Vincent Brassard Scillitani v. State ( 2011 )

Affirmed and Majority and Concurring Opinions on Remand filed June 21, 2011.

In The

Fourteenth Court of Appeals

NO. 14-08-00430-CR

Vincent Brassard Scillitani, Appellant

v.

The State of Texas, Appellee

On appeal from the County Court at Law No. 2

Fort Bend County, Texas

Trial Court Cause No. 125238

CONCURRING OPINION ON REMAND

            I join the majority in its analysis and disposition of appellant’s challenge to the trial court’s denial of his motion to suppress evidence of his breath-test results.  I nevertheless concur with the majority’s judgment because I respectfully disagree with its conclusion that the Court of Criminal Appeals, through its decision in Kuciemba  v. State, 310 S.W.3d 460 (Tex. Crim. App. 2010), impliedly overruled Johnson v. State, 517 S.W.2d 536 (Tex. Crim. App. 1975). 

            Kuciemba and State v. Blackman, 580 N.W.2d 546 (Neb. 1998), on which the Court of Criminal Appeals relied, differ significantly from Johnson both in the admissions of the defendant drivers and the descriptions of the accidents.        In Johnson, the defendant driver’s only admission was “I was driving.”  517 S.W.2d at 537.  The police officer described the two-lane road, the ditch on the side of the road, the vehicle’s position in the ditch, and the vehicle’s westward direction of travel.  There was no testimony as to how the vehicle came to be in the ditch or even whether the vehicle was damaged.^[1]  Id. at 537–38.  The court concluded,

In this case there is no evidence that the ditch where the pickup was standing was in the street right-of-way.  There is no evidence that the tracks made by the pickup truck came from the direction of the street . . . or that a trail or water leaking from the radiator came from the direction of the street . . . .  Also, there is no evidence showing when the appellant drove the pickup truck.  There was no evidence of how recently the truck had been driven such as evidence that the engine was still hot . . . . There is no proof that the appellant drove at the time he was intoxicated.

Id. at 538 (citations omitted).

            In Kuciemba, the defendant driver stated that he had fallen asleep.  He also stated that he did not lose consciousness but also did not remember the accident.  310 S.W.3d at 461.  The police officer testified that he arrived to find a pickup truck in a ditch.  The truck was upright on its wheels but the roof was partially crushed, indicating that the vehicle had completely rolled over.  The defendant was in the truck and he was bleeding.  Id.  The court concluded, “Being intoxicated at the scene of a traffic accident in which the actor was a driver is some circumstantial evidence that the actor’s intoxication caused the accident, and the inference of causation is even stronger when the accident is a one-car collision with an inanimate object.”  Id. at 462.

            In Blackman, the defendant driver admitted that he had been operating his motorcycle on a county road immediately before he lost control and landed in the ditch.  580 N.W.2d at 548.  The police officer testified that he was notified that a motorcycle was in a ditch.  He arrived at the scene 15 to 20 minutes later and found the defendant lying unmoving in the ditch.  Id.  The court concluded, “It can reasonably be inferred that the deputy found [the defendant] where he had come to rest after losing control of his motorcycle and that [the defendant’s] state of intoxication existed when he last operated the motorcycle on the county road.”  Id. at 551.

            In Kuciemba, the defendant made contradictory admissions as to how the accident happened.  In Blackman, the defendant admitted that he lost control of his vehicle.  But in Johnson, there was no admission as to loss of control, nor any description of how or why the truck ended up in the ditch.

            In the case before us, appellant admitted that he did not know how he lost control of his vehicle and ended up in a ditch.  The police officer testified that based upon his investigation of the accident, appellant drove off the side of the road and struck a fence pole because he had been drinking and drove on wet roads at an unsafe speed.  

            The facts of this case are similar to both Kuciemba and Blackman and different from Johnson.  We can affirm this conviction without holding that Kuciemba has impliedly overruled Johnson.  Because the majority does so, I can only concur in the judgment.

                                                                        /s/        Tracy Christopher

                                                                                    Justice

Panel consists of Chief Justice Hedges and Justices Frost and Christopher. (Frost, J., Majority).

Publish — Tex. R. App. P. 47.2(b).

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[1] In fact, it appears that court was skeptical that an accident had happened.  The court used quotation marks in the following sentence:  “The officer said he could not testify at what time the ‘accident’ occurred.”  Id. at 538.  Certainly the driver did not admit that he was driving “when the accident occurred” as stated in the majority opinion.  See ante, at 5.