In The
Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-17-00300-CR ________________
LARRY WAYNE DUNCAN, Appellant
V.
THE STATE OF TEXAS, Appellee __________________________________________________________________
On Appeal from the 258th District Court San Jacinto County, Texas Trial Cause No. 11,485A __________________________________________________________________
MEMORANDUM OPINION
A jury convicted appellant Larry Wayne Duncan of failing to stop and render
aid, which resulted in death, and assessed punishment at nineteen years of
confinement. In nineteen issues, Duncan challenges the sufficiency of the evidence
and the admission of his prior convictions, complains of the admission of certain
expert opinion testimony, asserts that the failure to give warnings before taking his
recorded statement constitutes reversible error, and contends that the punishment
1 verdict is ambiguous because it does not state whether the jury “does” or “does not”
assess a fine. We affirm the trial court’s judgment.
BACKGROUND
The victim’s father, Billy Scott, testified that his daughter enjoyed jogging,
and he identified the route along which she usually jogged. He explained that on
February 10, 2015, he saw the victim jogging at approximately 6:20 p.m. Scott
testified that it was daylight and the sun was shining. At approximately 7:30 p.m.,
Scott learned that his daughter had been killed.
Kimila McShan, the mother of the man with whom the victim was in a
romantic relationship, testified that her son Klint and the victim lived together in her
home. According to McShan, the victim enjoyed running. McShan explained that
the victim had several different shoes, and she wore “mix-matched socks all the
time.” McShan explained that on her way home on February 10, 2015, as she slowed
down to turn, she saw the victim “laying in the ditch.” McShan testified that she got
out of her truck and yelled the victim’s name, but the victim did not respond. McShan
walked toward the victim and saw that there was blood on the victim’s face and she
was cold, so McShan called 9-1-1 and reported that someone had hit the victim and
2 she was lying dead by the road.1 McShan explained that the victim’s injuries were
obvious, her shirt was “scrambled[,]” her shorts were twisted to the side, and she
was only wearing one sock. According to McShan, the victim’s shoes had been
knocked off. McShan explained that when she reached Cleveland at approximately
6:30, it was dusk. McShan testified that when she saw the victim, it was
approximately 7:30 p.m., and it was dark outside. McShan explained that there are
no street lights where the victim was found.
Trooper Nickolas Hatton with the Texas Department of Public Safety testified
that he was on duty on February 10, 2015. On that date, Hatton was dispatched to
the scene, and he and his partner arrived at approximately 7:37, when it was dark.
Upon arriving at the scene, he observed a white female lying in the ditch. Hatton
explained that his partner photographed the scene, and the photographs were
admitted into evidence. Based upon his training and experience, after he examined
the victim, Hatton believed that the victim had been struck by a motor vehicle.
Hatton testified that he was at the scene for several hours, and no one called or came
forward during that time regarding involvement in the crash.
1 Leeann Barnes, telecommunicator for the San Jacinto County Sheriff’s Office, testified that she answered a 9-1-1 call regarding the victim at 7:36 p.m. on February 10, 2015. Barnes also testified that she received a 9-1-1 call from Duncan on the following day. 3 Hatton explained that he examined the roadway for clues. Hatton and his
partner found the victim’s running shoes, and Hatton believed that the location
where they were found gave the authorities “an area of impact.” According to
Hatton, one of the victim’s socks was also recovered. Hatton explained that the
authorities placed an orange flag at every location where evidence was found to
create a forensic map or scale diagram of the crash scene. Hatton and his partner also
found areas where the grass was discolored, as well as areas that “appear to be a
gouge or tumbling through the grass.” Hatton explained that the gouge area was
consistent with a person tumbling along the ground. According to Hatton, there were
no skid marks in the area. Hatton testified that shattered glass pieces from a
headlamp and its plastic outer edge were also found and collected as evidence, and
he took them to a Chevrolet dealership to determine the make and model of the
vehicle from which they came.
Hatton explained that Duncan contacted San Jacinto Communications and
reported that he might have been involved in a crash on the date in question. Hatton
testified that he subsequently spoke with Duncan and viewed Duncan’s vehicle,
which is a GMC Sierra. 2 Duncan told Hatton that he believed he may have been
2 Hatton testified that Duncan signed a consent to search form. 4 involved in a wreck on February 10, 2015. Hatton testified that Duncan told him “he
remembered striking something with his vehicle while traveling on FM 2666.”
According to Hatton, his investigation revealed signs that Duncan’s vehicle
had been involved in a crash. Specifically, Hatton explained that Duncan’s vehicle
had been damaged on the front passenger side bumper, as well as the hood, the
passenger side headlamp, and the fender. Hatton testified that the headlight parts he
recovered were made of glass, as were the headlights on Duncan’s vehicle, and when
the pieces were assembled, they resembled the intact headlight on Duncan’s vehicle
and were made of the same material. Duncan agreed to come with Hatton to the
Coldspring office after being given his Miranda warnings by Sergeant David
Gustafson. According to Hatton, Duncan was informed that he was not under arrest,
and Duncan agreed to give a statement, which the trial judge determined was
voluntary after defense counsel objected.
According to Hatton, Duncan stated that he reached down to pick up a lighter
and realized that he had struck something, which he believed was a deer or hog.
According to Hatton, Duncan stated that he continued about a hundred feet and then
stopped, walked around to the front passenger side of his vehicle, saw that his vehicle
was damaged, and got back into his vehicle and drove away. Duncan stated that he
did not return to the location farther up the road where he believed he hit something.
5 During cross-examination, Hatton agreed that it is not uncommon for someone in
the wooded area of Coldspring to hit a hog or deer.
According to Hatton, the Texas Transportation Code requires the operator of
a motor vehicle who has been involved in a crash involving bodily injury or death
to stop as close as practicable to the crash scene and to verify whether there was a
person involved. Hatton testified that if a person was involved in the accident, the
driver must immediately determine whether that person requires aid. Hatton
explained that the driver must also immediately return to the scene of the accident if
the vehicle was not stopped at the scene.
Trooper Jake Pullen testified that he went with Hatton to the scene on
February 10, 2015, and when they arrived on the scene, they saw a deceased female
lying in a ditch. Pullen testified that when he placed his fingers on the victim’s neck,
“her skin felt cold and wet as if there was dew on her skin.” Pullen testified that he
was present at the victim’s autopsy “to pull any evidence that we could and take
pictures.” According to Pullen, the victim’s clothing was collected, as was DNA
evidence in the form of blood and hair samples.
Gustafson testified that on the date in question, Hatton informed him that he
was on the scene of a fatality crash, and Gustafson responded to the location and
contacted Trooper Rae Shel Lee, who is a member of the state accident
6 reconstruction team. According to Gustafson, he received a phone call from the San
Jacinto County Sheriff’s Office, during which the operator stated that someone had
contacted them and stated that he had been involved in a crash on the road in
question, and his vehicle matched the description of the vehicle for which the
authorities were searching. Gustafson testified that when he, Hatton, and another
officer took the evidence to Martin Chevrolet, the parts manager said he was certain
that the vehicle was either a GMC or Chevrolet, model year 1988 to 1998, and was
a teal green color. According to Gustafson, the teal colored parts found at the scene
matched Duncan’s vehicle “identically.” Gustafson explained that Duncan informed
authorities that he had been involved in a crash the day before.
According to Gustafson, when he spoke with Duncan at Duncan’s residence,
he read Duncan his Miranda warnings and “made [it] very clear” to Duncan that he
was not under arrest. Duncan told Gustafson that “he hit something that he thought
was either a deer or maybe a hog. He didn’t know for sure.” Gustafson explained
that Duncan agreed to provide a voluntary statement to the rangers who would be
waiting for him at the Highway Patrol Office. Gustafson testified that Duncan was
not handcuffed when he was put into the patrol vehicle. According to Gustafson,
section 550.021 of the Transportation Code does not require that the person
operating a vehicle know that he hit a person; rather the Transportation Code requires
7 that the driver determine whether he struck a person. Gustafson testified that the
driver “must go back to the location of the scene of the accident, which [Duncan]
did not do.”
Ranger Brandon Bess with the Texas Department of Public Safety testified
that Ranger Ryan Clendennen, the Ranger assigned to San Jacinto County, called
him on February 11, 2015, and asked for his assistance regarding the investigation
of the collision because Clendennen was busy with another matter. Clendennen
informed Bess that an individual had contacted the dispatcher and reported that he
might have been involved in the collision that killed the victim. Bess explained that
he accompanied Clendennen to the crash scene, and he subsequently met Duncan at
the Coldspring Highway Patrol Office. Bess explained that he did not read Duncan
his Miranda rights before interviewing him. According to Bess, Duncan was not
under arrest, and Duncan was not restrained in any way. Bess stated that he informed
Duncan that he was free to leave, but a seventy-two hour hold was placed on Duncan
after the interview. Bess testified that he recorded his conversation with Duncan, and
the recording was admitted into evidence and played for the jury over defense
counsel’s objections that it constituted hearsay because it was not an admission by a
party opponent.
8 According to Bess, after his interview with Duncan, the authorities “had an
investigation that we needed to conduct.” Bess testified that Duncan agreed to take
a breath test, and no alcohol was detected. Bess explained that Duncan took the test
close to midnight on the day after the accident, and he explained that alcohol does
not stay in a person’s system that long if the person is alive. Bess explained that he
examined Duncan’s vehicle and noted that the front-right fender of the vehicle, the
hood, the windshield, the passenger’s side mirror, and the roof had sustained
damage. Bess testified that he saw what appeared to be blood or remnants of blood
on the vehicle. According to Bess, Duncan stated that the vehicle did not have any
damage prior to the accident.
Clendennen testified that on February 10, 2015, he learned of an auto-
pedestrian fatality, and he contacted Gustafson the following day. Clendennen
testified that he and Bess viewed the accident scene. Clendennen explained that
Gustafson contacted him about Duncan, but because Clendennen was unable to take
Duncan’s statement, he asked Bess for assistance. After Duncan gave a statement to
Bess, Clendennen learned of the vehicle that was possibly involved in the accident,
and he viewed the vehicle at the Texas Department of Public Safety. Clendennen
explained that the right front portion of the vehicle and the hood were damaged, as
9 was the bumper. According to Clendennen, blood spatter was also visible along the
right front fender and passenger’s side mirror.
Jimmy Jones of Martin Chevrolet’s parts department testified that he assisted
some officers with identifying the kind of vehicle from which the parts came, and
after conducting internet research, they concluded that the parts were from a
Chevrolet pickup. Jones explained that older models have glass headlamps, but the
headlamps of newer models contain more plastic. Jones testified that there are no
differences between the headlights of Chevy and GMC trucks. Jones testified that
the parts could have come from Duncan’s truck, but he does not know if they did.
Lee testified that she has received extensive training in the field of crash
reconstruction and is a member of the state crash reconstruction team. Lee explained
that Gustafson called her to assist with reconstructing the accident. Lee testified that
upon arriving at the scene, she saw the victim, observed her injuries, and learned the
victim’s identity. Lee explained that it was dark when she arrived. According to Lee,
Hatton, Pullen, and Gustafson assisted her with the reconstruction process. Lee
testified that she observed the entire crash location that night, and saw “a large
amount of debris.” Lee explained that most of the debris consisted of pieces of glass
from a headlamp lens, but there were also a few pieces of colored trim. Lee testified
that she marked the location of each piece of debris and “held the flashlight for the
10 trooper that was collecting it.” Lee explained that she also took measurements and
photographs. Lee testified that because the pieces of the headlamp were glass, she
believed that the vehicle involved was an older model pickup or SUV, but she did
not know the make or model year of the vehicle.
Lee explained that she believed an auto-pedestrian crash had occurred, and
that the victim’s injuries were consistent with a fender wrap crash because she was
struck at her center of mass. Lee explained that a gouge mark was consistent with
the victim’s body’s first contact with the ground, and subsequent marks or gouges
were consistent with her body tumbling or traveling along the ground. Lee testified
that she believed that her work had become a criminal investigation because there
was an accident involving the death of a person and no vehicle was at the scene.
According to Lee, the damage to Duncan’s vehicle, which she later observed at the
highway patrol office, was consistent with the debris found at the crash scene. Lee
also explained that there was what she believed to be blood spatter on the fender of
Duncan’s vehicle. Lee testified that, based upon the location of the victim’s injuries
and the location of the victim’s body, she believed the victim “was jogging on or
along that roadway somewhere and she was struck from behind by this vehicle.”
Jennifer Pollock of the Texas Department of Public Safety Crime Laboratory
in Houston testified that her team performed a forensic examination of Duncan’s
11 vehicle at the highway patrol office and collected several samples during that
process. Pollock analyzed the samples for DNA, compared them to a known profile,
and found that the samples were from the victim. Jenny Lounsbury, a forensic
scientist with the Texas Department of Public Safety, testified that she performed a
trace analysis on the vehicle and four pieces of debris, and she observed that the
debris physically matched the vehicle, both in color and fit.
Dr. John Ralston, chief forensic pathologist for Forensic Medical of Texas in
Beaumont, testified that he performed an autopsy of the victim. During the autopsy,
Ralston collected samples of the victim’s hair and blood. Ralston testified that the
victim suffered multiple injuries, including fractures of her skull, cervical spine,
thoracic spine, ribs, femurs, and tears of the brain stem, spinal cord, and aorta, as
well as multiple scrapes or abrasions to her skin. Ralston explained that the victim’s
injuries were “consistent with what’s known as a bumper impact or point of impact
injury[,]” and he testified that the force that struck the victim “appeared to be applied
from behind.” Ralston testified that a bumper like the one on Duncan’s truck could
have caused the victim’s injuries. According to Ralston, no drugs or toxins were
found in the victim’s system. Ralston explained that the cause of the victim’s death
was “multiple injuries due to a motor vehicle striking a pedestrian[,]” and the manner
12 of death was accident. Various photographs of the autopsy were admitted into
evidence over defense counsel’s objection.
Ronnie Fulcher, a supervisor and shop hand at B & B Tire and Truck Services
(“B & B”), testified that Duncan once worked for B & B as a driver and mechanic.
According to Fulcher, Duncan was working for B & B on February 10, 2015, and
Fulcher saw Duncan that day between 3:45 and 4:30 p.m. Fulcher explained that
Duncan smelled faintly of stale alcohol, and Fulcher saw a beer in Duncan’s truck
and also saw Duncan drinking the beer. Fulcher testified that he later told a ranger
that Duncan seemed distant and “heavily intoxicated[,]” and he also stated that
Duncan’s words were slurred. According to Fulcher, when Duncan arrived at work
on February 11th, Duncan seemed “[a] little more stressed than usual[]” and was
tapping his fingers and saying “the F-word.”
Barbara Faircloth testified that Duncan lives with her niece, Christina Meek.
Faircloth testified that she saw Duncan at her home on the date in question at
approximately 4:30 p.m. According to Faircloth, Duncan was upset with her niece
because he had found out that she had not made payments on his truck, and Duncan
had a small paper bag with alcohol in it. Faircloth explained that she gave a recorded
statement to Clendennen, during which she reported that she believed Duncan was
intoxicated and that she was concerned about him operating a motor vehicle.
13 Faircloth testified that she never saw Duncan open the bottle or drink from it at her
home, but Duncan “acted like he had been drinking before he got to my house.”
Faircloth told Clendennen that she believed the bottle contained whiskey. Faircloth
explained that she told Duncan he should not be driving and she offered to drive
Duncan home, but he “got in his truck and took off[.]”
David Davis testified that he saw Duncan at approximately 7:00 p.m. on the
date in question. According to Davis, Duncan stumbled coming down some small
steps, and Davis believed Duncan was drunk. Davis explained that Duncan seemed
upset, and Duncan told Davis that he had run over something.
Duncan’s mother, Agnes Walker, testified that she saw Duncan twice on
February 10, 2015. According to Walker, Duncan came by her house at 5:00, and
they discussed a Verizon bill about which Duncan was upset. When asked whether
Duncan drinks whiskey or bourbon, Walker responded affirmatively, and she then
added, “but he doesn’t drive when he does it.” Over defense counsel’s objection, the
trial court allowed the State to impeach Walker by showing her a judgment which
indicated that Walker was convicted of driving while intoxicated in 1994, and she
admitted that he did drink and drive when he was twenty-one years old. Walker
testified that Duncan returned to her home shortly after 7:00 p.m. According to
Walker, Duncan seemed somewhat upset because he thought he had hit a deer and
14 damaged the truck he had just acquired. Walker testified that Duncan told her that
he had dropped his cigarette lighter, and when he raised up, he had hit something.
According to Walker, Duncan said that all he saw was fur, and Duncan “said it
could’ve been a deer or it could’ve been a man.” Walker explained that Duncan said
that whatever he hit was “[r]unning down the road or something.” Walker testified
that when she heard about the victim on the police scanner in her home, she called
Duncan. Duncan told his mother that he had been on a different road than the one
where the crash occurred.
Christina Meek testified that she lived with Duncan in February 2015.
According to Meek, she and Duncan had spent the weekend before the date in
question at a lake house, and they got into an argument regarding the truck note and
a cell phone bill. Meek explained that she and Duncan returned to their home on
February 10, and they went to get another vehicle. According to Meek, Duncan had
consumed one beer. Meek testified that along the way, she purchased a “tallboy”
Busch beer for Duncan, and he drank it. According to Meek, Duncan also consumed
a twelve-ounce beer when they reached their destination. Meek explained that the
argument she had with Duncan began after he had consumed the beers. Meek
testified that Duncan intended to go to Verizon to inquire about the cell phone bill,
and Meek did not believe Duncan should have been operating a motor vehicle
15 “[b]ecause he had already had three beers in him.” Meek opined that Duncan was
“intoxicated, but not highly intoxicated.”
Meek explained that she did not hear about the accident until the next day.
According to Meek, Duncan awakened her in the early morning hours of February
11 and told her that he had hit “something” or “someone.” Meek testified that
Duncan told her he had struck a deer or hog, but that Duncan also said that it could
have been “someone.” According to Meek, Duncan told her that he needed to return
to the truck because he believed he had left a beer inside the truck.
Duncan testified that on the morning of February 10, 2015, he was at a lake
house with Meek. According to Duncan, after he and Meek returned home, they got
into an argument. Duncan testified that Meek stopped and bought him a beer, but
Meek was driving at that time. According to Duncan, Meek also bought him a beer
“for later to put in the icebox at the house.” Duncan testified that he and Meek argued
again at approximately 3:00 p.m. Duncan denied drinking while they were arguing.
According to Duncan, Meek got tired of arguing, said she was going to Trinity, and
handed him the beer out of the car. Duncan testified that he laid the beer in the front
seat of the truck. Duncan denied consuming any other alcoholic beverages.
Duncan testified that after unsuccessfully attempting to obtain a battery for
the truck, he decided to go to the Verizon store, and he learned that his outstanding
16 bill was almost $2000. Duncan explained that he became angry, and after leaving
Verizon, he bought a bottle of R&R whiskey and went to his mother’s home. Duncan
testified that he did not open the bottle of R&R, did not consume alcohol at his
mother’s home, and was not intoxicated when he arrived at her home. Duncan
testified that he went to take care of his horse, and he decided to leave that location
at approximately 6:00 p.m., when it was dusk, and to return to his mother’s home.
Duncan stated that he was not drinking and was not intoxicated.
Duncan testified that as he was driving, he reached down to retrieve his
cigarette lighter from the seat, and he “hit something.” He estimated that the collision
occurred at approximately 7:00 p.m. Duncan explained that he looked up and did not
see anything, and he then applied his brakes and stopped. Duncan testified, “I got
out to see what I hit and then see what the damage was to the truck” because he
believed that the headlights were not working. Duncan testified that he did not go
back to the point of impact to see if he hit anything, but he got out, walked around
the front of the truck, and looked to make sure that whatever he hit was not
underneath the truck. According to Duncan, he walked around to the passenger side
of the truck and looked down the ditch line but did not see anything, so he assumed
he had struck a deer or hog. Duncan testified that he never walked past the end of
his vehicle.
17 Duncan testified that he decided to return to Shepherd, where his daughter and
son-in-law reside. After realizing that they were not at home, he called his brother
and told him that he needed a ride home because he had hit a deer or hog. According
to Duncan, the bottle of whiskey was still in the front seat of his truck, unopened.
Duncan testified that he returned to his mother’s house and told her that he had hit a
deer or hog, and he denied telling his mother that he thought he might have hit
someone who was jogging. Duncan explained that his brother arrived and took him
back to Cleveland.
Duncan testified that his mother called to tell him that the victim had been
struck on 2666 about eight miles out, but Duncan explained that he did not believe
he was involved in that accident because he was closer to a different road. According
to Duncan, Meek later came home after he was already asleep, and he spoke to her
when he got up to go to work. Duncan testified that he subsequently received another
telephone call from his mother, during which his mother told him that the victim had
been struck while jogging and green paint had been found, so Duncan decided to
contact the San Jacinto County Sheriff’s Department, and he told them that he
thought he hit a deer or hog on 2666. Duncan testified that if he had realized he had
struck a person, he would have waited and called “E.M.S. or 9-1-1 or something.”
Duncan stated, “I wouldn’t have left the person laying on the side of the road.”
18 During cross-examination, Duncan testified that he had been convicted of the
federal offense of possession of a firearm by a felon, as well as possession of cocaine
in Harris County. Duncan admitted that he was the only person operating the truck
that day, and that the vehicle was involved in an accident, but he denied knowing
that he struck anyone. Duncan denied seeing any of the victim’s blood and tissue on
his truck. Duncan testified that he stopped about one hundred feet from the scene of
the accident. Duncan testified that he did not investigate to see if a person was
involved and needed assistance. Duncan denied telling Meek that he had hit
someone. During rebuttal, Bess testified that Duncan said in his statement that he
pulled over after “probably about 100 yards.”
ISSUES ONE, TWO, THREE, FOUR, FIVE, AND SIX
In issue one, Duncan challenges the legal sufficiency of the evidence to prove
that he knew he had struck a human being when he left the location, and in issue
two, Duncan challenges the factual sufficiency of the evidence to prove that he knew
he had struck a human being when he left the scene. In issue three, Duncan asserts
that he made a diligent inquiry and formed a reasonable belief that he had only struck
an animal, and that his leaving the scene was justifiable. In issue four, Duncan
contends the evidence was legally insufficient because the State did not negate
mistake of fact. In issue five, Duncan argues that there was legally insufficient
19 evidence that he had the requisite knowledge that he had struck a human being with
his vehicle, and in issue six, Duncan challenges the legal sufficiency of the evidence
that he had intentionally and knowingly failed to stop and render aid to a human
being. We address these issues together.
In a legal sufficiency review, we consider all of the evidence in the light most
favorable to the verdict to determine whether any rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S.
307, 318-19 (1979)). The jury is the ultimate authority on the credibility of witnesses
and the weight to be given their testimony. Penagraph v. State, 623 S.W.2d 341, 343
(Tex. Crim. App. [Panel Op.] 1981). We give deference to the jury’s responsibility
to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13.
We must resolve any inconsistencies in the evidence in favor of the verdict. Curry
v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). In 2010, the Court of Criminal
Appeals concluded that there is no meaningful distinction between a legal-
sufficiency review and a factual-sufficiency review and held that “the Jackson v.
Virginia standard is the only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a criminal
20 offense that the State is required to prove beyond a reasonable doubt. All other cases
to the contrary . . . are overruled.” Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010).
Section 550.021 of the Texas Transportation Code, which defines the offense
of failing to stop and render aid, provides as follows, in pertinent part:
(a) 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.
....
(c) A person commits an offense if the person does not stop or does not comply with the requirements of this section. An offense under this section:
(1) involving an accident resulting in:
(A) death of a person is a felony of the second degree[.]
21 Tex. Transp. Code Ann. § 550.021(a), (c) (West Supp. 2017). Section 550.023
requires the operator of a vehicle that is involved in an accident resulting in the injury
or death to a person to provide his name, address, vehicle registration number, and
liability insurer to any person injured, show his driver’s license, and provide
assistance to any person injured in the accident if it is apparent that treatment is
necessary. Id. § 550.023 (West 2011).
Because section 550.021 does not prescribe a culpable mental state for the
offense, the State must prove that Duncan acted with one of the culpable mental
states found in section 6.02 of the Texas Penal Code. See Tex. Penal Code Ann. §
6.02(b) (West 2011) (providing that if a culpable mental state is not described by the
definition of the offense, one is nevertheless required “unless the definition plainly
dispenses with any mental element[]”); Id. § 6.02(d) (setting forth the culpable
mental states, from highest to lowest). The Court of Criminal Appeals has held that
the State satisfies this burden by showing that “the accused had knowledge of the
circumstances surrounding his conduct, i.e., had knowledge that an accident had
occurred.” Goss v. State, 582 S.W.2d 782, 785 (Tex. Crim. App. 1979) (internal
citation omitted). As our sister Court of Appeals ably explained, the 2015
amendment to section 550.021 added the requirement that the driver immediately
determine whether a person is involved in an accident, and that any further addition
22 to the statute would be mere surplusage if the State were required to prove the driver
knew that the accident involved death or injury to a person before the State could
show that the driver shirked his duty to stop and render aid. Mayer v. State, 494
S.W.3d 844, 849-50 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). The
elements of the offense of failure to stop and render aid are as follows: (1) an
operator of a vehicle; (2) intentionally or knowingly; (3) involved in an accident; (4)
resulting in injury or death of any person; (5) fails to stop and render reasonable
assistance. McCown v. State, 192 S.W.3d 158, 162 (Tex. App.—Fort Worth 2006,
pet. ref’d). “[T]he knowledge requirement of section 550.023 is satisfied if an
objective examination of the facts shows that it would be apparent to a reasonable
person that someone has been injured in an accident and is in need of reasonable
assistance.” Id. at 163. Section 8.02 of the Texas Penal Code provides as follows: “It
is a defense to prosecution that the actor through mistake formed a reasonable belief
about a matter of fact if his mistaken belief negated the kind of culpability required
for commission of the offense.” Tex. Penal Code Ann. § 8.02(a) (West 2011)
(emphasis added).
The jury heard evidence that Duncan had argued with Meek on the day of the
accident, Duncan had consumed three beers before the accident, and Duncan was
intoxicated. In addition, the jury heard evidence, including Duncan’s own testimony,
23 that Duncan knew he had struck something, but he nevertheless proceeded for either
a hundred feet or a hundred yards and stopped, walked around to the passenger side
of his vehicle to assess the damage, and got back into his vehicle and drove away
without returning to the point of impact or walking past the end of his vehicle. The
jury also heard evidence from Meek and Walker that Duncan told them he struck
either an animal or a person. Additionally, the jury heard evidence that the victim
was lying in the ditch and had visible injuries.
The State was not required to prove that Duncan knew that he had struck a
human being; rather, the State was required to prove Duncan had knowledge of the
circumstances surrounding his conduct, i.e., Duncan knew that an accident had
occurred. See Goss, 582 S.W.2d at 785; Mayer, 494 S.W.3d at 849-50. The State
was required to prove that Duncan operated a vehicle, was involved in an accident
that resulted in the victim’s death, and intentionally or knowingly failed to stop and
render reasonable assistance. See McCown, 192 S.W.3d at 162. It was within the
province of the jury to weigh the testimony and to resolve any conflicts in the
testimony. See Hooper, 214 S.W.3d at 13. The jury could have concluded that
Duncan’s alleged mistaken belief that he struck an animal was not reasonable under
the circumstances. See Tex. Penal Code Ann. § 8.02(a). Finally, as explained above,
the Court of Criminal Appeals has directed that we no longer review evidence for
24 factual sufficiency in criminal cases. See Brooks, 323 S.W.3d at 912. Viewing the
evidence in the light most favorable to the verdict, we conclude that a rational trier
of fact could have found the essential elements of the offense beyond a reasonable
doubt. See Hooper, 214 S.W.3d at 13. The evidence is legally sufficient to support
the verdict. Accordingly, we overrule issues one, two, three, four, five, and six.
ISSUES SEVEN, EIGHT, NINE, TEN, AND ELEVEN
In issue seven, Duncan argues that the three convictions, which he identifies
as State’s exhibits 115A, 120, and 121, are over ten years old, did not involve moral
turpitude, and were not shown to have the probative value required by Rule 609(b)
of the Texas Rules of Evidence. In issue eight, Duncan contends that the use of one
of the convictions for impeachment during guilt-innocence was reversible error
because Duncan’s alleged lack of an appointed attorney when he pleaded guilty
renders the conviction void and a structural constitutional error. In issue nine,
Duncan complains that the admission of a 1994 judgment for which he served time
violated Article 37.07, section 3(i) of the Texas Code of Criminal Procedure. In issue
ten, Duncan argues that the trial court erred by admitting the 1994 judgment in both
guilt-innocence and punishment, “not only for impeachment, but also to increase
[the] sentence length assessed[.]” In issue eleven, Duncan argues that the numerous
convictions were admitted in violation of Rule 609(b) of the Texas Rules of
25 Evidence and without “essential findings or limiting instructions, thereby
necessitating reversal.” 3 We address these issues together.
The record reflects that State’s exhibit 115A is a judgment stating that Duncan
pleaded guilty to driving while intoxicated in San Jacinto County in 1994; State’s
exhibit 118 is a judgment indicating that Duncan pleaded guilty to the federal offense
of being a felon in possession of a firearm; State’s exhibit 119 is a judgment which
states that Duncan pleaded guilty to possession of cocaine in Harris County in 2006;
State’s exhibit 120 is a judgment which indicates that Duncan pleaded guilty to
driving with a suspended license in Polk County in 1995; and State’s Exhibit 121 is
a judgment reflecting that Duncan pleaded guilty to possession of methamphetamine
in Liberty County in 2004.
As discussed above, exhibit 115A was initially mentioned by the State during
its questioning of Walker. The prosecutor asked whether Duncan drinks whiskey or
bourbon, and Walker responded affirmatively, and she then volunteered, “but he
doesn’t drive when he does it.” Over defense counsel’s objection that Rule 609 only
allows impeachment of a person with his own conviction and that the conviction is
3 Although Duncan does not explicitly identify exhibits 118 and 119 in his issues, we will also address the admission of those convictions because he discusses them in his brief. 26 over fifteen years old, 4 the State impeached Walker by showing her the judgment
which indicated that Walker was convicted of driving while intoxicated in 1994,
questioning her about it, and having her testify that it was true. However, the record
reflects that exhibit 115A was not admitted into evidence until the punishment phase.
During cross-examination, Duncan admitted that he had been convicted of the
offenses referenced in exhibits 118 and 119. The State offered exhibits 118 and 119
into evidence during its cross-examination of Duncan, but withdrew the exhibits
after defense counsel objected, and they were not admitted into evidence until the
punishment phase. The record reflects that exhibits 120 and 121 were not offered
and admitted into evidence until the punishment phase. Defense counsel stated “No
objections[]” when exhibits 115, 118, 119, 120, and 121 were offered and admitted
into evidence during the punishment phase.
Duncan asserts that he lacked counsel when he pleaded guilty to the
conviction reflected in exhibit 115A because the line on the judgment where his
attorney’s name should be is blank, and that the use of exhibit 115A for impeachment
was structural constitutional error. Duncan is correct that a prior conviction obtained
in violation of a defendant’s right to counsel is void and cannot be used for purposes
4 While objecting, defense counsel conceded that there “may be a slight door that’s opened[.]” 27 of either guilt or enhancement or punishment in a subsequent case. Burgett v. Texas,
389 U.S. 109, 115 (1967). Although the places on the 1994 judgment where defense
counsel’s name should be were left blank, that fact, standing alone, does not facially
establish that Duncan was not represented by counsel. Cf. Burgett, 389 U.S. at 112,
115 (holding that lack of counsel was demonstrated when the judgment affirmatively
stated that the defendant came “without counsel”); see Baxley v. State, 547 S.W.3d
266, 2018 WL 1701843, at *2 (Tex. App.—Texarkana 2018, pet. ref’d)
(distinguishing a judgment that does not conclusively reflect that the defendant had
counsel from the judgment at issue in Burgett). When a judgment does not show on
its face that it was obtained without assistance of counsel, the attack on the prior
judgment is collateral, and ‘“the record must leave no question about the existence
of the fundamental defect.’” Baxley, 2018 WL 1701843, at *3 (quoting Nix v. State,
65 S.W.3d 664, 668-69 (Tex. Crim. App. 2001)). The appellant has the burden to
show that he was indigent and did not voluntarily waive his right to counsel. Id.
(citing Chancy v. State, 614 S.W.2d 446, 447 (Tex. Crim. App. [Panel Op.] 1981)).
‘“If the record is incomplete, and the missing portion could conceivably show that
the defect does not in fact exist, then the judgment is not void, even though the
available portions of the record tend to support the existence of the defect.”’ Id.
(quoting Nix, 65 S.W.3d at 668-69).
28 The record does not establish that Duncan was indigent at the time of the 1994
conviction, and Duncan did not establish those facts by testimony or other evidence.
As stated above, defense counsel agreed to the admission of the 1994 judgment
during the punishment phase, and the document was not admitted into evidence
during guilt-innocence. Duncan did not conclusively establish that the 1994
judgment is void. 5
Rule 609 provides that a witness may only be impeached through a conviction
of a felony or crime of moral turpitude. Tex. R. Evid. 609(a)(1). However, an
exception to the limitations of Rule 609 exists when the witness opens the door by
leaving a false impression with the jury. See Delk v. State, 855 S.W.2d 700, 704
(Tex. Crim. App. 1993) (explaining that a defendant who created a false impression
about his criminal history could be impeached with a prior misdemeanor conviction
for public intoxication); see also Monkhouse v. State, 861 S.W.2d 473, 476 (Tex.
App.—Texarkana 1993, no pet.). We see no reason why the rule should be different
when the witness claiming law-abiding behavior by the defendant is someone other
than the defendant. See generally Delk, 855 S.W.2d at 704. In addition, viewing the
5 The State attached to its brief a document purporting to be a waiver of counsel by Duncan in the 1994 case. However, we may not consider attachments to briefs that were not properly made part of the appellate record. See Tex. R. App. P. 34.1; Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
29 record as a whole, we cannot say that the trial court allowing the State to impeach
Walker with Duncan’s 1994 conviction had more than a slight influence on the
verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (holding
that a substantial right is affected when the alleged error had a substantial and
injurious effect in determining the jury’s verdict); see also Tex. R. App. P. 44.2(b).
Article 37.07, section 3(i) of the Texas Code of Criminal Procedure provides
that “[e]vidence of an adjudication for conduct that is a violation of a penal law of
the grade of misdemeanor punishable by confinement in jail is admissible only if the
conduct upon which the adjudication is based occurred on or after January 1, 1996.”
Tex. Code Crim. Proc. Ann. art. 37.07, § 3(i) (West Supp. 2017). 6 Even if the
admission of the 1994 conviction into evidence during the punishment phase was
erroneous, viewing the entire record as a whole, including Duncan’s four other prior
convictions, we cannot say that the admission of the 1994 conviction (State’s Exhibit
115A) into evidence had more than a slight influence on the verdict. See King, 953
S.W.2d at 271; see also Tex. R. App. P. 44.2(b). In light of the record as a whole,
including Duncan’s admissions to the convictions reflected in exhibits 118 and 119,
we conclude that any error in the State mentioning exhibits 118 and 119 during
6 Because the amendments to Article 37.07 do not materially affect the outcome of this appeal and do not affect subsection (3)(i), we cite to the current version of the statute. 30 cross-examination and initially offering them into evidence was harmless. See King,
953 S.W.2d at 271; see also Tex. R. App. P. 44.2(b). In addition, as discussed above,
defense counsel did not object to the admission of exhibits 115A, 118, 119, 120, and
121 into evidence during the punishment phase. See Tex. R. App. P. 33.1(a); Webb
v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988) (holding that it is axiomatic
that motions in limine do not preserve error). For all of the foregoing reasons, we
overrule issues seven, eight, nine, ten, and eleven.
ISSUES TWELVE, THIRTEEN AND FOURTEEN
In issue twelve, Duncan argues that Ralston’s opinion testimony was legally
insufficient evidence to prove that a motor vehicle caused the victim’s death. In issue
thirteen, Duncan asserts that Ralston’s opinion testimony was insufficient to prove
that Duncan’s motor vehicle caused the victim’s death, and in issue fourteen, Duncan
argues that Ralston’s opinion testimony is “legally insufficient to prove the agency
of appellant as part of the corpus delecti of the offense[.]” We address these issues
together.
As discussed above, Ralston testified that the victim’s injuries were consistent
with a point of impact injury from behind and that a bumper like the one on Duncan’s
vehicle could have caused the victim’s injuries. Ralston also testified that the
victim’s cause of death was multiple injuries due to being struck by a vehicle.
31 Duncan’s arguments regarding Ralston’s testimony ignore the other evidence,
including: Scott’s testimony that the victim was jogging on the evening she died;
Hatton’s testimony that, based upon his training and experience, he believed the
victim had been struck by a motor vehicle; Hatton’s testimony regarding the damage
to Duncan’s vehicle and the resemblance of the debris to the intact headlight of
Duncan’s vehicle; Duncan’s statements and trial testimony that he knew he had
struck something; Gustafson’s testimony that the parts found at the scene matched
Duncan’s vehicle identically; Lee’s testimony that the victim’s injuries were
consistent with a fender wrap crash; Pollock’s testimony that DNA samples from
Duncan’s vehicle were from the victim; Lounsbury’s testimony that the debris
matched Duncan’s vehicle; and the testimony of Walker and Meek that Duncan told
them he hit something or someone. Duncan cites no authority supporting the
proposition that Ralston’s testimony, standing alone, must be legally sufficient to
prove that a motor vehicle driven by Duncan caused the victim’s death. The totality
of the evidence is sufficient to support the verdict. See Hooper, 214 S.W.3d at 13.
We overrule issues twelve, thirteen, and fourteen.
ISSUES FIFTEEN, SIXTEEN, SEVENTEEN, AND EIGHTEEN
In issue fifteen, Duncan argues that he was not given the warnings required by
article 38.22 of the Texas Code of Criminal Procedure before giving a statement to
32 law enforcement. In issue sixteen, Duncan contends that the trial court abused its
discretion by admitting his recorded statements as evidence because he did not
receive the warnings required by article 38.22. In issue seventeen, Duncan asserts
that because “lawmen” had arranged his statement, physically took him to the
station, towed his vehicle, and subsequently arrested him, his Fifth and Fourteenth
Amendment rights were violated by recording his statement without first giving
warnings as provided by article 38.22. In issue eighteen, Duncan argues that since
he received no warnings under 38.22 and a complete tape of his statement was
admitted as evidence, “reversal is required.” We address these issues together.
We review a trial court’s ruling on the admission of evidence for an abuse of
discretion. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). We will
uphold the trial court’s decision unless it lies outside the zone of reasonable
disagreement. Id. The test for abuse of discretion is whether the ruling was arbitrary
or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
An oral statement by an accused as a result of custodial interrogation is inadmissible
in a criminal proceeding unless the statement reflects that he was warned (1) of his
right to remain silent and to refuse to make a statement, (2) any statement may be
used as evidence; (3) he has the right to have an attorney present to advise him before
and during questioning; (4) if he is indigent, an attorney will be appointed to advise
33 him before and during questioning; (5) he may terminate the interview at any time;
and (6) before making the statement, he knowingly, intelligently, and voluntarily
waived the aforementioned rights. Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3
(West 2018); see also Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). By its
express terms, article 38.22 applies only to statements made as a result of custodial
interrogation. Tex. Code Crim. Proc. Ann. art. 38.22, § 3. The defendant bears the
initial burden to establish that his statement resulted from a custodial interrogation.
Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).
Duncan testified that he contacted the San Jacinto County Sheriff’s office. In
addition, as previously discussed, Hatton testified that Duncan was informed that he
was not under arrest, and Duncan agreed to give a statement. Gustafson explained
that Duncan was not handcuffed when he was put into the patrol vehicle, and Duncan
agreed to provide a voluntary statement to the rangers who would be waiting for him
at the Highway Patrol Office. On the recording of his statement, Duncan was asked
for his name, date of birth, social security number, address, and driver’s license
number. Ranger Bess then informed Duncan that he was not under arrest, was “not
going to be arrested tonight[],” “that’s the door[,]” “it’s unlocked[,]” and “you’re
free to go at anytime[,]” and Duncan stated that he understood. We hold that the
evidence authorized the trial court to find that Duncan’s statement was not the
34 product of a custodial interrogation, and that the warnings provided in article 38.22
were therefore not required. Accordingly, we conclude that the trial court did not
abuse its discretion by admitting Duncan’s recorded statement into evidence. We
overrule issues fifteen, sixteen, seventeen, and eighteen.
ISSUE NINETEEN
In issue nineteen, Duncan argues that the punishment verdict is ambiguous and
must be reversed because the jury did not state whether it does or does not assess a
fine. Underneath the paragraph in which the jury assessed the term of Duncan’s
confinement, the punishment verdict form stated “In addition thereto, WE DO/WE
DO NOT assess a fine in the amount of $2500.00 (not to exceed $10,000). Although
the jury did not circle either “we do” or “we do not,” there would be no reason for
the jury to have written in “$2500.00” unless its intent was to assess a $2500 fine.
We reject Duncan’s contention that the punishment verdict is ambiguous.
Accordingly, we overrule issue nineteen. Having overruled all of Duncan’s issues,
we affirm the trial court’s judgment.
AFFIRMED.
______________________________ STEVE McKEITHEN Chief Justice
35 Submitted on March 15, 2018 Opinion Delivered July 25, 2018 Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.