      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00692-CR
                                       NO. 03-05-00693-CR



                                  Edwin Glen Bigon, Appellant

                                                  v.

                                   The State of Texas, Appellee


   FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
         NOS. 7642 & 7643, HONORABLE JOE CARROLL, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Edwin Glen Bigon appeals his convictions arising from a fatal automobile accident.

In three counts in each of two indictments,1 appellant was indicted for murder, intoxication

manslaughter, and manslaughter.2 After a one-day bench trial, the trial court found appellant guilty

on all counts and sentenced him to eighteen years’ confinement on each count with the sentences to

run concurrently. In six issues, appellant challenges the legal and factual sufficiency of the evidence

to support his convictions and the admission of expert testimony, medical records, and test results.

We affirm the trial court’s judgments of conviction for felony murder. We reverse the judgments




       1
         Appellant was indicted and charged in two separate cause numbers for having caused two
deaths. By agreement, the causes were tried together.
       2
        See Tex. Pen. Code Ann. §§ 19.02 (murder), 19.04 (manslaughter), 49.08 (intoxication
manslaughter) (West 2003 & Supp. 2006).
of conviction for intoxication manslaughter and manslaughter, and we dismiss those counts of both

indictments.


                                   FACTUAL BACKGROUND

               The evidence before the trial court showed that on the night of December 4, 2004,

appellant and his eight-year-old son were traveling southbound in his sport utility vehicle on

Highway 183 near Lometa when he drove onto the shoulder of the road and then back onto the

highway, and then veered into the northbound lane of oncoming traffic. Appellant collided with a

vehicle in the northbound lane, causing the death of its driver, Ramona Wallace-Pacheco, and her

young daughter, Melanie.

               John Carroll testified that he was driving on Highway 183 shortly before 9:00 p.m.

when he observed appellant’s vehicle traveling at a speed of fifteen miles under the speed limit of

65 miles per hour. As he contemplated passing the vehicle, he “noticed [appellant] was kind of

weaving on the road, had weaved over on to the shoulder and weaving back.” Carroll slowed his

car and dropped back to distance himself from appellant’s vehicle. Appellant’s vehicle continued

to cross over onto the shoulder of the road and then veer back onto the road, crossing into oncoming

traffic in the northbound lane. Carroll testified that he observed appellant’s vehicle cross the center

stripe of the road into oncoming lanes of traffic at least two times:


       Two for sure because the oncoming vehicles had to actually pull over onto the
       shoulder to get—well, whenever I first observed that, the first time I did that . . . I
       started flashing my lights and honking my horn and everything. He was driving
       perfectly in oncoming traffic. They had to pull over onto the shoulder to get around
       him, and then he would whip back over into our lane that we were driving in.



                                                  2
Carroll also observed appellant go off onto the shoulder of the road “numerous times.” He

explained, “[t]hat’s why I just hung back from him and didn’t try to pass.”

                As Carroll followed the vehicle up an incline in the road, the taillights of appellant’s

vehicle “disappeared.” As Carroll crested the hill, he saw an explosion. Carroll pulled his car off

the road, turned on his bright lights to illuminate the accident scene, and attempted to aid the victims,

two of whom he thought were already deceased.

                David Thorp, an investigator with the Lampasas County Sheriff’s Department,

testified that he was on patrol duty on the evening of December 4 and arrived at the scene of the

collision along with other emergency personnel. Appellant was pinned in the vehicle, and the child

in appellant’s vehicle was injured. Their vehicle was towing a small flatbed trailer carrying a four-

wheel ATV-type vehicle. Thorp testified that it appeared from the gear in the vehicle and the trailer

that appellant and his son were returning from deer hunting. Thorp assisted the paramedics in

removing the child from the vehicle and loading him into an ambulance. Appellant was removed

from the vehicle and transported by helicopter to a hospital emergency room where his blood was

tested. Based upon this blood sample, DPS chemist Charles Mott testified that appellant’s blood-

alcohol concentration was 0.19 percent.

                Appellant was indicted separately for the felony murder, intoxication manslaughter,

and manslaughter of Mrs. Wallace-Pacheco and her daughter, two of the occupants in the other

vehicle. The trial court found him guilty of all counts and assessed punishment at eighteen years’

confinement on each count with the sentences to run concurrently.




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                                            ANALYSIS

               In six points of error, appellant contends that the trial court erred in denying his

motions to quash the indictments, that the evidence was legally and factually insufficient to support

his convictions for felony murder and manslaughter, and that the trial court abused its discretion in

admitting the testimony of the DPS chemist, appellant’s medical records, and the results of

appellant’s blood-alcohol test. For the reasons discussed below, we reject appellant’s contentions

and overrule his points of error. As a preliminary matter, however, we first address the issue of

double jeopardy, which was not raised by the parties.


Double Jeopardy

               Our review of the record discloses unassigned error that should be addressed in the

interest of justice. See Wright v. State, 981 S.W.2d 197, 199 n.2 (Tex. Crim. App. 1998) (appellate

court may, in its discretion, consider unassigned error). It is apparent on the face of the record that

appellant’s convictions on all three counts of both indictments constitute double jeopardy. See

Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000) (explaining when double jeopardy may

be raised for the first time on appeal); Duvall v. State, 59 S.W.3d 773, 777 (Tex. App.—Austin 2001,

pet. ref’d) (same).

               The Fifth Amendment Double Jeopardy Clause protects against prosecution for the

same offense after a conviction or an acquittal, and against multiple punishments for the same

offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). The Double Jeopardy Clause is

enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S.

784, 787 (1969). In this case, there is a multiple-punishments violation.

                                                  4
               The court of criminal appeals’s decision in Ex parte Ervin, 991 S.W.2d 804 (Tex.

Crim. App. 1999), controls our result here. In Ervin, the court of criminal appeals examined the

intoxication manslaughter and manslaughter statutes under a double jeopardy analysis. Pursuant to

a plea agreement, Ervin pleaded guilty and was convicted of intoxication manslaughter and

manslaughter. Both offenses arose out of a traffic accident involving a single victim. Ervin was

convicted under both statutes and was given a sentence for both convictions. Analyzing the

legislative intent concerning the double jeopardy implications of the two statutes, the court held that

“manslaughter and intoxication manslaughter are the same offense for double jeopardy purposes

when they involve the same victim, and imposing convictions for both in this situation violates the

Double Jeopardy clause.” Ervin, 991 S.W.2d at 817. Likewise, because the record in this case

contains evidence of only one act in both indictments that can support a conviction under any of the

three counts of the indictments, appellant cannot lawfully be convicted and punished for all three

counts. See id.

               The remedy when a defendant is convicted in a single criminal action of multiple

offenses that are the “same” for double jeopardy purposes is to vacate the offending convictions.

Ball v. United States, 470 U.S. 856, 864-65 (1985); Landers v. State, 957 S.W.2d 558, 559 (Tex.

Crim. App. 1997). Following the “most serious offense” test of Landers in which we affirm the

more serious conviction and punishment, we reverse the appellant’s convictions for intoxication

manslaughter and manslaughter under counts two and three of both indictments. See Landers, 957

S.W.2d at 559-61. Given our disposition of the intoxication manslaughter and manslaughter counts

of the indictments, we do not address appellant’s issues relating only to those counts.



                                                  5
Motions to Quash

               In his first point of error, appellant contends that the trial court erred in failing to grant

his motion to quash the indictments because his actions did not meet the requirements to sustain a

charge of felony murder. On appeal, he urges that the indictments in each cause were deficient

because the State failed to allege and prove a culpable mental state.

               A person commits the offense of felony murder if he commits or attempts to commit

a felony other than manslaughter and, in the course of and in furtherance of the commission or

attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the

death of an individual. Tex. Pen. Code Ann. § 19.02(b)(3) (West 2003). Appellant was charged

with committing a felony when he drove his car in a public place while intoxicated with a child

passenger who was younger than 15 years of age. See id. § 49.045 (West Supp. 2006). The

sufficiency of an indictment is a question of law which we review de novo. State v. Moff, 154

S.W.3d 599, 601 (Tex. Crim. App. 2004).

               A charge of felony murder does not itself require proof of mens rea; rather, the

underlying felony supplies the culpable mental state. Johnson v. State, 4 S.W.3d 254, 255 (Tex.

Crim. App. 1999); Garrett v. State, 573 S.W.2d 543, 545 (Tex. Crim. App. 1978); Hilliard v. State,

513 S.W.2d 28, 33 (Tex. Crim. App. 1974) (intent to kill is supplied by intent to commit underlying

felony that ultimately results in death). If any felony other than manslaughter can serve as the

underlying felony, then any mental culpability from the underlying felony can support a conviction

for felony murder. In this instance, felony DWI does not require proof of a culpable mental state.

See Tex. Pen. Code Ann. § 49.11(a) (West 2003); Ex parte Ross, 522 S.W.2d 214, 217-18 (Tex.



                                                    6
Crim. App. 1975); Mendoza v. State, No. 08-04-00369-CR, 2006 Tex. App. LEXIS 7086, at *12

(Tex. App.—El Paso Aug. 10, 2006, no pet.). Nor does the felony charge of DWI with a child

passenger require proof of a culpable mental state. Tex. Pen. Code Ann. § 49.045 (West Supp. 2006)

(person commits felony offense of DWI with a child passenger when the person commits DWI with

a child younger than 15 in vehicle). We may not limit the application of the offense of felony murder

when the legislature has not done so. See Rodriguez v. State, 953 S.W.2d 342, 354 (Tex.

App.—Austin 1997, pet. ref’d). The trial court did not err in declining to quash the indictments. We

overrule appellant’s first point of error.


Legal and Factual Sufficiency

                In his third and fourth points of error, appellant contends that the evidence is legally

and factually insufficient to support the murder convictions because the evidence was insufficient

to show (I) that he acted recklessly and (ii) that the act of colliding with the victims’ vehicle “was

in furtherance” of the underlying felony of DWI with a child passenger.

                The evidence is legally sufficient to support a criminal conviction if a rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt after viewing

the evidence in a light most favorable to the prosecution. Drichas v. State, 175 S.W.3d 795, 798

(Tex. Crim. App. 2005); see also Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Sorto v. State,

173 S.W.3d 469, 472 (Tex. Crim. App. 2005), cert. denied, 126 S. Ct. 2982 (June 30, 2006). If,

given all the evidence, a rational jury would necessarily entertain a reasonable doubt as to the

defendant’s guilt, the due process guarantee requires that we reverse and order a judgment of

acquittal. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). In a factual sufficiency

                                                   7
analysis, we review the evidence in a neutral light, exercising appropriate deference in order to avoid

substituting our judgment for that of the fact finder, particularly in matters of credibility. Drichas,

175 S.W.3d at 799; see also Clewis v. State, 922 S.W.2d 126, 133-34 (Tex. Crim. App. 1996). We

may find the evidence to be factually insufficient if the evidence supporting the finding, considered

alone, is too weak to support the jury’s finding beyond a reasonable doubt, or the contravening

evidence is so strong that the State could not have met its burden of proof. Drichas, 175 S.W.3d at

799; see also Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).

                  In his third point of error, appellant contends that the evidence that he recklessly

committed an act clearly dangerous to human life by driving a heavily loaded vehicle towing a trailer

was legally and factually insufficient. See Tex. Pen. Code Ann. § 19.02(b)(3). He contends that the

State presented no evidence to show appellant was aware of any risk that he might cause the death

of the victims.

                  The Texas Penal Code provides that a person “acts recklessly, or is reckless, with

respect to circumstances surrounding his conduct or the result of his conduct when he is aware of

but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the

result will occur.” Id. § 6.03(c) (West 2003). Appellant argues that the only evidence that could

have established appellant’s pre-accident mental state or conduct was the testimony of John Carroll,

who did not witness the exact moment of the collision. Because appellant was not “aware” of any

risk, at most, he argues, he should only have been charged with intoxication manslaughter. We

disagree.

                  Carroll’s testimony alone that he followed appellant’s vehicle weaving on and off the

road and, before the collision, over the center stripe on two occasions, can support the fact finder’s

                                                    8
conclusion that appellant acted recklessly. In addition, Department of Public Safety trooper Jimmy

Chestnut investigated the accident on the night it occurred and testified that his observations led him

to conclude that the accident was caused by an offset head-on collision between the two vehicles.

He concluded that appellant’s vehicle was traveling southbound in the northbound lane of oncoming

traffic at the point of impact. Based on this testimony, the fact finder could rationally have found

beyond a reasonable doubt that appellant committed an act clearly dangerous to human life in his

reckless driving. The evidence was legally sufficient to support appellant’s convictions for felony

murder. Moreover, viewing the evidence in a neutral light, we hold that the evidence supporting the

finding that he acted recklessly in committing an act clearly dangerous to human life was not too

weak to support the finding beyond a reasonable doubt, nor was the contravening evidence so strong

that the State could not have proved it beyond a reasonable doubt. We conclude that the evidence

was factually sufficient to support appellant’s convictions for felony murder.

               In his fourth point of error, appellant contends that the evidence that he committed

an act in the course of and in furtherance of the commission of felony driving while intoxicated with

a child passenger was legally insufficient. For felony murder, Texas Penal Code section 19.02(b)(3)

requires that a person commit or attempt to commit a felony, and “in the course of and in furtherance

of the commission or attempt . . . he commits or attempts to commit an act clearly dangerous to

human life that causes the death of an individual.” Id. § 19.02(b)(3) (emphasis added). Appellant

argues that the State failed to prove that his act of driving into the oncoming lane of traffic was “in

furtherance” of the felony DWI with a child passenger.

               The court of criminal appeals has rejected appellant’s argument. In Johnson v. State,

the defendant was charged with felony murder, and the indictment alleged that he “committed the

                                                  9
felony offense of Injury to a Child ‘and in the course of and furtherance of commission of said

offense, did then and there commit an act clearly dangerous to human life, to-wit: hitting [the victim]

with a deadly weapon, to-wit: a blunt object.’” Johnson, 4 S.W.3d at 254. The court rejected the

same argument urged by appellant here and concluded that the defendant’s act of hitting the victim

with a deadly weapon was committed in the course of and in furtherance of the felony offense of

injury to a child and, further, that there was no merger of the offenses, the primary concern of the

“course and furtherance” requirement. See id. at 258; see also Lomax v. State, No. 10-03-00156-CR,

2006 Tex. App. LEXIS 2527, at *13-14 (Tex. App.—Waco Mar. 29, 2006, pet. granted) (speeding

was in the course of and in furtherance of felony DWI). Based on the record in this case, a fact

finder could rationally have found beyond a reasonable doubt that appellant committed an act “in

the course of and in furtherance of” the felony DWI with a child passenger by driving a heavily

loaded vehicle towing a loaded trailer across the center stripe of a roadway into oncoming traffic.

We conclude the evidence was legally sufficient to support appellant’s convictions for felony

murder. We overrule appellant’s third and fourth points of error.


Testimony of DPS Chemist

                In his fifth point of error, appellant contends that the trial court erred in allowing DPS

chemist Charles Mott to testify concerning appellant’s blood-alcohol concentration. Specifically,

he complains that it was error to admit Mott’s testimony concerning the conversion of appellant’s

serum-alcohol level to a blood-alcohol level and retrograde extrapolation because this testimony was

not reliable.




                                                   10
               “If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or

otherwise.” Tex. R. Evid. 702. We review a trial court’s ruling on the admissibility of scientific

expert testimony under an abuse of discretion standard. Russeau v. State, 171 S.W.3d 871, 881 (Tex.

Crim. App. 2005); Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).


       The proponent of scientific evidence must demonstrate to the trial court, by clear and
       convincing evidence, that the scientific evidence is reliable. The proponent of ‘hard’
       scientific knowledge must satisfy three criteria to demonstrate reliability: (1) the
       underlying scientific theory is valid; (2) the technique applying the theory is valid;
       and, (3) the technique was properly applied on the occasion in question.


Russeau, 171 S.W.3d at 881 (internal footnote omitted); see also Kelly v. State, 824 S.W.2d 568, 573

(Tex. Crim. App. 1992).

               Mott, a chemist with 39 years of experience at DPS, testified that he tested appellant’s

blood collected after the accident, converting the serum-blood test results to a blood-alcohol content

in accordance with accepted scientific principles. Mott also testified to the known factors that he

took into account in his retrograde extrapolation, which were also consistent with scientific

standards.

               Retrograde extrapolation is the computation back in time of the blood-alcohol

level—that is, the estimation of the blood-alcohol level at the time of driving based on a test result

from some later time. Mata v. State, 46 S.W.3d 902, 908-09 (Tex. Crim. App. 2001). In Mata, the

court of criminal appeals set out the various factors a trial court should consider in evaluating the

reliability of a retrograde extrapolation. To obtain admission of retrograde extrapolation testimony,

                                                  11
the proponent of the testimony must prove by clear and convincing evidence that the testimony is

relevant and reliable. State v. Medrano, 127 S.W.3d 781, 786 (Tex. Crim. App. 2004); Weatherred,

15 S.W.3d at 542.

                  In determining whether retrograde extrapolation evidence is reliable, the trial court

should consider (a) the length of time between the offense and the test(s) administered; (b) the

number of tests given and the length of time between each test; and (c) whether, and to what extent,

any individual characteristics of the defendant were known to the expert in providing his

extrapolation. Mata, 46 S.W.3d at 916. These characteristics and behaviors might include, but are

not limited to, the person’s weight and gender, the person’s typical drinking pattern and tolerance

for alcohol, how much the person had to drink on the day or night in question, what the person drank,

the duration of the period of drinking, the time of the last drink, and how much and what the person

had to eat. Id.

                  Appellant contends that Mott knew some of the factors but not others and that the

testimony was therefore unreliable. Our review of the record reveals that Mott explained the use of

retrograde extrapolation in a clear and understandable matter. He testified that he had practical

experience in calculating alcohol concentration using this type of analysis, he explained the scientific

theories underlying the analysis, and he demonstrated an understanding of the methodologies of its

application. The Mata court recognized that “not every single personal fact about the defendant must

be known to the expert in order to produce an extrapolation with the appropriate level of reliability.”

Mata, 46 S.W.3d at 916. The court concluded that more limited knowledge of the factors might

suffice with more than a single test:



                                                   12
       If the State had more than one test, each test a reasonable length of time apart, and
       the first test were conducted within a reasonable time from the time of the offense,
       then an expert could potentially create a reliable estimate of the defendant’s Blood
       Alcohol Content with limited knowledge of personal characteristics and behaviors.


Id.

               In this case, blood tests were performed on appellant at 9:58 p.m. and 11:35 p.m.

Mott testified to his analysis in establishing appellant’s blood-alcohol content based upon the blood

draws, and that the samples showed a blood-alcohol content of 0.227 and 0.19. Mott also testified

that he has been trained to convert alcohol levels derived from a serum sample to a blood-alcohol

level that conforms to the legal definition of blood-alcohol content. He testified that the alcohol

concentration from a serum sample is approximately 18 percent higher than the blood-alcohol

concentration from a whole-blood sample taken from the same person at the same time. He

acknowledged that there is some dispute in the scientific community about the accepted value that

should be used in the conversion. In addition to the tests, Mott also knew appellant’s age, weight

and height, when appellant last ate, and what appellant drank. Based upon his review of appellant’s

responses recorded in hospital records showing appellant’s last consumption of food and drink and

the two blood tests, Mott concluded that at the approximate time of the accident, appellant had a

blood-alcohol content of 0.25.

               On cross-examination, Mott agreed that he did not know appellant’s “drinking

patterns,” when he began drinking that day, or what his tolerance for alcohol was, and that

information Mott took from medical records that appellant last consumed food at 7 p.m. and had a

few beers prior to the accident might not provide comprehensive information. Mott testified that

appellant’s blood-alcohol level far exceeded the legal limit, testing 0.227 on one test and 0.191 on

                                                 13
a second test. Based upon his analysis of the information provided in the medical records and the

blood-alcohol tests, Mott concluded that appellant was in the elimination, or post-absorption, phase

of consumption at the time of the accident. Accordingly, Mott concluded that it would not have been

possible for appellant to have had a blood-alcohol content below the legal limit of 0.08 at the time

of the accident. Given that the chemist knew the results of the tests taken a reasonable time after

appellant experienced the accident and knew several of appellant’s relevant characteristics, the trial

court did not abuse its discretion in overruling appellant’s objection to the evidence. We overrule

appellant’s fifth point of error.


Medical Records and Blood-Alcohol Test Results

                In his sixth point of error, appellant contends that the trial court erred in admitting

medical records from the hospital and the results of appellant’s blood-alcohol test because the State

failed to connect the records and the test results to appellant. A trial court’s ruling in the admission

of evidence is committed to the court’s sound discretion, and we will not disturb the ruling unless

it falls outside the zone of reasonable disagreement. Rankin v. State, 974 S.W.2d 707, 718 (Tex.

Crim. App. 1996).

                The objected-to medical records were offered into evidence along with an affidavit

averring that they were business records. See Tex. R. Evid. 902(10). At trial, appellant objected that

the records were hearsay, not authentic, and there was no chain of custody established for the

records. Appellant raised similar objections to the State’s introduction of the blood-alcohol test

results. The trial court overruled the objections. On appeal, appellant asserts that there was no

evidence connecting the records or the test results to appellant. Because appellant’s objection to the


                                                  14
trial court fails to comport with his argument on appeal, he has not preserved the issue. See Tex. R.

App. P. 33.1(a). We overrule appellant’s sixth point of error.


                                         CONCLUSION

               There are six judgments before us, one for each of the three counts in the two

indictments. We affirm the two judgments convicting appellant of count one for felony murder in

both indictments. We reverse the four remaining judgments convicting appellant of counts two and

three for intoxication manslaughter and manslaughter in both indictments, and we dismiss those

counts.




                                              __________________________________________

                                              Jan P. Patterson, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed in Part; Reversed and Dismissed in Part

Filed: October 4, 2006

Do Not Publish




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