                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-12-00058-CR


Angel Soto                                 §    From the 432nd District Court

                                           §    of Tarrant County (1215211D)

v.                                         §    December 6, 2012

                                           §    Opinion by Justice Dauphinot

The State of Texas                         §    (nfp)

                                   JUDGMENT

      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

affirmed as modified.




                                      SECOND DISTRICT COURT OF APPEALS



                                      By_________________________________
                                        Justice Lee Ann Dauphinot
                         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 OPINION1

                                      ----------

      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.

Because we hold that the trial court correctly excluded irrelevant evidence but that
      1
       See Tex. R. App. P. 47.4.


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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 confession admitting that he had left the scene of the

accident without 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,

who 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 drove by the scene immediately after the accident. Wilson testified that

at the scene, a woman asked her to follow the green car leaving the scene. Wilson

called 911, reported the car’s license plate, and, after following the car to a house,

returned 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 learned that the driver of the fleeing car was Appellant.




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      At trial, when 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 court 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 that [the complainant]

stepped out in front of [Appellant] is because he had all 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 Appellant’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 . . . all 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 motion 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 outside the presence of the jury.

      The State later called 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 the trial court that he wished to cross-examine


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White about the complainant’s toxicology report. Appellant stated 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, and if not, why not?” The trial court allowed

Appellant to take White on voir dire outside 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 this 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

prejudicial effect of the evidence.

      The jury found Appellant guilty of failure to stop and render aid and also found

that his car was used as a deadly weapon.

      In his first issue, Appellant argues that the evidence is insufficient to support

the jury’s deadly weapon finding. The State candidly agrees. As opposed to assault

and manslaughter, the gravamen of the offense for which Appellant was convicted,

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.


                                          5
That is, the question of whether Appellant used or exhibited his automobile as a

deadly weapon is the time period after the complainant was hit.4 The Cates court

held that the evidence was insufficient to prove the defendant had operated his

vehicle in 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 is, he was

accused of using his automobile as a deadly weapon as he left the scene of the

accident in which the complainant was struck. Both the State and Appellant point

out that no witness claimed to have observed Appellant driving recklessly from the

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


                                          6
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 issue 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 complainant’s intoxication to the

jury. Appellant contends that the complainant’s intoxication is relevant to the cause

of his death and to the complainant’s fault in the accident causing his injuries and

death. But, as 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 third-
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.


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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

judgment to delete the deadly weapon finding, and having overruled the remainder

of his issues, 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).


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