                                     NO. 07-10-0390-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL C

                                        APRIL 24, 2012

                           ______________________________


                               JEANNE PEREZ, APPELLANT

                                               V.

                            THE STATE OF TEXAS, APPELLEE


                         _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2009-423,082; HONORABLE CECIL G. PURYEAR, JUDGE

                           _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                 MEMORANDUM OPINION


      Following open pleas of guilty, Appellant, Jeanne Perez, was convicted of two

counts of intoxication manslaughter,1 with an affirmative finding on use of a deadly

weapon. Her sentences of fifteen years confinement as to each count were ordered to

run concurrently. Presenting a sole point of error, Appellant challenges her conviction


1
Tex. Penal Code Ann. § 49.08(a) (West 2011).
as to Count II only. By a single issue presented in two subparts, Appellant contends the

trial court erred in failing to: (1) withdraw her plea of guilty sua sponte, and (2) direct a

verdict of not guilty as to Count II, because evidence of her innocence was presented by

the State. We affirm.


                                   Factual Background


       At approximately 2:26 a.m. on March 18, 2009, in Lubbock, Texas, Appellant was

driving from east to west when she ran a red light at an intersection causing her SUV to

strike both a white pickup and a motorcycle heading south through a green light. The

motorcycle was driven by Dwight Griffith. His wife, Trisha Griffith, was a passenger.

Both Dwight and Trisha died as a result of the collision. A digital recording device

installed in the patrol car of Texas Tech University Police Officer, James Snow,

recorded the accident.


       Lubbock Police Officer Jacob Flores was dispatched to the accident and made

contact with Appellant. She was transported to the hospital and Officer Flores reported

to that location. While Appellant was in the emergency room, Officer Flores observed

signs of intoxication. Statutory warnings were administered to her but she would not

consent to a blood draw.       Officer Flores then explained that he would conduct a

mandatory blood draw. See Tex. Transp. Code Ann. § 724.012(b) (West 2011). The

first sample was taken at 3:35 a.m., but after it was discovered that the expiration date

on the test kit had lapsed, a second sample was taken at 4:30 a.m. The first sample

showed a blood alcohol concentration of 0.34 and the second sample showed a blood

alcohol concentration of 0.30. Both results are above the legal limit of 0.08. See Tex.


                                             2
Penal Code Ann. § 49.01(2)(B) (West 2011). By a single indictment, Appellant was

charged with two counts of intoxication manslaughter.2


                                    Withdrawal of Plea of Guilty


       In Mendez v. State, 138 S.W.3d 334, 336 (Tex.Crim.App. 2004), the Texas Court

of Criminal Appeals held that on timely request a defendant has a right to change his or

her plea but that a court is under no duty to do so on its own motion. Prior to Mendez, a

trial court was required to sua sponte withdraw a defendant's guilty plea if the evidence

reasonably and fairly raised an issue as to the innocence of the accused. See Griffin v.

State, 703 S.W.2d 193 (Tex.Crim.App. 1986). Mendez acknowledged the Griffin line of

cases but injected that none of those cases discussed harmless error or waiver.

Mendez, 138 S.W.3d at 337-38. Accordingly, the law now places the requirement of

timely seeking to withdraw a guilty plea in a case in which trial by jury has been waived

upon the defendant. Id. at 350. Under the current state of the law, an appellant waives

any error by failing to call it to the trial court's attention. Mendez, 138 S.W.3d at 337-38.

Even assuming the evidence raised an issue as to Appellant's innocence, because

Appellant never requested to have her plea withdrawn her complaint that the trial court

erred in failing to do so sua sponte was waived.


                                Failure to Grant a Directed Verdict


       Appellant's open plea of guilty to Count II of the indictment notwithstanding, the

State was still required to introduce evidence into the record showing her guilt. See

Tex. Code Crim. Proc. Ann. art. 1.15 (West 2005). A complaint that the trial court failed

2
Count I related to the death of Dwight Griffith and Count II related to the death of his wife, Trisha Griffith.

                                                      3
to grant a directed verdict is a challenge to the legal sufficiency of that evidence. Lucio

v. State, 351 S.W.3d 878, 905 (Tex.Crim.App. 2011) (citing Williams v. State, 937

S.W.2d 479, 482 (Tex.Crim.App. 1996)). Under a legal sufficiency review, this Court

considers all the evidence in the light most favorable to the verdict and determines

whether, based on that evidence and reasonable inferences to be drawn therefrom, a

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

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 33 S.Ct. 2781, 61

L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010).


       To meet its burden the State was required to establish that Appellant was

operating a motor vehicle while intoxicated and that by reason of her intoxication, she

caused the death of another by accident or mistake. Tex. Penal Code Ann. § 49.08(a)

(West 2011). According to Appellant, the video recording from Officer Snow's patrol car

showed she was innocent in the death of Trisha Griffith because her SUV did not strike

Trisha. She reasons that the third vehicle involved in the collision, the white pickup,

made contact with Trisha and thus, the State did not prove the element of causation

beyond a reasonable doubt.


       Causation in the Texas Penal Code is defined as "but for" causation. See §

6.04(a). A person is criminally responsible if the result would not have occurred but for

his or her 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. Id.




                                            4
        Officer Snow testified that he witnessed "a giant trail of sparks and then a large

fireball erupt" at the time of the accident. The evidence shows that Appellant's blood

alcohol concentration just shortly after the accident was 0.34, more than four times the

legal limit of 0.08. The evidence also shows that she ran a red light causing her SUV to

strike the motorcycle the Griffiths were riding at a high rate of speed. Officer Mike

McGowan, assigned to the accident reconstruction unit, testified that neither Dwight

Griffith nor the driver of the white pickup was engaged in bad driving or committed any

traffic violations. He further testified that based on the images and times depicted in the

video recording, he mathematically calculated that Appellant ran the red light at a speed

of sixty-eight miles per hour in an area with a thirty-five mile per hour speed limit.3 He

elaborated that Appellant's SUV struck the motorcycle with enough force to push it

beyond the white pickup and then the white pickup struck the back right side of the

SUV.      The force of the impact caused Trisha's body to be thrown west of the

intersection and her shoe may have made contact with the top of the white pickup.


        This evidence establishes beyond a reasonable doubt that Appellant was

intoxicated and that due to her intoxication she set into motion a series of events that

directly lead to Trisha's death. Appellant's intoxication was also the cause of the white

pickup even being involved in the collision. But for Appellant's intoxication and running

the red light, Trisha's death would not have occurred.


        Additionally, even if the white pickup was a concurrent cause of Trisha's death, it

alone was insufficient to produce her death.                 It was not an alternative cause that

3
 According to the evidence, the speed limit upon entering the intersection from the east is thirty-five miles
per hour and it increases to forty-five miles per hour to the west of the intersection, where the collision
ended.

                                                     5
resulted in Trisha's death independent of Appellant's conduct. See Barnette v. State,

709 S.W.2d 650, 651 (Tex.Crim.App. 1986) (distinguishing between alternative and

concurrent causation). See also Goode v. State, No. 1308-0645-CR, 2010 Tex. App.

LEXIS 2128, at *15 (Tex.App.--Corpus Christi March 25, 2010, pet. ref'd) (not

designated for publication).


       Accordingly, we hold that a rational trier of fact could have reasonably concluded

beyond a reasonable doubt that Trisha's death would not have occurred but for

Appellant's intoxication. The evidence offered to support Appellant's plea of guilty was

legally sufficient and her sole point of error is overruled.


                                         Conclusion


       Accordingly, the trial court's judgment is affirmed.




                                                   Patrick A. Pirtle
                                                       Justice


Do not publish.




                                               6
