in the Interest of J.C.B., a Child

IN THE TENTH COURT OF APPEALS No. 10-10-00321-CV In the Interest of J.C.B., a Child From the 74th District Court McLennan County, Texas Trial Court No. 2008-1454-3 abatement ORDER In an order signed on August 27, 2010, the trial court terminated the parental rights of Appellant to his son J.C.B. Appellant’s motion for new trial and statement of points for appeal were filed on September 8, 2010. Appellant’s “affidavit of financial condition” was filed September 21, 2010, and on that same day the trial court found Appellant to be indigent and appointed counsel for appeal. In an order signed on September 27, 2010, the trial court denied Appellant’s motion for new trial. Family Code subsection 263.405(d), which applies to this case, provides: (d) The trial court shall hold a hearing not later than the 30th day after the date the final order is signed to determine whether: (1) a new trial should be granted; (2) a party’s claim of indigence, if any, should be sustained; and (3) the appeal is frivolous as provided by Section 13.003(b), Civil Practice and Remedies Code. The trial court has determined that a new trial should not be granted. It has also determined that Appellant is indigent; therefore, Appellant’s “affidavit of financial condition” that was filed in this court on October 26, 2010 is moot. The trial court did not make the statutorily required determination of whether the appeal is frivolous. Accordingly, this appeal is abated and the case is remanded to the trial court for a frivolousness determination. The trial court shall conduct the frivolousness hearing within fourteen (14) days after the date of this order. The trial court clerk and court reporter shall file supplemental records within twenty-eight (28) days after the date of this order. PER CURIAM Before Chief Justice Gray and Justice Davis Appeal abated Order issued and filed December 15, 2010 Do not publish Esparza, were driving home together from a club when Stewart’s truck overturned as he was passing another car. The truck rolled over several times, ejecting Esparza. Esparza died shortly thereafter. The State charged Stewart with manslaughter and FSRA.Legal and Factual Sufficiency Stewart argues in the first point of his FSRA appeal that the evidence is factually insufficient to support a conviction for failure to stop and render aid. He also contends in the first point of his homicide appeal that the evidence is legally and factually insufficient to support a conviction for criminally negligent homicide. We review the evidence in a legal sufficiency challenge in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Lacour v. State, 8 S.W.3d 670, 671 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). The factfinder is entitled to evaluate the credibility of witnesses and is entitled to believe all, some or none of the evidence presented. See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). A jury verdict must stand unless it is found to be irrational or unsupported by some evidence. See Moreno v. State, 755 S.W.2d 866, 868 (Tex. Crim. App. 1988) (citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789)). When we review a factual sufficiency challenge, we view all the evidence in a neutral light and reverse only if the verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 13 (Tex. Crim. App. 2000) (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)); Perkins v. State, 19 S.W.3d 854, 856 (Tex. App.—Waco 2000, pet. ref’d.). This occurs when “the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson, 23 S.W.3d at 11. This review must defer to the jury verdict so as to avoid an appellate court substituting its judgment for that of the jury. See Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997); Clewis, 922 S.W.2d at 133. Failure to Stop and Render Aid Stewart claims that the evidence is factually insufficient to prove he knowingly left the scene of the accident and that it was apparent Esparza required medical attention. The elements of failure to stop and render aid are: 1) an operator of a motor vehicle; 2) intentionally and knowingly; 3) involved in an accident; 4) resulting in personal injury or death; 5) fails to stop and render reasonable assistance. See St. Clair v. State, 26 S.W.3d 89, 98 (Tex. App.—Waco 2000, pet. ref’d.). The culpable mental state for FSRA is proven by showing that “the accused had knowledge of the circumstances surrounding his conduct,” meaning that the defendant had knowledge that an accident occurred. Id. The fifth element may be satisfied by proof that the operator of a motor vehicle knowingly involved in an accident involving injury or death failed to remain at the scene until he had given his name, address and vehicle information, shown his drivers license to anyone involved, or provided any person injured in the accident reasonable assistance. Id. at 99. The indictment in this case alleges that Stewart committed the offense by: 1) leaving the scene of the accident without giving his name, address and registration number of the vehicle, or the name of his motor vehicle insurance carrier to anyone; and 2) by leaving the scene without rendering reasonable assistance to Esparza when it was apparent she was in need of treatment. Several witnesses testified that after the truck overturned and came to a complete stop, Stewart was seen leaving the scene of the accident. The witnesses testified that they called out to Stewart as he was running away. They testified that he stopped, turned and looked, then continued away from the scene. The State also introduced testimony that Stewart did not leave any type of information with witnesses, nor did he render any assistance to Esparza. Stewart claims it was not apparent that Esparza needed medical treatment at the scene. However, witnesses testified she was thrown from the vehicle and came to rest several yards away from the vehicle. The witnesses testified that they located her at the scene and it was obvious she needed medical treatment. Stewart did not present any evidence to the contrary. Based on the record in this case, we find the evidence is factually sufficient to support the conviction for FSRA. Accordingly, we overrule point one in the FSRA appeal. Criminally Negligent Homicide Stewart claims the evidence is legally and factually insufficient to support a conviction for criminally negligent homicide. He argues the evidence is insufficient to prove, beyond a reasonable doubt, that his acts caused the automobile accident resulting in the death of Esparza. Christy Cooper witnessed the accident in her rear view mirror and testified that immediately prior to the accident Stewart was driving recklessly, changing lanes in an unsafe manner, and driving at an unsafe speed. Hailey Mae testified that Stewart passed her in the correct lane, but when he passed her the truck began flipping. She could not say why the truck began flipping over. Cecil Whitten was behind Stewart when the accident occurred. He stated that Stewart almost rear-ended him and swerved around him dangerously. Whitten testified that Stewart ran up behind two cars very closely, straddling the middle stripe, and as the car in the left-hand lane began to move into the right-hand lane, Stewart accelerated and swerved into the left lane to pass. Whitten testified that as Stewart was passing, his car overshot the left lane and drove onto the shoulder. According to Whitten’s testimony, Stewart then overcorrected to the right and the truck began to turn over. The truck crossed the left and right hand lanes and rested on the right-hand shoulder. Officer David Miranda’s investigation at the scene corroborated Whitten’s testimony. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support the conviction for criminally negligent homicide. Viewing all the evidence in a neutral light, we conclude the evidence is factually sufficient to support the conviction for criminally negligent homicide. Accordingly, we overrule point one in the criminally negligent homicide case. Indictment Stewart’s second point in the homicide appeal alleges that the indictment for manslaughter is insufficient because it does not state with certainty the acts or circumstances alleged to be reckless. He argues the indictment does not provide sufficient notice of the nature of his alleged recklessness, because it does not state why the acts alleged in the indictment were reckless. The indictment alleges that Stewart recklessly caused the death of Esparza by operating a motor vehicle and: 1) failing to keep a proper lookout for other vehicles he was approaching; 2) failing to keep his vehicle under proper control; 3) failing to timely apply the brakes to his vehicle; 4) failing to maintain his vehicle in a single lane of traffic; 5) driving his vehicle at too great a rate of speed while approaching other vehicles traveling in the same direction at a slower rate of speed; 6) failing to maintain an assured clear distance between the vehicle he was driving and the vehicles ahead of his vehicle; and, 7) changing lanes in an unsafe manner, which caused the truck to leave the roadway and overturn, causing Bernadette Esparza to be ejected. Under article 21.15 of the Code of Criminal Procedure, an indictment must allege with reasonable certainty the act or acts relied upon to constitute recklessness. See Tex. Code Crim. Pro. Ann. art. 21.15 (Vernon Supp. 1989). The Court of Criminal Appeals held that an indictment alleging solely that a defendant “drove a motor vehicle at an excessive speed” is sufficient for purposes of article 21.15. See Townsley v. State, 538 S.W.2d 411, 412 (Tex. Crim. App. 1976). Therefore, we find the indictment alleges with reasonable certainty the acts constituting recklessness. We overrule point two in the homicide appeal. Concurrent Causation Stewart contends in the third point of the homicide appeal that the trial court erroneously denied his request for a jury instruction on concurrent causation. Section 6.04 of the Texas Penal Code provides, in pertinent part, that “a person is criminally responsible if the result would not have occurred, but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to cause the result and the conduct of the actor was clearly insufficient.” See Tex. Pen. Code Ann. § 6.04(a) (Vernon 1994). Stewart requested that the trial court include a jury instruction stating that a person “does not commit an offense against the laws of this state if an adult passenger elects not to wear or fails to wear a seatbelt.” We find this request is not a proper request for a concurrent causation instruction. Stewart requested an instruction that simply provides for non-liability if a passenger does not wear their seatbelt, not a concurrent cause of the injury resulting in death. Therefore, he has not preserved a complaint on this issue. See Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998). Even if the complaint was preserved, we find Esparza’s conduct in not wearing her seat belt was not sufficient by itself to cause the injuries resulting in her death. See Tex. Pen. Code Ann. § 6.04(a). We overrule point three in the homicide appeal. Deadly Weapon Finding In the fourth point of the homicide appeal, Stewart claims that the trial court erred in instructing the jury in the punishment charge that the punishment range was for a third degree felony when a proper deadly weapon finding had not been made by the jury. The indictment alleges that Stewart used and exhibited a deadly weapon, to wit: a motor vehicle, in the commission of the offense. However, at sentencing the jury charge did not require a separate deadly weapon finding. Stewart claims the court improperly allowed an implied deadly weapon finding when the court instructed the jury on the range of punishment for criminally negligent homicide. Criminally negligent homicide is a state jail felony with a punishment range of confinement in state jail for not less than 180 days and not more than two years. See Tex. Pen. Code Ann. § 12.35(a) (Vernon 1994). However, if it is shown on the trial of a state jail felony that a deadly weapon was used or exhibited in the commission of the offense, the punishment is enhanced to the level of a third degree felony. See Tex. Pen. Code Ann. § 12.35(c)(1) (Vernon 1994). Stewart argues that an affirmative deadly weapon finding is required to invoke the enhancement provision of section 12.35(c)(1). Stewart cites Polk v. State for authority that an affirmative deadly weapon finding is made when: 1) the indictment alleges a deadly weapon was used and the jury finds the defendant “guilty as charged in the indictment,” 2) the indictment alleges a deadly weapon by design, and the jury finds the defendant “guilty as charged in the indictment,” or 3) a special issue is submitted to the trier of fact and answered affirmatively. 693 S.W.2d 391, 394 (Tex. Crim. App. 1985.). None of these methods was employed by the trial court. While Polk is an article 42.12, section 3g case, Stewart’s case involves section 12.35(c)(1) of the Texas Penal Code. Article 42.12, section 3g, requires “an affirmative finding” on the deadly weapon issue. See Tex. Code Crim. Proc. Ann. art. 42.12, § 3g (Vernon 2001). The language of section 12.35 requires only that it be “shown on the trial of the offense” that a deadly weapon was used to enhance punishment from a state jail felony to a third degree felony. See Tex. Pen. Code Ann. § 12.35(c)(1). The State argues that the language of section 12.35 does not require an affirmative finding as required under art. 42.12, section 3g, and a deadly weapon finding may be implied. We disagree. The language in section 12.35(c) is analogous to the language in section 12.42 of the Texas Penal Code. Section 12.42 requires that it be “shown on the trial of the offense” that a defendant has been previously convicted to enhance the defendant’s punishment. See Tex. Pen. Code Ann. § 12.42(a),(c)(1),(d) (Vernon Supp. 2001). We have stated that enhancement allegations under section 12.42 require a separate jury finding. See Nevarez v. State, 832 S.W.2d 82, 86 (Tex. App.—Waco 1992, pet. ref’d.). Due to the similarity of the language between sections 12.42 and 12.35(c)(1), we find that section 12.35(c)(1) requires a separate deadly weapon finding at punishment when the indictment alleges the use of a deadly weapon but the jury convicts on a lesser-included offense. See Ex Parte Flannery, 736 S.W.2d 652, 653 (Tex. Crim. App. 1987); see also Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435, 455 (2000) (due process requires that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory minimum must be submitted to the jury and proved beyond a reasonable doubt). The trial court in this case failed to include a separate deadly weapon instruction in the punishment charge. We find the trial court committed error by failing to include this instruction. However, Stewart did not object to the charge as submitted. Therefore, he must show that the erroneous punishment charge resulted in such egregious harm that he did not receive a fair and impartial trial. Kucha v. State, 686 S.W.2d 154, 155 (Tex. Crim. App. 1985) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)). Egregious harm “goes to the very basis of the case, deprives the accused of valuable right or vitally affects his defensive theory.” Almanza, 686 S.W.2d at 172. The trial court’s error increased the minimum sentence from one-hundred eighty days to two years and the maximum sentence from two years to ten years. We find Stewart suffered “egregious harm” because of this error. Accordingly, we sustain point number four in the homicide appeal. Effect of Charging Error Stewart claims in the second point in his FSRA appeal that the charging error committed by the trial court in the homicide case necessarily affected the jury’s assessment of punishment in the FSRA case. The jury in this case was instructed separately for each offense. The court properly instructed the jury on the range of punishment for FSRA. The jury assessed punishment within this range. Based on the record, we find that the charge error committed by the trial court in the homicide case had no effect on the punishment assessed by the jury in the FSRA case. Accordingly, we overrule point two in the FSRA appeal. We affirm the conviction for failure to stop and render aid in all respects. We affirm the conviction for criminally negligent homicide. We reverse that portion of the judgment assessing punishment for criminally negligent homicide and remand this cause (10-00-063-CR) to the trial court for a new punishment hearing. REX D. DAVIS Chief Justice Before Chief Justice Davis, Justice Vance, and Justice Gray Judgment Affirmed in Cause No. 10-00-062-CR Reversed and Remanded in part in Cause No. 10-00-063-CR Opinion delivered and filed December 12, 2001 Publish [CR25]