Opinion filed July 11 , 201 9



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 17

- 00317

- CR

__________ SAMUEL JUAREZ, JR. , Appellant
V.
THE STATE OF TEXAS , Appellee

On Appeal from the 35th District Court Brown County , Texas Trial Court Cause No. CR 25414

M E M O R A N D U M O P I N I O N
Th e grand jury indict ed Samuel Juarez, Jr. for the offense of felony murder

. A fter a bench trial, the trial court found Appellant guilty of the lesser

- included offense of manslaughter
, and it assessed punishment at confinement for twenty

years

. We affirm. A person commits the offense of manslaughter if he recklessly causes the
deat h of an individual

. See T EX

. P ENAL C ODE A NN

. § 19.04 (West 2019 ). In a single2 issue on appeal, Appellant claims that the evidence is insufficient to support the
conviction bec ause the State failed to present sufficient evidence that he acted recklessly

. We review a sufficiency of the evidence issue to determine whether any
rational trier of fact could have found Appellant guilty of the charged offense beyond
a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318 (1979); Brooks v. State
, 323 S.W.3d 89 3, 912 (Tex. Crim. App. 2010)

. We review 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 offense beyond a reasonable doubt.
Jackson , 443 U.S. at 319; Isassi v. State , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The trier of fact may believe all, some, or none of a witness’s testimony because the factfinder is the sole judge of the weight and credibility of the witnesses. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Isham v. State , 258 S.W.3d 244, 248 (Tex. App.

— Eastland 2008, pet. ref’d). We defer to the
fact finder’s resolution of any conflicting inferences raised by the evidence and presume that the factfinder resolved any conflicts in favor of the verdict. Jackson
, 443 U.S. at 326; Brooks , 323 S.W.3d at 89 9 ; Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The evidence shows that, a s Appellant drove his vehicle down a neighborhood
street in Brownwood, he hit and killed D.F. , the eight

- year

- old victim in this case. On the day of the alleged offense, D.F. and his younger brother
, T.F. , were play ing together in front of their grandmother’s home in Brownwood

. Teresa F ell
is D.F. a nd T.F.’s grandmother. Fell testified that she was on her front porch when Appellant hit D.F. with his vehicle

. According to Fell, D.F. and T.F. were in her driveway playing with a soccer ball. She saw the ball “go out to the street.” She3 saw one of her grandchildren run into the street to get the ball; at the time, she did
not know whether D.F. or T.F. ran after the ball. Although Fell did not see the impact, she testified that she saw Appell ant drive
his vehicle “pretty fast” ; she first heard the “impact” and t hen heard brakes being applied

. Fell did not see t he impact because she looked away just before Appellant
hit D.F. She also testified that she did not see the impact because there was a vehicle parked on the curb directly in front of her home and the vehicle blocked her view of
the point of impact

. Juan Sanchez testified at Appellant’s trial . At the time that Appellant was driving in front of Fell’s house, Sanchez was traveling in the opposite direction and met Appellant

. Sanchez noticed that D.F. was across the street from Fell’s home.
D.F. was near a telephone pole and was “ bouncing [ a ] soccer ball

. ” T.F. was on the
curb near Fell’s driveway playing in some leaves

. As Sanchez met Appellant
, he noticed that Appellant was looking at his phone and did not appear to be paying attention to the roadway. Sanchez continued to
watch Appellant in his left “ side

- view ” mirror. According to Sanchez, “[n]ot even a second passed
, ” and then he saw Appellant “ hit ting his brakes and then hit [ D.F. ]

. ” Appellant initially stayed at the scene but soon left in his vehicle, drove to his parent s ’ ho use , and told them what had happened

. Appellant’s stepfather returned
to the scene and told Stephanie Morgan, a s ergeant with the Brownwood Police Department, that Appellant told him that Appellant “had just run over two kids.” Sometime later, Brandon Johnson, a police offi cer with the Brownwood Police Department , located Appellant

. Officer Johnson initiated a traffic stop and
conducted field sobriety tests on Appellant

. According to Officer Johnson
, Appellant had bloodshot, glassy, and drooping eyes . Additionally, Appellant failed
three sobriety tests

. In Officer Johnson’s opinion, Appellant “was very intoxicated

. ”4 Appellant admitted that he had consumed six sixteen

- ounce tallboy “Bud Ice” beers

. The test results of a subsequent blood draw revealed that Appellant’s blood alcohol

content was 0 .276 , more than three times the legal limit.
Clinton Hounshell is a certified peace officer employed by the Texas Department of Public S afety

. Among other things, Trooper Hounshell had been
trained in and was involved in “crash reconstru ction” and “crash investigation

. ” Trooper Hounshell testified that he went to the scene of the accide nt on the day of the alleged offense. Trooper Hounshell utilized various reconstruction techniques to determine
the minimum speed at which Appellant was driving when the skid marks left by Appellant’s vehicle began

. Trooper Hounshell determined that Appellant’s speed at that point was a t least thirty

- one miles per hour ; the speed limit at the scene w as thirty miles per hour

. Trooper Hounshell also employed various techniques to determine the “general area of impact”

— the point at which Appellant hit D.F. Trooper Hounshell
testifie d that D.F

. ’ s body lay sixty feet beyond the general area of impact

. Trooper Hounshell found the first skid mark from Appellant’s vehicle a “ [ l ] ittle over
seven feet ” past the area of im pact

. T h at , according to Trooper Hounshell, indicated that Appellant had applied his brakes “after the area of impact.” The State also presented testimony from Texas Department of Public Safety Trooper James Jones . Trooper Jones ha d been involved in cra sh reconstruction since
1999

. H e agreed with the method that Trooper Hounshell used to calculate Appellant’s minimum braking speed and agreed that Appellant’s minimum braking speed was thirty

- one miles per hour and that the estimated area of impact was as Trooper Hounshell had located it

.5 The record reveals that Appellant told Detective Robert Lee with the
Brownwood P olice Department that “ sober, drunk
, there was no faster reaction” and
that “it was just instant when [ D.F.] came out” from between two vehicles.
Dr. Dan Lewis Locker testified at Appellant’s trial. According to Dr. Locker
, Appellant’s comment about “drunk or sober” was indicative of Appellant’s inability, in his intoxicated state, to assess his own capabilities. Dr. Locker also testified that
a blood alcohol level of 0 .27 would constitute “ [ m ] ajor impairment” of a person , that reaction time would be slowed considerably , and that “the ability to know your surroundings is significantly impaired

. ”
Dr. Scott Morris also testified. H e testified
, “ T he higher the level of alcohol, the more pronounced the impairment of judgment, motor responses, [and]
coordination.” Dr. Morris also told the trial court , as did Dr. Locker, that high levels
of intoxication can cause tunnel vision. Bridget Mc G inty, a forensic scientist with the Texas Department of Public Safety , testified that a person typically experiences visual impairment between 0 .09
and 0 .25 blood al cohol level. She also testified that intoxication impairs peripheral vision, the ability to perceive color, motion, and “ how far out you can see ” and that
it also results in a decreased response to stimuli. Mc G inty further gave her opinion
that
, at a 0 .276 blood alcohol level, a person’s ability to perceive the motion of a bouncing ball and the movement of a running child would be impaired. Ap p ellant’s challenge to the sufficiency of the evidence is grounded on his
contention that the State’s evidence “was insufficient to prove he acted recklessly” because the State failed to prove that “he consciously disregarded a substantial and unjustifiable risk.” Appellan t does not deny that he was intoxicated
, but he claims
that , although he was intoxicated, his intoxication was not a cause of the incident

.6 According to Appellant, the incident was unavoidable whether he was “drunk or
sober.” Manslaughter is a lesser included offense of murder. Cavazos v. State , 382 S.W.3d 377, 386 (Tex. Crim. App. 2012); Moore v. State , 969 S.W.2d 4, 9 (Tex. Crim. App. 1998). A person commits the offense of manslaughter “ if he recklessly
causes the death of an individual.” P ENAL § 19.04 ( a )

. The Texas Penal C ode provides: A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree th at its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor ’ s standpoint.

Id. § 6.03(c) (West 2011 )

. Generally, m ental culpability must be inferred from the circumstances.
Dillon v. State , 574 S.W.2d 92, 94 (Tex. Crim. App. 1978); Russo v. State , 228 S.W.3d 779, 793 (Tex. App.

— Austin 2007, pet. ref’d). A culpable mental state may be inferred by the trier of fact from the acts, words, and conduct of the accused.
Dues v. State , 634 S.W.2d 304, 30 5 (Tex. Crim. App. 1982); Fuentes v. State , 880 S.W.2d 857, 860 (Tex. App.

— Amarillo 1994, pet. ref’d). As we have said, Appellant does not dispute that he was intoxicated when he
struck D.F . with his vehicle

. Although Appellant ’s blood alcohol content was 0 .276
when the officer later found him
, Mc G inty testified that Appellant’s blood alcohol content could have been higher at the time of the accident. A s a reasonable
fact finder , the trial court could have inferred from this evidence alone that Appellant

was aware of but acted with a conscious disregard of a substantial and unjustifiable7 risk and that he
, therefore
, was reckless. See Moya v. State , 426 S.W.3d 259, 267 (Tex. App.

— Texarkana 2013, no pet.); Ru bio v. State , 203 S.W.3d 448, 452 (Tex. App.

— El Paso 2006, pet

. ref’d) (“[T]he actions of driving under the influence of alcohol can be used to show a conscious disregard of a substantial risk.”); Porter v.
State , 969 S.W.2d 60, 64 (Tex. App.

— Austin 1998, pet. ref’d) ; see also Griffith v.
State , 315 S.W.3d 648, 652 (Tex. App.

— Eastland 2010 , pet ref’d ). Again, Appellant claim s that “ sober or drunk ” there was no faster reaction
time and that his intoxication was not a cause of the i ncident

. Sanchez testified that Appellant would no t have been able to see D.F. before the accident because D.F.

was obstructed by Sanchez’s vehicle. Sanchez testified that
, if he had been driving Appellant’s vehicle , he would have hit D.F

. But Sanchez also said that he was able
to see D.F. playing across the street from Fell’s house and that he slowed down when
he saw D.F. so that he could stop if he needed to stop

. Sanchez was also able to see several other things in the brief period of time just befo re impact : D.F. bouncing a soccer ball by a telephone pole, T.F. lying down on a curb and playing in some leaves in Fell’s yard, and Appellant looking at his cell phone just prior to the incident and not paying attention to the roadway

. Although Sanchez saw all these things in a short period of time , Appellant, according to the evidence in the record, apparently
did not see D.F.
T he trial court was free to resolve any conflicting testimony
, and as a rational factfinder, it apparently chose not to believe testimo ny that the incident was unavoidable given Appellant’s intoxicated condition, actions, omissions, and words just before and after the in cident. T he trier of fact may believe all, some, or none of a witness’s testimony because t he trier of fact is the sole judge of the weight and credibility of the witnesses. Sharp v. State , 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Isham v. State , 258 S.W.3d 244, 248 (Tex. App.

— Eastland 2008, pet. ref’d).8 After a review of the record in the light most favorable to the verdict, we hold
that the State presented sufficient evidence for the trial court to find beyond a reasonable doubt that Appellant acted recklessly and that he committed the offense of manslaughter. W e overrule Appellant’s sole issue on appeal

. We affirm the judgment of the trial court.

JIM R. WRIGHT
SENIOR CHIEF JUSTICE

July 11, 2019 Do not publish. See T EX

. R. A PP

. P. 47.2(b). Panel consists of: Bailey, C.J., Stretcher
, J. , and Wright, S.C.J. 1

W illson, J., not participating.

1 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.