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Payne v. State8/29/2003
t is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We will set aside a verdict "only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust." Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002).
Applicable Law
A person commits the offense of intoxication manslaughter if the person "1) operates a motor vehicle in a public place . . . and 2) is intoxicated and by reason of that intoxication causes the death of another by accident or mistake." Tex. Pen. Code Ann. § 49.08 (Vernon 2003). "Intoxicated" is defined as
(A) 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; or
(B) having an alcohol concentration of 0.08 or more.
Tex. Pen. Code Ann. § 49.01(2)(A), (B) (Vernon 2003). A witness does not have to be an expert to testify that a person he observes is intoxicated by alcohol; therefore, lay opinion testimony by a police officer that a person is intoxicated is probative evidence that a person was "drunk." Henderson v. State, 29 S.W.3d 616, 622 (Tex. App.- Houston [1st Dist.] 2002, pet. ref'd). However, the rule as to whether a non- expert witness may testify whether a person is under the influence of drugs is different. Smithhart v. State, 503 S.W.2d 283, 285 (Tex. Crim. App. 1973). The rationale is that intoxication by alcohol is "of such common occurrence" that its recognition requires no expertise. Id. When a person is under the influence of drugs, expert testimony must connect that person's symptoms to a conclusion that he or she was under the influence of a drug and was incapable of safely operating a vehicle. Id. at 286. Nevertheless, in the absence of direct opinion testimony, such intoxication may be shown by circumstantial evidence. Id. at 285.
The Evidence
In support of its case-in-chief, the State called Simon Bennington ("Bennington") to testify. Bennington stated that on July 31, he and Anthony Murphey, his employee , were traveling in his work truck westbound on Highway 334 toward Seven Points. At some point in time, Bennington looked in his rearview mirror and saw a Chevrolet pickup truck, driven by Appellant, "swerving back and forth across the highway." He stated that the truck was "going every which way" and that it was "going off the shoulder to the right, it was going into oncoming traffic on the left" by "going across the white line to the right and across the dotted line to the left." Bennington testified that the truck was speeding up and slowing down and that the truck maneuvered in this manner for about four to five minutes. Once the two vehicles traveled into the city limits of Seven Points, Bennington tried to slow down in order to make the truck behind him slow down as well because he was afraid that it was going to "kill somebody and have a head-on collision or run me off the road."
After his efforts to slow the truck failed, Bennington, a volunteer fireman for Gun Barrel City, contacted the Seven Points Police Department on his police radio and asked the dispatcher to send an officer to stop the truck. Bennington continued to watch the truck in his rearview mirror, and a few minutes after Bennington placed the call, he saw the truck strike Janette Taylor ("Taylor"). He noticed
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