Fourth Court of Appeals

San Antonio, Texas

OPINION

Nos. 04-19-00737-CR, 04-19-738-CR

Aidan VITELA,

Appellant

v.

The STATE of Texas,

Appellee

From the 451st Judicial District Court, Kendall County, Texas

Trial Court Nos. 5942 & 6023

Honorable Kirsten B. Cohoon, Judge Presiding

Opinion by: Patricia O. Alvarez, Justice

Sitting: Patricia O. Alvarez, Justice

Luz Elena Chapa, Justice

Lori I. Valenzuela, Justice

Delivered and Filed: September 29, 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 evidence 
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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.

BACKGROUND

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, crashing 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 event 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 the 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 unreliable evidence. After the jury heard the 

State’s evidence, the prosecutor argued that Vitela had driven recklessly, which Vitela disputed. 

The jury convicted Vitela of the lesser offense of criminally negligent homicide and found him 

guilty of aggravated assault for injuring Snell. Vitela now appeals, arguing for this court to reverse 

and remand his case for a new trial.

ADMISSIBILITY OF BLACK BOX EVIDENCE UNDER THE 4TH AMENDMENT

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 

to 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 Fact, 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 fees. Vitela made no effort to collect the car, and his insurer sent it to an auto 
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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 about 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 his argument regarding the trial court’s 

ruling on his motion to suppress the black box evidence.

ADMISSIBILITY OF BLACK BOX EVIDENCE, STATE’S EXPERT TESTIMONY UNDER DAUBERT

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 car 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, he challenged the admissibility of this 

evidence under Daubert, but the trial court overruled his objection. 

The State argues that Vitela waived his argument in part by not objecting to the science 

underlying 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 

evidence.

1 The black box was labeled Subaru, though his vehicle was a Toyota.
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B. Standard of Review

An appellate court reviews 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 issue.” TEX.R. EVID. 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, to testify as an expert, a witness must be qualified in their area 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)). But “[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.” Carter 

v. State, 5 S.W.3d 316, 319 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d). Ultimately, the 

decision to allow a witness to testify as an expert 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’
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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 black box evidence in a collision 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 crash investigation 

training at the DPS academy, and then later went on to attend two additional crash schools with 

DPS. As a highway trooper, investigating crash scenes was part of his job duties. Trooper 

Kendrick estimated that over the course of his career, 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 crash investigation 

equipment to determine 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 an 
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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 continuing education conferences. Part 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 cannot conclude that the trial 

court abused its discretion by allowing Trooper Bacon to testify regarding crash investigations. 

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. Given that black box data is neither new or 

novel, the trial 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.

LEGAL SUFFICIENCY

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.
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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 cumulative 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. State, 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. 14-08-00977-CR, 2010 WL 1037944, at *2 (Tex. 

App.—Houston [14th Dist.] 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 by speeding down Scenic Loop of 

possibly crashing and causing a person’s death. See TEX. PENAL CODE ANN. §§ 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 ordinary 
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person would exercise in Vitela’s position. See TEX. PENAL CODE ANN. §§ 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, and 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 miles 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 approaching 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 eyewitness 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 unreasonable 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 when 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. 
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IMPROPER ARGUMENT BY THE PROSECUTOR DURING CLOSING STATEMENTS

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 Hughes 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 improper 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. denied, 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) measures 
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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 259)). 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, Vitela made two requests for a mistrial after the 

State argued in the first instance that Vitela drove around the fatal curve at 113 miles per hour, and 

in the second instance that Vitela drove 115 miles per hour around the curve. After the first 

instance, Vitela objected 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 slide 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, explaining for a second time why 

such an argument could not be based on the evidence elicited during trial. 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 at 
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which Vitela drove around the curve where the crash occurred. It must have been clear to the jury 

that the 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, the jury heard both parties’ expert testimony

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 manslaughter. Second, 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 care 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 

established as Vitela’s speed at the time. For these reasons, we overrule Vitela’s argument 

regarding the prosecutor’s improper statements.

CONCLUSION

We conclude that the trial court did not abuse its discretion by admitting Vitela’s black box 

as evidence after determining that Vitela abandoned his car and lacked standing to challenge the 

evidence seized from it. Likewise, the trial court did not abuse its discretion by allowing the State’s 

crash investigators to testify regarding their investigation and on their reading of the crash data 

from the black box. We also conclude that the evidence was legally sufficient to establish 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 deviation 
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from the standard of care that an ordinary person would 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 instructed 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 appeal and affirm the judgment of the trial court. 

Patricia O. Alvarez, Justice

PUBLISH