No. 05-07-00908-CR
Opinion issued March 28, 2008. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F06-36929-VL.
Before Justices WHITTINGTON, RICHTER, and MAZZANT.
Opinion By AMOS L. MAZZANT, JUSTICE.
A jury convicted Charles Lamon Hicks, Jr. of manslaughter and assessed punishment at ten years' imprisonment. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
At about 5:00 a.m. on January 1, 2006, Juan Guzman was killed in a hit-and-run accident while he operated a tow truck on the shoulder of westbound Highway 183 in Irving. Marvin Wilson, a sergeant with the DFW International Airport Police, followed a speeding Cadillac for several miles before the Cadillac fatally struck Guzman. Wilson testified that, as he was driving to work on January 1, 2006, he was startled when a white Cadillac swerved into his lane and almost ran him off the road. The Cadillac had no headlights on. Wilson decided to follow the Cadillac and alert police about a possible drunk driver. Wilson drove nearly 95 mph to keep up with the Cadillac, which at times traveled over 100 mph. The driver would periodically "pump the brakes," so Wilson was able to keep track of where it was. Wilson saw the Cadillac move from the far left lane to the right lane without signaling, almost running two cars off the highway. Wilson testified that the posted speed limits along the roads they traveled were not above 60 mph. The Cadillac was going between 70 and 100 mph at all times. Wilson tried, without success, to contact 911, so he eventually called an Irving Police dispatcher and said he was following a possible drunk driver into Irving on Highway 183. Wilson followed the Cadillac to an apartment complex near the Esters exit while continually talking to the police dispatcher. At one point when the Cadillac had to stop at a traffic light, Wilson read the license plate number to the dispatcher. Wilson saw the Cadillac drive to the back area of an apartment complex and stop. The driver exited the car and went into an apartment. Wilson told the dispatcher he believed the man had made it home safely. Wilson then left the complex and drove to the airport to begin his shift. An audiotape of Wilson's conversation with the Irving Police dispatcher was played to the jury. On the tape, the dispatcher said she did not have any police units available. Wilson told the dispatcher he saw one unit and a wrecker on the side of the road. Wilson saw flashing emergency lights on both the patrol car and wrecker. Wilson assumed the officer and the wrecker driver were inside their vehicles finishing paperwork because he did not see them. Two days later, Wilson learned Irving police officers were looking for a hit-and-run driver who struck a wrecker driver on Sunday January 1, 2006, on Highway 183. After learning this, Wilson contacted Irving police. Irving police officer McBride testified he was parked behind a wrecker operated by Guzman on January 1, 2006 at about 5:00 a.m. McBride had helped another officer complete a DWI arrest. While the other officer arrested and transported the DWI suspect to jail, McBride stayed on the scene to await a wrecker to tow the vehicle. Both McBride's patrol car and the wrecker were stopped on the right shoulder of westbound Highway 183 at O'Connor Road. Both had their flashing emergency lights activated. According to McBride, as he sat inside the patrol car looking down at the paperwork, his car was shaken by the force of a "tan colored sedan" speeding past him. He looked up and saw the sedan strike Guzman, who had been operating the controls on the driver's side of the wrecker. The sedan did not have its headlights or tail lights illuminated. It pushed Guzman up into the air and then against the wrecker. The sedan did not stop. McBride immediately pulled his patrol car into the right lane to block traffic and called for paramedics. McBride testified the sedan was traveling "way over" the posted 60 mph speed limit. McBride saw debris in the roadway for several feet in front of the wrecker. During cross-examination, McBride testified that he had seen Guzman tow vehicles on several occasions, and he did not think Guzman was a reckless wrecker driver or that he had a reputation for being reckless. McBride did not see Guzman standing in the roadway at the time he was struck, and the wrecker's emergency lights were on at the time. McBride also testified he saw a car in the center lane at the time the sedan struck Guzman. Kimberly Farmer testified that appellant called her at about 3:00 a.m. on January 1, 2006 and said he was coming to visit. Appellant lived in the south Dallas area, about thirty minutes from Farmer's Irving apartment. Before appellant called, Farmer had been at a party with her roommate. Appellant arrived at Farmer's apartment a little after 5:00 a.m. When he arrived, appellant was "upset and crying." Farmer believed appellant was intoxicated because the crying was uncharacteristic behavior for him. Appellant told her that a rock hit his car and said, "[I] should have stayed at home." Farmer went outside to look at appellant's car, a white Cadillac. All but one of the windows were broken. The windshield was cracked on the right side and "had a curve in it." Farmer returned to the apartment and told appellant his car did not look like a mere rock struck it. Appellant said he did not hit a car but did not know what he hit. Farmer helped appellant pay for a new windshield, which was put in later in the day on January 1, 2006. Three days later, Farmer talked with a police officer at her apartment and gave a written statement. Farmer told the officer appellant "appeared to be intoxicated" when he arrived at her apartment. Irving police officer James Fairbain testified he responded to the accident scene at about 5:30 a.m. Glass and fiberglass fragments were spread on the roadway from the area of impact to three hundred feet away. He found a vehicle headlight housing unit in the roadway. Fairbain learned the suspect vehicle's license plate number had been given to a police dispatcher. Fairbain spoke with Wilson, who told Fairbain about following a white Cadillac that had no headlights on and traveling about 100 mph from south Dallas into Irving. Fairbain went to appellant's house and saw a white Cadillac with a license plate matching the number given to the dispatcher by Wilson. There was blood on the side and top of the car, as well as damage consistent with the debris found at the accident scene. Later analysis showed the blood on the Cadillac was Guzman's. Appellant admitted he owned the vehicle but said it had been stolen sometime on New Year's Eve while he was at a party for his brother. Appellant found the car the next morning in a field down the street. While Fairbain talked with other officers and waited for search warrants, appellant said he wanted to talk with Fairbain. Appellant gave a voluntary statement that he had left a party at his house at 1:00 a.m. on January 1, 2006 to drive to his girlfriend's house in Irving. While appellant was on westbound Highway 183, a red Ford truck swerved toward appellant, causing him to swerve to the right, and he hit something. Appellant did not stop until he arrived at his girlfriend's apartment. He stayed with his girlfriend all day, during which time he had the windshield repaired. When he went home the next day, appellant repaired the right front panel to the car. Appellant did not report the incident to police because he was scared. Appellant was not drinking any alcoholic beverages or using any medications on December 31, 2005 or January 1, 2006. During cross-examination, Fairbain testified that he was told Guzman had a reputation for recklessness. Fairbain thought recklessness for a wrecker driver meant stepping out onto the roadway, pulling the wrecker out onto the roadway, or stopping in the roadway when the roadway was not blocked. The controls for the bed of the truck were on both the driver and passenger's sides of the wrecker. Fairbain also testified that he believed appellant should have known that driving between 90 and 100 mph without his headlights illuminated and while weaving from lane to lane could result in his striking something or someone. Jay Coldiron, the operations manager for Walnut Hill Wrecker, testified that he hired and trained Guzman as a light-duty wrecker operator. Coldiron never had any issues or concerns about Guzman being reckless in his job, and Guzman had no reprimands or complaints. Coldiron arrived at the accident scene at about 6:00 a.m. on January 1, 2006. He observed that the emergency lights were still activated on the wrecker and the patrol car. Coldiron testified that there are no city standards on using flares if towing a vehicle in less than thirty minutes, and a tow hook-up typically takes drivers from five to seven minutes to complete. Appellant did not testify during the guilt-innocence phase of the trial. Applicable Law
In 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); Lane v. State, 151 S.W.3d 188, 191-92 (Tex.Crim.App. 2004). 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.). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.), cert. denied, 128 S.Ct. 282 (U.S. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006), cert. denied, 128 S.Ct. 87 (U.S. 2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). The State was required to prove beyond a reasonable doubt that appellant recklessly caused the death of Juan Guzman by striking Guzman with a motor vehicle operated by appellant. See Tex. Penal Code Ann. § 19.04(a) (Vernon 2003). A person acts recklessly, with respect to circumstances surrounding his conduct or the result of his conduct, when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. See id. § 6.03(c)). Discussion
Appellant argues the evidence is legally and factually insufficient to prove he acted recklessly because the testimony was ambiguous and showed he accidently struck Guzman. Appellant asserts the evidence shows Guzman was a pedestrian in the roadway at night and appellant was neither speeding nor intoxicated at the time of the accident. The State responds the evidence is legally and factually sufficient to support appellant's manslaughter conviction. There was evidence that appellant drove at night on the highway with no headlights at speeds up to 100 mph, greatly in excess of the posted speed limit. Appellant made several lane changes without signaling to other drivers and failed to slow down despite a patrol car's flashing emergency lights. Appellant did not slow down or stop after striking Guzman. There was also evidence that Guzman was standing on the driver's side of the wrecker near the back wheel operating controls at the time he was struck. McBride, who was at the scene when Guzman was hit, said Guzman was not standing in the roadway at the time he was struck. Fairbain testified that he was told Guzman had a reputation for being reckless when towing vehicles. Coldiron testified that Guzman was not a reckless wrecker driver and he had no complaints or reprimands. It was the jury's function to resolve any conflicts in the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Johnson, 23 S.W.3d at 9. The jury was in the best position to evaluate the credibility of the witnesses and the evidence, and we must afford due deference to its determination. See Marshall, 210 S.W.3d at 625. The jury was free to accept or reject any and all of the evidence presented by either side. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.-App. 2000). Viewing the evidence under the proper standard, we conclude a rational fact finder could find appellant was aware of, but disregarded, the substantial risk posed by the manner in which he was driving. Therefore, the evidence is legally and factually sufficient to support the conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92. We overrule appellant's two points of error. We affirm the trial court's judgment.