### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-07-00527- CR

Roy Mac k Miller Jr., Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F CO MAL CO UNTY, 207 TH JUDICI AL DISTRICT NO. CR2006 -23 3, H ONO RAB LE JACK H . RO B ISO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Ap p ellant Roy Mack Miller, J r. appea ls his conviction for manslaug hter. See Tex. Penal Code Ann. § 19.04(a) (West 2003). The jury found appellant g uilty and found that he did

use a deadly wea

pon, to wit: a motor vehicle in the commission of the offe nse. There afte r, appellant
enter ed a plea of true to the enhanc ement para g raph of the indictment alleg ing a prio r fe l o n y conviction. The jury then assessed appellant’ s punishment at eleve n (11) y ear s’ im p ri s o n m en t, finding that appellant ha d been pr eviously convicted of

a fe lony as alleg ed. 1

I n the first trial of this case , the jury deadloc ked on the issue of g uilt and was discharg ed. 1 A mistrial was dec lare d by the trial cour

t.P OINTS O F ERROR I n t wo separ ate points of err or, appellant first challeng es the leg al sufficie ncy of the evidenc e to sustain the conviction, and then challeng es the fac tual sufficie ncy of the evidenc e. 2

BACK GR OUND The rec ord ref

lects that on the afte rnoon of Dec ember 2, 2005, a school bus stopped

on Texas State Hig hway 3159 to discharg e student passeng ers. The bus had its amber blinkers and flashing lights on as well as a flashing stop sign display ed. Some seven or eig ht car s stopped on the highw ay behind the bus. Appellant, in a pickup truck, passed these stopped vehicles on the rig ht side

on a narr ow improved shoulder of the road. He struck twelve- y ear -old Ry an Matthew Padilla who

was just exit ing the school bus. The impact knocked Padilla approximately ninety -seve n fee t from his position. The child died three day s later from the injuries suffe red when he was hit by appellant’ s truck. At trial appellant enter ed a written s t i p u l at i o n that the death of Padilla was cause d when Padilla was struck by a mot or vehicle driven by appellant on the date in question. Ap p el l an t also stipulated and ag ree d to t h e i n t ro duction of photogr aphs, the death cer tificate of Padilla, a C.D. containing 911 calls and radio traff ic, videos of the rec reation of the scene by office rs as well as the

measure ments taken a

t the scene

. The State’s fi rs t witness was Texas Depa rtment of Public Safety Trooper Rodrigo L lever ino, who assisted in the re- enac tment of the incident occur ring on Dec ember 2, 2005.

“Court and litigants should not combine their l ega l an d fac tual sufficie ncy analy ses.” 2 Laster v. State , 275 S.W .3d 512, 519 (Tex. Crim. App. 2 0 0 9 ) (e m phasis added)

. These issues require implementation of separ ate a nd distinct standards. Id

.

2His assistance consisted of driving his patrol car, equippe d wi t h an i n -ca r vi deo device, along the path driven by

appellant at varying spe eds, a low speed of fiftee n miles per hour and a high speed of forty -five miles per hour. Trooper L lever ino testified t hat during t he re-ena ctment he was able
to see the stopped bus a half mile away . The in-car video and another vi deo showing t he Trooper driving past the bus was introduce d befor e the jury

. Trooper L lever ino w as not the arr esting or an investigating office r and did not have persona l knowledg e of what occur red at the scene itself. He did t es t i fy that State’s exhibi t No. 10, appellant’ s driving license rec ord, did not ref lect any prior moving violations in the forty y ear s and ten months since a ppellant obtained his license

. Mary Floria

n testified that she drove on Hig hway 3159 appr o x i m ately four times a day

. S h e was the driver of the s econd car stopped behind t he school bus with its flashing lights
to discharg e students. She had in her car her daug hter and the daug hter’s two g irlfriends whom she had picke d up at school that af ternoon. Ac cording to Mrs. Floria n, it was a be autiful cry stal-clea r day with no clouds. Mrs. Floria n said that as she sat in her car behind the stopped bus, a g irl exit ed the bus and crosse d the highw ay ’s shoulder. She then saw a blue pickup truck pass her vehicle on the rig ht and on the shoulder of the highw ay . I t made “a swooshing sound” beca use it was g oing so fast. She repor

ted that the truck struck Ry an Padilla with “a thump,” knocking him eig ht or nine fee t up in the air causing him to bounce when he came down. Mrs. Floria n did not know when appellant applied his vehicle’ s brake s but he eventua lly stopped afte r hitting Padilla. After watching a video of the rec rea

tion she was of the opinion that appellant was driving at forty -five miles per hour when passing her v eh i cl e. Mrs. Floria n testified that she went to the bus to help the driver with the students. She was not sure but be lieved ther e we re f our to six car s stopped behind her s.

3Ed Mullins testified that on Dec ember 2, 2005, he and his wife wer e returning home

from San Antonio, that it was a clea r day , and he was able to see a mile and a half ahea d of him. The roadw ay was dry

. As Mullins came around a curve and started down Startz Hill, he saw the flashing y ellow lights on the bus. He slowed the speed of his vehicle and was the second or third car stopped behind the bus. Whil e talking to his wife, Mullins caught sight of appellant’ s truck out of the corne r of his ey e. He saw appellant sitti ng uprig ht with both hands on the steering wh eel as the vehicle passed and then struck the child. Mullins testified that appellant was driving about forty -five miles per hour and he ne ver sa

w appe llant’s brake light or he ard the scre echingof tires. Mullins’ wife, Dorothy , testified that they had been stopped behind the bus for about

a minute, when she saw, in the passeng er s i d e m i rror of her car , a vehicle at a fast rate of speed passing at the rig ht side of the car s behind them. She looked forwa rd and saw a g irl run acr oss the shoulder of the road and into the drivewa y of an RV park and a young boy behind her. Ms. Mullins testified t h at ap p ellant, driving the truck, never slowed down and never applied his brake s. She knew that the truck was g oing to hit the boy

. L ater , Ms. Mullins participa ted in the re- enac tment of the incident and viewed the video made by Trooper L l ev er i n o . She estimated that appellant was trave ling at forty -five miles pe r hour whe n she saw him.

Carol Hickman was a passeng er in the car that eventua lly stopped direc tly behind the bus. She testified that “they ” ear lier observe d the moving bus sever al hundred fee t a head of them, and pulled in behind the bus afte r they passed Mullins’s car , and followed the bus around the curve and down the hill. When the bus put its lights on and stopped, the Hickman car also stopped. About

a minute or so afte r s t o p p i n g, Hi ck man saw in her side-view mirror appellant’ s truck at the rea r

4bumper of her car and hear d rocks hitting the side of her vehicle. She y elled to her driver- son, “My

God, he’s g oing to hit that kid,” who was exit ing the school bus. Hickman saw a shoe flying in the air and observe d that appellant’ s vehicle trave led a hundred fee t befor e stopping. She estimated that appellant’ s speed was close to f orty -five miles pe r hour. She hear d no tires scre eching and did not observe any

brake lights. Cy nthia Padilla, the dece ased’ s sister, was in the proce ss of g etting off of the bus, but turned a round momentarily , and did not see he r brother struck by appellant’ s vehicle. L eslie Albiar, the school bus driver, testified that during the incident in question, she turned on the bus’s amber lights as it was coming to a stop. The bus’s continuously flashing strobe lights wer e activate d, and she cra cked the bus doors that turns on the flashing red lights. She set the bus’s brake s and chec ked to see if ever y thing was clea

r. I t was about a minute afte r the bus stopped by the time Ry an exit ed the bus. She believe d that she saw in a side view mirror appellant’ s truck

on the shoulder on the rig ht side near the second vehicle behind the bus. Albiar stated that she y elled
to Cy nthia Padilla to stop her from exit ing the school bus , Albiar described appellant’s driving as “flying.” Fr om the rec reation of the scene video, Albiar estimated that appellant was trave ling at a speed of forty -five miles pe r hour. The State rested its case without calling the arr esting office r or the on-t h e- s ce ne investigator who had appar ently testified at the first tr i al

. Appellant did not testify or call any witnesses. As noted, appellant had enter ed into stipulations and ag ree ment as to the introduction of

cer tain evidenc e. Af

ter both side s closed at the g uilt/i nnocenc e stag e of the trial, appe llant moved for a n instructed ver dict of not g uilty , which wa s denied.

5The trial court s u b m i t t ed C ount I of the indictment (manslaughter) to the jury as 3 well as the lesser- included offen s e o f criminally neg lige nt homicide. Count I I of the indictment

The pe rtinent part of

Count Iof the instant indictment provides: 3 I N THE NA ME AND B Y AUTH ORI TY OF THE STATE OF TEXAS: The GRAND JURORS , duly selec ted, org anized, sworn and impaneled as such for the county of Comal, State of Texas, at the J uly term, A.D., 2006, of the 207th J udicial District Court for said County , upon their oaths prese nt in and to said Court that in the county and state afor esaid, and befor e t h e p resentment of this indictment, ROY MACK MILLER, JR. , here inafter sty led Def endant, COUNT I On or about the 2nd day of Dec embe r, 2005, on a public roadw ay in Comal County , Texas, Def endant did then and there rec klessly cause the death of Ry an Matthew Padilla, by driving his motor vehicle into and collidi ng with the s aid R y an Matthew Padilla, and the said De fenda nt was rec kless due to one or

more of the following rea sons:

• Fa iling to keep a proper lookout while operating his vehicle on said public roadw ay ; and/or

• Driving said vehicle at a speed g reater than was rea sonable an d p ru d ent under the circ umstances then e x isting, and/or

• Driving said vehicle at a speed g reater than was rea sonable and prudent under the conditions without having r eg ard f

or ac tual and potential hazar ds then exist ing, a nd/or

• Fa iling to c ontrol the speed of the said vehicle as nece ssary to avoid colliding with a nother person or vehicle that was on or enter ing the said public roadw ay in compliance with law and the duty of ea ch per son to use due ca re; a nd/or

• Passing on the improve d shoulder of sa id public roadwa y when unsa fe to do so; and/or

• On said public roa d wa y d i v i d ed into two clea rly marke d lanes for traff ic, said Def

endant failed to stop befor e rea ching a school bus stopped on said public roadw ay to discharg e a student[s ] when said school bus was ope ratinga visual sig n[s] and/or

• Fa iling to exercise due car e to a void c olliding with Ry an Matthew Padilla, a pedestria n, on said public roadw ay ; and/or

• Fa iling to exercise proper prec aution on observing a child on said public roadw ay : and [si c] The indictment was draf

ted in acc ordanc e with section 19.04(a) of the penal code and article 21.15 of the code of criminal proce dure. Tex. Penal Code Ann. § 19.04(a) (West 2003); Tex. Code Crim. Proc. Ann. a

rt. 21.15 (West 2009). 6(ag g ravated assault) wa s ab andoned by the State. The jury returne d its g ener al verdic t finding

appellant guilty

of manslaug hter. The jury never rea ched the issue of the lesse r-include d offe nse.

LEGAL SUF F ICIENCY I n his first point of er

ror, a ppellant cha lleng es the lega l sufficie ncy of t he evidence
to sust ai n his conviction. In deter mining whether the evidenc e is leg ally sufficie nt to support the judgme nt of conviction, we view the evidence in the l ight most favor able to the j udg ment, asking whether any rational trier of fac t co u l d h av e found beyond a rea sonable doubt all the essential el em en t s of the offe nse char g ed. See Jack son v. Virginia , 443 U.S. 307, 319 (1979); Dr i ch a s

v. State , 175 S.W .3d 795, 798 (Tex. Crim. App. 2005); Cardenas v. State , 30 S.W .3d 384, 389-90 (Tex. Crim. App. 2000); Adelman v. State , 828 S

. W

. 2 d 4 1 8 , 4 2 1 (Tex. Crim. App. 1992). This standard g ives full play to the responsibility of the trier of fac t to resolve conflicts in the testimony , to weig h the evidence, and to draw rea sonable infere nces. Jack son , 443 U.S. at 319; Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007).

The evidenc e v i ew ed in this light, and all rea sonable infere nces drawn there from,

are evalua ted in an appellate revie w. See Alvarado v. State , 912 S.W .2d 199, 207 (Tex. Crim. App. 1995). The revie wing court m u s t consi der all evidenc e, rig htly or wrong ly admitted, which the trier of fac t was permitted to consider. See Garcia v. State , 919 S.W .2d 3 7 0 , 3 7 8 (Tex. Crim. App. 1994); Johnson v. State , 871 S.W .2d 183, 186 (Tex. Crim. App. 1993). The standard of revie w is the same for b o t h d i re ct and circ umstantial evidenc e. Kutzner v. State , 994 S.W .2d 180, 184 (Tex. Crim. App. 1999); Gree n v. State , 840 S.W .2d 394, 401 (Tex. Crim. App. 1992). I n its revie w of the leg al sufficie ncy of the evidenc e, the ap p el l ate court does not rea lign, disreg ard, or weig h
7the evidenc e. Rodriguez v. State , 939 S.W .2d 211, 2 1 8 (Tex

. App.—Austin 1997, no pet.). The

jury , as the trier of fac t, is th e j u d ge of the cre dibilit y of the witnesses and the weight to be g iven the testimony , and may acc ept or reje ct all or any of a wi t n es s ’s t estimony

. See Barnes v. State , 876 S.W .2d 316, 321 (Tex. Crim. App. 1994); Sharp v. State , 7 0 7 S.W .2d 611, 614 (Tex. Crim. Ap p . 1986). Reconc iliation of evidentiar y conflicts is solely a function of the trier of fa ct

. S ee Matson v. State , 819 S.W .2d 839, 843 (Tex. Crim. App. 1991); Miranda v. State , 813 S.W .2d 724, 733-34 (Te x . App.—San Antonio 1991, pet. re f’d)

.

Section 19.04(a) o f the penal code defining manslaughter provides: “A person commits an offe nse if he rec klessly cause s the death of an individual.” Tex. P en al C o d e Ann. § 19.04(a) . This culpable menta l state is defined in sec tion 6.03(c) of the pena l code: (c) A person acts rec klessly , or is rec kless, with respe ct to circ umstances surrounding his conduct or the result of his conduct when he is awa re of but consciously disreg ards a substantial and unjustifiable risk that the circ u m s t an ces exis t or the result will o cc ur. The risk must be of such a nature and deg ree that its disreg ard constitutes a g ross deviation from the standard of car e that an ordinary person would exercise unde r all the c ircumstance s as viewe d from the a ctor’s standpoint.

Tex. P enal Code A nn. § 6.03(c) (West 2003). 4

Appellant’s stipulati on and ag ree ment to introduce cer tain evidenc e in eff

ect established most of the essential elements of manslaug hter. R ec o gn i zing this, appellant, in his leg al sufficie ncy challeng e, asser ts that there is no evidenc e to show that he acte d with the culpable mental state of rec klessness. This is his chief complaint. Appellant also urg es that the evidenc e is

This definition as applicable to the instant case w ill be discussed later in this opinion. 4 8insufficient to support even one of the “instance s o r manner s” of rec klessness alleg ed in the

indictment. See Tex. Code Crim. Proc . Ann. ar t. 21.15 (West 2009). Appellant ca lls attention to 5
t h e cu l pable mental state of criminal neg lige nce as define d. See Tex. Penal Code Ann. § 6.03 (d ) (West 2003). Appellant attempts to use t h e d i ff er ence betwee n the two culpable mental states of

rec klessness and criminal neg lige nce to illust rate why the prosec ution failed to prove rec klessness. We do not understand appellant to argue here that the evidenc e showed appellant was g uilty of only criminally

neg lige nt homicide. The mens rea involved in manslaughter is rec klessness. Richie v. State , 149 S.W .3d 856, 858 (Tex. App.—Amar illo 2004, no pet.). Manslaug hter is a le s s e r-include d offe nse of murder. Schroede r v. State , 123 S.W .3d 398, 400 (Tex. Crim. App. 2003); Moore v. State , 969 S.W .2d 4, 10 (Tex. Crim. App. 1998); Adanandus v. State , 866 S.W .2d 210, 232 n.21 (Tex. Crim. App. 1993). L ike m urder , manslaug hter is a “result of conduct” o ff en s e wh ich m eans that the culpable mental
state re lates to the re sult of conduct, i.e., the c ausing of t he death. Schroede r , 123 S.W .2d at 400; Gilbert v. State , 196 S.W .3d 163, 166 (Tex. App.—Houston [1st Dist.] 2005, pet. ref ’d) (off ense is

one in which rec klessness must g o to the conduct causing death)

. Be cause manslaughter is a result of conduct offe nse, the definition of the culpable mental state of rec klessness is limit ed to the result of conduct. Perez v. State , 216 S.W .3d 855, 857 (Tex. App.—Corpus Christi 2006, pet. ref ’d) (citing Cook v. State , 884 S.W .2d 485, 491 (Tex. Crim. App. 1994)). In Richie , the Court explained:
[A] nd, while, ac cording to the s tatutory definition of re ckless, one ma y be re ckless reg arding the circ umstances surrounding his conduct or the result of his co nduct,

Count I of the indictment is set forth in note 3. 5 9[Tex

. Penal Code An n . ] § 6.03(c) , the crime define d in § 19.04(a) simply

encompa sses rec klessness viz the result of acc used’s conduct

. I n other words, the leg islature, in defining manslaug hter, was not conce rned with whether the accused was awa re of the circ umstances surrounding his conduct but rathe r with whether his conduct r esulted in death.

Id. at 858 (e mphasis added)

.

Thus, with reg ard to the offe nse of manslaug hter, the appli ca b l e p ar t of section 6.03(c) should rea d, “A person acts rec klessly , or is rec kless, with respe ct to.

. . the result of his conduct when he is awa re of but c onsciously disreg ards a substantial and unjustifiable risk that the. . . re sult will occur .” Schroede r , 123 S.W .3d at 400-01.

Mental culpability i s o f s u ch a nature that it g ener ally must be inferr ed from the circ umstances und er wh i ch t h e prohibited act occur red. Dillon v. State , 574 S.W .2d 92, 94 (Tex. Crim. App. 1978); Russo v. State , 228 S.W .3d 779, 793 (Tex. App.—Austin 2007, pet. ref ’d); Skillern v. State , 890 S.W .2d 849, 880 (Tex. App.—Austin 1994, pet. ref ’d). A culpable mental state may be inferr ed by the trier of fac t from the acts, words, and conduct of the acc used. Dues v. State , 634 S.W .2d 304, 306 (Tex. Crim. App. 1982 ); Skillern , 890 S.W .2d at 880; Fuentes v. State , 880 S.W .2d 857, 860 (Tex. App.—Amar illo 1994 , p et

. re f’ d ). Her e, there was both direc t and circ ums t an t i al evidenc e. And circ umstantial evidenc e is as probative as direc t evidenc e in establishing the g uilt of t he actor. Hooper v . State , 214 S.W .3d 9, 13 (Tex. Crim. App. 2007). I n fac t, circumstantial evide nce a lone ca n be suff icient to establish g uilt. Id

. The question prese nted here is whether there wa s some evidenc e in the rec ord of appellant’ s trial that would permit a rational jury to find beyond a rea sonable doubt that he possessed the re quisite culpable menta l state of re cklessness. Recklessne ss require s the conscious disreg ard
10of a substantial and unjustifiable risk cre ated by the actor ’s conduct. Whether the actor is awa re of the requisit e ri s k i s a co n cl usion to be rea ched by the trier of fac t from all the evidenc e and the infere nces draw n there fr o m . See In re E.U.M. , 108 S.W .3d 368, 370 (Tex. App.—B eaumont 2003, no pet.). “The issue is not one of t heore tical possibili ty , but one of whether , g iven all the circ umstances, it is rea sonable to infer that the particula r individual on trial was in fac t awa re of the ri s k

. ” Di l l on , 574 S.W .2d at 95. A defe ndant, howeve r, need not be awa re of the specific risk of another ’s death in or der to c ommit manslaug hter. Trepanier v. State , 940 S.W .2d 827, 829 (Tex. App.—Austin 1997, pet. ref ’d). Conscious disreg ard of a substantial and unjustifiabl e risk have been found in a varie ty of situations. I n Manning v. State , 84 S.W .3d 15, 20-21 (Tex. App.—Texarkana 2002), rev’d

on other grounds , 114 S.W .3d 922 (Tex. Crim. App. 2003), there was s u ff i cient evidenc e of

rec klessness wher e the defe ndant never ap p l i ed his brake s, slowed down, or swerve d when approa ching a lane of stopped traff ic with visible war n i n g signs of road construction. See also Arellano v. State , 54 S.W .3d 391, 393 (Tex. A pp.—Waco 2001, pet. ref ’d) (suffic ient evidenc e of

rec klessness wher e visible signs o f re d uced speed and skid marks showed excessive speed) ; Trepanier , 940 S.W .2d at 830 (suffic ient evidenc e of rec klessness wher e driver moved o nto s h o u lder to pa ss on the rig ht); Lopez v. State , 731 S.W .2d 682, 684 (Tex. A pp.—Houston [1st Dist.] 1987), rev’d on other grounds , 779 S.W .2d 411 (Tex. Crim. App. 1989) (suffic ient evidenc e of rec klessness wher e def

en d an t struck a pedestria

n and a truck parked on the s houlder after failing to maintain a single lane on t h e ro ad ); Bannister v. State , 761 S.W .2d 849, 850 (Tex. App.—B eaumont 1988,

n o pet.) (suffic ient evidenc e of rec klessness wher e truck driver in a heavy fog reve rsed h i s t ru ck

11on the highw ay and wa s s t ru ck b y a driver proce eding leg ally in the same lane) ; Aliff v. State ,

627 S.W .2d 166, 172 (Tex. Crim. App. 1982) (evide nce sufficien t t o show rec klessness wher e defe ndant oper ated motor ve hicle at ove r 100 miles per hour , passed a car on the shoulder, locke d his brakes, a

nd skidded into a collision with another ca r). Her e, the rec ord ref

lects that on a clea

r day with the road dry , appellant was driving his pickup truck on a public highw ay when he approa ched a lane of stopped traff ic behind a school bus with a ll its lights flashing

. Appellant passed these vehicles on the rig ht on a narr ow improved shoulder of the highw ay wh en i t wa s u n s af e to do so. He was seen to be seate d in his truck with both hands on the steering whee l and lookin g s t ra i gh t ahea d. He did not keep a proper lookout and drove at a speed of forty -five miles per hour which was unrea sonable and imprudent under the circ umstances. He did not control his truck by braking or reduc ing speed. I n the proce ss, he struck a twelve- y ear old child with his truck cau s i n g t h e ch i l d ’s death. “At the very hear t of rec kless conduct is conscious di s re gar d o f the risk cre ated by the actor ’s conduct.

. . . ” Lewis v. State , 529 S.W .2d 550, 553 (Tex. Crim. App. 1975).

As a g ener al rule, the State is not require d to plead evidentiar y fac ts. State v. Mays , 967 S.W .2d 404, 406 (Tex. Crim. App. 1998); St a t e v. McCoy , 64 S.W .3d 90, 93 (Tex. App.—Austin 2001, no pet.). Unless a fac t is essential to notice, the indictment need not plead evidenc e relied upon by the State. Livingston v. State , 739 S.W .2d 311, 321 (Tex. Crim. App. 1987); Crum v. State , 946 S.W .2d 349, 359 (Tex. App.—Houst o n [ 1 4 t h Di st.] 1997, pet. ref ’d). But, article 21.15 of the code of criminal proce dure require s the State to plead with rea sonable cer tainty

12the acts or circ umstances on which the State will rely to prove the forbidden conduct was committed

rec klessly or with criminal neg lige nce. Tex. Code Crim. Proc. Ann. art. 21.15 (West 2009); McCoy , 6 64 S.W .3d at 93.

The purpose of the statute is to put the defe nd an t o n “notice” that he is char g ed wi t h rec klessness and to specify the act or acts that the State will ask the trier of fact t o u s e i n inferr ing rec klessness. Stadt v. Stat e , 120 S.W .3d 428, 442-43 (Tex . App.—Houston [14t h Dist.] 2003), aff’d , 182 S.W .3d 360 (Tex. Crim. App. 2005). The mental state must g ener ally be inferr ed from the acc used’s behavior and the circ umstances but the acts relied upon as so proving the mental
state need not be the same act constituting the offe nse. 41 Geor g e E. Dix & R o b er t O. Dawson Texas Practice : Criminal Practice and Proce dure § 20.171 (2d ed. 2001)

.

Count I of the indictment here alleg ed the offe nse of manslaug hter. I n addition, and in acc ordanc e with article 21.15, it disjunctively alleg ed eig ht theories. Appellant does not question the valid i t y o f t h e i n dictment nor complain of the trial court’s jury char g e with reg ard to these alleg ations of alternate theories. The court’s char g e submitt ed the issue of manslaug hter to the jury

Article 21.15 pr ovides: 6 Whenever

rec klessness or c riminal neg lige nce e nters into or is a par t or eleme nt of any offe nse, or it is char g ed that the acc used acte d rec klessly or with crimi nal neg lige nce in the commission of an offe nse, the complaint, information, or i n d i ct m en t in order to be sufficie nt in any such case must alleg e, with rea sonable cer tainty , the act or acts relied upon to constitute rec klessness or criminal neg lige nce, and in no event shall it be sufficie nt to alleg e mere ly that the acc used, in committing the offe nse, ac ted re cklessly or with criminal neg lige nce. Tex. Code Crim. P roc. A nn. art. 21.15 (West 2009). 13and added “and the said defe ndant was rec kless due to one or more of the following rea sons.” See

note 3 (whe re indictment is set out).

The char g e did not require the jury to make a specific finding as to one or more of the alternatives. The jury returne d a gene ral verdict s imply finding appellant “guilty of m anslaug hter

as char g ed in the indictment.” When a jury returns a g ener al verdic t of g uilty on an i n d i ct m en t char g ing alternative theories of co m m i t t i n g the same offe nse, the verdic t stands if the evidenc e supports any of the theories char g ed. Brooks v. State , 990 S.W .2d 278, 283 (Tex. Crim. App. 1999); Rabbani v. State , 847 S.W .2d 555, 558 (Tex. Crim. App. 1992); Kitchens v. State , 823 S.W .2d 256, 259 (Tex. Crim. App. 1991); W heele r v. State , 35 S.W .3d 126, 133 (Tex. App.—Texarkana 2000, pet. ref ’d). Wit h respe ct to article 21.15, it has been held that beca use the char g e to the jury included

sever al di sjunctive means of r eckle ssness, the jury verdic t will not be reve rsed for i nsufficie ncy if the evidenc e is sufficie nt reg ardingat least one of the a lternatives. Manning , 84 S.W .3d at 20.

Appellant does not attack the f orm of the ve rdict in his leg al suffic iency challeng e, but complains that there is either no evide nce or a lack of evidence of rec klessness t o support any of the eig ht alternate theories submitt ed. W e disag ree . As in Trepanier , 940 S.W .2d at 829, we conclude that a rational jury could have found beyond a rea sonable doubt that appellant’ s eng ag ement in a

ny one of the acts or omissions allege d in the indictment c onstitut ed rec klessness. We deter mine from viewing all the evidenc e in the light most favor able to the jury ’s

v erdic t that a rational trier of fac t could have found beyond a rea sonable doubt that app el l an t acte d rec klessly when he voluntarily cre ated a substantial and unjustifiable risk when, in light of the

14circ umstances, he moved onto the shoulder to pass on the rig ht the stopped traff ic and disreg arde d the risk of causing the death of a child leaving a school bus with all its lights flashing

. We overr ule appellant’ s first point of err or.

F ACTUAL SUF F ICIENCY

A verdic t must be supported by fac tually sufficie nt evidenc e as well as leg ally sufficie nt evidenc e. “B ut, unlike a leg al suff i ciency revie w, which is a fede ral due proce ss requ i re m en t , a fac tual sufficie ncy revie w is a cre ature of state law. On direc t appea l, a court must beg in its fac tual sufficie ncy revie w with the assumption that the evidenc e is leg ally sufficie nt under Jack

son [ v. Virginia , 443 U.S. 307 (1979)].” Laster , 275 S.W .3d at 519. On direc t appea l a court of appea ls must in a fac tual-suffic iency revie w consid e r all of the evidenc e in a neutra l light rathe r than (as in a leg al-suff iciency revie w) in the light most favor able
to the verdic t. Roberts v. State , 220 S.W .3d 521, 524 (Tex. Crim. App. 20 0 7 ); W a t s o n v. State , 204 S.W .3d 404, 414-15 (Tex. Crim. Ap p . 2006). Evidence can be fac tually insufficient in
two wa y s : (1) when the evidenc e supporting the verdic t is so weak that the verdic t seems clea rly wrong and manifestly unjust, and (2) wh en t h e supporting evidenc e is out-weig hed by the g reat weig ht and prepondera nce of contra

ry evidenc e so as t o rende r t he verdict clea rly wrong and manifestly unjust. Grotti v. Stat e , 273 S.W .3d 273, 283 (Tex. Crim. App. 2008); Roberts , 220 S.W .3d at 524; W

atson , 204 S.W .3d at 414-15. Although an appellate court has the ability to second- g uess t h e j ury to a limit ed deg ree , t h e fac tual-suffic iency revie w should still be defe rential, with a high level of skepticism about the jury ’s verdic t r equire d befor e a reve rsal can occur . Grotti , 273 S.W .3d at 283; Marshall
15v. State , 210 S.W .3d 618, 625 (Tex. Crim. App. 2006); W atson , 204 S.W .3d at 417; Cain v. State , 958 S.W .2d 407, 410 (Tex. Crim. App. 1997). I n a fac tual-suff i ci ency analy sis, it must be

reme mbere d that the jury is the trier of fac t and judge of the cre dibilit y of witnesses. See Tex. Code Crim. Proc. Ann. art. 36.13 (West 2007), art. 38.04 (West 1979); Santellan v. State , 939 S.W .2d 155, 164 (Tex. Crim. App. 1997). Appellate courts should be on g uard not to submit their own judgme nt in these matters for that of the trier of fac t. See id. An appellate court i s n o t fr ee t o overr ide a verdic t simpl y

beca use it disag ree s with it. Laster , 275 S.W .3d at 518; Cain , 958 S.W .2d at 407. An appellate court must first be able to say , with some o b j ec tive basis in the

rec ord, that the g reat w eig ht a nd preponde ranc e of evidenc e contra dicts the jury ’s verdic t be fore it is justified in exercising its appellate fac t jurisdiction to order a n ew t ri al. Grotti , 273 S.W .3d
at 283 (citing W

atson , 204 S.W .3d at 417). A reve rsal for fac tual insufficienc y cannot occur when the g reater weig ht and preponde ranc e of evidenc e actually favor s the conviction. Roberts , 220 S.W .3d at 524.

We ne ed not reiter ate the fac ts. Appellant claims that under the standard descr ibed above t h e evidence was fac tually insufficient in both way s descr ibed above. Appellant argues that there is no evidenc e that he perc eived a risk in trave ling on the shoulder of the highw ay beca use

no evidenc e ref

lects “whe n and why ” he drove on that s houlder. Thus, appellant simply asser ts that there was not any evidenc e of rec klessness. Viewing all the evidenc e in a neutra l light and g iving defe renc e to the jury ’s verdic t, we reje ct appellant’ s contention that the evidenc e is fac tually insufficient to sustain his conviction. The sec ond point of err or is overr uled.

16The judg ment of convic tion is affirmed.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J ohn F. Onion, Jr., J ustice Be fore J ustices Patterson, He nson and Onion* Affir med Filed: January

13, 2010 Do Not Publish

* Be fore J ohn F. Onion, J r., Presiding J udg e (re tired), Texas Court of Criminal Appea ls, sitti ng by assig nment. SeeTex. Gov’t Code Ann. § 74.003(b) ( West 2005).

17