David Alan Daniel v. State , 478 S.W.3d 773 ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00246-CR
DAVID ALAN DANIEL APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1355862R
----------
OPINION
----------
Appellant David Alan Daniel appeals his convictions for two counts of
racing on a highway. 1 In three issues, he contends that the evidence is
insufficient to support the jury’s verdicts and that a material variance exists
between the indictment and the evidence presented at trial. We affirm.
1
See Tex. Transp. Code Ann. § 545.420(a)(1) (West 2011).
Background Facts
One evening in November 2011, Jose Reyes-Ramirez and his cousin,
Ruben Escalante, decided to go to a gym in Arlington. Reyes-Ramirez drove his
car, and Escalante rode in the front passenger seat. Neither of them wore
seatbelts.
That same evening, appellant, who was driving a gray car, and David
Cabrera, who was driving a small white car, loudly raced down streets in
Arlington. 2 The two drivers went “extremely fast” while aggressively switching
lanes and jumping back and forth in front of each other. Cabrera’s car almost hit
a pedestrian, and the cars did not slow down even when passing a police station.
On their way to the gym, Escalante and Reyes-Ramirez reached the
intersection of Cooper Street and Road to Six Flags Street and planned to turn
left. They had an unprotected green light to make the turn, and Reyes-Ramirez
drove into the intersection. After he completed the turn but while the car was still
in the intersection, Cabrera’s car, which had a green light to drive straight
through the intersection, slammed into the passenger side of Reyes-Ramirez’s
car. According to Escalante, the crash happened so quickly that he “couldn’t
even scream or say something.”
2
Although appellant contested at trial whether he had raced with Cabrera,
he concedes on appeal that the “evidence presented was sufficient to support a
verdict for racing.” As explained below, he challenges the sufficiency of the
evidence to prove the aggravating allegations that his racing resulted in Reyes-
Ramirez’s death and Escalante’s injury.
2
The crash sounded like an explosion. It scattered sparks and debris
across the road as Cabrera’s car briefly lost connection with the road and Reyes-
Ramirez’s mangled car spun and then careened onto a curb. The collision
caused Reyes-Ramirez’s car to travel 128 feet from the intersection to its final
resting place on the curb.
When the crash occurred, Cabrera, whose car was heavily damaged on its
front end, stopped, but appellant, who was driving side-by-side to the left of
Cabrera’s car at the time of the crash and narrowly missed colliding with the back
end of Reyes-Ramirez’s car, “slowed down a little bit [and] then . . . just kept
going” at a speed of, according to one eyewitness, between seventy and eighty
miles per hour. 3
After the crash, Escalante noticed that Reyes-Ramirez was unconscious
and yelled for help. A witness of the crash called 9-1-1. The crash broke
Escalante’s pelvis, and he could not move. He later had surgery and spent a
week in the hospital. Reyes-Ramirez, who bled at the scene of the crash, died at
3
The speed limit on that part of Cooper Street is thirty-five miles per hour.
A police officer who is trained in accident reconstruction testified that Cabrera’s
car was traveling seventy-eight to eighty-two miles per hour when the crash
occurred, and she opined that appellant was driving only slightly slower. Another
witness trained in accident reconstruction testified that Cabrera’s car was
traveling eighty-five miles per hour at the time of the crash, that appellant had
driven eighty-two miles per hour through the intersection, and that Reyes-
Ramirez was traveling nineteen miles per hour when the collision occurred. That
witness also stated that when Reyes-Ramirez began making his left turn,
Cabrera’s car was close to 600 feet, or two football fields, away.
3
a hospital after unsuccessful brain surgery. 4 Cabrera did not suffer any apparent
serious injuries.
The police eventually found appellant, and he gave oral and written
statements to the police. In his written statement, he said that he had been
driving on Cooper Street, that he had a green light to proceed through the
intersection of Cooper Street and Road To Six Flags Street, that Reyes-
Ramirez’s car had “turned in front of [him],” and that after he had driven through
the intersection, he had not seen “anything else, . . . and [he] continued to drive
home.” In his oral statement, he said that he had been traveling forty to forty-five
miles per hour at the time of the crash; he continued to claim that he had not
seen or heard the crash. He also told the police that he had not seen Cabrera’s
car at any point prior to the crash.
A grand jury indicted appellant for two counts of racing. The indictment
alleged that as a result of appellant’s participation in the race, Reyes-Ramirez
died and Escalante suffered bodily injury. The indictment also included an
allegation that appellant had used or exhibited his car as a deadly weapon during
the race. Appellant pled not guilty and chose the jury to assess his punishment if
he was convicted.
4
At trial, appellant’s counsel stated, “There’s no real contest as to whether
[Reyes-Ramirez] was killed as a result of the accident.” A medical examiner
testified that Reyes-Ramirez underwent significant treatment at the hospital over
a couple of days before dying and that his cause of death was blunt force
trauma.
4
Appellant testified at his trial. He stated that on the night of the wreck, he
had just left a class at a university and that Cabrera was also a student in the
class. He testified that he had left the university while intending to drive home,
that he had never zigzagged between lanes or engaged in a race with Cabrera
on the night of the wreck, and that he had not seen the crash. He stated, “A car
passed in close proximity in front of me, but I made it through [the intersection
okay]. . . . And everything else that night was just a normal night until I got home
and had some cake with my little girl.” Appellant testified that he had believed he
was driving forty-five to fifty miles per hour at the time of the crash. Regarding
his failure to notice the crash despite his presence alongside it when it occurred,
appellant testified, “I must have been either looking at the next car coming on to
make sure it wasn’t going to turn in front of me or I was looking straight ahead.
I have no idea how I didn’t see it.”
The jury found appellant guilty of both counts and determined that he had
used or exhibited a deadly weapon during the offense. After hearing evidence
and arguments relating to appellant’s punishment, the jury assessed two years’
confinement for the count concerning Reyes-Ramirez’s death and ten years’
confinement, while recommending appellant’s placement on community
supervision, for the count concerning Escalante’s injury. The trial court entered
judgments in accordance with the jury’s verdicts; the court sentenced appellant to
two years’ confinement under count one of the indictment and assessed ten
5
years’ confinement under count two but suspended the sentence while placing
him on community supervision for ten years. Appellant brought this appeal.
Evidentiary Sufficiency
In his first and third issues, appellant contends that the evidence is
insufficient to support his convictions and to support the jury’s affirmative deadly
weapon finding. In our due-process review of the sufficiency of the evidence to
support a conviction, we view all of the evidence in the light most favorable to the
verdict to 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 (1979); Dobbs v. State, 434 S.W.3d
166, 170 (Tex. Crim. App. 2014); see also Drichas v. State, 175 S.W.3d 795, 798
(Tex. Crim. App. 2005) (applying the Jackson standard to the review of a deadly
weapon finding). This standard gives full play to the responsibility of the trier of
fact to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434
S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
6
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.
Evidence supporting appellant’s convictions
A person commits an offense by participating in a race while driving. Tex.
Transp. Code Ann. § 545.420(a)(1), (b)(2). That offense is typically a Class B
misdemeanor. Id. § 545.420(d). But the offense is a second-degree felony “if it
is shown on the trial of the offense that as a result of the offense, an individual
suffered serious bodily injury or death.” Id. § 545.420(h). Similarly, the offense is
a third-degree felony “if it is shown on the trial of the offense that as a result of
the offense, an individual suffered bodily injury.” Id. § 545.420(g).
In his first issue, appellant does not contest that he was racing with
Cabrera, as he did through his testimony and argument at trial. He contests only
whether the act of racing with Cabrera resulted in Escalante’s injury and Reyes-
Ramirez’s death. He argues that “there was no evidence presented to the jury
that something that he did while racing caused the injury and/or the death.”
To resolve this issue, we must first determine what the “result of” language
in section 545.420 means. See id. § 545.420(g), (h). The parties have not cited
any cases construing or applying the “result of” language in section 545.420, nor
7
have we found any. When construing a statute, we first look to its literal
language to ascertain its meaning. Butcher v. State, 454 S.W.3d 13, 15 (Tex.
Crim. App. 2015). If the language of the statute is plain, we generally interpret
the statute according to that plain language. Id. at 15–16; see Chase v. State,
448 S.W.3d 6, 11 (Tex. Crim. App. 2014). A “result” is a “consequence” or an
“effect.” Webster’s Third New Int’l Dictionary 1937 (2002).
Recently, in Hanna v. State, the court of criminal appeals discussed and
applied “result of the offense” language in another statutory context. See 426
S.W.3d 87, 95 (Tex. Crim. App. 2014). There, the court examined article 42.037
of the code of criminal procedure, which is a criminal restitution statute that
requires the State to prove that a victim sustained a loss “as a result of the
offense.” Id. at 92; see Tex. Code Crim. Proc. Ann. art. 42.037(k) (West Supp.
2014). Applying the statute’s plain language, the court held that the “result of the
offense” language in article 42.037 included “the notion of both actual and
proximate causation.” Hanna, 426 S.W.3d at 91, 95. Thus, the court held that
under the restitution statute, the State must prove that the victim’s loss is both a
“but for” result of the criminal offense and that the loss was foreseeable. Id. at
95.
Section 545.420 is similar to article 42.037 because in both provisions, the
State must prove that a particular harm resulted from the offense. See Tex.
Code Crim. Proc. Ann. art. 42.037(k); Tex. Transp. Code Ann. § 545.420(g), (h).
Thus, like in Hanna, we will determine whether appellant’s racing offense directly
8
and proximately caused Reyes-Ramirez’s death and Escalante’s bodily injury.
See Hanna, 426 S.W.3d at 95; see also Williams v. State, 235 S.W.3d 742, 764
(Tex. Crim. App. 2007) (“Obviously, some element of foreseeability limits criminal
causation . . . . Criminal liability is predicated on ‘but-for’ causation, and [a
defendant’s] acts are not a ‘but-for’ cause . . . unless [the] result is within the
scope of the risk of which [the defendant] was aware.” (footnote omitted)).
Under that framework, viewing the evidence in the light most favorable to
the jury’s verdicts, we conclude that a rational jury could have determined
beyond a reasonable doubt that appellant’s racing with Cabrera was a “but-for”
cause of Reyes-Ramirez’s death and Escalante’s injury. See Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170. Specifically, the jury could
have rationally concluded that if appellant had not been racing with Cabrera,
Cabrera would not have sped at approximately eighty miles per hour through the
intersection and would not have therefore collided with Reyes-Ramirez’s car.
One of the State’s accident-reconstruction witnesses testified, “[Cabrera’s and
appellant’s] vehicles were engaged back down toward the college, and they
engaged one another all the way up through here until it resulted in the death of
[Reyes-Ramirez].” That witness noted (and the video recording of the crash
confirmed) that when the accident happened, appellant was “right there, and the
wreck [was] occurring right off his front right quarter panel.” The witness further
testified that the engagement between appellant’s car and Cabrera’s car
contributed to Cabrera’s speed, which in turn contributed to the accident. From
9
this testimony and the other evidence presented at trial, the jury could have
reasonably inferred that if appellant had not been racing with Cabrera, the
accident, and the resulting death and injury, would not have occurred. See
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170. We
cannot conclude, as appellant appears to argue, that the death and injury were
not a “result of the offense” merely because his car avoided the crash.
Likewise, we hold that a rational jury could have determined beyond a
reasonable doubt that Reyes-Ramirez’s death and Escalante’s injury were
foreseeable results of the offense. The evidence showed that near 8 p.m. on the
evening of the crash, appellant and Cabrera raced on Cooper Street, which was
located in an urban, congested area (including proximity to businesses,
residences, and a university); was connected to an interstate highway; was well-
traveled; and contained several intersections controlled by traffic lights. 5 One
witness, who had a green light to turn left onto Cooper Street after leaving a gas
station, testified that he did not do so because he could hear loud mufflers from
acceleration, and he recognized the danger of proceeding into the intersection.
Another witness testified that she saw appellant and Cabrera driving aggressively
5
One witness who was traveling on Cooper Street that night testified, “It’s
letting out [of] the [university] right [at] this moment. Everyone is coming out of
[the university], and they’re, you know, going home. So it’s traffic. And I’m
already complaining to my boyfriend at the time that he shouldn’t take Cooper.”
10
and cutting each other off, 6 that she saw Cabrera’s car almost hit a pedestrian
before the crash, and that other cars on the road adjusted to make way for the
two racing cars. The two accident reconstruction witnesses testified that at the
time of the crash, the two racing cars were traveling at over twice the speed limit
of thirty-five miles per hour. Viewing these facts and the remaining evidence in
the light most favorable to the verdicts, we conclude that a rational jury could
have found beyond a reasonable doubt that a crash causing death or injury was
a foreseeable result of appellant’s high-speed, aggressive, side-by-side race with
Cabrera. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d
at 170.
Appellant appears to contend that Cabrera’s conviction for manslaughter in
connection with the accident precludes appellant’s responsibility under section
545.020 for Reyes-Ramirez’s death and Escalante’s injury. But appellant has not
directed us to any authority indicating that both he and Cabrera may not be held
criminally responsible for causing the death and injury, and we have found none.
Cf. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001) (“More
than one act may be the proximate cause of the same injury.”); J. Wigglesworth
Co. v. Peeples, 985 S.W.2d 659, 663 (Tex. App.—Fort Worth 1999, pet. denied)
(“To proximately cause an injury, an actor need not be the last cause, or the act
6
This witness testified, “It was like Fast and Furious because they’re going
in and out. . . . It was like watching a movie. It’s like zoom zoom zoom.”
11
immediately preceding an injury. Moreover, there can be more than one
proximate cause of an accident.” (citation omitted)).
Appellant also appears to argue that the death and injury did not result
from his offense because Reyes-Ramirez turned his vehicle in front of Cabrera’s
and appellant’s cars and because neither Reyes-Ramirez nor Escalante were
wearing seatbelts. Again, however, appellant directs us to no authority indicating
that the State was required to prove that the offense was the sole cause of the
death and injury, and we have found none. 7 We decline to hold that the State
had the burden to prove that appellant’s racing offense caused the death and
injury to the exclusion of all other potentially contributing factors.
Because the evidence, when viewed in the light most favorable to the
verdicts, is sufficient to show that appellant’s racing with Cabrera was a “but-for”
and proximate cause of Reyes-Ramirez’s death and Escalante’s injury, we
conclude that it is likewise sufficient to show that “as a result of [appellant’s]
offense,” Reyes-Ramirez died and Escalante was injured. See Tex. Transp.
Code Ann. § 545.420(g), (h); Hanna, 426 S.W.3d at 95. We overrule appellant’s
first issue.
7
We note that the medical examiner could not conclude whether Reyes-
Ramirez would have died if he had been wearing his seatbelt at the time of the
crash. We also note that an accident reconstruction expert testified that if
appellant and Cabrera had been driving at the speed limit, Reyes-Ramirez’s car
would have cleared the intersection with seconds to spare.
12
Evidence supporting deadly weapon finding
In his third issue, appellant argues that the evidence is insufficient to
support the jury’s finding that he used or exhibited a deadly weapon during the
commission of his offense. A deadly weapon is “anything that in the manner of
its use or intended use is capable of causing death or serious bodily injury.” Tex.
Penal Code Ann. § 1.07(a)(17)(B) (West Supp. 2014); Orona v. State, 341
S.W.3d 452, 460 (Tex. App.—Fort Worth 2011, pet. ref’d). For evidence to be
sufficient to sustain a deadly weapon finding, it must demonstrate that the object
meets the statutory definition of a deadly weapon, that the deadly weapon was
used or exhibited “during the transaction from which” the felony conviction was
obtained, and that other people were put in actual danger. Drichas, 175 S.W.3d
at 798. “A motor vehicle may become a deadly weapon if the manner of its use
is capable of causing death or serious bodily injury. Specific intent to use a motor
vehicle as a deadly weapon is not required.” Id. (citation omitted); see also
Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) (“An automobile can
be a deadly weapon if it is driven so as to endanger lives.”).
In Drichas, the appellant contended that he had not used his truck as a
deadly weapon while evading detention. 175 S.W.3d at 796. The evidence
showed that the appellant had
recklessly pulled out of a gas station parking lot, spinning his wheels,
failing to yield to oncoming traffic, and cutting off [a police officer],
forcing him to slam on the brakes of his unmarked police car. [The
officer] followed appellant’s truck for a short distance and observed
appellant’s truck fishtail as appellant, at a high speed, ran a stop
13
sign and attempted to make a left turn. [The officer] activated his
lights, and appellant fled.
Appellant ultimately led law enforcement officers from three
agencies on a fifteen-mile high-speed chase into Texas, during
which he drove at speeds, 50 to 70 miles per hour, that caused his
truck to fishtail on turns and reduced appellant’s ability to control it.
Appellant disregarded traffic signs and signals, drove erratically,
wove between lanes and within lanes, turned abruptly into a
construction zone, knocking down barricades as he did so, and
drove on the wrong side on the highway. . . . [T]raffic was present
on the road during the chase. The pursuit ended when appellant
turned into a mobile-home park and abandoned his still moving truck
to flee on foot, thus allowing the truck to roll into a parked van, which
then hit a mobile home.
Id. at 797–98. The court of criminal appeals held that this evidence was
sufficient to prove that the truck was a deadly weapon by the manner of its use,
explaining,
Appellant’s manner of using . . . his truck posed a danger to
pursuing officers and other motorists that was more than simply
hypothetical; the danger was real, and the manner in which
appellant drove his truck made it capable of causing death or
serious bodily injury, particularly where appellant drove on the wrong
side of the highway.
Id. at 798. 8
Similarly, viewing the evidence in this case in the light most favorable to
the verdict, we conclude that a rational jury could have found beyond a
8
In his argument, appellant relies on Drichas. He also relies on a case
from one of our sister intermediate appellate courts, but that case is
distinguishable. See Brister v. State, 414 S.W.3d 336, 344 (Tex. App.—
Beaumont 2013) (holding that evidence was insufficient to support a deadly
weapon finding when the testimony showed only that the defendant’s car crossed
the center line of a roadway one time), aff’d, 449 S.W.3d 490 (Tex. Crim. App.
2014).
14
reasonable doubt that appellant’s manner of using his car—including racing on a
congested and busy street at night, cutting off Cabrera while requiring other cars
on the roadway to adjust, “jumping back and forth” between lanes, driving “very
aggressive[ly]” and more than twice the speed limit, and coming within feet of
hitting the back end of Reyes-Ramirez’s car in the intersection—qualified the car
as a deadly weapon. See id.; see also Tex. Penal Code Ann. § 1.07(a)(17)(B);
Cook v. State, 328 S.W.3d 95, 100 (Tex. App.—Fort Worth 2010, pet. ref’d)
(stating that in determining whether a vehicle was used as a deadly weapon, we
may consider whether the driver sped, disregarded traffic signs and signals, and
drove erratically). We overrule appellant’s third issue.
Alleged Variance
In his second issue, appellant argues that the “evidence [is] insufficient to
support the verdict because a material variance exists between the indictment
and the evidence.” After carefully reviewing the argument in the second issue,
we conclude that it merely restates the argument from the first issue—that the
evidence is allegedly insufficient to prove the allegations from the indictment that
as a result of appellant’s offense, Reyes-Ramirez died and Escalante was
injured. 9 Thus, for the same reasons we overruled appellant’s first issue, we
9
In the “Application of Law to Facts” section of his second issue, appellant
contends,
The jury charge correctly required that the jury find that “as a
result of the Defendant participating in said race” that Reyes-
Ramirez died and/or that Escalante was injured. The evidence[,]
15
overrule his second issue.
Conclusion
Having overruled all of appellant’s issues, we affirm the trial court’s
judgments.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.
PUBLISH
DELIVERED: July 2, 2015
however, establishes at best that Daniel was racing. It does not
show that something that he did while racing caused the death or
the injury. [Record citation omitted.]
As the State asserts, appellant contends in his second issue that the “State
wholly failed to prove an essential element of the charged offense,” not that the
“State proved the commission of the charged racing offenses in a manner that
varied from the indictment’s allegations.”
16