                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 2-09-036-CR


LISA KIM COOK A/K/A                                                   APPELLANT
LISA K. KLOVSTAD

                                         V.

THE STATE OF TEXAS                                                          STATE


                                     ------------

        FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                    OPINION
                                     ------------

                                 I. INTRODUCTION

      Appellant Lisa Kim Cook a/k/a Lisa K. Klovstad waived her right to a jury

and pleaded guilty to intoxication manslaughter.       The indictment included a

paragraph alleging that Cook used her vehicle as a deadly weapon during the

commission of the offense. As part of her plea, Cook elected to have the trial

court resolve the deadly weapon issue at the punishment hearing. In two points,

Cook contends that the evidence is legally and factually insufficient to support the

trial court’s finding that she used her vehicle as a deadly weapon. We will affirm.
                                  II. BACKGROUND

      On the evening of May 11, 2006, at approximately 6:30 p.m., Mr. Claudio

Ochoa was mowing the front lawn of his residence in Fort Worth. Ochoa had

almost completed the task and was nearing the front curb of the lawn. Cook was

traveling north on Meadow Park Drive in her Nissan Pathfinder. Ochoa’s home

was located on the southeast corner at the intersection of Meadow Park Drive

and Whitney Drive just after a slight curve on Meadow Park Drive. As Cook

approached this curve, she took her eyes off the road and began adjusting her

CD player. Cook’s SUV ran up onto the curb into Ochoa’s lawn and drove into

Ochoa, knocking him onto the hood of her SUV. Cook continued to drive through

the front yard of Ochoa’s residence, north across Whitney Drive, and through the

lawn of another residence across the street. Cook’s SUV finally stopped after

striking an unoccupied Isuzu Rodeo parked in the driveway of that residence.

Ochoa and his lawnmower also ended up in the yard of the residence across the

street.

      After the accident, Cook got out of her car and began apologizing and

stating that she swerved off the road in an attempt to avoid another vehicle.

Ochoa’s family and other witnesses were at the scene almost immediately.

Ochoa was lying in the front yard of the residence, curled into the fetal position.

      Within minutes, Officer Dennis Russell of the White Settlement Police

Department arrived at the scene. Russell checked Ochoa’s vital signs and after

detecting no pulse or breathing, requested assistance. The White Settlement

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Fire Department arrived and managed to revive Ochoa. Ochoa was transported

to a hospital, where he later died.

      Russell stayed on the scene to complete an accident report. He requested

that Cook provide him with her driver license and insurance card for completion

of the report, at which time Cook informed Russell that those items were located

inside her purse, which was still in her vehicle. Russell requested permission to

look inside Cook’s vehicle to obtain the items, and Cook consented. Russell

went to retrieve Cook’s purse from her SUV and immediately detected a strong

odor of beer upon opening the driver’s side door. Other officers on the scene

detected the same scent on Cook.        Permission was obtained from Cook to

search her entire SUV, at which time officers located a plastic mug on the driver’s

side front floorboard and noticed the floor mats and center console were soaked

with liquid. Upon further questioning by officers, Cook eventually identified the

liquid as alcohol.

      At trial, the Reverend Stephen Martone, an eyewitness to the accident,

recalled what he saw immediately before the accident. Martone testified that he

saw Cook’s vehicle traveling north on Meadow Park. Martone observed a white

compact car turn south onto Meadow Park from Whitney Drive, at which time he

saw Cook swerve off the road. The written statement Martone provided police

immediately after the accident stated that Cook ―swerved to miss‖ the other

vehicle; but when later asked by the court, Martone clarified that the white car



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turned into its own lane and that he did not believe that Cook needed to take any

evasive action in order to avoid the other vehicle.

      James A. Moore, an accident reconstruction investigator, also testified at

trial about a report he prepared. Moore observed that there were no line-of-sight

issues that would prevent a driver traveling north on Meadow Park from noticing

the approaching curve in the road.        Based upon his measurements of the

roadways, observations at the accident scene, and damage done to the vehicles

involved, Moore calculated that Cook was traveling at approximately thirty-five to

thirty-nine miles per hour when her vehicle left the roadway and entered Ochoa’s

lawn. The posted speed limit in the residential neighborhood is thirty miles per

hour. After striking Ochoa, Cook then continued to travel in a northerly direction

for approximately 139 feet until she collided with the parked SUV. Ochoa was

carried and thrown approximately 86 feet from the initial point of impact in his

yard to his final resting place in the lawn across the street. Moore also noted that

there were no signs of braking either in the roadway, as would be indicated by

tire skid marks, or in the lawn, as would be indicated by uprooted grass. Moore

calculated that had there been another car turning from the intersection of

Meadow Park and Whitney, Cook would have been able to slide to a stop after

appropriately applying the brakes before contacting the other vehicle. But Moore

did indicate that Cook had insufficient time and distance to react to the presence

of Ochoa, considering the speed at which she was traveling.



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      Cook testified that she drank at least two large beers at a restaurant earlier

that evening, consumed another at home, then poured another into a cup to take

with her in her vehicle to pick up her granddaughter. As she was approaching

the curve on Meadow Park Drive in front of Ochoa’s residence, she averted her

eyes from the road to adjust her CD player. When she looked back up, she saw

what she initially believed to be a large black truck, but now thinks was a white

car, coming directly at her. Cook thought she might have been confused about

the type of vehicle based on either her recollection of the front grill of the vehicle

being black or the fact that her path ultimately ended when she collided with a

parked black SUV. According to Cook, she jerked her SUV to the right, entering

Ochoa’s lawn. Cook never saw Ochoa before running him over. Cook even

indicated that Ochoa placed one of his hands on the hood of her vehicle.

      Cook was arrested on suspicion of driving while intoxicated. Her blood

alcohol concentration registered at .20, more than twice the legal limit of .08,

three hours after the accident occurred. Cook admitted to drinking that evening,

but she insisted that the accident only occurred because she had to maneuver to

avoid hitting an oncoming car. At trial, Cook admitted that she believed her

intoxication was at least a cause of the death of Ochoa.

      The trial court found that Cook used her vehicle as a deadly weapon when

she committed the offense of intoxication manslaughter.         The trial court also

found true an enhancement count that Cook had a prior felony conviction, and

the court sentenced Cook to twenty years’ imprisonment. This appeal followed.

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                          III. EVIDENTIARY SUFFICIENCY

      In two points, Cook complains that the evidence is both legally and

factually insufficient to support the affirmative finding that she used her motor

vehicle as a deadly weapon when she drove into and killed Ochoa. Cook argues

she was attempting to avoid an oncoming vehicle and only swerved into Ochoa’s

yard in an evasive maneuver to avoid an alternate collision. The State contends

that the evidence supports that Cook, while intoxicated, drove her SUV in a

reckless and dangerous manner, thus causing her to veer off the road and cause

the death of Ochoa. We agree with the State.

      A.    Law on Intoxication Manslaughter and Deadly Weapon

      A person commits the offense of intoxication manslaughter if the person

(1) operates a motor vehicle in a public place, (2) is intoxicated, and (3) by

reason of that intoxication, causes the death of another by accident or mistake.

See Tex. Penal Code Ann. § 49.08(a)(1), (2) (Vernon Supp. 2010). Pursuant to

statute, intoxication manslaughter is a strict liability offense; thus, no culpable

mental state is necessary to convict a defendant of intoxication manslaughter.

See Strickland v. State, 193 S.W.3d 662, 666 n.3 (Tex. App.—Fort Worth 2006,

pet. ref’d); see also Torres v. State, 52 S.W.3d 285, 286 (Tex. App.—Corpus

Christi 2001, no pet.) (explaining that ―notwithstanding section 6.02(b), proof of

culpable mental state not required for conviction of offense under chapter 49‖)

(citing Tex. Penal Code Ann. §§ 49.08(a), 49.11 (Vernon Supp. 2001)).



                                        6
      A deadly weapon is: ―(A) a firearm or anything manifestly designed, made,

or adapted for the purpose of inflicting death or serious bodily injury; or

(B) 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) (Vernon

Supp. 2010). To determine whether the evidence supports a deadly weapon

finding in cases involving motor vehicles, we conduct a two-part analysis.

Hilburn v. State, 312 S.W.3d 169, 177 (Tex. App.—Fort Worth 2010, no pet.)

(citing Sierra v. State, 280 S.W.3d 250, 255 (Tex. Crim. App. 2009)). We first

―evaluate the manner in which the defendant used the motor vehicle during the

felony.‖   Sierra, 280 S.W.3d at 255.   We then ―consider whether, during the

felony, the motor vehicle was capable of causing death or serious bodily injury.‖

Id.   An affirmative deadly weapon finding in a prosecution for intoxication

manslaughter has a negative impact on a defendant's eligibility for community

supervision, parole, and mandatory supervision. Id. at 254 (citing Tex. Code

Crim. Proc. art. 42.12 § 3g(a)(2) (Vernon 2006); Tex. Gov’t Code Ann.

§§ 508.145 (Vernon Supp. 2007), 508.149, 508.151 (Vernon 2004); Tex. Penal

Code Ann. § 1.07(a)(17)(B) (Vernon 2003)).

      In examining the manner in which the defendant operated the vehicle, we

evaluate whether the driving was reckless or dangerous. Sierra, 280 S.W.3d at

255. We consider several factors in examining whether a defendant’s driving

was reckless or dangerous: (1) intoxication, Tyra v. State, 897 S.W.2d 796, 798–

99 (Tex. Crim. App. 1995); (2) speeding, Drichas v. State, 175 S.W.3d 795, 797

                                        7
(Tex. Crim. App. 2005); (3) disregarding traffic signs and signals, id. at 798;

(4) driving erratically, id.; Mann v. State, 13 S.W.3d 89, 91–92 (Tex. App.—Austin

2000), aff'd, 58 S.W.3d 132 (Tex. Crim. App. 2001); and (5) failure to control the

vehicle, Sierra, 280 S.W.3d at 255–56.

      B.    Legal Sufficiency

            1.     Legal Sufficiency Standard of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in order

to determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). This standard gives full play to the responsibility of the

trier of fact 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, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. The trier of fact is the sole

judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc.

Ann. art. 38.04 (Vernon 1979); Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim.

App. 2008), cert. denied, 129 S. Ct. 2075 (2009). Thus, when performing a legal

sufficiency review, we may not re-evaluate the weight and credibility of the

evidence and substitute our judgment for that of the factfinder.       Dewberry v.

State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1131

(2000).    Instead, we ―determine whether the necessary inferences are

                                         8
reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.‖ Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007). We must presume that the factfinder

resolved any conflicting inferences in favor of the prosecution and defer to that

resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W.3d at

778.

             2.    The Evidence is Legally Sufficient

       The record contains legally sufficient evidence supporting the trial court’s

finding that Cook was driving in a dangerous and reckless manner while

intoxicated and that she caused Ochoa’s death.         The evidence shows that

Cook’s blood alcohol concentration was more than two times the legal limit over

three hours after the accident occurred; that Cook was driving with an open

container of beer in her vehicle; that the road Cook was traveling on had a slight

curve at the bottom of a downhill slope; that Cook was speeding as she was

traveling on the road; that Cook was not maintaining a proper lookout when

approaching this curve because she was distracted by her CD player; and that

neither prior to, nor after, veering off the road and running into Ochoa did Cook

ever apply her brakes. Cook’s SUV only came to a rest after striking another

vehicle legally parked in a driveway across the street from where Cook initially

struck Ochoa.

       Cook’s SUV was capable of, and did, in fact, cause Ochoa’s death. Cook

collided with Ochoa, knocking him onto the hood of her SUV; then proceeded to

                                         9
carry him another 86 feet across his yard, the intersecting street, and into his

neighbor’s lawn where he finally came to a rest.              Moore, the accident

reconstruction investigator, testified that after doing a comparison between

Cook’s Nissan Pathfinder and a 44-caliber handgun, there was more than ten

times the kinetic energy generated by Cook’s SUV than the handgun; thus,

making the vehicle a deadly weapon.            And the Tarrant County Medical

Examiner’s autopsy report indicated that Ochoa died from multiple blunt trauma

after being struck by a motor vehicle.

      Viewing the evidence in the light most favorable to the prosecution, a

rational factfinder could have determined beyond a reasonable doubt that Cook

used her vehicle in a manner capable of causing death or serious bodily injury.

See Tex. Penal Code Ann. §1.07(a)(17); Sierra, 280 S.W.3d at 256 (holding

evidence of deadly weapon legally sufficient when defendant exceeded speed

limit, failed to maintain control of his SUV, and in fact caused serious bodily injury

to another). We hold that the evidence was legally sufficient to support the trial

court’s deadly weapon finding, and we overrule Cook’s first point.

      C.     Factual Sufficiency

             1.    Factual Sufficiency Standard of Review

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether the

                                         10
evidence supporting the conviction, although legally sufficient, is nevertheless so

weak that the factfinder’s determination is clearly wrong and manifestly unjust or

whether conflicting evidence so greatly outweighs the evidence supporting the

conviction that the factfinder’s determination is manifestly unjust. Steadman, 280

S.W.3d at 246; Watson, 204 S.W.3d at 414–15, 417. To reverse under the

second ground, we must determine, with some objective basis in the record, that

the great weight and preponderance of all the evidence, although legally

sufficient, contradicts the verdict.   Watson, 204 S.W.3d at 417.         Unless we

conclude that it is necessary to correct manifest injustice, we must give due

deference to the factfinder’s determinations, ―particularly those determinations

concerning the weight and credibility of the evidence.‖       Johnson v. State, 23

S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d at 246.

Evidence is always factually sufficient when it preponderates in favor of the

conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d at 417.

Both legal and factual sufficiency are measured by the elements of the crime as

defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d

234, 240 (Tex. Crim. App. 1997).

             2.    The Evidence is Factually Sufficient

      In addition to the evidence discussed above, Cook testified to her version

of what transpired and stated that another vehicle turned out directly into her lane

and that thus it was inevitable that a collision would occur, either with that vehicle

or with something else should she choose to swerve and avoid it.                Cook

                                         11
contends that ―she made a split-second decision to avoid an oncoming car

[when] she was faced with hitting an oncoming car, or swerving an[d] perhaps

colliding with something else,‖ which unfortunately in this case was Ochoa.

      Cook initially testified that she was attempting to avoid a large, black truck

after it allegedly turned into her lane. But other witnesses at the scene testified

that the other car was actually a small, white compact car. Cook herself even

seemed unsure as to whether the other vehicle was a car or truck. Additionally,

while one witness indicated in his initial statement written at the scene of the

accident that Cook’s SUV ―swerved to miss‖ another car, the same witness later

testified at trial that he did not believe Cook needed to take any evasive action to

avoid the other vehicle because the other vehicle did not turn into Cook’s lane of

traffic. But even if the witnesses’ testimony was inconsistent, the trial judge was

free to believe their trial testimony over the statements they made to the police.

See Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Sharp v.

State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Baker v. State, No. 14-08-

00047-CR, 2009 WL 838257, at *3 (Tex. App.—Houston [14th Dist.] Mar. 31,

2009, pet. dism’d as untimely filed) (mem. op., not designated for publication);

see also Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App.), cert. denied,

528 U.S. 1026 (1999) (noting that inconsistency goes to the credibility of the

witnesses and the jury or the trial court judge as factfinder is the sole judge of

that issue).



                                        12
         Furthermore, the accident reconstruction investigator indicated that Cook

took no evasive action after hitting Ochoa and did not brake at any point between

leaving the roadway and eventually colliding with the parked vehicle in the

driveway across the street. Based on the speed at which Cook was traveling and

the measurements taken by Moore, had there been another vehicle turning from

the intersection of Meadow Park and Whitney, Cook would have had sufficient

time to perceive, react, and stop prior to colliding with that vehicle, or

alternatively, to reduce her rate of speed before exiting the roadway.

         The evidence here was factually sufficient to support the affirmative finding

that the motor vehicle was used in a deadly manner. Viewing the evidence in a

neutral light, we conclude that a rational trier of fact could have found beyond a

reasonable doubt that Cook used her vehicle in a manner capable of causing

death or serious bodily injury. Sierra, 280 S.W.3d at 256. The evidence is not so

weak that the trial judge’s determination was clearly wrong or manifestly unjust.

Additionally, the conflicting evidence does not so greatly outweigh the evidence

supporting the conviction that the trial judge’s determination is manifestly unjust.

Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Watson, 204

S.W.3d at 414–15, 417.        We hold that the evidence is factually sufficient to

support the trial court’s deadly weapon finding, and we overrule Cook’s second

point.




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                            IV. CONCLUSION

     Having overruled both of Cook’s points, we affirm the trial court’s

judgment.




                                       BILL MEIER
                                       JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

PUBLISH

DELIVERED: September 9, 2010




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