Opinion filed February 21, 2019




                                        In The


        Eleventh Court of Appeals
                                     __________

                                  No. 11-17-00043-CR
                                      __________

                   SHARLON D. WILLIAMS, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 50th District Court
                             Baylor County, Texas
                          Trial Court Cause No. 5498


                     MEMORANDUM OPINION
      The jury convicted Sharlon D. Williams of failure to stop and render aid—a
second-degree felony—and assessed her punishment at confinement for a term of
twenty-five years in the Institutional Division of the Texas Department of Criminal
Justice. See TEX. TRANSP. CODE ANN. § 550.021(a), (c)(1)(A) (West Supp. 2018),
§ 550.023 (West 2011). Appellant presents three issues on appeal. Appellant
contends that (1) Appellant’s right to due process and right to a presumption of
innocence were violated when Appellant appeared before the jury in jail clothing,
(2) the trial court erred by improperly commenting on the weight of the evidence,
and (3) the evidence was insufficient to support Appellant’s conviction. We affirm.
                                  Background Facts
      Appellant, Jefferson Betts (Appellant’s husband), Kristi Lavonne Williams
Henshaw (Appellant’s daughter), and Henry Lee Henshaw (Appellant’s son-in-law)
went to the Rusty Spur, a bar in Seymour, to celebrate Kristi’s birthday. After the
bar closed, they returned to the residence where they all lived together. Forty-five
minutes later, Appellant returned to the Rusty Spur. Testifying on her own behalf,
Appellant stated that she returned to the bar to meet with the owner after the cleaning
crew finished cleaning the bar.
      Betts subsequently wanted to go look for Appellant. Kristi and Henry dropped
him off at a stop sign near the Rusty Spur. Appellant testified that, while she was
driving her father’s Suburban, Betts “jumped out in front of the Suburban” and she
hit him with the vehicle. Appellant stated that she stopped the vehicle to check on
Betts. She testified that she attempted to pick Betts up but that she was unable to do
so. Appellant left Betts lying in the street and returned home.
      Five minutes after Kristi and Henry arrived back at home after dropping off
Betts, Appellant arrived there. Appellant asked Kristi and Henry where Betts was,
and she asked them to help her find him. Appellant testified that she did not tell
them she had hit Betts with the vehicle “because [she] was freaking out.” Appellant
led Kristi and Henry straight to Betts, who was still lying in the street. Kristi called
9-1-1. EMS took Betts to the emergency room with what ended up being a massive
head injury. Betts subsequently died from this injury.




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                                       Analysis
      In Appellant’s third issue, she contends that the evidence was legally
insufficient to support her conviction for failure to stop and render aid. Appellant
does not dispute that she failed to remain at the scene of the accident but asserts that
she could not have rendered any aid if she had remained at the scene because it was
2:00 a.m. on a dimly lit street. Appellant asserts that she did everything in her power
to render aid under the circumstances in a timely manner. We disagree.
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
of the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.


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      The Texas “failure to stop and render aid” statute reads as follows:
             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.
TRANSP. § 550.021(a).        The Section 550.023 requirements, referenced in
subsection (4) above, are as follows:
            The 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 Subdivision (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 that
             treatment is necessary, or if the injured person requests the
             transportation.

                                          4
Id. § 550.023. Under these statutes, the elements for failure to stop and render aid
are that the defendant “(1) [is] a driver of a vehicle (2) involved in an accident (3)
resulting in injury or death of any person (4) [and the driver] intentionally and
knowingly (5) fails to stop and render reasonable assistance.” Goar v. State, 68
S.W.3d 269, 272 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); see Steen v.
State, 640 S.W.2d 912, 915 (Tex. Crim. App. 1982).
      In this case, there is no dispute that Appellant was the driver of a vehicle, that
she was involved in an accident, and that the accident resulted in the death of a
person.   Furthermore, there is no dispute that Appellant initially stopped at the
accident scene. Appellant was charged with violating these statutes by intentionally
or knowingly failing to remain and failing to render reasonable assistance to Betts
when it was apparent that he was in need of medical treatment. Thus, the issue is
this appeal is whether Appellant sufficiently remained at the scene in order to comply
with the requirement of rendering reasonable assistance.
      By the express terms of the statutes, a person involved in a vehicle accident
must remain at the scene until she renders reasonable assistance to the injured
person. We disagree with Appellant’s assertion that she “did everything in her
power to provide aid to her fallen husband.”         Reasonable assistance includes
transporting or making arrangements for transporting the person to a physician or
hospital for medical treatment if it is apparent that treatment is necessary. TRANSP.
§ 550.023(3). This requirement at a minimum means that the operator must remain
at the scene until emergency personnel or someone whom the driver knows is
capable of providing emergency medical assistance has arrived at the scene.
Aguilar v. Sate, 202 S.W.3d 833, 839 (Tex. App.—Waco 2006, pet. ref’d).
      Chief John Michael Griffin of the Seymour Police Department testified that
(1) a deputy sheriff’s house was fifty feet away from the scene of the accident, (2) an


                                           5
Allsup’s convenience store that was open twenty-four hours a day was 600 to 900
feet away, (3) the sheriff’s department was five blocks away, and (4) the Rusty Spur
was about 300 feet away from the scene of the accident. All of these places were
closer to the accident than Appellant’s residence. Chief Griffin testified that he
drove from the site of the accident to where Appellant lived at the time of the
accident and that it took him two minutes and forty-five seconds. Chief Griffin
further testified that Betts was in danger of being hit by another vehicle because
Betts was lying in the middle of Washington Street, which is one of the more traveled
roads in town. Officer Rick Hill of the Seymour Police Department and Deputy
Kathy Moore of the Baylor County Sheriff’s Department testified that Betts was
lying not more than fifty feet from Deputy Moore’s front porch and that her marked
police car was visible from the street.
        Even though Appellant asserts that she sought the most reliable and certain
aid under the circumstances, the State presented sufficient evidence that she failed
to provide reasonable assistance before she left the scene. As noted above, Appellant
ignored several close-by resources for seeking medical attention for Betts, while
leaving him in the street at 2:00 a.m. 1 When Appellant arrived at home, she did not
call for emergency medical assistance for Betts. See McGuire v. State, 493 S.W.3d
177, 207 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d). Instead, she persuaded
Kristi and Henry to engage in a purported search for Betts. Examining these facts
in the light most favorable to the jury’s verdict, there was legally sufficient evidence
that Appellant failed to remain at the scene or render reasonable medical assistance




        1
        As noted in Moore v. State, 145 S.W.2d 887, 888–89 (Tex. Crim. App. 1940): “Certainly decency
and common respect dictate that mutilated humans should not be allowed to lie around in the street as mute
evidence of the destruction wrought by speed.”


                                                    6
in order to meet the requirements of the “failure to render aid” statute. We overrule
Appellant’s third issue.
      In Appellant’s first issue, she contends that her rights to due process and to a
presumption of innocence were violated by her appearance before the jury in jail
clothing. At some point in the proceedings, Appellant appeared before the jury panel
in jail-issued clothing. Appellant’s trial counsel moved for a mistrial and requested
that the trial court instruct the jury to disregard Appellant’s clothing. The trial court
overruled Appellant’s motion for a mistrial and stated that making an instruction
would call attention to Appellant’s clothing. The trial court stated: “She doesn’t
look like she’s in prison garb to me. She’s in a pair of stretchy slacks and a T-shirt
and there’s nothing distinguishing her as a prisoner on what she’s wearing at the
present time.”
      If a defendant timely objects to being placed before the jury while wearing
clothing that bears an indicia of incarceration, it is the duty of the trial court, the
accused’s attorney, the State’s attorney, and the peace officers in control of the
accused to offer the accused an opportunity to wear civilian clothes. Randle v. State,
826 S.W.2d 943, 944, 946 (Tex. Crim. App. 1992). Such a compulsion would
violate the defendant’s right to a fair trial and her right to be presumed innocent. Id.
at 945. However, a defendant’s rights are violated only where the clothing in
question “bears the indicia of incarceration.” Id. at 946; Scott v. State, 80 S.W.3d
306, 307 (Tex. App.—Fort Worth 2002, no pet.). It is the extent to which the
defendant’s clothing is communicative of her status as a prisoner (and inferentially
a criminal) that determines whether or not she was denied a fair trial. See United
States v. Dawson, 563 F.2d 149, 152 (5th Cir. 1977) (holding that the jail-issued
khaki shirt and trousers did not give any indication in any way that the defendant
was in confinement and did not deny the defendant the right to a fair trial). For


                                           7
instance, in Scott v. State, the appellate court concluded that, although the jail-issued
clothes did not have an express label saying “jail” on them, a juror who saw orange
overalls marked P-5, P-6, No. 27, No. 25, would likely surmise that the defendant
was wearing jail clothing. Scott, 80 S.W.3d at 308.
      During trial, Appellant wore a pair of slacks and a T-shirt issued by the jail.
There is no evidence that this clothing bore any indicia of incarceration. According
to the trial court, Appellant did not look like she was in prison garb, and what she
wore did not distinguish her as a prisoner. Because Appellant’s clothing did not bear
any indicia of incarceration, Appellant’s rights to a fair trial and to the presumption
of innocence were not violated. We overrule Appellant’s first issue.
      In Appellant’s second issue, she contends that the trial court erred by
improperly commenting on the weight of the evidence. See TEX. CODE CRIM. PROC.
ANN. art. 38.05 (West 1979). Appellant also contends that the State tainted the jury
by directly asking the trial court for its approval of a statement made during closing
arguments. Appellant asserts that these combined errors were fundamental and
harmed Appellant’s right to a fair and impartial trial.
      During closing arguments, defense counsel stated: “The evidence was the law
requires you to remain at the scene of the accident unless you comply with that
section of the law which says that you have got to provide reasonable assistance”;
“[y]ou can’t provide medical attention . . . , but you are going to stay at the scene.
Does that make sense to you? . . . No. And that’s why the statute specifically
provides that your reasonable assistance can be accomplished by arranging for
transportation”; “[t]he law tells you that. She has to stay there unless she . . .
arrange[s] for alternate transportation, and she did”; and “[b]ut common sense also
tells you that based upon your instructions, if, in fact, she arranged for transportation
for Jeff Betts, she is innocent of failure to render aid.”


                                            8
      After trial counsel’s closing argument, the State informed the trial court that
Appellant had made a misstatement of the law to the jury. The State argued that the
statute requires the operator of the vehicle to remain at the scene of the accident
“until” she complies with the requirements of Section 550.023. Accordingly, the
State asserted that the operator has to make arrangements for transportation before
leaving the scene. The State requested that the court instruct the jury on the correct
law because counsel’s statements would probably contaminate the panel.
      After a lengthy debate about the interpretation of the applicable law, the trial
court sustained the objection and informed the jury that there may have been a
misstatement of law.      The trial court instructed the jury that “[y]ou have to
immediately stop and remain at the scene to make arrangements for transportation
or transporting. So I don’t think you can transport and remain at the scene, but you
can - -.” Appellant objected at this point and argued that the trial court had made a
comment on the weight of the evidence. The trial court responded that the court’s
statements were part of the law. The trial court instructed the jury to disregard
Appellant’s counsel’s statement that “making arrangements for transportation”
means the jury needs to find Appellant not guilty. The trial court further instructed
the jury as follows: “Because the law states, No. 1, that she is required to remain at
the scene of the accident until she complies with making arrangements.” Appellant
objected again.
      A trial court shall not comment upon the weight of the evidence or make any
remark calculated to convey to the jury its opinion of the case at any stage of the trial
before the return of the verdict. Brown v. State, 122 S.W.3d 794, 798 (Tex. Crim.
App. 2003); CRIM. PROC. § 38.05. An improper comment on the weight of the
evidence implies approval of the State’s argument, indicates disbelief in the
defense’s position, or diminishes the credibility of the defense’s approach to the


                                           9
case. Hoang v. State, 997 S.W.2d 678, 681 (Tex. App.—Texarkana 1999, no pet.).
A trial court’s comments can constitute fundamental error if the comments rise to
“such a level as to bear on the presumption of innocence or vitiate the impartiality
of the jury.” Jasper v. State, 61 S.W.3d 413, 421 (Tex. Crim. App. 2001); see Blue v.
State, 41 S.W.3d 129, 132 (Tex. Crim. App. 2000).
      However, it is improper to argue contrary to the law contained in the jury
charge. State v. Renteria, 977 S.W.2d 606, 608 (Tex. Crim. App. 1998). A trial
court may correct a misstatement or misrepresentation in the testimony or a
misstatement of the law, explain a point of law or aspect of the legal or justice
system, or clarify a point of confusion. Jasper, 61 S.W.3d at 421; Eckert v. State,
672 S.W.2d 600, 607 (Tex. App.—Austin 1984, pet. ref’d). A trial court may declare
in the jury’s presence that a statement is “not the law.” Williams v. State, 191 S.W.3d
242, 252–53 (Tex. App.—Austin 2006, no pet.). Generally, a correct statement of
the law by a trial court, even during trial, is not reversible as a comment on the
weight of the evidence. Moore v. State, 505 S.W.2d 842, 844 (Tex. Crim. App.
1974).
      Appellant’s attorney misstated the law during closing arguments when he
argued that Appellant was required to remain at the scene unless she fulfilled the
requirements of Section 550.023 and could, therefore, be acquitted if she left the
scene with the intention of making arrangements for transportation. The trial court’s
statement, “So I don’t think you can transport and remain at the scene, but you can
- -,” appears to explain to the jury that, if the operator is transporting the person to
the hospital, the operator cannot also remain at the scene. We do not know what the
trial court was going to say about what the operator could do in that situation because
counsel interrupted the court’s explanation.       The trial court’s statement—that
Appellant was required to remain at the scene until she made arrangements for


                                          10
transportation or transporting—was a correction of a misstatement of law. The trial
court properly declared that Appellant’s counsel’s statement was not a correct
statement of the law, and this was not an improper comment on the weight of the
evidence.
      Appellant also asserts that the State’s request for the trial court’s approval of
the State’s explanation of the law during closing argument further tainted the jury.
In the State’s closing arguments, the prosecutor reiterated that the defense had
misstated the law and argued: “To leave that scene and make any arrangements for
transportation to a physician or a hospital would not be in compliance with the
statute.” Appellant objected to this statement, and the trial court overruled the
objection. The State continued, “If this defendant, [Appellant], left the scene of this
accident, it really doesn’t matter what she did over on River Street or wherever else
it was. Once she left the scene, she violated the statute. Judge, is that a fair
statement?” The trial court refused to comment and instructed the jury to disregard
the State’s question to the trial court.
      Generally, an instruction to disregard cures the prejudicial effect of an
impermissible comment during jury arguments. Dinkins v. State, 894 S.W.2d 330,
357 (Tex. Crim. App. 1995) (citing McGee v. State, 774 S.W.2d 229, 238 (Tex.
Crim. App. 1989); Anderson v. State, 633 S.W.2d 851, 855 (Tex. Crim. App. 1982)).
However, a comment may be so egregious or inflammatory as to render the
instruction ineffective in curing the prejudice. Williams v. State, 417 S.W.3d 162,
172 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d); Woodall v. State, 77 S.W.3d
388, 400 (Tex. App.—Fort Worth 2002, pet. ref’d).
      The trial court did not comment on the State’s question and instructed the jury
to disregard the State’s question. From this record, we cannot conclude that the
prosecutor’s statement was so egregious or inflammatory that it was not cured by


                                           11
the trial court’s instruction to disregard. Additionally, because we found that the
trial court did not improperly comment on the weight of the evidence, the
prosecutor’s comment did not cause any harm to Appellant’s right to a fair and
impartial trial or to the presumption of innocence. We overrule Appellant’s second
issue.
                                         This Court’s Ruling
         We affirm the judgment of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


February 21, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Willson, J., and Wright, S.C.J.2

Willson, J., not participating.




         2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.


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