                                     NO. 12-07-00331-CR

                            IN THE COURT OF APPEALS

            TWELFTH COURT OF APPEALS DISTRICT

                                         TYLER, TEXAS

CHESTER RAY MORRIS,                                     §    APPEAL FROM THE 241ST
APPELLANT

V.                                                      §    JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,
APPELLEE                                                §    SMITH COUNTY, TEXAS

                                       MEMORANDUM OPINION
        Chester Ray Morris appeals his conviction of intoxication manslaughter, for which he was
sentenced to imprisonment for fifteen years. In three issues, Appellant argues that the evidence was
legally and factually insufficient to support his conviction and that his sentence amounted to cruel
and unusual punishment. We affirm.

                                                BACKGROUND
        Appellant was charged by indictment with intoxication manslaughter and pleaded “not
guilty.” The matter proceeded to a jury trial.
        The evidence presented at trial indicated that, at approximately 12:30 a.m. on September 25,
2006, Appellant and Sidney Kizzie departed by motor vehicle from the El Greco Club in Kilgore,
Texas. The two men had been drinking alcohol at the club. Appellant was the driver of the 1994
Ford Ranger pickup truck, while Kizzie rode in the truck’s front passenger seat. Appellant drove
the truck westbound on State Highway 311 toward Tyler, Texas. At the same time, Court Campbell
was driving eastbound on Highway 31 toward Kilgore. Campbell testified that he saw Appellant’s



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            The record reflects that the portion of State Highway 31 on which Appellant and Campbell were driving
comprises only two lanes.
headlights approaching him in the same lane of traffic as he was traveling. Campbell further testified
that because there was a ditch on his side of the highway, he was forced to cross into the westbound
lane in an attempt to avoid Appellant’s vehicle. Campbell stated that after he entered the westbound
lane, Appellant drove his vehicle into that same lane and struck Campbell’s vehicle.
         Department of Public Safety (“DPS”) Trooper James Godwin served as the lead investigator
of the accident. Godwin testified that he noticed a strong smell of alcohol on Appellant’s breath and
that Appellant’s eyes were red and bloodshot. Godwin further discovered Kizzie, who was deceased,
in Appellant’s truck. Godwin stated that Appellant’s truck left skid marks from the westbound lane
leading toward the eastbound lane, where they ended at the point of impact. Godwin further stated
that both Appellant’s vehicle and Campbell’s vehicle were at an angle when they collided. The
impact occurred on the passenger side of each vehicle. Godwin testified that the forensic evidence
he gathered from the site of the accident indicated that Appellant’s vehicle had been traveling in the
wrong lane. Godwin further testified that an intoxicated driver does not possess his complete mental
faculties and exercises poor judgment when driving a vehicle. Godwin stated that an impaired driver
does not have the ability to recognize dangerous situations in which he has placed himself. Godwin
further stated that his investigation of the accident led him to conclude that Appellant’s intoxication
caused Kizzie’s death.
         Due to his complaints of “heart pain,” Appellant was transported by ambulance to East Texas
Medical Center in Tyler. Cely Jordan, a registered nurse at East Texas Medical Center, testified that
she treated Appellant for chest pain and drew a blood sample. Dennis Keith Pridgen, the drug
section supervisor for the Tyler DPS Crime Lab, testified that the blood specimen drawn from
Appellant indicated that Appellant’s blood-alcohol level was over twice the legal limit.2
             Ultimately, the jury found Appellant “guilty” as charged and, following a trial on
punishment, assessed his punishment at imprisonment for fifteen years. The trial court sentenced
Appellant accordingly, and this appeal followed.



                                          EVIDENTIARY SUFFICIENCY


         2
              Pridgen testified that the blood specimen drawn from Appellant indicated that Appellant had 0.17 grams
of alcohol per 100 milliliters in his bloodstream.

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       In his first and second issues, Appellant contends that the evidence was both legally and
factually insufficient to support his conviction for intoxication manslaughter.
Standard of Review
       The Due Process Clause of the Fourteenth Amendment requires that evidence be legally
sufficient to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct.
2781, 2786–87, 61 L. Ed. 2d 560 (1979). Evidence is legally sufficient when an appellate court,
viewing the evidence in the light most favorable to the judgment, determines that a rational trier of
fact could have found the essential elements of the offense beyond a reasonable doubt. Johnson v.
State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Jackson, 443 U.S. at 319, 99 S. Ct. at
2789). We examine the evidence in the light most favorable to the verdict. See Jackson, 443 U.S.
at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will
result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42,
102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
       The sufficiency of the evidence is measured against the offense as defined by a hypothetically
correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a
charge would include 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 is tried.” Id.
       In addition to the guarantees provided by the Fourteenth Amendment, in the direct appeal
of a criminal case, the courts of appeals have the statutory and constitutional authority to entertain
a claim of factual insufficiency. See Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).
In conducting a review for factual sufficiency, we must first assume that the evidence is legally
sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App.
1996). We then consider all of the evidence weighed by the trial court that tends to prove the
existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that
fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are
authorized to disagree with the trial court’s determination, even if probative evidence exists that
supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude
upon the trial court’s role as the sole judge of the weight and credibility of witness testimony.
Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the trial court’s verdict on such

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matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–
El Paso 1996, pet. ref’d). Ultimately, we must ask whether a neutral review of all the evidence, both
for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine
our confidence in the trial court’s determination, or the proof of guilt, although adequate if taken
alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App.
2000); see also Watson, 204 S.W.3d at 417(evidence is factually insufficient only when reviewing
court objectively concludes that the great weight and preponderance of the evidence contradicts the
verdict). A successful factual sufficiency challenge will result in a reversal of the conviction
challenged and remand of the case for a new trial. See id. at 414.
        A person commits the offense of intoxication manslaughter if he (1) operates a motor vehicle
in a public place, (2) is intoxicated, and (3) by reason of that intoxication, causes the death of another
by accident or mistake. See TEX . PENAL CODE ANN . § 49.08(a) (Vernon Supp. 2008). Evidence that
the defendant was intoxicated at the time and proof by the State that there was a death will not, in
that abstract form, support a conviction. See Daniel v. State, 577 S.W.2d 231, 233-34 (Tex. Crim.
App. 1979). Rather, the evidence must support that the death resulted from the defendant’s
intoxication, and proof must be made concerning the causal connection between the defendant’s
intoxication and the resulting death. Id. 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
insufficient. TEX . PENAL CODE ANN . § 6.04(a) (Vernon 2003). The existence or nonexistence of
such a causal connection is normally a question for the jury. See Hale v. State, 194 S.W.3d 39, 42
(Tex. App.–Texarkana 2006, no pet.).
Legal Sufficiency
        In the instant case, Appellant does not dispute the evidence that he was intoxicated at the
time of the collision. Rather, Appellant contends that the evidence conclusively supports that he
was in the westbound lane, his proper lane of travel, when the collision occurred. Appellant further
contends that the undisputed evidence demonstrates that Campbell was not in his correct lane of
travel at the time of impact and, thus, Campbell caused the collision.
        Campbell testified that he saw Appellant’s headlights approaching him in the same lane of
traffic as he was traveling. Campbell further testified that because there was a ditch on his side of


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the highway, he was forced to cross into the westbound lane in an attempt to avoid Appellant’s
vehicle. Campbell stated that after he entered the westbound lane, Appellant drove his vehicle into
that same lane and struck Campbell’s vehicle. Campbell’s testimony was supported by Godwin’s
testimony. Further, photographs taken at the scene showed the skid marks left by Appellant’s truck
beginning in the westbound lane, leading toward the eastbound lane, and ending at the point of
impact between Appellant’s and Campbell’s vehicles. The record further reflects that Appellant had
a blood-alcohol concentration of 0.17, more than twice the concentration required to be legally
intoxicated in Texas. See TEX . PENAL CODE ANN . § 49.01(2)(B) (Vernon 2003). Moreover, Godwin
testified that when he arrived at the scene, Appellant smelled strongly of alcohol and had red,
bloodshot eyes. Trooper Godwin testified that Appellant’s intoxication impaired his mental capacity
and caused the accident.
       Based on our review of the record, we conclude that the jury could have reasonably found
beyond a reasonable doubt that Appellant caused Kizzie’s death. See TEX . PENAL CODE ANN .
§ 49.08(a). Further, the fact finder could have found that “but for” Appellant’s intoxication, Kizzie’s
death would not have occurred. TEX . PENAL CODE ANN . §§ 6.04(a), 49.08(a); Garcia v. State, 112
S.W.3d 839, 852 (Tex. App.–Houston [14th Dist.] 2003, no pet.). Therefore, we hold that the
evidence is legally sufficient to support the trial court’s judgment. Appellant’s first issue is
overruled.
Factual Sufficiency
       We next consider the issue of factual sufficiency. In so doing, we have reviewed the record
in its entirety. Appellant has not directed us to any specific evidence that he contends greatly
outweighs the evidence supporting his conviction. Our evaluation should not substantially intrude
upon the trial court’s role as the sole judge of the weight and credibility of witness testimony, see
Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the trial court’s verdict on
such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96.
       Our review of the record as a whole, with consideration given to all of the evidence, both for
and against the trial court’s finding, has not revealed to us any evidence that causes us to conclude
that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof
as to render Appellant’s conviction clearly wrong or manifestly unjust. Therefore, we hold that the
evidence is factually sufficient to support the trial court’s judgment. Appellant’s second issue is
overruled.



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                                     CRUEL AND UNUSUAL PUNISHMENT
         In his third issue, Appellant contends that his fifteen year sentence violated the prohibition
against cruel and unusual punishment found in both the United States and Texas constitutions. See
U.S. CONST. amend VIII; TEX . CONST. art I, § 13. However, Appellant failed to make any objection
at trial court raising the issue of cruel and unusual punishment and has, therefore, waived the issue
on appeal. See Willis v. State, 192 S.W.3d 585, 595–97 (Tex. App.–Tyler 2006, pet. ref’d); see also
TEX . R. APP. P. 33.1. Appellant’s third issue is overruled.

                                                   DISPOSITION
         Having overruled Appellant’s three issues, we affirm the trial court’s judgment.


                                                                   JAMES T. WORTHEN
                                                                       Chief Justice


Opinion delivered August 6, 2008.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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