       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING



                                      NO. 03-17-00695-CR


                               Sarah Christine Padon, Appellant

                                                 v.

                                  The State of Texas, Appellee


           FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
    NO. CR2016-582, THE HONORABLE JACK H. ROBISON, JUDGE PRESIDING


                            MEMORANDUM OPINION


               We withdraw the memorandum opinion and judgment dated July 31, 2019,

substitute the following memorandum opinion and judgment in their place, and deny appellant’s

motion for rehearing.

               A jury convicted appellant Sarah Christine Padon of manslaughter, see Tex. Penal

Code § 19.04, and assessed her punishment at confinement for twenty years in the Texas

Department of Criminal Justice and a fine of $10,000, see id. § 12.33. On appeal, appellant

challenges the sufficiency of the evidence, contends that the trial court erred in denying her

requested jury-charge instruction, complains that she received ineffective assistance of counsel at

trial, and asserts that the trial court erred by admitting irrelevant evidence. We find no reversible

error. However, we have found non-reversible error in the written judgment of conviction. We
will modify the judgment to correct the error and, as modified, affirm the trial court’s judgment

of conviction.


                                          BACKGROUND

                 The jury heard evidence that shortly after 9:00 p.m. on June 17, 2012,

Heidi Frericks was riding as a passenger in her Buick with her friend, April Hand, who was

driving, and her five-year-old son, Conner, who was riding in the backseat. The group was

travelling on FM 2673, a two-lane roadway (that had one lane in each direction) with no divider

between the lanes and a small shoulder adjacent to each lane. As the car went around a curve, it

was struck head-on by appellant’s Ford Explorer. Hand was killed instantly; Frericks and her

son were both seriously injured.

                 At trial, Frericks recounted what she could recall about the collision.      She

explained that, before the impact, she had turned briefly to look at her son and then turned back

to the front and “everything was just black.” She did not see what hit them and did not see lights

approaching before they were hit. Frericks described Hand as a “very cautious driver” and

indicated that she did not see any reaction from Hand before the impact. Regarding the driving

conditions, Frericks testified that it was “between middle of dusk to dark” and expressed her

opinion that it was dark enough that a person’s headlights should have been on. She said that she

knew for a fact that her car’s headlights were on. Frericks also described the injuries that she

and her son sustained in the collision.

                 Lawrence Escamilla, a trooper with the Department of Public Safety, responded

to the 911 dispatch for the collision. When he arrived at the location, he found the two vehicles

in the roadway, more in the North lane. He opened the driver’s door on the Explorer and found


                                                2
appellant, crying and screaming, with her legs pinned by the dashboard. Trooper Escamilla

detected an odor of an alcoholic beverage and noticed that the switch for the Explorer’s

headlights was in the off position. The trooper testified that appellant told him that “all [she] saw

was a big boom.” When emergency medical services personnel arrived to assist appellant,

Trooper Escamilla went to the Buick. He immediately recognized that the driver was deceased.

He heard the young boy screaming and saw that the driver’s seat was crushing the child’s legs,

so he informed the paramedics that the boy was stuck. The trooper tried to get information about

what had happened from the passenger, later identified as Frericks, who was injured such that

she was in and out of consciousness.

                 After the injured parties were removed from the scene to be transported to the

hospital, Trooper Escamilla, who had extensive experience and training in accident investigation,

investigated the crash. He discovered that there were no road marks or “gouge marks” on the

South side of the road (the lane appellant was driving in) but there were gouge marks on the

North lane (the lane the Buick was in). The trooper explained that gouge marks, from debris

indenting the roadway, indicate the area of impact in a collision. He concluded that the area of

impact was on the North side of the road, in the victim’s lane of travel. Trooper Escamilla also

testified that there was no indication that appellant braked at all before the collision—explaining

that there were no skid marks on the road “so there was no breaking whatsoever.” Ultimately,

the trooper concluded that appellant caused the collision because she was driving on the wrong

side of the road—she was “pretty far off” “on the wrong side of the roadway”—without her

headlights on. His testimony indicated that he also thought that alcohol consumption might have

been a factor.



                                                 3
               During his investigation, the trooper inventoried the vehicles. He found an open

container of alcohol in appellant’s Explorer—a twelve-ounce can of beer that was a quarter full.

Trooper Escamilla described the location of the collision as a “pitch black” blind curve and

testified that it was “dangerous” to drive in that particular area without headlights on and

“unsafe” to travel at that time without headlights on.1 He also expressed his opinion that it is

more difficult to maintain control of a vehicle, stay in the lane of travel, and operate a car around

a curve when consuming alcohol. During the trooper’s testimony, State’s Exhibit #10, a page

from appellant’s medical records, was admitted.         The exhibit reflected that the attending

physician who treated appellant consulted a licensed chemical dependency counselor “due to

[appellant’s] intoxication.”

               Several days after the collision, Trooper Escamilla interviewed appellant at the

hospital.   Appellant told him that she had been floating all day on the river, since about

12:30 p.m., and had been drinking. She also said that she met a man and went to a nearby bar

and grill to eat and drink some more. Appellant explained to the trooper that, afterward, she was




       1
          Trooper Escamilla conceded that, given that the official time of the sunset that night
was at 8:34 p.m., the law would require headlights only at 9:04 p.m., thirty minutes after sunset.
See Tex. Transp. Code §§ 547.302(a)(1) (“A vehicle shall display each lighted lamp and
illuminating device required by this chapter to be on the vehicle . . . at nighttime.”), 541.401
(defining “nighttime” as “the period beginning one-half hour after sunset and ending one-half
hour before sunrise”). However, he further explained that “there’s more to that law” because the
use of headlights is also related to road conditions. He expressed that, given the dangerous
conditions of the roadway and the level of darkness, appellant should have had her headlights on.
See id. § 547.302(a)(2) (“A vehicle shall display each lighted lamp and illuminating device
required by this chapter to be on the vehicle . . . when light is insufficient or atmospheric
conditions are unfavorable so that a person or vehicle on the highway is not clearly discernible at
a distance of 1,000 feet ahead.”).


                                                 4
tired and did not want to drive all the way home so she was going to follow the man to

San Antonio.2 She indicated that she did not know how much she had been drinking.

               As part of the investigation at the scene, Trooper Escamilla took photographs of

the crash scene, which were admitted into evidence during his testimony. He also collected the

light bulbs from the rear taillights of both vehicles at the scene. At trial, a senior master auto

technician described how the three-bulb system in the taillights of a Ford Explorer operated. He

explained that the top and bottom bulbs were single-filament lamps. The top one is for the turn

signal; the bottom one is for the reverse lights. The middle bulb has two filaments. One filament

is powered by the park lights or headlights; the other filament is powered by the brake lights.

The technician clarified that when the headlights of the Explorer are turned on, only the smaller

thinner filament of the middle bulb is illuminated. When the brake pedal is depressed, only the

larger heavier filament of the middle bulb is illuminated.

               In addition, a trace evidence analyst, who had special training in lamp-filament

analysis, testified about her analysis of the bulbs from appellant’s Explorer. Based on her

analysis of both the chemical reactions and physical interactions of the bulbs, she concluded that

the dual-filament lamp from appellant’s left taillight was off when the filaments in the bulb were

broken. The expert was unable to make a determination of whether the dual-filament lamp from

the Explorer’s right taillight was off or on.3


       2
         Trooper Escamilla testified that appellant never described the man or gave the trooper
the name of the man she was following, and he was unable to identify him.
       3
         The expert testified that in the lamp analysis, the examiner looks for various indications
of what happened to the bulb. She explained that certain combinations of characteristics could
be explained in multiple ways, and “[i]f it could be explained multiple ways, [the examiners] are
unable to make a determination just based on what is in front of [them] and so, therefore, [they]
have to come up with an [sic] conclusion of indeterminate.” In contrast, “if all of the
                                                 5
               The State called six witnesses at trial: the communication supervisor for the

sheriff’s office, who provided the recordings of the 911 calls that night; Frericks, who testified

about what she recalled of the collision; Trooper Escamilla, who testified about responding to the

collision, his investigation of the collision, and his interview with appellant; a forensic

pathologist, who testified about conducting Hand’s autopsy and the findings concerning Hand’s

injuries and cause of death; the senior master auto technician, who testified about the three-bulb

taillight system of a Ford Explorer; and the trace evidence analyst, who testified about the

lamp-filament analysis she conducted.         Appellant called no witnesses.        After extensive

deliberations and a supplemental jury charge from the court,4 the jury found appellant guilty of

manslaughter as charged in the indictment.

               During the punishment phase, the State presented evidence of appellant’s prior

DWI conviction and evidence that, on several occasions, appellant violated her bond condition

prohibiting the consumption of alcohol.       In closing argument, appellant sought community

supervision; the State asked for the maximum sentence of twenty years. In its punishment

verdict, the jury returned an affirmative finding that appellant used a deadly weapon during the

commission of the offense, assessed appellant’s punishment at the maximum sentence of twenty

years, and, in addition, assessed the maximum fine of $10,000.




characteristics indicate one explanation, then [the examiner] can conclude that that explanation
was either on or off was the case.”
       4
          The supplemental charge, known as an “Allen charge,” attempts to break a deadlocked
jury by instructing jurors that the result of a hung jury is a mistrial and that jurors at a retrial
would face essentially the same decision, encouraging them to resolve their differences without
coercing one another or violating their individual choices. See Allen v. United States, 164 U.S. 492,
501 (1896).
                                                 6
               Appellant filed a motion for new trial, asserting that the verdict was contrary to

the law and evidence, and an amended motion for new trial, contending that the trial court erred

in denying appellant’s requested jury-charge instruction on the lesser included offense of

criminally negligent homicide. The amended motion for new trial was overruled by operation of

law. This appeal followed.


                                         DISCUSSION

               Appellant raises four points of error. First, she challenges the sufficiency of the

evidence supporting her conviction. Second, she complains about jury-charge error. Third, she

argues that if trial counsel’s actions preclude appellate review of the complaint asserting

jury-charge error, counsel rendered ineffective assistance. Lastly, appellant argues that the trial

court erroneously admitted an excerpt from her hospital records.


                                  Sufficiency of the Evidence

               Due process requires that the State prove, beyond a reasonable doubt, every

element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Lang v. State,

561 S.W.3d 174, 179 (Tex. Crim. App. 2018). When reviewing the sufficiency of the evidence

to support a conviction, we consider all the evidence in the light most favorable to the verdict to

determine whether, based on that evidence and the reasonable inferences therefrom, any rational

trier of fact could have found the essential elements of the offense beyond a reasonable doubt.

Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see

Musacchio v. United States, ––– U.S. –––, 136 S. Ct. 709 (2016); Johnson v. State, 560 S.W.3d 224,

226 (Tex. Crim. App. 2018). In our sufficiency review we consider all the evidence in the

record, whether direct or circumstantial, properly or improperly admitted, or submitted by the

                                                7
prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex. App.—Austin 2013,

no pet.); see Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We assume that the trier of fact resolved conflicts

in the testimony, weighed the evidence, and drew reasonable inferences in a manner that

supports the verdict. Jackson, 443 U.S. at 318; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.

App. 2009). We consider only whether the factfinder reached a rational decision. Arroyo

v. State, 559 S.W.3d 484, 487 (Tex. Crim. App. 2018); see Morgan v. State, 501 S.W.3d 84, 89

(Tex. Crim. App. 2016) (observing that reviewing court’s role on appeal “is restricted to

guarding against the rare occurrence when a fact finder does not act rationally” (quoting Isassi

v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010))). “The key question is whether ‘the

evidence presented actually supports a conclusion that the defendant committed the crime that

was charged.’” Morgan, 501 S.W.3d at 89 (quoting Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007)).

              The trier of fact is the sole judge of the weight and credibility of the evidence.

See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Blea v. State, 483 S.W.3d 29,

33 (Tex. Crim. App. 2016); see also Tex. Code Crim. Proc. art 36.13 (explaining that “the jury is

the exclusive judge of the facts”). 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. Arroyo, 559 S.W.3d at 487; see Montgomery v. State, 369 S.W.3d 188,

192 (Tex. Crim. App. 2012). Instead, we must defer to the credibility and weight determinations

of the factfinder. Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Nowlin v. State,

473 S.W.3d 312, 317 (Tex. Crim. App. 2015). When the record supports conflicting reasonable

inferences, we presume that the factfinder resolved the conflicts in favor of the verdict, and we

                                               8
defer to that resolution. Zuniga, 551 S.W.3d at 733; Cary, 507 S.W.3d at 757; see Musacchio,

136 S. Ct. at 715 (reaffirming that appellate sufficiency review “does not intrude on the jury's

role ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts’” (quoting Jackson, 443 U.S. at 319)). We must

“determine whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the verdict.”

Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Clayton, 235 S.W.3d at

778); accord Arroyo, 559 S.W.3d at 487.

               Because factfinders are permitted to make reasonable inferences, “[i]t is not

necessary that the evidence directly proves the defendant’s guilt; circumstantial evidence is as

probative as direct evidence in establishing the guilt of the actor, and circumstantial evidence

alone can be sufficient to establish guilt.” Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim.

App. 2013) (citing Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)); accord Tate

v. State, 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). The standard of review is the same for

direct and circumstantial evidence cases. Jenkins, 493 S.W.3d at 599; Nowlin, 473 S.W.3d at 317.

               A person commits the offense of manslaughter “if he recklessly causes the death

of an individual.” Tex. Penal Code § 19.04(a). Manslaughter is a result-oriented offense; thus,

the defendant’s culpable mental state must relate to the result of his conduct—that is, the causing

of the death. Schroeder v. State, 123 S.W.3d 398, 399–401 (Tex. Crim. App. 2003). “A person

acts recklessly, or is reckless, . . . when he is aware of but consciously disregards a substantial

and unjustifiable risk that . . . the result will occur.” Tex. Penal Code § 6.03(c). The risk created

“must be of such a nature and degree that its disregard constitutes a gross deviation from the



                                                 9
standard of care that an ordinary person would exercise under all the circumstances as viewed

from the actor’s standpoint.” Id.

                 “Recklessness requires the defendant to actually foresee the risk involved and to

consciously decide to ignore it.” Williams, 235 S.W.3d at 751; see Tex. Penal Code § 6.03(c).

Whether the actor is aware of the requisite risk is a conclusion to be reached by the trier of fact

from all the evidence and the inferences drawn therefrom. Miller v. State, No. 03-07-00527-CR,

2010 WL 140390, at *5 (Tex. App.—Austin Jan. 13, 2010, pet. ref’d) (mem. op., not designated

for publication); see Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. 1978) (observing that

proof of culpable mental state generally relies on circumstantial evidence and “whether one is

aware of a requisite risk . . . is a conclusion to be drawn through inference from all the

circumstances by the trier of fact”). “The issue is not one of theoretical possibility, but one of

whether, given all the circumstances, it is reasonable to infer that the particular individual on

trial was in fact aware of the risk.” Dillon, 574 S.W.2d at 95. A defendant, however, need

not be aware of the specific risk of another’s death in order to commit manslaughter. Miller,

2010 WL 140390, at *5; Trepanier v. State, 940 S.W.2d 827, 829 (Tex. App.—Austin 1997,

pet. ref’d).

                 The indictment in this case charged appellant with manslaughter, alleging

that appellant


        did then and there recklessly cause the death of an individual, to-wit: April Hand,
        by failing to maintain a proper lookout for traffic, by failing to maintain a single
        lane, by driving into the oncoming lane of traffic, by driving at night without the
        use of her vehicle’s headlights, by failing to timely apply the brakes of her
        vehicle, by failing to maintain proper control of her motor vehicle, or by allowing
        the vehicle being driven by [appellant] to collide with the motor vehicle being
        driven by the said April Hand.


                                                10
These various allegations of how appellant drove constitute how appellant was reckless; that is,

they are the manners and means of how she committed manslaughter. See Flores v. State,

536 S.W.3d 560, 576 (Tex. App.—San Antonio 2017, pet. ref’d). These alternative manner and

means were presented disjunctively to the jury; thus, proof of any one is sufficient for

conviction. See Hooper, 214 S.W.3d at 14; Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim.

App. 2004).

               In this case, it is undisputed that the collision caused Hand’s death. It is also

undisputed that appellant was driving the Explorer that crashed head-on into Hand’s car. The

question is whether the evidence at trial is sufficient to support a finding beyond a reasonable

doubt that appellant recklessly caused Hand’s death by driving as alleged in the indictment.

               In her brief, appellant analyzes the alleged manners and means separately to argue

that the evidence does not demonstrate that particular driving manner or that appellant acted

recklessly when driving in the alleged manner. She also complains about the lack of evidence

“regarding the mechanical condition of the vehicles involved, nor road or traffic conditions that

could have caused the accident.”5 She also hypothesizes about what the jury could have believed

based on particular evidence, which she contends would be inconsistent with appellant

acting recklessly.

               However, when examining the legal sufficiency of the evidence, the reviewing

court must not engage in a “divide and conquer” strategy but must consider the cumulative force

of all the evidence. Zuniga, 551 S.W.3d at 733; Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim.

       5
          In particular, she criticizes the lack of evidence showing “whether there was or was not
any debris found on the road that could have caused Appellant’s car to swerve out of her lane
and into oncoming traffic,” “whether there were any animals or other vehicles on the roadway
that did or did not affect Appellant’s vehicle,” and “whether or not a mechanical condition of
either vehicle could have caused the accident.”
                                               11
App. 2017).    Furthermore, legally sufficient evidence need not exclude every conceivable

alternative to a defendant’s guilt. Johnson, 560 S.W.3d at 226; Ramsey v. State, 473 S.W.3d 805,

811 (Tex. Crim. App. 2015); see Geesa v. State, 820 S.W.2d 154, 160–61 (Tex. Crim. App.

1991), overruled on other grounds by Paulson v. State, 28 S.W.3d 570, 570 (Tex. Crim. App.

2000) (disavowing reasonable-alternative-hypothesis construct). Moreover, 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, see Montgomery, 369 S.W.3d at 192, but

must, instead, defer to the credibility and weight determinations of the factfinder, Cary,

507 S.W.3d at 757.         Appellant’s argument, in direct opposition to the implicit factual

determinations and inferences made by the jury in this case, would have us disregard that

standard for our review.

              The evidence at trial showed that (1) appellant’s Explorer collided with Hand’s

car head-on; (2) the impact occurred in Hand’s lane of travel; (3) lamp-filament analysis of the

taillights of appellant’s Explorer indicated that the duel-filament bulb, which related to the

headlights, was off at the time of the impact; (4) there were no skid marks indicative of braking

on the road; (5) appellant admitted that she had consumed alcohol before the collision

(throughout the day at the river and just before at the bar and grill); (5) Trooper Escamilla

smelled alcohol when he made contact with appellant in her Explorer; (6) appellant had an open

beer can, only one-quarter full, in her Explorer at the time of the collision; (7) appellant’s

hospital records indicated that the doctor had determined that appellant was intoxicated; and

(8) expert testimony established that alcohol consumption affects a person’s ability to operate

a vehicle.



                                               12
                 Reasonable inferences from this evidence include the inferences that (1) appellant

was driving her Explorer in the lane of oncoming traffic at the moment of impact; (2) appellant

was driving without her headlights on at the time of the collision; (3) appellant did not apply her

brakes before the impact; (4) appellant had consumed unknown quantities of alcohol before the

collision; (5) appellant was possibly drinking alcohol (the beer) when she was driving at or

before the time of the collision; and (6) appellant had alcohol in her system at the time of

the collision.

                 Recklessness can be applied generally to the act of driving.       Zorn v. State,

315 S.W.3d 616, 620 (Tex. App.—Tyler 2010, no pet.); Miller v. State, No. 01-03-00819-CR,

2005 WL 825762, at *2 (Tex. App.—Houston [1st Dist.] Apr. 7, 2005, pet. ref’d) (mem. op., not

designated for publication); see Porter v. State, 969 S.W.2d 60, 63 (Tex. App.—Austin 1998,

pet. ref’d); see, e.g., Aliff v. State, 627 S.W.2d 166, 172 (Tex. Crim. App. 1982) (concluding that

recklessness was shown where defendant operated motor vehicle at over 100 miles per hour,

passed a car on shoulder, locked his brakes, and skidded into collision with another car);

Arellano v. State, 54 S.W.3d 391, 393 (Tex. App.—Waco 2001, pet. ref’d) (concluding that

reckless element was satisfied where there were visible signs indicating “reduced speed ahead”

but skid marks showed that defendant was driving at excessive speed under circumstances);

Trepanier, 940 S.W.2d at 830 (determining that driver was reckless when he attempted to

illegally pass traffic on right shoulder of road); Banister v. State, 761 S.W.2d 849, 850 (Tex.

App.—Beaumont 1988, no pet.) (holding that recklessness was shown where truck driver put

truck in reverse during heavy fog on highway and struck driver proceeding legally in same lane).

                 “[A]t the heart of reckless conduct is conscious disregard of the risk created by

the actor’s conduct.” Williams, 235 S.W.3d at 751 (quoting Lewis v. State, 529 S.W.2d 550, 553

                                                 13
(Tex. Crim. App. 1975)). The reckless person neither desires that the risk occur nor is he

reasonably certain that it will occur; he does, however, perceive it. Dillon, 574 S.W.2d at 96;

Stepherson v. State, 523 S.W.3d 759, 763 (Tex. App.—Houston [14th Dist.] 2017, no pet.). In

this case, the evidence at trial showed several acts by appellant that revealed conscious risk

creation—“a conscious disregard for the risk involved in driving in the manner in which the

appellant was driving,” see Aliff, 627 S.W.2d at 172—including, not staying in her lane of traffic,

driving fully in the lane of oncoming traffic (not simply veering slightly into it), driving without

headlights under conditions in which they were needed, not applying her brakes before the

impact, not controlling her Explorer, not attempting to maneuver to avoid the collision, and

driving after consuming alcohol. See, e.g., Porter, 969 S.W.2d at 63–64 (concluding evidence

was sufficient to support conviction for manslaughter where defendant who drove into oncoming

traffic during early morning hours, had used methamphetamine during preceding night, and had

acknowledged prior to collision that he was “very much fatigued” and should not be driving);

cf. Galvan v. State, No. 13-14-00059-CR, 2016 WL 1393507, at *5 (Tex. App.—Corpus Christi

Apr. 7, 2016, pet. ref’d) (mem. op., not designated for publication) (observing that Texas courts

“have found evidence sufficient to support a conviction for reckless conduct based upon

impaired driving due to the consumption of any amount of alcohol”).

               From the combined and cumulative force of all the evidence presented in this

case, see Jenkins, 493 S.W.3d at 599 (stating that in an evidentiary sufficiency review, appellate

court must consider “all of the evidence” and “the cumulative force of all the incriminating

circumstances”), and the reasonable inferences from it, Acosta v. State, 429 S.W.3d 621, 625

(Tex. Crim. App. 2014) (recognizing that “the trier of fact may use common sense and apply

common knowledge, observation, and experience gained in ordinary affairs when drawing

                                                14
inferences from the evidence”), the jury could have found beyond a reasonable doubt that

appellant recklessly caused Hand’s death by driving in one or more of the manners and means

alleged in the indictment. See Zuniga, 551 S.W.3d at 733 (confirming that “circumstantial

evidence alone may be sufficient to uphold a conviction so long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction”); Nowlin, 473 S.W.3d at 317

(“[W]here the inferences made by the factfinder are reasonable in light of ‘the cumulative force

of all the evidence when considered in the light most favorable to the verdict,’ the conviction

will be upheld.”) (quoting Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012)).

Therefore, we conclude that the evidence is sufficient to support appellant’s conviction for

manslaughter. We overrule appellant’s first point of error.


                                       Jury-Charge Error

               The record before us does not reflect that appellant requested an instruction in the

jury charge on the lesser included offense of criminally negligent homicide. See Tex. Code

Crim. Proc. art. 36.15 (requiring defendant to request jury-charge instruction by presenting

written instruction to court or by dictating instruction to court reporter in presence of court and

prosecutor). Nevertheless, during the jury-charge conference, the trial court entertained the

State’s argument against including such an instruction. Ultimately, over the State’s objection,

the trial court included an instruction on the lesser included offense of criminally negligent

homicide in the jury charge.

               However, the trial court interrupted its reading of the jury charge in open court to

sua sponte raise the issue of the statute of limitations for criminally negligent homicide. After




                                                15
reading portions of the charge informing the jury that there is no period of limitations for the

offense of manslaughter, the following ensued:


       TRIAL COURT:                 What about criminal negligence?

                                    Well, nobody objected to the Charge. I’ll just leave it
                                    the way it is.

                                    I’m sure there’s a limitation on criminal negligence.
                                    I’m not sure, but there might be.

       DEFENSE COUNSEL:             I believe it’s three years, Judge.

       TRIAL COURT:                 It’s a non-issue anyway.       You’re well within any
                                    statute of limitations.

                                    What say you, [Defense Counsel]?

       DEFENSE COUNSEL:             I wasn’t thinking about the statute of limitations in a
                                    criminally negligent homicide before, but now —

       PROSECUTOR:                  There’s no limitation for murder and manslaughter.
                                    And I think it falls under that catch-all three years
                                    from the date of the offense for all other felonies.

       DEFENSE COUNSEL:             This occurred on June 17th, 2012.6

       TRIAL COURT:                 Then how can I give you a lesser included offense on
                                    it?

                                    You want a few minutes to talk this over?

       DEFENSE COUNSEL:             Yes, Judge.

       TRIAL COURT:                 Ladies and gentlemen, I think we just found a fly in
                                    the ointment and I think we’re going to have to take a
                                    little recess here.


Outside the presence of the jury, the discussion continued:

       6
           The record reflects that the manslaughter indictment in this case was filed on
August 3, 2016.
                                                  16
       TRIAL COURT:                 I think I’ve read a case on this before.

       DEFENSE COUNSEL:             It falls under the three years, Judge.

       PROSECUTOR:                  If you want to read it to —

       DEFENSE COUNSEL:             I just did.

       TRIAL COURT:                 I think it does, too. So we’re going to take out all
                                    mention of criminal negligence.

       DEFENSE COUNSEL:             Yep.

       PROSECUTOR:                  Is that an agreement?

       TRIAL COURT:                 Yeah.

       PROSECUTOR:                  You agree to that?

       DEFENSE COUNSEL:             I agree, Judge.

       TRIAL COURT:                 Okay. We’re going to have to redo the Charge and
                                    take out all of the — take out the lesser included.

                                    Why didn’t you think of that before, [Prosecutor]?

       PROSECUTOR:                  Got my mind so caught up on trying to find the
                                    case law.


The proceedings then briefly recessed.

               After the recess, appellant’s counsel, outside the presence of the jury, presented

case law supporting the trial court’s position that an instruction on the lesser included offense of

criminally negligent homicide could not be included in the jury charge because the statute of

limitations had run. Specifically, counsel read an excerpt from Gallardo v. State, 768 S.W.2d 875,

879 (Tex. App.—San Antonio 1989, pet. ref’d), which states:




                                                  17
       [O]ne may not be convicted of a lesser included offense if the period of
       limitations for the lesser offense has expired, notwithstanding the fact that one
       could be convicted of the greater crime or offense charged in the Indictment due
       to a longer applicable period of limitations.


Counsel noted that Gallardo cited McKinney v. State, 257 S.W. 258 (Tex. Crim. App. 1923), a

case from the Court of Criminal Appeals. The trial court responded, “There you go.” When the

jury was brought back into the courtroom, the trial court told the jurors that it was going to “pick

up right with the last paragraph [the court] was reading” and informed them that “[t]here will no

longer be any reference to criminally negligent homicide anywhere in this Charge.”

               In her second point of error, appellant asserts that the trial court erred in

denying her request for a jury-charge instruction on the lesser included offense of criminally

negligent homicide.

               “It is well-established in our jurisprudence that ‘an accused cannot invite error

and then complain thereof.’” Capistran v. State, 759 S.W.2d 121, 124 (Tex. Crim. App. 1982)

(quoting Holmes v. State, 146 S.W.2d 400, 403 (Tex. Crim. App. 1940)). Under the doctrine of

invited error, a party is estopped from seeking appellate relief based on error that it induced.7

Cary, 507 S.W.3d at 755; see Woodall v. State, 336 S.W.3d 634, 644 (Tex. Crim. App. 2011)

(“The law of invited error provides that a party cannot take advantage of an error that it invited

or caused, even if such error is fundamental. In other words, a party is estopped from seeking

appellate relief based on error that it induced.”). “To hold otherwise would be to permit [the



       7
           The Court of Criminal Appeals has explained that invited error does not involve a
waiver of error previously committed, but rather the exclusion from an appellate court’s
consideration of those actions requested in the trial court by the complaining party. Prystash
v. State, 3 S.W.3d 522, 531–32 (Tex. Crim. App. 1999). Therefore, “[t]he doctrine of invited
error is properly thought of, not as a species of waiver, but as estoppel.” Id. at 531.
                                                18
party] to take advantage of his own wrong.” Woodall, 336 S.W.3d at 644 (quoting Prystash,

3 S.W.3d at 531).

               The invited error doctrine applies to jury charges.               Jynes v. State,

No. 01-06-00931-CR, 2007 WL 1152911, at *4 (Tex. App.—Houston [1st Dist.] Apr. 19, 2007,

no pet.) (mem. op., not designated for publication); see Willeford v. State, 72 S.W.3d 820, 823

(Tex. App.—Fort Worth 2002, pet. ref’d) (“The invited error rule in jury charges is one of long

standing.”).   The Court of Criminal Appeals has consistently held that a defendant cannot

complain about error in a court’s jury charge when the defendant requested that the allegedly

erroneous jury charge be given. See Tucker v. State, 771 S.W.2d 523, 534 (Tex. Crim. App.

1988); Livingston v. State, 739 S.W.2d 311, 341 (Tex. Crim. App. 1987); Gutierrez v. State,

659 S.W.2d 423, 424 (Tex. Crim. App. 1983); Cadd v. State, 587 S.W.2d 736, 741 (Tex. Crim.

App. 1979). “Even if the [jury] charge is later found to be erroneous, the accused can not first

invite error and then complain about it on appeal.” Tucker, 771 S.W.2d at 534.

               Here, appellant affirmatively agreed, repeatedly, to the trial court removing the

instruction on the lesser included offense from the jury charge. Thus, the doctrine of invited

error precludes appellant from seeking appellate relief based on alleged error that she induced by

affirmatively agreeing to the trial court’s action. See, e.g., Druery v. State, 225 S.W.3d 491,

505–06 (Tex. Crim. App. 2007) (applying law of invited error to claim of jury-charge error and

concluding that appellant was estopped from raising claim that failure to include instruction on

lesser included offense in jury charge amounted to fundamental error because appellant “not only

did not object to the omission of the lesser-included instruction” but “affirmatively requested,

after inquiry by the trial judge, that the lesser-included instruction not be given”). Accordingly,

we overrule appellant’s second point of error.

                                                 19
                               Ineffective Assistance of Counsel

               In her third point of error, appellant contends that her trial counsel rendered

ineffective assistance because he agreed to the trial court’s removal of the instruction for the

lesser included offense of criminally negligent homicide from the jury charge.

               To establish ineffective assistance of counsel, an appellant must demonstrate

by a preponderance of the evidence both deficient performance by counsel and prejudice

suffered by the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); Miller v. State,

548 S.W.3d 497, 499 (Tex. Crim. App. 2018). The appellant must first demonstrate that

counsel’s performance fell below an objective standard of reasonableness under prevailing

professional norms. Strickland, 466 U.S. at 687–88; Ex parte Scott, 541 S.W.3d 104, 115 (Tex.

Crim. App. 2017). The appellant must then show the existence of a reasonable probability—one

sufficient to undermine confidence in the outcome—that the result of the proceeding would have

been different absent counsel’s deficient performance.      Strickland, 466 U.S. at 694; Burch

v. State, 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). Failure to make the required showing of

either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Strickland,

466 U.S. at 700; see Perez v. State, 310 S.W.3d 890, 893 (Tex. Crim. App. 2010).

               Appellate review of counsel’s representation is highly deferential; we must

“indulge in a strong presumption that counsel’s conduct was not deficient.” Nava v. State,

415 S.W.3d 289, 307–08 (Tex. Crim. App. 2013); see Strickland, 466 U.S. at 689. To rebut that

presumption, a claim of ineffective assistance must be “firmly founded in the record,” and “the

record must affirmatively demonstrate” the meritorious nature of the claim. Menefield v. State,

363 S.W.3d 591, 592 (Tex. Crim. App. 2012); Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.

Crim. App. 2005).     Rarely will the trial record by itself be sufficient to demonstrate an

                                                20
ineffective-assistance claim. Nava, 415 S.W.3d at 308. If trial counsel has not been afforded the

opportunity to explain the reasons for his conduct, we will not find him to be deficient unless the

challenged conduct was “so outrageous that no competent attorney would have engaged in it.”

Id. (quoting Menefield, 363 S.W.3d at 593); Goodspeed, 187 S.W.3d at 392.

               As discussed in the previous point of error, the trial court interrupted its reading

of the jury charge to sua sponte raise an issue concerning the statute of limitations of criminally

negligent homicide. The evidence reflects that the collision between appellant’s Explorer and

Hand’s Buick occurred on June 17, 2012.               The record reflects that the indictment for

manslaughter in this case was returned on August 3, 2016. The parties and the court agreed that,

under the catch-all statute of limitations provision, the limitations period for criminally negligent

homicide is three years. See Tex. Code Crim. Proc. art. 12.01(7) (providing that limitations

period for “all other felonies” not specified in statute is “three years from the date of the

commission of the offense”). Therefore, the limitations period for criminally negligent homicide

had run at the time the manslaughter indictment was returned, more than four years after the date

of the collision. Accordingly, the trial court concluded that it could not instruct the jury on that

lesser included offense, and trial counsel agreed. Subsequently, counsel presented case law

seemingly confirming that position. See Gallardo, 768 S.W.2d at 879; but see State v. Yount,

853 S.W.2d 6, 8 (Tex. Crim. App. 1993) (observing that “[i]n Gallardo, the statute of limitations

was determined to have already run on the offense for which the defendant was indicted when

the indictment was presented” and distinguishing case where statute of limitations had not

expired on felony offense for which defendant was indicted). Thus, it appears from the record

that trial counsel, like the trial court, believed that the instruction on the lesser included offense



                                                 21
could not be submitted to the jury because prosecution for that offense was barred by the statute

of limitations and agreed to the removal of the instruction for that reason.

               Appellant contends that trial counsel’s agreement to the court’s removal of the

instruction from the jury charge was deficient performance for two reasons. First, she observes

that, even if counsel believed that prosecution for criminally negligent homicide was barred by

the expiration of the limitations period, a defendant can waive a limitations-barred defense. See

Ex parte Heilman, 456 S.W.3d 159, 168 (Tex. Crim. App. 2015) (recognizing that “a limitations

defense standing alone is merely a procedural ‘act of grace’ by the legislature that can be

forfeited”); Yount, 853 S.W.2d at 9 (concluding that defendant who requested that jury be

instructed on lesser included offense was estopped from attacking conviction for time-barred

lesser included offense because he “cannot benefit from the lesser included offense instruction

and then attack his conviction of that lesser included offense on limitations grounds”).

               In this case, appellant filed a motion for new trial and an amended motion for new

trial. Neither motion, however, asserted ineffective assistance of trial counsel as a ground for a

new trial. Although the record in this case provides some indication of what trial counsel’s

strategy may have been for agreeing to the removal of the instruction, the record is silent as to

the reasons underlying trial counsel’s decision not to waive the limitations-barred defense. The

record is devoid of any information about trial counsel’s reason for doing so. Thus, we cannot

discern what counsel’s strategy was or whether it was a reasonable strategy under these

circumstances. See Mata v. State, 226 S.W.3d 425, 431 (Tex. Crim. App. 2007) (“[T]he fact

remains that the appellate record is still silent as to why trial counsel failed to so object.

Therefore, the appellant has failed to rebut the presumption that trial counsel’s decision was in

some way—be it conceivable or not—reasonable.”).            The record before this Court is not

                                                 22
sufficiently developed to allow us to evaluate the purported failure of trial counsel to waive the

limitations-barred defense because counsel has not been given an opportunity to respond to this

claim of ineffectiveness. See Menefield, 363 S.W.3d at 593.

               Appellant also maintains that trial counsel’s agreement to the removal of the

jury-charge instruction on the lesser included offense constituted deficient performance because

the “lapsed” limitations period for criminally negligent homicide was “not actually a problem”

because the statute of limitations was tolled.

               Article 12.05 of the Code of Criminal Procedure provides in relevant part:


       (b)     The time during the pendency of an indictment, information or complaint
               shall not be computed in the period of limitation.

       (c)     The term, “during the pendency,” as used herein, means that period of
               time beginning with the day the indictment, information, or complaint is
               filed in a court of competent jurisdiction, and ending with the day such
               accusation is, by an order of a trial court having jurisdiction thereof,
               determined to be invalid for any reason.


Tex. Code Crim. Proc. art. 12.05(b), (c). These provisions, however, do not apply to the

manslaughter indictment in this case as it was returned only after the statute of limitations for

criminally negligent homicide had run on June 12, 2015. Thus, the manslaughter indictment

could have no tolling effect. Because the record before us reflects the limitations period for

criminally negligent homicide was not tolled by the manslaughter indictment and, therefore, had

expired, trial counsel was correct that the lesser included offense for criminally negligent

homicide could not be submitted to the jury.

               Appellant asserts in her brief that a separate indictment for intoxication

manslaughter was returned against appellant on June 5, 2013, in cause number CR2013-268 in


                                                 23
the 207th judicial district court, and that indictment tolled the statute of limitations for criminally

negligent homicide. See Hernandez v. State, 127 S.W.3d 768, 774 (Tex. Crim. App. 2004) (“[A]

prior indictment tolls the statute of limitations under Article 12.05(b) for a subsequent indictment

when both indictments allege the same conduct, same act, or same transaction.”). She points to

that intoxication-manslaughter indictment as evidence showing that trial counsel rendered

deficient performance in concluding that the statute of limitations precluded submission of a

jury-charge instruction on criminally negligent homicide.              However, the intoxication-

manslaughter indictment is not part of the appellate record in this case. A claim of ineffective

assistance must be “firmly founded in the record,” and “the record must affirmatively

demonstrate” the meritorious nature of the claim. Menefield, 363 S.W.3d at 592; Goodspeed,

187 S.W.3d at 392.

               We acknowledge that the intoxication-manslaughter indictment was attached to

appellant’s amended motion for new trial. However, that motion was overruled by operation of

law without a hearing. Post-trial motions, like a motion for new trial, “are not self-proving and

any allegations made in support of them by way of affidavit or otherwise must be offered into

evidence at a hearing.” Rouse v. State, 300 S.W.3d 754, 762 (Tex. Crim. App. 2009); see Lamb

v. State, 680 S.W.2d 11, 13 (Tex. Crim. App. 1984) (“Motions for new trial are not self-proving.

They must be supported by affidavits and the affidavits must be offered into evidence.”).

Because the evidence appellant relies on—the intoxication-manslaughter indictment—was never

offered or admitted at a hearing, we are precluded from considering such evidence on appeal.

See Rouse, 300 S.W.3d at 762; see also Jack v. State, 149 S.W.3d 119, 121 n.1 (Tex. Crim. App.

2004) (appellate courts may not consider factual assertions outside appellate record; documents



                                                  24
outside record do not “concern[ ] events or actions in the trial court and . . . cannot be considered

for the truth of the matters asserted.”).

                Appellant asks us to take judicial notice of the intoxication-manslaughter

indictment filed in CR2013-268 because our court handled an appeal in that proceeding.8 An

appellate court may, within its discretion, take judicial notice of adjudicative and legislative facts

on appeal. Tex. R. Evid. 201(d); Emerson v. State, 880 S.W.2d 759, 765 (Tex. Crim. App.

1994). Further, “an appellate court may take judicial notice of its own records in the same or

related proceedings involving same or nearly same parties.” Fletcher v. State, 214 S.W.3d 5, 7

(Tex. Crim. App. 2007). However, the Court of Criminal Appeals has cautioned that


        although an appellate court may take judicial notice of its own records in the same
        or related proceedings involving same or nearly same parties, the general rule is
        that an appellate court cannot go to the record of another case for the purpose of
        considering [evidence] found there but not shown in the record case before it.


Fletcher, 214 S.W.3d at 7 (quoting Turner v. State, 733 S.W.2d 218, 223 (Tex. Crim. App. 1987)

(internal citations and footnote omitted). An appellate court “[cannot] look to records in other

cases to supply factual deficiency in the case before it.” Turner, 733 S.W.2d at 223; accord

Magic v. State, 217 S.W.3d 66, 72 (Tex. App.—Houston [1st Dist.] 2006, no pet.). For that

reason, we decline to take judicial notice of the intoxication-manslaughter indictment outside the

appellate record of this case. See, e.g., Jones v. State, 711 S.W.2d 634, 636 (Tex. Crim. App.

        8
           In cause number CR2013-268, appellant filed a motion to suppress the results of a
blood-draw analysis that reflected that appellant’s blood-alcohol concentration was 0.14. The
trial court initially denied but subsequently granted the motion based on the decision by the
Court of Criminal Appeals in State v. Villarreal, 475 S.W.3d 784 (Tex. Crim. App. 2014). The
State appealed the trial court’s ruling, and this Court issued an opinion affirming the trial court’s
granting of appellant’s motion to suppress. See State v. Padon, No. 03-16-00532-CR,
2018 WL 6695793, at *4 (Tex. App.—Austin Dec. 20, 2018, no pet.) (mem. op., not designated
for publication).
                                                 25
1986) (even though Court of Criminal Appeals had been made aware that appellant’s prior

conviction was affirmed by court in prior opinion, court “decline[d] to review the records of

another case to find support for contentions raised in [current] appeal” and “[would] not consider

the record of that appeal”); see also Davis v. State, 227 S.W.3d 733, 737 (Tex. Crim. App. 2007)

(holding that court of appeals properly declined to take judicial notice of exhibits that were not

considered by trial court and were not part of appellate record.).

               We conclude that, on this record, appellant has failed to demonstrate deficient

performance on the part of her trial counsel.9 Thus, she has failed to establish ineffective

assistance of counsel. We overrule appellant’s third point of error.


                                       Admission of Evidence

               During trial, appellant filed a brief explaining why, in her opinion, the medical

records relating to the hospital’s lab testing, which reflected the alcohol level in her blood at the

hospital immediately after the collision, were “not reliable” and, therefore, were not admissible

under the business records hearsay exception. For reasons unclear from the record, the State

acquiesced to appellant’s attempt to exclude the medical records and “compromise[d]” by

offering only one page of appellant’s medical records, State’s Exhibit #10, because it did not

reflect the lab results. The exhibit, which appears to be a discharge summary, reflected that the

attending physician who treated appellant consulted a licensed chemical dependency counselor

“due to [appellant’s] intoxication.”


       9
          Because appellant failed to meet her burden on the first prong of Strickland concerning
deficient performance, we need not consider the requirements of the second prejudice prong. See
Lopez v. State, 343 S.W.3d 137, 144 (Tex. Crim. App. 2011); see also Williams v. State,
301 S.W.3d 675, 687 (Tex. Crim. App. 2009) (“An appellant’s failure to satisfy one prong of the
Strickland test negates a court’s need to consider the other prong.”).
                                                 26
               When the State offered the exhibit during Trooper Escamilla’s testimony,

appellant objected, noting that the record was authored on June 22, 2012, five days after the

collision, and complained, “When it’s dated and there’s no specificity that’s relating to the

incident, so it’s not relevant.” After some discussion with the parties, the trial court indicated,

“If you both agree that it’s clear from the medical records that — if you look at all of the medical

records together, that this is the doctor’s notes, then I think they’re admissible,” and stated, “The

doctor diagnosed her as being intoxicated at the time she treated her no doubt.” On questioning

from the court, appellant agreed that the excerpt was from the doctor’s notes. The trial court

implicitly overruled appellant’s relevancy objection by admitting the exhibit. In her fourth point

of error, appellant contends that the trial court erred by admitting State’s Exhibit #10 over her

relevancy objection.

               We review a trial court’s evidentiary ruling for an abuse of discretion. Jenkins,

493 S.W.3d at 607; see Dabney v. State, 492 S.W.3d 309, 316 (Tex. Crim. App. 2016)

(“[B]ecause trial courts are in the best position to decide admissibility questions, appellate courts

must review a trial court’s decision under an abuse-of-discretion standard.”). An abuse of

discretion does not occur unless the trial court acts “arbitrarily or unreasonably” or “without

reference to any guiding rules and principles.” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim.

App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)).

Further, we may not reverse the trial court’s ruling unless the determination “falls outside the

zone of reasonable disagreement.” Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App.

2016); see Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016) (“Before a reviewing

court may reverse the trial court’s decision, ‘it must find the trial court’s ruling was so clearly

wrong as to lie outside the zone within which reasonable people might disagree.’” (quoting

                                                 27
Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008))). An evidentiary ruling will be

upheld if it is correct on any theory of law applicable to the case. Henley, 493 S.W.3d at 93;

Sandoval v. State, 409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.).

               Relevant evidence is evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less probable than

it would be without the evidence. Henley, 493 S.W.3d at 83; see Tex. R. Evid. 401. To be

relevant, evidence must be both material and probative. Henley, 493 S.W.3d at 83; Miller

v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001). Evidence is material if it is “shown to be

addressed to the proof of a material proposition,” which is “any fact that is of consequence to the

determination of the action.” Henley, 493 S.W.3d at 83 (quoting Miller, 36 S.W.3d at 507).

Evidence is probative if it tends to make the existence of the fact more or less probable than it

would be without the evidence. Henley, 493 S.W.3d at 83–84; Miller, 36 S.W.3d at 507. Thus,

“proffered evidence is relevant if it has been shown to be material to a fact in issue and if it

makes that fact more probable than it would be without the evidence.” Miller, 36 S.W.3d at 507;

accord Henley, 493 S.W.3d at 83–84.

               “Evidence need not by itself prove or disprove a particular fact to be relevant; it is

sufficient if the evidence provides a small nudge toward proving or disproving some fact of

consequence.” Stewart v. State, 129 S.W.3d 93, 96 (Tex. Crim. App. 2004); accord Mendiola

v. State, 21 S.W.3d 282, 284 (Tex. Crim. App. 2000). “‘[E]vidence merely tending to affect the

probability of the truth or falsity of a fact in issue is logically relevant.’” Mendiola, 21 S.W.3d at

284 (quoting Montgomery, 810 S.W.2d at 376). Even “marginally probative” evidence should

be admitted if “it has any tendency at all, even potentially, to make a fact of consequence more

or less likely.” Fuller v. State, 829 S.W.2d 191, 198 (Tex. Crim. App. 1992), overruled on other

                                                 28
grounds by Castillo v. State, 913 S.W.2d 529 (Tex. Crim. App. 1995); see Pina v. State,

No. 03-17-00129-CR, 2018 WL 1547272, at *4 (Tex. App.—Austin Mar. 30, 2018, no pet.)

(mem. op., not designated for publication).

               “There is no purely legal test to determine whether evidence will tend to prove or

disprove a proposition—it is a test of logic and common sense.” Miller, 36 S.W.3d at 507;

accord Pina, 2018 WL 1547272, at *4. “Relevancy is not an inherent characteristic of any item

of evidence but exists as a relation between an item of evidence and a matter properly provable

in the case.” Henley, 493 S.W.3d at 84 (quoting Montgomery, 810 S.W.2d at 375). Relevancy is

determined by whether “a reasonable person, with some experience in the real world, [would]

believe that the particular piece of evidence is helpful in determining the truth or falsity” of any

fact of consequence. Montgomery, 810 S.W.2d at 376 (internal quotations omitted); accord

Pina, 2018 WL 1547272, at *4.

               The ultimate issue in this case was whether appellant recklessly caused Hand’s

death by the way she drove her Explorer. Trooper Escamilla testified that he smelled a “strong

odor of an alcoholic beverage” when he made contact with appellant and that he subsequently

discovered an open beer in her Explorer. The evidence also reflected that appellant admitted to

the trooper that she had been drinking alcohol “all day,” beginning at 12:30 p.m., while floating

on the river and then drank more alcohol at the bar and grill before she began the drive that

ended in the collision.

               Trooper Escamilla expressed that, with alcohol consumption, people “lose their

normal faculties” and “can’t perform certain functions.” Specifically, with regard to driving, the

trooper opined that alcohol consumption makes it more difficult for a person to maintain control

of a vehicle, stay in the lane of travel, and operate a vehicle around a curve. In addition,

                                                29
the medical examiner, who conducted a toxicology screen on Hand as part of the autopsy,

explained that


        any amount of alcohol taken into the body can affect your reflex time, your
        nervous system. So if you -- if you drink an – let’s say a beer or a glass of wine,
        and then you’re subjected to neurologic testing, you will show some impairment.
        At lower levels like [those reflected in Hand’s toxicology screen] there won’t be
        much impairment at all, but as you get higher up, there is significant impairment
        even if you don’t outwardly look intoxicated.


Thus, the evidence—and reasonable inferences from it—indicates that alcohol may have

been a factor in appellant’s driving that night.     See Buie v. State, No. 03-02-00280-CR,

2003 WL 21189757, at *2 (Tex. App.—Austin May 22, 2003, no pet.) (mem. op., not designated

for publication) (observing that “a person can be either reckless or intoxicated, both, or neither”

(citing Burke v. State, 28 S.W.3d 545, 548–49 (Tex. Crim. App. 2000)); see also Rubio v. State,

203 S.W.3d 448, 452 (Tex. App.—El Paso 2006, pet. ref’d) (observing that “the actions

of driving under the influence of alcohol can be used to show a conscious disregard of a

substantial risk”).

                 State’s Exhibit #10, the discharge summary from appellant’s hospital records,

indicates that the doctor who treated appellant determined that appellant was intoxicated. While

the fact that appellant had alcohol in her system was not conclusive proof that appellant drove

recklessly, the indications of intoxication—or simply alcohol consumption—“were pieces in the

evidentiary puzzle for the jury to consider” in determining whether appellant had recklessly

caused Hand’s death by the way she drove. See, e.g., Stewart, 129 S.W.3d at 96–97 (concluding

that even though intoxilyzer breath test results were not “conclusive proof” that appellant was

intoxicated at time she drove, test results were relevant evidence as they were “pieces in the


                                                30
evidentiary puzzle for the jury to consider”); San German-Reyes v. State, No. 03-15-00432-CR,

2017 WL 2229873, at *7–8 (Tex. App.—Austin May 17, 2017, no pet.) (mem. op., not

designated for publication) (concluding that, while results of sexual assault exam were not

conclusive proof that child victim had been sexually assaulted, doctor’s testimony was relevant

to witness credibility as well as investigative process). The fact that appellant had alcohol in her

system or was intoxicated had a tendency to make it more probable that appellant’s driving that

night was reckless. See Buie, 2003 WL 21189757, at *2 (holding that State may allege reckless

conduct based upon driver’s consumption of alcohol).           Thus, the evidence was relevant.

Accordingly, we conclude that the trial court did not abuse its discretion in overruling appellant’s

relevance objection and admitting the exhibit. We overrule appellant’s fourth point of error.


                                  Error in Written Judgment

               In considering appellant’s motion for rehearing, we observe that the written

judgment of conviction in this case contains non-reversible error. The judgment reflects that it

was entered on September 20, 2017, when the record demonstrates that it was entered on

September 21, 2017. This Court has authority to modify incorrect judgments when the necessary

information is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26,

27–28 (Tex. Crim. App. 1993). Accordingly, we modify the trial court’s written judgment of

conviction to reflect that the “Date Judgment Entered” was September 21, 2017.


                                         CONCLUSION

               Having concluded that the evidence is sufficient to support appellant’s conviction

for manslaughter, that the doctrine of invited error precludes appellant from complaining about

the trial court’s removal of the jury instruction for criminally negligent homicide, that appellant

                                                31
failed to establish that trial counsel rendered ineffective assistance, and that the trial court did not

abuse its discretion by admitting the excerpt from appellant’s hospital records but having found

non-reversible error in the written judgment, we modify the judgment and, as modified, affirm

the trial court’s judgment of conviction.



                                               __________________________________________
                                               Edward Smith, Justice

Before Justices Goodwin, Baker, and Smith

Modified and, as Modified, Affirmed on Motion for Rehearing

Filed: September 20, 2019

Do Not Publish




                                                  32
