel cross-examined Pearson on his grand jury testimony, in which he claimed he could not recall the accident. Redmond testified she did not sustain all of the injuries reflected in the medical records. She also raised the possibility that the records were not hers, because the name listed is Kathy Redman, not Cathy Redmond. Her date of birth is 11-1-62. The medical records list her age as 62 in one place and her date of birth as 1-1-00 in another. The accident occurred November 4, 1995; the medical records reflect the patient was treated from November 5 through 13 of 1995. Viewing all of the evidence impartially, we cannot conclude the evidence supporting the verdict is so weak, or the evidence preponderating against a verdict of guilt so overwhelming, that a verdict of guilty would be clearly wrong and unjust. Issue two is overruled.

Issue three asks, "Did the trial court err in failing to grant appellant's motion to suppress an unwarned custodial statement?" Holleway had not yet received any information from the other people involved in the accident when he entered the ambulance. Redmond was in the ambulance, wearing a cervical collar and an oxygen mask. Trooper Holleway asked her what happened, then asked her if she had been driving. The paramedic moved her oxygen mask so she could respond, and Holloway noted incoherent speech and odor indicative of intoxication. At that time, Redmond was not in his custody, nor was she under arrest. She was, however, strapped to a gurney and her legs were broken, so she was not in a position to walk away from the encounter. Holleway left the ambulance. At that point Redmond became a suspect. When Redmond's toxicology report indicated a blood alcohol level of 0.168, Holleway obtained a warrant for her arrest.

The appellant argues her admission that she was driving was a custodial statement suppressable for failure to comply with Article 38.22. See Tex. Code Crim. Proc. Ann. art. 38.22, § 3 (Vernon Pamph. 2000). The determination of custody must be made on a case-by-case basis after considering all of the objective circumstances. Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996). A person is in custody only if, under the circumstances, a reasonable person would believe that her freedom of movement was restrained to the degree associated with a formal arrest. Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 1528-30, 128 L.Ed.2d 293, 298-99 (1994). Relevant factors in determining whether a person was in custody at the time a statement is taken include whether there was at that time probable cause to make an arrest, whether the suspect was the focus of the investigation, and the objective manifestations of the officer's subjective belief. Dowthitt, 931 S.W.2d at 254. At least four general situations may constitute custody: (1) when the suspect is physically deprived of her freedom of action in any significant way, (2) when a law enforcement officer tells the suspect that she cannot leave, (3) when law enforcement officers create a situation that would lead a reasonable person to believe that her freedom of movement has been significantly restricted, and (4) when there is probable cause to arrest and law enforcement officers do not tell the suspect that she is free to leave. Id. at 255. The restriction upon freedom of movement must amount to the degree associated with an arrest as opposed to an investigative detention. Id.

In this case, the physical restrictions upon Redmond's movement were due to her injuries and medical treatment, and were not attributable to the actions of the persons investigating the accident. There is no indication the investigation focused on her before she made the statement. Trooper Holleway had not yet developed probable cause to arrest Redmond, and there is no indication she was transported under guard even after the interrogation ceased. As Redmond was not in custody when she was questioned, the trial court did not err in denying the appellant's motion to suppress the statements. Issue three is overruled.

Issue four inquires, "Did the trial court err in failing to permit Appellant to impeach the testimony of the witness Pearson about his bias?" Redmond sought to impeach Pearson with a probated misdemeanor conviction for driving while intoxicated in which a motion to revoke community supervision was pending, and a pending assault charge. Outside the presence of the jury, Pearson testified that his probation had been revoked but he had not yet been sentenced, and that the "assault charge" was an allegation in the revocation motion. According to Pearson, there was a plea bargain agreement to continue on probation.³ Defense counsel told the trial court he was not suggesting that the District Attorney's Office had made a deal with Pearson, but suggested that there might be the hope of favored treatment. The trial judge noted that counsel had not asked Pearson if he felt that there is some benefit to him, and that no connection had been drawn between the pending charge and Pearson's testimony. Defense counsel then elicited testimony from Pearson that he had not been offered anything by the State in return for his testimony before the court.

A defendant may elicit on cross-examination facts intended to demonstrate the witness's vulnerable relationship with the State. Carroll v. State, 916 S.W.2d 494, 500 (Tex. Crim. App. 1996). In order to impeach a witness with evidence of pending criminal actions, the proponent of the evidence must establish that the evidence is relevant. Carpenter v. State, 979 S.W.2d 633, 634 (Tex. Crim. App. 1998). The proponent must establish some causal connection or logical relationship between the pending charges and the witness's vulnerable relationship or potential bias or prejudice for the State, or testimony at trial. Id...