                                      In The

                                Court of Appeals

                    Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-18-00336-CR
                               __________________

                  TABB EDWARD JOHNSON JR., Appellant

                                         V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

              On Appeal from the Criminal District Court
                       Jefferson County, Texas
                      Trial Cause No. 17-27605
__________________________________________________________________

                          MEMORANDUM OPINION

      Tabb Edward Johnson Jr. was convicted of causing an accident involving

injury or death, a second-degree felony. See Tex. Transp. Code Ann. §

550.021(c)(1)(A). In two issues on appeal, Johnson argues that the evidence is

legally and factually insufficient to support his conviction and that the trial court

committed reversible error by commenting on the weight of the evidence. For the

reasons explained below, we affirm.


                                         1
                                   I. Background

      On March 27, 2017, the body of J.P. was found on the side of the road on

College Street in Beaumont, Texas. 1 Witness Michael Peel stated that he was driving

to work about 9 a.m. that morning when he noticed a political sign about a candidate

that shared his last name. Peel stated that next to the sign, he noticed someone lying

in the ditch, and he could see the person’s leg and abdomen. Once Peel turned

around, he discovered a body next to the sign. Peel then called 911 for help.

      Police Officer Aaron Lewallen was the first officer to respond to the scene.

Lewallen testified that the body was lying on the side of the road in a grassy ditch

near a trailer park. Lewallen stated that injuries to the body were visible and the

person’s clothes had been partially removed. According to Lewallen, the victim’s

clothes were pulled up around his chest and, by the way the body was positioned in

the ditch, it appeared that the body was dragged and dropped at that location. He

stated that he had “seen people knocked out of their shoes[,] [b]ut rarely have I seen

anybody knocked out of their clothing.” Lewallen secured the scene and called the

traffic unit and the auto theft taskforce to help investigate. Lewallen explained that



      1
         To protect the privacy of the victim, we identify him by using his initials.
See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to be treated with
fairness and with respect for the victim’s dignity and privacy throughout the criminal
justice process[.]”)
                                            2
debris and car parts were scattered around the scene and the auto theft taskforce

would assist in determining the make and model of the car that struck the victim. If

a car part happens to have a part number printed on it, that number can be used to

trace the make and model of the car. Lewallen stated that the debris field was wide,

and he did not observe any skid marks before or after the location of the body. Upon

cross examination, Lewallen admitted that skid marks would not necessarily be

present even if the driver stopped after they hit the victim.

      Initially, the police did not have any leads to a suspect until Tara Johnson, the

defendant’s wife, came forward and stated she was the driver of the vehicle involved.

Lewallen testified that through his investigation he later identified Johnson, not Tara,

as the person driving the vehicle when it struck the victim. Johnson came to the

police station and with his attorney present, made a statement that he was the actual

driver of the vehicle, that he had been drinking and smoking marijuana that night,

and that Johnson believed he had hit a dog.

      Tara testified that on the night of March 26, 2017, she and Johnson went to a

party at a friend’s house. While at the party, Tara had a glass of wine and smoked

marijuana. Johnson had two beers and also smoked marijuana. Tara stated that she

normally drives her vehicle because Johnson’s driver’s license was suspended.

When the couple left their friend’s house, Tara was driving, and they argued on their

                                           3
way back to their home. Tara testified that when they arrived home, she was not

feeling well, and she sent Johnson to the store to get her medicine. She assumed that

Johnson would go to the Walgreens on College Street because it was open 24 hours.

According to Tara, the round trip from their home to Walgreens would normally take

about 20 minutes. Tara stated that when Johnson was gone more than 45 minutes,

she became concerned and texted him. Eventually Johnson arrived home and

informed Tara that he thought he hit a dog. Tara testified that she “freaked out” and

went outside to observe the damage to her vehicle. She stated that it was dark outside,

and she could not observe much damage, but she agreed that pictures admitted at

trial that showed extensive damage to the front of the car and a smashed front

windshield accurately reflected the damage to her vehicle after the incident.

      Tara testified that she and Johnson live with Johnson’s parents and they woke

her father-in-law to show him the damage to the vehicle. Her father-in-law then

drove to College Street to find the scene of the accident. Tara testified that it

appeared Johnson had hit something big with the car. Tara stated her father-in-law

told them he did not see anything when he drove to College Street. Tara stated that

Johnson did not go with his father back to College Street, and he did not call anyone

to report that he hit something.



                                          4
      Tara testified that the next morning she and her husband had a conversation

about insurance, and they agreed to say Tara was driving the vehicle because

insurance would not cover the damage if Johnson was driving with a suspended

license. The next day, the local news reported that a body had been found on College

Street, and Tara’s father-in-law called the police and told them that Tara had been

driving the car. Tara then gave a statement to the police that she had been driving

the car that night. Johnson eventually came forward and admitted that he was driving

the vehicle that night.

      Tabb Johnson Sr., the defendant’s Father, testified that in March 2017, his son

and daughter-in-law were living at his home. Tabb stated that after midnight,

Johnson and Tara woke him saying that they hit a big dog. Tabb testified that the

damage to the car concerned him, and he went to College Street to see if Johnson

had hit somebody. Tabb stated that he did not see a body that night or the next

morning when he went to work, but he admitted that he did not exit his vehicle to

look and see if there was a body.

      Johnson testified that in March 2017, he had a suspended driver’s license. He

stated that on March 26, 2017, he and his wife went and had dinner at her friend’s

home. While at the house, Johnson consumed two beers and smoked marijuana, but

he did not believe he was intoxicated that night. Johnson stated that he and Tara left

                                          5
the friend’s house and returned to their home. Johnson stated that he had lost his cell

phone earlier in the day and was frantic looking for it when he and Tara returned

home.

        Johnson stated that at about 11:00 p.m., he left the house to get Tara medicine

at Walgreens because she was not feeling well. According to Johnson, after he left

his home, he was halfway down College Street when he realized he left his wallet

and turned around to go back to the house to retrieve it. After making a U-turn on

College Street to return home, Johnson struck J.P. with his car. Johnson stated that

“there [was] not a vehicle on the roadway[,] [a]nd I’m driving home and next thing

I know[,] I felt and heard -- I seen (sic) a flash of light.” Johnson stated that he felt

the impact but did not see what he hit. Johnson testified that he “immediately slowed

down” but did not skid to a stop. Johnson stated that although he did not get out of

his vehicle, he “slowed down to a stop.” It was pitch black and Johnson did not see

anything. According to Johnson, the area where he hit J.P. “is the darkest part of

College Street.” Johnson stated that he did not get out of his vehicle and look because

he was afraid to walk around.

        Johnson believed he had hit a dog. Even after he returned to his house and

assessed the damage, including a caved-in windshield, missing side mirror, and

broken front headlight, Johnson testified that he believed he had hit a “big dog.”

                                           6
Johnson stated that if he had known that he hit a person, he would have immediately

stopped to render first aid. Johnson stated that he did not see the victim before or

after the accident. According to Johnson, he and Tara mutually agreed to have Tara

take the blame for the accident.2

       Dr. John Wayne testified that he is employed by the Forensic Medical

Management Services in Beaumont and that he performed the autopsy on the victim,

J.P. According to Dr. Wayne, J.P. suffered from, among other injuries, blunt force

trauma to his head and internal injuries resulting in internal decapitation consistent

with someone being struck by a vehicle.

       The jury found Johnson guilty and, after a hearing on punishment, sentenced

Johnson to incarceration for twelve years in the Texas Department of Criminal

Justice. The trial court certified Johnson’s right of appeal, and Johnson timely filed

this appeal.

                                    II. Analysis

A. Sufficiency of the Evidence

       Johnson asserts that the evidence is insufficient to show that Johnson “failed

to stop and render reasonable assistance to [J.P.] when it was apparent that [J.P.] was


   2
     Several other witnesses testified at trial, but because Johnson does not contest
that he hit J.P., we will only discuss the testimony relevant to Johnson’s contested
issues on appeal. See Tex. R. App. P. 47.1.
                                            7
in need of medical treatment.” When an appellant raises a claim of insufficiency, we

review the evidence in the light most favorable to the verdict to determine whether

any rational factfinder could have found the essential elements of the offense beyond

a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010) (citing Jackson v. Virginia, 443 U.S. 307 (1979)) (concluding the Jackson

standard “is the only standard that a reviewing court should apply” when examining

the sufficiency of the evidence); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). We look to “all of the evidence in the record, both direct and circumstantial,

whether admissible or inadmissible.” Dewberry v. State, 4 S.W.3d 735, 740 (Tex.

Crim. App. 1999) (citations omitted). The jury is the sole judge of the witnesses’

credibility and weight to be given to their testimony. Tate v. State, 500 S.W.3d 410,

413 (Tex. Crim. App. 2016). Juries may draw multiple reasonable inferences from

facts so long as each inference is supported by the evidence presented at trial. Id.

Accordingly, we must defer to the jury’s determinations of weight and credibility of

the witnesses. See Brooks, 323 S.W.3d at 899; Hooper, 214 S.W.3d at 13. In

conducting a sufficiency review, an appellate court considers “‘events occurring

before, during[,] and after the commission of the offense and may rely on actions of

the defendant which show an understanding and common design to do the prohibited



                                         8
act.’” Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111

(Tex. Crim. App. 1985)).

      Per the indictment, the State was required to prove beyond a reasonable doubt

that Johnson, knowing an accident occurred, intentionally and knowingly left the

scene without providing information or rendering “reasonable assistance” to J.P.

when it was apparent J.P. was in need of assistance and J.P.’s death occurred as a

result. Johnson contends that the evidence is insufficient to show that he failed to

stop and render aid as required by the statute.

      The Court of Criminal Appeals has held that the State satisfies this burden by

showing that “the accused had knowledge of the circumstances surrounding his

conduct, i.e., had knowledge that an accident had occurred.” Goss v. State, 582

S.W.2d 782, 785 (Tex. Crim. App. 1979) (internal citation omitted). The Houston

Court of Appeals explained the 2015 amendment to section 550.021 added the

requirement that the driver immediately determine whether a person is involved in

an accident, and that any further addition to the statute would be mere surplusage if

the State were required to prove the driver knew that the accident involved death or

injury to a person before the State could show that the driver shirked his duty to stop

and render aid. Mayer v. State, 494 S.W.3d 844, 849–50 (Tex. App.—Houston [14th

Dist.] 2016, pet. ref’d).

                                          9
      Johnson does not contest that he was involved in an automobile accident on

College Street on March 26, 2017; he believed he hit a dog and not a person.

Johnson’s wife testified that Johnson told her immediately afterwards that he had

been in an accident and thought he hit a dog. She identified her vehicle as the vehicle

that Johnson was driving and confirmed the extensive damage to the vehicle,

including a smashed windshield. Johnson’s father testified that the damage to the

vehicle was so extensive that he immediately left his home and went to the scene of

the accident to look for a body. Therefore, overwhelming testimony established

Johnson’s awareness that he was in an accident that night.

      While Johnson argues that the evidence is insufficient to show that he

“intentionally or knowingly” left the scene and failed to render aid, Johnson admitted

that the area in which he hit the victim was the darkest stretch of the highway and

that, at most, he slowed and stopped his vehicle but did not exit the vehicle to see if

there was a victim. Johnson testified he was afraid to exit his vehicle. He stated that

he did not observe anything and drove home. When at home, he was concerned

enough that he told his wife and awoke his father but Johnson told them he believed

he hit a big dog. Although only minutes after he arrived home after the accident,

Johnson failed to return to the scene with his father. In the bright hours of daylight,

Johnson again failed to go back to College Street and investigate. Additionally,

                                          10
although Johnson testified that he did stop his vehicle after the accident, both his

wife and police investigators testified that Johnson only slowed his vehicle after the

collision.

      Section 550.021 has the following language:

      a)     The operator of a vehicle involved in an accident that results or
      is reasonably likely to result in injury to or death of a person shall:

              (1) immediately stop the vehicle at the scene of the accident
              or as close to the scene as possible;

              (2) immediately return to the scene of the accident if the
              vehicle is not stopped at the scene of the accident;

              (3) immediately determine whether a person is involved in the
              accident, and if a person is involved in the accident, whether that
              person requires aid; and

              (4) remain at the scene of the accident until the operator
              complies with the requirements of Section 550.023. 3
      3
          Section 550.023 provides that

      [t]he operator of a vehicle involved in an accident resulting in the injury
      or death of a person or damage to a vehicle that is driven or attended by
      a person shall:
      (1) give the operator’s name and address, the registration number of
      the vehicle the operator was driving, and the name of the operator’s
      motor vehicle liability insurer to any person injured or the operator or
      occupant of or person attending a vehicle involved in the collision;
      (2) if requested and available, show the operator’s driver’s license to
      a person described by Subsection (1); and
      (3) provide any person injured in the accident reasonable assistance,
      including transporting or making arrangements for transporting the
      person to a physician or hospital for medical treatment if it is apparent
                                          11
Tex. Transp. Code Ann. § 550.021(a) (emphasis added). Notably, section

550.021(a)(3) requires that a person not only stop their vehicle, but the driver must

also “determine if a person is involved in the accident[.]” Id. This statutory language

is not superfluous, rather it imposes a mandatory obligation on a driver to stop and

investigate. See Mayer, 494 S.W.3d at 849–50. Therefore, Johnson was charged with

a duty to not only stop his vehicle but get out and investigate the accident scene to

determine if a person was involved. Johnson failed to do this not only once at the

scene of the accident, but twice when he refused to return to the scene with his father

and investigate mere minutes after arriving home. “In order to be subject to the duty

to stop, investigate, and then render aid, appellant need only have known that an

accident occurred.” Id. at 851. Finally, the fact that Johnson attempted to have his

wife take responsibility for his crime could be indicative of guilt. See Torres v. State,

794 S.W.2d 596, 598 (Tex. Crim. App. 1990) (noting that consciousness of guilt is

“one of the strongest kinds of evidence of guilt”); State v. Villegas, 506 S.W.3d 717,

749 (Tex. App.—El Paso 2016, pet. dism’d) (“Any conduct on the part of a person

accused of a crime subsequent to its commission that indicates a consciousness of


      that treatment is necessary, or if the injured person requests the
      transportation.

Tex. Transp. Code Ann. § 550.023.
                                           12
guilt may be received as a circumstance tending to prove that he committed the act

with which he is charged.”).

      The State was not required to prove that Johnson knew that he had struck a

human being; rather, the State must prove Johnson had knowledge of the

circumstances surrounding his conduct, i.e., Johnson knew that an accident occurred.

See Goss, 582 S.W.2d at 785; Mayer, 494 S.W.3d at 849–50. The State had to prove

that Johnson operated a vehicle, was involved in an accident that resulted in the

victim’s death, and intentionally or knowingly failed to stop and render reasonable

assistance. See McCown v. State, 192 S.W.3d 158, 162 (Tex. App.—Fort Worth

2006, pet. ref’d). It was within the province of the jury to weigh the testimony and

to resolve any conflicts in the testimony. See Hooper, 214 S.W.3d at 13. The jury

could have concluded that Johnson’s alleged mistaken belief that he struck an animal

was not reasonable under the circumstances. See Tex. Penal Code Ann. § 8.02(a).

      Viewing the evidence in the light most favorable to the verdict, we conclude

that a rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. See Hooper, 214 S.W.3d at 13. The evidence is legally

sufficient to support the verdict. Accordingly, we overrule Johnson’s second issue.




                                        13
B. Comment on the Weight of the Evidence

        Additionally, Johnson argues that the trial court impermissibly commented on

the weight of the evidence in violation of article 38.05 of the Texas Code of Criminal

Procedure. See Tex. Code Crim Proc. Ann. art. 38.05.4

        The record establishes that Johnson’s complained of error occurred outside

the jury’s presence and without objection from his trial counsel. Therefore, Johnson

has failed to preserve error for this Court’s review. See Tex. R. App. P.

33.1(a)(1)(A); see also Morgan v. State, 365 S.W.3d 706, 710 (Tex. App.—

Texarkana 2012, no pet.) (“No objection was made to this instruction. Generally, a

claim that the trial court erred by commenting on the weight of the evidence during

trial or while ruling on evidentiary matters must be preserved by objection before

the appellate court may consider it.”); Moore v. State, 275 S.W.3d 633, 637 (Tex.

App.—Beaumont 2009, no pet.) (“[I]n the absence of an objection, [the appellant’s]




4
    Article 38.05 of the Texas Code of Criminal Procedure provides that:

        In ruling upon the admissibility of evidence, the judge shall not discuss
        or comment upon the weight of the same or its bearing in the case, but
        shall simply decide whether or not it is admissible; nor shall he, at any
        stage of the proceeding previous to the return of the verdict, make any
        remark calculated to convey to the jury his opinion of the case.
                                           14
complaint, asserting that the questions constitute a comment on the evidence, was

waived.”). We overrule Johnson’s final issue. 5

                         III.   Indictment and Judgment

      We note that neither party has brought to the attention of this Court that the

indictment and subsequent judgment of conviction contain an insufficient numerical

recitation of the correct statute. The Texas Code of Criminal Procedure sets out the

requirements for an indictment in article 21.02 and provides that the “offense must

be set forth in plain and intelligible words.” Tex. Code Crim. Proc. Ann. art.

21.02(7). An indictment is usually legally sufficient if it tracks the penal statute in

question. State v. Moff, 154 S.W.3d 599, 602 (Tex. Crim. App. 2004). An indictment

must allege that (1) a person, (2) committed an offense. Teal v. State, 230 S.W.3d

172, 179 (Tex. Crim. App. 2007) (citing Cook v. State, 902 S.W.2d 471 (Tex. Crim.

App. 1995)). To determine if a charging instrument alleges an offense, we must

decide if the allegations are clear enough that one can identify the offense alleged.

See id. at 180. A trial court and the defendant must be able to identify what penal


      5
         Several Courts of Appeals have held that comments made by the trial court
outside the presence of the jury do not affect the defendant’s right to fair trial. See
Baca v. State, 223 S.W.3d 478, 482 (Tex. App.—Amarillo 2006, no pet.); State v.
Strong, 138 S.W.3d 546, 553 (Tex. App.—Corpus Christi 2004, no pet.); Murchison
v. State, 93 S.W.3d 239, 261–62 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d);
Lorenzo v. State, No. 03-08-00544, 2010 WL 2788757, at *1 (Tex. App.—Austin
July 14, 2010, no pet.) (mem. op.).
                                         15
code provision is alleged and whether that provision vests jurisdiction in the trial

court. See id. An indictment that tracks the statutory language generally satisfies

constitutional and statutory requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex.

Crim. App. 1998).

      The indictment in question properly identifies Johnson and his crime and

properly tracks the language outlined in the statute, resulting in Johnson being on

sufficient notice of his charges. See id. Accordingly, we modify the judgment of the

trial court to properly reflect the correct numerical designation of the statute charged.

See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App.

1993) (stating this Court has the authority to reform the trial court’s judgment to

correct clerical errors). The trial court’s judgment is modified to reflect that Johnson

was convicted under section 550.021(c)(1)(A), Texas Penal Code.

                                  IV.    Conclusion

      Having overruled all of Johnson’s issues on appeal, we affirm the judgment

of the trial court as modified to reflect that Johnson was convicted under section

550.021(c)(1)(A).

      AFFIRMED AS MODIFIED.

                                                      _________________________
                                                           CHARLES KREGER
                                                                Justice

                                           16
Submitted on November 4, 2019
Opinion Delivered March 25, 2020
Do Not Publish

Before Kreger, Horton and Johnson, JJ




                                        17
