Gerardo Esquivel Arana v. State

Affirmed as Modified and Memorandum Opinion filed January 10, 2008 Affirmed as Modified and Memorandum Opinion filed January 10, 2008. In The Fourteenth Court of Appeals ____________ NO. 14-07-00097-CR NO. 14-07-00098-CR GERARDO ESQUIVEL ARANA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 177th District Court Harris County, Texas Trial Court Cause Nos. 1064733 & 1048865 M E M O R A N D U M   O P I N I O N A jury found appellant, Gerardo E. Arana, guilty of criminally negligent homicide and failure to stop and render assistance. See Tex. Penal Code Ann. ' 19.05(a) (Vernon 2003); Tex. Transp. Code Ann ' 550.021 (Vernon 1999). The jury assessed punishment at two years= confinement for the criminally negligent homicide conviction and four years= confinement for the failure to stop and render assistance conviction. In two issues, appellant argues (1) the evidence is legally and factually insufficient to sustain the conviction of criminally negligent homicide and (2) the trial court erred when it overruled one objection and refused to grant a mistrial on another objection to allegedly improper jury arguments by the prosecutor. Additionally, both appellant and the State point out a mistake in the judgment and request that it be modified. The written Judgment of Conviction by Jury shows appellant was convicted of manslaughter; however, both the jury=s verdict and the court=s oral pronouncement of the verdict indicate the jury found appellant guilty of the lesser-included offense of criminally negligent homicide. It is apparent someone made a typographical error on the judgment form. Appellant was only convicted of criminally negligent homicide; accordingly, we modify the judgment of the trial court in cause number 1064733 to reflect that appellant was convicted of criminally negligent homicide. See Tex. R. App. P. 43.2(b); Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004) (stating when there is a conflict between the oral pronouncement of sentence and the sentence in the written judgment, the oral pronouncement controls). We affirm the judgment of criminally negligent homicide in trial court cause number 1064733 as modified, and we affirm the judgment of failure to stop and render assistance in trial court cause number 1048865. Factual and Procedural Background On the morning of December 1, 2005, appellant and two co-workers were traveling northbound on Gosling Road. Cody Brill, a sixteen-year-old high school student, was traveling southbound on his motorcycle on Gosling Road at approximately the same time. When appellant reached the corner of Gosling and Dovershire, he made a left-hand turn and collided with Brill. Brill=s motorcycle struck the front of appellant=s van, throwing Brill into a nearby ditch. Instead of stopping, appellant completed his left-hand turn and continued driving down Dovershire. Beverly Matthews, an eyewitness who was driving behind appellant=s van when the accident occurred, followed appellant and informed him he needed to return to the accident scene. Appellant complied and returned to the scene. The emergency medical services arrived and pronounced Brill dead on the scene. Brill died from multiple blunt force injuries. During trial, the State called Matthews to testify as an eyewitness. Matthews testified she was traveling northbound on Gosling Road behind appellant=s van at approximately 7:00 a.m. on December 1, 2005. Matthews testified both her and the van were traveling at approximately forty-five miles per hour, and as the van approached the intersection of Gosling and Dovershire, the van pulled into the oncoming lane of traffic. Matthews testified she became concerned because she noticed a motorcycle coming in the opposite direction. Matthews testified the van hit the motorcycle, and the next thing she saw was the motorcycle slide out from underneath the van. On cross-examination, however, Matthews admitted she did not actually see the van hit the motorcycle but assumed that is what happened after she saw the motorcycle slide out from underneath the van. Matthews also testified she never saw the van=s turn signal or brake lights. She further testified she did not see the driver of the motorcycle until she turned the corner and noticed he was lying in the ditch. Matthews also testified the motorcycle was not driving erraticly, did not appear to be speeding, and did not have time to take any kind of evasive action before the impact. She testified nothing about the motorcycle=s driving led her to believe the accident was the motorcycle driver=s fault. According to Matthews, about the time she turned the corner, two boys who were traveling behind her got out of their car and jumped over the guardrail to help Brill. Matthews testified she told the boys to stay with Brill and she would be right back. Matthews then followed the van because it did not stop after the collision occurred. Matthews testified once the van came to a stop in a cul-de-sac approximately one mile from the accident, she told appellant Ayou need to go back to where you just came from.@ Matthews testified appellant told her AI=m going, I=m going,@ and he turned around and returned to the scene. After arriving back at the scene, Matthews made a written statement for the police. In her written statement, Matthews did not mention the van crossed the double-yellow line or entered the intersection early. During trial, however, she testified she orally told the police the van crossed the double-yellow lines and pulled into oncoming traffic. Additionally, Matthews participated in a ride-along with one of the deputies and taped a re-enactment of how the van was driving on the day of the accident. In the tape re-enactment, appellant showed the deputy how the van crossed the double-yellow line and pulled into oncoming traffic. The tape was played for the jury. Deputy Steven Drake of the Harris County Constable=s Office testified he arrived at the site and helped map the scene. Drake testified he later prepared the accident report, which he amended two or three times. Drake testified he amended the report based on new evidence and a witness statement. Drake also testified he turned over his drawings, coordinates, and measurements taken at the scene to the accident reconstructionist. Lieutenant Michael Young of the Harris County Constable=s Office testified he arrived at the scene, spoke with witnesses, and collected data. Young also testified to his qualifications as an accident reconstructionist. Based on his investigation, Young testified there was no pre-impact braking by either vehicle and no evasive action taken by either vehicle. Young also testified appellant left his legal lane of traffic and began turning approximately fifty-two feet before he legally could do so. Young testified as to an approximate point of impact based on the beginning of the debris path; however, he did admit he could not give an exact location for the point of impact. Young stated A[t]he point of impact is somewhere south of there, some unknown distance south of there. It will be close, but we don=t have an exact, scientifically provable point of impact where I could go out and drive a nail in the street.@ In addition, Young testified the van was traveling at a speed of forty-five miles per hour, but he could not estimate the speed of the motorcycle. Young, however, did testify there were no indications the motorcycle left its legal lane of traffic. Young concluded the accident was caused by appellant leaving his legal lane of traffic, crossing the double-yellow lines into oncoming traffic, and striking Brill causing his death. On cross-examination, Young admitted people often have trouble judging the distance of a motorcycle, and he admitted Gosling road curved and changed in elevation at the spot the accident occurred. Clemente Arana, appellant=s brother, and Pedro Hernandez testified on behalf of appellant. Both men were riding in the van with appellant when the accident occurred. Arana and Hernandez both testified appellant was not speeding, he came to a complete stop before turning, and he used his turn signal. Arana and Hernandez also testified they could see the motorcycle coming and it was traveling at a high rate of speed. According to Arana and Hernandez, appellant never left his legal lane of traffic. They both testified appellant did not attempt to turn in front of the motorcycle. Appellant was charged with manslaughter and failure to stop and render assistance. A jury found appellant guilty of both the lesser-included offense of criminally negligent homicide, and failure to stop and render assistance. The jury sentenced appellant to two years= confinement in Texas Department of Criminal Justice, State Jail Division for the criminally negligent homicide conviction, and four years= confinement in the Texas Department of Criminal Justice, Institutional Division for the failure to stop and render assistance conviction. Appellant=s sentences are to run concurrently. This appeal followed. Discussion A. Is the Evidence Legally and Factually Sufficient? In his first issue, appellant argues the evidence is legally and factually insufficient to support his conviction of criminally negligent homicide. Specifically, appellant argues the evidence is insufficient because the record shows appellant was driving at the posted speed limit, appellant did not cross into the oncoming lane of traffic prior to the accident, and Brill was operating his motorcycle at an unsafe speed prior to the accident. 1. Standard of Review In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony. See Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). We do not engage in a second evaluation of the weight and credibility of the evidence, but only ensure the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). In a factual sufficiency review, we consider all the evidence in a neutral light. Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005). The evidence may be factually insufficient in two ways. Id. at 731. First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. In conducting a factual sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). Our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). 2. Applicable Law A person commits the offense of criminally negligent homicide if he causes the death of an individual by criminal negligence. Tex. Penal Code Ann. ' 19.05(a). A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. Id. ' 6.03(d) (Vernon 2003). 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. Id. The charge in this case instructed the jury it could convict appellant of criminally negligent homicide if it found he caused the death of Cody Brill Aby driving into a lane of on-coming traffic and striking a motorcycle driven by Cody Brill.@ 3. Analysis Appellant argues the evidence is insufficient in this case for the following reasons: (1) the State=s accident reconstructionist expert, Young, was unable to pinpoint an exact point of impact; (2) Young testified appellant=s vehicle was traveling at the posted speed limit at the time of the accident; (3) Young could not make a reliable determination of the motorcycle=s speed at the time of the accident; (4) Matthews= original written statement to the police did not indicate appellant crossed into oncoming traffic; and (5) appellant=s witnesses testified appellant remained in his lane and the motorcycle was traveling at a high rate of speed. At trial, however, the evidence also showed Young was able to estimate a point of impact and admitted it was not an exact science. Young also estimated appellant left his legal lane of traffic and began turning approximately fifty-two feet before he legally was allowed to do so. Young testified, in his expert opinion, the accident was caused by appellant leaving his legal lane of travel, crossing the double-yellow lines into oncoming traffic, and striking Brill causing his death. Matthews testified at trial she was following appellant, and as the van approached the intersection of Gosling and Dovershire, the van pulled into the oncoming lane of traffic and collided with the motorcycle. While Matthews admitted her original written statement did not mention the van crossing into oncoming traffic, she also testified she orally told the police that information on the day of the accident. In addition, Matthews participated in a video-taped re-enactment which was shown to the jury. Matthews also testified she never saw the van=s turn signal or brake lights. She testified the motorcycle was not driving erraticly, did not appear to be speeding, and did not have time to take any kind of evasive action before the impact. Matthews testified nothing about the motorcycle=s driving led her to believe the accident was the motorcycle driver=s fault. As the sole judge of the credibility of the witnesses and the weight to be given to their testimony, the jury was free to believe the testimony of Matthews and Young, despite the conflicting testimony offered by appellant=s witnesses, Arana and Hernandez. See Moreno, 755 S.W.2d at 867. Matthews=s and Young=s testimony provided evidence that appellant drove into a lane of oncoming traffic and struck the motorcycle driven by Brill. Viewing all the evidence in the light most favorable to the verdict, we conclude any rational trier of fact could have found beyond a reasonable doubt appellant caused the death of an individual by criminal negligence. See Salinas, 163 S.W.3d at 737. Accordingly, the evidence is legally sufficient. After reviewing all the evidence in a neutral light, we hold the evidence supporting the verdict is not so weak that the verdict is clearly wrong and manifestly unjust, nor is the contrary evidence so strong that the beyond-a-reasonable-doubt standard could not have been met. See Prible, 175 S.W.3d at 730B31. Accordingly, the evidence is factually sufficient to prove appellant caused the death of an individual by criminal negligence. Appellant=s first issue is overruled. B. Was Appellant Harmed by Allegedly Improper Jury Arguments Made by the Prosecutor? In his second issue, appellant complains about two statements made by the prosecutor during her closing argument. Appellant argues the statements were improper jury arguments and were so prejudicial appellant was harmed. 1. Standard of Review Proper jury argument generally must encompass one of the following areas: (1) a summation of the evidence; (2) a reasonable deduction from the evidence; (3) a response to an opponent=s argument; or (4) a plea for law enforcement. Guidry v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999); Azeez v. State, 203 S.W.3d 456, 469 (Tex. App.CHouston [14th Dist.] 2006, pet. granted). When reviewing alleged error in a jury argument, the appellate court must analyze the statement in light of the entire argument and not on isolated instances. Edwards v. State, 97 S.W.3d 279, 286 (Tex. App.CHouston [14th Dist.] 2003, pet. ref=d) (citing Drew v. State, 743 S.W.2d 207, 220 (Tex. Crim. App. 1987)). Even when the prosecutor mentions facts outside the record during argument, an instruction to disregard will generally cure the error. Martinez v. State, 17 S.W.3d 677, 691 (Tex. Crim. App. 2000). 2. Analysis Appellant=s first complaint of improper jury argument is that the State struck at him over the defense counsel=s shoulders and accused the defense counsel of acting unfairly and unjustly. The relevant part of the record reads as follows: I want to talk to you for just a second about Sergeant Young[1]. Is he arrogant? Maybe. He=s an engineer. Imagine how frustrated you would be if you were the expert in your field. You knew what there was to know about accident reconstruction. You had been doing it for years and years and years. You had done it both as a police officer and as a civilian. You=ve done the math. You have done the calculations. You have shown your work. You=ve created a big binder. And then somebody who has no experience B MR. MUNIER: Objection. That=s outside the record, Judge. THE COURT: Sustained. MR. MUNIER I ask the jury disregard that, Judge. THE COURT: Please disregard the last statement made by the prosecutor. MS. HARVEY: And then some lawyer comes in B MR. MUNIER: Objection as to the attack of counsel over the back of counsel. THE COURT: Overruled MS. HARVEY: Some lawyer comes in and starts nitpicking and playing Monday morning quarterback to an investigation that has taken months to put together. It=s taken hours of calculations. It=s been careful measurements. Imagine how frustrated you would be as an expert. The State argues the prosecutor never accused defense counsel of acting unfairly or unjustly, but rather, she was responding to an argument previously made by the defense. In the defense=s closing argument, appellant=s attorney referred to Young as arrogant and argued he was bamboozling the jury. Generally, a remark that strikes at the defendant through his counsel is improper. Coble v. State, 871 S.W.2d 192, 205 (Tex. Crim. App. 1993). A prosecutor runs a risk of improperly striking a defendant over the shoulder of counsel when the argument personally impugns opposing counsel=s character. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Although defense counsel is protected against unwarranted attacks, this does not create a sanctuary to which defense counsel may retreat with immunity and thereby deny the prosecutor the right to reply to counsel=s argument. Stokes v. State, 506 S.W.2d 860, 864 (Tex. Crim. App. 1974). In this case, we believe the prosecutor=s argument was a direct response to defense counsel=s argument that Young was arrogant and bamboozling the jury. The prosecutor was not impugning the defense counsel=s character or suggesting he acted unfairly or unjustly. Instead, the prosecutor was explaining why their expert witness may have appeared arrogant. Accordingly, we hold the prosecutor=s argument was not an improper jury argument and the court did not err in overruling the objection. See Sandoval v. State, 52 S.W.3d 851, 858 (Tex. App.CHouston [1st Dist.] 2001, pet. ref=d) (holding it was permissible for the prosecutor to respond to defense counsel=s suggestion that the prosecution manipulated the testimony of a witness); Lange v. State, 57 S.W.3d 458, 467 (Tex. App.CAmarillo 2001, pet. ref=d) (holding the prosecutor=s reference to having taken an oath to uphold justice was a permissible response to defense counsel=s suggestion that the prosecution improperly coached witnesses). Appellant=s second complaint of improper jury argument is that the prosecutor made statements outside the record. The relevant part of the record reads as follows: When Beverly Matthews sees the accident, she told you that there were two boys behind her and they jumped over the guard rail to go down to Cody=s aid. Defense counsel made a big deal about it. AWhere are they? Where are they?@ You know where they are? At least one of them is in therapy. MR. MUNIER: Objection. It=s outside the record, and I ask for an instruction to disregard. THE COURT: Sustained. Disregard the last statement made by the prosecutor. MR. MUNIER: Move for an instruction for mistrial. THE COURT: Denied The State argues this statement was also a response to a statement made by defense counsel. During his closing argument, defense counsel argued to the jury how important it was the State failed to call the two boys at the scene to testify. He suggested the State did not call the boys because they would Atell the truth.@ Defense counsel stated: Do we hear from these two young men? Did [the prosecutor] call them? Where are they? Was she afraid that they were going to tell the truth? She has got to call them. She didn=t call them. That=s her burden to prove beyond a reasonable doubt that we are on the other lane. You didn=t hear from either one of them, and they are there driving right behind Ms. Matthews. That=s critical. That=s very important. Think about that. Once again, we believe the statement made by the prosecutor regarding one of the boys being in therapy is a response to defense counsel=s argument. Defense counsel suggested the State did not call the boys to testify because it was afraid the boys would tell a different side of the story. The prosecutor responded to this suggestion by attempting to explain why the boys did not testify. Furthermore, even assuming the prosecutor=s arguments were improper, the trial judge sustained the objection and instructed the jury to disregard the statement. The prosecutor=s arguments were not so extreme as to render ineffective an instruction to disregard. See Sandoval, 52 S.W.3d at 858. Accordingly, the trial judge did not err in refusing a mistrial. Appellant=s second issue is overruled. Conclusion Having determined the Judgment of Conviction by Jury in trial court cause number 1064733 incorrectly states appellant was convicted of manslaughter, we modify the judgment in that case to reflect the jury=s verdict and the trial court=s oral pronouncement that appellant was convicted of criminally negligent homicide. Having overruled appellant=s other two points of error, we affirm the judgment of criminally negligent homicide in trial court cause number 1064733 as modified, and we affirm the judgment of failure to stop and render assistance in trial court cause number 1048865. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed January 10, 2007. Panel consists of Chief Justice Hedges, Justice Anderson, and Senior Justice Price.* Do Not Publish C Tex. R. App. P. 47.2(b). [1] At the time of the accident, Young was a Sergeant, but at the time of trial, he had been promoted to Lieutenant. * Senior Justice Frank C. Price sitting by assignment.