      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-04-00252-CR



                                Jonathon Allan Hofer, Appellant

                                                 v.

                                  The State of Texas, Appellee




   FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
            NO. 7469, HONORABLE JOE CARROLL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               After an automobile accident in which the passenger in one of the vehicles died,

appellant Jonathon Hofer was charged with intoxication manslaughter and manslaughter. See Tex.

Pen. Code Ann. §§ 19.04, 49.08(a)(2) (West 2003). The State also alleged that the truck Hofer was

driving was a deadly weapon. See id. § 1.07(a)(17)(B) (West Supp. 2005); see also Tex. Code Crim.

Proc. Ann. art. 42.12, § 3g(a)(2) (West Supp. 2005); Tex. Gov’t Code Ann. § 508.145(d) (West

Supp. 2005); Mann v. State, 58 S.W.3d 132, 132 n.1 (Tex. Crim. App. 2001). After a jury found

Hofer guilty of both charges and found that his truck was used as a deadly weapon, the district court

entered a judgment of guilty for intoxication manslaughter with an affirmative finding that a deadly

weapon was used. After a punishment hearing, the district court sentenced Hofer to twelve years’

confinement. See Tex. Pen. Code Ann. § 12.33 (West 2003). The district court entered no judgment

on the manslaughter charge and assessed no punishment.
                Hofer brings seven issues on appeal, arguing that (1) he was convicted in violation

of constitutional prohibitions on double jeopardy; (2) the evidence is factually and (3) legally

insufficient to support a conviction for intoxication manslaughter; (4) the trial court abused its

discretion in admitting hearsay statements of Hofer’s wife as excited utterances; (5) Hofer was

entitled to pre-trial production of the State’s recording of a telephone call between his wife and the

district attorney’s office; (6) the trial court erred in denying his motion for new trial after the State

offered testimony about that telephone conversation; and (7) there was insufficient evidence to

support a deadly-weapon finding.

                For the reasons stated below, we will affirm the judgment of the district court.


                                          BACKGROUND

                Because Hofer challenges the legal and factual sufficiency of the evidence among his

appellate issues, we begin with a review of the record.


The accident

                On May 20, 2003, about 5:30 p.m., Kyle Rutledge was driving his employer’s van

north on U.S. Highway 183 toward Lampasas with his brother, Lee, in the front passenger seat. Kyle

Rutledge remembered seeing a truck, later identified as Hofer’s truck, in the outer northbound lane

but traveling southbound.1 Kyle Rutledge thought that the truck might have been moving onto the

shoulder to turn into a nearby driveway; to give it room, he moved to the inside northbound lane.


        1
         Evidence in the record establishes that the portion of Highway 183 at issue here runs in two
lanes southbound and two lanes northbound. We will refer to the two lanes of traffic running each
direction as the inner or outer lane, and each pair of lanes as the northbound or southbound lanes.

                                                   2
Almost immediately, the truck swerved to the inner lane. Kyle Rutledge then attempted to avoid the

truck by swerving left, but the truck struck the front of the van on the passenger side. The van

skidded after the impact. As soon as it came to a stop, Kyle Rutledge jumped out, went around the

front of the van, and tried to open the passenger door to get his brother out of the van. He could not

open the door; he could only reach through the window. From outside the van, he could see his

brother’s legs pinned inside, keeping him from being able to move. Kyle Rutledge then saw fire

around the front of the rear passenger tire. He went to the back doors of the van to retrieve a fire

extinguisher, but those doors would not open. He returned to his brother and unsuccessfully tried

to pull him out through the window. A bystander attempted to use his truck to pull the van away

from the fire but failed to do so before the van was engulfed in flames with Lee Rutledge still inside.

               Kyle Rutledge was taken from the van to an ambulance and sat in the ambulance for

a few minutes, waiting to depart for the hospital. From the ambulance, he watched the van burn

beyond recognition, with his brother inside.


Events leading up to the accident

               On May 20, Heather Wiggins was working in Lampasas as a clerk at Tobacco Island,

a drive-through and walk-in cigarette retail store. She testified that about 4:30 p.m. Hofer drove up

in a Dodge extended-cab truck to the window where Wiggins was working.2 Two children were in

the back seat in safety seats. At first, Hofer fumbled around, looking for his cigarettes. When he




       2
         She described the truck as bronze or gold. Although the truck was actually gray, the State
introduced into evidence Hofer’s credit card receipt from Tobacco Island to corroborate Wiggins’s
testimony.

                                                  3
found them, he held the pack up, showing Wiggins the brand he desired. She got him a pack of that

brand and told him the price. He then told her that he wanted a carton, not a pack. She got the

carton, and Hofer then handed her his credit card. During this time, he was continually talking,

mostly about hunting and fishing. While she was running his credit card, she attended to walk-in

customers but noticed that Hofer was writing in his checkbook. When she returned to the window

to return his credit card and to hand Hofer his credit card receipt to sign, she noticed that he was still

talking, apparently to himself. He handed her a check for the amount of the carton of cigarettes. She

asked Hofer if he wanted another carton; he looked confused and asked her how she had gotten his

credit card. She did not respond but just looked at him. According to Wiggins, Hofer then said,

“okay” and signed the credit card receipt.

                Wiggins did not see any alcoholic beverages in the truck and did not notice any smell

that would allow her to conclude that Hofer had been drinking. However, she found his behavior

unusual, describing him as being “all over the place.” After Hofer left, Wiggins consulted with both

her supervisor and some police officers who were patrolling a nearby parking lot to see if she ought

to report the incident but ultimately did not make any kind of report because she had not noticed any

evidence of alcohol.3

                Bill Edminston, an insurance agent, testified that he was driving south through

Lampasas around 6:00 p.m. on May 20 on his way to Georgetown. While southbound on Highway

183, he saw an unusual cloud of dust on the right side of the road at the driveway for a cedar lumber


        3
          Wiggins testified that she had consulted her supervisor about a drive-through customer’s
behavior on only one other occasion, when that customer’s vehicle ran into the Tobacco Island
building.

                                                    4
yard. As the dust cleared, he saw Hofer’s gray Dodge pickup truck veer from the shoulder of the

southbound side of the road into oncoming traffic in the northbound lanes. It returned to the

southbound side for a short while, but it moved again to the northbound lanes as it reached the top

of a hill. Once again, the truck swerved to the southbound lanes as it descended the hill and went

completely off the road. The truck then “whipped back on” the road and moved to the outer lane on

the northbound side “for a good ways.” At that point, Edminston saw a white van driving north on

Highway 183 in the outer lane, so that both the gray Dodge and the white van were in the same lane

traveling toward each other. The van attempted to move into the inner northbound lane, as did the

truck. The two vehicles then collided.

               Edminston further testified that he stopped his vehicle immediately after the collision,

instructed his wife to call 911, and went over to the van. Kyle Rutledge had gotten out of the van

and was calling for help for his brother, who was still inside. Edminston approached the van and

saw that the passenger door could not open. After unsuccessfully searching in his own vehicle for

a crowbar to pry the passenger door open, he returned to the van and went to the driver’s door, which

was partially open. He yanked on the door but noticed flames near the opening to the gas tank. He

then backed away from the van and told others who had gathered around the van about the fire. The

van was soon engulfed in intense flame. While at the scene, Edminston noticed Hofer nearby,

having difficulty standing.4




       4
         The substance of the testimony of two other witnesses—Joseph Bryan and Tylene
Edminston, Edminston’s wife—largely corroborated Edminston’s description of Hofer’s driving.


                                                  5
                  Victor Hansard was also driving south from Lampasas on Highway 183. His

testimony recounted details similar to those Edminston gave concerning Hofer’s driving pattern.

After the accident, he stopped and went over to the van to try to help. Kyle Rutledge asked for a

crowbar; Hansard returned to his vehicle and retrieved a tire iron. Before he could return to the van,

it caught fire.


Events immediately after the accident

                  Trooper James Ross Behrens of the Texas Department of Public Safety (DPS)

testified that he was called to the scene of the accident by emergency dispatch. Upon his arrival, he

saw Hofer’s damaged truck and the burned van. Behrens took photographs of the scene and the skid

marks left on the pavement, and he painted the skid marks so that he would be able to identify them

later when he had time to do a more complete investigation.5 He also took measurements and drew

a diagram. Behrens’s later study of the skid marks indicated that Kyle Rutledge attempted to avoid

the accident by moving to the northbound inside lane and then a little over the center stripe of the

road. Behrens found no skid marks from Hofer’s truck.

                  Behrens conducted an inventory of the truck and the van. In a map compartment on

the driver’s door of Hofer’s truck, Behrens found two prescription bottles. In the first, labeled for

Hofer, Behrens found five different types of pills. In the second, labeled for Hofer’s wife, Sandra

Hofer,6 he found three different types of pills. Behrens confiscated the bottles and their contents.

        5
         While he was painting the skid marks, a justice of the peace arrived and pronounced Lee
Rutledge dead.
        6
          Witnesses refer to her both as Sandra Workman, her maiden name, and Sandra Hofer. We
will refer to appellant as Hofer and his wife as Sandra Hofer.

                                                  6
After then interviewing various witnesses to the accident, Behrens suspected that Hofer may have

been driving under the influence of drugs, and he notified DPS to send a trooper to Scott & White

Hospital in Temple, where Hofer was being treated, to take a blood sample from Hofer.

                Behrens then drove to Rollins-Brook Hospital in Lampasas, which was treating one

of Hofer’s children, to interview more witnesses, including Sandra Hofer.7 Behrens testified that

Sandra Hofer told him that she had not been present at the accident but that she had spoken with

Hofer on the telephone about twenty minutes before, while he was at a car wash in Lampasas. He

also stated that Sandra Hofer told him that Hofer sounded drunk on the phone, that she told him he

should not be driving, and that Hofer had been prescribed “some strong medication.” He further

reported that Sandra Hofer stated that Hofer had been taking the medication for about a week and

that he acted drunk when taking the medication and could not sleep very well while he was taking

it, but that she believed that Hofer had stopped taking the medication about a day before the accident.

                Melissa Hernandez, a paramedic, was dispatched to Lampasas to respond to the

accident. She testified that she arrived around 6:00 p.m. and treated Hofer while he was transported

to the Lampasas airport for an emergency flight to the hospital. He was alert enough to be able to

identify himself, but he was not able to identify the date, his birth date, or the President of the United

States. Hernandez testified that she spoke to Sandra Hofer and was told that Hofer was taking

Xanax, Paxil, Vicodin, and Valium. Hernandez did not give him any other medication, but she

administered fluid intravenously. While in transport, he seemed drowsy but also uncooperative; he


        7
            Hofer objected to Behren’s testimony concerning Sandra Hofer’s statements at the
Lampasas hospital. We will analyze in more detail the court’s voir dire of Behrens and the substance
of his testimony when we address Hofer’s related appellate issue.

                                                    7
was agitated, tried to remove his oxygen mask, and attempted to get off the stretcher. She further

testified that his behavior could be consistent with that of a person who had suffered head injury, a

concussion, or was intoxicated from drugs.

                Another paramedic, Kathy Montgomery, testified that she was the first paramedic to

arrive on the scene of the accident. As part of her job, she has a list of routine questions to ask when

a patient has an injury to clarify treatment procedures; thus, she contacted Sandra Hofer by telephone

to gather that information. As she recalled, Sandra Hofer reported that Hofer was taking Vicodin,

Paxil, Zoloft, and Valium. Sandra Hofer seemed upset when Montgomery told her about the

accident. A short time later, Sandra Hofer arrived at the scene, still appearing upset. At that point,

she told Montgomery that Hofer’s doctor had instructed him not to drive while taking his

medication.

                Bruce James, another DPS trooper, testified that he was sent by DPS communications

in Lampasas to Scott & White Hospital to obtain a blood sample from Hofer. Upon arrival at the

hospital, he gave a DPS blood sample container to a nurse, who drew Hofer’s blood. He then

delivered the sample to Behrens.

                Dr. John Streitman treated Hofer at Scott & White Hospital. At trial, Streitman

reviewed Hofer’s medical records and testified about the medical treatment Hofer received. Upon

admission to the hospital, Hofer had reported that he was taking Xanax, Valium, Paxil, and Vicodin.

Hofer did not have a head injury but complained of right hip pain, left elbow pain, and left hand pain.

Around 7:30 p.m., Hofer was treated with several pain medications—Fentanyl, a narcotic, Versed,

a sedative, and Etimidate, for nausea. Fentanyl is a type of opiate, the other drugs that were given



                                                   8
to Hofer by the hospital are benzodiazepines, and each of these drugs could affect the central nervous

system. According to Streitman, Hofer appeared drowsy yet agitated, but his behavior could have

been the result of the intoxication or a normal reaction to the accident. Also around 7:30 p.m., a

urine drug screen was performed, which resulted in positive tests for opiates, benzodiazepines, and

THC, a chemical derivative of marihuana. A more extensive analysis of the urine, conducted later,

revealed that none of the medicines administered by the hospital could be linked to those that

appeared in the urine.

                Edwardo Padilla, a DPS forensic chemist, testified that he received Hofer’s blood

sample and conducted tests on it for alcohol and for various drugs.8 He noted that the blood had

been drawn at about 9:15 p.m., approximately four hours after the accident. He detected no alcohol

but identified five drugs in the blood sample—diazepam (Valium), nordiazepam (a metabolite, or

breakdown product, of diazepam), alprazolam (Xanax), promethazine, and midazolam (Versed, an

anaesthetic commonly used in hospitals). He believed it most likely that the midazolam was given

to Hofer while at the hospital; however, he testified that he could not tell from the data he received

whether the other drugs were ingested before or after the accident. Diazepam, nordiazepam, and

alprazolam, all present in therapeutic quantities,9 could cause light-headedness, drowsiness, and

dizziness, although the actual effects could vary from person to person. When prescribed, each of

these medications has a warning attached to the bottle cautioning that one should avoid driving when



       8
           Padilla did not test the blood for THC.
       9
         Padilla testified that “therapeutic quantities” of drugs meant that the amount in the blood
sample indicated that it was an amount calculated to have the effect a prescribing physician would
have intended.

                                                     9
using the medication. While Padilla could not state that the amounts detected would necessarily

cause impairment, he testified that even therapeutic amounts could cause a significant impairment

of a person’s ability to drive.


Defense witnesses

                In contradiction to earlier testimony by others, Sandra Hofer testified that, shortly

before the accident, she spoke with Hofer by telephone when he was at a car wash facility.

According to Sandra Hofer, they discussed Hofer’s decision the day before to stop taking his

prescribed medication because he was not able to sleep well and because it caused him to be dizzy

and disoriented. In addition, Sandra Hofer stated that Hofer sounded drunk when he was taking his

medication and that he often appeared distracted even when not on medication.

                Sandra Hofer remembered being notified by telephone about the accident but denied

listing Hofer’s medications to the caller. Immediately after the call, she drove to the scene of the

accident. She was upset and distraught. She remembered talking to Hernandez at the scene but also

denied that she listed Hofer’s medication for the paramedic. In addition, when she spoke with

Behrens at the hospital, she told him that Hofer had stopped taking his medication, and she denied

telling him that Hofer had sounded drunk on the telephone. Finally, Sandra Hofer claimed that some

of the medications found in the truck belonged to her, that she had left them in the truck after a

recent trip to Virginia to see Hofer’s mother and stepfather, Geneva and Harlan Barr, and that she

did not know how Hofer would have had evidence of marihuana use in his system.

                Geneva Barr stated that she had spoken with Hofer by telephone immediately before

the accident and that he “sounded like Jonathon, . . . like he was fine.” She explained that Hofer had

                                                 10
been hyperactive since he was a child and that, when in conversation, he often seems distracted and

unfocused.

                Harlan Barr also testified that Hofer had been hyperactive and easily distracted since

he was a child. He further testified that Hofer had been having problems with his truck for at least

six months before the accident—that it was difficult to drive because it would pull severely to the

left on some occasions or to the right on others. For example, the Hofers had traveled to Virginia

at the end of December 2002. Hofer had complained about how his truck was handling on that trip.

Harlan Barr and Hofer took the truck to a mechanic, who replaced the bearings and did other work

to address the problems. As another example, he testified that he and Geneva Barr stayed with

Hofer’s children when Hofer and Sandra Hofer went on their honeymoon at the end of April 2003.

He drove the truck to do some errands and noticed that it was difficult to handle and that it still

pulled severely to the left. He crossed the median line several times and decided it was reckless to

drive. After using the truck for one errand, he did not use the truck again. Hofer took the truck in

for repairs soon after he returned from his honeymoon. All together, Harlan Barr thought that Hofer

had to have the truck repaired five times in response to these problems.10

                Finally, Dr. Barlow Smith, a forensic psychiatrist, testified on Hofer’s behalf. Smith

reviewed the laboratory reports from the hospital and from DPS. He testified that the reports showed

that Hofer had therapeutic amounts of his prescribed medications in his blood. In his opinion, a

healthy adult would not have adverse reactions to any of the medications if ingested in therapeutic

amounts. Rather, dizziness and disorientation would normally result in patients such as the elderly,


       10
            Repair records supporting this testimony were entered into evidence.

                                                 11
those who had some physical ailment, or those who were not physically fit. He further believed that

some of the laboratory results might have indicated the presence of medicines given to Hofer at the

hospital and not those taken before the accident. Further, he stated that it was difficult to tell from

the test results how long the medicines had been in Hofer’s system. Finally, he testified that the

positive THC result was not conclusive; the use of several prescribed narcotics or even ibuprofen

can result in an initial positive test for THC. Standard practice to confirm the presence of THC

would involve further tests, but he could not tell from the hospital coding on the test results whether

such further testing had been done in Hofer’s case.


                                           DISCUSSION

Double jeopardy

               In his first issue, Hofer argues that he was convicted in violation of the United States

and Texas constitutions because the State proceeded to trial on charges of both intoxication

manslaughter and manslaughter and because the jury returned a verdict of guilty on both counts. See

U.S. Const. amend. V; Tex. Const. art I, § 14.

               The prohibition against double jeopardy is found in the Fifth Amendment to the

United States Constitution. A similar provision is set forth in article I, section 14 of the Texas

Constitution. The Fifth Amendment prohibition against double jeopardy is fully applicable to the

States through the Fourteenth Amendment to the United States Constitution. See Benton v.

Maryland, 395 U.S. 784, 787 (1969). Hofer does not argue that the Texas provision affords any

greater protection in this case. Accordingly, we will conduct our analysis under the federal

constitution only. See McDuff v. State, 943 S.W.2d 517, 523 (Tex. App.—Austin 1997, pet. ref’d).

                                                  12
                When multiple offenses are prosecuted at a single trial, the Double Jeopardy Clause

“prevents the sentencing court from prescribing greater punishment than the legislature intended.”

Missouri v. Hunter, 459 U.S. 359, 366 (1983). A defendant suffers multiple punishments in

violation of the Double Jeopardy Clause when he is convicted of more offenses than the legislature

intended. Ball v. United States, 470 U.S. 856, 861 (1985); Saenz v. State, 166 S.W.3d 270, 272

(Tex. Crim. App. 2005). Conviction of, and not prosecution for, multiple offenses violates the

Double Jeopardy Clause. Ball, 470 U.S. at 865. If the trial court is satisfied that there is sufficient

proof to go to the jury on both counts, it should instruct the jury as to the elements of each offense.

Id. Should the jury return guilty verdicts for each count, however, the trial court should enter

judgment on only one of the statutory offenses. Id.

                Manslaughter and intoxication manslaughter are the same offense for double-jeopardy

purposes when they involve the same victim, such as in this case, and conviction for both would

violate the Double Jeopardy Clause. Ervin v. State, 991 S.W.2d 804, 817 (Tex. Crim. App. 1999).

It is clear from the record in this case that, although the jury returned guilty verdicts against Hofer

for both manslaughter and intoxication manslaughter, the trial court entered judgment only on the

offense of intoxication manslaughter. We find no double-jeopardy violation. See id. We overrule

Hofer’s first issue.


Legal and factual sufficiency

                In his second issue, Hofer argues that the evidence is factually insufficient to support

a conviction for intoxication manslaughter because the evidence in the record “is not inconsistent

with the alternative hypothesis” he offered at trial—that his erratic driving pattern was the result of

                                                  13
mechanical problems with his truck rather than his alleged intoxication. See Tex. Pen. Code Ann.

§ 49.01(2)(A) (West 2003) (“intoxicated” means not having normal use of mental or physical

faculties by reason of introduction of alcohol, controlled substance, drug, dangerous drug,

combination of two or more of those substances, or any other substance into body). When there is

a challenge to the sufficiency of the evidence to sustain a criminal conviction, the question presented

is whether a rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). In a factual

sufficiency review, we consider all the evidence equally, including the testimony of defense

witnesses and the existence of alternative hypotheses. Orona v. State, 836 S.W.2d 319, 321 (Tex.

App.—Austin 1992, no pet.). We consider all the evidence, rightly or wrongly admitted. See

Camarillo v. State, 82 S.W.3d 529, 537 (Tex. App.—Austin 2002, no pet.). Although due deference

still must be accorded the fact-finder’s determinations, particularly those concerning the weight and

credibility of the evidence, we may disagree with the result in order to prevent a manifest injustice.

Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000). We will deem the evidence factually

insufficient to sustain the conviction if the proof of guilt is too weak or the contrary evidence is too

strong to support a finding of guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484-85; see

Johnson, 23 S.W.3d at 11.

                In support of his argument that the evidence is consistent with his trial theory, Hofer

points to Wiggins’s testimony that her description of his erratic behavior concerned how he acted,

not his driving; Edminston’s testimony that Hofer was not speeding; Harlan Barr’s testimony

concerning his experience of mechanical problems with Hofer’s truck; repair records entered into



                                                  14
evidence; Padilla’s findings that the amounts of medications found in Hofer’s blood sample were

of therapeutic amounts and his testimony that he could not determine whether those medications had

been ingested before the accident or administered by medical personnel afterwards; and Smith’s

testimony concerning the medications, the results of the blood tests, and THC false positive test

results. However, this evidence does not disprove the allegation that Hofer had ingested the

medications before the accident, only that they could have been introduced into his system after the

accident. In addition, the record contains extensive evidence of erratic behavior and driving

patterns—Wiggins’s testimony about his behavior when buying cigarettes, the testimony of Kyle

Rutledge, Edminston, Joseph Bryan, Tylene Edminston, and Hansard concerning Hofer’s driving

pattern immediately before the accident, and Behrens’s analysis of the skid marks, which left

unanswered whether Hofer attempted to avoid the accident. Behrens also testified that he discovered

in Hofer’s truck medications that later were present in Hofer’s bloodwork. He further testified that

Sandra Hofer told him that Hofer sounded drunk when she spoke with him over the telephone before

the accident, that she told Hofer that he should not be driving, and that Hofer had been taking strong

medication that made him seem drunk. The record also shows that Sandra Hofer had told

paramedics that Hofer was taking those medications when queried at the scene and at the hospital.

Finally, Padilla testified that even therapeutic amounts of diazepam, nordiazepam, and alprazolam,

all of which were found in Hofer’s blood sample after the accident, could cause light-headedness,

drowsiness, and dizziness, and could also impair a person’s ability to drive.

               When we consider the evidence as a whole, we conclude that the jury was presented

with evidence to support two theories of the cause of the accident—that Hofer had mechanical



                                                 15
problems with Hofer’s truck or that Hofer was intoxicated as a result of taking prescription

medications. Giving due deference to the jury’s findings, the proof of guilt is not too weak nor is

the contrary evidence too strong to support a finding of guilt beyond a reasonable doubt. See Zuniga,

144 S.W.3d at 484-85. We overrule Hofer’s second issue.

                In his third issue, Hofer argues that the evidence is legally insufficient to support a

conviction for intoxication manslaughter because the record only supports the proposition that he

had “therapeutic” amounts of medications in his system, amounts too low to cause him to lose the

normal use of his mental or physical faculties. See Tex. Pen. Code Ann. § 49.01(2)(A). When there

is a challenge to the legal sufficiency of the evidence to sustain a criminal conviction, the question

presented is whether a rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324 (1979); Vodochodsky v. State,

158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most

favorable to the verdict, assume that the trier of fact resolved conflicts in the testimony, weigh the

evidence, and draw reasonable inferences in a manner that supports the verdict. Griffin, 614 S.W.2d

155, 159 (Tex. Crim. App. 1981) (citing Jackson, 443 U.S. at 318-19). It is not necessary that every

fact point directly and independently to the defendant’s guilt; it is enough if the conclusion is

warranted by the combined and cumulative force of all the incriminating circumstances. Johnson

v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). We consider even erroneously admitted

evidence. Id.

                Padilla’s testimony established that therapeutic amounts of diazepam, nordiazepam,

and alprazolam could cause light-headedness, drowsiness, and dizziness, and could also impair a



                                                  16
person’s ability to drive. Each of those medications was present in Hofer’s blood sample after the

accident. In addition, the record contained much evidence, already reviewed, of Hofer’s erratic

behavior and driving patterns, which the jury could have considered in finding that Hofer was

intoxicated. Behrens also testified that Sandra Hofer told him that Hofer sounded drunk when she

spoke with him over the telephone before the accident, that she told him that he should not be

driving, and that he had been taking strong medication that made him seem drunk. Although Smith

testified that therapeutic levels of the medications would not normally cause adverse reactions in

healthy adults, we find that the weight of the evidence supports the conclusion that, when we review

the evidence in a light most favorable to the verdict, the ingestion of therapeutic amounts of the

medications found could cause Hofer to be intoxicated. We overrule Hofer’s third issue.


Evidentiary issues

               In his fourth issue, Hofer asserts that the district court violated the hearsay rule and

article 38.22 of the code of criminal procedure in permitting Behrens to testify about Sandra Hofer’s

statements made to Behrens at the hospital.11 The district court allowed Behrens to testify about

these statements as excited utterances and as statements against interest after conducting a voir dire

examination of Behrens. See Tex. R. Evid. 803(2), (24).




       11
           As noted above, Behrens testified that Sandra Hofer stated to him, in response to his
questions, that Hofer sounded drunk on the phone before the accident, that she told Hofer not to
drive, and that Hofer had been prescribed “some strong medication.” Behrens further reported that
Sandra Hofer said that Hofer had been taking the medication for about a week and that he acted
drunk and could not sleep very well while he was taking it. She also had told him that Hofer had
stopped taking his medication about a day before the accident.


                                                 17
               We begin with Hofer’s argument that permitting Behrens to testify about Sandra

Hofer’s statements to him violated article 38.22 of the code of criminal procedure. See Tex. Code

Crim. Proc. Ann. art. 38.22 (West 2005). We first note that Hofer dedicates one sentence in his brief

to this contention, cites to no authority, and presents no argument. Hofer has inadequately briefed

this assertion. See McDuff v. State, 939 S.W.2d 607, 613 (Tex. Crim. App. 1997); Perez v. State,

113 S.W.3d 819, 837 (Tex. App.—Austin 2003, pet. ref’d); Moon v. State, 44 S.W.3d 589, 593 (Tex.

App.—Fort Worth 2001, pet. ref’d); see also Gallegos v. State, 76 S.W.3d 224, 228 (Tex.

App.—Dallas 2002, pet. ref’d); Turner v. State, 4 S.W.3d 74, 81 (Tex. App.—Waco 1999, no pet.).

In any event, and assuming that article 38.22 could bar the use against Hofer of Sandra Hofer’s

statements, Hofer makes no argument that Sandra Hofer was in custody when Behrens spoke with

her at the hospital, and nothing in the record supports a view otherwise. See Tex. Code Crim. Proc.

Ann. art. 38.22, § 2; Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996); Stone v. State,

583 S.W.2d 410, 413 (Tex. Crim. App. 1979). We therefore reject Hofer’s article 38.22 argument.

               We next turn to Hofer’s hearsay argument. We review the district court’s admission

of hearsay statements for an abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim.

App. 2003). An abuse of discretion occurs “only when the trial judge’s decision was so clearly

wrong as to lie outside that zone within which reasonable persons might disagree.” Id. (quoting

Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992)). A violation of evidentiary rules that

results in the erroneous admission of evidence is non-constitutional error. Tex. R. App. P. 44.2(b);

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998); King v. State, 953 S.W.2d 266, 271

(Tex. Crim. App. 1997); Tate v. State, 988 S.W.2d 887, 890 (Tex. App.—Austin 1999, pet. ref’d).



                                                 18
We disregard nonconstitutional error unless it affects a substantial right. Tex. R. App. P. 44.2(b);

Johnson v. State, 43 S.W.3d 1, 4 (Tex. Crim. App. 2001). A substantial right is affected when the

error had a substantial and injurious effect or influence in determining the jury’s verdict. King, 953

S.W.3d at 271 (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). A criminal conviction

should not be overturned for nonconstitutional error if the appellate court, upon examining the record

as a whole, has fair assurance that the error did not influence the jury, or had but slight effect. Cobb

v. State, 85 S.W.3d 258, 272 (Tex. Crim. App. 2002); Johnson, 967 S.W.2d at 417. Moreover, the

improper admission of evidence does not constitute reversible error if the same facts are proved by

other properly admitted evidence. See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999)

(holding that any error in admission of hearsay testimony was harmless in light of other properly

admitted evidence proving same fact).

                In this case, Behrens testified that Sandra Hofer told him that Hofer sounded drunk

on the phone, that she told him he should not be driving, and that Hofer had been prescribed “some

strong medication.” He further testified that Sandra Hofer stated that Hofer had been taking the

medication for about a week and that he acted drunk when taking the medication and could not sleep

very well while he was taking it, but that she believed that Hofer had stopped taking the medication

about a day before the accident. When we consider the record as whole, including Wiggins’s

testimony concerning Hofer’s behavior at Tobacco Island, the many accounts of his driving pattern,

the discovery of multiple medications in his truck, and the positive tests for those medications in his

bloodstream, we have a fair assurance that the testimony did not influence the jury or had but slight

effect. See Cobb, 85 S.W.3d at 272; Johnson, 967 S.W.2d at 417. Assuming without deciding that



                                                  19
the district court erred in admitting Sandra Hofer’s hearsay statements, we find any such error

harmless. We overrule Hofer’s fourth issue.


The audiotape

                In his fifth issue, Hofer argues that the State violated his constitutional right to

disclosure of evidence by failing to produce evidence, an audiotape of a discussion between Sandra

Hofer and the County and District Attorney, that would have been favorable to him or would have

had great weight with the jury. In his sixth issue, Hofer asserts the district court abused its discretion

in denying his motion for mistrial when the State elicited testimony about the existence of that

audiotape. We will consider both issues together.

                Sandra Hofer testified that she had spoken with Hofer on the phone before the

accident. At that time, she testified, Hofer told her he had not been taking his medication. On cross-

examination, she testified that she had called the County and District Attorney, Larry Allison, at

some point after the accident to inquire whether charges were going to be filed against her husband

as a result of the accident. The following exchange then occurred:


        Q: And during that conversation, did you relate any drug use by Jonathon [Hofer]
           during that conversation?

        A: I’m not sure.

        Q: You’re not sure?

        A: No, sir.

        Q: Could it have been that you told Mr. Allison that on repeated occasions Jonathon
           had abused drugs?



                                                   20
       A: I have no idea.

       Q: Could it be during that conversation that you told Mr. Allison that Jonathon used
          marijuana on a regular basis?

       A: I don’t remember these conversations.

       Q: Could it be that you told Mr. Allison that Jonathon had asked you to get
          prescriptions filled for him to use?

       A: No, sir.

       Q: Could it be that you told Mr. Allison that Jonathon was addicted to medications?

       A: I do not remember.

       Q: So those conversations could have occurred, you just don’t remember them?

       A: No. I was under a lot of pressure myself, . . .


The State briefly returned to this topic at the end of its cross-examination of Sandra Hofer:


       Q: Are you aware as to whether or not there was a recording made of that
          conversation you had with Mr. Allison?

       A: No, sir.

       Q: Do you think you would be able to recognize your voice on it?

       A: I don’t know.


Hofer then conducted a voir dire of John Greenwood, the prosecuting attorney, who testified that an

audiotape of Sandra Hofer’s conversation with Allison existed and that he knew of its existence

when Hofer filed his motion for discovery. Greenwood had subpoenaed Sandra Hofer to testify but

thought that she would be protected by spousal privilege and, thus, did not expect to be able to



                                                21
compel her testimony. Instead, he anticipated that she would testify for the defense, and, although

knowledge of the tape might have affected a defense decision to have Sandra Hofer testify, he

reserved the tape to use as rebuttal evidence if “she was going to give false answers.” After

Greenwood’s voir dire and after requesting the jury to be instructed to disregard the State’s questions

concerning the audiotape, Hofer moved for a mistrial, which the district court denied.

               Prosecutorial suppression of evidence favorable to a criminal defendant violates due

process when the defendant requests the evidence and such evidence is material either to guilt or to

punishment, regardless of the good faith or bad faith of the prosecution. Butler v. State, 736 S.W.2d

668, 670 (Tex. Crim. App. 1987) (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)). The State has

a continuing burden of disclosure once a motion for discovery has been granted. Crane v. State, 786

S.W.2d 338, 348 (Tex. Crim. App. 1990), cert. denied, 506 U.S. 1055 (1993). The standard to be

applied in cases of suppression or nondisclosure of evidence by the State is whether the testimony

may have had an effect on the outcome of the trial. Ransonette v. State, 550 S.W.2d 36, 39 (Tex.

Crim. App. 1977). The key elements that must be shown are (1) suppression of evidence by the

prosecution after a request by the defense; (2) the evidence’s favorable character for the defense; and

(3) the materiality of the evidence. Butler, 736 S.W.2d at 670; Ransonette, 550 S.W.2d at 39;

Scaggs v. State, 18 S.W.3d 277, 295 (Tex. App.—Austin 2000, pet. ref’d). A conviction must be

reversed if the prosecution actively suppresses evidence or negligently or inadvertently fails to

disclose evidence that may exonerate the defendant or that may be of material importance to the

defense. Butler, 736 S.W.2d at 670; Crutcher v. State, 481 S.W.2d 113, 115 (Tex. Crim. App.

1972).



                                                  22
               Nothing in this record supports an argument that the audiotape contained evidence

that would be favorable to Hofer. The audiotape itself is not in the appellate record; the State’s

questioning of Sandra Hofer pointed only to inculpatory evidence, not exculpatory. See Butler, 736

S.W.2d at 670; Ransonette, 550 S.W.2d at 39; Scaggs, 18 S.W.3d at 295. Because Hofer has not

shown the evidence’s favorable character for his defense, we can find no violation here, and we

therefore reject Hofer’s arguments that the State violated his right to disclosure of exculpatory

evidence and that the trial court abused its discretion in denying his motion for mistrial. We overrule

Hofer’s fifth and sixth issues.12


Deadly weapon finding

               In his seventh issue, Hofer argues that the evidence is legally and factually insufficient

to support a finding that his truck was a deadly weapon because there was no testimony establishing

“what caused the death of Lee Grant Rutledge, i.e., the collision with the pick up truck or other

factors.” See Tex. Pen. Code Ann. § 1.07(a)(17)(B); Tex. Code Crim. Proc. Ann. art. 42.12,

§ 3g(a)(2); see also Mann, 58 S.W.3d at 132 n.1. We disagree.

               Anything, including a motor vehicle, that is actually used to cause the death of a

human being is a deadly weapon. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003);

Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995); Ex parte McKithan, 838 S.W.2d 560,

561 (Tex. Crim. App. 1992). This is so because a thing which actually causes death is, by definition,


        12
          In these issues, Hofer makes the additional argument that the State’s questions concerning
the audiotape “succeeded in placing information in the minds of the jurors without authenticating
or identifying the matter claimed as required under Rule 901 of the Texas Rules of Evidence.”
However, the audiotape at issue here was not admitted into evidence. See Tex. R. Evid. 901.

                                                  23
“capable of causing death.” Tex. Pen. Code Ann. § 1.07(a)(17)(B); Tyra, 897 S.W.2d at 798; Ex

parte Beck, 769 S.W.2d 525, 526-27 (Tex. Crim. App. 1989). In intoxication manslaughter cases,

circumstantial evidence can be sufficient to show cause of death if it appears from all the evidence

that the wounds were sufficient to cause death and that death occurred within reasonable time after

wounds were inflicted. Hines v. State, 515 S.W.2d 670, 673-74 (Tex. Crim. App. 1974). The record

in this case contains much evidence of Hofer’s driving pattern and how the accident occurred. In

addition, several witnesses, including Kyle Rutledge, testified about Lee Rutledge’s death, and a

justice of the peace pronounced Lee Rutledge dead at the scene. The record also contains

photographs of the scene of the accident, showing the damage to the vehicles and the burnt shell of

the van Kyle Rutledge was driving. The testimony of a physician was not necessary. See id.

               We find this evidence legally and factually sufficient to support the deadly weapon

finding in this case. We overrule Hofer’s seventh issue.


                                         CONCLUSION

               We have overruled Hofer’s issues on appeal. We affirm the judgment of the district

court.



                                               Bob Pemberton, Justice

Before Chief Justice Law, Justices B. A. Smith and Pemberton

Affirmed

Filed: December 22, 2005

Do Not Publish

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