Derek Jon Engelstad v. State

In The Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-03-524 CR ____________________ DEREK JON ENGELSTAD, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 410th District Court Montgomery County, Texas Trial Court Cause No. 03-05-03808 CR MEMORANDUM OPINION Appellant, Derek Jon Engelstad, was convicted of intoxication manslaughter, and the jury sentenced him to ten years of probation and a $10,000 fine. In this appeal, Engelstad argues the evidence was factually insufficient to support his conviction. He says the evidence failed to establish he was intoxicated while operating a motor vehicle, and failed to establish his intoxication caused the victim's death. When addressing an issue of factual sufficiency, an appellate court asks whether, considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). [T]here are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. This standard acknowledges that evidence of guilt can "preponderate" in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. at 484-485. An appellate court "must give due deference to the fact finder's determinations concerning the weight and credibility of the evidence and will reverse the fact finder's determination only to arrest the occurrence of a manifest injustice." Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The jury is the ultimate authority as to the credibility of witnesses and the weight to be given their testimony. See Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981). Dustin Stromsness testified he and Engelstad were friends and fraternity brothers. Stromsness stated that he called Engelstad, who was in Houston, and invited him to come to Huntsville. When Engelstad received the phone call, he was dining at Chili's with another friend, the deceased. The two drove to Huntsville and Stromsness gave Engelstad directions to a bar called the Jolly Fox, where a fraternity party was being held. Engelstad drove his car to the bar, and he and the deceased stayed at the bar until approximately 1:00 a.m., and then left to return home. According to Stromsness, Engelstad was drinking at the party. At 4:04 a.m., paramedics Allison Remy and Carla Breeding were called to a motor vehicle accident, approximately eight miles north of the city of Montgomery. Remy and Breeding arrived at the scene of a one-car accident at 4:21 a.m. The car was overturned in a ditch, and two men were inside the car. One of the men was deceased, and the other had minor injuries. When Remy and Breeding found Engelstad and the deceased, Engelstad was holding a piece of material against the deceased's head. In response to the paramedics' inquiries, Engelstad said he had left the Jolly Fox around 12:45 or 1:00 a.m., and was driving back to Houston. Engelstad stated he had been drinking, and Breeding testified she smelled alcohol on Engelstad. Engelstad stated he had been wearing his seatbelt, and the paramedics observed a bruise consistent with a driver's side seatbelt injury in Engelstad's left armpit area. Engelstad stated he could not remember the accident. When Engelstad was in the ambulance, the paramedics repeated their questions to gauge his cognitive functions. Engelstad repeated that he had been drinking, he was driving, and he was wearing his seatbelt. When Engelstad was in the hospital, he repeated the same statements to the nurse. Engelstad's attending physician, Dr. Kovar, testified that Engelstad's blood was drawn for a toxicology screen at approximately 7:00 a.m. The toxicology report states the blood was collected at 7:20 a.m. (1) The results of the toxicology screen showed an "[a]lcohol level of 153 milligrams per deciliter which is in excess of the 80 milligrams per deciliter which is outlined by the statutes." Dr. Kovar testified that someone with that amount of alcohol in his system "would be significantly impaired." On cross-examination, Dr. Kovar explained how to calculate Engelstad's blood alcohol level at an earlier time. Dr. Kovar testified that once an individual's rate of alcohol elimination is determined, that rate can be applied back, limited by when the person had his last drink. Dr. Kovar stated he performed a neurological exam on Engelstad and observed horizontal nystagmus, a sign of alcohol intoxication, in Engelstad's extra-ocular movements. Dr. Kovar also testified the abrasions on Engelstad's left chest and shoulder region were consistent with a driver's-side seatbelt injury. Trooper Angela Fountain testified she arrived at the accident at approximately 5:30 a.m., after Engelstad had been taken to the hospital. Trooper Fountain determined the car had left the pavement where the roadway curved. Fountain stated Engelstad had continued to drive straight ("straightened up the curve"). Fountain testified there were warning signs before the curve, as well as signs posted along the curve, and that Engelstad's car had struck a warning sign when his vehicle left the pavement. According to Fountain, after Engelstad's car left the road, the tires slid along and sunk into the wet ground, and the car rolled over onto its roof when its right edge hit a small group of trees. Fountain determined the victim had not moved since the accident because there was "a large pool of blood underneath his head that had run down towards the rest of his body towards the front of the vehicle, that came directly from the pool of blood from his head. It was nowhere else in the vehicle." Fountain further determined the victim had suffered blunt trauma to his head from striking the frame on the passenger side. Fountain stated she smelled a "very strong" odor of alcohol on Engelstad when she subsequently spoke with him at the hospital. Fountain testified she had observed Engelstad's injuries and believed they were consistent with a driver's-side seatbelt injury. Engelstad's accident reconstruction expert, Leo Haney, concluded Engelstad's vehicle had gone into a spin, slid sideways off the roadway, struck a signpost, and flipped onto its top. Haney opined the rear wheels had locked, causing the car to go into a spin, but said he was not certain what actually caused the accident. Defendant's second accident reconstruction specialist, John Laughlin, testified that, after reviewing Haney's report, the autopsy report, and Engelstad's medical records, he concluded the deceased had been driving. Fountain was unable to perform field sobriety tests because Engelstad was injured and lying on a hospital bed. Engelstad agreed to provide a blood sample, and one was drawn at 8:05 a.m. Robert Prince, a chemist with the Texas Department of Public Safety crime lab, testified he analyzed the 8:05 a.m. blood sample and found it to be 0.133. Prince testified someone with that blood alcohol concentration would not have the normal use of his mental and physical faculties. Prince testified a person's body usually begins eliminating alcohol about an hour after the last drink is consumed. Prince also stated that, if Engelstad's blood alcohol level was 0.133 after the accident, one can assume it was greater at the time of the accident. In his first issue, Engelstad says the evidence was factually insufficient to support the conviction for intoxication manslaughter because the evidence did not prove he was intoxicated while he operated a motor vehicle. Engelstad contends the existence of alternative reasonable hypotheses renders the evidence factually insufficient, citing Wilson v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999), and Harris v. State, 133 S.W.3d 760 (Tex. App. --Texarkana 2004, pet. ref'd). In Wilson, the Court of Criminal Appeals stated the existence of an alternative reasonable hypothesis is relevant to a factual sufficiency review, but is not determinative. See Wilson, 7 S.W.3d 141. In Harris, the Texarkana Court of Appeals held that, although a court may consider reasonable alternative hypotheses, the mere existence of reasonable alternative hypotheses does not render the evidence factually insufficient to support a conviction. See Harris, 133 S.W.3d at 765 (adopting the analysis of the Dallas Court of Appeals in Richardson v. State, 973 S.W.2d 384 (Tex. App.--Dallas 1998, no pet.)). Engelstad offered some "alternate hypotheses" in his brief and at trial such as Engelstad drank after the accident, and was not intoxicated when he left the Jolly Fox; the deceased, rather than Engelstad was driving; and inclement weather and flooding either caused or contributed to the accident. However, the record is devoid of evidence supporting the hypothesis that Appellant drank after the accident. As for the possibility of inclement weather and the theory that deceased was driving, the jury was the ultimate judge of the credibility of the witnesses and the weight to be given to their testimony. Engelstad also cites Sinast v. State, 688 S.W.2d 631 (Tex. App.--Corpus Christi 1985, pet. refused); Purvis v. State, 4 S.W.3d 118 (Tex. App.-Waco 1999, no pet.), and McCafferty v. State, 748 S.W.2d 489 (Tex. App.-Houston [1st Dist.] 1988, no pet.) for the proposition that, when a one-car accident occurs and there is no evidence as to the time of the accident, some evidence is necessary to disprove the alternative hypothesis that the driver became intoxicated after the accident took place. However, each of these cases is distinguishable from the instant case. In Sinast, the appellant was found walking toward his car at the scene of the accident, the car's engine was not hot, and there was no evidence as to the time of the accident. Sinast, 688 S.W.3d at 632. In the instant case, Engelstad was found still trapped inside his car, holding a piece of material against the deceased's head. There is no evidence Engelstad left the vehicle after the accident, nor is there any evidence suggesting the vehicle contained any alcohol Engelstad could have consumed while trapped inside. Purvis involved a complaint of legal sufficiency. See Purvis, 4 S.W.3d at 119. Engelstad states "[a]rguably, Purvis would have won a factual sufficiency point, but none was raised." We cannot make that conclusion, and Purvis does not control our analysis here. In McCafferty, the court reversed McCafferty's conviction on legally sufficiency grounds because there was no evidence McCafferty did not consume alcohol between the time of the accident and the arrival of police on the scene, the last witness to see McCafferty at the bar stated McCafferty was not intoxicated, and the investigating officer noted the possible presence of beer cans around the vehicle. See McCafferty, 748 S.W.2d at 490-491. In the instant case, there is no evidence of alcoholic beverages in or around Engelstad's vehicle, and there is no indication Engelstad was sober when he left the Jolly Fox. Stromsness testified Engelstad had been drinking at the fraternity party. Engelstad told paramedics at the scene that he had been drinking, and Breeding testified she smelled alcohol on Engelstad. At the hospital, Engelstad told the nurse he had been drinking. Engelstad also told the paramedics he was driving, and Dr. Kovar, Trooper Fountain, and the paramedics all stated Engelstad's abrasions were consistent with driver's-side seatbelt injuries. Fountain testified that the cause of the accident was Engelstad's failure to successfully negotiate a curve, despite the presence of warning signs both before the curve and along the curve. A blood sample which undisputedly was taken at 8:05 a.m., well after Engelstad was taken to the hospital, showed Engelstad's blood alcohol level was 0.133. Prince testified someone with that blood alcohol concentration would not have the normal use of his mental and physical faculties. Prince also testified that a person's body usually begins eliminating alcohol about an hour after the last drink is consumed. Therefore, the jury could have found Engelstad's blood alcohol level was greater than 0.08 when the accident occurred. Engelstad's attending physician testified he observed horizontal nystagmus, a sign of alcohol intoxication, when he performed a neurological examination of Engelstad. Engelstad complains at length of the retrograde extrapolation testimony offered by Dr. Kovar and Prince, and he even suggests that "[g]iven the absence of any evidence of loss of normal use, it is clear that the jury's verdict must have been based on the expert testimony of Prince and Kovar." We disagree. Texas law does not require retrograde extrapolation evidence to support a verdict of guilt. See Letner v. State, 138 S.W.3d 539, 541 (Tex. App.-Beaumont 2004, no pet. h.). It was within the province of the jury to assess the credibility of witnesses and the weight to be given to their testimony, and, based upon the strong evidence of Engelstad's intoxication, the jury was rationally justified in finding guilt beyond a reasonable doubt. The evidence was factually sufficient to prove Engelstad was intoxicated while operating a motor vehicle. Engelstad's first issue is overruled. In his second issue, Engelstad contends the evidence was factually insufficient because it failed to prove his intoxication caused the death. As discussed above, the State produced evidence that Engelstad's car left the pavement where the roadway curved. Fountain stated Engelstad had continued to drive straight ("straightened up the curve"). Fountain testified that, after Engelstad's car left the road, the tires slid along and sank into the wet ground, and the car rolled over onto its roof when its right edge hit a small group of trees. Fountain further determined the deceased had suffered blunt trauma to his head from striking the frame on the passenger side. Section 6.04(a) of the Penal Code provides 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 § 6.04(a) (Vernon 2003). The evidence is the car left the roadway and the car would not have flipped and caused the victim's death but for the driver's conduct. From the evidence presented, the jury reasonably could have concluded the fatal accident was a result of the defendant's intoxication. The evidence is factually sufficient to support the verdict. Engelstad's second issue is overruled, and the judgment of the trial court is affirmed. AFFIRMED. PER CURIAM Submitted on December 1, 2004 Opinion Delivered December 29, 2004 Do Not Publish Before McKeithen, C.J., Burgess and Gaultney, JJ. 1. Engelstad contends the first sample was drawn in the ambulance by the paramedics at 4:43 a.m.