Julie Estrella AKA Julie King AKA Julie Smullen v. State

NUMBER 13-04-519-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI B EDINBURG JULIE ESTRELLA, A/K/A JULIE KING, A/K/A JULIE SMULLEN, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 214th District Court of Nueces County, Texas. M E M O R A N D U M   O P I N I O N Before Chief Justice Valdez and Justices Rodriguez and Garza Opinion by Chief Justice Valdez Appellant, Julie Estrella (a/k/a Julie King, a/k/a Julie Smullen), was charged with the following offenses: intoxication manslaughter, intoxication assault, and driving while intoxicated with a child passenger. A jury sentenced appellant to fourteen years= imprisonment in the Texas Department of Criminal Justice for the first two offenses, and the trial court sentenced her to two years= confinement in a state jail for the third offense. On appeal, appellant raises three issues: (1) insufficient evidence of guilt, (2) jury charge error, and (3) cruel and unusual punishment. We affirm. I. BACKGROUND Appellant, driving in her car while under the influence of prescription medications (i.e., Xanax, Carisprodol and Meprobamate), struck an oncoming vehicle head-on; the driver of the other vehicle sustained serious bodily injury, and his four-year-old daughter died from blunt neck trauma. At the time of the accident, appellant had her three-month old child in the car with her. II. LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE By her first issue, appellant argues that she was not proven guilty beyond a reasonable doubt because there was insufficient evidence of guilt.[1] Specifically, appellant argues that she was involuntarily intoxicated and did not know the difference between right and wrong. A. Standard of Review In evaluating the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318‑19 (1979); Cardenas v. State, 30 S.W.3d 384, 389‑90 (Tex. Crim. App. 2000). The legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge for the case that would set out the law, be authorized by the indictment, not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describe the particular offense for which the defendant was tried. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). This standard applies to both jury and bench trials. Id. In evaluating factual sufficiency of the evidence, we review the evidence in support of and contrary to the trier of fact's findings to determine whether the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or the verdict is contrary to the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1997). We also measure the factual sufficiency of the evidence against a hypothetically correct jury charge. See Adi v. State. 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref=d). B. Applicable Law AIntoxicated@ means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body. Tex. Pen. Code Ann. ' 49.01(2)(A) (Vernon Supp. 2005). A person commits intoxication manslaughter if she operates a motor vehicle in a public place while intoxicated and by reason of that intoxication causes the death of another by accident or mistake. See id. ' 49.08. A person commits intoxication assault if she operates a motor vehicle in a public place while intoxicated, and by reason of that intoxication, causes serious bodily injury to another. See id. ' 49.07. A person commits the offense of driving while intoxicated with a child passenger if she is intoxicated while operating a motor vehicle in a public place and the vehicle is occupied by a passenger who is younger than fifteen years of age. See id. ' 49.045. C. Analysis A review of the record shows that the evidence was both legally and factually sufficient to warrant appellant=s guilty verdict. Appellant does not refute the fact that she operated a motor vehicle with a child passenger on board when she collided with the other vehicle, or that she was intoxicated due to taking her medications. She also does not refute that the driver of the other vehicle sustained serious bodily injury, or that the driver=s daughter died as a result of blunt neck trauma sustained in the accident. On appeal, appellant only argues that she voluntarily took prescribed medications, which resulted in her becoming involuntarily intoxicated. Therefore, she alleges the guilty verdict is Aclearly wrong and manifestly unjust@ because she did not know right from wrong. However, in a prosecution under the offenses for which appellant was charged, Athe fact that the defendant is entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense.@ Tex. Pen. Code Ann. ' 49.10 (Vernon Supp. 2005); see Nelson v. State, 149 S.W.3d 206, 211 (Tex. App.BFort Worth 2004, no pet.). (AThe voluntary taking of prescription drugs, which impair mental or physical faculties, is not a defense to DWI.@). Furthermore, if this is an attempt to raise an insanity or diminished capacity defense pursuant to former article 46.03 of the code of criminal procedure, appellant raises it too late, as she did not introduce such a defense at trial. See Tex. Code Crim. Proc. Ann. art. 46.03, ' 2 (Vernon Supp. 2004-05), repealed by Acts 2005, 79th Leg., ch. 831, ' 1 (requiring insanity defenses to be raised at least ten days prior to trial).[2] When viewed in the light most favorable to the verdict, we conclude that any rational trier of fact could have found beyond a reasonable doubt all of the essential elements of the offenses. Jackson, 443 U.S. at 318-19; Cardenas, 30 S.W.3d at 389-90; see Malik, 953 S.W.2d at 240. Furthermore, we cannot rule that the evidence is so weak that it renders the verdict clearly wrong and manifestly unjust or the verdict is contrary to the evidence. See Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. The evidence supporting the verdict is legally and factually sufficient. We overrule appellant=s first issue. III. JURY CHARGE ERROR By her second issue, appellant argues that the jury charge improperly permitted the jury to find her guilty of intoxication manslaughter and intoxication assault for merely driving a motor vehicle with a prescription drug in her system. She argues that the trial court=s charge improperly refers to section 49.10 of the Texas Penal Code.[3] When we review alleged charge error, we determine (1) whether error actually exists in the charge, and (2) whether any resulting harm requires reversal. Castaneda v. State, 28 S.W.3d 685, 694 (Tex. App.BCorpus Christi 2000, no pet.); see Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998). If we conclude there is jury charge error, we must determine if the error caused sufficient harm to warrant reversal. See Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App. 2000). After reviewing the jury charge, we conclude that it is free from any error. The trial court properly charged the jury as to section 49.10 of the penal code. There was no error in either the language of the charge or the inclusion of the statute. See Nelson, 149 S.W.3d at 211. Appellant=s second issue is overruled. IV. CRUEL AND UNUSUAL PUNISHMENT By her third issue, appellant argues that her punishment was not proportional to the offenses committed and thus, violates her state and federal rights against cruel and unusual punishment. Appellant did not raise this complaint in the trial court, and thus has failed to preserve it for appellate review. See Tex. R. App. P. 33.1(a); Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995) (holding cruel and unusual punishment complaint not preserved); Nicholas v. State, 56 S.W.3d 760, 768 (Tex. App.BHouston [14th Dist.] 2001, pet. ref=d) (holding Athe constitutional right to be free from cruel and unusual punishment may be waived.@). In any event, even if appellant had preserved this complaint for review, we would overrule this issue because appellant=s punishment was within the statutory range and does not violate the constitutional prohibitions on cruel and unusual punishment. See Harris v. State, 656 S.W.2d 481, 486 (Tex. Crim. App. 1983); Sullivan v. State, 975 S.W.2d 755, 757 (Tex. App.BCorpus Christi 1998, no pet.). We overrule appellant=s third issue. V. CONCLUSION The judgment of the trial court is affirmed. Rogelio Valdez, Chief Justice Do not publish. Tex. R. App. P. 47.2(b). Memorandum Opinion delivered and filed this 2nd day of March, 2006. [1] In her appellate brief, appellant contends only that the evidence is factually insufficient; however, in her prayer for relief, she requests this Court to reverse and render judgment, or in the alternative, to reverse and remand for a new trial. Therefore, we will address both the legal and factual sufficiency of the evidence. [2]Act of May 25, 1983, 68th Leg., R.S., ch. 454, '3, 1983 Tex. Gen. Laws 2640, 2643-47, repealed by Act of May 27, 2005, 79th Leg., R.S., ch, 831, ' 1, 2005 Tex. Gen. Laws 2841, 2841 (current version at Tex. Code Crim. Proc. Ann. art. 46C.270 (Vernon Supp. 2005)). The 2005 amendment says that it applies "only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for that purpose." Act of May 27, 2005, 79th Leg., R.S., ch. 831, '' 1, 2, 5, 2005 Tex. Gen. Laws 2841, 2853‑54. The offense in this case occurred before the effective date of the new article, and thus the former article applies. [3] In a prosecution under sections 49.045, 49.07, or 49.08, the fact that the defendant is or has been entitled to use the alcohol, controlled substance, drug, dangerous drug, or other substance is not a defense. See Tex. Pen. Code Ann. ' 49.10 (Vernon Supp. 2005).