Jose Melchor v. State

Becker v. State COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

JOSE MELCHOR, Appellant, v. THE STATE OF TEXAS, Appellee.	§ § § § § §	No. 08-06-00111-CR Appeal from 205th District Court of El Paso County, Texas (TC # 20050D03035)

O P I N I O N

Jose Melchor appeals his convictions of intoxication manslaughter (Count I) and accident involving personal injury or death (Count III). A jury found Appellant guilty of Counts I and III and further found that he had used a deadly weapon in Count I. The jury assessed his punishment at imprisonment for a term of twenty years on Count I and a term of five years on Count III. We affirm.

FACTUAL SUMMARY

On the afternoon of September 17, 2004, Felix Nunez went to visit his aunt, Fermina Cano. At around 6 p.m., they decided to walk over to Dyer Street to purchase some lottery tickets and ice cream. Fermina's young daughter, Nellie, accompanied them. It was still daylight and none of the vehicles used headlights. Felix and Nellie crossed Dyer first, and Fermina followed behind them. When Felix and Nellie reached the other side, he saw his uncle and another cousin in a car and stopped briefly to say hello. As Felix spoke with his uncle, he suddenly heard a loud impact and he saw Fermina flying through the air. He did not see the actual impact but he had glanced toward Fermina just before the impact and saw that she was about to step on the curb. Felix described the vehicle which struck Fermina as a white, old-style Lincoln Town Car.

Teodoro Munoz and Roberto Cruz were in a car crossing Dyer when Teodoro saw two of his cousins, Felix and Nellie, and his aunt Fermina across the street. They stopped in the parking lot and waited for them. Felix and Nellie crossed the street first and Fermina followed. As Teodoro talked with his cousins, he suddenly heard Roberto yelling and he looked towards the street. He saw a vehicle strike Fermina just as she reached the curb. Teodoro estimated the vehicle's speed as exceeding 50 m.p.h. and he described the vehicle as a large, white older model "box car." ⁽¹⁾ The car did not brake at all; it swerved a little after striking Fermina but the driver did not stop. Immediately after the accident, Teodoro and Felix ran to their grandmother's house nearby to tell her what had happened and to call an ambulance. Roberto remained at the scene with Nellie.

Roberto Cruz knew Fermina Cano because he was dating her sister, Laura Cano Munoz. Roberto picked up Laura's son, Teodoro, and went to the store to buy groceries for a cookout. They saw Felix and Nellie cross the street first while Fermina waited for some traffic to pass. They began talking with Felix and Nellie and Roberto saw Fermina start across the street. Roberto noticed a car up the street but he did not think anything about it because it was so far away. When Fermina got close to the curb, she said, "Hi Bobby" and he waved at her. He turned back around to tell Felix and Nellie goodbye when he suddenly heard a loud impact and saw Fermina flying through the air. The car was a dirty white Gran Marquis or Ford LTD. Roberto estimated that the car was traveling 40 to 45 m.p.h. He did not hear it brake before the impact, and he did not see it brake after the accident. Roberto wanted to follow the white car, but Nellie became hysterical so he remained at the scene with her.

Ricky Lozano was working at a McDonald's restaurant located near the scene of the accident. He was taking out the trash and saw a white Lincoln hit a woman who was crossing Dyer. The vehicle was traveling at about 50 m.p.h.. The driver did not brake prior to the collision, and he did not brake or stop after hitting the woman.

Adrian Fogg had cashed his paycheck at a store on Dyer and was waiting for a bus when he saw a dirty white LTD or Marquis strike a pedestrian. The vehicle was traveling about 50 m.p.h. and struck a woman who had just stepped off the curb and into the street. There were no other vehicles on the street at the time.

Approximately three hours after the accident, a person provided El Paso police with information regarding the location of the vehicle that had been involved in the hit and run accident. Officers Johnny Ferrer and Raul Meraz went to the address and found a white Lincoln Town Car parked in the driveway. The vehicle had extensive damage to the right front quarter panel, hood, and windshield. Several individuals were drinking in front of the house. Ferrer and Meraz went to the door and determined that the owner of the vehicle, Appellant, was inside. Meraz went upstairs where he met Appellant's wife who was crying. Appellant was in the bathroom washing his face and rinsing out his mouth. When asked if he knew why the police were there, Appellant nodded yes and became teary-eyed. Meraz asked Appellant if he would go downstairs with him and Appellant asked if he could kiss his daughter goodbye. Meraz allowed him to do that, and they walked downstairs and outside. Officer Ferrer pointed to the white vehicle in the driveway and asked Appellant if he owned it. Rather than answering the question, Appellant volunteered that he was driving the vehicle, he had been drinking, and he had hit somebody. The officers arrested Appellant and placed him in the patrol car. Appellant subsequently gave a written statement admitting that he had been drinking beer that afternoon while getting a new tattoo. Afterward, he stopped at the Super Burro restaurant to get something to eat. He left the restaurant and was driving on Dyer when he felt his car hit something. He did not see anyone but panicked and drove home. He waited until the police came for him.

Elva Fairas was working at the Super Burro on September 17, 2004. Super Burro is five blocks from where Cano was crossing the street. Fairas recalled that a man came into the restaurant sometime after 5 p.m. when her shift began. She believed the man was drunk because he was staggering and she could smell alcohol. He remained at the restaurant for about half an hour and when he left, she saw that he was driving a white car. She also noticed that he left the parking lot in a hurry. Fairas did not recognize Appellant.

David Flores also began his shift at Super Burro at 5 p.m. that same day. At about 5:30 p.m., a Hispanic man dressed in black came in the restaurant and placed his order with Flores. The man had on a short sleeved shirt and Flores noticed that his arms were covered in tattoos. Flores could tell that the man was "under the influence of something" because he could smell alcohol on the man, his eyes were red, and his speech was not clear. Further, the man had to put his hand on tables to balance himself while walking. When the man left the restaurant twenty or thirty minutes later, Flores saw that he was driving a white Crown Victoria or Marquis and he heard the tires screech as the car left the parking lot. Flores described Appellant as being similar to the man who had been in the restaurant but he was not 100 percent certain. Appellant's hair was shorter and Flores could not tell whether he had tattoos because his arms were covered. At the State's request, Appellant was required to remove his shirt and show the jury the tattoos on his arms.

The indictment alleged that Appellant committed the offenses of intoxication manslaughter (Count I), manslaughter (Count II), and accident involving personal injury or death ⁽²⁾ (Count III). The jury found Appellant guilty of all three counts and made an affirmative deadly weapon finding in connection with Counts I and II. Prior to the beginning of the punishment phase, the State elected to proceed only on Counts I and III. The jury assessed Appellant's punishment at imprisonment for a term of twenty years on Count I and a term of five years on Count III.

LEGAL SUFFICIENCY

In Point of Error One, Appellant challenges the legal sufficiency of the evidence supporting his conviction of intoxication manslaughter. More specifically, he argues that the evidence did not establish beyond a reasonable doubt that he had lost the normal use of his mental and physical faculties by reason of the introduction of alcohol at the time of the collision.

In considering legal sufficiency, we review all the evidence, both State and defense, in the light most favorable to the verdict to 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, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991). We consider all of the evidence, whether admissible or inadmissible. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. The standard of review is the same for both direct evidence and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.

A person commits intoxication manslaughter if the person (1) operates a motor vehicle in a public place, (2) is intoxicated, and (3) by reason of that intoxication causes the death of another by accident or mistake. Tex.Penal Code Ann. § 49.08 (Vernon 2003). "Intoxicated" means not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body. Tex.Penal Code Ann. § 49.01(2)(A). Count I of the indictment alleged that Appellant was operating a motor vehicle in a public place while intoxicated by reason of the introduction of alcohol into his body and by reason of that intoxication caused the death of Fermina Cano.

Appellant complains that the State failed to offer direct evidence that he was intoxicated. While intoxication under Section 49.01(2)(A) may be proven by direct opinion testimony, it may also be established by circumstantial evidence. See Smithhart v. State, 503 S.W.2d 283, 285 (Tex.Crim.App. 1974); Hernandez Guerreo v. State, 773 S.W.2d 775, 776 (Tex.App.--Corpus Christi 1989, no pet.). Evidence of erratic driving, a collision, failure to apply brakes in order to avoid a collision, and fleeing the scene of an accident are indicative of impaired judgment. See Chaloupka v. State, 20 S.W.3d 172, 175 (Tex.App.--Texarkana 2000, pet. ref'd)(erratic driving, a collision, and fleeing scene); Frohwein v. State, No. 08-03-00488-CR, 2005 WL 1413210, *6 (Tex.App.--El Paso June 16, 2005, pet. ref'd)(erratic driving, failure to apply brakes); Markey v. State, No. 14-02-00281-CR, 2003 WL 253299 *2 (Tex.App.--Houston [14th Dist.] February 6, 2003, no pet.)(running a stop sign, nearly colliding with another vehicle, then landing in ditch and crashing through fence). When evidence of impaired judgment is combined with evidence of alcohol consumption, the evidence is sufficient to establish that the defendant did not have the normal use of his mental and physical faculties due to the introduction of alcohol into the driver's body. See Chaloupka, 20 S.W.3d at 175 (evidence was legally sufficient to support driving while intoxicated conviction, even though trooper did not observe defendant driving, where witnesses observed that defendant drove erratically on highway and caused collision, that after striking other vehicle, defendant left scene of accident, sped away, and stopped few miles down road at rest area, defendant got out of vehicle with two beers and paper sack with unknown contents, stumbled, and could not keep balance).

Appellant admitted that he was drinking beer at a tattoo parlor and that he subsequently got something to eat at the Super Burro restaurant. Both Elva Fairas and David Flores were working at Super Burro restaurant and each of them saw an intoxicated man enter the restaurant at approximately 5:30 p.m. which was approximately thirty minutes before the accident occurred. They noticed that the man smelled of alcohol and was having difficulty with his balance. Characterizing the man as "under the influence of something," Flores also recalled that the man's speech was impaired. According to Flores and Fairas, the intoxicated man stayed approximately twenty to thirty minutes before leaving in a hurry. Flores saw the intoxicated man leave the parking lot in a white Lincoln or Gran Marquis with the tires screeching. Neither witness could make an unequivocal in-court identification of Appellant but Flores stated that Appellant was similar in appearance. Flores added that the "only difference" between Appellant and the man in the restaurant was that Appellant's hair was shorter and Flores could not see whether Appellant had tattoos all over his arms because he was wearing a long-sleeved shirt at trial. Consequently, Flores could not state with 100 percent certainty that Appellant was the same man. The record reflects that Appellant's arms have numerous tattoos. Although Fairas and Flores did not make an in-court identification of Appellant as the man they saw in the restaurant, the evidence is sufficient to permit a jury to conclude that the intoxicated man seen in the restaurant was Appellant.

Other evidence admitted at trial showed that Appellant drove down Dyer at a high rate of speed and in excess of the posted speed limit; he did not brake or otherwise attempt to avoid striking Cano who was by all accounts close to the curb when she was struck; he did not brake after striking her even though his vehicle had extensive damage to the front, hood, and windshield; and he fled the scene. As further evidence that Appellant's physical and mental faculties were impaired, Appellant said in his written statement that he did not see Cano but only felt his vehicle hit "something." Because we conclude that the evidence is legally sufficient to prove the intoxication element beyond a reasonable doubt, we overrule Point of Error One.

DISPLAY OF TATTOOS

In Point of Error Two, Appellant contends that the trial court erred by granting the State's motion for an in-court demonstration and requiring him to remove his long-sleeved shirt and display his tattoos because the probative value of the demonstration was outweighed by the danger of unfair prejudice under Tex.R.Evid. 403.

At the conclusion of David Flores' testimony, the State requested an in-court demonstration of Appellant's arms. Appellant objected on the grounds that Appellant had not been identified as the person seen by Fairas and Flores in the restaurant, the State could introduce Appellant's mug shot to show the length of his hair at the time of the arrest, and there were many people who had tattoos in that area of town. He additionally objected that it violated his Fifth Amendment privilege against self incrimination. Noting that the booking photograph did not depict Appellant's arms, the State persisted in its request that Appellant show his arms to the jury. The court did not immediately rule but adjourned and gave the parties an opportunity to present case law the following morning. The next day, the State renewed its request but asked that Appellant remove his shirt rather than merely rolling up the sleeves so that the jury could see his arms in their entirety. Appellant conceded that the court could require him to roll up his sleeves and demonstrate his arms but objected to removing his shirt completely because it would be an "improper in-court identification" and would be "improperly suggestive." After determining that Appellant was not wearing a tee shirt beneath his long-sleeved shirt, the court essentially found that there was no alternative to requiring Appellant to remove his shirt in order to reveal the tattoos on his arms. The court overruled Appellant's objections and permitted the in-court demonstration.

Preservation of Error

On appeal, Appellant argues that the trial court should have denied the State's request under Rule 403 because requiring him to bare his entire upper torso before the jury was more prejudicial than probative. As evidence of unfair prejudice, he asserts that it is "probably common knowledge that those involved in the use of controlled substances oftentimes have tattoos to either make finding needle tracks more difficult or exhibited as a physical characteristic of persons heavily involved in controlled substances activity." Appellant argues that his trial objection that the demonstration was improperly suggestive should be construed as an objection under Rule 403.

To preserve error on appeal, the complaining party must make a timely, specific objection and obtain a ruling on the objection. Tex.R.App.P. 33.1(a); see Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995). The point of error or issue raised on appeal must also comport with the objection made at trial. Santellan v. State, 939 S.W.2d 155, 171 (Tex.Crim.App. 1997); Broxton, 909 S.W.2d at 918. At trial, Appellant conceded that he could be made to show the tattoos on his arms but objected to baring his chest because it was "improper identification" and would be "improperly suggestive." On appeal, we understand him to argue that any in-court demonstration of his tattoos is violative of Rule 403. Given Appellant's concession at trial that he could be required to show the tattoos on his arms, we find that Appellant effectively withdrew his objections regarding the demonstration of his arms.

The only question remaining is whether Appellant's objections that requiring him to bare his chest was "improper identification" and "improperly suggestive" comport with his argument on appeal that the danger of unfair prejudice from the in-court demonstration substantially outweighed the probative value under Rule 403. An argument that an identification procedure is improperly suggestive is distinct from a complaint made under Rule 403. The record does not reflect that it was apparent to the prosecutors that Appellant's objection was based on Rule 403. And there is no indication that the trial judge understood that she was being called upon to perform the balancing analysis required by Rule 403. Thus, the trial court was never given an opportunity to rule on this objection. Because Appellant's trial objection does not comport with the argument raised on appeal, we find that the complaint is not preserved for our review. Point of Error Two is overruled.

INEFFECTIVE ASSISTANCE

In Points of Error Three, Four, and Five, Appellant argues that he was denied the effective assistance of counsel because trial counsel failed to investigate and prepare for trial, failed to call any character witnesses at the punishment phase, and failed to file a sworn motion for new trial.

Standard of Review

The standard for determining claims of ineffective assistance under the Sixth Amendment is the two-step analysis adopted by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Hernandez v. State, 988 S.W.2d 770, 771-72 (Tex.Crim.App. 1999). Under the first prong, the defendant must show that counsel's performance was deficient to the extent that counsel failed to function as the "counsel" guaranteed by the Sixth Amendment. Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). Under the second prong, the defendant must establish that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L.Ed.2d at 693; Jackson, 877 S.W.2d at 771. Prejudice is established by a showing that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L.Ed.2d at 698; Jackson, 877 S.W.2d at 771.

Character Witnesses

Appellant argues that counsel was ineffective because he permitted the character witnesses to violate the rule, and therefore, he was unable to call them as witnesses during the punishment phase. Appellant filed a motion for new trial raising an allegation of ineffective assistance. During the new trial hearing, trial counsel testified that he did not call any punishment witnesses because he had "left [Appellant's] family, including his wife, his mother, everyone in the courtroom in violation of the rules so I was unable to call them as character witnesses." He knew the rule had been invoked but he inadvertently allowed them to remain in the courtroom. According to counsel, there were no other character witnesses. Counsel described his conduct as a mistake and probably legal malpractice. The State responded that counsel had not even attempted to call the witnesses at the punishment phase. Characterizing the family members as "not . . . a very sympathetic lot," the prosecutor also argued that the court should not assume the State would have objected if counsel had called the family members as witnesses during the punishment phase.

Allegations of ineffective assistance of counsel must be firmly founded in the record and the record must affirmatively demonstrate the alleged ineffectiveness. Mallett v. State, 65 S .W.3d 59, 63 (Tex.Crim.App. 2001); Thompson v. State, 9 S.W.3d 808, 814 (Tex.Crim.App. 1999). The failure to call a witness may support an ineffective assistance of counsel claim only if it is shown the witness was available and the defendant would have benefitted from the testimony. See Butler v. State, 716 S.W.2d 48, 55 (Tex.Crim.App. 1986); Garrett v. State, 998 S.W .2d 307, 314 (Tex.App.--Texarkana 1999, pet. ref'd, untimely filed).

Citing United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Appellant maintains that he is not required to establish prejudice in order to prevail on his ineffective assistance of counsel claim. In United States v. Cronic, the Supreme Court recognized that in some circumstances, that there is a presumption of prejudice. Cronic, 466 U.S. at 658, 104 S. Ct. at 2046. These circumstances include the complete denial of counsel, the failure of counsel to subject the prosecution's case to meaningful adversarial testing, and the situation in which surrounding circumstances make it unlikely that any counsel could provide effective assistance. Cronic, 466 U.S. at 659-60; 104 S. Ct. at 2047-48. We do not find that any of these circumstances here, and we will hold Appellant to the burden of proving both deficient performance and prejudice.

The record does not reflect that counsel attempted to call Appellant's family members as witnesses. We will not speculate that the State would have objected based on a violation of the rule of witnesses or that the court would have sustained the objection. Further, Appellant did not offer any evidence regarding the substance of the witnesses' testimony or how it would have benefitted Appellant. He suggests that the absent witnesses could have testified regarding his successful completion of misdemeanor and felony probation but there is no evidence that the witnesses were aware of these facts. Thus, the record does not support a conclusion that counsel's inadvertent mistake resulted in the exclusion of beneficial testimony.

Failure to Investigate

Appellant also contends that trial counsel failed to investigate and prepare for trial. To support a claim of ineffective assistance for failure to investigate, an appellant must show that he had a viable defense that his attorney failed to discover. Butler, 716 S.W.2d at 55; King v. State, 649 S.W.2d 42, 43 (Tex.Crim.App. 1983). As evidence of counsel's failure to investigate, Appellant points to trial counsel's statements during trial that he had not been given notice of the State's intent to introduce a DWI as an extraneous offense. The State introduced evidence that it had faxed the extraneous offense notice to trial counsel and the court noted that the certificate of service indicated counsel had been served, but counsel insisted he had not received the faxed notice or a hard copy. The trial court specifically found that the fax receipt confirmed that the extraneous offense notice had been successfully faxed to counsel's fax number. At the hearing held on Appellant's motion for new trial, Appellant did not offer any evidence relevant to counsel's investigation and preparation for trial, and he did not establish that counsel failed to discover a viable defense. We find that Appellant has failed to carry his burden under Strickland. See Mata v. State, 1 S.W.3d 226, 228 (Tex.App.--Corpus Christi 1999, no pet.)(where record silent regarding counsel's investigation, appellant's ineffective assistance of counsel claim failed); White v. State, 999 S.W.2d 895, 900 (Tex.App.--Amarillo 1999, pet. ref'd)(allegation that counsel failed to fully acquaint himself with the circumstances of the case and history of appellant was mere speculation since the record did not depict the extent, if any, of counsel's investigation and preparation).

Sworn Motion for New Trial

Appellant also argues that his attorney ⁽³⁾ rendered ineffective assistance by filing a motion for new trial which was unsworn and unsupported by affidavits. He asserts that the trial court would have been required to grant the motion had it been verified and if affidavits from the witnesses had been attached. The only ground raised in the motion for new trial was that counsel permitted Appellant's wife and mother to remain in the courtroom during the trial in violation of the rule. The motion asserted that the witnesses would have presented mitigating evidence if they had testified but it did not specify the substance of their testimony. Despite the deficiencies in the motion, the trial court afforded Appellant a hearing on his motion for new trial. Thus, Appellant had the opportunity to present evidence relevant to this allegation. Appellant did not offer any evidence at the hearing regarding the substance of the witnesses' testimony and we will not speculate that mitigating evidence existed. The record does not support Appellant's contention that he was entitled to a new trial if only counsel had filed a sufficient motion for new trial. Points of Error Three, Four, and Five are overruled.

FACTUAL SUFFICIENCY

In his final point of error, Appellant challenges the factual sufficiency of the evidence supporting his conviction of intoxication manslaughter. More specifically, he argues that the evidence is factually insufficient to prove intoxication.

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In performing our review, we are to give due deference to the fact finder's determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id.

In support of his argument that the evidence is factually insufficient, Appellant directs our attention to the evidence which negates a finding of intoxication: (1) his statement did not address how many beers he had consumed or over what time period, (2) he was not intoxicated when arrested several hours after the accident, (3) Fairas was unable to identify him, and (4) Flores did not identify him with 100 percent certainty. As acknowledged by Appellant, there is also evidence supporting a finding of intoxication: (1) Appellant admitted that he had been drinking beer while getting a tattoo, (2) Fairas and Flores testified that an intoxicated man with tattoos on both arms came into the Super Burro restaurant and left in a vehicle matching the description of the one Appellant was driving, (3) Flores testified that Appellant looked similar to that man, (4) Appellant drove erratically and failed to brake either before or after striking Cano, (5) Appellant fled the scene; and (6) Appellant admitted to the arresting officers and to the officer taking his statement that he had been drinking and had struck someone. The proof pertaining to the intoxication element is not so obviously weak as to undermine confidence in the fact finder's determination. Further, the evidence related to that element is not greatly outweighed by contrary proof. Accordingly, we find the evidence factually sufficient to support the jury's determination that Appellant is guilty beyond a reasonable doubt of intoxication manslaughter. We overrule Point of Error Six and affirm the judgment of the trial court.

October 25, 2007

ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.

(Do Not Publish)

1. The posted speed limit is 40 miles per hour.

2. See Tex.Transp.Code Ann. §§ 550.021, 550.023 (Vernon 1999). This offense is also commonly referred to as failure to stop and render aid.

3. Appellant was represented by one attorney at trial and by another attorney in connection with the motion for new trial.