## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 12 - 00058 - CR

Angel Soto

v.

The State of Texas § § § § § From the 432nd District Court of Tarrant County ( 1215211D ) December 6, 2012 Opinion by Justice Dauphinot (nfp) 

### JUDGMEN T This court has considered the record on appeal in this case and holds that there was error in the trial court’s judgment. We modify the trial court’s judgment to delete the deadly weapon finding . It is ordered that the judgment of the trial court is

a ffirmed as modified.

SECOND DISTRICT COURT OF APPEALS

By_________________________________ Justice Lee Ann Dauphinot2 

## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 12 - 00058 - CR

ANGEL SOTO APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- The jury found Appellant Angel Soto guilty of failure to stop and render aid, enhanced by a deadly weapon finding, and assessed his punishment at six years’ confinement. The trial court sentenced him accordingly, and he now appeals , challenging the sufficiency of the deadly weapon evidence and arguing that the trial court reversibly erred by excluding evidence of the complainant’s intoxication

. Be caus e we hold that the trial court correctly excluded irrelevant evidence but that

1 See Tex. R. App. P. 47.4.3

the evidence is insufficient to support the jury’s deadly weapon finding, we delete the affirmative deadly weapon finding and affirm the trial court’s judgment as modified

. On September 19, 2010, Appellant struck Cornilio Hernandez , the complainant, with his vehicle and then drove away from the scene

. The complainant died as a result of the accident. A few hours after the accident, Appellant turned himself in and signed a c onfession admitting that he had left the scene of the accident w ithout stopping to render aid. Appellant was charged by indictment with failure to stop and render aid , enhanced by a deadly weapon allegation

. At trial, the State called Dinette Mancilla,
wh o testified that she had called 911 to report seeing a pedestrian struck by a vehicle, that she had stopped to assist the complainant , that she had observed a young Hispanic man driving the car that hit the complainant , and that the young Hispanic man had driven away from the scene. The State also called Jacquelin Wilson, who dr o v e by the scene immediately after the accident. Wilson testified that at the scene, a woman asked her to follow th e green car leaving the scene. Wilson called 911 , reported the c ar’s license plate , and, after following the car to a house,

r eturned to the accident scene. The State also called Fort Worth Police Detective Trina Davis, who testified about the crime scene and about locating the house identified by Wilson, where Davis l earned that the driver of the fleeing car was Appellant.4

At trial, w hen Appellant asked Davis about “items as a result of [her] investigation” that she “became aware that [ the complainant ] had,” the State objected on relevance grounds, and the trial cou rt sustained the objection. The trial
court then held a bench conference , at which Appellant argued that he wanted to elicit evidence that the complainant had been on drugs at the time of the accident and that the evidence was relevant because “the reason th at [ the complainant ] stepped out in front of [Appellant] is because he had a ll these drugs in his system.” The trial court asked Appellant to explain why whether the complainant had had drugs in his system at the time of the accident was relevant to Appel lant’s failure to stop and render aid , given that the evidence “would not go to a defense” to the charged offense

. Appellant argued that “it’s not directly to a defense , . . . but it’s part of the story, and it won’t make sense to the jury without . . . a ll the facts.” The State objected to evidence about any drug use by the complainant under evidence rule 404, and the trial court sustained the objection on that basis and on the ground that the evidence was hearsay. The trial court granted the State’s mo tion in limine and ruled that before asking any questions touching on whether the complainant had any alcohol, narcotics, or other controlled substances in his system, Appellant should approach the bench out side the presence of the jury. The State later ca lled Dr. Lloyd White, a contract pathologist with the Tarrant County Medical Examiner’s Office, who had performed the complainant’s autopsy. In compliance with the trial court’s order on the motion in limine, Appellant approached the bench and informed th e trial court that he wished to cross - examine5

White about the complainant’s toxicology report. Appellant stat ed that he wanted to ask White, “ [T] he fact that the guy was intoxicated and walked out in front of the car, is that part of his cause of death, a nd if not, why not?” The trial court allowed Appellant to take White on voir dire out side the presence of the jury. At the conclusion of the voir dire, the State objected that the evidence was “absolutely not even relevant to the elements of th is offense .” The trial court ruled that based upon White’s conclusion that the cause of death was blunt force trauma from the accident and that the drugs in the complainant’s system were not a contributing factor, testimony concerning the complainant’s intoxication or use of controlled substances was not relevant, and any probative value was substantially outweighed by the preju dicial effect of the evidence.
T he jury found Appellant guilty of failure to stop and render aid and also found that his ca r was used as a d eadly weapon. In his first issue, Appellant argues that the evidence is insufficient to support the jury’s deadly weapon finding. T he State candidly agrees

. As opposed to assault and manslaughter, t he gravamen of th e offense for which Appellant was convi cted, failure to stop and render aid, is “leaving the scene of the accident.” 2 Consequently, the relevant time period for determining whether Appellant used or exhibited his automobile as a deadly weapon is the time period of the commission of the offense

. 3

2 Cates v. State , 102 S.W.3d 735, 738 (Tex. Crim. App. 2003).

3 See id.6

That is, the question of whether Appellant used or exhibited his automobile as a deadly weapon is the time period after the c omplainant was hit. 4 The Cates court held that the evidence was insufficient to prove the defendant had operated his vehicle i n a manner capable of causing death or serious bodily injury after the defendant was involved in an accident. 5 Similarly, Appellant was charged with using his motor vehicle as a deadly weapon during the commission of failure to stop and render aid. That i s, he was accused of using his automobile as a deadly weapon as he left the scene of the accident in which the c omplainant was struck. Both the State and Appellant point
out that no witness claimed to have observe d Appellant driving recklessly from the

sc ene and that there was no evidence to support the deadly weapon finding. The sufficiency of the evidence is measured under the standard of Jackson v. Virginia

. 6 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. 7 There is no evidence from any source

4 See i d.

5 Id. at 738

– 39.

6 Id. at 738 (citing Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979)).

7 Jacks on , 443 U.S. at 319, 99 S. Ct. at 2789; Wise v. State , 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).7

from which the jury could have found that Appellant operated his vehicle in a manner capable of causing death or serious bodily injury as he failed to stop and render aid and drove away from the scene of the accident after he struck the complainant

. We sustain Appellant’s first is sue in part

. Appellant also requests in his first issue that we remand this case to the trial court for a new trial on punishment. In cases such as this one, in which the deadly weapon finding has no effect on the grade of offense or range of punishment , 8 the proper remedy , absent other reversible error, is to delete the deadly weapon finding and affirm the trial court’s judgment as modified, not remand the case for a new trial on punishment. 9 We therefore overrule the remainder of Appellant’s first issue

. In his second issue, Appellant argues that the trial court reversibly erred by refusing to allow him to present evidence of the c omplainant’s intoxication to the jury. Appellant contends that the complainant’s intoxication is relevant to the cause of hi s death and to the complainant’s fault in the accident causing his injuries and death. But, a s discussed above, the offense of failure to stop and render aid involves only actions taken after the accident

. 10 The complainant’s intoxication or sobriety when he was struck or his degree of fault in the accident, therefore, is not

8 See Tex. Transp. Code Ann. § 550.021 (c)(1) (West 2011) (providing that an offense involving an accident resulting in death or serious bodily injury is a thi rd

degree felony and omitting any mention of a deadly weapon).

9 Williams v. State , 970 S.W.2d 566, 566 (Tex. Crim. App. 1998); see Cates , 102 S.W.3d at 739.

10 Cates , 102 S.W.3d at 738.8

relevant to whether Appellant failed to stop and render aid. 11 We overrule Appellant’s second issue. Having sustained Appellant’s first issue in part , we modify the trial court’s judg ment to delete the deadly weapon finding , and having overruled the remainder of his issue s , we affirm the trial court’s judgment as modified

.

LEE ANN DAUPHINOT JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ. DO NOT PUBLISH Tex. R. App

. P. 47.2(b )
DELIVERED: December 6, 2012

11 See id. ; see also Tex. Transp. Code Ann. § 550.021(a)

– (b) (West 2011) ( providing elements of offense); Tex. R. Evid. 401 (providing definition of “relevant evidence”), 402 (providing that irrelevant evidence is inadmissible).