                                 MEMORANDUM OPINION
                                        No. 04-09-00291-CR

                                   Estella Santilla RODRIGUEZ,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 399th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2007-CR-10445
                       Honorable Juanita A. Vasquez-Gardner, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: September 8, 2010

AFFIRMED

           Without the benefit of a plea bargain, appellant Estella Santilla Rodriguez pleaded no

contest to the felony offense of failure to stop and render aid. The trial court found Rodriguez

guilty and denied her request for deferred adjudication or community supervision. After making

an affirmative finding that Rodriguez used a deadly weapon, the trial court assessed punishment

at five years confinement in the Texas Department of Criminal Justice-Institutional Division. In

three points of error, Rodriguez contends: (1) the evidence is insufficient to support the
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conviction; (2) the trial court erred in making an affirmative finding of use of a deadly weapon;

and (3) the trial court erred in allowing the State to present evidence and request the maximum

punishment when the State allegedly agreed to refrain from making any recommendation

regarding punishment. We affirm the trial court’s judgment.

                                            BACKGROUND

       Rodriguez pled no contest, and stipulated to the evidence against her, which consists of

police reports and witness statements obtained during the investigation. We have derived the

background facts from the stipulated evidence and other documents in the record.

       On July 10, 2007, Rodriguez was entering the eastbound lanes of Loop 410 when she

struck a motorcyclist, Shirley Ann Morrison, causing Morrison to lose control of her motorcycle.

Morrison fell off her motorcycle and was hit by a second motorist. Morrison died at the scene.

Rodriguez reportedly sped up after the collision and neither stopped nor called for emergency

services. The accident was reported to police at 10:57 a.m.

       Telephone records show Rodriguez used her cell phone to call Miguel Rodriguez, who

was her husband at that time, at 11:12 a.m. During the next hour, Rodriguez and Miguel called

each other six times, their conversations lasting only minutes at a time. During that hour of

phone calls, Miguel called 911 to report that his wife had been in an accident. He stated “[s]he

thinks she hit a motorcyclist” and “she got scared and she left.” Rodriguez received a call from

the police at 12:16 p.m.

       Rodriguez was subsequently charged by indictment with the offense of failure to stop and

render aid.   Rodriguez entered into an open plea of no contest and requested deferred

adjudication or community supervision. The trial court found Rodriguez guilty, denied her




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request for deferred adjudication or community supervision, and sentenced her to five years

confinement.

                                               DISCUSSION

                                         Sufficiency of Evidence

       Rodriguez first contends the evidence presented by the State is insufficient to support her

conviction. Specifically, Rodriguez argues the State failed to prove beyond a reasonable doubt

she had knowledge of the accident.

       Unlike a plea of not guilty, once a plea of guilty or nolo contendere is entered, the State is

not required to prove guilt beyond a reasonable doubt. Ex parte Williams, 703 S.W.2d 674, 678

(Tex. Crim. App. 1986); Tijerina v. State, 264 S.W.3d 320, 323 (Tex. App.—San Antonio 2008,

pet. ref’d). The State is only required to introduce evidence that “embrace[s] every essential

element of the offense charged.” Stone v. State, 919 S.W.2d 424, 427 (Tex. Crim. App. 1996);

Tijerina, 264 S.W.3d at 323.

       When a defendant pleads guilty or nolo contendere to a felony, the State must introduce

evidence of guilt to sustain the plea. TEX. CODE CRIM. PROC. ANN. art. 1.15 (Vernon 2005).

This can be done with a stipulation of evidence where the defendant consents without conceding

the veracity of the evidence or the need for proof. Id.; Barnes v. State, 103 S.W.3d 494, 497

(Tex. App.—San Antonio 2003, no pet.) (citing Wright v. State, 930 S.W.2d 131, 133 (Tex.

App.—Dallas 1996, no pet.)).

       When a defendant is charged with the failure to stop and render aid, the State must not

only prove the failure to immediately stop, return, and remain at the scene of the accident

involving serious bodily injury or death, but the State must also prove the defendant had

knowledge the accident had taken place. TEX. TRANSP. CODE ANN. § 550.021 (Vernon Supp.



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2009); Huffman v. State, 267 S.W.3d 902, 908 (Tex. Crim. App. 2008) (citing Goss v. State, 582

S.W.2d 782, 785 (Tex. Crim. App. 1979)).

       The crux of Rodriguez’s argument is the State failed to prove beyond a reasonable doubt

she had knowledge of the accident. The stipulated evidence consisted of a police report prepared

by Detective Tonja Brandt of the San Antonio Police Department and an autopsy report.

Detective Brandt’s report has statements from witness Avery Walker and Rodriguez, and

information relating to the 911 call made by Miguel.

       Walker told police he was traveling approximately 60 miles per hour on Loop 410 when

he witnessed a grey pick-up truck swerve into Morrison’s lane and “bump” her motorcycle.

Walker stopped to help Morrison. He stated he saw the pick-up truck that hit Morrison “speed

up after making contact with the cyclist.” Walker got back into his vehicle and tried to catch up

with the pick-up truck to get its license plate number; he was unsuccessful. Walker claimed the

driver of the pick-up truck never slowed down or pulled over.

       The police traced the accident back to Rodriguez when Miguel called 911 to inform the

police Rodriguez had been in an accident. During the call, Miguel told the 911 operator not only

that Rodriguez had been in an accident but that “[s]he thinks she hit a motorcyclist” and “she got

scared and left.” Although Rodriguez never admitted she had knowledge of the accident, she

admitted she felt a “bump,” and it felt as if “something hit.” Rodriguez stated after the “bump,”

she looked in her rear view and side mirrors, but did not see anything. She claimed she did not

pull over because she did not believe there was enough space.

       “Absent a judicial confession, the requisite culpable mental state must ordinarily be

inferred from the acts of the accused or the surrounding circumstances.” Ledesma v. State, 677

S.W.2d 529, 531 (Tex. Crim. App. 1984). The trier of fact may draw inferences from the



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stipulated facts. Id. We hold the stipulated evidence referenced above infers Rodriguez had

knowledge of the accident. We will not displace the trial court’s determination, as trier of fact,

of the credibility of the stipulated evidence and the witness statements therein. See Sanchez v.

Mica Corp., 107 S.W.3d 13, 33 (Tex. App.—San Antonio 2002, judgm’t vacated in part). The

stipulated evidence in this case “embraced every essential element of the offense charged”

including Rodriguez’s knowledge of the accident. See Stone, 919 S.W.2d at 427. We therefore

overrule Rodriguez’s first point of error.

                            Affirmative Finding of Use of a Deadly Weapon

       Rodriguez next contends the trial court erred finding she used a deadly weapon. We

review the trial court’s affirmative finding in the light most favorable to the State, and must

determine whether “any rational trier of fact could have found beyond a reasonable doubt that

the truck was used or exhibited as a deadly weapon.” Cates v. State, 102 S.W.3d 735, 738 (Tex.

Crim. App. 2003).

       Under the Texas Penal Code, a deadly weapon is defined as “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) (Vernon Supp. 2009). The deadly weapon must be used during the

commission of the felony, and there must be evidence others were put in danger of serious bodily

injury or death. Cates, 102 S.W.3d at 738. A vehicle may be classified as a deadly weapon if it

was driven in such a reckless manner as to endanger others. Id. (citing Tyra v. State, 897 S.W.2d

796, 798–99 (Tex. Crim. App. 1995)). In a failure to stop and render aid case, the felony

consists of fleeing the scene of an accident, and the State must prove the vehicle was used as a

deadly weapon during this time period and not before or during the accident. Id.




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       Rodriguez improperly relies on Cates v. State to support her argument. 102 S.W.3d 735

(Tex. Crim. App. 2003).      In Cates, the court of criminal appeals held the evidence was

insufficient to prove the defendant operated his vehicle as a deadly weapon during the offense of

failure to stop and render aid. Id. at 738. The accident in Cates occurred at night on a deserted

stretch of road. Id. After the accident, two witnesses, driving 85 to 95 miles per hour, caught up

to the defendant soon after at a red light. Id. The court explained this evidence proved only that

the witnesses were driving significantly faster than the defendant because they caught up to him

so quickly. Id. Also, because the witnesses caught up to the defendant at a red light, it was

further proof the defendant was not driving dangerously after the accident. Id.

       In this case, the accident occurred midmorning, on a highway in San Antonio. Walker

told police he was traveling approximately 60 miles per hour when he noticed Rodriguez’s pick-

up truck entering the highway at an “excessive rate of speed.” He then witnessed the accident.

Walker claimed that after the motorcycle and Rodriguez’s pick-up truck made contact, it

appeared to him that the pick-up truck sped up.        Mr. Walker then tried to “catch up” to

Rodriguez, but unlike the witnesses in Cates, he was unsuccessful. The evidence also shows the

accident occurred in a construction zone. Rodriguez told police she believed she hit an orange

construction “barrel” instead of the motorcycle. Any rational trier of fact could have found that

this evidence established that Rodriguez, after the accident, was driving at an excessive rate of

speed in a construction zone. In viewing this evidence in a light most favorable to the State, we

find that any rational trier of fact could have found Rodriguez, while fleeing the scene of the

accident, operated her vehicle in a reckless or dangerous manner. See Cates, 102 S.W.3d at 738.

Therefore, we overrule Rodriguez’s second point of error.




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                                        State’s Recommendation

        Finally, Rodriguez contends it was improper for the State to present evidence and request

the maximum punishment when the State allegedly agreed not to make any recommendations.

We need not address the merits of Rodriguez’s argument because Rodriguez failed to preserve

error in the trial court.

        The record must reflect a “complaint made to the trial court by a timely request,

objection, or motion” in order to present that complaint for appellate review. TEX. R. APP. P.

33.1. To be timely, the complaint must be made “at the first opportunity or as soon as the basis

of the objection becomes apparent.” Cruz v. State, 238 S.W.3d 381, 385 (Tex. App.—Houston

[1st Dist.] 2006, pet. ref’d). If a defendant who pleads guilty or nolo contendere fails to raise an

objection at either the plea hearing or the sentencing hearing, the alleged error is not preserved

for appellate review. Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009).

        Here, when the State asked for the maximum punishment with a finding of use of a

deadly weapon, Rodriguez failed to object, and therefore waived any right to complain on

appeal. See id. Accordingly, we overrule Rodriguez’s third point of error.

                                              CONCLUSION

        Based on the foregoing, we hold Rodriguez’s points of error are without merit and we

affirm the trial court’s judgment.

                                                  Marialyn Barnard, Justice

Do Not Publish




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