                               NUMBER 13-08-645-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


WES GOODE,                                                                       Appellant,

                                              v.

THE STATE OF TEXAS,                                                              Appellee.


                    On appeal from the 117th District Court
                          of Nueces County, Texas.


                           MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Benavides and Vela
                 Memorandum Opinion by Justice Vela

       Appellant, Wes Goode, was indicted for intoxication manslaughter, a second-degree

felony (Count 1) and intoxication assault, a third-degree felony (Count 2). See TEX . PENAL

CODE ANN . § 49.08(a), (b) (Vernon Supp. 2009), § 49.07(a), (c). With respect to Count 2,

the trial court instructed the jury on the lesser-included offense of driving while intoxicated

(DWI). See id., § 49.04 (Vernon 2003). The jury found appellant guilty of intoxication
manslaughter and DWI and assessed punishment at twenty years’ imprisonment, plus a

$10,000 fine, and 180 days in jail, plus a probated $2000 fine, respectively. The sentences

are to run concurrently. In one issue, appellant challenges the legal and factual sufficiency

of the evidence to prove his intoxication was a sole or concurrent cause of the accident that

caused Adam Ramos’ death. We affirm.

                                 I. FACTUAL BACKGROUND

A. State’s Evidence

        At approximately 2:15 a.m. on December 16, 2007, Adam Ramos crashed into the

middle barrier of the JFK Causeway, rendering his car inoperable. Aaron Ortiz and Ryan

Rippstein stopped to help him. After Ortiz and Ramos moved the car into the right-hand

lane, Ortiz walked back to his SUV, and Ramos stood on the shoulder of the road about

twenty to thirty feet north of his wrecked car. Rippstein stood about ten feet in front of his

own vehicle with its headlights and emergency lights turned on. He warned oncoming

motorists by waving at them and pointing to their left. About ten vehicles drove past him,

and most of them approached in the right-hand lane and then moved to the left lane,

passing the accident scene without hitting either Ramos or his wrecked car. As appellant’s

pickup truck approached in the right-hand lane, Rippstein waved at appellant with both

arms.    When the pickup truck passed Rippstein, he saw its brake lights come on.

According to Ortiz, who stood to the north of Ramos, appellant made no attempt to either

change lanes or slow down. Ortiz saw Ramos silhouetted in the pickup’s headlights and

“impacted by the wreckage.” Ramos died at the scene, and Ortiz jumped off the causeway

to avoid being hit. After the accident, appellant got out on the driver’s side of his pickup

and asked Rippstein, “‘Did anybody see what happened, this is my fault, . . . .’”


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       On cross-examination, Ortiz testified that the portion of the causeway where the

accident occurred was not well lit and that several lights were not working. However, he

stated that “with the use of headlights it would have been fine.”

       Officer Lonnie Jackson testified that when he arrived at the scene, appellant “was

impaired,” smelled of alcohol, had bloodshot, glassy eyes, and “was a little unsteady on his

feet.” He stated that appellant told him that “he had tried to avoid hitting the car, so he

swerved out of the lane and tried to avoid hitting the car, and he hit the car.” Officer

Jackson also testified that appellant “admitted he was [the] driver” and “said he had been

at Farrah’s, drinking some beer. . . .”     When the prosecutor asked him if appellant

“appear[ed] at that point to be possessing his normal, physical faculties” or his “normal,

mental faculties,” he answered, “No” to both questions. On cross-examination, when

defense counsel asked him, “And when Wes [appellant] told you he swerved to miss hitting

a car, he said he had hit the gentleman standing behind the car, didn’t he?”, he said, “Yes.”

       At 4:17 a.m. during the morning of the accident, a blood specimen was drawn from

appellant. Laboratory analysis of the blood specimen showed a 0.22 blood alcohol

concentration.

       Officer Gary Williams investigated the accident and testified that appellant’s pickup

hit Ramos and Ramos’s car. He did not see any skid marks from appellant’s pickup truck.

Skid marks would have shown that appellant had applied the brakes prior to the collision.

He believed that appellant caused the fatal accident.

B. Defense Evidence

       Martin Wright and Gloria Clements came upon the accident scene in separate

vehicles prior to appellant’s involvement. When Wright saw Ramos’s wrecked car in the

right-hand lane, he switched from the right-hand lane into the left-hand lane and went
                                           3
around Ramos’s car. He described the lighting at the scene as “[v]ery dim, not bright at

all.” Clements drove on the left-hand lane and saw that “most of [Ramos’s car] was on the

. . . right lane and partial was on the left.” She slowed down to forty miles per hour, drove

between the left lane and the shoulder, and went past the wrecked car. Neither Wright nor

Clements saw anyone standing on the side of the road waiving their arms.

       Appellant’s friend, Stephanie Caraway, met with him at Farrah’s where he began

drinking beer. She testified that when they left Farrah’s in separate vehicles, appellant did

not appear intoxicated. She followed behind him as he drove on the causeway. After

seeing his pickup truck swerve and its brake lights come on, she stopped behind him. She

saw Ramos on the ground in front of appellant’s pickup truck, but she testified that if

appellant would have hit something, she would have hit his pickup truck. Appellant, who

was crying and hysterical, told Caraway that he “didn’t see anybody. It all happened so

quick.” She did not see anybody standing by the side of the road waving their arms.

       Oren Moore, who retired from the Texas Department of Public Safety after thirty-one

years as a highway patrol captain, testified as an expert concerning accident

reconstruction. He reconstructed the fatal accident and estimated appellant’s speed at

forty-five miles per hour. He found no evidence of a collision between appellant’s pickup

truck and Ramos’s car. He found no skid marks at the scene but said this was not unusual

because the anti-lock braking system on vehicles is not designed to leave skid marks. On

cross-examination, he testified that a person with a 0.22 blood-alcohol concentration would

have an impaired reaction time.

C. State’s Rebuttal

       Ryan Rippstein testified that he did not see any vehicle following appellant’s pickup.

He stated that Ramos’s car was not in the middle of the road.
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                                       II. DISCUSSION

       By a single issue, appellant challenges the legal and factual sufficiency of the

evidence to prove his intoxication was a sole or concurrent cause of the accident that

caused Ramos’ death. Specifically, he argues that the evidence is insufficient to prove

causation, namely, that the accident was by reason of his intoxication.

A. Legal Sufficiency

       “When conducting a legal sufficiency review, a court must ask whether ‘any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt’—not whether ‘it believes that the evidence at trial established guilt beyond a

reasonable doubt.’” Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009) (quoting

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)) (emphasis in original). “In doing so, we

assess all of the evidence ‘in the light most favorable to the prosecution.’” Id. (quoting

Jackson, 443 U.S. at 319). “After giving proper deference to the fact finder’s role, we will

uphold the verdict unless a rational fact finder must have had reasonable doubt as to any

essential element.” Id. at 518.

1. Applicable Law

       Our review of a legal and factual sufficiency challenge should be examined under

the principles of review for a hypothetically correct jury charge. Grotti v. State, 273 S.W.3d

273, 280-81 (Tex. Crim. App. 2008). “‘Such a charge [is] one that accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State’s burden

of proof, or unnecessarily restrict the State’s theories of liability, and adequately describes

the particular offense for which the defendant was tried.’” Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.


                                              5
App. 1997)).

         The indictment in this case alleged, in relevant part, that appellant:

         did then and there operate a motor vehicle in a public place while intoxicated
         by not having the normal use of mental or physical faculties by reason of the
         introduction of alcohol, a controlled substance, a drug, or a dangerous drug
         into the body, or by having an alcohol concentration of at least .08, and did,
         by reason of such intoxication, cause the death of another, namely Adam
         Ramos by accident or mistake, to wit: BY DRIVING SAID MOTOR VEHICLE
         AND STRIKING ADAM RAMOS, . . . .

(emphasis in original). The statutory elements of intoxication manslaughter, as charged

in the indictment, are as follows: (1) appellant (2) operated a motor vehicle (3) in a public

place (4) while intoxicated1 by not having the normal use of his mental and physical

faculties by reason of the introduction of alcohol into his body (5) and as a result of the

intoxication, caused the death of an individual, namely, Adam Ramos (6) through accident

or mistake, to-wit: by driving said motor vehicle and striking Adam Ramos. See TEX .

PENAL CODE ANN . § 49.08; see Auldridge v. State, 228 S.W.3d 258, 260 (Tex. App.–Fort

Worth 2007, pet. ref’d) (setting forth elements of intoxication manslaughter). The State

must prove that a defendant’s intoxication, and not just her or her operation of a vehicle,

caused the fatal result. Glauser v. State, 66 S.W.3d 307, 313 (Tex. App.–Houston [1st

Dist.] 2000, pet. ref’d).

         In Texas, the law of criminal causation as it relates to the defendant’s conduct is as

follows: “A person is criminally responsible if the result would not have occurred but for his

conduct, operating either alone or concurrently with another cause, unless the concurrent

cause was clearly sufficient to produce the result and the conduct of the actor clearly


        1
          A person is considered to be “intoxicated” if that person: (1) does not have the norm al use of m ental
or physical faculties by reason of the introduction of alcohol, a controlled substance, a narcotic, a dangerous
drug, a com bination of any of those substances, or any other substance into the body; or (2) has an alcohol
concentration in his breath, blood, or urine of .08 or m ore. T EX . P EN AL C OD E A N N . §§ 49.01(2)(A), (B) (Vernon
2003).
                                                          6
insufficient.” TEX . PENAL CODE ANN . § 6.04(a) (Vernon 2003). By its language, the statute

has two prongs. Quintanilla v. State, 292 S.W.3d 230, 234 (Tex. App.–Austin 2009, pet.

ref’d). First, the general rule of causation—“A person is criminally responsible if the result

would not have occurred but for his conduct, operating either alone or concurrently with

another cause.” Id. Second, the exception to the rule when there is a concurrent

cause—“unless the concurrent cause was clearly sufficient to produce the result and the

conduct of the actor clearly insufficient.” Id. The concurrent-cause exception presupposes

that the result would not have occurred but for the actor’s conduct. Id. If the actor’s

conduct was not a cause of the result under the general rule, it could not be a concurrent

cause to which the exception might apply. Id.

       In other words, “but for” causation, as referred to in section 6.04(a), “must be

established between an accused’s conduct and the resulting harm.” Wooten v. State, 267

S.W.3d 289, 296 (Tex. App.–Houston [14th Dist.] 2008, pet. ref’d); see Robbins v. State,

717 S.W.2d 348, 351 (Tex. Crim. App. 1986). “When concurrent causes are present, the

‘but for’ requirement is satisfied when either: (1) the accused’s conduct is sufficient by

itself to have caused the harm; or (2) the accused’s conduct coupled with another cause

is sufficient to have caused the harm.” Wooten, 267 S.W.3d at 296. “If an additional

cause, other than an accused’s conduct is clearly sufficient by itself to produce the result,

the accused’s conduct by itself is clearly insufficient, then the accused cannot be

convicted.” Id. The State may rely on circumstantial evidence to establish a causal

connection. Id.

2. Analysis

       The evidence showed that appellant was driving his pickup truck on the JFK

Causeway at forty-five miles per hour at night. By his own admission, he had been drinking
                                             7
beer shortly before his involvement in the fatal accident. A blood test taken about two

hours post accident revealed his blood alcohol content to be 0.22, about two and one-half

times the amount that defines intoxication in the penal code. See TEX . PENAL CODE ANN .

§ 49.01(2), (B) (Vernon 2003). Even though appellant approached the accident scene in

the right-hand lane, which was blocked by Ramos’s car, Rippstein stood about ten feet in

front of his own vehicle with its headlights and emergency lights turned on. He warned

oncoming motorists by waving at them and pointing to their left. About ten vehicles drove

past him, and most of them approached in the right-hand lane and then moved to the left

lane. These motorists went past the accident scene without hitting either Ramos or his

wrecked car. When appellant approached in the right-hand lane, he did not change lanes.

He hit Ramos’s car, which in turn hit Ramos, who stood on the shoulder of the causeway

about twenty to thirty feet north of his wrecked car. After the accident, appellant smelled

of alcohol, had bloodshot, glassy eyes, and “was a little unsteady on his feet.” He was

impaired and did not have his normal physical faculties or his normal mental faculties. Dr.

Ray Fernandez, the medical examiner who performed Ramos’s autopsy, classified the

manner of death as an “accident,” and when asked by the prosecutor if someone with a

0.22 blood-alcohol concentration “is something that could contribute to an accident,” he

said, “Yes, it can.” He testified that a 0.22 blood-alcohol concentration would cause

impairment in judgment, reaction time, motor skills, and perception. He stated that

appellant’s 0.22 blood alcohol concentration would have been “close to a .26" blood

alcohol concentration two hours prior to the blood draw. He also testified that Ramos had

numerous injuries and listed his cause of death as blunt-neck trauma in which the neck is

separated from the skull. He stated that this injury is consistent with a pedestrian being hit

by an automobile, such as a truck.
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       The record does not show that Ramos’s conduct constituted an independent cause

of death unrelated to appellant’s conduct. Ortiz testified that after Ramos hit the middle

barrier, he did not appear physically injured. This testimony is substantiated by that of

Anselmo Garcia, a medical doctor, who went up to the causeway shortly after hearing

Ramos’s car hit the barrier. Dr. Garcia saw Ramos standing up and heard him speak.

Ortiz testified that after he and Ramos moved Ramos’s car into the right-hand lane, “[any]

vehicle in the left lane would have been able to go by without impacting the wreckage.”

While Ortiz walked to his SUV, Ramos remained on the shoulder of the road near the

railing barrier, where Ortiz had asked him to stay. Ortiz stated that a yellow line divided the

right-hand traffic lane from the shoulder of the road, and he considered the right-hand “lane

unpassable because the wreckage was still in it. . . .” He also testified that Ramos “was

two to three feet from that yellow line, so that if the lane had been passable and a vehicle

had driven by, [Ramos] would have been standing close enough that it would have passed

by his nose.”

       Dr. Garcia returned to the causeway shortly after the fatal accident and saw Ramos

laying on the pavement. He started CPR, but Ramos died at the scene. When the

prosecutor asked Dr. Garcia if he believed that from the injuries that Ramos “was dying

from were caused from the first accident or the second accident,” he said, “[F]rom what I

saw in minute one and I saw in minute one of the second accident, I would have said it was

from the second accident. I couldn’t tell you more specifically without any other tests.”

When the prosecutor asked Dr. Fernandez whether Ramos’ injuries were sustained

following the first accident, as opposed to the second accident, he said, “[s]ome of these

injuries may be from the first crash, some of them from the second crash. The injury where

the neck is separated from the . . . skull, the spinal injury, that is a fatal-type injury that

                                              9
once it happens, the person is not up and around.” He testified that Ramos had a blood

alcohol level of 0.27, which was not a fatal level of alcohol.

       Based on the evidence proffered by the State, a reasonable fact finder could have

found beyond a reasonable doubt that appellant operated a motor vehicle on a public road

while intoxicated, because he exhibited signs of intoxication and had a blood-alcohol

concentration of 0.08 or more, and he did not have the normal use of his physical and

mental faculties at the time. See TEX . PENAL CODE ANN . §§ 49.08(a), 49.01(2)(B).

Additionally, we hold that a fact finder reasonably could have found beyond a reasonable

doubt that Ramos’ blunt-neck trauma would not have occurred but for appellant’s

intoxication. See TEX . PENAL CODE ANN . § 6.04(a). Viewing the evidence in the light most

favorable to the verdict, Ramos’s conduct constituted at most a concurrent cause of his

death, not an alternative cause that resulted in his death independent of appellant’s

conduct.    See Barnette v. State, 709 S.W.2d 650, 651 (Tex. Crim. App. 1986)

(distinguishing between concurrent causation and alternative causation). Viewed in the

light most favorable to the verdict, the evidence supports a finding beyond a reasonable

doubt that appellant’s conduct was sufficient in itself to cause Ramos’s death and that

appellant’s conduct was not “clearly insufficient” to cause Ramos’ death within the meaning

of the concurrent-cause exception. See TEX . PENAL CODE ANN . § 6.04(a); Quintanilla, 292

S.W.3d at 234.

B. Factual Sufficiency

       In a factual-sufficiency review, the only question to be answered is: “Considering

all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a

reasonable doubt?” Grotti, 273 S.W.3d at 283. Evidence can be deemed factually

insufficient in two ways: (1) “the evidence supporting the conviction is ‘too weak’ to support

                                               10
the fact finder’s verdict”; or (2) “considering conflicting evidence, the fact finder’s verdict is

‘against the great weight and preponderance of the evidence.’” Laster, 275 S.W.3d at 518

(quoting Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006)). When a court

of appeals conducts a factual-sufficiency review, it must defer to the jury’s findings. Id.

The court of criminal appeals has “set out three ‘basic ground rules’ implementing this

standard.” Id. (quoting Watson, 204 S.W.3d at 414). First, the appellate court must

consider all of the evidence in a neutral light, as opposed to in a light most favorable to the

verdict. Id. Second, the appellate court “may only find the evidence factually insufficient

when necessary to ‘prevent manifest injustice.’” Id. (quoting Cain v. State, 958 S.W.2d

404, 407 (Tex. Crim. App. 1997)). Third, the appellate court must explain why the

evidence is too weak to support the verdict or why the conflicting evidence greatly weighs

against the verdict. Id. Although the verdict is afforded less deference during a factual-

sufficiency review, an appellate court is not free to “override the verdict simply because it

disagrees with it.” Id.

       The contrary evidence showed that: (1) appellant did not appear intoxicated when

he left the nightclub; (2) prior to the accident, appellant was neither speeding nor driving

erratically; (3) prior to the accident, Caraway saw his pickup truck swerve, and she and

Rippstein saw his brake lights come on; (4) appellant immediately stopped after the

collision; (5) appellant told Officer Jackson that Ramos was standing behind his wrecked

car; (6) Caraway testified that appellant told her that he did not see Ramos; (7) the portion

of the causeway where the accident occurred was not well lit; (8) no one saw Rippstein

standing on the side of the road, warning oncoming traffic; (9) appellant’s accident

reconstruction expert found no evidence of a collision between appellant’s pickup truck and

Ramos’s car and testified that the lack of skid marks at the scene was not unusual

                                               11
because a vehicle’s anti-lock braking system is not designed to leave skid marks; (10)

appellant cried after the accident; and (11) after Ramos hit the middle barrier, Ortiz noticed

he had slurred speech, smelled of alcohol, and did not respond to instructions.

        The contrary evidence does not greatly outweigh the proof that appellant’s

intoxication caused Ramos’ death. The jury was free to believe or disbelieve any portion

of the witness’s testimony, and we presume the jury resolved conflicts in favor of the

prevailing party. Wooten, 267 S.W.3d at 296. Even if other factors contributed in some

way to the fatal accident, these factors were not clearly sufficient to cause the fatality in this

case.

        Viewing all the evidence in a neutral light, we conclude that the evidence supporting

the conviction is not so weak that the fact finder’s determination is clearly wrong and

manifestly unjust, or that the verdict is against the great weight and preponderance of the

evidence. See Watson, 204 S.W.3d at 417.

        We hold that the evidence is both legally and factually sufficient to prove that

appellant’s intoxication was a sole or concurrent cause of the accident that caused Ramos’

death. Appellant’s sole issue is overruled.

                                        III. CONCLUSION

        We affirm the trial court’s judgment.



                                                     ROSE VELA
                                                     Justice


Do not publish.
TEX . R. APP. P. 47.2(b).

Delivered and filed the 25th
day of March, 2010.

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