Opinion filed May 3, 2012




                                             In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-10-00135-CR
                                        __________

                            GABRIEL MEJIA PINA, Appellant

                                                V.

                              STATE OF TEXAS, Appellee


                            On Appeal from the 90th District Court

                                    Stephens County, Texas

                                 Trial Court Cause No. F32094


                             MEMORANDUM OPINION

       The jury convicted Gabriel Mejia Pina of intoxication manslaughter. See TEX. PENAL
CODE ANN. § 49.08(a) (West 2011). The jury also found that appellant used his motor vehicle as
a deadly weapon in the commission of the offense. See TEX. PENAL CODE ANN. § 1.07(a)(17)(B)
(West Supp. 2011). The trial court assessed punishment at confinement in the Institutional
Division of the Texas Department of Criminal Justice for a term of fifteen years and a fine of
$5,000. Appellant filed a motion for new trial, which the trial court denied. The trial court
certified appellant’s right to appeal, and this appeal ensued. We affirm.
       Appellant challenges the sufficiency of the evidence in four issues. First, appellant
argues that the evidence was factually insufficient to support his conviction because there was
insufficient evidence of intoxication at the time of the accident. Second, appellant contends that
the evidence was legally insufficient because there was insufficient evidence of a causal
connection between appellant’s intoxication, if he was intoxicated, and the fatal result. In his
third and fourth issues, appellant asserts that the evidence was factually and legally insufficient
to support a finding that he drove his car in such a way that in the manner of its use, or intended
use, the vehicle constituted a deadly weapon.
       We review a sufficiency of the evidence issue, regardless of whether it is denominated as
a legal or as a factual sufficiency claim, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010);
Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the
Jackson standard, we examine all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and any reasonable inferences from it, any rational
trier of fact could have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
       A person commits the offense of intoxication manslaughter if the person operates a motor
vehicle in a public place while intoxicated and, by reason of that intoxication, causes the death of
another by accident or mistake. Section 49.08(a). A person is intoxicated if the person does not
have the normal use of mental or physical faculties by reason of the introduction of alcohol into
the body or if the person has an alcohol concentration of 0.08 or more. Id. § 49.01(2).
       The evidence showed that, on June 20, 2008, at approximately 4:30 p.m., appellant was
involved in a motor vehicle crash that resulted in the death of his right rear passenger, Angel
Silva. The accident occurred at Highway 180 and FM 3099 in Breckenridge and involved
appellant’s blue Kia and a white, one-ton Dodge Ram driven by Stephen McCullough. The blue
Kia sustained the most damage, and the damage to the passenger side was extremely heavy.
       Appellant testified that, on the morning of June 20, he went to pick up his friend,
Armando Silva Jr., so that he could tattoo Armando’s arm. Appellant and Armando were very
close, like family. After appellant picked up Armando, they went to CVS to get gloves and then
went to Bill’s Conoco to get a twelve-pack of Bud Light. Appellant returned to his home with
Armando between 10:30 and 11:00 a.m. He ate rice and beans and then began setting up his

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tattoo equipment. After he finished setting up the equipment, appellant sketched out the tattoo
and then consumed a beer. Appellant shaved Armando’s arm, transferred the sketch of the tattoo
to Armando’s skin, and began working on the tattoo. The tattoo took three to three and one-half
hours to complete. During that time, appellant “probably had two more beers.”
       Angel Silva, Armando’s younger brother, arrived at appellant’s house during the tattoo
process. At approximately 3:30 p.m., appellant, Armando, and Angel left appellant’s house and
went to Armando’s house to pick up fishing poles. From Armando’s house, they went to another
friend’s house to see if he wanted to go fishing with them. Their friend was not at home, and
they drove around town for a while and then stopped at the L&L restaurant to see if some of their
other friends wanted to go fishing. They left L&L, went to the Movie Gallery, and then headed
to Skinny’s convenience store to get ice. Appellant was driving, Armando was in the front
passenger seat, and Angel was in the right rear passenger seat.
       As appellant approached Skinny’s, he merged into the turning lane, came to a complete
stop, checked his field of view, and then turned left to go into the Skinny’s parking lot.
Appellant testified that they were listening to music but were not carrying on a conversation.
Appellant saw a pickup coming before he turned, but he thought that the pickup was at a fair
distance and that it was safe for him to cross. The pickup hit appellant’s car, and the car started
spinning. When the car stopped spinning, Armando was pushed up against appellant and asking
him for help. Appellant unfastened Armando’s seat belt, and Armando crawled out of the car
through the window because the door was completely destroyed. Appellant saw Angel leaning
over to the right and knew that he was hurt, but appellant did not know to what degree he was
hurt. Appellant was able to remove his seat belt but could not get out of the car because his door
was stuck. Emergency personnel removed appellant from the car and transported him to the
hospital.
       Appellant testified that he did not fail to yield the right-of-way and that he had the right-
of-way because it was clear to go. He did not cause the death of his friend, Angel, and believed
that the cause of death was the severity of the impact.
       Armando Silva Jr. testified that he went to appellant’s house to get a tattoo.            At
approximately 10:00 a.m., appellant picked him up. They went to the store to get latex gloves
and a twelve-pack of Bud Light bottles and then went to appellant’s house. It took about three
and one-half hours for appellant to complete the tattoo. Appellant had three to four beers during

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this time. When the tattoo was completed, Armando wanted to go fishing. He and appellant left
appellant’s house and went back to Armando’s house to get fishing poles.      Angel, Armando’s
little brother, left Armando’s house with Armando and appellant. Appellant, Armando, and
Angel stopped at an Easy Mart to pick up some more beer. They forgot to get ice so they
decided to stop at Skinny’s. Armando testified that they got in the turning lane, stopped, and
then turned to go into Skinny’s. When they began turning, Armando saw a pickup coming at
them that looked like it was flying. He thought the pickup was coming fast and knew it was
going to hit them. Armando testified that he did not blame appellant for the accident, nor did he
believe that appellant did anything to cause Angel’s death. On cross-examination, Armando was
asked if he told the people in the ambulance that he did not remember what happened. He did
not deny making that statement to ambulance personnel.
       Stephen McCullough testified that he was in his company pickup heading eastbound on
Highway 180 on his way home from work when a car “came from the left out” in front of him.
McCullough was traveling in the left inside lane at approximately fifty miles per hour when the
accident occurred. He believed that the car was coming from FM 3099. He did not remember
whether he applied his brakes when he saw the car; however, there were skid marks from his
pickup indicating that he did apply his brakes before impact. McCullough noticed that the
passenger of the car had his arm lying on the door where the window goes up and down. When
he hit the car, his pickup spun around so that, when he stopped, he was facing westbound on
Highway 180. He got out of his pickup, saw what appeared to be a body part, and went to the
Skinny’s parking lot to get out of the highway and to throw up. McCullough never went to go
check on the driver of the other car because he was in shock. Although McCullough refused to
be transported to the hospital by ambulance, he did go to the hospital with his wife to do a
voluntary blood draw.
       McCullough testified that he had not consumed any alcoholic beverages that day, nor had
he used or taken any legal or illegal drugs. He smoked cigarettes when he drove, but was not
sure if he was smoking at the time of the accident. The beer box and beer bottles found on the
road after the collision did not come from his pickup. McCullough believed that the cause of the
wreck was appellant trying to beat him across the highway to get to FM 3099; he was “trying to
shoot the gap.” When asked if he knew for sure that was what happened, he responded, “No,
ma’am, I do not.” McCullough gave a written statement to the police regarding the accident,

                                               4
which was admitted into evidence. He was asked during cross-examination to read the following
portion to the jury: “As I approached the Skinny’s across from Wal-Mart, I glanced over in the
parking lot. When I looked up there was a little blue car right there. As soon as I seen the car,
we collided.” McCullough was asked if he accidentally led to Angel’s death to which he
responded, “Accidentally, yes, I guess I did.”
       David Easley, Captain of the Breckenridge Fire Department, testified that he was
dispatched to a motor vehicle accident at approximately 4:30 p.m. When Captain Easley arrived
on the scene, appellant was still in the driver’s seat of the Kia. The front seat passenger,
Armando, was already out of the car. Captain Easley stuck his head into the car to speak with
appellant and could smell alcohol in the car; however, Captain Easley did not know whether
alcohol was on the appellant’s breath. The smell was very noticeable. Appellant told Captain
Easley that he had been fishing at the rocks. Captain Easley observed that appellant had a cut on
his head and was disoriented. He observed one or two beer bottles on the floorboard and a
cooler and a twelve-pack of bottled beer lying in the road. As to whether alcohol could have
been a factor in the accident, Captain Easley testified, “You know, the accident was a judgment
call and, you know, alcohol can affect judgment.”
       While Captain Easley was talking with appellant, he was alerted that one of the other
firemen could not get a pulse on the passenger in the backseat. Captain Easley went around to
the right rear passenger seat to try and get a pulse, but was unsuccessful. Angel was pronounced
dead on the scene. Angel’s right arm and right leg were found in the highway. One of his
fingers was also found in the bumper of the Dodge pickup. Armando and appellant were
transported to the hospital by ambulance. Captain Easley had no contact with the driver of the
Dodge pickup.
       Captain Easley testified that there had been many accidents resulting in injuries at the
intersection of Highway 180 and FM 3099. He believed that there should be a light at the
intersection or that the speed limit should be reduced. He had approached the city about his
concerns. Captain Easley agreed that there was a gradual incline on Highway 180 traveling
westbound out of town and agreed that it was possible that a person driving a vehicle eastbound
on Highway 180 uphill and into town would not have a clear view of someone turning left onto
FM 3099 from Highway 180 until the person was almost to the intersection. Captain Easley
testified that he did not believe a crime happened but, rather, that bad judgment happened.

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       Dr. Marc Krouse, the Chief Deputy Medical Examiner of Tarrant County, testified that
Angel’s cause of death was massive blunt force trauma to the head, chest, abdomen, pelvis, and
extremities as a result of a motor vehicle collision. He described the injuries as the type that you
would see if a person fell seventy to ninety feet onto concrete.
       Officer Bruce Hay, with the Breckenridge Police Department, testified that he was the
lead officer in the case. When he arrived, Armando was kneeling down behind the Kia. Several
people were around him and trying to help him because he was bleeding. Officer Hay went
around to the driver’s side of the vehicle and spoke with appellant. Appellant was trapped in the
driver’s seat and was unsure of where he was or what had happened. Officer Hay smelled the
odor of an alcoholic beverage. He did not perform any field sobriety tests on appellant because
appellant had been involved in a major car accident and because it was unknown what type of
injuries he had. Officer Hay saw some empty beer bottles inside the vehicle as well as a bottle
lying on the ground next to the right front passenger door. He testified that it was possible that
the smell of alcohol came from the two bottles found on the passenger side of the car. The
passenger in the backseat was not moving, and Officer Hay determined that he was deceased.
       Officer Hay and Police Chief Larry Mahan took photos of the scene. When Officer Hay
left the scene, he went to the hospital and took possession of the two blood draws that were
collected from appellant and McCullough. He took the blood draws to the Breckenridge Police
Department and placed them into evidence. On the following Monday, he released the blood
samples to Chief Mahan so that Chief Mahan could take the samples to the Tarrant County
Medical Examiner’s office to be analyzed. When the Breckenridge Police Department personnel
received the results from the Tarrant County Medical Examiner’s office, they filed a case report
with the Breckenridge district attorney in which they alleged that appellant had committed
intoxication manslaughter.
       Officer Hay went back to the scene on June 26th to assist Sergeant David Foster, with the
Texas Department of Public Safety, in taking laser measurements. Officer Hay testified that,
based on his training and his observations at the scene, the wreck was caused because the blue
Kia failed to yield the right-of-way to the Dodge pickup. He did not know for sure which
direction the Kia was traveling prior to the accident, but could not think of any scenario where
the accident would have occurred in the manner that it did if appellant had not failed to yield.
There was no evidence of appellant weaving or speeding up and slowing down prior to the

                                                 6
accident. Officer Hay agreed that there was a slight incline on Highway 180 west of the
FM 3099 intersection and that there was possibly a blocked view of the approaching FM 3099
intersection as one travels up the incline.
       Officer Hay acknowledged that he made mistakes in his investigation of this case. He
took a statement from McCullough but never talked to appellant after he left the accident scene.
He attempted to make contact with Armando but was unable to do so. Officer Hay included one
witness in his incident report, which was the only witness that he was made aware of; however,
he never spoke with her during his investigation of the accident. He did not write down anyone’s
name or telephone number out of the possibly fifty people that came out to the scene. Officer
Hay did not inventory the Kia for any evidence of intoxication, nor did he inventory the cooler
found on the highway.
       Ronnie Cagle, the administrative laboratory director at Stephens Memorial Hospital,
testified that appellant’s blood alcohol concentration was 0.101, two hundredths of a point
greater than the legal limit. McCullough’s blood alcohol concentration was 0.002, which did not
necessarily mean that he had any alcohol in his system.
       Bob Browder, a senior forensic scientist with the Texas Department of Public Safety,
testified that, if a person is legally intoxicated—having an alcohol concentration higher than the
statutory limit of .08—that person does not have the normal use of his mental or physical
faculties in order to safely operate a motor vehicle. Browder testified that alcohol impairs
judgment, increases risk taking, affects a person’s ability to judge distances, affects a person’s
vision, slows down a person’s reactions, and affects how a person processes information coming
into the person’s eyes and ears.        As to his opinion on what appellant’s blood alcohol
concentration was at the time of the accident, Browder testified that the level would have been
the same, higher, or lower than the level at the time of the blood draw depending on his height
and weight and the type and amount of alcohol and food consumed. Because he did not have
that information, he could not make a determination in this case as to what appellant’s blood
alcohol level was at the time of the accident. The blood sample, in which appellant’s blood
alcohol concentration was 0.101, was drawn approximately forty-five minutes to one hour after
the accident. Appellant’s blood alcohol concentration was lower when a subsequent vial of
blood was drawn and tested.



                                                7
        Sergeant David Foster, with the Texas Department of Public Safety, was a member of the
district’s crash reconstruction team in June 2008. He went to the accident scene on June 26 to do
a diagram of the scene with a “Total Station.” Sergeant Foster testified that he would have listed
intoxication as the primary factor of the accident because intoxication was the cause of the crash.
He also would have listed failure to yield right-of-way as a factor. Sergeant Foster was familiar
with the intersection, and despite the incline on Highway 180, there were no visibility problems.
Based on his training and experience, he believed that appellant’s intoxication, failure to yield
right-of-way, and turning in front of the Dodge pickup caused Angel’s death. He also believed
that, based on the legal definition of “deadly weapon,” the blue Kia was used as a deadly
weapon. He did not believe that McCullough was speeding and testified that speed was not a
factor in this collision.
        Trooper Richard Grant Atkinson, with the Texas Department of Public Safety, was also a
member of the district’s crash reconstruction team in June 2008. He went to the scene on
June 20, the day of the accident, to mark the skid marks and physical evidence left on the
roadway. Trooper Atkinson later went back to the accident scene and determined that there were
no visibility restrictions at the intersection either traveling eastbound up the incline on
Highway 180 or traveling westbound looking down the incline on Highway 180. Trooper
Atkinson testified that, in his opinion, the accident was due to appellant’s impaired judgment
caused by intoxication and appellant’s failure to yield the right-of-way in making a turn.
        Kyle Morrison testified that he had seen a white pickup speeding on Highway 180 on
several occasions, but he was unsure as to whether the white pickup he saw was the same pickup
that was involved in the accident on June 20. He was concerned about the speeding pickup and
made a complaint to the Breckenridge Police Department a couple of weeks before the accident.
        In his first issue, appellant argues that there was no evidence of intoxication at the time of
the accident. Appellant testified that he had three beers on the day of the accident. One before
he started the tattoo, and two during the tattoo. Approximately forty-five minutes to one hour
after the accident, appellant’s blood was drawn and tested. Appellant’s blood alcohol level was
0.101, greater than the 0.08 legal limit. Although Browder testified that he could not determine
what appellant’s blood alcohol level was at the time of the accident, the members of the jury
were entitled to make any reasonable inferences, including that appellant’s blood alcohol
concentration was the same or higher at the time of the accident. In addition, Captain Easley and

                                                  8
Officer Hay testified that they could smell alcohol in the Kia when they leaned in to talk to
appellant while he was trapped in the driver’s seat. Having reviewed the evidence in the light
most favorable to the verdict, we hold that any rational trier of fact could have found beyond a
reasonable doubt that appellant was intoxicated at the time of the accident.          We overrule
appellant’s first issue.
        Appellant asserts in his second issue that there was insufficient evidence of a causal
connection between his intoxication and Angel’s death.          In order to prove that a person
committed the offense of intoxication manslaughter, it is not enough to prove that the operation
of a vehicle by an intoxicated person caused the death of an individual. Rather, the State must
prove that the intoxication caused the death. Daniel v. State, 577 S.W.2d 231, 233 (Tex. Crim.
App. 1979) (quoting Long v. State, 214 S.W.2d 303, 304 (Tex. Crim. App. 1948)). “The death
must be the result of the intoxication and proof must be made and submitted to the jury of that
thing which worked a causal connection between the intoxication and the death.” Id. Here,
Trooper Atkinson testified that, in his opinion, the accident was due to appellant’s impaired
judgment caused by intoxication in which he failed to yield the right-of-way in making a turn.
Sergeant Foster testified that he believed appellant’s intoxication, failure to yield the right-of-
way, and turning in front of the Dodge pickup caused Angel’s death. In addition, Browder
testified that, if a person has an alcohol concentration higher than the legal limit of 0.08, that
person does not have the normal use of his mental or physical faculties in order to safely operate
a motor vehicle because alcohol impairs judgment, affects a person’s ability to judge distances,
and affects how a person processes information coming into the person’s eyes and ears. Having
reviewed the evidence in the light most favorable to the verdict, we hold that any rational trier of
fact could have found beyond a reasonable doubt that appellant’s intoxication caused Angel’s
death. We overrule appellant’s second issue.
        In his third and fourth issues, appellant challenges the sufficiency of the evidence to
support the deadly weapon finding. Specifically, appellant asserts that there was no evidence of
how the car was driven prior to the accident and, thus, that there was no evidence appellant used
the car as a deadly weapon. A vehicle is not a deadly weapon per se, but can be found to be a
deadly weapon if it is used in a manner that is capable of causing death or serious bodily injury.
See Section 1.07(a)(17)(B). To determine whether a motor vehicle was used as a deadly weapon,
we first evaluate the manner in which appellant used the vehicle. Sierra v. State, 280 S.W.3d

                                                 9
250, 255 (Tex. Crim. App. 2009). Two of the factors we consider in this determination are
whether there was evidence that appellant was driving dangerously or recklessly. Id. Second,
we evaluate whether the vehicle was capable of causing death or serious bodily injury. Id.
       Here, the evidence showed that appellant was intoxicated, failed to yield the right-of-
way, and turned in front of McCullough’s pickup, which was traveling fifty miles per hour down
the highway.    Thus, there was sufficient evidence that appellant was driving his car in a
dangerous or reckless manner. As to whether the vehicle was capable of causing death or serious
bodily injury, the evidence showed that not only was the vehicle capable of causing death but
that it did in fact cause Angel’s death. Therefore, there was sufficient evidence that the vehicle
was capable of causing death or serious bodily injury. Furthermore, Sergeant Foster specifically
testified that he believed the blue Kia was used as a deadly weapon. Having reviewed the
evidence in the light most favorable to the verdict, we hold that any rational trier of fact could
have found beyond a reasonable doubt that appellant used his blue Kia in a manner capable of
causing death or serious bodily injury and, thus, used his blue Kia as a deadly weapon. We
overrule appellant’s third and fourth issues.
       The judgment of the trial court is affirmed.




                                                            JIM R. WRIGHT
                                                            CHIEF JUSTICE


May 3, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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