      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-07-00561-CR




                                  Carlos Quintanilla, Appellant

                                                 v.

                                  The State of Texas, Appellee



  FROM THE DISTRICT COURT OF CALDWELL COUNTY, 421ST JUDICIAL DISTRICT
        NO. 2006-097, HONORABLE TODD BLOMERTH, JUDGE PRESIDING



                                          OPINION


               A jury found appellant Carlos Quintanilla guilty of intoxication manslaughter and

assessed punishment at fourteen years in prison and a $10,000 fine. See Tex. Penal Code Ann.

§ 49.08 (West Supp. 2008). Appellant contends that the evidence is legally and factually insufficient

to sustain the guilty verdict because the State failed to prove that he caused the deceased’s death.

We find the evidence to be sufficient and affirm the conviction.


                                         BACKGROUND

               At 2:45 a.m. on April 19, 2000, off-duty Austin Police Officer Jim Beck was driving

south on highway 183 to his home in Lockhart when he was passed by a south-bound Ford Taurus

that Beck estimated was traveling at 80 to 85 miles-per-hour. As Beck followed the Taurus, he saw

it alternately speed up, slow down, and swerve between the traffic lanes. Beck testified that he saw
two persons in the Taurus, a male driver and a female passenger. Beck lost sight of the Taurus when

it crested a hill just outside Lockhart. When Beck, who was about 200 yards behind, reached the top

of this hill, the Taurus was not to be seen. Beck stopped, turned, and began to drive north. He soon

spotted the Taurus in a ditch on the east side of the highway, where it had left the road after crossing

the north-bound lanes.

                Beck found appellant lying on the ground beside the Taurus’s open driver’s door. A

woman identified as Mary Parlin was in the passenger seat. Both appellant and Parlin were

obviously injured, but Beck could tell from the sounds she was making that Parlin’s injuries were

more serious. It was later determined that both appellant and Parlin were intoxicated.

                Appellant and Parlin were taken by helicopter to Brackenridge Hospital in Austin.

Dr. James Kempema was one of the physicians who treated Parlin in the emergency room.

Kempema testified that when Parlin arrived at the hospital, her heart rate was elevated and her blood

pressure was low, indicating that she was bleeding internally. Efforts to elevate Parlin’s blood

pressure by giving her fluids intravenously were unsuccessful, and she developed an abnormal heart

rhythm and then lapsed into pulseless electrical activity. The doctor described this condition as

“electrical activity on the cardiac monitor . . . [but] there are no pulses that we can palpate in any of

the typical areas that we feel pulses . . . which means that either the blood pressure is unacceptably

low or the heart is simply not pumping.” Kempema testified that Parlin would have died within

minutes without further action. Using CPR and cardiac stimulating drugs, emergency room

personnel were able to restore Parlin’s heart beat and stabilize her condition.

                Kempema testified that as a result of the accident, Parlin sustained severe brain

trauma, facial fractures, a pelvic fracture, two broken femurs, and a collapsed lung. She was in a

                                                   2
deep coma. She could not talk, her eyes were non-responsive, and her only motor ability was

posturing, “which is essentially a very primitive brain stem reflex that results from severe brain

trauma.”

                Parlin remained in the hospital until May 26, 2000, when she was transferred to a

nursing home. She entered a different nursing home on July 31, 2000. Records from the second

nursing home introduced in evidence show that Parlin was in a semicomatose state throughout her

stay in the facility. She was unable to speak and most of her movements were involuntary, but she

had some voluntary movement and could respond to her name and to simple commands. At first,

Parlin was able to sit in a Gerichair and was taken to group activities, but she became increasingly

bedridden over time. Parlin was fed through a gastrostomy tube. She also had a permanent

tracheostomy tube, and she sometimes required additional oxygen through the tube. There are

references throughout the records to lung congestion and thick discharges from the tracheostomy

tube. Parlin’s brother, Kevin Parlin, testified that she was in a vegetative state in the nursing home,

unable to communicate, and that she manifested only involuntary movements. He said that Parlin

was on a breathing machine “some of the time.”

                There is little evidence regarding the circumstances of Parlin’s death. A nurse’s note

states that EMS was called to the nursing home on October 26, 2002, and Parlin was transferred to

a hospital.1 The note indicates that a quantity of fluid had been suctioned from the tracheostomy tube

and that Parlin’s skin was “clammy and pale.” A nurse’s note dated November 2, 2002, states that

Parlin’s mother had called the nursing home to say that “the decision has been made to stop all



   1
       No records from this hospitalization were introduced in evidence.

                                                  3
treatment in the hospital and that she will not be coming back . . . .” Kevin Parlin was asked by the

prosecutor, “[D]id your mother and your family have to make the decision to turn off the life support

machine?” He answered, “Yes.” Parlin died in the hospital on November 3, 2002. The death

certificate, introduced in evidence, states that the immediate cause of death was right lung empyema

due to a chronic vegetative state that was the result of a closed head injury.2 The death certificate

states that Parlin had been suffering from the empyema for months.


                                           DISCUSSION

               A person commits intoxication manslaughter if he operates a motor vehicle in a

public place while intoxicated, and by reason of that intoxication he causes the death of another by

accident or mistake. Id. § 49.08(a). At trial, appellant’s defense was that he was not operating the

Taurus. Appellant testified that Parlin was driving the car, which belonged to her, and he was the

passenger. On appeal, however, appellant does not deny that he was operating the vehicle. Instead,

he contends that the State failed to prove, either legally or factually, that his intoxicated operation

of the vehicle and the resulting accident caused Parlin’s death.


Legal Sufficiency

               When there is a challenge to the sufficiency of the evidence to sustain a criminal

conviction, the question presented is whether a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979);

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Johnson v. State, 23 S.W.3d 1, 11


    2
      Empyema is defined as the presence of pus in a bodily cavity (as in the pleural cavity).
Webster’s International Dictionary 744 (3d ed. 1986).

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(Tex. Crim. App. 2000). In a legal sufficiency review, all the evidence is reviewed in the light most

favorable to the verdict, and it is assumed that the trier of fact resolved conflicts in the testimony,

weighed the evidence, and drew reasonable inferences in a manner that supports the verdict.

Clayton, 234 S.W.3d at 778.

               In Texas, the law of criminal causation as it relates to the defendant’s conduct is as

follows:


                A person is criminally responsible if the result would not have occurred but
       for his conduct, operating either alone or concurrently with another cause, unless the
       concurrent cause was clearly sufficient to produce the result and the conduct of the
       actor clearly insufficient.


Tex. Penal Code Ann. § 6.04(a) (West 2003). The statute has two parts or prongs: (1) the general

rule of causation—“A person is criminally responsible if the result would not have occurred but for

his conduct, operating either alone or concurrently with another cause,” and (2) the exception to the

rule when there is a concurrent cause—“unless the concurrent cause was clearly sufficient to produce

the result and the conduct of the actor clearly insufficient.” See Remsburg v. State, 219 S.W.3d 541,

545 (Tex. App.—Texarkana 2007, pet. ref’d). The concurrent cause exception presupposes that the

result would not have occurred but for the actor’s conduct. If the actor’s conduct was not a cause

of the result under the general rule, it could not be a concurrent cause to which the exception

might apply.

               Appellant’s challenge to the sufficiency of the evidence invokes both prongs of

section 6.04(a). First, appellant contends that the State failed to prove that Parlin’s death would not

have occurred but for his conduct. This argument, in effect, asserts that appellant’s conduct was not


                                                  5
shown to be a cause of Parlin’s death under the general rule. Second, appellant contends that the

evidence fails to show that his conduct was alone sufficient to cause Parlin’s death. By this

argument, which invokes the concurrent cause exception, appellant asserts that the lung empyema

and the family’s decision to discontinue life support were clearly sufficient to cause Parlin’s death

and that his conduct was clearly insufficient.

                Appellant contends that, on this record, Parlin’s death was caused by her lung

infection combined with the family’s decision to discontinue efforts to artificially prolong her life.

Neither of these causes of death, appellant argues, was shown to have resulted from his conduct. In

appellant’s view, they were independent causes of death having no but-for relationship to his conduct

or to the automobile accident.

                Contrary to appellant’s assertion, the State proved that the fatal lung empyema was

a result of his conduct. The “cause of death” section of the death certificate, which is obviously a

prescribed form, instructs the certifier to first enter the “IMMEDIATE CAUSE (Final disease or

condition resulting in death),” and then to “[s]equentially list conditions, if any, leading to immediate

cause. Enter UNDERLYING CAUSE (disease or injury that initiated events resulting in death)

LAST.” The doctor who certified Parlin’s death entered “Right lung empyema” as the immediate

cause of death, “Chronic vegetative state” as the condition leading to the immediate cause, and

“Closed head injury” as the underlying cause. The death certificate states that the right lung

empyema was “due to (or . . . a likely consequence of)” the chronic vegetative state, and that the

chronic vegetative state was “due to (or . . . a likely consequence of)” the closed head injury.

                The emergency room physician testified that severe brain trauma was one of the many

injuries Parlin sustained in the accident. This testimony and the death certificate create an unbroken

                                                   6
chain of causation from appellant’s conduct and the resulting automobile accident, to the brain

trauma and coma, to the chronic vegetative state, to the lung empyema and death. Viewed in the

light most favorable to the verdict, the evidence is sufficient to support a finding that the fatal lung

empyema would not have occurred but for appellant’s conduct. See Jones v. State, 582 S.W.2d 129,

133-34 (Tex. Crim. App. 1979) (holding that defendant was criminally responsible for death

resulting from complications arising out of injuries inflicted by defendant); Barrera v. State,

756 S.W.2d 884, 885 (Tex. App.—San Antonio 1988, pet. ref’d) (same).

                The record also contradicts appellant’s assertion that the decision to discontinue

Parlin’s life support was an independent cause of death unrelated to his conduct. Dr. Kempema, the

emergency physician, was asked by the prosecutor “if a decision had to be made at a future time by

the family to turn off the life support, and she died, was the cause of death from these injuries

received in this motor vehicle accident?” The doctor answered, “I can comment to the extent to say

that she was put on life support as a result of the injuries she sustained because of the injuries in the

accident.” Parlin might not have died when she did had the family not elected to discontinue

treatment aimed at prolonging her life, but she also would not have died when and in the manner she

did but for the injuries she sustained as a result of appellant’s conduct, the injuries that left her in a

coma, resulted in the development of the fatal lung empyema, and forced her family to make its

difficult decision. See Felder v. State, 848 S.W.2d 85, 89-90 (Tex. Crim. App. 1992).3 Viewing the


    3
      In Felder, the defendant stabbed the deceased in the head with a pair of scissors, and the
medical examiner testified that this wound was the cause of death. 848 S.W.2d at 89. Although
brain dead, the deceased was temporarily placed on a life support system and his organs continued
to function. Id. The court rejected the defendant’s contention that it was the removal of the life
support system, and not his conduct, that caused the deceased’s death, reasoning that but for the
defendant’s actions, the deceased would not have been on life support and would not have died when

                                                    7
evidence in the light most favorable to the verdict, the family’s decision to stop further life support

measures was at most a concurrent cause of Parlin’s death, not an alternative cause that resulted in

her death independent of appellant’s conduct. See Barnette v. State, 709 S.W.2d 650, 651 (Tex.

Crim. App. 1986) (distinguishing between concurrent causation and alternative causation).

               We now turn to appellant’s contention that the State failed to prove that his conduct

was alone sufficient to cause Parlin’s death. Appellant urges that, on this record, the lung empyema

and the discontinuance of life support were concurrent causes of death clearly sufficient to cause

Parlin’s death and that his conduct was clearly insufficient.

               This argument is also contradicted by the record. Kempema testified that Parlin

would have died in the emergency room if not for the extraordinary resuscitative efforts of the

emergency medical team. Viewed in the light most favorable to the verdict, this evidence supports

a finding beyond a reasonable doubt that appellant’s conduct was sufficient in itself to cause Parlin’s

death. See Thompson v. State, 93 S.W.3d 16, 20-21 (Tex. Crim. App. 2001) (holding that

defendant’s conduct was not “clearly insufficient” to cause victim’s death in light of evidence

showing that without medical intervention, injuries inflicted by defendant could have been fatal).

Although medical intervention may have succeeded in delaying Parlin’s death, and even if the lung

empyema and the discontinuance of life support were concurrent causes sufficient to result in

her death, the evidence shows that Parlin would not have developed the empyema or required

life support but for appellant’s conduct. Appellant’s conduct was not “clearly insufficient”



that support was removed. Id. at 90. Parlin was not shown to be brain dead when life support was
discontinued, but the same principle applies here. But for appellant’s conduct, Parlin would not have
required life support or developed the lung empyema that was the immediate cause of her death.

                                                  8
to cause Parlin’s death within the meaning of the concurrent cause exception. See Felder,

848 S.W.2d at 90 n.1.

               The evidence is legally sufficient to prove that, by his conduct, appellant was

criminally responsible for Parlin’s death. Point of error one is overruled.


Factual Sufficiency

               In a factual sufficiency review, all the evidence is considered equally, including the

testimony of defense witnesses and the existence of alternative hypotheses. Clewis v. State,

922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Orona v. State, 836 S.W.2d 319, 321

(Tex. App.—Austin 1992, no pet.). Although due deference still must be accorded the fact finder’s

determinations, particularly those concerning the weight and credibility of the evidence, the

reviewing court may disagree with the result in order to prevent a manifest injustice. Johnson,

23 S.W.3d at 9; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). The evidence will be

deemed factually insufficient if the evidence supporting the verdict is so weak as to make the finding

of guilt clearly wrong or manifestly unjust, or if the verdict is against the great weight and

preponderance of the available evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim.

App. 2006); Johnson, 23 S.W.3d at 11.

               Appellant’s arguments in support of his factual insufficiency claim are essentially

restatements of the arguments he made in support of his legal insufficiency claim, with the caveat

that “[a]ny evidence which could somehow be seen as legally sufficient to support a rational jury’s

conclusion [that he caused Parlin’s death] is nevertheless so weak that the Court’s confidence in the

jury’s verdict should be undermined.” We have already explained how, contrary to appellant’s


                                                  9
arguments, the evidence rationally supports both a finding that Parlin would not have died but for

appellant’s conduct and a finding that appellant’s conduct was in itself sufficient to cause Parlin’s

death, even if the other factors cited by appellant also contributed to that result. Moreover, the only

link in the chain of causation from the automobile accident to Parlin’s death that was disputed at trial

was appellant’s role as the driver of the car, a fact that was resolved against him by the jury and that

he essentially concedes on appeal. Even when viewed in a neutral light, the evidence supporting the

conclusion that appellant’s conduct caused Parlin’s death is neither so weak nor so against the great

weight of the available evidence as to make the conclusion clearly wrong or manifestly unjust.

                The evidence is factually sufficient to prove that, by his conduct, appellant was

criminally responsible for Parlin’s death. Point of error two is overruled.

                The judgment of conviction is affirmed.




                                                __________________________________________
                                                J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: July 14, 2009

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