                                                                                  ACCEPTED
                                                                             13-14-00059-CR
                                                             THIRTEENTH COURT OF APPEALS
                                                                    CORPUS CHRISTI, TEXAS
                                                                        9/28/2015 9:44:36 PM
                                                                            Dorian E. Ramirez
                                                                                       CLERK

                      No. 13–14–00059–CR

                    COURT OF APPEALS          FILED IN
                                      13th COURT OF APPEALS
          FOR THE THIRTEENTH JUDICIAL DISTRICT
                                   CORPUS  CHRISTI/EDINBURG, TEXAS
            CORPUS CHRISTI/ EDINBURG, TEXAS
                                       9/28/2015 9:44:36 PM
                                               DORIAN E. RAMIREZ
                                                    Clerk


MONICA GALVAN,                 §
Appellant,                     §   Appeal from the
                               §   347th Judicial District Court
versus                         §   of Nueces County, Texas
                               §   Cause No. 11–CR–3519–H
THE STATE OF TEXAS,            §
Appellee.                      §



                REPLY BRIEF FOR APPELLANT

                ORAL ARGUMENT REQUESTED
                  [Scheduled October 15, 2015]




                             DANTE E. DOMINGUEZ
                             Bar No. 24086677
                             LAW OFFICE OF DANTE ELI DOMINGUEZ
                             310 S. St. Mary’s St.
                             Suite 1215
                             San Antonio, Texas 78205
                             210-227-9399
                             210-229-1445 facsimile
                             E-mail: ddominguez.law@gmail.com
                                           TABLE OF CONTENTS

Index of Authorities ...................................................................................................1

Prayer .......................................................................................................................19

Certificate of Compliance ........................................................................................20

Certificate of Service ...............................................................................................21

Appendix………………………………………………………………………….22




                                                               ii
                                      INDEX OF AUTHORITIES

Cases:

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)………………………..3

Elliot v. State, No. 13-13-00220-CR, 2015 WL 1869472 (Tex. App—Corpus

Christi, April 23, 2015)……………………………………………………12, 13, 14

Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979)………………………………………………………………........................3

Johnson v. State, 364 S.W.3d 742 (Tex. Crim. App. 2012)…………………..16, 17

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009)………………………...11

Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005)………………………….18

Rodriguez v. State, 834 S.W.2d 488 (Tex. App.—Corpus Christi 1992, no

writ.)…………………………………………………………………………..13, 14

Trepanier v. State, 940 S.W.2d 827 (Tex. App.—Austin 1997, writ

ref’d)......................................................................................................12, 13, 14, 15

Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007)…………….11, 13, 15

Rules and Statutes:

Texas Penal Code § 22.05………………………………………………………...19

Texas Transportation Code § 545.401…………………………………………….19




                                                            1
                               No. 13–14–00059–CR

                         COURT OF APPEALS
               FOR THE THIRTEENTH JUDICIAL DISTRICT
                 CORPUS CHRISTI/ EDINBURG, TEXAS



MONICA GALVAN,                            §
Appellant,                                §   Appeal from the
                                          §   347th Judicial District Court
versus                                    §   of Nueces County, Texas
                                          §   Cause No. 11–CR–3519–H
THE STATE OF TEXAS,                       §
Appellee.                                 §



             REPLY BRIEF FOR APPELLANT, MONICA GALVAN

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS,
THIRTEENTH JUDICIAL DISTRICT:

      Appellant, MONICA GALVAN, by and through undersigned counsel

submits this, her Reply Brief, and seeks that her conviction be reversed and the

judgement of the trial Court be rendered, or in the alternative, that she be granted a

new trial.

                          INSUFFICIENT EVIDENCE

      Points of Error 1 and 2 of Appellant’s Brief argue that “The Evidence is

Legally Insufficient To Sustain Conviction.” The State must produce “sufficient



                                          2
evidence to justify a rational trier of the facts to find guilt beyond a reasonable

doubt.”   Jackson v. Virginia, 443 U.S. 307, 313 (1979).             This “is a test of

adequacy, not mere quantity.” Brooks v. State, 323 S.W.3d 893, 917 (Tex. Crim.

App. 2010) (Cochran, J., concurring). Evidence “cannot be ‘semi-sufficient,’” it

either is or is not legally sufficient to support a conviction. Id. at 913.

      The State’s brief lists out, by bullet point, the evidence upon which it relies

to sustain Appellant’s conviction. State’s Brief at 22–23. For example, the State’s

simple, three word sentence, “Appellant was intoxicated,” is without foundation in

the record. State’s Brief at 22. In support of that statement, the State provided two

citations. The first cites the testimony of the arresting officer, as he described his

decision to arrest Mrs. Galvan-Manka on the night of the accident [3RR26–27],

and the second citation, “4 R.R. at 47” is a page in the record in which Mr. Manka

speculates, due to his poor memory of the day in question, as to how he arrived in

Corpus Christi from Alice, Texas, and the plans that he and Mrs. Galvan-Manka

had for that night. 4RR47. The State’s brief also cites the testimony of “Emily

Bovino, a forensic scientist with the Department of Public Safety,” [State’s Brief at

9–10], whose testimony included that “at the time of the collision, Appellant’s

blood alcohol level would have been anywhere between .10 and .15. 4 R.R. at 98-

99 & 104-105.” State’s Brief at 10. This testimony, is based upon a hypothetical



                                            3
asked by the State which did not include significant factors that are in the facts of

this case. The State asked Ms. Bovino:

      Q. If I were to give you the hypothetical of say 120 to 130 pound
      person, female, rather who had three beers and one shot between the
      hours of 10:00 and 11:00, stopped drinking at 11:00, what could you
      tell the court about their BAC at 11:22?...
      4RR98.

      Q. Can you tell me one more time what based on our little
      hypothetical you thought her blood alcohol level would be right at
      11:22?
      A. I would say if she is an average human, based on elimination rates,
      et cetera, I would say her BAC would be anywhere between a .10 and
      a .15.
      4RR99.

This hypothetical rests upon the State’s assumption of the times in this case and

fails to take into account that Mrs. Galvan-Manka ate at Whataburger after leaving

the Pelican’s Lounge. 4RR22. This testimony was further debunked by Dr. Gary

Wimbish who testified that Mrs. Galvan-Manka’s blood alcohol concentration

“would have been lower at the time of the accident rather than post-accident… .05

is very reasonable” as to her probable blood alcohol level. 4RR158.

      The State’s Brief attempts to advance the State’s trial theory that Mrs.

Galvan-Manka and Mr. Manka were angry with one another and engaged in a fight

immediately before the accident, and that the exchange between the two led to the

accident. The State’s Brief states, “[a] couple of seconds before the collision,



                                         4
Appellant was arguing with Manka and striking him on the shoulder three times to

make him shut up. 4 R.R. at 27, 33 & 96-97.” State’s Brief at 22 (citing the

testimony of Joseph Salinas).

       Mr. Salinas’ testimony on the “tapping” [4RR96] clearly describes that the

event was not a forceful exchange, stating, it was “[m]ore like a ‘be quiet.’ There

was not excessive force behind that.” 4RR33. Further, Mr. Salinas testified that

the tapping had nothing to do and did not cause the accident. 4RR96. Mr. Salinas

testified,

       A. … We wrecked afterwards.
       Q. What was the time lapse in between?
       A. I don't remember. I know there was a bit of a hiatus, possibly a
       minute or so.
       Q. Do you remember that it was a minute or?
       A. You know a minute, couple of minutes.
       Q. Do you remember the vehicle swerving at all?
       A. No.

It is clear that Mr. Salinas, the person relied upon by the State to show that an

altercation had taken place immediately before the accident, did not testify as such.

       The State’s Brief also states that “[r]ather than following the slight bend in

the road, Appellant drove straight off the roadway and never veered. 3 R.R.at 34.”

State’s Brief at 22. At trial the arresting officer placed an “X” on a map provided

by the State to mark the accident location. 3RR18. The State’s Exhibit clearly




                                          5
shows that the stretch of road is a straightaway and does not curve. SE1–3;

10RR23–25.

      The State’s Brief includes in its bullet point list,

      ● Just before the collision, Appellant’s vehicle was observed swerving
      and fishtailing. 5 R.R. at 7.
      ● Rather than following the slight bend in the road, Appellant drove
      straight off the roadway and never veered. 3 R.R. at 24.
      State’s Brief at 22.

These statements are contradictory. One has Mrs. Galvan-Manka “swerving and

fishtailing” as though she lost control of her vehicle after attempting to perform an

evasive maneuver; and the other has Mrs. Galvan-Manka driving “straight off the

roadway,” without veering, into a collision. Mrs. Galvan-Manka testified that

upon seeing a vehicle, without its lights on, approaching her, she veered to avoid a

collision. 5RR51. This is consistent with her having to take an evasive maneuver

to avoid a collision.

      The State’s contention that “[a]fter the collision, Appellant disposed of the

beer bottles in a location where they were not likely to found. 3 R.R. at 48-49 &

51” [State’s Brief at 22] attempts to characterize that action as though Mrs.

Galvan-Manka took steps to remove evidence. That is clearly not the case. Some

of the beer bottles at the feet of Mr. Manka were broken [5RR53] and Mrs.

Galvan-Manka took this action, in view of Mrs. Cepeda, because the bottles were



                                           6
underneath the feet of Mr. Manka [5RR52] and Mrs. Galvan-Manka was

concerned that “it would cut Chris when I was trying to get him out.” 5RR53. It is

reasonable for one to remove sharp pieces of broken glass, from the feet of an

injured person trapped in a vehicle. It also shows that Mrs. Galvan-Manka was in

control of her mental and physical faculties, as she was taking action to help the

situation following the accident.

      The State’s Brief states that “Appellant contends that since the jury acquitted

[Mrs. Galvan-Manka] of the intoxication assault charges, those verdicts preclude a

finding that she was impaired. Appellant’s Brief at 14.” State’s Brief at 24. This

is a mischaracterization of Appellant’s Brief. The statement to which the State

refers is when Appellant’s Brief points out that the jury acquitted Mrs. Galvan-

Manka of intoxication assault [6RR51–52] and goes on to state “[t]his is further

indication that Mrs. Galvan-Manka did not drink enough to become intoxicated.”

Appellant’s Brief at 14.

      The State’s Brief incorrectly contends that “Appellant misstates the

evidence.” State’s Brief at 21. The State’s Brief then attempts to point out four (4)

instances in which the State claims that the Appellant’s Brief misstated the

evidence. See Id.




                                         7
      First, the State points out that on page 31, the Appellant’s Brief indicates

that “the highest rate of speed she was reported driving was only 58 miles per hour

[4RR111].” This is indeed correct. Officer Connor explained that the “pre-crash

data” revealed the speed of the vehicle “five seconds prior to the crash” and the

highest speed the system reported was “58 miles an hour, according to the data that

was received in the air bag control module.” 4RR111. The speed then decreased

to forty-seven (47) miles per hour, one (1) second prior to the collision. 4RR112.

      Second, the State takes issue with the Appellant’s Brief stating that Mrs.

Galvan-Manka had “two Michelob Ultra beers.” State’s Brief at 21. Appellant’s

Brief is consistent with Mrs. Galvan-Manka’s testimony that she had “two to three

drinks of Michelob Ultra” [5RR49] and the next sentence of Appellant’s Brief cites

the testimony of Joseph Salinas who testified, “Monica did not have no more than

two drinks.” 4RR20. Appellant’s Brief also includes:

      As to the amount of alcohol Mrs. Galvan-Manka drank that night, the
      testimony is clear as well. Mrs. Galvan-Manka testified that she “had
      two to three drinks of Michelob Ultra,” an extremely light beer.
      5RR49. Mr. Salinas testified that he was certain that Mrs. Galvan-
      Manka had “no more than two drinks,” as he “would not have gotten
      in the car otherwise.” 4RR20. Mr. Manka testified that although he,
      understandably due to the accident, could not specifically remember
      how many drinks Mrs. Galvan-Manka had that night, he has “never
      seen her drink more than three drinks in [his] entire life.” 4RR61. In
      the, more than a decade, that he has known Mrs. Galvan-Manka, he
      has “never seen her take a shot,” [4RR62] and he has never seen her
      drunk. 4RR50. According the Officer Ramirez’s report, to which he


                                         8
      referred during his testimony, Mrs. Galvan-Manka reported to him
      that she had “three beers and… A bull blaster shot.” 3RR54–55.
      Appellant’s Brief at 14.

It is clear that the Appellant’s Brief did not attempt to mischaracterize the

testimony regarding the amount of alcohol Mrs. Galvan-Manka consumed the

night of the accident.

      Third, the State’s Brief takes issue with the statement in Appellant’s Brief

that “Mrs. Cepeda testified that she could smell alcohol on the scene, moments

after Mrs. Galvan-Manka removed the broken bottles from the feet of Mr. Manka.”

Appellant’s Brief at 8. See State’s Brief at 21. Appellant’s brief cites 5RR11, and

does not misstate the testimony, as Mrs. Cepeda testified,

      Q. Okay. Did you hear any noise when she threw it?
      A. It sounded like glass.
      Q. Did you observe anything else when you were nearby the
      defendant?
      A. I could smell alcohol when she was trying to rouse the young man.
      She was just acting really scared. I am sure she was. I would have
      been too. Just seem to be in a hurry, seemed to be anxious for him to
      wake up. I could smell alcohol on her breath when we were at the
      window.
      5RR11.

As quoted above, Mrs. Cepeda testified that after hearing the sound of glass being

thrown, she “could smell alcohol when [Mrs. Galvan-Manka] was trying to rouse”

Mr. Manka. 5RR11. Appellant’s Brief also states that Officer Ramirez testified




                                         9
that he could smell alcohol on Mrs. Galvan-Manka’s breath. Appellant’s Brief at

16; 3RR24.

      Four, on page 21, the State’s Brief takes issue with the Appellant’s Brief

referencing “the broken beer bottles on the floorboard of the vehicle.”        See

Argument section of Appellant’s Brief at 32. This reference is consistent with the

testimony of Mrs. Galvan-Manka,

      Q. The six pack, where was that before the accident?
      A. It was underneath Christopher.
      Q. Under his leg?
      A. Under his legs in the front seat, yes.
      5RR52.

      Q. So some of those bottles in the six pack were broken?
      A. Yes.
      Q. Some were not?
      A. A lot of them were broken. Yeah, there were some that were not
      broken.
      Q. You threw them out why?
      A. Because I was worried that it would cut Chris when I was trying to
      get him out.
      5RR53.

The State points out that Mrs. Cepeda testified that “Once I looked in the window,

I could see blood on the man's face and again she was right next to me when she

was trying to wake him. Then eventually she ran around the back of the vehicle

and started doing something in the vehicle.” 5RR10. As such, saying that “the

smell of alcohol at the scene can be explained by the broken bottles of beer on the



                                        10
floorboard of the vehicle” [Appellant’s Brief at 32] is clearly not a misstatement of

the evidence.

      The State’s Brief states the correct standard of review for a reviewing court

to examine the legal sufficiency of the evidence and includes that “[a]s long as the

verdict supported by a reasonable inference, it is within the province of the

factfinder to choose which inference is most reasonable.” Laster v. State, 275

S.W.3d 512, 523 (Tex. Crim. App. 2009). However, the State’s Brief does not

mention, as cited by Appellant’s Brief, Williams v. State, 235 S.W.3d 742 (Tex.

Crim. App. 2007), in which the Court of Criminal Appeals “granted appellant’s

petition for discretionary review to examine the culpable mental state of

recklessness.” Williams, 235 S.W.3d at 745. In Williams, the Court thoroughly

discussed the culpable mental state of recklessness, as described in Appellant’ s

Brief, and the Court stated,

      Recklessness requires the defendant to actually foresee the risk
      involved and to consciously decide to ignore it. Such a “devil may
      care” or “not giving a damn” attitude toward the risk distinguishes the
      culpable mental state of criminal recklessness from that of criminal
      negligence, which assesses blame for the failure to foresee the risk
      that an objectively reasonable person would have foreseen.
      Williams, 735 S.W.3d at 751–52 (emphasis added) (internal citations
      omitted).




                                         11
      The State’s Brief argues that,

      in a case of this nature, the defendant need not be aware of the
      specific risk posed to another. Trepanier v. State, 940 SW2d at 829;
      Elliott, 2015 WL 1869472, at *3. “[W]hat matters is that she
      consciously created an unjustified risk of danger to others.” Elliott,
      2015 WL 1869472, at *3.
      State’s Brief at 25.

      The State’s Brief relies heavily upon Elliot v. State, No. 13-13-00220-CR,

2015 WL 1869472 (Tex. App—Corpus Christi, April 23, 2015) 1 and Trepanier v.

State, 940 S.W.2d 827 (Tex. App.—Austin 1997, writ ref’d).

      In Elliot, this Honorable Court examined a case in which the appellant

admitted “that she was intoxicated, fatigued, and distracted on the road [which]

demonstrated to a rational jury that she consciously created a substantial and

unjustifiable risk of danger to others.” Elliot, 2015 WL 1869472 at *3. Further,

“the jury could have inferred appellant’s recklessness from her furtive conduct

after the accident that demonstrated her consciousness of guilt.” Id. at *4. This

furtive conduct included, continuing to drive after she hit a pedestrian, making no

attempt to stop, going to an auto glass shop the next morning to replace her broken

windshield, telling someone that she was “too drunk” to remain at the scene of the

incident and she fled the scene to avoid arrest, and using bleach to wash the blood




1 Included in Appendix.


                                        12
from her vehicle. Id. The facts of Elliot are strikingly different from the facts in

this case, especially the admissions made by the appellant in Elliot.

      The State concedes this fact and states,

      While Appellant made no such concession in this case, there is
      sufficient evidence in the record from which the jury could have
      reasonably concluded that Appellant created a substantial and
      unjustifiable risk of danger to others. See Trepanier, 940 SW2d 827,
      830 (Tex. App.-Austin 1997, pet. ref’d) (despite lack of concession by
      appellant, evidence was sufficient to show that appellant created a
      substantial and unjustifiable risk).
      State’s Brief at 23–24.

      The State ignores the Court of Criminal Appeals’ instruction that “[r]eckless

requires the defendant to actually foresee the risk involved and to consciously

decide to ignore it.” Williams, 235 S.W.3d at 751.

      Trepanier v. State, 940 S.W.2d 827 (Tex. App.—Austin 1997, writ ref’d), is

a case decided a decade prior to the Court of Criminal Appeals’ decision in

Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007). In Trepanier, the

appellant was convicted of manslaughter after “rapidly accelerating” away from a

red light, cutting “between cars in the middle and right lanes until he reached the

unimproved right shoulder of the road,” and passing a delivery “truck on the right,

driving on the shoulder of the road” killing a bicyclist. Trepanier, 940 S.W.2d at

828. The court in Trepanier cited Rodriguez v. State, 834 S.W.2d 488 (Tex.




                                         13
App.—Corpus Christi 1991, no writ)2, and noted that unlike Rodriguez, the

appellant in Trepanier did not make a concession, however,

       there was sufficient evidence from which a reasonable juror could
       have concluded beyond a reasonable doubt that Trepanier voluntarily
       created a substantial and unjustifiable risk when he moved onto the
       shoulder in order to pass the delivery truck on the right, and that he
       consciously disregarded the risk of killing a bicyclist traveling legally
       on that shoulder when he continued on around the delivery truck.
       Trepanier, 940 S.W.2d at 829.

       This Honorable Court cited Trepanier in its decision in Elliot for the

proposition that “In a manslaughter case, the jury is not required to find that a

defendant was aware of the specific risk of the victim’s death to find recklessness,”

noting that the specificity of knowing a particular victim could be injured was not

required. Elliot, 2015 WL 1869472 at *3.              This Honorable Court went on to

describe that the appellant in Elliot was quite aware of the danger she caused, as

her admission, described above, indicated. Id. at *3–4.

       This Honorable Court also cited Trepanier in a footnote in Elliot as an

example of finding recklessness in driving. Id. at *3, n. 3 (“determining driver was

reckless when he attempted to illegally pass traffic on right shoulder of the road”).

The aforementioned footnote cites four (4) cases in which appellate courts have

upheld the legal sufficiency of convictions involving the culpable mental state of

2 The facts and holding of Rodriguez v. State, 834 S.W.2d 488 (Tex. App.—Corpus Christi
1992, no writ) are discussed in Appellant’s Brief pages 29–30, and distinguished from the
present case at page 32.


                                              14
recklessness and drivers who blatantly disregarded safety. Id. All but Trepanier

were cited in Appellant’s Brief, which cites a total of seven (7) cases and

distinguishes the facts in those cases which would lead to a finding of recklessness,

from the facts in this case. See Appellant’s Brief at 27–33.

      The actions of Mrs. Galvan-Manka and the situation she entered into by

driving on the night of the accident do not amount to a substantial and unjustifiable

risk which she consciously decided to take. Further, there is no evidence to

support that Mrs. Galvan-Manka “actually [did] foresee the risk and consciously

decide to ignore it” as required by Williams v. State, 235 S.W.3d 742 (Tex. Crim.

App. 2007).    Even in a light most favorable to the verdict, there is insufficient

evidence for a rational juror to conclude that Mrs. Galvan-Manka acted recklessly

and her conviction should be reversed.

                  EVIDENCE INSUFFICIENT TO PROVE
                THE ALLEGATIONS IN THE INDICTMENT
                 AND IN THE CHARGE OF THE COURT

      Appellant’s Points of Error 3 and 4 argue that the State failed to produce any

evidence that Mrs. Galvan-Manka crasher her vehicle “INTO AND AGAINST A

BULLDOZER” as alleged in the indictment [1CR3–5] and as was instructed in the

Charge of the Court [1CR1261–68, paragraphs 10–11]. This was a fatal variance




                                         15
and Mrs. Galvan-Manka’s rights to due process and due course of law were

violated.

      In its brief, the State cites the same cases as Appellant, with the addition of

Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012). In Johnson, which the

State’s Brief relied heavily upon, the variance involved “the charged acts of

‘hitting the victim with his hand’ and ‘twisting the victim’s arm with his hand’

versus the proved act of ‘throwing the victim against the wall.’” Johnson, 364

S.W.3d at 298.      The Court provided the following example to illustrate the

variance it was examining,

      “Stabbing with a knife” and “bludgeoning with a baseball bat” are two
      possible ways of murdering Dangerous Dan, but they do not constitute
      separate offenses. These methods of committing murder do describe
      an element of the offense: the element of causation. But murder is a
      result-of-conduct crime. What caused the victim's death is not the
      focus or gravamen of the offense; the focus or gravamen of the
      offense is that the victim was killed.
      Id.

The Court goes on to explain that this type of variance cannot be material because

it cannot show “an ‘entirely different offense’ than what was alleged.” Id.

      Here, the State’s use of “bulldozer” as the object struck by Mrs. Galvan-

Manka’s vehicle was heavily relied upon by the State, as described in Appellant’s

Brief. Unlike Johnson, this is not the difference between an allegation that the

defendant hit another with his hand and twisted the arm of another with his hand,


                                         16
versus throwing another into a wall, this is the difference between twisting the arm

of the victim and throwing the victim off of the Grand Canyon. See Johnson, 364

S.W.3d at 298. The variance in this case was utilized again and again by the State

to conjure notions within the minds of the jury of Mrs. Galvan-Manka plowing her

vehicle into a steel bulldozer, capable of destroying buildings. The testimony of

Officer Ramirez is one example of this reliance, “It was not an average accident.

She had crashed into a bulldozer which never happens. I've never seen that before

in my ten years.” 3RR32. Officer Ramirez then admits that he does not know if it

was a bulldozer and another officer described it differently. 3RR33. The State

latched onto the term bulldozer to promote the effects of that term. The use of this

term prejudiced Mrs. Galvan-Manka and impaired her ability to prepare her defend

herself against an object which the State would describe over and over, but never

show.     This prejudiced Mrs. Galvan-Manka and her conviction should be

overturned.

                          NON-UNANIMOUS VERDICT

        Appellant’s Point of Error 5 argues that the Charge of the Court and the

closing argument of the State resulted in a non-unanimous verdict.

        The State’s Brief contends that trial counsel did not object to the change in

the Charge of the Court, which the State argued in closing. State’s Brief at 31.



                                          17
However, the trial court and the State were on notice of the object to the change.

The State requested a change “in Courts 3 and 4 to change ‘and’ to ‘or’” and

stated, “I have case law coming on that.” 5RR73–74. The trial court then went

into recess.   5RR74.    In arguing the Motion for New Trial, defense counsel

reminded the trial court that the State, in its indictment, listed “a litany of things

that the defendant did wrong but when it came to charging the jury on the guilt

innocence charge, they wanted to use the word ‘or.’ We objected to it…” 9RR24.

This served the purpose of objecting to the change in the Charge of the Court

which the State argued in closing arguments.

      The State’s Brief contends that reliance on Ngo v. State, 175 S.W.3d 738

(Tex. Crim. App. 2005), “is misplaced because that case dealt with an indictment

that contained three paragraphs within a single count that alleged three distinct

offenses." State’s Brief at 31–32. In Ngo, the Court of Criminal Appeals stated,

      The State is mistaken in its first argument that the trial court simply
      submitted a single “credit card abuse” offense with three different
      statutory manners and means. The phrase “manner or means”
      describes how the defendant committed the specific statutory criminal
      act. It does not mean that the State can rely upon a laundry list of
      different criminal acts and let the individual jurors take their pick on
      which each believes the defendant committed.
      Ngo, 175 S.W.3d at 745.




                                         18
       Here the State, relying on the Charge of the Court argued to the jury, “juror

number 6 could think that it is by failing to keep the motor vehicle operated by the

defendant on the roadway while juror number 7 could say it is by operating a

motor vehicle while impaired.” 6RR9. The Charge of the Court, as illustrated by

this statement by the State allowed the jurors to convict Mrs. Galvan-Manka of

crimes which could range from Reckless Driving, [Tex. Transp. Code Ann. §

545.401(a) (“A person commits an offense if the person drives a vehicle in wilful

or wanton disregard for the safety of persons or property.”)] to Deadly Conduct

[Tex. Penal Code Ann. § 22.05 (a) (“A person commits this offense is he recklessly

engages in conduct that places another in imminent danger of serious bodily

injury.”).

       As argued by Appellant’s Brief, this resulted in a non-unanimous verdict,

which harmed Mrs. Galvan-Manka. Thus, her conviction should be reversed.

                                     PRAYER

       As the evidence was legally insufficient to sustain Mrs. Galvan-Manka’s

conviction, it should be reversed and rendered. With regard to all other error, Mrs.

Galvan-Manka respectfully requests that her conviction be reversed and she be

granted a new trial.




                                         19
                                       Respectfully submitted:

                                       DANTE ELI DOMINGUEZ
                                       Bar No. 24086677
                                       Law Office of Dante Eli Dominguez
                                       310 S. St. Mary’s St.
                                       Suite 1215
                                       San Antonio, Texas 78205
                                       Phone: (210) 227-9399
                                       Facsimile: (210) 229-1445
                                       E-mail: ddominguez.law@gmail.com

                                       By:__________/s/_________________
                                              DANTE ELI DOMINGUEZ

                                       Attorney for Appellant,
                                       MONICA GALVAN



                     CERTIFICATE OF COMPLIANCE
    I hereby certify that this document complies with the typeface requirements of

Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes. This document does

comply with the word-count limitations of Tex. R. App. P. 9.4(i) because it

contains 4,172 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).


                                       By:___________/s/________________
                                              DANTE ELI DOMINGUEZ




                                       20
                         CERTIFICATE OF SERVICE

I hereby certify that a copy of the above foregoing Appellant’s Brief has been

served electronically, in compliance with Tex. R. App. P. 9.5(b)(1) to Mark

Skurka, District Attorney, 901 Leopard Street, Room 206, Corpus Christi, Texas,

on this the 28th day of September, 2015.

                                       By:__________/s/_________________
                                              DANTE ELI DOMINGUEZ




                                           21
                        No. 13–14–00059–CR

                    COURT OF APPEALS
          FOR THE THIRTEENTH JUDICIAL DISTRICT
            CORPUS CHRISTI/ EDINBURG, TEXAS



MONICA GALVAN,                    §
Appellant,                        §    Appeal from the
                                  §    347th Judicial District Court
versus                            §    of Nueces County, Texas
                                  §    Cause No. 11–CR–3519–H
THE STATE OF TEXAS,               §
Appellee.                         §



                 REPLY BRIEF FOR APPELLANT

                             APPENDIX



         Elliot v. State, No. 13-13-00220-CR, 2015 WL 1869472
         (Tex. App—Corpus Christi, April 23, 2015).




                                  22
Elliott v. State, Not Reported in S.W.3d (2015)




                                                                defense; (3) the trial court erred in not allowing appellant
                 2015 WL 1869472                                to cross-examine several State’s witnesses on their
   Only the Westlaw citation is currently available.            personal driving habits to determine how an ordinary
                                                                person would operate a vehicle; and (4) the trial court erred
  SEE TX R RAP RULE 47.2 FOR DESIGNATION                        in denying her motion to suppress text messages found on
         AND SIGNING OF OPINIONS.                               appellant’s company-issued phone under the Fourth
                                                                Amendment. We affirm.
    DO NOT PUBLISH. TEX. R. APP. P. 47.2(B).
           Court of Appeals of Texas,
           Corpus Christi-Edinburg.

              Tabatha Elliott, Appellant,                                             I. Background1
                           v.
             The State of Texas, Appellee.                      On May 29, 2012, at approximately one o’clock in the
                                                                morning, appellant was driving home in her Chrysler PT
 NUMBER 13–13–00220–CR | Delivered and filed                    Cruiser with an intoxicated passenger after leaving a bar
              April 23, 2015                                    when she struck a pedestrian, Gilbert Reyna, who died as a
                                                                result of the injuries he sustained. At the time, Gilbert was
On appeal from the 319th District Court of Nueces               pushing a bicycle on the side of the road. He was
County, Texas. Thomas Greenwell, Judge                          accompanied by his brother, Jesse Reyna. Jesse testified
                                                                that he and Gilbert were walking on the shoulder of the
Attorneys and Law Firms                                         road when, suddenly, a vehicle struck Gilbert; however,
                                                                Jesse could not identify the vehicle nor its driver, since the
Andrew W. Loveall, Attorney at Law, Corpus Christi, TX,         driver continued driving without stopping and “a lot of dirt
for Appellant.                                                  and dust” obstructed his view as the vehicle drove away.
                                                                When morning came, appellant’s passenger informed
Mark Skurka, District Attorney, Douglas K. Norman, Asst.        investigating officers that appellant might have been
District Attorney, Corpus Christi, TX, for The State.           involved in the accident. Based on this tip, investigators
Before Chief Justice Valdez and Justices Garza and              made contact with appellant, who admitted that she struck
Longoria                                                        something on the road and continued driving without
                                                                stopping. Appellant was then taken into custody.

                                                                During a police interview admitted into evidence,
                                                                appellant acknowledged that she considered the possibility
              MEMORANDUM OPINION                                that she had hit a person, but consistently stated that she
                                                                thought it was an animal or a sign. She admitted that she
Memorandum Opinion by Chief Justice Valdez                      had been reaching down to pick up a cigarette when,
                                                                suddenly, she heard something hit her windshield. She
*1 A jury found appellant, Tabatha Elliot, guilty of            admitted that she had been drinking at a bar earlier that
manslaughter, see TEX. PENAL CODE ANN. § 19.04                  night with her passenger, that she was tired at the time of
(West, Westlaw through 2013 3d C.S.), tampering with or         the accident, that her intoxicated passenger was distracting
fabricating physical evidence, see id. § 37.09 (West,           her by being loud, and that she had to turn up the radio to
Westlaw through 2013 3d C.S.), and accident involving           drown him out. Appellant first stated that she went straight
personal injury or death, see TEX. TRANSP. CODE ANN.            to sleep after she arrived home, but later revealed that her
§ 550.021 (West, Westlaw through 2013 3d C.S.). By four         passenger drove her back to the scene. She stated that the
issues, which we have reorganized, appellant contends (1)       police had already arrived when they returned to the scene
the evidence was legally insufficient for a rational jury to    and that, although she wanted to talk to the authorities, her
convict her of manslaughter; (2) the trial court erred in       passenger persuaded her to wait until the morning.
allowing the State to introduce certain evidence concerning
the situs of the accident on the basis that it constituted an   *2 Vivian Sanchez, an inmate who was in jail with
improper expert or lay opinion and unfairly prejudiced her      appellant after her arrest, testified that appellant admitted
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                        1
Elliott v. State, Not Reported in S.W.3d (2015)



that she had consumed two shots of tequila and two beers          manslaughter.2 Specifically, appellant contends that no
on the night of the accident and that, after the accident, she    evidence was presented that she “recklessly” caused
attempted to wash blood off her car with Clorox and water.        Gilbert’s death. See TEX. PENAL CODE ANN. § 19.04.
Regarding appellant’s reason for not stopping, Sanchez
testified:                                                        We conduct our sufficiency review by applying the
                                                                  Jackson v. Virginia standard of review. See Brooks v.
  [Appellant] said, “I was too drunk to go back. I’m not          State, 323 S.W.3d 893, 906 (Tex.Crim.App.2010)
  going to go back. Do you think I’m going to go back and         (plurality op.). Under this standard, the relevant question is
  get arrested? No.” And then [appellant] was upset               whether, after viewing the evidence in the light most
  because whoever she was with, I don’t know the name, I          favorable to the prosecution, “any rational trier of fact
  don’t recall the name, that person was yelling for her to       could have found the essential elements of the crime
  go back. And she said, “No. I’m going to wash this off,         beyond a reasonable doubt.” See Jackson v. Virginia, 443
  and I’ve got to get it done tonight.” And she did.              U.S. 307, 319 (1979); see Brooks, 323 S.W.3d at 902 n.19.
                                                                  The jury is the “exclusive judge of the credibility of
The police investigation revealed that, a few hours after the     witnesses and of the weight to be given testimony, and it is
accident, appellant replaced her broken windshield with a         also the exclusive province of the jury to reconcile
new one, and that there were white marks on appellant’s           conflicts in the evidence.” Wesbrook v. State, 29 S.W.3d
car indicative that someone had tried to clean it. The lead       103, 111 (Tex.Crim.App.2000). The standard for
investigator on the case testified that he elected not to         reviewing the sufficiency of the evidence is the same for
request a blood sample from appellant to determine alcohol        both direct and circumstantial evidence. Kutzner v. State,
content because too much time had elapsed between the             994 S.W.2d 180, 184 (Tex.Crim.App.1999).
time of the accident and his initial contact with her to get an
accurate result.                                                  *3 Sufficiency of the evidence is measured by the elements
                                                                  of the offense as defined by a hypothetically correct jury
The evidence showed that on the night of the hit-and-run,         charge. Malik v. State, 953 S.W.2d 234, 240
Gilbert was wearing a black shirt and khaki shorts; his           (Tex.Crim.App.1997). A hypothetically correct jury
bicycle was dark and chrome in color; and there was “a lot        charge is one that “sets out the law, is authorized by the
of light” in the area where the accident occurred.                indictment, does not unnecessarily increase the state’s
According to Jesse, lights from a nearby building provided        burden of proof or unnecessarily restrict the state’s theories
additional visibility. Officers who collected evidence at the     of liability, and adequately describes the particular offense
accident scene testified that, although they were able to         for which the defendant was tried.” Id.
recover Gilbert’s bicycle, they could not locate a bicycle
reflector at the scene; however, Jesse testified that the         A person commits manslaughter if she recklessly causes
bicycle was equipped with a reflector underneath the seat         the death of an individual. See TEX. PENAL. CODE
prior to the accident.                                            ANN.. § 19.04(a). A person acts recklessly with respect to
                                                                  the result of her conduct when she is aware of, but
The jury found appellant guilty and assessed punishment at        consciously disregards, a substantial and unjustifiable risk
fifteen years in prison for manslaughter, ten years in prison     that the result will occur. Id. § 6.03(c) (West, Westlaw
for tampering with or fabricating physical evidence, and          through 2013 3d C.S.). The risk must be of such a nature
ten years in prison for accident involving personal injury or     and degree that its disregard constitutes a gross deviation
death, with the sentences to run concurrently. The jury also      from the standard of care that an ordinary person would
assessed a $10,000 fine on each of the three counts. This         exercise under all circumstances as viewed from the
appeal followed.                                                  actor’s standpoint. Id.; Garza v. State, 50 S.W.3d 559, 564
                                                                  (Tex.App.–Houston [1st Dist.] 2001, no pet.). “[P]roof of a
                                                                  culpable mental state generally relies on circumstantial
                                                                  evidence.” Lopez v. State, 630 S.W.2d 936, 942
                                                                  (Tex.Crim.App. [Panel Op.] 1982) (quoting Dillon v.
                       II. Discussion                             State, 574 S.W.2d 92, 94 (Tex.Crim.App. [Panel Op.]
                                                                  1978)). A culpable mental state may be inferred from the
A. Sufficiency of the Evidence
                                                                  defendant’s acts, words, and conduct. Dues v. State, 634
By her fourth issue, appellant contends the evidence was
                                                                  S.W.2d 304, 306 (Tex.Crim.App.1982). “At the heart of
insufficient for a rational jury to convict her of
                                                                  reckless conduct is conscious disregard of the risk created
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                          2
Elliott v. State, Not Reported in S.W.3d (2015)



by the actor’s conduct.” Lewis v. State, 529 S.W.2d 550,        the sound of any squealing tires before appellant struck
553 (Tex.Crim.App.1975). Recklessness can be applied            Gilbert, and investigators could not locate any skid marks
generally to the act of driving. See Porter v. State, 969       at the scene. Furthermore, appellant admitted that she was
S.W.2d 60, 63 (Tex.App.–Austin 1998, pet. ref’d).3 In a         searching for a cigarette in her car when, suddenly, she hit
manslaughter case, the jury is not required to find that a      something on the road. Appellant’s admission that she was
defendant was aware of the specific risk of the victim’s        distracted on the road could have indicated to a rational
death to find recklessness. See Trepanier v. State, 940         jury that the accident was not due to poor visibility
S.W.2d 827, 829 (Tex.App.–Austin, 1997 pet. ref’d).             conditions, as appellant argued at trial; rather, it was due to
                                                                her failure to keep a proper lookout and maintain a single
Appellant challenges the sufficiency of the evidence as to      lane, as the State alleged in its indictment.
the mental state element of manslaughter requiring the
State to prove that she recklessly caused Gilbert’s death.4     Finally, the jury could have inferred appellant’s
The State’s manslaughter indictment alleged that appellant      recklessness from her furtive conduct after the accident
was reckless “by failing to control her motor vehicle,          that demonstrated her consciousness of guilt. See Cockrum
[failing] to keep a proper lookout, [failing] to maintain a     v. State, 758 S.W.2d 577, 581 (Tex.Crim.App.1988)
single lane of travel, [failing] to keep her vehicle on the     (holding that the defendant’s demeanor after the crime, in
roadway, and by driving her motor vehicle onto the              the form or nervous or furtive behavior, may indicate
shoulder of the roadway.” Here, by her own admission,           guilty knowledge and be used as evidence of guilt). The
appellant was voluntarily intoxicated and distracted at the     evidence showed that appellant continued driving after she
time of the accident. Appellant admitted that she consumed      hit Gilbert, that she made no attempt to stop, and that she
two shots of tequila and two beers at a bar before the          went to an auto glass shop to replace her broken windshield
accident. She also admitted that she was “drunk,” tired,        as soon as the morning came. The investigating officer
distracted by her passenger, and reaching for a cigarette in    who made initial contact with appellant noticed white
her car moments before she struck Gilbert. Appellant’s          marks on the surface of appellant’s car, which appeared to
admission that she was intoxicated, fatigued, and distracted    the officer as though someone had tried to remove
on the road demonstrated to a rational jury that she            something from the surface. Appellant further showed a
consciously created a substantial and unjustifiable risk of     consciousness of guilt when she told Sanchez that she was
danger to others. See Rodriguez v. State, 834 S.W.2d 488,       “too drunk” to remain at the accident scene, that she fled to
490 (Tex.App.–Corpus Christi 1992, no pet.) (holding            avoid being arrested, and that she washed blood off her car
evidence legally sufficient based on appellant’s statement      with Clorox and water after the accident.
that she took the corner “too fast,” which indicated that she
was aware of the risk created by her conduct); see also         Viewed in the light most favorable to the prosecution, the
Rubio v. State, 203 S.W.3d 448, 452 (Tex.App.–El Paso           evidence showed that appellant allowed her vehicle to veer
2006, pet. ref’d) (observing that driving under the             onto the shoulder of the road as a result of a combination of
influence of alcohol can be used to show conscious              factors that, taken together, indicated she consciously
disregard of substantial risk). It does not matter that         created and disregarded a substantial and unjustified risk of
appellant may not have perceived the specific risk that her     harm to the people around her. Because we do not believe
conduct would cause another person to die; what matters is      it was unreasonable for the jury to find the element of
that she consciously created an unjustified risk of danger to   recklessness beyond a reasonable doubt, we overrule her
others. See id.                                                 fourth issue.

*4 Moreover, the jury could have reasonably inferred that
nothing prevented appellant from noticing Gilbert on the
side of the road before she struck him. The jury heard          B. Evidentiary Rulings
evidence that (1) the bicycle Gilbert pushed was partially      By her first and third issues, appellant contends that the
chrome in color and equipped with a reflector underneath        trial court made improper evidentiary rulings that
the seat, (2) lights from a nearby building illuminated the     prejudiced her ability to present a defense.
area, (3) Gilbert was wearing khaki shorts, and (4) Gilbert
was walking on the shoulder of the road.5 Although Gilbert
was reasonably visible to drivers on the road, there was no
evidence that appellant made any attempt to avoid the           a. Area of Impact (State’s Exhibit Number 9)
accident; for instance, Jesse testified that he did not hear    By her first issue, appellant contends that the trial court
                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         3
Elliott v. State, Not Reported in S.W.3d (2015)



erred in allowing the State to introduce a diagram of the
accident scene into evidence. Specifically, appellant            After hearing all of this testimony, the trial court overruled
complains of a representation in the State’s diagram, which      appellant’s objections and allowed the State to introduce
indicated that her car struck Gilbert in an area that was        the diagram into evidence; however, the court provided the
situated exclusively within the shoulder of the road,            following cautionary instruction to the State:
referred to in the diagram as “AOI” or “area of impact.”
Appellant asserts the area of impact designation should not                   Okay, I’m going to let [the diagram
have been admitted into evidence on the basis that (1) the                    depicting the area of impact into
officers who investigated the accident scene were not                         evidence] as long as the State
proper lay witnesses under Texas Rule of Evidence 701                         understands, that the State needs to
because they did not see the accident occur and, therefore,                   have sufficient explanation of what
could not render an opinion about the area within which the                   it is and not mislead the jury that it’s
impact could have occurred; (2) the officers were not                         something other than what it is. It’s
qualified as experts under Rule 702 to render an opinion                      not scientific evidence, it’s not
about where the impact could have occurred; and (3) the                       based on any sort of scientific
probative value of the evidence concerning area of impact                     determination, and also that the
was substantially outweighed by the danger that it could                      circle that’s drawn in the shoulder is
mislead the jury and unfairly prejudiced her case under                       not necessarily ... even accurate.
Rule 403.                                                                     Both officers already testified that
                                                                              the area of impact could be much
                                                                              greater than [it is depicted in the
                                                                              diagram] and could extend out into
                                                                              the roadway.
                     1. Pertinent Facts

*5 The trial court held a hearing outside the presence of the
jury to determine the admissibility of the area of impact
designation in the State’s diagram. Two officers testified
                                                                                          2. Analysis
about how they determined the area of impact. Regarding
the area of impact, the officers testified to the following:     We review a trial court’s decision to admit or exclude
(1) they based the area of impact on the first piece of debris   evidence for an abuse of discretion. Shuffield v. State, 189
they came upon on the right side of the road; (2) Jesse, who     S.W.3d 782, 793 (Tex.Crim.App.2006). A trial court does
was present for the accident, did not know where the             not abuse its discretion if its decision falls within the zone
impact actually occurred and did not aid the officers in         of reasonable disagreement. See Walters v. State, 247
making the determination; (3) the area of impact was not         S.W.2d 204, 217 (Tex.Crim.App.2007). We will sustain
determined by utilizing any kind of scientific theory or         the trial court’s decision if that decision is correct on any
principle; (4) the officers were not experts in the field of     theory of law applicable to the case. Romero v. State, 800
accident reconstruction or the like; and (5) it is common in     S.W.2d 539, 543 (Tex.Crim.App.1990).
the investigation of an accident involving a fatal
hit-and-run of a pedestrian with no witnesses to determine       Generally, “observations which do not require significant
the area of impact by reviewing the spread of debris found       expertise to interpret and which are not based on a
on the road. The officers also testified that “area of impact”   scientific theory can be admitted as lay opinions if the
is not the same as “point of impact.” The “area of impact”       requirements of [Texas Rule of Evidence] 701 are met.”
refers to the general area within which the “point of            Osbourn       v.   State,     92    S.W.3d      531,     537
impact” is believed to have occurred. The officers testified     (Tex.Crim.App.2002). Under Rule 701, a lay witness can
that it was not possible to identify a point of impact in this   testify in the form of an opinion if the opinion is (a)
case. On cross-examination, both officers testified that the     rationally based on his or her perceptions and (b) helpful to
diagram may not accurately depict the actual size of the         the clear understanding of the testimony or the
area of impact; they testified that, although the diagram        determination of a fact in issue. See TEX. R. EVID. 701;
limited the area of impact to the shoulder of the road, the      see also Fairow v. State, 943 S.W.2d 895, 898
actual area could be six to ten feet wider than it is shown in   (Tex.Crim.App.1997).
the diagram and could have extended onto the road.

                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                         4
Elliott v. State, Not Reported in S.W.3d (2015)



The first requirement for admissibility, perception, refers        It appears that the trial court, after hearing the testimony of
to a “witness’s interpretation of information acquired             the officers, determined that the diagram’s depiction of the
through his or her own senses or experiences at the time of        area of impact was not necessarily reflective of the
the event (i.e., things the witness saw, heard, smelled,           officers’ opinion concerning the actual size of the area of
touched, felt, or tasted).” Osbourn, 92 S.W.3d at 535.             impact; although the diagram limited the area of impact to
Thus, a witness’s testimony can include opinions, beliefs,         the shoulder of the road, the officers testified that the actual
or inferences “as long as they are drawn from his or her           area of impact was not necessarily limited to the shoulder
own experiences or observations.” Id. Once the perception          and could have extended out onto the roadway. Although
requirement is satisfied, the trial court must then determine      the trial court acknowledged that the diagram’s depiction
if the opinion is “rationally based on that perception. An         of the area of impact was “not necessarily ... accurate,” the
opinion is rationally based on perception if it is an opinion      trial court reasonably determined that this evidence would
that a reasonable person could draw under the                      be helpful to the jury as long as the State, in presenting the
circumstances.” Fairow, 943 S.W.2d at 899–900.                     evidence, “sufficient[ly] explain[ed]” the inaccuracy and
                                                                   did not mislead the jury into believing that the area of
The second requirement for admissibility under Rule 701            impact was limited to the shoulder of the road. Our review
is that the opinion must be “helpful to the trier of fact to       of the record indicates that the State heeded the trial court’s
either understand the witness’s testimony or to determine a        curative instruction by presenting the diagram in a manner
fact in issue.” Id. There is no bright line indicating when an     that accurately illustrated the officers’ testimony
opinion is helpful, but the court of criminal appeals has          concerning the area of impact. Considering the manner in
explained that “general evidentiary considerations of              which the jury received the evidence at issue, we cannot
relevance and balancing will invariably assist the trial           conclude that the trial court abused its discretion in ruling
judge in making his determination.” Id. For example, “a            the way it did.6 See Fairow, 943 S.W.2d at 899–900.
trial court properly acting within its discretion may
determine that the confusing, misleading or cumulative             Even if we were to assume that the trial court erred in
nature of an opinion renders it not helpful to the trier of fact   admitting the complained—of portion of the diagram into
and thus improper under Rule 701.” Id. at 900. Even if a           evidence, we would nevertheless be compelled to conclude
lay opinion meets both requirements under Rule 701, a trial        that the error, if any, was harmless. We review the
court has discretion under Rule 403 to exclude the opinion         erroneous admission of evidence under a harm analysis for
if its probative value is substantially outweighed by a            nonconstitutional error. See Walters v. State, 247 S.W.3d
danger of unfair prejudice or misleads the jury. See TEX.          204, 219 (Tex.Crim.App.2007). Under this analysis, we
R. EVID. 403.                                                      must disregard a nonconstitutional error that does not
                                                                   affect the defendant’s substantial rights. See TEX. R. APP.
*6 Here, the trial court could have reasonably concluded           P. 44.2(b). The erroneous admission of evidence does not
that the officers’ opinion as to the area of impact was not        affect substantial rights if this Court, “after examining the
based on a scientific theory and did not require significant       record as a whole, has fair assurance that the error did not
expertise to interpret because the officers based their            influence the jury, or had but a slight effect.” See Solomon
opinion on a review of the spread of debris found on the           v. State, 49 S.W.3d 356, 365 (Tex.Crim.App.2001). In
road, which they personally witnessed. See Osbourn, 92             making this determination, we consider “everything in the
S.W.3d at 537; see also Brown v. State, 303 S.W.3d 310,            record, including any testimony or physical evidence
320 (Tex.App.–Tyler 2009, pet. ref’d) (holding that officer        admitted for the jury’s consideration, the nature of the
did not require expert qualification to render an opinion          evidence supporting the verdict, the character of the
about where the vehicle accident occurred because he               alleged error and how it might be considered in connection
observed the evidence at the accident scene first hand and         with other evidence in the case.” Morales v. State, 32
formed his opinion, in part, on a review of the spread of          S.W.3d 862, 867 (Tex.Crim.App.2000). We also consider
debris on the road). Thus, following Osbourn, the diagram          other factors, including jury instructions, the State’s
limiting the area of impact to the shoulder of the road was        theory, any defensive theories, and closing arguments. See
admissible if it met the requirements of Rule 701—i.e., a          Motilla     v.     State,     78     S.W.3d       352,   355
reasonable person under the circumstances could draw the           (Tex.Crim.App.2002).
same conclusion regarding the area of impact, and the
diagram was helpful to the jury. Osbourn, 92 S.W.3d at             After examining the record as a whole, we have a fair
537; Fairow, 943 S.W.2d at 899–900.                                assurance that the diagram limiting the area of impact to
                                                                   the shoulder of the road did not influence the jury. The
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Elliott v. State, Not Reported in S.W.3d (2015)



record shows the State heeded the trial court’s                  Gilbert by recklessly driving on the shoulder of the road.
admonishment to not mislead the jury when presenting the         See Anguiano v. State, 774 S.W.2d 344, 347 (Tex.App.–
evidence concerning area of impact; none of the officers on      Houston [14th Dist.] 1989, no pet.) (finding error was
direct examination testified that their determination of the     harmless because “there was other testimony [other than
area of impact was based on a scientific principle or theory,    the erroneously admitted testimony] upon which the jury
and they were candid about their lack of expertise in any        could reach its own determination”). Appellant’s first issue
relevant field. See Brown, 303 S.W.3d at 321 (concluding         is overruled.
that any error in admitting an improper lay witness opinion
concerning the situs of the vehicle accident was harmless
because the witness was candid about the limitations of his
training in accident investigation, and he did not profess to    b. Personal Driving Experiences of Witnesses
have more training and experience than he actually               By her third issue, appellant contends the trial court erred
possessed). Furthermore, the State, in its closing argument      in not allowing her to question certain witnesses about
to the jury, made no mention of the area of impact in the        their personal driving habits and experiences on the road.
diagram and, thus, did not emphasize the alleged error—a         Specifically, appellant asserts she had a constitutional right
consideration which weighs against a finding of harm. See        to poll several witnesses, who were all police officers, to
Motilla, 78 S.W.3d at 356 (observing that the State’s            determine whether they had ever divided their attention
emphasis of the error at trial is a factor to be considered in   while driving on the road in order to change the radio
harm analysis); King v. State, 953 S.W.2d 266, 272               station, use a cell phone, turn to talk to a passenger, or
(Tex.Crim.App.1997) (same). Moreover, the officers               reach for a dropped item.7 In support of this proposition,
testified on cross-examination that the area of impact could     appellant cites the cases of In re Winship, 397 U.S. 358
extend beyond the shoulder and onto the roadway, and they        (1970) and Crocker v. State, 573 S.W.2d 190
even went so far as to edit the State’s previously introduced    (Tex.Crim.App.1978), and argues the trial court’s
diagram to accurately depict the size of the area of impact;     evidentiary rulings were contrary to those cases. However,
the record reflects that both officers, using a pen on the       In re Winship and Crocker concern the constitutional
witness stand, drew a wider circle on an identical copy of       standard of proof required to secure a juvenile or adult
the State’s diagram, which expanded the area of impact           criminal conviction; they do not concern evidentiary
beyond the shoulder and onto the roadway. These edited           rulings at the trial level involving cross-examination of
versions of the State’s diagram were introduced into             witnesses, and appellant does not adequately explain, nor
evidence as defense exhibits eight and eleven for the jury       can we discern, how they apply to this case. Appellant has
to review.                                                       failed to provide a clear and concise argument with
                                                                 citations to the record and authority to support her third
*7 In finding harmless error, we recognize that appellant’s      issue; it is therefore inadequately briefed for our review.
defensive theory involved refuting the State’s evidence          See TEX. R. APP. P. 38.1(i).
that she drove on the shoulder of the road by attempting to
demonstrate that Gilbert was walking in her lane of travel       Nevertheless, we conclude that appellant’s argument is
at the time of the accident. We also recognize that the          without merit. A review of the record indicates that, prior
State’s diagram, which limited the area of impact to the         to the evidentiary rulings made the basis of this issue,
shoulder of the road, was at odds with appellant’s               appellant had already polled not one, but two State’s
defensive theory. However, even without the State’s              witnesses with questions identical to the ones she sought to
diagram in evidence, the jurors were presented with other        ask subsequent witnesses.8 The trial court has broad
evidence indicating appellant struck Gilbert on the              discretion     to    impose      reasonable     limits   on
shoulder; for instance, Jesse testified that Gilbert stayed on   cross-examination to prevent the injection of cumulative
the shoulder of the road at all times during their walk          evidence. See Lopez v. State, 18 S.W.3d 220, 222
home. Additionally, appellant, in her video interview,           (Tex.Crim.App.2000) (citing Lagrone v. State, 942 S.W.2d
stated that she believed she might have hit a sign, which,       602, 613 (Tex.Crim.App.1997)); see also TEX. R. EVID.
by way of reasonable inference, meant the impact did not         403 (stating that even relevant evidence may be excluded if
occur in her lane of travel unless there was a sign in her       the trial court determines that “its probative value is
lane of travel, and there was no evidence of that. Thus,         substantially outweighed by ... needless presentation of
while the State’s diagram was inconsistent with appellant’s      cumulative evidence.”). Thus, even assuming the questions
defensive theory, the jurors could have reasonably rejected      appellant sought to ask subsequent witnesses were relevant
her theory based on other testimony indicating she struck        to the case, the trial court acted within its discretion to
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Elliott v. State, Not Reported in S.W.3d (2015)



avoid the presentation of cumulative evidence. We                     [Defense]: Okay. Did the company have any written
therefore overrule appellant’s third issue.                           protocols or requirements for the use of that phone?

                                                                      [Butler]: No.

C. Motion to Suppress                                                 [Defense]: Did the company do any searches of that
*8 By her second issue, appellant contends the trial court            phone or checks of the actual physical phone, itself, at
erred in denying her motion to suppress certain text                  any time?
messages found on appellant’s company-issued cell phone
that police obtained after appellant’s employer, who is also          [Butler]: No.
appellant’s mother, provided written permission to search
the phone. Specifically, appellant, citing State v. Granville,        [Defense]: Was that something that was not any type
argues she had a legitimate and reasonable expectation of             of overt policy for the company to regularly check
privacy in the contents of her cell phone. 423 S.W.3d 399             that phone?
(Tex.Crim.App.2014) (holding a defendant normally has a
                                                                      [Butler]: No.
reasonable expectation of privacy in his or her cellular
telephone that is stored temporarily in a jail property room          [Defense]: You, as the owner of the company, did you
following arrest); Riley v. California, ––– U.S. ––––, 134            consider that to be [appellant’s] phone?
S.Ct. 2473 (2014) (holding police generally may not,
without a warrant, search digital information on a cell               [Butler]: Yes.
phone seized from a person who has been arrested). The
State responds that appellant did not reasonably expect          On cross-examination, the State elicited testimony from
privacy in the contents of her cell phone under the Fourth       Butler that the phone was purchased with company funds
Amendment, and, even if she did, appellant’s employer            and that appellant would not be able to make use of it if the
had actual or apparent authority to consent.                     company stopped paying the phone bill. After hearing
                                                                 Butler’s testimony, the trial court asked the prosecutor
                                                                 whether the police obtained consent from any party to
                                                                 search the phone. The prosecutor responded that Sergeant
1. Pertinent Facts                                               Schwartz, a State’s witness, would be able to speak
The trial court held a hearing on appellant’s oral motion to     directly to the issue of consent, but that he was not
suppress certain text messages that police obtained from         scheduled to testify until later in the trial. Appellant’s
appellant’s company-issued cell phone. At the hearing,           counsel then proposed that the trial court reserve ruling on
Teresa Ann Butler, appellant’s employer and mother,              the motion to suppress until after the State adduced
testified that she owns a transportation company, that           additional evidence from Sergeant Schwartz on the issue of
appellant worked for the company, and that appellant was         consent. The trial court took the consent issue under
issued a cell phone as part of her employment. Butler            advisement and reserved ruling on appellant’s suppression
testified to the following facts regarding the nature of         motion.
appellant’s use of this cell phone:
                                                                 Later at trial, immediately prior to Sergeant Schwartz’s
     [Defense]: Was the phone for the exclusive use of
                                                                 testimony, the trial court asked the State if it had additional
     [appellant]?
                                                                 evidence to present on the issue of consent, and the State
     [Butler]: Yes.                                              responded, “[w]e talked to [Sergeant Schwartz], Judge. He
                                                                 said that he obtained consent from [Butler] and never
     [Defense]: Did anybody else use that phone?                 asked [for consent] from [appellant].” The trial court then
                                                                 ruled the cell phone messages were admissible. After the
     [Butler]: No.                                               trial court ruled on appellant’s motion to suppress, defense
                                                                 counsel asked the State to stipulate that Sergeant Schwartz
     [Defense]: Okay. Was she authorized to use [the             never obtained consent from appellant to search her phone.
     phone] for her personal use as well?                        The State did not agree to the stipulation at that time but
                                                                 indicated that it would do so “after talking to [Sergeant
     [Butler]: Yes.                                              Schwartz].” Trial on the merits recommenced with

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Elliott v. State, Not Reported in S.W.3d (2015)



Sergeant Schwartz testifying to the following facts              relevant, but not dispositive, to this determination. Id.
regarding consent, which drew no objection from the              Common authority is shown by the parties’ joint access,
defense:                                                         mutual use, or control over the property for most purposes,
                                                                 so that “it is reasonable to recognize that any of the
             *9 When I took [appellant] into                     co-inhabitants has the right to permit the inspection in his
             custody, I—the phone was given to                   own right and that the others have assumed the risk that
             [Butler]. I contacted [Butler] to see               one of their number might permit the common area to be
             about getting the phone so I could                  searched.” Id. at 560–61 (quoting United States v. Matlock,
             search it. I was able to get                        415 U.S. 164, 172 (1974)). When a defendant assumes the
             permission from [Butler] since the                  risk that another may permit a search of shared property, he
             phone is paid for by [Butler].                      may not complain of that search under the Fourth
             [Butler] told me it’s a company                     Amendment. Id. at 561.
             phone. So she gave me consent
             to—a handwritten consent to search                  A third party’s actual authority over the property is not a
             the phone for text messages.                        prerequisite for a valid consensual search. Id. Our law also
                                                                 recognizes that, in some circumstances, a valid consensual
Defense counsel also cross-examined Sergeant Schwartz            search may occur when a third party has “apparent
on the consent issue. Later at trial, when the State sought to   authority” over the property. Id. The Texas Court of
introduce the content of these text messages into evidence,      Criminal Appeals recently explained:
appellant objected on Fourth Amendment grounds. The
trial court overruled appellant’s objection, and admitted, as                 [W]hen an officer reasonably,
State’s Exhibit 33, the text messages into evidence.                          though erroneously, believes that a
Included in State’s Exhibit 33 is a handwritten letter,                       third party purporting to provide
signed by Butler and dated May 30, 2012, in which Butler                      consent has actual authority over the
expressly grants Sergeant Schwartz permission to                              place or thing to be searched,
“download any text or voicemail messages” from the cell                       apparent authority exists and the
phone. In this consent letter, Butler described the phone as                  purported consent from the third
“one of my company cell phones.” The State also                               party can serve to make the search
introduced appellant’s May 29, 2012 video interview with                      reasonable. Even if the third party
Sergeant Schwartz, wherein appellant referred to her                          lacks     actual     authority     to
phone as a “company phone.”                                                   consent—that is, he does not
                                                                              actually have joint access to or
                                                                              control over the premises—his
                                                                              purported consent can nevertheless
2. Applicable Law and Standard of Review                                      validate a search if it reasonably
The Fourth Amendment to the United States Constitution                        appears to the police that he does in
provides protection from “unreasonable” searches and                          fact have authority.
seizures by government officials. Hubert v. State, 312
S.W.3d 554, 560 (Tex.Crim.App.2010). A search                    *10 Id. at 561. Apparent authority is judged under an
conducted without a warrant is generally deemed                  objective standard: “would the facts available to the officer
unreasonable. Id. The general warrant requirement yields         at the moment warrant a man of reasonable caution in the
to several well-established exceptions. Id. One exception        belief that the consenting party had authority over the
applies when a person voluntarily consents to a search. Id.      premises?” Limon v. State, 340 S.W.3d 753, 756
We examine the totality of the circumstances to determine        (Tex.Crim.App.2011) (quoting Illinois v. Rodriguez, 497
whether it is reasonable under the Fourth Amendment for          U.S. 177, 188 (1990)).
an officer to rely on the consent of another person to justify
a warrantless search of property. Id.                            It is the State’s burden to show by a preponderance of the
                                                                 evidence that the person who consented to the search had
A third party may consent to a search of the property of         actual or apparent authority to consent. Hubert, 312
another if the third party has actual authority over the thing   S.W.3d at 561–62. Thus, the State has the burden to show
to be searched. Id. The property interests of the parties are    that a third party either had mutual access to and control
                                                                 over the property that was searched (i.e., actual authority),
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Elliott v. State, Not Reported in S.W.3d (2015)



or that the officer conducting the search reasonably             evidence, and the appellate court’s review incorporates the
believed, based on facts known to him at the time, that the      relevant trial testimony and evidence).
consenting party had authority over the property (i.e.,
apparent authority). Id.                                         *11 Under the doctrine of apparent authority, even if
                                                                 Butler lacked actual authority to consent, her purported
Whether a search was reasonable under the Fourth                 consent will validate the search at issue if it reasonably
Amendment is a mixed question of law and fact. St.               appeared to Sergeant Schwartz that Butler did in fact have
George      v.    State,    237      S.W.3d      720,    725     authority. See Hubert, 312 S.W.3d at 561; Davis v. State,
(Tex.Crim.App.2007). We review de novo the issue of              93 S.W.3d 664, 668 (Tex.App.—Texarkana 2002, pet.
whether a third party had actual or apparent authority to        ref’d) (observing that “it is arguable [whether the
consent to a search of another’s property because this           third-party consenter had] actual authority to consent to a
inquiry involves a mixed question of law and fact. Hubert,       search. That is not, however, the operative question,
312 S.W.3d at 559–60. However, we must defer to the trial        because even when the facts do not support a finding of
court on determinations of credibility and historical fact.      actual authority, a search is reasonable if the consent-giver
Id. When the trial court does not make findings of fact, we      apparently has actual authority.”) (emphasis added). On
view the evidence in the light most favorable to the trial       May 29, 2012, during her video interview with Sergeant
court’s rulings and assume that the trial court resolved any     Schwartz, appellant described her phone as a “company
issues of historical fact or credibility in a manner that is     phone.” The next day, when Sergeant Schwartz sought
consistent with its ultimate ruling. Id. at 560.                 consent from Butler to search the phone, Butler described
                                                                 it as “one of my company cell phones.” Butler was also in
In reviewing a trial court’s ruling on a motion to suppress,     possession of the phone at that time. See Wilson v. State,
we generally consider only evidence presented at the             No. 04–02–00805, 2004 WL 624541 at *3
suppression hearing because the trial court based its ruling     (Tex.App.—San Antonio Mar. 31, 2004, no pet.) (mem.
on it rather than evidence adduced later in trial. See Rachal    op., not designated for publication) (holding apparent
v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996).               authority to consent to search vehicle was established
However, when the parties “consensually relitigate” the          where consent-giver asserted it was his vehicle and was in
suppression issue after the trial court’s ruling on the          possession of it at time of search, even though it was not
suppression motion, our review is not limited to the             his vehicle). Under these circumstances, there was no
evidence adduced at the suppression hearing, but also            ambiguity in the situation that should have given Sergeant
includes the relevant trial testimony and evidence. Id.          Schwartz pause to doubt Butler’s authority over the phone,
                                                                 an item that both appellant and Butler admittedly identified
                                                                 as a company phone. See Corea v. State, 52 S.W.3d 311,
                                                                 317 (Tex.App.— Houston [1st Dist.2001], pet. ref’d)
3. Discussion                                                    (noting that law enforcement officers should not be
As a threshold matter, we note that our review of the            permitted to proceed when ambiguous circumstances exist
evidence is not limited to the evidence adduced at the           that merit further inquiry into the consenting party’s
suppression hearing because the record reflects that the         apparent claim of authority to allow the search); State v.
parties consensually relitigated the suppression issue after     Krall, No. 13–12–00469–CR, 2013 WL 6547388, at *5
the trial court ruled on appellant’s motion to suppress. See     (Tex.App.—Corpus Christi Aug. 1, 2013, no pet.) (mem.
id. As noted earlier, appellant sought a stipulation from the    op., not designated for publication) (finding that
State on the issue of consent after the trial court had          defendant-passenger’s statement that duffel bag belonged
already denied her motion to suppress. The State did not         to him gave rise to “ambiguous circumstances” that should
agree to enter this stipulation until Sergeant Schwartz          have raised a question in the mind of the officer as to
testified at trial, and, when Sergeant Schwartz did testify at   whether the driver had actual authority to consent to a
trial, the defense cross-examined him on the consent issue.      search of defendant-passenger’s bag). Moreover, nothing
Thus, appellant elected to reopen the evidence after the         in the record indicates that Butler, at the time she
trial court made its suppression ruling, and we accordingly      consented, told Sergeant Schwartz that the phone was
also consider the evidence introduced at trial in our review     intended for appellant’s exclusive use, as she had
of this issue. See id. (holding that when the State raises the   represented at the suppression hearing. Finally, there is no
suppression issue at trial, either without objection or with     indication in the record that appellant prevented Butler or
the defense’s subsequent participation in the inquiry, the       anyone else from viewing the contents of her phone—for
defendant is deemed to have elected to reopen the                example,      by     installing    a    password-protection
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Elliott v. State, Not Reported in S.W.3d (2015)



feature—which would have alerted Sergeant Schwartz to
question Butler’s authority.                                           A review of the record indicates that the jury heard the
                                                                       substantive equivalent of the incriminating text-message
Having considered the arguments of the parties, we                     content through other admissible evidence and testimony
conclude that the trial court properly denied appellant’s              at trial. For instance, during her video interview with
motion to suppress on the basis that Butler had apparent               Sergeant Schwartz, which was admitted at trial, appellant
authority to consent to a police search of appellant’s                 revealed that (1) she thought initially the object she hit
company-issued phone. See Hubert, 312 S.W.3d at 561.                   might have been a sign; (2) she replaced her windshield the
Based on the facts known to Sergeant Schwartz at the time              morning of the hit-and-run; (3) she consumed one vodka
of the search, it was reasonable for him to believe that               tonic at a bar before the accident occurred; and, (4) she
Butler possessed authority to consent. See id.                         received a text message from Brian Welch the morning of
                                                                       the accident, in which Welch advised her that he read a
                                                                       report on the internet about a hit-and-run in the area and
                                                                       asked if she believed the object she hit might have been a
5. Harm                                                                person. The jury also heard, through the testimony of
Even if we were to decide that the trial court erred in                Sanchez, appellant’s admission that she consumed alcohol
admitting the text messages into evidence, we would find               on the night of the accident, that she attempted to get rid of
the error was harmless. Because the error, if any, impacted            incriminating evidence, and that her reason for fleeing the
appellant’s constitutional rights under the Fourth                     scene was to avoid apprehension. Thus, the incriminating
Amendment, we must determine whether the error was                     content found on appellant’s phone and admitted into
harmless beyond a reasonable doubt. See Brown v. State,                evidence was merely cumulative of what she told others
960 S.W.2d 265, 271 (Tex.App.—Corpus Christi 1997, no                  after the accident. Accordingly, we conclude beyond a
pet.) (observing that “[i]mproperly admitted evidence                  reasonable doubt that the admission of the text messages
[impacting constitutional rights] does not call for reversal           into evidence, even if error, did not contribute to
if the reviewing court determines beyond a reasonable                  appellant’s conviction or punishment and was, therefore,
doubt that admission of the evidence did not contribute to             harmless. See Brown, 960 S.W.2d at 272; Coble v. State,
the conviction or punishment”); see also TEX. R. APP. P.               330 S.W.3d 253, 286 (Tex.Crim.App.2010). We overrule
44.2(a).                                                               appellant’s second issue.

To analyze harm, we provide the following summary of the
incriminating content found on appellant’s phone and
admitted into evidence: (1) a few hours after the accident,
appellant texted Brian Welch, her passenger, that she                                        III. Conclusion
passed by the scene and noticed that a sign had been
knocked down; (2) appellant referenced her broken                      *12 We affirm appellant’s conviction.
windshield and indicated the need to replace it; (3)
appellant texted Welch that she consumed only “one”
drink on the night of the accident and then accused him of
                                                                       All Citations
telling others she was “drunk,” which Welch, in a
subsequent responsive text to her, denied;9 and (4) Welch              Not Reported in S.W.3d, 2015 WL 1869472
texted appellant, “[D]ude you ran over and killed
someone[.] [H]ere is the police report[.]”

Footnotes
1      Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as
       necessary to advise the parties of the Court’s decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
2      Appellant’s fourth issue asserts that the trial court erred in denying her motion for a directed verdict. A challenge to the
       denial of a motion for directed verdict is essentially a challenge to the legal sufficiency of the evidence. See Cook v. State,
       858 S.W.2d 467, 470 (Tex.Crim.App.1993). Thus, we review appellant’s fourth issue as a challenge to the legal
       sufficiency of the evidence to support her conviction.


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Elliott v. State, Not Reported in S.W.3d (2015)


3      See also Aliff v. State, 627 S.W.2d 166, 172 (Tex.Crim.App.1982) (finding recklessness was shown where defendant
       operated motor vehicle at over 100 miles per hour, passed a car on the shoulder, locked his brakes, and skidded into a
       collision with another car); Trepanier v. State, 940 S.W.2d 827, 830 (Tex.App.–Austin, 1997, pet.ref’d) (determining
       driver was reckless when he attempted to illegally pass traffic on right shoulder of the road); Arellano v. State, 54 S.W.3d
       391, 393 (Tex.App.–Waco 2001, pet. ref’d) (finding reckless element satisfied where there were visible signs indicating
       reduced speed ahead and skid marks showed defendant was driving at an excessive speed under the circumstances);
       Bannister v. State, 761 S.W.2d 849, 850 (Tex.App.–Beaumont 1988, no pet.) (holding that recklessness was shown
       where truck driver put his truck in reverse during heavy fog on a highway and struck driver proceeding legally in the same
       lane).
4      Appellant does not challenge the sufficiency of the evidence on any other element to support her conviction for
       manslaughter.
5      See Lopez v. State, 731 S.W.2d 682, 684 (Tex.App.–Houston [1st Dist.] 1987) (holding recklessness shown where
       defendant struck a pedestrian on the shoulder of the road after failing to maintain a single lane on the road, and where the
       section of the road on which accident occurred was straight and there was nothing that would obstruct a driver’s view),
       rev’d on other grounds, 779 S.W.2d 411 (Tex.Crim.App.1989); see also Manning v. State, 84 S.W.3d 15, 20–21
       (Tex.App.–Texarkana 2002) (determining recklessness element was satisfied where the defendant swerved when
       approaching a lane of stopped traffic with visible warning signs of road construction, and never slowed down or applied
       his brakes), rev’d on other grounds, 114 S.W.3d 922 (Tex.Crim.App.2003).
6      For the same reason, we find the trial court did not abuse its discretion in ruling in favor of admissibility under Rule 403.

7      The purpose of asking these questions, according to appellant’s offer of proof at trial, was to challenge the State’s
       evidence of recklessness by showing that ordinary people might get distracted in various ways while driving; that such
       distractions are not a gross deviation from the standard of care that ordinary people would exercise; and that, if anything,
       it was appellant’s normal distracted state that probably caused the accident to occur. Because the element of
       recklessness requires a gross deviation from the standard of care that ordinary people would exercise, appellant argued
       that she should be able to poll State’s witnesses with questions to discover ordinary driving habits.
8      Appellant asked one witness the following questions, the substance of which is identical to the questions she posed in
       her offer of proof to the trial court:
           [Trial Counsel]: When you operate a motor vehicle, are you changing the radio?
           [Sergeant Kronk]: Yes, sir.
           [Trial Counsel]: When you change the radio sometimes you look down for a second, right?
           [Sergeant Kronk]: Yes, sir.
           [Trial Counsel]: Sometimes you talk—there will be someone in your car next to you, right?
           [Sergeant Kronk]: Yes, sir.
           [Trial Counsel]: You look over and talk to them, right?
           [Sergeant Kronk]: Yes, sir.
           [Trial Counsel]: You’ve done that before, right?
           [Sergeant Kronk]: Certainly.
           [Trial Counsel]: You have a cell phone?
         [Sergeant Kronk]: Yes, I do.
         [Trial Counsel]: You’ve answered your cell phone while you’re driving before?
         [Sergeant Kronk]: Yes, I have.
         [Trial Counsel]: And there’s been times you might have dropped an item while you’re driving,
           right? I don’t mean outside the window, I mean inside the car?
         [Sergeant Kronk]: I’m sure there is.
         [Trial Counsel]: And you’re reached down to pick up an item, right?
         [Sergeant Kronk]: Once or twice, perhaps.
         [Trial Counsel]: You’ve done all of these things, haven’t you?
         [Sergeant Kronk]: Yes, sir.
9      Appellant sent the following text message to Welch: “Why did [you] say [I] was drunk? [I] wasn’t! [I] took ONE OF your
       vodka tonics, that wa[s] IT!”


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