Shadle v. State

1

AUSTIN SHADLE, Appellant v. THE STATE OF TEXAS, Appellee

No. 14-22-00508-CR

Court of Appeals of Texas, Fourteenth District

August 1, 2023

On Appeal from the 16th District Court Denton County, Texas Trial Court Cause No. F22-734-16

Panel consists of Chief Justice Christopher and Justices Jewell and Spain.

OPINION

KEVIN JEWELL JUSTICE

Appellant Austin Shadle appeals his conviction for criminally negligent homicide, arguing in a single issue that there is legally insufficient evidence that he committed any criminally negligent act. After reviewing the evidence in the light most favorable to the jury's verdict, we affirm.

Background

Between midnight and one o'clock in the morning on February 7 2019, appellant bought lottery tickets at a convenience store and ate inside a fast-food restaurant in Denton, Texas. Surveillance video from both locations showed appellant smoking from "an electronic cigarette or a vape pen." Appellant then left the restaurant to drive to his home in Argyle, heading southbound on Highway 377 in a Nissan Titan truck. Highway 377 is an undivided highway, with one lane of northbound traffic and one lane of southbound traffic. The relevant posted speed limit was fifty-five miles per hour.

According to the restaurant's surveillance video, appellant left the restaurant at 1:13 a.m. Within a few minutes after leaving, appellant veered to the right over a wide shoulder and off the roadway, running into a mailbox and several road signs. His truck slid along the grass and dirt for about 120 feet. Appellant eventually reentered the roadway, where he crossed into the opposite lane of traffic and struck "near head-on" a northbound Mazda sedan driven by Gene Housley. Housley died from his injuries.

Video from a landscaping business captured appellant driving immediately before the crash and showed appellant's truck veering off the roadway, as evidenced by "debris and dust behind it as it moves off of the shoulder." There was no video footage of the accident.

First responders arrived at the scene. Denton Police Department ("DPD") Sergeant Blake Jackson testified that appellant was "bleeding from a cut on his head and had a decent amount of blood on his white shirt. He was having some difficulties standing up straight, was complaining about an injury to his back." Sergeant Jackson noticed that appellant's eyes were "red and glossy and had small pupils." Appellant was disoriented. He initially told officers that he was traveling toward Denton when he in fact was traveling away from Denton toward Argyle. He was unsure if he had been wearing his seatbelt. Appellant denied recently drinking alcohol.

Sergeant Jackson performed the horizontal gaze nystagmus ("HGN") test on appellant. According to Sergeant Jackson, law enforcement officers use the HGN test to screen for impairment as a way to determine whether probable cause exists to make an arrest for intoxicated driving.^[1] Sergeant Jackson explained to the jury that HGN is "involuntary jerking of the eyes as your eyes go across a horizontal plain [sic]," like windshield wipers on a dry windshield. The presence of HGN can indicate intoxication. HGN is observable in persons who have ingested central nervous system depressants. The test comprises three steps, administered in each eye, leading to a possible maximum six "positive" (HGN present) or "negative" (HGN negative) clues of intoxication. The "decision point" on the test is four out of six positive clues. According to Sergeant Jackson, "[f]our clues indicates that a person is intoxicated."

Sergeant Jackson observed six out of six clues in appellant's eyes. He then requested another officer, DPD Lieutenant Michael Christian, to administer the test a second time. Lieutenant Christian reported that he saw "for sure a solid four clues out of six." He also saw a borderline positive for two additional clues. "[T]he main thing [Lieutenant Christian] wanted to express to [Sergeant Jackson] was that there was the decision point made of the four out of the six." At trial, Lieutenant Christian "believe[d] [appellant] exhibited all six [clues]" and "believe[d] [appellant] was intoxicated."

An ambulance transported appellant to a nearby hospital, where he provided blood and urine samples. Testing showed no traces of alcohol in his system. However, he tested positive for alprazolam^[2] and THC (the active compound in marijuana). Xanax is a central nervous system depressant that can cause HGN. Marijuana does not cause HGN. Appellant had a prescription for two milligrams of Xanax, to be taken twice daily. Appellant told the emergency room physician that he had taken "an extra Xanax" that night. Appellant also reported that he smoked marijuana the day of the accident, but he did not give a time frame. The medical records from that visit include a note indicating that "[Appellant] denies tobacco use. . . . He does smoke Marijuana, with last use today."

The State indicted appellant on separate counts of intoxication manslaughter and manslaughter, but the State proceeded to trial on only the manslaughter count after appellant pleaded not guilty. The indictment alleged the following manners and means by which appellant committed manslaughter: (1) by driving a motor vehicle into a motor vehicle occupied by Gene Housley; (2) by operating a motor vehicle at an unreasonable speed; (3) by operating a motor vehicle after ingesting drugs; (4) by operating a motor vehicle while tired; (5) by failing to maintain a proper lookout for traffic; (6) by failing to maintain proper control of a motor vehicle; (7) by driving a motor vehicle off of the improved roadway; (8) by driving a motor vehicle into an oncoming lane of traffic and/or (9) by driving in an unsafe manner with a disregard of the risk of death.

At trial, Sarah Martin, a forensic scientist at the Texas Department of Public Safety Crime Laboratory, testified that appellant's blood sample tested positive for benzodiazepine (the class of drugs including Xanax) and cannabinoid (the class of drugs including marijuana). Sarah Martin acknowledged that the level of THC was a "low concentration" but testified that even low concentrations can affect a person. She explained that, "[b]ecause the Delta-9 THC is an active Component [of marijuana], as long as it is detected, it is going to have an effect. It can be at low concentrations in your blood while being at high concentrations in your brain. So yes, it could still cause an effect on you."

Sarah Martin further testified that "THC does have some depressant effects, where it can cause relaxation, drowsiness, dizziness. It also can have some disorientation or confusion. You also can have some euphoria initially when you ingest it. Regarding driving, you could have a hard time staying inside your lane or be weaving in traffic. It tends to cause a narrowed vision. So you tend to focus on fewer tasks when you do have marijuana inside your body." She agreed that THC affects a user's "reaction times." THC and Xanax are both central nervous depressants, and when "you have two depressants acting together, that can produce what is called an additive effect. So that means that total [central nervous system] depressive effect, drowsiness, dizziness, all of that is going to be greater and possibly more impairing than just one by itself because the effects will add up together."

Eduardo Padilla, another forensic scientist from the Crime Laboratory, testified that appellant's blood sample tested positive for Xanax at 0.050 milligrams per liter, which is within the "therapeutic range" of 0.02-0.06 milligrams per liter. Neither Sarah Martin nor Padilla could say with reasonable certainty when appellant ingested the Xanax or marijuana.

Sergeant Jackson testified that, based on his training and experience, Xanax can cause horizontal gaze nystagmus, which is an indication of impairment. He explained that "[Xanax] would make it visible in the same way that alcohol would because it's simply a member of the depressant category." Lieutenant Christian similarly testified that depressants "absolutely" enhance nystagmus. However, Sergeant Jackson acknowledged that Xanax would not cause a person's eyes to be red or glossy or cause the pupils to constrict.

Sean Aja specialized in crash reconstruction for DPD. He testified that Housley was driving approximately 50 m.p.h. before the crash. In contrast, according to Aja, appellant's speed reached 108 m.p.h. at some unspecified time before he swerved off the roadway. Aja also testified that appellant was going 51 m.p.h. while sliding across the grass and dirt. When he reentered the roadway, appellant's speed was 47 m.p.h.

Appellant called one witness in his defense, Lisa Martin, who testified as an expert in intoxication investigation and basic crime accident reconstruction. Lisa Martin agreed with Aja's calculations as to appellant's speed after he drove off the roadway (51 m.p.h.) and when he reentered the roadway (47 m.p.h.). She strongly disagreed, however, with Aja's calculations that appellant was driving 108 m.p.h. at any time before leaving the roadway. She estimated that appellant was driving fifty-one miles per hour prior to driving off the shoulder. Lisa Martin also disagreed that appellant's ingestion of Xanax would cause HGN.

The jury did not find appellant guilty of manslaughter as alleged in the indictment but found appellant guilty of the lesser included offense of criminally negligent homicide with an affirmative finding of a deadly weapon, enhancing the state jail felony offense to a third-degree felony.^[3] Tex. Penal Code §§ 12.35 (c)(1) (enhancement), 19.05 (offense). Appellant also pleaded true to a prior enhancement for felony possession of a controlled substance, and ...