COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-08-276-CR
SAMUEL LEE HILBURN APPELLANT
V.
THE STATE OF TEXAS STATE
------------
FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
OPINION
I. Introduction
Appellant Samuel Lee Hilburn appeals his conviction for intoxication
manslaughter.1 He contends in four points that the evidence is legally and factually
insufficient to prove beyond a reasonable doubt that he caused a police officer’s
death “by driving his vehicle into and against” the officer’s patrol car or that his
vehicle constituted a deadly weapon. W e affirm.
1 See Tex. Penal Code Ann. § 49.08(a) (Vernon Supp. 2009). II. Factual Background
In the early morning hours of December 17, 2006, Adriana Delgadillo was
driving south on Interstate 35 in Fort W orth when she noticed her car had a flat tire.
She pulled onto the right shoulder of the highway and called a friend, Roy Delgado,
to assist her. Delgado arrived within five minutes and parked his pickup truck on the
shoulder in front of Delgadillo’s car. Delgado tried to remove the tire but could not
because it had a lock on it, so Delgadillo called for roadside assistance.
Fort W orth Police Officer Dwayne Freeto arrived shortly thereafter and parked
his patrol car on the shoulder behind Delgadillo’s car, but he left his patrol car’s
emergency lights on while he also tried to remove the flat tire from Delgadillo’s car.
Officer Freeto was also unable to remove the tire, so he told Delgadillo he would wait
until roadside assistance arrived. Officer Freeto went back to his patrol car, and
Delgadillo and Delgado sat in Delgadillo’s car to wait for roadside assistance. W hile
they waited, Appellant’s car rear-ended Officer Freeto’s patrol car. Officer Freeto’s
patrol car immediately erupted into flames, with Officer Freeto trapped inside.
Delgado exited Delgadillo’s car, ran back to the patrol car, and unsuccessfully tried
to break the driver-side window with his fists. He then retrieved the vehicle jack from
Delgadillo’s car and used it to break the passenger-side window on the patrol car.
Officer Rockney Malone, a Fort W orth vice officer whose shift had ended at
3:00 a.m., was driving home from work when Appellant’s vehicle passed him at a
2 high rate of speed.2 Officer Malone watched Appellant’s vehicle crash into Officer
Freeto’s patrol car, causing an instant explosion. Officer Malone pulled over and
saw Appellant get out of his car, take a couple steps, fall down, and roll onto his
back. Officer Malone dragged Appellant onto the shoulder of the road and ran to
Officer Freeto’s patrol car but could not see inside because of the smoke. Another
driver, Jimmy Ozuna, also stopped to help, and Officer Malone, Delgado, and Ozuna
tried to break the patrol car’s windows to rescue Officer Freeto from the fire. Ozuna
testified that he could see Officer Freeto moving inside the patrol car.
Robert McDonald, a certified EMT, drove up to the scene and stopped to help.
McDonald sprayed a small fire extinguisher through the broken passenger window.
The fire extinguisher helped only momentarily; the fire completely engulfed the patrol
car. The paramedics on the scene then pulled everyone back from the patrol car
and said there was nothing more anyone could do.
McDonald then turned his attention to Appellant. McDonald could see that
Appellant had cuts and abrasions on his hands and arms and burns on his face and
head. Appellant was conscious, coherent, and answered McDonald’s questions
appropriately without slurring his words, but McDonald could smell the odor of
alcohol on Appellant’s breath. Appellant was taken to the hospital for treatment of
his injuries. W hile he was there, hospital nurses took samples of Appellant’s blood
2 Two other witnesses testified that Appellant’s car had passed them at a high rate of speed just before colliding with Officer Freeto’s patrol car.
3 at the investigating officer’s request. The toxicologist testified that, based on the
blood draws, she believed Appellant had a blood-alcohol level between 0.18 and
0.22 at the time of the collision.
At Appellant’s trial, accident reconstructionist Tim Lovett testified that
Appellant was driving more than ninety-seven miles per hour at the time of the
collision. Lovett testified that the emergency lights on Officer Freeto’s patrol car
would have been visible at a distance of 1,250 feet, meaning Appellant, even at
ninety-seven miles per hour, had more than eight seconds to take action to avoid a
collision with Officer Freeto’s patrol car. Despite the reaction time, Lovett saw no
physical evidence that Appellant had tried to brake or steer evasively to avoid the
collision. Lovett also testified that the patrol car had caught fire because Appellant
drove his vehicle into the back of the patrol car.
The chief medical examiner for Tarrant County, Dr. Nizam Peerwani, testified
at trial that Officer Freeto was alive when the fire in his patrol car started and that he
had died from inhaling hot air, poisonous gases, fumes, and smoke. He stated that
Officer Freeto did not die of blunt force trauma, but he also testified that Officer
Freeto had “died as a result of the impact which – which caused the fire.” Dr.
Peerwani testified that the official cause of death was a motor vehicle collision with
fire.
Ashley W oodall, Lauren Coffman, and Daniel Escamilla testified for Appellant
at trial. They explained that the three of them and Appellant had gone to two
4 different clubs in Fort W orth beginning at around 11 p.m. and ending at around 3
a.m. They testified that they saw Appellant drink one beer that evening and that
Appellant did not appear to be intoxicated or show any outward signs of being
intoxicated.
III. Procedural Background
A grand jury indicted Appellant in March 2007. The indictment alleged that
Appellant had “operate[d] a motor vehicle in a public place while intoxicated, and did
by reason of such intoxication cause the death of another, Dwayne Freeto, through
accident and mistake, namely: by driving said motor vehicle into and against a motor
vehicle occupied by the said Dwayne Freeto.” The indictment also alleged that
Appellant had used his motor vehicle as a deadly weapon. Appellant pleaded not
guilty, but at the conclusion of his jury trial, the jury returned a verdict of guilty,
answered affirmatively to the deadly weapon special issue, and assessed
punishment at thirteen years’ confinement. The trial court sentenced Appellant
accordingly.
IV. Standards of Review
A. Legal Sufficiency
In reviewing the legal sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
5 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.
2007).
This standard gives full play to the responsibility of the trier of fact to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Clayton, 235 S.W .3d at 778. The trier of fact is the sole judge of the weight and
credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon
1979); Brown v. State, 270 S.W .3d 564, 568 (Tex. Crim. App. 2008), cert. denied,
129 S. Ct. 2075 (2009). Thus, when performing a legal sufficiency review, we may
not re-evaluate the weight and credibility of the evidence and substitute our judgment
for that of the factfinder. Dewberry v. State, 4 S.W .3d 735, 740 (Tex. Crim. App.
1999), cert. denied, 529 U.S. 1131 (2000). Instead, we “determine whether the
necessary inferences are reasonable based upon the combined and cumulative
force of all the evidence when viewed in the light most favorable to the verdict.”
Hooper v. State, 214 S.W .3d 9, 16–17 (Tex. Crim. App. 2007). W e must presume
that the factfinder resolved any conflicting inferences in favor of the prosecution and
defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235
S.W .3d at 778.
B. Factual Sufficiency
W hen reviewing the factual sufficiency of the evidence to support a conviction,
we view all the evidence in a neutral light, favoring neither party. Steadman v. State,
6 280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414
(Tex. Crim. App. 2006). W e then ask whether the evidence supporting the
conviction, although legally sufficient, is nevertheless so weak that the factfinder’s
determination is clearly wrong and manifestly unjust or whether conflicting evidence
so greatly outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204
S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,
with some objective basis in the record, that the great weight and preponderance of
all the evidence, although legally sufficient, contradicts the verdict. Watson, 204
S.W .3d at 417.
Unless we conclude that it is necessary to correct manifest injustice, we must
give due deference to the factfinder’s determinations, “particularly those
determinations concerning the weight and credibility of the evidence.” Johnson v.
State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.
Evidence is always factually sufficient when it preponderates in favor of the
conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417.
V. Analysis
A. Alleged Variance Between Indictment and Proof
Appellant contends in his first and second points that the evidence is legally
and factually insufficient to prove he caused Officer Freeto’s death by “driving his
vehicle into and against” Officer Freeto’s patrol car. Appellant argues the indictment
7 required the State to prove Officer Freeto died from the impact between the vehicles
and contends the State proved Officer Freeto died from the fire, not the impact.
Appellant therefore argues there is a fatal variance between the indicted offense and
the proof adduced at trial.
A variance occurs when there is a discrepancy between the allegations in the
charging instrument and the proof at trial. Gollihar v. State, 46 S.W .3d 243, 246
(Tex. Crim. App. 2001). In a variance situation, the State proves the defendant guilty
of a crime, but proves the crime’s commission in a manner that differs from the
allegations in the charging instrument. Id. But not all variances are material or fatal.
Id. at 257. A variance between the wording of an indictment and the evidence
presented at trial is fatal only if it is material and prejudices the defendant’s
substantial rights. Id.; see Fuller v. State, 73 S.W .3d 250, 253 (Tex. Crim. App.
2002). In reviewing the materiality of such a variance, we must determine whether
the variance deprived the defendant of notice of the charges and whether the
variance subjects the defendant to the risk of being prosecuted later for the same
crime. Fuller, 73 S.W .3d at 253; Gollihar, 46 S.W .3d at 257.
In Megas v. State, Megas argued there was a fatal variance between his
indictment and the proof at his trial because the indictment charged him with causing
his passenger’s death by colliding into a concrete barrier but the evidence at trial
suggested the passenger died when Megas’s car landed on her. 68 S.W .3d 234,
8 241 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). Rejecting Megas’s fatal
variance argument, the court explained:
The medical examiner testified the injuries that killed [the passenger] were caused by the car’s colliding with the concrete barrier. Officer Leslie Stafford testified that the car collided with the concrete barrier, causing [the passenger] to be partially ejected out of the car, and that when the car flipped on its roof, it rolled on top of [the passenger] and crushed her. Stafford also testified that the car would not have flipped over and crushed [the passenger] if [Megas] had not hit the concrete barrier with his car.
The cause of [the passenger’s] death is directly related to appellant’s striking the concrete barrier. The indictment charges the cause of death as colliding with the barrier, and the evidence shows the collision did cause the death of [the passenger]. The variance is not material.
Id. (citations omitted).
Here, the indictment alleged in relevant part that Appellant had caused Officer
Freeto’s death by driving his motor vehicle “into and against a motor vehicle
occupied by the said Dwayne Freeto.” Although the medical examiner testified that
Officer Freeto did not die from blunt force trauma, the medical examiner explained
that Officer Freeto had “died as a result of the impact which – which caused the fire.”
The accident reconstructionist similarly testified Officer Freeto’s patrol car had
caught fire because Appellant drove his vehicle into the back of the patrol car. Even
assuming the indictment’s “into and against” language required the State to prove
the impact between the two vehicles caused Officer Freeto’s death, we hold the
variance, if any, between the indictment and the proof adduced at trial is not
9 material.3 See id. Moreover, Appellant has not explained how the alleged variance
prevented him from preparing a defense or how he could be prosecuted again under
the same facts. See Fuller, 73 S.W .3d at 253; Megas, 68 S.W .3d at 241. W e will
therefore disregard the alleged variance in determining whether the evidence is
sufficient to prove Appellant caused Officer Freeto’s death by driving his vehicle “into
and against” Officer Freeto’s patrol car.
1. The Evidence is Legally Sufficient
A person commits intoxication manslaughter if the person (1) operates a motor
vehicle in a public place, (2) is intoxicated, and (3) by reason of that intoxication
causes the death of another by accident or mistake. Tex. Penal Code Ann. § 49.08.
Appellant argues only that the evidence is legally insufficient to prove he caused
Officer Freeto’s death “by driving his vehicle into and against” Officer Freeto’s patrol
car; he does not contend the evidence is legally insufficient to prove that he operated
a motor vehicle in a public place, that he was intoxicated, or that his intoxication
caused him to drive his vehicle into Officer Freeto’s patrol car.
The record contains legally sufficient evidence that Appellant caused Officer
Freeto’s death “by driving his vehicle into and against” Officer Freeto’s patrol car.
Two witnesses, Officer Malone and Ozuna, testified that they had seen Appellant’s
3 Because we hold the variance, if any, is not material, we do not address whether the alleged variance prejudiced Appellant’s substantial rights. See Gollihar, 46 S.W .3d at 246 (holding variance fatal only if it is material and prejudices the defendant’s substantial rights).
10 car collide into the rear of Officer Freeto’s patrol car and that they saw an immediate
explosion. Lovett, the accident reconstructionist, testified that the impact between
Appellant’s vehicle and Officer Freeto’s patrol car had caused the fuel in the patrol
car’s fuel tank to spray out of the fuel tank. The escaping fuel ignited from sparks
caused by metal scraping the roadway or from contact with hot exhaust pipes.
Lovett testified that the flames were a direct result of the impact between Appellant’s
vehicle and Officer Freeto’s patrol car. Dr. Peerwani testified that Officer Freeto had
“died as a result of the impact . . . which caused the fire.”
Viewing the evidence in a light most favorable to the prosecution, a rational
jury could have determined beyond a reasonable doubt that Appellant had caused
Officer Freeto’s death “by driving his vehicle into and against” Officer Freeto’s patrol
car. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W .3d at 778.
W e hold the evidence was legally sufficient to support the jury’s verdict. W e overrule
Appellant’s first point.
2. The Evidence is Factually Sufficient
Reviewing all the evidence in a neutral light, we recall that Officer Freeto’s
patrol car was a Ford Crown Victoria and that the State’s expert acknowledged a
past problem with Crown Victorias exploding when hit from behind. Moreover, Dr.
Peerwani testified that Officer Freeto was alive when the fire in his patrol car started
and that he did not die of blunt force trauma; Dr. Peerwani explained that Officer
Freeto had died from inhaling hot air, poisonous gases, fumes, and smoke.
11 However, Dr. Peerwani also testified that the official cause of death was a motor
vehicle collision with fire and that Officer Freeto had “died as a result of the impact
which – which caused the fire.” Officer Malone and Ozuna testified the explosion
had occurred immediately upon impact, Delgado testified the patrol car was already
on fire before it collided with Delgadillo’s car, and Lovett testified the fire would not
have occurred without the impact. Lovett also testified that the recall for the fire
problem in Crown Victorias was for the 1999 through 2003 models and that Officer
Freeto’s Crown Victoria was a 2005 model.
Viewing the evidence in a neutral light, we conclude a rational trier of fact
could have found beyond a reasonable doubt that Appellant had caused Officer
Freeto’s death “by driving his vehicle into and against” Officer Freeto’s patrol car.
W e cannot say that the evidence is so weak that the jury’s determination was clearly
wrong or manifestly unjust or that the conflicting evidence so greatly outweighs the
evidence supporting the conviction that the jury’s determination is manifestly unjust.
See Lancon v. State, 253 S.W .3d 699, 704 (Tex. Crim. App. 2008); W atson, 204
S.W .3d at 414–15, 417. W e therefore hold the evidence was factually sufficient to
support the jury’s verdict. W e overrule Appellant’s second point.
B. Appellant’s Vehicle as a Deadly Weapon
Appellant argues in his third and fourth points that the evidence was legally
and factually insufficient to prove beyond a reasonable doubt that his vehicle
constituted a deadly weapon. A deadly weapon is anything that in the manner of its
12 use or intended use is capable of causing death or serious bodily injury. Tex. Penal
Code Ann. § 1.07(a)(17) (Vernon Supp. 2009). “It is reasonably clear that driving an
automobile constitutes the use of it and that driving [an automobile] in a manner
capable of causing death or serious bodily injury constitutes [the automobile] a
deadly weapon.” Tyra v. State, 897 S.W .2d 796, 798 (Tex. Crim. App. 1995).
1. Appellant’s Contentions
Appellant concedes a motor vehicle can be a deadly weapon. Instead, he
argues there can be no “intended use” of the motor vehicle when the indictment
alleges the offense occurred through “accident and mistake.” However, the court of
criminal appeals decided this issue to the contrary in Walker v. State. See 897
S.W .2d 812, 813–14 (Tex. Crim. App. 1995). W alker argued that “there can be no
affirmative finding of a deadly weapon in a prosecution for involuntary manslaughter
by accident or mistake from the intoxicated operation of a motor vehicle” because
an affirmative finding requires “some intent or desire to use the instrument of death
as a weapon.” Id. at 813. The court of criminal appeals disagreed and held that “it
is evident that not all deadly weapons need be used with an intent to achieve a
specific purpose” and that to support an affirmative deadly weapon finding, “no intent
to use the automobile as a weapon need be shown.” Id. at 814; see also Dotson v.
State, 146 S.W .3d 285, 299–300 (Tex. App.—Fort W orth 2004, pet. ref’d) (rejecting
the appellant’s contention that a deadly weapon finding is improper merely because
offense of manslaughter requires less than intentional conduct).
13 Appellant also contends his motor vehicle was not a deadly weapon because
Officer Freeto died from the fire, not the impact from Appellant’s vehicle. First,
Appellant ignores the evidence that the fire that killed Officer Freeto would not have
occurred had Appellant not driven his vehicle into the back of Officer Freeto’s patrol
car. Second, Appellant omits that the definition of a deadly weapon under section
1.07(a)(17)(B) includes “anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury.” (emphasis added) See Tex.
Penal Code Ann. § 1.07(a)(17)(B). There is no requirement that the deadly weapon
actually cause death or serious bodily injury before the jury can affirmatively answer
the deadly weapon question. See id.; see also McCain v. State, 22 S.W .3d 497, 503
(Tex. Crim. App. 2000) (holding section 1.07(a)(17)(B)’s “plain language does not
require that the actor actually intend death or serious bodily injury; an object is a
deadly weapon if the actor intends a use of the object in which it would be capable
of causing death or serious bodily injury”); Rivera v. State, 271 S.W .3d 301, 304
(Tex. App.—San Antonio 2008, no pet.) (stating knife that did not cause death or
serious bodily injury could be deadly weapon if “the actor intended a use of the knife
in which it would be capable of causing serious bodily injury”). Here, even assuming
Appellant’s vehicle did not cause Officer Freeto’s death, the question for the jury was
whether Appellant used or intended to use his vehicle in a manner capable of
causing death or serious bodily injury, not whether Appellant’s vehicle actually
14 caused Officer Freeto’s death. See McCain, 22 S.W .3d at 497; Rivera, 271 S.W .3d
at 304.
2. The Evidence is Legally Sufficient
To determine whether the evidence supports an affirmative deadly weapon
finding in cases involving motor vehicles, we conduct a two-part analysis. Sierra v.
State, 280 S.W .3d 250, 255 (Tex. Crim. App. 2009). W e first “evaluate the manner
in which the defendant used the motor vehicle during the felony.” Id. W e then
“consider whether, during the felony, the motor vehicle was capable of causing death
or serious bodily injury.” Id.
Here, the jury heard testimony that, before getting onto the interstate,
Appellant sped past a tow truck, almost hitting the tow truck before swerving to avoid
a collision and that Appellant drove erratically on Interstate 35 just before the
collision, moving from the far right lane to the far left lane, back again to the far right
lane, and then onto the shoulder where Officer Freeto’s patrol car was parked with
its emergency lights flashing. Lovett testified Appellant’s vehicle was traveling in
excess of ninety-seven miles per hour at the time of impact. Lovett and Officer
Malone also testified Appellant did not hit his brakes before the impact. The jury
also heard testimony that Appellant’s vehicle did, in fact, cause Officer Freeto’s
death; Lovett testified the patrol car had caught fire because Appellant drove his
vehicle into the back of the patrol car, and Dr. Peerwani testified Officer Freeto had
died as a result of the impact that caused the fire.
15 Viewing the evidence in a light most favorable to the prosecution, a rational
jury could have determined beyond a reasonable doubt that Appellant used or
intended to use his vehicle in a manner capable of causing death or serious bodily
injury. See Tex. Penal Code Ann. § 1.07(a)(17); Sierra, 280 S.W .3d at 256 (holding
evidence of deadly weapon legally sufficient when defendant exceeded speed limit,
failed to maintain control of his SUV, and in fact caused serious bodily injury to
another); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W .3d
at 778. W e hold the evidence was legally sufficient to support the jury’s verdict, and
we overrule Appellant’s fourth point.
3. The Evidence is Factually Sufficient
In addition to the evidence discussed above, Appellant introduced evidence
that driving above the speed limit, standing alone, does not make a motor vehicle a
deadly weapon. For example, Officer Malone testified that driving seventy miles per
hour in a straight line within the traffic lane is not reckless. Lovett similarly testified
that driving seventy-five miles per hour in a sixty mile per hour speed zone might or
might not make a vehicle a deadly weapon, depending on the way the vehicle is
driven. However, Officer Malone testified he believed Appellant’s vehicle was a
deadly weapon because of the way Appellant was driving. Officer Malone testified
that just before the collision, Appellant drove his vehicle at a high rate of speed and
veered from the far right lane to the far left lane, back again to the far right lane, and
then onto the shoulder where Officer Freeto’s patrol car was parked with its
emergency lights flashing. Officer Malone specifically recalled thinking when he saw
16 Appellant speed past him that Appellant would kill someone driving like that. And
Lovett testified that Appellant was driving more than ninety-seven miles per hour in
a sixty mile per hour zone and testified, “At that speed, in that manner, this vehicle
is easily a deadly weapon.”
Viewing the evidence in a neutral light, we conclude a rational trier of fact
could have found beyond a reasonable doubt that Appellant used or intended to use
his vehicle in a manner capable of causing death or serious bodily injury. See Tex.
Penal Code Ann. § 1.07(a)(17). W e cannot say that the evidence is so weak that the
jury’s determination was clearly wrong or manifestly unjust or that the conflicting
evidence so greatly outweighs the evidence supporting the conviction that the jury’s
determination is manifestly unjust. See Lancon, 253 S.W .3d at 704; Watson, 204
S.W .3d at 414–15, 417. W e hold the evidence was factually sufficient to support the
jury’s verdict, and we overrule Appellant’s third point.
VI. Conclusion
Having overruled each of Appellant’s four points, we affirm the trial court’s
judgment.
ANNE GARDNER JUSTICE
PANEL: DAUPHINOT, GARDNER, and W ALKER, JJ.
PUBLISH
DELIVERED: April 15, 2010