Opinion
No. 05-04-00966-CR
Opinion Filed July 26, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 3, Dallas County, Texas, Trial Court Cause No. F04-00803-UJ. Affirm.
Before Justices O'NEILL, RICHTER, and FRANCIS.
OPINION
Appellant appeals his conviction for criminally negligent homicide. After finding appellant guilty, the trial court assessed punishment at twelve years' confinement. In two issues, appellant contends the evidence is legally and factually insufficient to support his conviction. For the following reasons, we affirm the trial court's judgment. On October 14, 2002, Nicole Prevatte and her husband were traveling on Highway 635 in Dallas, Texas. The couple pulled over onto the shoulder because they were having trouble with a trailer they were pulling. They exited their vehicle to investigate. At the same time, appellant was also traveling on 635. Appellant was in the right hand lane, but moved onto the shoulder hitting the Prevatte's trailer. The top of the trailer flew off, striking and killing Nicole. According to the State, appellant moved onto the shoulder because he was attempting to pass another car in fairly thick traffic. Appellant, on the other hand, claimed he swerved onto the shoulder to avoid a board in the road. Following the accident, appellant was taken to the hospital. Appellant's medical records show he had cocaine in his blood at the time of the accident. The grand jury indicted appellant for intoxication manslaughter. The State was unable to prove appellant was intoxicated at the time of the accident and the trial court found appellant guilty of criminally negligent homicide. In two issues, appellant contends the evidence is legally and factually insufficient to support his conviction. In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Turner v. State, 805 S.W.2d 423, 427 (Tex.Crim.App. 1991). The inquiry is whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Turner, 805 S.W.2d at 427. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). As such, the trier of fact may choose to believe or disbelieve all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986); McCray v. State, 861 S.W.2d 405, 407 (Tex.App.-Dallas 1993, no pet.). When reviewing the factual sufficiency of the evidence, we view all the evidence, but not in the light most favorable to the prosecution. See Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The question is whether, considering all of the evidence in a neutral light, the trier of fact was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004). We must, however, be appropriately deferential to the trier of fact's findings so as to avoid substituting our judgment for that of the trier of fact. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Evidence can be factually insufficient if (1) the evidence is too weak to support the finding of guilt beyond a reasonable doubt, or (2) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. A person commits an offense if he causes the death of another by criminal negligence. Tex. Pen. Code Ann. § 19.05 (Vernon 2003). A person acts with criminal negligence with respect to the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the result will occur. Tex. Pen. Code Ann. § 6.03(d) (Vernon 2003). The relevant culpable mental state can be proven by circumstantial evidence. Dillon v. State, 574 S.W.2d 92, 94 (Tex.Crim.App. 1978). In the first issue, appellant asserts the evidence is legally insufficient to support his conviction. The indictment alleged, among other things, that appellant acted with criminal negligence by operating a vehicle in the shoulder of the highway. According to appellant, the State failed to show he performed this act with criminal negligence because he merely swerved partially onto the shoulder and only to avoid a board in the road. However, the State presented evidence there was no board in the road and appellant entered the shoulder because he was attempting to pass a car in the right hand lane. Specifically, after the accident, police could not find a board or other obstruction in the road to explain appellant's driving. Further, Godwin Egboba Waye was also driving on 635 at the time of the accident. Waye testified traffic was "pretty light" moving about 60 miles per hour. According to Waye, appellant was driving fast. Appellant was initially in the left lane, passed in front of Waye, into the right lane and then onto the shoulder. According to Waye, appellant drove onto the shoulder because he was trying to get around another car in the right lane. Waye testified there were no obstructions in the right hand lane. A rational trier of fact could conclude there was no board in the road and that appellant was driving in the shoulder at a high rate of speed in an attempt to pass another vehicle. A rational trier of fact could further conclude that appellant ought to have been aware that his conduct created a substantial and unjustifiable risk that someone could be killed. See, e.g., Todd v. State, 911 S.W.2d 807, 813 (Tex.App.-El Paso 1995, no pet.) We conclude the evidence is legally sufficient to support appellant's conviction. We resolve the first issue against appellant. In the second issue, appellant contends the evidence is factually insufficient to support his conviction. Appellant maintains the evidence is factually insufficient because only Waye observed appellant driving erratically before the accident and his testimony cannot be credited because it was contradicted by the other State's witnesses with respect to how heavy traffic was and how fast it was moving. Waye described traffic as "light." However, another State's witness, Dr. Dr. Harold Henderson testified traffic was "bumper to bumper," meaning the cars were all "tailgating" at about 65 miles per hour. Another witness, Michael Taylor, described traffic as "normal," moving between 55 and 65 miles per hour. Although various witnesses described the traffic situation differently, we disagree this presents any real conflict in the evidence. Rather, the evidence is undisputed that there was traffic on the highway and that it was moving at about 55 to 65 miles per hour. Appellant also asserts his expert's testimony showing the point in which he impacted the trailer — on the passenger side of the SUV — is more consistent with his claim that he merely swerved onto the shoulder. The State's expert, however, testified appellant was driving completely on the shoulder at the time of the accident, which is consistent with Waye's description of the accident. We have viewed all of the evidence. While appellant has presented a different version of the events leading to the accident, we cannot conclude that the trier of fact's crediting the State's version is so against the overwhelming weight of the evidence as to be clearly wrong and unjust. We resolve the second issue against appellant. We affirm the trial court's judgment.