                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-07-00119-CR

JULIE LORAINE BRADLEY,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee


                           From the 413th District Court
                              Johnson County, Texas
                              Trial Court No. F41042


                          MEMORANDUM OPINION


      Julie Loraine Bradley was convicted of intoxication manslaughter and sentenced

to 20 years in prison. Because the evidence was sufficient to support her conviction,

and because there were no other issues raised that would support a reversal of her

conviction, we affirm the trial court’s judgment.

                                 FACTUAL BACKGROUND

      On Sunday, July 24, 2005, Carmen Stanley headed north on I-35 in Johnson

County in her 2003 Volkswagen Beetle. Meanwhile, Kenneth Bullard was traveling

south on 1-35 in Johnson County, headed for Austin. Glancing in his rear-view mirror,
Bullard noticed a Ford Explorer approaching his vehicle at a high rate of speed which

he estimated to be 90 miles per hour. Bradley was driving that Explorer. Fearing a

collision, Bullard accelerated in an attempt to avoid being hit from behind. Bradley

attempted to pass Bullard on the right and in doing so, clipped the back right of

Bullard’s vehicle.    Bradley then swerved to the left and into the grassy median

separating the northbound and southbound lanes of I-35.

        A truck driver, traveling north on 1-35 and in the left lane beside Stanley, noticed

the Explorer swerve into the median, hit a concrete drainage ditch and spiral airborne

toward his truck. He applied his brakes and watched as the Explorer passed upside

down in front of his windshield and hit his right “spot” mirror. The Explorer then

crashed into Stanley’s Beetle, crushing the Beetle and Stanley. Stanley died at the

hospital from the massive injuries she sustained in the collision.

                                     ISSUES ON APPEAL

        Bradley raises eight issues on appeal.

Legal and Factual Sufficiency

        In her first two issues, Bradley contends that the evidence was both legally and

factually insufficient to support her conviction.

        In reviewing the legal sufficiency of the evidence, this Court looks at all of the

evidence in the light most favorable to the verdict to determine whether any rational

trier of fact could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Bigon

v. State, 252 S.W.3d 360, 366 (Tex. Crim. App. 2008). The sufficiency of the evidence is

Bradley v. State                                                                       Page 2
measured by reference to the elements of the offense as defined by a hypothetically

correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997).

         The factual sufficiency of the evidence standard of review was recently restated

by the Court of Criminal Appeals:

         In a factual-sufficiency review, the evidence is reviewed in a neutral light.
         Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); accord Johnson
         v. State, 23 S.W.3d at 7. Only one question is to be answered in a factual-
         sufficiency review: Considering all of the evidence in a neutral light, was
         a jury rationally justified in finding guilt beyond a reasonable doubt?
         Watson, 204 S.W. 3d at 415. Evidence can be factually insufficient in one of
         two ways: (1) when the evidence supporting the verdict is so weak that
         the verdict seems clearly wrong and manifestly unjust; and (2) when the
         supporting evidence is outweighed by the great weight and
         preponderance of the contrary evidence so as to render the verdict clearly
         wrong and manifestly unjust. Roberts, 220 S.W.3d at 524 (citing Watson,
         204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 11); see also Castillo v. State, 221
         S.W.3d 689, 693 (Tex. Crim. App. 2007). "[A]n appellate court must first be
         able to say, with some objective basis in the record, that the great weight
         and preponderance of the . . . evidence contradicts the jury's verdict before
         it is justified in exercising its appellate fact jurisdiction to order a new
         trial." Watson, 204 S.W.3d at 417. A reversal for factual insufficiency
         cannot occur when "the greater weight and preponderance of the evidence
         actually favors conviction." Roberts, 220 S.W.3d at 524. Although an
         appellate court has the ability to second-guess the jury to a limited degree,
         the factual-sufficiency review should still be deferential, with a high level
         of skepticism about the jury's verdict required before a reversal can occur.
         Watson, 204 S.W.3d at 417; Cain, 958 S.W.2d at 410.

Grotti v. State, No. PD-134-07, 2008 Tex. Crim. App. LEXIS 761, 22-24 (Tex. Crim. App.

June 25, 2008). Malik's rule of measuring evidentiary sufficiency "by the elements of the

offense as defined by a hypothetically correct jury charge" also applies when the

evidence is reviewed for factual sufficiency. Wooley v. State, No. PD-0861-072008, Tex.

Crim. App. LEXIS 762 (Tex. Crim. App. June 25, 2008).

Bradley v. State                                                                            Page 3
        A person commits the offense of intoxication manslaughter if the person (1)

operates a motor vehicle in a public place; (2) is intoxicated; and (3) by reason of that

intoxication causes the death of another by accident or mistake. TEX. PENAL CODE ANN.

§ 49.08(a) (Vernon Supp. 2007). Bradley challenges the legal and factual sufficiency of

the evidence to support the last element: that by reason of her intoxication, she caused

the death of another by accident or mistake. To prove this last element, the State agrees

that it must prove Bradley’s intoxication, and not just her operation of a vehicle, caused

the fatal result. See Glauser v. State, 66 S.W.3d 307, 313 (Tex. App.—Houston [1st Dist.]

2000, pet. ref’d).   The Penal Code describes causation as: "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) (Vernon 2003); Lomax v. State, No. 10-03-00156-CR, 2006 Tex.

App. LEXIS 2527, *16-17 (Tex. App.—Waco Mar. 29, 2006) (mem. op.), aff’d, 233 S.W.3d

302 (Tex. Crim. App. 2007).

        Bradley argues that the evidence is legally and factually insufficient because she

contends Officer Bolton, the accident reconstructionist, was unable to determine the

cause of the first collision between Bullard and Bradley. She argues that the cause of the

“unknown, unspecified, mysterious event” was the primary cause of the fatal accident.

She also argues that the accident report listed only faulty evasive action and failure to

control speed as factors to the accident. Bradley contends those factors are not products



Bradley v. State                                                                    Page 4
of intoxication. She also urges us to consider a “multitude of reasons” why the first

collision may have taken place that has nothing to do with intoxication.

        Bradley fails to consider other testimony presented by Bolton during the trial.

First, the record reveals that Officer Bolton was not unable to determine the cause of the

first collision.   In reviewing all of his testimony, he determined that Bradley was

traveling at about 85 to 90 miles per hour when she struck the right rear of Bullard’s

vehicle, which caused a crease down the driver’s side of Bradley’s vehicle. Bullard

perceived a problem and accelerated. Bradley then veered to the left and crossed the

median where she became airborne, rotated in the air, and struck the Volkswagen.

Second, Bolton repeatedly testified that he saw no signs of Bradley having perceived

any problem at all and saw no signs that Bradley ever attempted to apply the brakes

during the series of events. Bolton concluded that Bradley was at fault in the fatal

accident. He determined that even though there were several vehicles involved, the

accident was all one continuation of events. Bolton did not believe it was possible for

Bullard to have caused the collision between his vehicle and Bradley’s. He did not

think that Bradley’s inability to perceive a problem was caused by changing the radio or

answering a cell phone. Further, Bolton testified that the accident report did not list

intoxication because he and the other officers did not know the results of the blood test

at the time they completed the report.

        Bradley also fails to consider testimony presented by Dr. John Laseter, the lab

director for Accu-Chem Laboratory which tested a sample of Bradley’s blood. This

testimony also provides evidence of a link between Bradley’s intoxication and the death

Bradley v. State                                                                    Page 5
of Carmen Stanley.        Laseter, testified that Bradley’s blood sample contained .28

milligrams per liter of the “D” form of methamphetamine, which is an illegal controlled

substance and has “severe consequences” on the central nervous system.                Laseter

agreed that the ingestion of methamphetamine at certain levels would intoxicate a

person.     He testified that generally, anything above .2 milligrams per liter of

methamphetamine in the blood is considered abusive, and that people demonstrate

bizarre behavior as a result of that amount in the blood system.

        Relying on the “Drugs and Performance Fact Sheets,” published by the U.S.

Department of Transportation, Laseter stated that in a review of 101 drivers under the

influence of methamphetamine, where the average concentration of methamphetamine

in the body was .23 milligrams per liter, the drivers’ behavior included speeding, lane

changes,     erratic   driving,   accidents,   unconsciousness,   disorientation,   agitation,

staggering, awkward movements, and irrational or violent behavior.                    Laseter

commented that the amount of methamphetamine in Bradley’s system exceeded the

average amount evaluated in the report. He also noted that the amount in her system at

the time of the accident, about 4 hours prior to the taking of the blood sample, may have

been as high as .3 milligrams per liter.

        Laseter further testified that Valium and Xanax, mild depressants, were also

identified in Bradley’s blood sample. He stated that the combination of these drugs

with the methamphetamine in Bradley’s system would make her more intoxicated

because even with the counteracting forces of the drugs, she would still have problems

handling herself in a normal fashion.

Bradley v. State                                                                        Page 6
        In reviewing the evidence under the appropriate standards, the evidence is both

legally and factually sufficient to support the last element of intoxication manslaughter:

that by reason of Bradley’s intoxication, she caused the death of another by accident or

mistake. Issues one and two are overruled.

Cross-examination

        Bradley next contends that the trial court erred in failing to allow Bradley to

cross-examine Bullard about his prior placement on deferred adjudication community

supervision for possession of a controlled substance. We review a trial court's decision

regarding the admissibility of evidence under an abuse of discretion standard. Cameron

v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007); Montgomery v. State, 810 S.W.2d 372,

391 (Tex. Crim. App. 1991)

        Bullard had been on deferred adjudication for possession of a controlled

substance. He completed deferred adjudication community supervision in 2003, two

years prior to the fatal accident. Bradley argued to the trial court that the completed

deferred adjudication community supervision would be admissible to show bias or

motive or prejudice, relying on the United States Supreme Court’s opinion in Davis.

Davis v. Alaska, 415 U.S. 308, 39 L.Ed.2d 347, 94 S.Ct. 1105 (1974). On appeal, Bradley

further relies on the Court of Criminal Appeals’ opinion in Maxwell to support her

argument that the completed deferred adjudication community supervision is

admissible to show Bullard’s bias or interest in testifying for the State. Maxwell v. State,

48 S.W.3d 196 (Tex. Crim. App. 2001).



Bradley v. State                                                                      Page 7
        Generally, only evidence of convictions may be elicited from a witness for the

purpose of attacking the credibility of the witness. See TEX. R. EVID. 609(a). Deferred

adjudication is not a conviction. Beedy v. State, 194 S.W.3d 595, 599-600 (Tex. App.—

Houston [1st Dist.] 2006) aff’d, 250 S.W.3d 107 (Tex. Crim. App. 2008). But evidence that

a witness whom the State calls is subject to a criminal charge, or is on community

supervision, can be used to show the bias or interest of the witness in helping the State.

Moreno v. State, 22 S.W.3d 482, 486 (Tex. Crim. App. 1999). This concept was extended

by the Court of Criminal Appeals in Maxwell to include witnesses on deferred

adjudication community supervision. Maxwell, 48 S.W.3d at 200.

        Bradley wants us to expand the results of Davis and Maxwell beyond the facts of

those cases. In both cases, the witness sought to be cross-examined was, at the time of

the trial, on a form of community supervision. The witness in Davis was on juvenile

probation at the time of the trial; the witness in Maxwell was on deferred adjudication

community supervision at the time of the trial.          Here, Bullard had long since

successfully completed his deferred adjudication and was no longer on community

supervision for that offense. Neither Davis nor Maxwell stand for the proposition that

an offense for which deferred adjudication was completed prior to trial may be inquired

about on cross-examination of a witness. We decline to extend those cases to include

the cross-examination of a witness regarding a completed deferred adjudication. Issue

three is overruled.




Bradley v. State                                                                    Page 8
Amended Indictment

        In her fourth issue, Bradley asserts that the trial court erred in allowing the State

to amend the indictment after the start of the trial in violation of article 28.10 of the

Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 28.10 (Vernon 2006).

Bradley, however, failed to preserve this complaint for review on appeal. See TEX. R.

APP. P. 33.1. All a party has to do to preserve error is to let the trial judge know what he

wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to

understand him at a time when the trial court is in a proper position to do something

about it. Saldano v. State, 232 S.W.3d 77, 88 (Tex. Crim. App. 2007); Keeter v. State, 175

S.W.3d 756, 760 (Tex. Crim. App. 2005).

        After the jury was seated but prior to the reading of the indictment, the State

asked the trial court to strike through the word “alcohol” in count one of the indictment

because it was “abandon[ing] that manner and means allegation in Count One….”

Bradley’s only response to the request was, “ Judge, we would just like the indictment

to stay as she was charged by the Grand Jury in 2005 and leave the word ‘alcohol’ in.”

This response, if it was intended to be an objection, did not sufficiently inform the trial

court that Bradley believed the requested amendment to be improper under article

28.10. Accordingly, Bradley’s complaint is not preserved, and issue four is overruled.

Election

        Bradley next contends that the trial court erred in failing to require the State to

make an election as to which offense, manslaughter or intoxication manslaughter, it

would proceed on to a verdict. Bradley was charged with both offenses. After the State

Bradley v. State                                                                       Page 9
rested, Bradley requested that the State make an election between manslaughter and

intoxication manslaughter. Bradley admitted to the trial court that she had no case law

to support her request to compel the election, but asserted that because of double

jeopardy concerns, she believed an election was necessary. Relying on Phillips v. State,

Bradley asserts on appeal that the trial court had no discretion but to order the State to

make an election once the State rested its case-in-chief and upon Bradley’s timely

request. Phillips v. State, 193 S.W.3d 904, 909 (Tex. Crim. App. 2006).

        Phillips is inapplicable to this proceeding. In Phillips, the State was required to

make an election as to the specific evidence upon which it will rely as proof of the

charged offense; differentiating it from evidence of other offenses or misconduct that is

offered only in an evidentiary capacity. That is not the situation here and was not the

argument made to the trial court. Two offenses were charged arising from the same set

of facts. There was no question as to what specific evidence the State was relying on as

proof. The concern Bradley expressed at trial was related to double jeopardy. Bradley’s

complaint on appeal does not comport with the complaint made to the trial court and is

not preserved for our review. Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim. App. 2007);

Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005). Issue five is overruled.

Juror Misconduct

        In her sixth issue, Bradley contends her conviction should be reversed because of

juror misconduct. Specifically, Bradley complains about an incident where a juror

approached a member of Bradley’s family during a break and expressed his doubts as

to Bradley’s guilt. Bradley informed the trial court that the family member had been

Bradley v. State                                                                       Page 10
approached by a juror. The trial court heard from the family member outside the

presence of the jury and determined that no harmful contact had occurred between the

juror and anyone else. The court then asked if there was anything from either the State

or Bradley’s counsel. Both replied “yes,” but their answers did not concern the trial

court’s determination that no harmful contact had occurred. Bradley did not object to

the trial court’s determination, did not seek a mistrial, and did not seek any other relief

as a result of the juror’s conduct that resulted in an “adverse” ruling from the trial

court.1 Therefore, she cannot now complain about it on appeal. Her complaint is not

preserved. TEX. R. APP. P. 33.1. Issue six is overruled.

Deadly weapon

           In Bradley’s seventh issue, she asks us to adopt the dissent’s view in Tyra v. State

which challenges the State’s ability to obtain a deadly weapon finding in a vehicular

manslaughter case.           Tyra v. State, 897 S.W.2d 796, 805-811 (Tex. Crim. App. 1995)

(Clinton, J., dissenting). A majority of the Court upheld the ability to obtain a finding

that a motor vehicle is a deadly weapon in vehicular manslaughter cases. Tyra, 897

S.W.2d at 796-799. We decline to adopt the dissent’s position. Issue seven is overruled.

Cumulative Effect

           In her eighth and final issue, Bradley contends that the cumulative effect of the

errors in issues three through five warrants a reversal of her conviction. We have found

no errors in those issues; thus, there is no cumulative effect. Issue eight is overruled.

                                                CONCLUSION

1   This could have been a tactical decision by counsel since the juror expressed doubts as to Bradley’s guilt.

Bradley v. State                                                                                       Page 11
        We have overruled each of Bradley’s issues on appeal. Accordingly, the trial

court’s judgment is affirmed.



                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Vance, and
       Justice Reyna
       (Justice Vance concurs in the judgment)
Affirmed
Opinion delivered and filed October 8, 2008
Do not publish
[CR25]




Bradley v. State                                                             Page 12
