Nos. 05-04-01407-CR, 05-04-01408-CR
Opinion issued October 11, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause Nos. F03-53745-LV, F03-53746-LV. Affirmed.
Before Justices MORRIS, WRIGHT, and RICHTER.
Opinion By Justice WRIGHT.
Jose Luis Carlos appeals his convictions for failure to stop and render aid and negligent homicide. After appellant pleaded guilty in the failure to stop and render aid case and was found guilty by the jury in the negligent homicide case, the jury assessed punishment at five years' confinement and ten years' confinement respectively. In three issues, appellant contends (1) the trial court erred by entering a deadly weapon finding in the negligent homicide case; (2) because the deadly weapon finding is improper, the sentence in the negligent homicide case is void; and (3) the jury was improperly instructed in the stop and render aid case. In two supplemental issues, appellant contends the evidence is legally and factually insufficient to support his conviction for negligent homicide. We overrule appellant's issues and affirm the trial court's judgments.
Background
Rosa Elena Vargas Ramirez testified that she was involved in a "relationship" with appellant. Rosa, her sister, Sara Ramirez, and her brother, Benito Ramirez, were passengers in a Yukon driven by appellant. The Ramirezes went to a nightclub with appellant and his sister and brother-in-law. Appellant and Rosa began to argue at the nightclub and continued arguing as appellant drove his sister and brother-in-law and the Ramirezes home. After dropping off his sister and brother-in-law, appellant got onto Central Expressway. Rosa testified that appellant "was spinning up all the way to the end of the [speedometer] needle" and was "swerving in and out between lanes of traffic." Rosa was scared and she asked appellant to slow down. Rosa explained that appellant lost control of the Yukon when she told him she did not want to "be with him anymore, he was driving all the way to the end of the needle, and then he punched the steering wheel." As he did so, the car went to the left and hit the concrete barrier. The Yukon rolled several times. The Ramirezes, none of whom were wearing seatbelts, were thrown from the car. All three sustained serious injuries, and Sara died a short time later. Benito testified that he and appellant drank beer throughout the evening and night. According to Benito, appellant had nine beers during that time. When appellant got onto "75, he speed all the way up, and he was driving from one lane to different lanes." Benito repeatedly asked appellant to slow down and stay in a single lane. Appellant lost control when he hit the steering wheel, turned to the left, and hit the concrete barrier. Benito was thrown from the car and was lying on the concrete. Appellant nudged Benito with his foot to see if Benito was alive. Then he told Benito to tell the police he did not know who was driving the car. Appellant did not attempt to help Benito or his sisters. When police arrived at the scene of the accident, appellant was not present. About two hours later, the police located appellant at his apartment. Appellant admitted he owned the Yukon, but claimed he had loaned it to a friend. Mark McKnight, a Dallas police office, testified that appellant had glass fragments in his hair, blood on his face, and his left hand was bleeding. Although appellant denied having been in an accident, McKnight did not believe him. The officers took appellant to the hospital to be treated for his injuries. Appellant was arrested at the hospital after being identified as the driver of the Yukon. Sufficiency of the Evidence
In his first and second supplemental issues, appellant contends the evidence is legally and factually insufficient to support his conviction for negligent homicide. When reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). When reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Under either review, the fact finder is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex.App.-Dallas 2003, no pet.). A person commits criminally negligent homicide if he causes the death of an individual by criminal negligence. Tex. Pen. Code Ann. § 19.05(a) (Vernon 2003). A person acts with "criminal negligence" when he "ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur." Tex. Pen. Code Ann. § 6.03(d) (Vernon 2003); Cooks v. State, 5 S.W.3d 292, 297 (Tex.App.-Houston [14th Dist.] 1999, no pet.); see also Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App. 1975) (stating the key to criminal negligence is found in the failure of the actor to perceive the risk). "The risk must be of such a nature and degree that the failure to perceive it 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." Tex. Pen. Code Ann. § 6.03(d) (Vernon 2003). Viewed in the light most favorable to the judgment, the record shows appellant, after consuming nine beers, was angry and arguing with Rosa. Appellant began speeding and weaving in and out of traffic. Appellant's driving frightened the passengers in the vehicle, causing them to repeatedly ask him to slow down. Appellant continued driving erratically and at an excessive speed, eventually hitting the steering wheel which caused him to veer to the left and collide with the concrete barrier, flipping the Yukon and ejecting Sara from the vehicle, killing her. From this evidence, a rational jury could have determined (1) appellant caused Sara's death; (2) appellant ought to have been aware there was a substantial and unjustifiable risk of death from his conduct; and (3) appellant failed to perceive the risk and his failure constituted a gross deviation from the standard of care an ordinary person would have exercised under like circumstances. Thus, we conclude the evidence is legally sufficient to support appellant's conviction. See Graham v. State, 657 S.W.2d 99, 101 (Tex.Crim.App. 1983) (speeding, racing, and ignoring a steady red traffic control was legally and factually sufficient evidence to support conviction for criminally negligent homicide). We overrule appellant's first supplemental issue. Further, viewing all the evidence in a neutral light, we conclude the jury was rationally justified in finding guilt beyond a reasonable doubt. Although the record contains evidence that Rosa may have grabbed the steering wheel causing the Yukon to swerve and that Sara was not wearing a seat belt, the jury was free to disbelieve appellant's sister's testimony about Rosa grabbing the steering wheel earlier before appellant's sister was dropped off. Moreover, even assuming the jury believed the testimony, such a determination does not preclude the jury from finding appellant's excessive speed and erratic driving were the primary cause of the accident. In other words, although Rosa's and Sara's behavior may have contributed to the accident or severity of the injuries, a rational jury could have concluded that it was appellant's speeding, aggressive behavior, and erratic driving that caused the accident. Thus, we conclude the evidence is factually sufficient to support appellant's conviction for criminally negligent homicide. We overrule appellant's second supplemental issue. Deadly Weapon Finding
In his first issue, appellant contends the evidence is insufficient to support the jury's deadly weapon finding. According to appellant, because a motor vehicle is not a deadly weapon per se and because there is not specific testimony that the Yukon was a deadly weapon, "the jury had no evidence upon which to base its implied finding." We disagree. The indictment specifically alleged appellant was "operating a motor vehicle, a deadly weapon," at the time of the offense. After hearing the evidence, the jury was instructed that a "`deadly weapon' means a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that, in the manner of its use or intended use, is capable of causing death or serious bodily injury." The jury found appellant guilty as "charged in the indictment." Thus, the jury made an express finding of a deadly weapon. As detailed above, the jury heard evidence that appellant drove the Yukon in a manner that caused Sara's death. Anything, including a motor vehicle, which is actually used to cause the death of a human being is a deadly weapon. Tyra v. State, 897 S.W.2d 796, 798 (Tex.Crim.App. 1995). This is necessarily so because a thing which actually causes death is, by definition, "capable of causing death." Id. Because the jury heard evidence that appellant drove the Yukon in a manner that caused Sara's death, it properly determined that the Yukon was a deadly weapon and found appellant guilty as charged in the indictment. Thus, the trial court did not err by entering the deadly weapon finding. We overrule appellant's first issue. Because appellant's second issue is premised on a determination that the deadly weapon finding was improper, we likewise overrule appellant's second issue. Jury Instruction
In his third issue, appellant contends the trial court improperly instructed the jury on parole law in the failure to stop and render aid case. Specifically, appellant contends that because his conviction in the failure to stop and render aid is not an offense listed in article 42.12, section 3g of the Texas Code of Criminal Procedure and there was no deadly weapon finding, the trial court should have instructed the jury pursuant to article 37.07, section 4(c) rather than article 37.07, section 4(a) of the code of criminal procedure. Section 4(a) applies if a defendant is found guilty of an offense listed in article 42.12, section 3(g) of the code of criminal procedure or if the judgment contains a deadly weapon finding. Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2004-05). Section 4(c) applies when, as here, the offense is third-degree felony. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(c) (Vernon Supp. 2004-05). Thus, we agree with appellant the trial court erred. However, because appellant did not object to the charge, we must find egregious harm to warrant a reversal. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984) (op. on reh'g). After reviewing the record in this case, we cannot make such a determination. Here, the charge given to the jury was more harsh than the charge that should have been given to the jury. In particular, the jury was instructed that appellant would not become eligible for parole until the actual time served equaled one-half of the sentence imposed, without consideration of any good conduct time. The jury should have been instructed that appellant would not become eligible for parole "until the actual time served plus any good conduct time earned equals one-fourth of the sentence imposed or 15 years, whichever is less." Tex. Code Crim. Proc. Ann. art. 37.07, § 4(c) (Vernon Supp. 2004-05). Consequently, the jury was unlikely to increase appellant's sentence in response to the erroneous instruction. See Herring v. State, 738 S.W.2d 18, 20 (Tex.App.-Austin 1987, pet. ref'd) (instruction under section 4(a) rather than section 4(c) favorable to appellant because jury was led to believe that he would not become eligible for parole until after he had served a larger portion of his sentence than was the case). Further, after informing the jury regarding the parole and good conduct law, the charge instructed the jury that it cannot accurately be predicted how the parole law and good conduct rules might be applied to appellant, because the application of the laws and rules depends upon decisions made by prison and parole authorities. And, the charge expressly cautioned the jury not to consider the manner in which the laws and rules might be applied to appellant and not to discuss how long appellant would be required to serve any sentence imposed by the jury because such matters come within the exclusive jurisdiction of the Board of Pardons and Parole and are of no concern to the jury. Under these circumstances, we cannot conclude appellant was egregiously harmed by the erroneous instruction. See id. We overrule appellant's third issue. Accordingly, we affirm the trial court's judgments.