author: ANNE GARDNER, Justice.

text:
    Robert John GALLEMORE, Appellant, v. The STATE of Texas, State.
    No. 2-08-481-CR.
    Court of Appeals of Texas, Fort Worth.
    April 15, 2010.

      Ben Leonard, Fort Worth, TX, for Appellant.
    Gregory Preston Lowery, District Attorney and Paige McCormick, Assistant District Attorney for Wise County, Decatur, TX, for State.

      PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

We must decide in this appeal whether double jeopardy bars retrial of a defendant when, following the defendant’s guilty plea, the trial court granted a mistrial and dismissed the case because of an alleged jurisdictional defect in the indictment. We hold that, under the circumstances presented by this case, the answer is “no.” Accordingly, we affirm the trial court’s judgment.

II. Background

A grand jury originally indicted Appellant Robert John Gallemore for felony driving while intoxicated on December 14, 2005, and Appellant entered an open plea of guilty in the 271st District Court of Wise.County, Texas, on March 24, 2006. The trial court accepted Appellant’s plea, found him guilty, and set a hearing to consider punishment.

At the April 27, 2006 sentencing hearing, both sides presented evidence and closed, but before the trial court sentenced Appellant, his attorney told the judge he had “some argument” and proceeded to contend that the State had failed to plead and prove a felony offense. Appellant’s counsel pointed out that one of the offenses alleged as a prior offense in the indictment was actually a subsequent offense. Thus, Appellant’s attorney argued that the indictment alleged only a misdemeanor offense, that Appellant pleaded guilty only to a misdemeanor offense, and that the trial court did not have jurisdiction over the case. However, Appellant did not request dismissal and instead asked only that he be subject to the lesser punishment range for misdemeanor DWI with a maximum punishment of one year’s imprisonment. The trial court ordered the parties to brief the issue, and on May 4, 2006, the trial court sent a letter to the parties that stated, in relevant part, “the Court is of the opinion that it is without jurisdiction, declares a mistrial, and finds that dismissal for lack of jurisdiction would be in order.” The trial court signed an order on May 30, 2007, formally declaring a mistrial and dismissing the case for lack of jurisdiction.

In the meantime, on May 26, 2006, the State reindicted Appellant for the instant DWI and alleged prior DWI convictions dated November 8, 2000, and February 9, 1998, to enhance the DWI to a third-degree felony. The new indictment also contained a habitual offender paragraph that alleged prior convictions for a third DWI and a robbery. Appellant filed a “Special Plea of Former Jeopardy” in the reindict-ed case, which the trial court denied on June 27, 2007.

On April 2, 2008, Appellant filed a “Petition for Writ of Habeas Corpus Double Jeopardy” in which he alleged that prosecution under the reindicted case was barred. Specifically, Appellant alleged that (1) jeopardy had attached in the former proceeding because Appellant had already entered his guilty plea and (2) there was no manifest necessity for declaring a mistrial. The trial court denied the requested relief on April 30, 2008. Appellant appealed the denial of his petition for ha-beas corpus to this court, and this court affirmed the trial court’s order. See Ex parte Gallemore, No. 02-08-00154-CR, 2008 WL 2780667, at *2 (Tex.App.-Fort Worth July 17, 2008, orig. proceeding) (mem. op., not designated for publication) (holding jeopardy did not bar second proceeding when district court did not have jurisdiction over first proceeding).

On November 5, 2008, Appellant again entered an open plea of guilty to felony DWI. The trial court found Appellant guilty, found the enhancement paragraphs to be true, and sentenced Appellant to twenty-five years’ imprisonment. This appeal followed.

III. Analysis

Appellant argues in two points that the trial court erred by declaring a mistrial in the first proceeding because there was no manifest necessity to declare a mistrial and that double jeopardy bars the second proceeding. Each point concerns the 271st District Court’s jurisdiction, or lack of jurisdiction, over the first proceeding.

A. Law of the Case

As a preliminary matter, we note that Appellant’s arguments in this appeal are very similar to those from his prior appeal of the denial of his writ of habeas corpus. “Under the law of the case doctrine, an appellate court’s resolution of a question of law in a previous appeal of the same case will govern the disposition of the same issue when raised in a subsequent appeal.” Zavala v. State, 956 S.W.2d 715, 718 (Tex.App.-Corpus Christi 1997, no pet.); see also Ware v. State, 736 S.W.2d 700, 701 (Tex.Crim.App.1987) (“[Wjhen the facts and legal issues in a case on appeal are virtually identical with those in a previous appeal in which the legal issues were resolved[,] then logic and reason dictate that the appeals be viewed as the same case.”). However, the reconsideration or further consideration of an issue on a second appeal is a matter of discretion. See Ex parte Granger, 850 S.W.2d 513, 516 (Tex.Crim.App.1993); Peden v. State, 917 S.W.2d 941, 956 (Tex.App.-Fort Worth 1996, pet. ref'd). In this case, although we reach the same conclusion we reached when we affirmed the denial of Appellant’s petition for writ of habeas corpus, we exercise our discretion to further consider Appellant’s arguments because they present important questions of Texas law.

B. Applicable Law

The Double Jeopardy Clause of the United States Constitution provides that no person shall be subjected to twice having life or limb in jeopardy for the same offense. U.S. Const, amend. V. Generally, this clause protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977); Ex parte Herron, 790 S.W.2d 623, 624 (Tex.Crim.App.1990) (op. on reh’g).

Jeopardy attaches in a bench trial when both sides have announced ready and the defendant has entered his plea. Ortiz v. State, 933 S.W.2d 102, 105-06 (Tex.Crim.App.1996); State v. Torres, 805 S.W.2d 418, 420-21 (Tex.Crim.App.1991). But a subsequent prosecution for the same offense is not jeopardy-barred when the initial conviction was obtained in the absence of jurisdiction because such a conviction is a nullity, and jeopardy does not attach. Hoang v. State, 872 S.W.2d 694, 697-98 (Tex.Crim.App.1993), cert. denied, 513 U.S. 863, 115 S.Ct. 177, 130 L.Ed.2d 112 (1994); Nassar v. State, 797 S.W.2d 318, 319-20 (Tex.App.-Corpus Christi 1990, pet. refd); see Houston v. State, 556 S.W.2d 345, 347 (Tex.Crim.App.1977). Further, double jeopardy principles do not forbid multiple trials of a single criminal charge if the first trial resulted in a mistrial that: (1) was justified under the manifest necessity doctrine; or (2) was requested or consented to by the defense, absent prosecutorial misconduct which forced the mistrial. Ex parte Washington, 168 S.W.3d 227, 235-36 (Tex.App.-Fort Worth 2005, orig. proceeding). A mistrial declared because of a jurisdictional defect in the indictment is one example of manifest necessity. See Illinois v. Somerville, 410 U.S. 458, 467-69, 93 S.Ct. 1066, 1072-73, 35 L.Ed.2d 425 (1973); McClendon v. State, 583 S.W.2d 777, 779 (Tex.Crim.App.1979).

C. Discussion

Appellant argued at the April 27, 2006 sentencing hearing that the district court did not have jurisdiction over the first proceeding because the indictment did not allege a felony. On appeal, Appellant argues the district court did have jurisdiction because the substantively defective indictment vested the district court with jurisdiction and the district court retained jurisdiction over the lesser-included misdemeanor offense the indictment actually alleged.

1. Jurisdiction of the 271st District Court

The Texas constitution grants exclusive, appellate,. and original jurisdiction to district courts over all cases except those cases where exclusive, appellate, or original jurisdiction is granted to another court. Tex. Const, art. V, § 8; Tex. Gov’t Code Ann. § 24.007 (Vernon 2004). Relevant to this case, the code of criminal procedure provides that district courts “have original jurisdiction in criminal cases of the grade of felony.” Tex.Code Crim. Proc. Ann. art. 4.05 (Vernon 2005); see also Puente v. State, 71 S.W.3d 340, 343 (Tex.Crim.App. 2002) (“A district court has jurisdiction over felony offenses. It does not have jurisdiction over misdemeanor charges, except those involving official misconduct.”). The code of criminal procedure also states that county courts have “original jurisdiction of all misdemeanors of which exclusive original jurisdiction is not given to the justice court, and when the fine to be imposed shall exceed five hundred dollars.” Tex.Code Crim. Proc. Ann. art. 4.07. Because there is no statute granting the 271st District Court concurrent jurisdiction with a county court over misdemeanor cases, the 271st District Court only has jurisdiction over felonies. Cf. Tex. Gov’t Code Ann. § 24.910(c) (Vernon 2004) (giving Tarrant County Criminal District Courts “concurrent original jurisdiction with the county criminal courts over misdemeanor cases”).

2. The district court did not have jurisdiction over the first proceeding because the indictment did not allege a felony

Appellant first contends the district court had jurisdiction over the first proceeding because even a substantively defective indictment vests a trial court with jurisdiction. See, e.g., Ex parte Morris, 800 S.W.2d 225, 227 (Tex.Crim.App.1990) (orig. proceeding); Ex parte Gibson, 800 S.W.2d 548, 551 (Tex.Crim.App.1990) (orig. proceeding); Rodriguez v. State, 799 S.W.2d 301, 303 (Tex.Crim.App.1990); Studer v. State, 799 S.W.2d 263, 273 (Tex. Crim.App.1990). Although this legal proposition is facially correct, it does not apply to this case. As the court of criminal appeals stated in Tamez v. State,

when prior convictions are used to elevate what would otherwise be a misdemeanor offense to the level of a felony, they must be pled in the indictment for the trial court to gain jurisdiction.... [Jurisdiction vests when the pleadings are submitted to the trial court and contain the requisite number of previous convictions.

11 S.W.3d 198, 201 (Tex.Crim.App.2000) (emphasis added) (citing Turner v. State, 636 S.W.2d 189, 196 (Tex.Crim.App.1980), and Gant v. State, 606 S.W.2d 867, 871 (Tex.Crim.App. [Panel Op.] 1980)). Here, Appellant’s first indictment alleged only one prior DWI conviction, but two prior DWI convictions are necessary to enhance a DWI to a third-degree felony. See Tex. Penal Code Ann. § 49.09(b). Because the indictment did not allege the “requisite number of previous convictions,” the indictment alleged only a misdemeanor and jurisdiction over the first proceeding never vested in the district court. Tamez, 11 S.W.3d at 201.

Citing Ex parte Sparks, Appellant next contends the district court had jurisdiction over the first proceeding because a district court retains jurisdiction over a lesser-included misdemeanor when the State fails to prove the felony alleged in the indictment. See 206 S.W.3d 680, 682 (Tex.Crim. App.2006) (orig. proceeding). In Sparks, the court of criminal appeals held: “The indictment in this case alleged misdemean- or DWI, enhanced to a felony by two prior DWI convictions. This pleading invoked the jurisdiction of the district court for the felony that was alleged, and that jurisdiction extended to the misdemeanor offenses that were included in the indictment.” Id. (discussing Tex.Code Crim. Proc. Ann. art. 4.06 (Vernon 2005)); see also Jones v. State, 502 S.W.2d 771, 773-74 (Tex.Crim.App.1973) (holding district court did not lose jurisdiction when State proved only lesser-included misdemeanor of indicted felony).

Sparks is distinguishable, however, because the face of Sparks’s indictment actually alleged a felony offense over which the district court had jurisdiction (a misdemeanor enhanced to a felony by two prior DWI convictions) whereas the face of Appellant’s indictment alleged only a class B misdemeanor over which the district court did not have jurisdiction (a misdemeanor enhanced by only one prior DWI conviction). See Sparks, 206 S.W.3d at 682. Here, the State could have proven every allegation in Appellant’s indictment but would have proven only a class B misdemeanor because the indictment alleged only one prior DWI conviction. See Tex. Penal Code Ann. § 49.09(a), (b)(2). Thus, the face of Appellant’s indictment did not allege a felony, and the district court never acquired jurisdiction over the first proceeding. See Tamez, 11 S.W.3d at 201.

3. Jeopardy does not bar the second proceeding

Jeopardy does not bar a second proceeding when the first proceeding ended in a mistrial that was justified by a manifest necessity. Ex parte Washington, 168 S.W.3d at 235-36. And a jurisdictional defect in the indictment is one example of manifest necessity. See Somerville, 410 U.S. at 467-69, 93 S.Ct. at 1072-73; McClendon, 583 S.W.2d at 779. In this case, the indictment in the first proceeding did not allege a felony, creating a jurisdictional defect. And this jurisdictional defect in the indictment created manifest necessity. See Somerville, 410 U.S. at 467-69, 93 S.Ct. at 1072-73; McClendon, 583 S.W.2d at 779 (recognizing jurisdictional defect in an indictment as constituting manifest necessity). Therefore, the trial court did not err by sua sponte declaring a mistrial and dismissing the first proceeding for lack of jurisdiction. We overrule Appellant’s first point.

Further, it is immaterial that Appellant had pleaded guilty before the trial court sua sponte declared a mistrial. Appellant’s guilty plea in the first proceeding was void because the trial court did not have jurisdiction over the first proceeding. See Ex parte McCain, 67 S.W.3d 204, 210 (Tex.Crim.App.2002) (defining void convictions as “those in which the trial court lacked jurisdiction over the person or subject matter or in which the trial judge lacked qualification to act in any manner” (emphasis added)). And “a void judgment of conviction does not bar a successive prosecution for the same offense under State or federal principles of double jeopardy.” Hoang, 872 S.W.2d at 698. Because the trial court lacked jurisdiction, jeopardy did not attach. Id. We overrule Appellant’s second point.

IV. Conclusion

Having overruled each of Appellant’s points, we affirm the trial court’s judgment.

      . See Tex. Penal Code Ann. § 49.04(a) (Vernon 2003); id. § 49.09(b) (Vernon Supp. 2009).

      . Driving while intoxicated under penal code section 49.04 is a class B misdemeanor. Tex. Penal Code Ann. § 49.04(a). However, a DWI is a class A misdemeanor if the State proves at trial that the defendant had one prior DWI conviction and is a third-degree felony if the State proves at trial that the defendant had two prior DWI convictions. Id. § 49.09(a), (b)(2).

      . Jones is similarly distinguishable. The face of the indictment alleged a felony offense. Jones, 502 S.W.2d at 773. Had the State proven that Jones possessed at least four ounces of marijuana, Jones would have been guilty of a felony. Id. Because the State proved only that Jones possessed less than four ounces of marijuana, he was guilty only of a misdemeanor, but the trial court retained jurisdiction because the failure was one of evidence rather than the allegations in the indictment. Id. at 773-74.


source: Caselaw Access Project

author: BILL MEIER, Justice.

license: Public Domain

text:
    Jerry Eugene MILLER, II, Appellant, v. The STATE of Texas, State.
    Nos. 2-08-458-CR, 2-08-459-CR, 2-08-460-CR, 2-08-461-CR.
    Court of Appeals of Texas, Fort Worth.
    April 15, 2010.

      Scott Brown, Fort Worth, TX, for Appellant.
    Don Schnebly, District Attorney, Edward D. Lewallen, Assistant District Attorney Parker County, Weatherford, for Appellee.
    PANEL: DAUPHINOT, McCOY, and MEIER, JJ.
   OPINION

BILL MEIER, Justice.

I.Introduction

Appellant Jerry Eugene Miller, II argues the trial court should have granted his motions to suppress evidence. In two points, Appellant argues that the arrest and search warrants were not supported by probable cause and that his videotaped statement was taken after his illegal arrest and was not voluntarily given. We will affirm.

II.Procedural Background

Appellant was charged in four separate indictments with felony theft offenses: two indictments alleged theft over $20,000 but less than $100,000, and two indictments alleged theft over $1,500 but less than $20,000. See Tex. Penal Code Ann. § 31.03(e)(4)-(5) (Vernon Supp. 2009). By filing motions to suppress in each of the four cases, Appellant sought to suppress “all evidence seized” by challenging the probable cause supporting his arrest and search warrants and the voluntariness of his videotaped statement. The trial court denied each of Appellant’s motions to suppress after conducting two evidentiary hearings. Appellant thereafter entered a plea of nolo contendere to each of the charged offenses. Pursuant to the plea agreement, the trial court deferred an adjudication of Appellant’s guilt and placed him on ten years’ community supervision in two cases and five years’ community supervision in the other two cases. These appeals followed.

III.Standard of Review

We review a trial court’s ruling on a motion to suppress evidence under a bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.Crim.App.2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We give almost total deference to a trial court’s rulings on questions of historical fact and application-of-law-to-fact questions that turn on an evaluation of credibility and demeanor, but we review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005); Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002). We must uphold the trial court’s ruling if it is supported by the record and correct under any theory of law applicable to the ease even if the trial court gave the wrong reason for its ruling. State v. Stevens, 235 S.W.3d 736, 740 (Tex.Crim.App.2007); Armendariz v. State, 123 S.W.3d 401, 404 (Tex.Crim.App.2003), cert. denied, 541 U.S. 974, 124 S.Ct. 1883, 158 L.Ed.2d 469 (2004).

IV. Appellant’s Arrest

Appellant contends in part of his first point that the trial court should have granted his motion to suppress because the arrest warrant affidavit did not establish probable cause. The State counters that, even if the arrest warrant is invalid, the arresting officers witnessed Appellant commit an offense in their presence and could have validly arrested Appellant without a warrant.

“A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.” Tex.Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005); State v. Steelman, 93 S.W.3d 102, 107 (Tex.Crim.App.2002). The test for probable cause for a warrant-less arrest under article 14.01(b) is “whether at that moment the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.” Steelman, 93 S.W.3d at 107 (quoting Beverly v. State, 792 S.W.2d 103, 105 (Tex.Crim.App.1990)).

Here, the officers could have validly arrested Appellant because the truck he was driving at the time of his arrest was stolen. Investigator James Peel testified at the suppression hearing that he knew the truck Appellant was ■ driving at the time of his arrest was stolen because Investigator Kevin Hilliard had described the truck as stolen and two or three named informants in custody had described the stolen truck to investigators. Investigator Hilliard similarly testified that the officers on the scene knew the vehicle Appellant was driving had been stolen; Michael Brooks had previously informed Investigator Hilliard that Appellant was currently driving a stolen Dodge truck and that Appellant had taken the VIN plate from a Dodge truck he owned and placed it onto the stolen Dodge truck he was driving. And Investigator Hilliard had previously seen a Dodge truck on Appellant’s property with a missing VIN plate. This reasonably trustworthy information gave the officers probable cause to arrest Appellant without a warrant for committing the offenses of theft, unauthorized use of a motor vehicle, or tampering with vehicle identification numbers. See Tex. Penal Code §§ 31.03, .07(a) (Vernon 2003), .11(a) (Vernon Supp. 2009); Brown v. State, 986 S.W.2d 50, 52 (Tex.App.-Dallas 1999, no pet.) (holding computer database report indicating vehicle was stolen provided officers with probable cause to make warrant-less arrest of driver). .

Because the arresting officers witnessed Appellant commit at least one offense in their presence, the officers could have validly arrested Appellant without a warrant. See Tex.Code Crim. Proc. Ann. art. 14.01(b); Tex. Penal Code §§ 31.03, .07(a), .11(a). Therefore, we need not decide whether Appellant’s arrest warrant provided the magistrate with sufficient information to support an independent judgment that probable cause existed for the warrant. See Tex.R.App. P. 47.1. We overrule this portion of Appellant’s first point.

V. The Three Search Warrants

Appellant argues in the remainder of his first point that the three search warrants were not based on probable cause. In deciding whether to address the merits of an appeal from the denial of a motion to suppress, we must first identify the fruits that the trial court declined to suppress. Gonzales v. State, 966 S.W.2d 521, 524 (Tex.Crim.App.1998). If it is not clear from the testimony and exhibits what the “fruits” are, then we need not address the merits of the claim. Id.

In this case, Appellant’s motions sought to suppress “certain items [that] were allegedly seized” and “any evidence obtained pursuant to the warrants.” Appellant’s brief in this court similarly states that he sought to suppress “all evidence seized” in his four cases. Nowhere, though, has Appellant identified the specific items of evidence or categories of evidence he sought to exclude by challenging the three search warrants. Appellant has therefore presented nothing for our review. See Brennan v. State, 140 S.W.3d 779, 781 (Tex.App.-Houston [14th Dist.] 2004, pet. ref d) (holding global request to suppress “all evidence seized or obtained” from alleged illegal searches and failure “to identify what, if any, evidence was ruled upon by the denial” presented nothing for appellate review). We overrule the remainder of Appellant’s first point.

VI. Appellant’s Videotaped Statement

Appellant argues in his second point that the trial court erred by denying his motion to suppress his oral and written statements. Specifically, Appellant contends that his videotaped statement should have been suppressed because it was taken after his illegal arrest and was not freely and voluntarily given.

A. Legality of Appellant’s Arrest

Appellant first contends his videotaped statement should be suppressed because it was taken after his illegal arrest. We held above, however, that Appellant’s arrest was not illegal because Appellant committed an offense in the officers’ presence. We therefore overrule this portion of Appellant’s second point.

B. Voluntariness of Appellant’s Statement

Appellant also argues that his videotaped statement should have been suppressed because it was not voluntarily given. Specifically, Appellant contends his statement was involuntary because he was held in “a solitary, brutally cold cell for several hours” without food and water and because investigators allegedly made promises to him during the interrogation. The trial court found that the “[statements made by [Appellant] were voluntary and not the result of coercive police activity nor were they given as a result of improper promises made by police officers.”

1. Applicable Law

An accused’s statement is admissible evidence if the accused made it freely and voluntarily and without compulsion or persuasion. Tex.Code Crim. Proc. Ann. art. 38.21 (Vernon 2005). When deciding whether a statement was voluntary, we consider the totality of the circumstances in which the statement was obtained. Creager v. State, 952 S.W.2d 852, 855 (Tex.Crim.App.1997); Reed v. State, 59 S.W.3d 278, 281 (Tex.App.-Fort Worth 2001, pet. ref'd). A confession is involuntary if circumstances show that the defendant’s will was “overborne” by police coercion. Creager, 952 S.W.2d at 856. The defendant’s will may be “overborne” if the record shows that there was “official, coercive conduct of such a nature” that a statement from the defendant was “unlikely to have been the product of an essentially free and unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App.1995); Frank v. State, 188 S.W.3d 63, 75 (Tex.App.-Fort Worth 2005, pet. ref'd).

If a promise made by a person in authority induced a confession, then that confession is inadmissible. Penry v. State, 903 S.W.2d 715, 748 (Tex.Crim.App.), cert. denied, 516 U.S. 977, 116 S.Ct. 480, 133 L.Ed.2d 408 (1995); Alvarez v. State, 649 S.W.2d 613, 620 (Tex.Crim.App.1982), cert. denied, 464 U.S. 849, 104 S.Ct. 156, 78 L.Ed.2d 144 (1983). But before a promise will render a confession inadmissible, the promise must be shown to have induced the confession because it was positive for the defendant, made or sanctioned by someone in authority, and of such an influential nature that the appellant might speak untruthfully in response. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.), cert. denied, 510 U.S. 837, 114 S.Ct. 116, 126 L.Ed.2d 82 (1993). In our review, we look to whether the circumstances of the promise would reasonably induce a defendant to admit to a crime he did not commit. Sossamon v. State, 816 S.W.2d 340, 345 (Tex.Crim.App.1991), abrogated on other grounds by Graham v. State, 994 S.W.2d 651 (Tex.Crim.App.1999).

2. Analysis

Appellant argues that the condition of his detention rendered his videotaped statement involuntary. Appellant testified at the suppression hearing that he was kept in a cold cell for ten hours without a blanket, food, or water. However, Investigator Jody Johnson testified that he did not recall Appellant complaining on the day of the interview about the conditions of the jail or saying that he was cold or hungry. And Investigator Hilliard testified that he interviewed Appellant approximately four hours after he was arrested. Given this conflicting testimony, the volun-tariness of Appellant’s videotaped statement involved the trial court’s evaluation of credibility and demeanor. See Stewart v. State, No. 04-08-00274-CR, 2009 WL 2183397, at *6 (Tex.App.-San Antonio July 21, 2009, pet. refd) (mem. op., not designated for publication) (holding trial court did not err by finding oral statements voluntarily given when trial court heard conflicting evidence concerning the appellant’s alleged deprivation of food, water, medication, or bathroom access over the course of twelve hours). Deferring as we must to the trial court’s determination of credibility and demeanor, we hold the trial court did not abuse its discretion by finding the conditions of Appellant’s detention did not render his videotaped statement involuntary. See Bell v. State, 169 S.W.3d 384, 391-92 (Tex.App.-Fort Worth 2005, pet. refd) (holding eight hours of questioning while in handcuffs and leg shackles did not render confession involuntary where appellant never indicated he did not want to answer any more questions or wanted to speak to attorney and never requested food, water, or bathroom breaks).

Appellant also argues that his oral statements were involuntary because investigators made the following “promises” to him during the interview: (1) telling Appellant he was arrested because he “blew off’ investigators after they asked him to help recover the stolen property; (2) offering to make Appellant’s arrests on other charges more convenient by allowing him to turn himself in or be arrested for several charges at one time; (3) offering to not mention Appellant’s girlfriend (his alibi witness) to his wife when they questioned her about Appellant’s crimes; (4) telling Appellant that telling the truth is “a start” for how to get out of trouble but simultaneously saying they were not making any promises to Appellant; (5) offering to ask the district attorney to drop the charges for a motorcycle theft but also stating the investigator could not promise the district attorney would agree to drop the charges; and (6) telling Appellant they would not arrest him on other charges immediately but instead would give him time to gather other stolen property before they arrested him again. We do not believe any of these alleged promises rendered Appellant’s videotaped statement involuntary.

Appellant testified at the suppression hearing that he did not initiate the interview with the investigators and that he understood the investigators told him during the interview that the other cases they might file against him would “go away” if he “worked with” the investigators. On the other hand, Investigator Johnson testified that Appellant initiated the interview by asking to speak with him. Consistent with Investigator Johnson’s testimony, the videotape shows that Investigator Johnson stepped into the room at the beginning of the interview and stated, “They said you wanted to talk to me.” The videotape also shows that investigators read Appellant his Miranda rights and that Appellant acknowledged he understood his rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Appellant also testified that officers promised to dismiss charges against him if he cooperated with them, but the videotaped interview does not corroborate Appellant’s testimony. Investigator Ricky Montgomery did tell Appellant during the interview that he would ask the district attorney to dismiss the charges against Appellant on the stolen motorcycle case if he helped them recover the stolen generator and other stolen property, but Investigator Montgomery simultaneously told Appellant that he could not promise Appellant anything, that the district attorney would decide whether to dismiss any charges, and that it was not Investigator Montgomery’s decision to make. Moreover, the videotaped interview shows that the investigators repeatedly told Appellant he would in fact be charged in several cases but that they would make the process as convenient for him as they could if he would help them recover the stolen property. For example, Investigator Hilli-ard offered to call Appellant once the cases were filed so Appellant could arrange for bond before he was arrested and possibly spend little to no time in jail before bonding out. But Investigator Hil-liard also told Appellant that he did not have the authority to dismiss cases.

Given the explicit representations of lack of authority to dismiss charges, we do not believe the investigators’ statements or offers were of such a nature that Appellant might speak untruthfully in response. See Johnson, 68 S.W.3d at 654-55 (holding defendant’s confession voluntary where defendant initiated discussion of a deal to avoid death penalty, detective told defendant the police could make no guarantees, and detective indicated “police were without authority to make deals but instead could only relay information to the court and prosecutor”). After viewing the record in the light most favorable to the trial court’s ruling and deferring as we must to the trial court’s credibility determinations, we cannot say the trial court erred by finding that Appellant’s oral statements were voluntarily given. See Sossamon, 816 S.W.2d at 345 (stating a promise must, among other things, be “of such character as would be likely to influence the defendant to speak untruthfully” before it will render a confession involuntary). We overrule the remainder of Appellant’s second point.

VII. Conclusion

Having overruled each of Appellant’s two points, we affirm the trial court’s judgments.


text:
    Samuel Lee HILBURN, Appellant, v. The STATE of Texas, State.
    No. 2-08-276-CR.
    Court of Appeals of Texas, Fort Worth.
    April 15, 2010.

      Kenneth Gordon, Fort Worth, TX, for Appellant.
    Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallín, Chief, Appellate Section, and Sharon A. Johnson, Richard Alpert, Tanya S. Dohoney and Mark Theil-man, Assistant District Attorneys for Tar-rant County, Fort Worth, TX, for Appel-lee.
    PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

Appellant Samuel Lee Hilburn appeals his conviction for intoxication manslaughter. 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. We affirm.

II. Factual Background

In the early morning hours of December 17, 2006, Adriana Delgadillo was driving south on Interstate 35 in Fort Worth 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 Delgadil-lo called for roadside assistance.

Fort Worth Police Officer Dwayne Free-to arrived shortly thereafter and parked his patrol car on the shoulder behind Del-gadillo’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 Delga-dillo’s car to wait for roadside assistance. While 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 Worth vice officer whose shift had ended at 3:00 a.m., was driving home from work when Appellant’s vehicle passed him at a high rate of speed. Officer Malone watched Appellant’s vehicle crash into Officer Free-to’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. While he was there, hospital nurses took samples of Appellant’s blood 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 reconstruc-tionist Tim Lovett testified that Appellant was driving more than ninety-seven miles per hour at the time of the collision. Lo-vett testified that the emergency lights on Officer Freeto’s patrol ear 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. Lo-vett 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 Woodall, Lauren Coffman, and Daniel Escamilla testified for Appellant at trial. They explained that the three of them and Appellant had gone to two different clubs in Fort Worth 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 Free-to.” 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 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (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 évidence. 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, — U.S. -, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (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, 120 S.Ct. 2008, 146 L.Ed.2d 958 (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). We must presume that the factfinder resolved any conflicting inferences in favor of the prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Clayton, 235 S.W.3d at 778.

B. Factual Sufficiency

When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party. Steadman v. State, 280 S.W.3d 242, 246 (Tex.Crim.App.2009); Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App.2006). We then ask whether the 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 factfin-der’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.Bd 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.

Y. 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 Free-to’s patrol car. Appellant argues the indictment 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, 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 material. 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. We 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 Free-to’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 Free-to’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 car collide into the rear of Officer Freeto’s patrol car and that they saw an immediate explosion. Lovett, the accident recon-structionist, 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. We hold the evidence was legally sufficient to support the jury’s verdict. We overrule Appellant’s first point.

2. The Evidence is Factually Sufficient

Reviewing all the evidence in a neutral light, we recall that Officer Free-to’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. 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. We 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); Watson, 204 S.W.3d at 414-15, 417. We therefore hold the evidence was factually sufficient to support the jury’s verdict. We 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 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). Walker 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 Worth 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).

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 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). We first “evaluate the manner in which the defendant used the motor vehicle during the felony.” Id. We 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.

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. We 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 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). We 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. We 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.

      . See Tex. Penal Code Ann. § 49.08(a) (Vernon Supp.2009).

      . Two other witnesses testified that Appellant’s car had passed them at a high rate of speed just before colliding with Officer Free-to’s patrol car.

      . 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).