                                 NO. 07-06-0387-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                  MAY 29, 2007
                         ______________________________

                             RICHARD CALVIN GIPSON,

                                                            Appellant

                                           v.

                               THE STATE OF TEXAS,

                                                     Appellee
                       _________________________________

              FROM THE 241ST DISTRICT COURT OF SMITH COUNTY;

               NO. 241-0463-06; HON. JACK SKEEN, JR., PRESIDING
                       _______________________________

                              Memorandum Opinion
                        _______________________________

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

      Appellant, Richard Calvin Gipson, challenges his conviction for intoxication

manslaughter through four issues.      The first two pertain to the legal and factual

insufficiency of the evidence. The third concerns the trial court’s admission of expert

evidence, while the fourth involves the quantum of punishment he received. We affirm the

judgment.
       Sufficiency of the Evidence

       According to appellant, the record lacks sufficient evidence to establish that he was

intoxicated at the time of the accident or that his conduct caused the accident. We

disagree and overrule the issue.

       The record contains evidence of the following. On September 23, 2004, around

5:30 a.m., appellant was driving on the wrong side of the highway between Kilgore and

Tyler. He initially knocked off the driver’s side mirror of a vehicle driven by Michelle

Henckel but she was able to swerve and avoid a collision. However, appellant collided with

the vehicle behind Henckel, which vehicle was driven by Charlotte Bryan. Ms. Bryan was

pronounced dead at the scene. Thereafter, cocaine, cocoethylene (a product of the use

of cocaine and alcohol), marihuana, and benzodiazepine (a central nervous system

depressant) were found in appellant’s system. The State also presented testimony that

appellant 1) was speeding, 2) had driven over 300 feet in the wrong lane of traffic, 3) never

attempted to swerve back into his own lane or brake even after striking the mirror on the

vehicle driven by Henckel, 4) acted abnormally after the accident by calmly smoking a

cigarette in the presence of leaking automobile fluids even though he was pinned in the

vehicle for a considerable time and had suffered a broken leg, 5) thought others hit him,

6) had a crack pipe in his vehicle, 7) had used benzodiazepine at least within the last 72

hours, and 8) had a sufficient quantum of cocaine on or near his person to illustrate that

he was either a heavy user or had used cocaine within 24 hours of his specimen. So too

did a drug recognition expert testify that based on all of the information available to him,

he believed that appellant was intoxicated at the time of the accident. The foregoing is



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some evidence upon which a reasonable jury could rationally conclude that appellant was

intoxicated and that the intoxication caused the wreck that killed Ms. Bryan.

       One is intoxicated if he is does not have “the normal use of [his] mental or physical

faculties by reason of the introduction of alcohol, a controlled substance, a drug, a

dangerous drug, a combination of two or more of those substances, or any other

substance in his body.” TEX . PEN . CODE ANN . §49.01 (2)(A) (Vernon 2003). The presence

of drugs within appellant’s body, his erratic driving, his failure to stop after colliding with

other objects, his odd demeanor after the accident, and his lack of grasp of the

circumstances provide the necessary foundation for his conviction.

       Although other evidence suggested that appellant’s vehicle had an under-inflated

tire and had been subject to a recall notice with respect to a defect that could have caused

the engine to stop running, no evidence appears illustrating that appellant’s vehicle actually

suffered from the defect encompassed within the recall notice at the time of the collision.

Furthermore, the State presented evidence that appellant would have been able to steer

the vehicle at a high speed even if the engine had stopped immediately preceding the

collision and even with an under-inflated tire. This, combined with the information already

summarized above, prevents us from concluding that the evidence of guilt was weak or

that the verdict was against the great weight and preponderance of the evidence.

       Admission of Expert Testimony

       Next, appellant complains about the admission of Sergeant Jimmy Jackson’s

testimony. The witness was offered by the State as a drug recognition expert. Below,

appellant argued that Jackson was not qualified to be an expert. Here, however, he says

nothing about the sergeant’s qualifications but rather attacks the protocol used by the

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witness to derive his conclusions. That topic was not mentioned below as a basis for his

objection. Having gone unmentioned at trial, it was not preserved for review. Washington

v. State, 152 S.W.3d 209, 213 (Tex. App.–Amarillo 2004, no pet.).

      Disproportionate Sentence

      Finally, appellant contends that the life sentence he received for killing another while

driving in an intoxicated state was disproportionate or excessive despite his prior

conviction. Like the foregoing complaint, this too went unmentioned below. Thus, it too

was not preserved for review. See Rhoades v. State, 934 S.W.2d 113, 120 (Tex. Crim.

App. 1996) (failing to object to punishment as cruel and unusual); Harvey v. State, 173

S.W.3d 841, 850 (Tex. App.–Texarkana 2005, no pet.) (failing to make objection that court

considered matters outside the record in assessing the punishment).

      In sum, all of appellant’s issues are overruled, and the judgment is affirmed.



                                                 Brian Quinn
                                                 Chief Justice

Do not publish.




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