Opinion filed December 21 , 2017



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 15

- 00 2 40

- CR

__________ MARGARET BENAVIDES E RVIN , Appellant

V.
THE STATE OF TEXAS , Appellee

On Appeal from the 39 th District Court Stonewall County, Texas Trial Court Cause No. 1943

M E M O R A N D U M O P I N I O N A fter the jury found Margaret Be navides Ervin guilty of intoxication
mansla ughter , it assessed her punishment at confinement for nine years. Because, contrary to Appellant’s assertion in her sole issue on appeal, the evidence was
suffici ent to support the verdict, we affirm. Texas Department of Public Safety Trooper s Nick Jimenez, Ja mes Dan iel
Norman , and L.P. Adams were each involved in the investigation of the vehicular fatality tha t is the subject of this case.2

The record reveals that on the date of the offen se, as Appellant drove her pickup east on U.S. Highway 380 in Stonewall County , she drove past the turn that she intended to make off U.S. Highway 380 toward Peacock

. Appellant made a U

turn and then began to enter the westbound lane of U.S. Highway 380 so that she
could make the turn toward Peacock. At the time that Appella nt made this maneuver, Edwa rd Stevens was driving his Chevrolet Blazer westbound on U.S. Highway 380 approximately four

- tenths of a mile east of Appellant’s location

. Trooper Adams, a “certified accident reconstructionist,” testified that he believed
that e ach driver should have been able to see the other’s vehicle

. As Appellant
crossed the westbound lane to make the turn toward Peacock, an d just before the vehicles collided, it appeared that Stevens “moved over to the left as if to pass or to
avoid a collision with [Appellant’s ] pickup.” Nevertheless, the passenger side of Stevens’s Blazer collided with the driver ’s side of Appellant’s pickup. Stevens did

not apply his brakes before the collision
, and at the time of impact was traveling

“ [ m ]ore than 90 miles an hour.” Stevens was not wearing his seat belt and was ejec ted from the vehicle ; he
died as a result

. Stevens’s passenger was stuck in the Blazer
, and the fire department had to pry the doo r open in order to remove her. Emergency medical perso nnel took Appellant and her pass enger, Beverly Janelle Biffle, to the hospital. Howard Heath, EMS Director for Kent County, testified that Biffle told him
th at Appellant had been driving. Appellant told Biffle to “ shut up. ” First responder Stephania Mull en testified that she heard Appellant say that this one wou ld put her in the “big house.” Trooper Norman went to the hospital to talk to Appellant and Biffle. He noticed that Appellant’s speech was slurred, her eyes were red and glassy, and her
breath smelled of alcohol. Further, when Trooper Norman performed a horizontal3

gaze nys tagmus test on Appellant, he found that she exhibited six cl ues of
intoxication. Bif

fle told Trooper Norman that Biffle , not Appellant, was driving the pickup. Biffle ultima tely said that Ap pellant was driving and that Biffle wa s merely trying to protect her. A ppellant told Trooper Norman that a man h ad been driving
but that he ran off. She further told Trooper Norman that s he had been wearing a seat belt, but he did not fi nd any seat

- belt marks on Appellant. However , Biffle had

seat

- belt marks on the right side of her neck, which was consistent with marks that a passenger in an accident would display

. Trooper Norman obtained a search

- warrant

- supported blood draw. An

ana lysis of the blood revealed that Appellant’s blood alcohol level was 0 .191 , more than double the amount that constitutes intoxication as provided in the Penal Code.
See T EX

. P EN AL C ODE A NN

. § 49.01(2)(B) (West 2011 ). Biffle admitted that she and Appellant had been drinking before the wreck occurred. Trooper Jimenez
testified that he smelled the odor of alcohol inside App ellant’s pickup and saw Natural Light beer c ans scattered around the area.
In her sole issue on appeal, Appellant claims that the evidence was insufficient to support her conviction because “the State did not prove that [Appellant’s] intoxication caused [Steven’s] death.” A person commits the offense of intoxica tion 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. See id. § 49.08 . Appellant attack s the third element only
, and we will limit our review accordingly.
We review the sufficiency of the evidence under the standard set forth in Jackson v. Virginia , 443 U.S. 307 (1979)

. Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). Under this standard, we review all the evidence in the light4

most favorable t o the jury ’ s verdict and decide whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Jackson , 443
U.S. at 319. The trier of fact is the sole judge of the weight and credibility of the evidence, and a reviewing court may not reevaluate the weight and credibility of the evidence and substitute its own judgment for that of the factfinder. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999)

. If the evidence raises any conflicting inferences, we presume that the trier of fact resolved such conflicts in favor of the
verdict and defer to that resolution. Jackson , 443 U.S. at 3 26. Under the Texas Penal Code, “ [ 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 cl early insufficient.” P ENAL § 6.04(a)

. Whether
such a causal connection ex ists is a question for the jury’ s determination. Hardie v.
State , 588 S.W.2d 936, 939 (Tex. Crim. App. [Panel Op.] 1979 )

. The State must prove the causa l connection between the de fendant’s in toxication and the victim’s
death

. Daniel v. State , 577 S.W.2d 231, 233

– 34 (Tex. Crim. App. [Panel Op.] 1979). A jury may draw reasonable inferences regarding the ultimate facts from basic facts.
Lacour v. State , 8 S.W.3d 670, 671 (Tex. Crim. App. 2000) . The State may use
circumstantial evidence to establish the causal connection. Wooten v. State , 267 S.W.3d 289, 295

– 96 (Tex. App.

— Houston [14 th Dist.] 2008, pet. ref’d ) ; Garcia v. State , 112 S.W.3d 839, 852 (Tex. App.

— Houston [14 th Dist. ] 2003, no pet

. );

. The State must establish “b ut for ” causation, as referred to in S ection 6.04(a)
of the Texas Penal Code, between a defendant ’ s conduct and the resulting harm.
Robbins v. State
, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986). When concurrent causes are present, the State satisfies the “but for” requirement when either (1) the5

defendant ’ s conduct is sufficient by itself to have caused the harm , whether there is

a concurrent cause or not , or (2) the defendant ’ s conduct coupled wi th another cause
is sufficient to have caused the harm. Id. “ If an addition al cause, other than an
accused’ s conduct [,] is clearly sufficient by itself to produce the result, the accused’ s conduct by itse lf is clearly insufficient, [and] t he accused cann ot be convicted. ”
Wooten , 267 S.W.3d at 296. In this case, the jury heard evidence that the collision would have occurred in the same manner even if Stevens had been driving at a speed of “75 or 60 miles an
hour. ” The jury also heard testimony that there was a clear line of sight of approximately four

- tenths of a mile between the place where Appellant made the U

turn and the point at which Stevens ’s Blazer would have been at that time. It also
heard evidence that “ a person with all their mental facu lties, with normal

- - being normally o bservant, would have seen [the B lazer] approaching . . . prior to making
a U

- turn.” Furthermore, that person would have seen the Blazer approaching behind
them before they made the turn toward Peacock. Additionally, the record contains testimony that
, even after the U

- turn and before re entry onto the highway, a person with normal faculties would have seen Stevens approaching in the Blazer and would not have merged onto the highway because, given the close proximity o f the Blazer,
it wo uld have been unsafe to do so.
There has been no challenge to the sufficiency of the evidence to show that Appellant was intoxicated. One of the statutory definitions of “intoxication” is that the person does not have the normal use o f her mental or physical faculties. P ENAL § 49.01(2)(A)

. We hold that this testimony is sufficient to satisfy the “but for” requirement. A rational jury could have found beyond a reasonable doubt that but for Appellant’s intoxication, or lack of the no rmal use of her normal faculties, Steven’s death would6

not have occurred. As we have outlined above, the evidence supports such a finding even though Stevens exceeded the speed limit. We overrule Appella nt’s sole issue on appeal. We affirm the judgment o f the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

December 21 , 2017 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: W right , C.J., Willson, J. , and Bailey, J.