# Fourth Court of Appeals **San Antonio, Texas** OPINION N o s . 04

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- CR Aidan VITELA , Appellant

v. The STATE of Texas, Appellee From the 451st Judicial District Court , Kendall County, Texas Trial Court No s . 5942 & 60 23 Honorable Kirsten B. Cohoon , Judge Presiding Opinion by: Patricia O. Alvarez, Ju stice Sitting: Patricia O. Alvarez , Justice Luz Elena Chapa , Justice Lori I. Valenzuela , Justice Delivered and Filed: September 2 9 , 2021 AFFIRMED In this appeal from a consolidated guilty verdict for one count of criminally negligent homicide and one count of aggravated assault, Appellant Aidan Vitela argues that the trial court abused its discretion 1) by denying his motion to suppress evidence of his car’s “black box” event data recorder , 2) by allowing the State’s expert witnesses to testify and admitting black box evidence after a Daubert hearing, and 3) committed reversible error by denying a request for a mistrial due to improper closing statements by the prosecutor

. He also argues that the evidence04

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- against him was legally insufficient to support a conviction for criminally negligent homicide. For the reasons given below, we affirm the trial court’s judgment. B ACKGROUND On March 12, 2015, Vitela was driving his two friends, Victoria Snell and Sydney Smith , down Scenic Loop in Boerne

. He sped around a curve and lost control of his car , crash ing into a tree. Smith died due to her injuries in the crash

. As part of the police investigation, officers obtained a search warrant to recover Vitela’s black box e vent data recorder from his car . Once officers collected the evidence, they performed a download of the recorder’s data to gain information on the car’s speed at and before t he time of the crash

. In preparation for trial, Vitela challenged the officers’ authority to seize his car ’s black box and access its information. He also challenged the black box’s reliability. But the trial court denied Vitela’s pretrial motion to suppress as well as his pretrial request to disqualify the State’s expert witnesses or exclude the black box data as un reliable evidence

. After the jury heard the State’s evidence, the prosecutor argued that Vitela had driven recklessl y, which Vitela disputed. T he jury convicted Vitela of the lesser offense of criminally negligent homicide and found him guilty of aggravated assault for injuring Snell

. Vitela now appeals, argu ing for this court to reverse and remand his case for a new trial. A DMISSIBILITY OF B LACK B OX E VIDENCE U NDER THE 4 TH A MENDMENT A. Parties’ Arguments Vitela argues that the warrant police used to seize his car ’s black box was not based on probable cause and that the black box was not found in the place where police expected to find it. Consequently, he argues that his motion to suppress the evidence should have been granted . The State responds that Vitela abandoned his car and had no standing to complain of any seizure related t o it

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- B. Standard of Review A trial court ’ s ruling refusing to suppress evidence is generally reviewed for an abuse of discretion. Crain v. State , 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Guzman v. State , 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). But the appellate court uses a bifurcated standard , reviewing applications of law de novo

. State v. Ruiz , 581 S.W.3d 782, 785 (Tex. Crim. App. 2019) (citing Turrubiate v. State , 399 S.W.3d 147, 150 (Tex. Crim. App. 2013) )

. This standard gives almost total deference to a trial court’s determination of historical facts, especially when resolving the mixed questions of law and fact turning on evaluation of credibility and demeanor. Crain , 315 S.W.3d at 48 (citing St. George v. State , 237 S.W.3d 720, 725 (Tex. Crim. App. 2007 ) )

. C. Applicable Law To collect evidence from a suspect’s vehicle , police must obtain a warrant based on probable cause, unless an exception to the warrant requirement applies. See Gonzales v. State , 190 S.W.3d 125, 134 (Tex. App.

— Houston [1st Dist.] 2005, pet. ref’d) (citing Katz v. United States , 389 U.S. 347, 357 (1967) )

. However, if a suspect has abandoned a vehicle , he may have no standing to challenge any evidence collected from it. See Gonzales , 190 S.W.3d at 135 (citing Swearingen v. State , 101 S.W.3d 89, 101 (Tex. Crim. App. 2003 ) )

. The test to determine whether a suspect has abandoned his vehicle turns on whether the suspect showed intent to abandon it and whether the suspect’s intent was based on any police misconduct. Gonzales , 190 S.W.3d at 135 (citing McDuff v. State , 939 S.W.2d 607, 616 (Tex. Crim. App. 1997) (holding automobile abandoned when left in motel parking lot for six days and defendant went to another state ) ). D. Analysis In its Findings of Fa ct , the trial court found that Vitela’s car was towed to a wrecker’s lot following the crash and that the company notified Vitela he could collect his car after he paid the towing and storage fee s . Vitela made no effort to collect the car , and his insurer sent it to an auto04

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- auction. The auto auction is where law enforcement officers discovered the car , and it is where they ultimately collected the black box evidence . The State is correct that the record reflects Vitela’s apparent intent to abandon his car by his lack of effort to collect it or to communicate with anyone abou t whether he planned to collect it . When the police obtained evidence from the car , it was about to be sold by Geico . Therefore, Vitela maintained no standing to challenge the evidence collected. See Gonzales , 190 S.W.3d at 135. We overrule h is argumen t regarding the trial court’s ruling on his motion to suppress the black box evidence. A DMISSIBILITY OF B LACK B OX E VIDENCE , S TATE ’ S E XPERT T ESTIMONY U NDER D AUBERT A. Parties’ Arguments Vitela argues that the State’s expert witnesses lacked adequate expertise and should not have been permitted to testify

. He also argues that the black box evidence associated with his car was unreliable because the black box police discovered on the passenger seat of his c ar was not of the same make as his car , 1 the data itself showed many errors , and it was unclear how the data related to Vitela’s crash, if it corresponded at all. At trial, h e challenged the admissibility of this evidence under Daubert , but the trial cou rt overruled his objection. The State argues that Vitela waived his argument in part by not objecting to the science under ly ing the black box evidence at trial

. The State further argues that its expert witnesses were qualified to assist the jury in deciding the case, and that Vitela suffered no prejudice from the evidence admitted through the State’s expert witnesses because Vitela offered and admitted similar

e vidence.

1 The black box was labeled Subaru, though his vehicle was a Toyota.04

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- B. Standard of Review An appellate court review s a trial court’s admission of evidence and expert testimony for an abuse of discretion , i.e., whether the trial court’s ruling was within the zone of reasonable disagreement. Weatherred v. State , 15 S.W.3d 540, 542 (Tex. Crim. App. 2000) (citing Prystash v. State , 3 S.W.3d 522, 527 (Tex. Crim. App. 1999) ; Montgomery v. State , 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) )

. C. Applicable Law

“ A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert ’ s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in i ssue. ” T EX . R
. E VID . 702 ; Rhomer v. State , 569 S.W.3d 664, 669 (Tex. Crim. App. 2019) ; Wooten v. State , 267 S.W.3d 289, 297 (Tex. App.

— Houston [14th Dist.] 2008, pet. ref’d)

. In other words, t o testify as an expert, a witness must be qualified in their a rea of testimony, the area of testimony must be appropriate for an expert witness, and the anticipated testimony should help the jury decide the case. Rhomer , 569 S.W.3d at 669 (citing Vela v. State , 209 S.W.3d 128, 131 (Tex. Crim. App. 2006) )

. B ut “[t] his is not the same thing as requiring every expert to be the best possible witness. ” Id

. at 670

. For example, additional education might make a witness more authoritative on a topic but may not be necessary to adequately help a jury decide a case. See id

. In fact, “ experience alone can provide a sufficient basis to qualify a person as an expert.” Car ter v. State , 5 S.W.3d 316, 319 (Tex. App.

— Houston [14th Dist.] 1999, pet. ref’d)

. Ultimately, t he decision to allow a witness to testify as an exper t lies within the sound discretion of the trial court and will not be overturned absent an abuse of discretion. See id. at 320

. Furthermore , the data that an expert might analyze is not likely to be precluded at trial or censured on review unless it is too unreliable to help the jury decide the case

. See Tex. Workers ’04

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- Comp. Comm ’ n v. Garcia , 862 S.W.2d 61, 105 (Tex. App.

— San Antonio 1993) , rev’d on other grounds , 893 S.W.2d 504 (Tex. 1995) (citing Thompson v. Mayes , 707 S.W.2d 951 , 956 (Tex. App.

— Eastland 1986, writ ref ’ d n.r.e.) ). Evidence is usually accepted in relevant scientific fields which are not new or novel. LaBorde v. Shelter Mut. Ins. Co ., 80 So. 3d 1, 1

– 2 (La. Ct. App. 2011)

. Introducing b lack box evidence in a colli sion case , for example, is not new or novel

. See id. (citing Commonwealth v. Zimmermann , 873 N.E.2d 1215 ( Mass. App. Ct. 2007) ; Matos v. State , 899 So. 2d 403 (Fla. Dist. Ct. App. 2005) ; State v. Shabazz , 946 A.2d 626 ( N.J. Super. Ct. Law Div. 2005) ). Such evidence may be subjected to rigorous cross

- examination at trial

. See , e.g., In re Melton , 597 A.2d 892, 903

– 04 (D.C. 1991) . But objections to its reliability will most likely go to the weight of the evidence rather than to its admissibility. Id . (citing Bertolotti v. Dugger , 883 F.2d 1503, 1517 (11th Cir.1989), cert. denied, 497 U.S. 1032 (1990 ) )

. D. Analysis The State’s expert witnesses in this case were both crash investigators for the Texas Department of Public Safety. The lead investigator, Trooper Kendrick , testified that he had been an officer with DPS for over eleven years. He testified that he first received cra sh investigation training at the DPS academy, and then later went on to attend two additional crash school s with DPS. As a highway trooper, investigating crash scenes was part of his job duties. Trooper Kendrick estimated that over the course of his care er, he had worked hundreds of crash scenes. In this case, Trooper Kendrick measured the skid marks at the crash scene, inspected Vitela’s car , and he collected the black box evidence. He also used computer software and c r ash investigation equipment to de termine a drag factor for Scenic Loop

. He testified that this process allowed him to calculate Vitela’s minimum speed from the skid mark measurements
. Based on Trooper Kendrick’s DPS training and extensive experience, we cannot agree with Vitela that it was an04

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- abuse of discretion to allow Trooper Kendrick to testify regarding the crash investigation he conducted in this case. See Rhomer , 569 S.W.3d at 669. Trooper Bacon assisted Trooper Kendrick in the crash investigation. At trial, Trooper Bacon testified that he had worked for DPS for fifteen years and attended all six levels of crash school offered by DPS as well as several conti nuing education conferences. Par t of his job duties included investigating crash scenes. In this case, Trooper Bacon was responsible for downloading black box data. At trial, he provided context for data obtained from the black box, including errors listed in the data printout, and he offered expertise in crash investigations generally. Based on Trooper Bacon’s significant training and experience in this area, we canno t conclude that the trial court abused its discretion by allowing Trooper Bacon to testify regarding crash investigatio ns . See id

. Furthermore, the black box data was not too unreliable to admit for the jury’s consideration, especially considering that the evidence did not stand alone, and it was corroborated by other evidence at trial. See Garcia , 862 S.W.2d at 105. G iven that black box data is neither new or novel , the tri al court did not abuse its discretion by admitting the evidence and allowing parties to examine and explain its significance for the jury to consider. See LaBorde , 80 So. 3d at 1

– 2

. We overrule Vitela’s arguments pertaining to Daubert

. L EGAL S UFFICIENCY A. Parties’ Arguments Vitela argues that the evidence against him was legally insufficient to establish that his crash on Scenic Loop was due to criminal negligence. The State argues that the evidence against Vitela was legally sufficient to establish that he committed criminally negligent homicide and that his convictions should be affirmed.04

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- B. Standard of Review When determining whether there is sufficient evidence to support a conviction, the reviewing court “consider[s] the combined and cu mulative force of all admitted evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, a jury was rationally justified in finding guilt beyond a reasonable doubt.” Tate v. S tate , 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citing Jackson v. Virginia , 443 U.S. 307, 318

– 19 (1979)) ; accord Brooks v. State , 323 S.W.3d 893, 894 (Tex. Crim. App. 2010)

. “Because the jury is the sole judge of the credibility of witnesses and of the weight given to their testimony, any conflicts or inconsistencies in the evidence are resolved in favor of the verdict.” Espino

- Cruz v. State , 586 S.W.3d 538, 543 (Tex. App.

— Houston [14th Dist.] 2019, pet. ref’d) (citing Jackson v. State , 530 S.W.3d 738, 741

– 42 (Tex. App.

— Houston [14th Dist.] 2017, no pet.)). “The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt.” Gamelin v. State , No. 14

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— Houston [14th D ist.] Mar. 23, 2010, no pet.) (citing Matson v. State , 819 S.W.2d 839, 846 (Tex. Crim. App. 1991)). C. Applicable Law For the jury to convict Vitela of criminally negligent homicide, the jurors had to agree that the State proved beyond a reasonable doubt that Vitela caused Smith’s death and that he ought to have been aware of the substantial and unjustifiable risk posed b y speeding down Scenic Loop of possibly crashing and causing a person’s death. See T EX . P ENAL C ODE A NN . §§ 6.03(d), 19.05; Stadt v. State , 182 S.W.3d 360, 364 (Tex. Crim. App. 2005) (citing Aliff v. State , 627 S.W.2d 166, 171 (Tex. Crim. App. 1982) ). The jurors also had to agree that the risk was of such a nature and degree that the failure to perceive it was a gross deviation from the standard of care that an ordinary04

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- person would exercise in Vitela’s position. See T EX . P ENAL C ODE A NN . §§ 6.03(d), 19.05 ; Stadt , 182 S.W.3d at 364 (citing Aliff , 627 S.W.2d at 171). D. Analysis Five seconds before Vitela entered a curve in the road and crashed into a tree, the black box from his car recorded his speed at 115 miles per hour. In the following seconds, the event data recorder documented Vitela’s diminishing speed as he neared the crash site: 113.7, 113.1, 110, 106.9, 101.9, 95.7, and 85.7 miles per hour. In the final second before the crash, the black box recorded Vitela’s decreasing speeds as 80.8, 67.1, a nd 64.6 miles per hour. The lead crash investigator for the State measured skid marks in the road and gleaned through his training and experience that Vitela’s minimum possible speed just before he collided with the tree would not have fallen below 61.7 m iles per hour. Vitela’s expert witness estimated that Vitela was driving 88 miles per hour at some point before the collision and that Vitela was driving 66 miles per hour where the car’s skid marks began. As noted by the State, the speed limit approach ing the curve was posted as 15 miles per hour. One eyewitness to the crash who lived directly off Scenic Loop testified that Vitela was audibly speeding faster than he had previously heard at that stretch of road. As Vitela attempted the curve, the eyewi tness said aloud, “He ain’t going to make it.” Vitela then missed the turn and crashed into a tree, killing his friend. In reviewing all of the evidence taken together and resolving any discrepancies in favor of the verdict, we conclude that it was not u nreasonable for the jury to find beyond a reasonable doubt that Vitela failed to perceive a substantial and unjustifiable risk that he could crash his car and kill or injure his passengers by driving about fifty miles per hour over the posted speed limit w hen he entered the fatal curve, and that it was a gross deviation from the standard of care that an ordinary person would exercise in Vitela’s position. We overrule Vitela’s sufficiency argument and next address his improper argument issue.04

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- I MPROPER ARGUMENT BY THE P ROSECUTOR D URING C LOSING S TATEMENTS A. Parties’ Arguments Vitela argues that the prosecutor’s closing argument contradicted trial evidence, injected new harmful facts to the jury, and the court’s instructions did not cure the impact of the prosecutor’s statements so that Vitela would likely not have been convicted but for the statements ’ injurious effect

. The State argues that the prosecutor’s statements were proper , that the trial court’s instruction to disregard the prosecutor’s statements was effective, and Vitela did not consistently make the correct objection

. B. Standard of Review An appellate court reviews a trial court ’ s denial of a mistrial for abuse of discretion. Archie v. State , 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). C. Applicable Law

“ In order to be appropriate, jury argument must fall within one of the following areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; or (4) a plea for law enforcement. ” Pittman v. State , 9 S.W.3d 432, 434 (Tex. App.

— Houston [14th Dist.] 1999, no pet.) (citing H ughes v. State , 878 S.W.2d 142, 157

– 58 (Tex. Crim. App. 1992) )

. To be reasonable, “ a deduction may only be based upon evidence which was actually introduced. ” Id . (citing Lovelace v. State , 662 S.W.2d 390, 392 (Tex. App.

— Dallas 1983, pet. ref ’ d untimely filed) )

. If a prosecutor’s closing argument is found to be improp er on review, the appellate court must determine whether the improper argument warrants reversal. Id . (citing Mosley v. State , 983 S.W.2d 249, 259 (Tex. Crim. App. 1998), cert. de nied, 526 U.S. 1070 (1999)). “ The following three factors are used to analyze the harm associated with improper jury argument: (1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor ’ s remarks); (2) measures04

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- adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). ” Jones v. State , 38 S.W. 3d 793, 797 (Tex. App.

— Houston [14th Dist.] 2001, pet. ref’d) (citing Mosley , 983 S.W.2d at 2 59 ))

. Instructions to disregard are presumed to be complied with by the jury. Archie , 340 S.W.3d at 741. D. Analysis During the prosecutor’s closing argument, Vite la made two requests for a mistrial after the State argued in the first instance that Vitela drove around the fatal curve at 11 3 miles per hour , and in the second instance that Vitela drove 115 miles per hour around the curve

. After the first instance, Vitela o bjected to facts not in evidence, and the trial court agreed that there was no evidence to support the argument that Vitela drove 113 miles per hour around a curve. The trial court instructed the prosecutor to remove a s lide related to the improper argument and instructed the jury to disregard the statement. The trial court denied Vitela’s first request for a mistrial. Immediately following the bench conference , the prosecutor said, “Recklessness : driving 115 miles per hour around a curve.” Vitela objected to facts not in evidence, and the trial court instructed the prosecutor to return for another bench conference , explain ing for a second time why such an argument could not be based on the evidence elicited during tria l. The prosecutor clarified what she could properly argue, and Vitela requested a mistrial once more, which the trial court again denied. After closing arguments, the jury acquitted Vitela of manslaughter and convicted him of negligent homicide. We agree that the prosecutor’s statements at issue were not based on the evidence elicited at trial and were therefore improper

. However, we do not agree that the statements caused Vitela to be convicted when he otherwise might not have been. First, the jury is presumed to have followed the trial court’s instruction to disregard the prosecutor’s argument regarding the speed at04

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- which Vitela drove around the curve where the crash occurred. It must have been clear to the jury that th e prosecutor was called to the trial court ’s bench for correction each time she claimed that Vitela was driving over one hundred miles per hour in the fatal curve, and that she had to change her closing argument as a result. During trial, t he jury hear d b oth parties’ expert testimon y regarding Vitela’s speed up to the point of collision . Nowhere does the record reflect that the jury substituted the prosecutor’s statements for the actual evidence, especially considering that Vitela was acquitted of manslau ghter. S econd, the trial evidence supported a jury finding that Vitela disregarded a substantial and unjustifiable risk that he should have perceived, and that it was a gross deviation from the standard of car e that an ordinary person would have taken in his position. See Jones , 38 S.W.3d at 797. Vitela’s data recorder documented his speed at 115 miles per hour five seconds before his collision. Vitela’s expert witness estimated that Vitela was driving 66 miles per hour where his skid marks began

. The State’s expert calculated that Vitela’s speed would not have fallen below 61.7 miles per hour just before he collided with the tree. The posted speed limit for the curve was fifteen miles per hour, significantly lower than any of the evidence establis hed as Vitela’s speed at the time. For these reasons, we overrule Vitela’s argument regarding the prosecutor’s improper statements. C ONCLUSION We conclude that the trial court did not abuse its discretion by admitting Vitela’s black box

as evidence after determining that Vitela ab andoned his car and l ack ed standing to challenge the evidence seized from it

. L ikewise , the trial court did not abuse its discretion by allowing the State’s crash investigators to testify regarding their investigation and on the ir reading of the crash data from the black box

. We also conclude that the evidence was legally sufficient to estab lish that Vitela caused Smith’s death when he drove at a high rate of speed into a curve, disregarding a substantial and unjustifiable risk that he should have perceived, and that it was a gross deviation04

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- from the standard of care that an ordinary person w ould have taken in his position

. Lastly, we conclude that while the State made an improper argument regarding the speed at which Vitela drove around the curve where the crash occurred, the trial court effectively corrected the State’s argument and instruc ted the jury to disregard the unfounded statements

. Vitela did not show he would likely not have been convicted absent the State’s conduct

. We overrule Vitela’s issues on appea l and affirm the judgment of the trial court. Patricia O. Alvarez, Justice PUBLISH