









Affirmed and Opinion filed February 1, 2005








Affirmed
and Opinion filed February 1, 2005.
 
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-04-00217-CR
____________
 
DEBERAH ANN
ALLCOTT,
Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 

 
On Appeal from the County
Criminal Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 1178236
 

 
O P I N I O N
Appellant, Deberah Ann Allcott, appeals
from her conviction for driving while intoxicated.  A jury found her guilty, and the judge
sentenced her to one year’s incarceration, suspended for two years, and a $500
fine.  The court also suspended her
driver’s license for two years.  On
appeal, appellant contends that the trial court erred in overruling her
relevance objections to testimony regarding injuries sustained by motorists and
passengers in other vehicles as a result of a collision involving appellant’s
vehicle.  We affirm. 
 




Background
Appellant was arrested for DWI after the
vehicle she was driving collided with another vehicle, causing a chain reaction
involving a total of four cars.  At
trial, the State presented the testimony of Officer George Fickessen, who
testified regarding appellant’s demeanor after the accident and her failure to
pass certain field sobriety tests. 
Donald Worchesick testified that while he was stopped at a red light he
saw a vehicle approach the intersection at “full acceleration” and “a high rate
of speed” and hit another vehicle.  He
said that the driver of the first vehicle did not apply the vehicle’s brakes
prior to the accident.
The State called two additional witnesses
who testified regarding the accident and injuries that they and others received
as a result.  Jesse Carter testified that
he was approaching a red light when he “heard a loud bang.”  A split-second later he was hit from
behind.  When the prosecutor asked Carter
what injuries he sustained in the accident, defense counsel objected on
relevance grounds.  The trial judge
overruled the objection, and Carter stated that he had several muscle
contusions and underwent physical therapy for two and a half months.
Cassandra Moctezuma testified that at the
time of the accident she was in a vehicle with her husband and five–year–old
daughter.  They were stopped at a red
light when they were hit from behind. 
She said that her head hit the dashboard causing her nose to bleed.  She further stated that she and her husband
were transported to the hospital on stretchers and that her daughter suffered a
bruise across her neck from the seatbelt. 
Appellant objected to Moctezuma’s testimony on relevance grounds both
before it began and when the subject of injuries arose.  The trial court overruled the objections.




Tammy Young, a passenger in appellant’s
vehicle at the time of the accident, testified for the defense that the
accident occurred when they were proceeding through a green light and a car
merged in front of them causing appellant to hit it.  Appellant also presented the testimony of Dr.
Louis Trane, who opined that appellant sustained a concussion during the
accident and suggested that this might explain her difficulties performing
field sobriety tests after the accident.
Analysis
In her first issue, appellant contends
that the trial court erred in overruling her relevance objection to Moctezuma’s
testimony.  In her second issue,
appellant contends the trial court erred in overruling her relevance objection
to Carter’s testimony.  We review a
court’s rulings on the admission of evidence under an abuse of discretion
standard and reverse only if the decision is not within the “zone of reasonable
disagreement.”  Torres v. State,
71 S.W.3d 758, 760 (Tex. Crim. App. 2002). 
All relevant evidence is admissible, unless otherwise barred by
constitution, statute, or the Texas Rules of Evidence.  Tex.
R. Evid. 402.  On the other hand,
irrelevant evidence is inadmissible.  Id.  The Rules define “relevant evidence” as
“evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.”  Tex. R. Evid. 401.  Appellant contends that because the evidence
regarding injuries was not relevant to the question of whether she was driving
while intoxicated, it was inadmissible under Rules 401 and 402.




The Court of Criminal Appeals has
determined that, in a DWI prosecution, evidence of injuries sustained in an
accident caused by the alleged drunken driver may be relevant to the question
of whether the driver was intoxicated.  Allen
v. State, 197 S.W.2d 1013, 1015 (Tex. Crim. App. 1946); see also
Etheridge v. State, 903 S.W.2d 1, 14 (Tex. Crim. App. 1994) (stating that
the extent of a victim’s injuries is relevant if it is probative of an element
of the offense); Atkinson v. State, 251 S.W.2d 401, 403 (Tex. Crim. App.
1952) (following Allen).  In Allen,
the court explained that, by showing the effects of the collision, such evidence
may shed light on the force of the collision as well as the speed and manner in
which the defendant was driving.  197
S.W.2d at 1015; see also Massoletti v. State, 303 S.W.2d 412, 413 (Tex.
Crim. App. 1957) (suggesting further that evidence regarding injuries might be
admissible as part of the res gestae of the offense that lead to the
collision).[1]
It is certainly within the “zone of
reasonable disagreement” in the present case whether the evidence of injury was
relevant to appellant’s manner of driving.  See Torres, 71 S.W.3d at 760; Allen,
197 S.W.2d at 1015.  In her defense,
appellant presented testimony that the accident occurred because another driver
merged in front of her.  Evidence that
appellant was driving at such a rate of speed and so recklessly that her
vehicle caused injuries to people in two different vehicles could be seen as
contradicting the claim that the accident was caused by another driver.  The trial court did not abuse its discretion
in admitting the evidence regarding injuries. 
It was relevant to the force of impact and the speed and manner in which
appellant was driving and, thus, to the issue of whether she was driving while
intoxicated.  Accordingly, we overrule
appellant’s two issues.
The trial court’s judgment is affirmed.
 
 
 
 
 
/s/      Adele Hedges
Chief Justice
 
 
 
 
Judgment
rendered and Opinion filed February 1, 2005.
Panel
consists of Chief Justice Hedges and Justices Fowler and Seymore.
Publish
— Tex. R. App. P. 47.2(b).




[1]  The Court of
Criminal Appeals has cautioned, however, against the admission of the gory
details of the injuries or of the pain and suffering caused thereby.  See Massoletti, 303 S.W.2d at 413; Atkinson,
251 S.W.2d at 403; Allen, 197 S.W.2d at 1015.  Appellant in the present case makes no
complaint in this regard, and the testimony regarding the injuries was not
particularly detailed.


