                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-14-00246-CR


DAVID ALAN DANIEL                                                  APPELLANT

                                       V.

THE STATE OF TEXAS                                                       STATE


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          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1355862R

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                                  OPINION

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      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
