author: LAURA CARTER HIGLEY, Justice.

text:
    Clinton MITCHELL, Appellant, v. The STATE of Texas, Appellee.
    No. 01-08-00785-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 18, 2010.
    Discretionary Review Refused Aug. 25, 2010.

      J. Sidney Crowley, Houston, TX, for Appellant.
    Alan Curry, Chief Prosecutor, Appellate Division, Harris County District Attorney’s Office, Scott A. Durfee, Assistant District Attorney, Houston, TX, for Appel-lee.
    Panel consists of Chief Justice RADACK and Justices ALCALA and HIGLEY.
   OPINION

LAURA CARTER HIGLEY, Justice.

A jury found appellant, Clinton Mitchell, guilty of criminally negligent homicide. The jury also found, in a special issue, that appellant used a deadly weapon, namely, a motor vehicle, during the commission of the offense. The trial court assessed punishment at five years in prison. In two points of error, appellant challenges the legal and factual sufficiency of the evidence to support his conviction.

We affirm.

Background

It is undisputed that, while driving a dump truck for his employer, the City of Houston, appellant ran over and killed the complainant, Adam Knetsar. As a result of the incident, a grand jury indicted appellant for the offense of criminally negligent homicide. The indictment alleged that appellant had caused Knetsar’s death by criminal negligence.

At trial, the State presented eight witnesses, who were at the scene of the incident. Chief among them was Chandra Kelly, appellant’s co-worker, who was in the passenger seat of the dump truck at the time of the incident.

Kelly and appellant were laborers employed by the City of Houston. On the morning of October 24, 2006, she and appellant had left one job site and were en route to another in a city dump truck. To reach the job site, appellant and Kelly traveled south down Atascocita Road toward Will Clayton Parkway. Where it intersects Will Clayton Parkway, Atascoci-ta Road has four lanes: two middle lanes for traffic going straight, a left turn lane, and a right-turn lane. The route to the next job site required appellant to drive straight through the intersection.

Kelly testified that, as they were approaching the intersection, the dump truck was in the “middle lane.” But as they drew closer, the dump truck veered into the “right lane.” On questioning, Kelly stated that she was positive that, as they approached the intersection, the light was red; she noted that “[a]ll the cars [were] at a standstill.” Kelly testified that she knew they were about to have an accident because she saw a stationery Jeep Cherokee in the right-turn-only lane and noticed that appellant was accelerating. To avert the impact with the Jeep, Kelly testified that she called appellant’s name three times, to no avail. Kelly closed her eyes immediately before the dump truck struck the back of the Jeep. She kept her eyes closed until the truck came to a stop across the street. She testified that she never heard or felt appellant apply the brakes.

Other scene witnesses described how, after the impact with the dump truck, the Jeep went “airborne,” with all four of its wheels leaving the pavement. The Jeep struck a traffic light pole and then landed on its driver’s side.

After striking the Jeep, the dump truck continued across the intersection toward a group of workers who were installing new traffic signals. Adam Knetsar was among the workers. The dump truck ran over Knetsar, killing him. The truck also struck another worker, who sustained multiple fractures, including two broken legs. After striking the workers, the dump truck continued to roll through a ditch onto a grassy area. It came to a stop at the edge of a Walgreen’s parking lot.

With respect to the details preceding the chain of events that resulted in Knet-sar’s death, the State offered other scene-witness testimony, which corroborated Kelly’s account. A number of witnesses commented on the speed of appellant’s dump truck as he approached the intersection. One witness noticed in her side mirror that appellant was approaching from behind “very fast.” Another driver, who was stopped at the light on Ataseocita, saw appellant to his right driving past “at a considerable rate of speed.” He believed appellant that was traveling 35 to 45 miles per hour. Yet another witness, who was in a van stopped at the intersection, looked in her rear view mirror and saw appellant approaching from behind in the right-turn-only lane. She observed that he was traveling at “a high rate of speed.” The witness recalled that she knew that “something terrible was going to happen” because she had seen a vehicle stopped in the right lane. She knew that appellant was going too fast to either stop for the red light or to make the turn.

In addition, one other witness testified that the Jeep was stopped in the right-turn-only lane before the impact. Two othér witnesses, who were at a gas station at the intersection, each unequivocally testified that the light for traffic on Atascoci-ta for southbound traffic was red. Other witnesses, who were in vehicles at the intersection, confirmed that the southbound traffic on Ataseocita was stopped at the time of the impact. None of the witnesses, when questioned, heard appellant apply his brakes at any point during the incident.

Only one witness, who was driving behind appellant, testified that appellant’s light was green. That witness also testified that appellant was not in the right-turn-only lane when he hit the Jeep. She could not tell where the Jeep was before appellant hit it. The witness also stated that the dump truck was traveling less than 45 miles per hour.

The State also presented the expert testimony of two officers from the Harris County Sheriffs Department. Each officer has specialized training in accident investigation. The first to testify, Sergeant S. Parker, arrived at the scene 45 minutes following the incident.

Sergeant Parker told the jury that he had observed that the right-turn-only lane on Ataseocita had a very large gouge mark, indicating the spot of the collision. Sergeant Parker stated that the gouge mark had not weathered and appeared to be freshly made. The sergeant also testified that he found no evidence of braking, such as skid marks, at the scene. Sergeant Parker also observed that the tire marks on the grassy area, over which the dump truck had traveled before coming to a stop, indicated that the truck’s tires had been rolling, not skidding. Sergeant Parker further explained that the truck had rolled through a ditch before stopping and stated that it was natural forces, not braking, that had made the truck finally stop.

Sergeant Parker further testified that the greatest amount of damage to the Jeep was at its rear, indicating that it was hit with the greatest force from behind. On further questioning, Parker explained that damage to the front, left side of the Jeep was caused when the Jeep struck the traffic light pole after being hit from behind.

The State also presented the testimony of Deputy D. Pearson, who testified that he has received advanced accident investigation training. Through the training, Deputy Pearson has learned how to apply different formulas to determine the speed at which a vehicle was traveling at the time of a collision. In this case, Deputy Pearson explained to the jury that he had applied two different formulas to determine the speed of appellant’s vehicle at the time of the impact with the Jeep.

Deputy Pearson told the jury that the Jeep had traveled 73 feet before it hit the traffic light pole. Applying the “conservation momentum formula,” Deputy Pearson testified that he calculated that the dump truck was traveling at a minimum speed of 37 miles per hour when it struck the back of the Jeep. But, Deputy Pearson also told the jury that he did not think that this was “realistic” and did not reflect the “true speed” of the dump truck. He believed that the truck had been traveling faster.

Deputy Pearson also applied the “energy formula.” Using this, he calculated that the dump truck had been traveling at a minimum of 45 to 50 miles per hour at the time of the collision.

The evidence introduced through Deputy Pearson also showed that, at the time the dump truck ran over Knetsar, it was traveling at 23 miles per hour.

In addition, Deputy Pearson told the jury that appellant held a commercial driver’s license, which is required to drive a commercial dump truck. The deputy explained that, to obtain a commercial driver’s license, a driver must undergo an “extensive” application process and take a specialized driving test. The driver must demonstrate a proficiency in driving the type of commercial vehicle that he will ultimately drive on the road. A holder of a commercial driver’s license must also attend a federally mandated safety education program.

The officer explained that these additional requirements are placed on commercial drivers because of the “increased risks” that accompany driving a commercial vehicle. One such risk is the additional weight of commercial vehicles compared to passenger vehicles. As an example, Deputy Pearson noted that the 31,000 pound dump truck in this case weighed eight times that of the Jeep it hit. Deputy Pearson stated, “[W]e know when we have that much mass involved in a crash, there is a potential for serious injury or death that increases.”

Deputy Pearson also explained that a dump truck’s bumper is much higher than that of a passenger vehicle. As a result, in a collision, the commercial vehicle’s bumper will often penetrate the “softer portion” of the passenger vehicle, thereby increasing the severity of the resulting injuries. Deputy Pearson pointed out that such was the case here, as could be seen in the photographs of the Jeep.

Evidence introduced at trial showed that the dump truck had “air brakes.” Deputy Pearson explained that air brakes have a half-second delay to engage. He continued, “[Y]ou have to take [sic] more attention to your driving because it’s going to take longer for you to stop.”

Following the presentation of the State’s case, appellant testified in his own defense. Appellant stated that, as he approached the intersection of Atascocita and Will Clayton, he was driving in the right, center lane to go straight through the intersection. He claimed that Kelly was napping in the passenger seat. Appellant denied that he ever moved into the right-turn-only lane. He stated that he was going 35 to 37 miles per hour.

When asked what color his light was at the intersection, appellant was adamant that his light was green. He stated that two cars in front of him had driven through the intersection. Appellant also testified that the traffic on Will Clayton was stopped, and he could see that the Will Clayton traffic had a red light.

Appellant described how, as he proceeded through the intersection, he saw a “covered truck coming towards my front end” on Will Clayton. On direct examination, appellant testified that he hit his brakes and tried to miss the vehicle. According to appellant, the vehicle “caught [his] front end” and “skidded off me.” He stated that he then caught the vehicles back end. He testified that the collision with the back end of the vehicle was the “second impact,” not the first. After hitting the vehicle, he said that he “kept going” and that his dump truck went “airborne.” After he went airborne, appellant stated that he “landed over” Knetsar.

Appellant testified that he continued to apply his brakes, but explained that the dump truck had air brakes, which are hard to engage. He claimed that, despite his efforts, the air brakes would not “catch.”

On cross-examination, appellant provided more details about the collision. He testified that he saw the Jeep coming from his left and that he veered to his right to miss the Jeep. He stated that the Jeep then “caught” the dump truck’s left tire and bounced off of it. Appellant said that the Jeep then rotated in front of him-, and he struck the Jeep from behind. When the State asked him if his version of the accident had changed since he had given his grand jury testimony, appellant denied that it had changed.

Following appellant’s testimony, the State offered two rebuttal witnesses. One of the witnesses was the assistance district attorney, who had taken appellant’s grand jury testimony. According to the ADA, appellant had testified during the grand jury proceedings that there had only been one impact between the dump truck and the Jeep. Appellant had not testified, as he did at trial, that there had been a two-stage collision.

Lastly, the State recalled Deputy Pearson. The officer testified that the damage to the Jeep was not consistent with appellant’s version of the incident. Deputy Pearson further testified, “It would be physically impossible for that Jeep to overtake the truck and rotate around in front of it and then have a subsequent collision at the rear.”

The jury found appellant guilty as charged in the indictment. This appeal followed. Presenting two points of error, appellant challenges the legal and factual sufficiency of the evidence supporting the judgment of conviction.

Legal Sufficiency

Appellant raises his legal-sufficiency challenge in his first point of error.

A. Standard of Review

When reviewing the legal sufficiency of the evidence to support a conviction, we determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Laster v. State, 275 S.W.3d 512, 518 (Tex.Crim.App.2009) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). 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. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007).

Under the law, 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). Thus, when performing a legal-sufficiency review, we may not reevaluate 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). Rather, 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. See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793; Clayton, 235 S.W.3d at 778.

B. Law Governing the Offense

A person commits criminally negligent homicide if he causes the death of another by criminal negligence. Tex. Penal Code Ann. § 19.05(a) (Vernon 2003). Criminal negligence occurs when the person ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. Id. § 6.03(d) (Vernon 2003). The offense of criminally negligent homicide “involves inattentive risk creation, that is, the actor ought to be aware of the risk surrounding his conduct or the results thereof [but fails] to perceive the risk.” Stadt v. State, 182 S.W.3d 360, 364 (Tex.Crim.App.2006) (quoting Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App.1975)).

The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances, as viewed from the actor’s standpoint. Id. In short, the State is required to prove that an accused’s failure to perceive a substantial risk of death from his conduct grossly deviated from an ordinary standard of care. See Tello v. State, 180 S.W.3d 150, 156 (Tex.Crim.App.2005) (citing Graham v. State, 657 S.W.2d 99, 101 (Tex.Crim.App.1983) (explaining that criminal negligence is “failure to perceive” risk of death from actor’s conduct which must rise to level of “gross deviation” from an ordinary standard of care)).

In addition, Code of Criminal Procedure article 21.15 requires the State to plead, with reasonable certainty, the acts or circumstances on which the State will rely to prove that the forbidden conduct was committed with the culpable mental state of criminal negligence. See Tex. Code Crim. PROC. Ann. art. 21.15 (Vernon Supp.2009); see State v. Sonnier, 773 S.W.2d 60, 62 (Tex.App.-Houston [1st Dist.] 1989, no pet.). Article 21.15 serves to place the defendant on notice that he is charged with criminal negligence and to specify the act or acts from which the State will ask the factfinder to infer the required mental state. See Stadt v. State, 120 S.W.3d 428, 442-43 (Tex.App.-Houston [14th Dist.] 2003), aff'd, 182 S.W.3d 360 (Tex.Crim.App.2005).

C. Analysis

Here, the indictment identified the following acts by appellant as constituting criminal negligence: (1) failing to maintain a proper lookout for traffic conditions, (2) operating his motor vehicle at an unsafe speed, (3) driving through a “right-turn only lane,” (4) driving through a red light, and (5) taking improper evasive action. These same five acts were disjunctively identified in the charge for the jury to consider when determining whether appellant acted with criminal negligence.

To support his legal-sufficiency argument, appellant contends as follows, “The facts as proved did not demonstrate beyond a reasonable doubt that the actions of Appellant which caused the collision in which the complainant was killed constituted criminal negligence. The proof showed, at most, civil negligence.”

The Court of Criminal Appeals considered a similar challenge in Tello v. State, 180 S.W.3d at 150. There, the appellant, Tello, was towing dirt in a homemade trailer when the trailer unhitched from his truck, and struck and killed a pedestrian. Id. The evidence at trial showed that Tello had not secured the trailer to the truck with safety chains, as required by state law, and that safety chains would have prevented the accident. Id. at 151. The evidence also showed that the trailer hitch did not latch properly and had been hammered and bent to make it latch. Id. at 152. The State’s expert testified that the hitch was defective and that the defect was “obvious.” Id. Yet other evidence indicated that Tello had improperly loaded the dirt in the trailer, which contributed to it coming unhitched. Id. at 153-54.

During closing argument, Tello argued that the trailer had “never popped off before.” Id. at 154. Tello conceded that he was negligent, but claimed that his negligence did not rise to the level of criminal negligence. Id.

In its legal-sufficiency analysis, the Court of Criminal Appeals explained that “[t]he State was not required to prove that appellant ‘had a problem with the trailer becoming unhooked’ or that the trailer had ‘popped off before.’ ” Id. at 157. Rather, “the State was required to prove that [Tel-lo’s] failure to perceive a substantial risk of death from his conduct grossly deviated from an ordinary standard of care.” Id. at 156. The court concluded, “[T]he evidence that the trailer hitch had been hammered a number of times in an attempt to get it to latch properly and [the expert’s] testimony that the hitch’s defects were ‘obvious’ support such a finding.” Id. The court continued, “A jury could also rationally find that appellant should have, but failed, to perceive a substantial and unjustifiable risk of death from his conduct of knowingly using a faulty trailer hitch without safety chains on a public road.” Id. In a unanimous decision, the court held that the evidence was legally sufficient to support Tello’s conviction for criminally negligent homicide. See id.

Judge Cochran wrote a concurring opinion “to emphasize the fíne, but marked, legal line between civil negligence and criminal negligence.” Id. at 158 (J., Cochran, concurring). She explained that criminal negligence requires “a significantly greater degree of deviation” from the standard of ordinary care than does civil negligence. Id. Such deviation must be “gross” or “extreme” and is measured solely by the degree of negligence. Id.

Judge Cochran further explained, “Conduct that constitutes criminal negligence involves a greater risk of harm to others” than does civil negligence. Id. “A person may be found criminally negligent when he inadvertently creates a substantial and unjustifiable risk of which he ought to be (but is not) aware.” Id. A jury must determine whether a defendant’s failure to perceive a substantial and unjustifiable risk was, under all the circumstances, so grievous that the defendant should be held criminally liable. See id.

Importantly, despite the requirement that the risk be substantial and unjustified, “criminal negligence does not require proof of the accused’s subjective awareness of the risk of harm.” Id. Instead, “[i]t is a defendant’s awareness of the attendant circumstances, not his subjective awareness of the risk of harm, that matters in criminal negligence.” Id.

Judge Cochran observed that criminal liability was imposed on Tello “because he should have been aware of the substantial risk of death that his failure to both note and repair [the] numerous deficiencies [to the trailer hitch] entailed.” She concluded,

Had there been only a single deviation from the ordinary standard of care, e.g., had appellant exercised ordinary care but for the failure to attach a safety chain between the trailer and the truck, then his conduct in “failing to properly secure a trailer to his truck” might constitute mere simple civil negligence, not criminal negligence.

Id.

Here, appellant relies on the case of People v. Boutin, 75 N.Y.2d 692, 556 N.Y.S.2d 1, 555 N.E.2d 258 (1990) to support his legal-sufficiency challenge. Although a New York case, Boutin is pertinent to our analysis because the Court of Criminal Appeals relied on it in Tello to overrule Tello’s legal-sufficiency challenge and to affirm his conviction. Tello, 180 S.W.3d at 157.

In Boutin, the New York Court of Appeals reversed a conviction for criminally negligent homicide when the defendant— driving near, and possibly under, the speed limit — struck a marked police car stopped in the right-hand travel lane of an interstate on a rainy, foggy night. Boutin, 75 N.Y.2d at 698, 556 N.Y.S.2d 1, 555 N.E.2d at 256. As set out by the Tello court, the Boutin court provided the following description of New York’s criminal negligence standard:

Our decisions construing these provisions have emphasized that criminal liability cannot be predicated on every act of carelessness resulting in death, that the carelessness required for criminal negligence is appreciably more serious than that for ordinary civil negligence, and that the carelessness must be such that its seriousness would be apparent to anyone who shares the community’s general sense of right and wrong [citations omitted]. What, we believe, is abundantly clear from our decisions and from the governing statutory language is that criminally negligent homicide requires not only a failure to perceive a risk of death, but also some serious blameworthiness in the conduct that caused it. The risk involved must have been “substantial and unjustifiable,” and the failure to perceive that risk must have been a “gross deviation” from reasonable care.

Tello, 180 S.W.3d at 157-58 (quoting Boutin, 556 N.Y.S.2d 1, 555 N.E.2d at 254).

Applying this standard, the Boutin court reasoned as follows in overturning the defendant’s conviction:

[Tjhere is no question that defendant’s failure to see the vehicle stopped in the lane ahead of him resulted in the fatal accident. That failure may well constitute civil negligence. But the proof does not establish criminal negligence.... [Tjhe evidence does not show that defendant was engaged in any criminally culpable risk-creating conduct — e.g., dangerous speeding, racing, failure to obey traffic signals, or any other misconduct that created or contributed to a “substantial and unjustifiable” risk of death. Rather, it establishes only that defendant inexplicably faded to see the vehicle until he was so close that he could not prevent the collision. Though it resulted in two tragic deaths, that unexplained failure, without more, does not constitute criminally negligent homicide.

75 N.Y.2d at 697-98, 556 N.Y.S.2d 1, 555 N.E.2d at 255-56.

Here, appellant contends that his case is “on all fours with Boutin.” Appellant argues in his brief,

[Ajccepting the state’s version of the facts, it was simply an unexplained failure to see the stopped Jeep until he collided with it. Although it was alleged that Appellant ran a red light[,j none of the witnesses stated that Appellant drove through the red traffic signal before the collision. There was nothing per se negligent about driving in a right turn lane. Failing to maintain [a] proper lookout and failing to take evasive action, the other theories alleged in the indictment, are simply the equivalent of the situation in Boutin, i.e., failure to see a stopped vehicle before colliding with it.

Contrary to appellant’s argument, this case does not involve an unexplained failure to see a stopped vehicle, as in Boutin. Unlike Boutin, no evidence was presented that appellant did not see the Jeep before he hit it. Appellant’s own testimony does not support such contention. Appellant never testified that he did not see the Jeep. In fact, he testified that he saw the Jeep. He disavowed fault by claiming that the Jeep’s driver ran a red light.

We also disagree that a failure to take evasive action or to maintain a proper lookout is necessarily the equivalent of failing to see a vehicle before colliding with it, as a claimed by appellant.

In Boutin, the defendant driver and his passenger each expressly testified that he did not see the parked police cruiser before the collision, despite its flashing lights. 75 N.Y.2d at 694, 556 N.Y.S.2d 1, 555 N.E.2d at 254. At the time of the collision, it was dark, rainy, and foggy. Id. The police car was parked behind a disabled tractor trailer in a lane of the interstate. Id. Here, the evidence showed that the accident occurred on a clear day at 10:30 a.m.

Deputy Pearson testified that he could clearly see the intersection from 1,902 feet away. Chandra Kelly testified that she saw the Jeep sitting in the turn-only lane. Other witnesses testified similarly. The evidence further showed that other southbound traffic was stopped at the light. Kelly also testified that she called out appellant’s name three times to warn him of the impending collision, to no avail. Thus, the evidence is such that the jury could have reasonable inferred that an ordinarily prudent driver, keeping a proper lookout, would have seen the Jeep stopped in the right-turn-only lane.

Evidence was also presented from which the jury could have inferred that appellant did not take evasive action by applying his brakes either before hitting the Jeep or before running over Knetsar. Each witness, when asked, stated that he or she had not heard appellant apply his air brakes. The forensic evidence, admitted through the police officer’s testimony, also indicated that appellant had never applied his brakes during the entire incident.

In addition, unlike in Boutin, the evidence at trial showed that appellant engaged in additional “criminally culpable risk-creating conduct.” See Boutin, 75 N.Y.2d at 697-98, 556 N.Y.S.2d 1, 555 N.E.2d at 255-56. When viewed in favor of the verdict, the evidence indicated that appellant’s light was red as he hit the Jeep and continued through the intersection striking and killing Knetsar. The evidence also showed that appellant was driving the 31,000 pound dump truck at a minimum speed of 37 miles per hour in a right-turn-only lane against a red light. By doing so, appellant collided with the Jeep and initiated the chain of events that resulted in Knetsar’s death. The evidence further showed that appellant, with his specialized training, should have been aware of the increased risk of this conduct given the size of his vehicle and its decreased stopping abilities. Under the circumstances, the confluence of appellant’s acts and omissions takes his conduct beyond the realm of simple civil negligence. See Tello, 180 S.W.3d at 158 (J., Cochran, concurring).

Given the quantum of evidence discussed above, we conclude that the jury could have rationally found that appellant should have perceived, but failed to perceive, a substantial and unjustifiable risk of death from his conduct, as alleged in the indictment. See Lopez v. State, 630 S.W.2d 936, 941 (Tex.Crim.App.1982) (determining that driver “ought to have been aware that a substantial and unjustifiable risk was created when he exceeded the speed limit and ran a red light on a city thoroughfare at 11:30 p.m.”). The jury also could have rationally found that appellant’s failure to perceive this substantial and unjustifiable risk of death was clearly a gross deviation from the standard of care that an ordinary person would exercise under the circumstances. See Graham, 657 S.W.2d at 101 (concluding that defendant driver’s failure to perceive risk of death from his conduct of speeding, racing, and ignoring red light was clearly gross deviation from ordinary standard of care).

In sum, we conclude that, based on the evidence when viewed through the applicable prism of light, the jury could have found, beyond a reasonable doubt, that appellant possessed the culpable mental state of criminal negligence when he caused Knetsar’s death. See Laster, 275 S.W.3d at 518. We hold that the evidence is legally sufficient to support the judgment of conviction. See Lopez, 630 S.W.2d at 941 (holding that evidence was legally sufficient to support criminally negligent homicide conviction when defendant exceeded speed limit and ran red light); Todd v. State, 911 S.W.2d 807, 815 (Tex.App.-El Paso 1995, no pet.) (holding that evidence was legally sufficient to support criminally negligent homicide conviction when defendant had “traveled closely behind another car in excess of the speed limit and during rush hour traffic, failed to watch the traffic in front of him, and failed to apply his brakes before striking a stalled vehicle”); Brown v. State, 773 S.W.2d 65, 67 (Tex.App.-Fort Worth 1989, pet. ref'd) (holding that evidence was legally sufficient to support criminally negligent homicide conviction when defendant was driving at high rate of speed, failed to slow down as he approached intersection, and failed to watch traffic light); Thompson v. State, 676 S.W.2d 173, 178 (Tex. App.-Houston [14th Dist.] 1984, no pet.) (holding that evidence was legally sufficient to support criminally negligent homicide conviction when defendant drove her car at excessive rate of speed in residential neighborhood near bus stop when children normally would be on their way to school).

We overrule appellant’s first point of error.

Factual Sufficiency

In his second point of error, appellant contends that the evidence is factually insufficient to support his conviction.

A. Standard of Review

When reviewing the factual sufficiency of the evidence to support a conviction, we view all the evidence in a neutral light, favoring neither party, nor the explicating verdict. See Neal v. State, 256 S.W.3d 264, 275 (Tex.Crim.App.2008); 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 factfinder’s determination is manifestly unjust. Lancon v. State, 253 S.W.3d 699, 704-05 (Tex.Crim.App.2008); Watson, 204 S.W.3d at 414-15, 417.

B. Analysis

Here, appellant limits his factual-sufficiency challenge to his assertion that the State’s evidence was “so weak as to render the verdict manifestly unjust.” We are mindful that, in conducting a factual-sufficiency review, we must consider the most important evidence that the appellant claims undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003). Appellant begins by pointing out that the scene witnesses were “divided” with regard to whether appellant’s light was red and that some witnesses did not know the color of the light. He also points out that one scene witness testified, as appellant did, that appellant’s light was green.

A review of all the evidence reveals that, in addition to the testimony cited by appellant, three witnesses, including his passenger, Chandra Kelly, testified unequivocally that appellant’s light was red. Other witnesses testified that the southbound traffic on Atascocita was stopped at the intersection from which the jury could have reasonably inferred that the light was red.

The testimony cited by appellant does not supply a basis in the record to show that the evidence is so weak as to render the verdict manifestly unjust. Instead, such evidence is the type that must be evaluated and weighed by the factfinder. See Lancon, 253 S.W.3d at 707. A jury’s decision is not manifestly unjust merely because it resolved conflicting views of the evidence in favor of the State instead of appellant. See Cain v. State, 958 S.W.2d 404, 410 (Tex.Crim.App.1997). Here, the jury was in the best position to weigh and evaluate the evidence with regard to the color of the traffic signal, and we properly afford due deference to that determination. See id.

Appellant also asserts that “there was no evidence that [he] ACTUALLY ran a red light.” Although no witness testified specifically that appellant “ran a red light,” at least one witness testified that appellant’s light was red at the moment he collided with the Jeep. Two other witnesses testified that the light was red immediately before the collision. Yet other testimony was given that the southbound traffic was stopped at the time. From such evidence, the jury could have reasonably inferred that appellant “ran a red light,” when, after hitting the Jeep, he then proceeded through the intersection and ran over Knetsar.

Appellant further points out that it is undisputed that the speed limit on Atasco-cita was 45 miles per hour. Appellant asserts that only Sergeant Pearson offered testimony that appellant exceeded the speed limit. Other testimony estimated that appellant was driving under, or at, the speed limit. Appellant points out that some witnesses did not testify regarding his speed.

A review of the record shows that the State did not base its allegation that appellant acted with criminal negligence on the theory that appellant exceeded the posted speed limit. Rather, in the indictment, it was alleged that appellant was “operating his motor vehicle at an unsafe speed.” Given that the evidence showed that appellant was driving a 31,000 pound dump truck between 35 and 50 miles per hour in a right-turn-only lane against a red light, with a stationery Jeep sitting in his path, the jury could have reasonably found that appellant was “operating his motor vehicle at an unsafe speed.” This is true regardless of whether the jury believed appellant’s testimony that he was traveling 35 to 37 miles per hour or believed Sergeant Pearson’s estimate of 50 miles per hour.

Lastly, appellant asserts, “As noted in the discussion under point of error number one, failure to keep a proper lookout and failure to take evasive action constituted civil, not criminal negligence if the Tello-Bowtin example is a guideline.” Appellant does not elaborate why this argument is more compelling as a factual-sufficiency challenge than it is as a legal-sufficiency challenge. In any event, we disagree that such conduct cannot result in a finding of criminal negligence, as discussed in our legal-sufficiency analysis. We further note that evidence of other conduct, such as running the red light and operating at an unsafe speed, also supported the jury’s criminal-negligence determination.

After reviewing all of the evidence in a neutral light, we cannot conclude that the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, as appellant contends. We hold that the evidence is factually sufficient to support the judgment of conviction.

We overrule appellant’s second point of error.

Conclusion

We affirm the judgment of the trial court.

      . See Tex. Penal Code Ann. §§ 6.03(d), 19.05 (Vernon 2003).

      . The legislature has classified criminally negligent homicide as a state jail felony, unless the State proves that a deadly weapon was used. See Tex. Penal Code Ann. § 12.35(c)(1) (Vernon Supp.2009), § 19.05 (Vernon 2003). In such case, the offense is elevated to a third-degree felony. See id. § 12.35(c)(1). Here, the jury made, and the judgment reflects, a deadly-weapon finding. Thus, appellant's five-year sentence is properly within the punishment range for a third-degree felony. See id. § 12.34 (Vernon Supp.2009).

      . Article 21.15 provides,
      Whenever recklessness or criminal negligence enters into or is a part or element of any offense, or it is charged that the accused acted recklessly or with criminal negligence in the commission of an offense, the complaint, information, or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the act or acts relied upon to constitute recklessness or criminal negligence, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly or with criminal negligence.
      Tex.Code Crim. Proc Ann. art. 21.15 (Vernon Supp.2009).

      . The charge did not require the jury to make a specific finding regarding one or more of the acts. The jury returned a general verdict, finding appellant "guilty of criminally negligent homicide, as charged in the indictment.”


source: Caselaw Access Project

author: EVELYN V. KEYES, Justice. ELSA ALCALA, Justice,

license: Public Domain

text:
    Melvin Charles SWEED, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 01-08-00349-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 25, 2010.
    Discretionary Review Granted Oct. 13, 2010.

      Jerome Godinich, Jr., Houston, TX, for appellant.
    Melvin Charles Sweed, Jr., Lovelady, TX, pro se.
    Carol M. Cameron, Assistant District Attorney, for appellee.
    Panel consists of Justices KEYES, ALCALA, and HANKS.
   OPINION

EVELYN V. KEYES, Justice.

A jury found appellant, Melvin Charles Sweed, Jr., guilty of aggravated robbery and assessed punishment at thirty-eight years’ imprisonment. Appellant stipulated to two prior felony convictions, which enhanced his punishment. In a single point of error, appellant argues that the trial court erred by failing to grant his request for theft to be included in the jury charge as a lesser-included offense. In the judgment, the enhancement paragraphs created by appellant’s prior felonies were marked N/A, or “not applicable,” rather than true. The State asks that this Court correct the judgment by modifying it to reflect that appellant pled true to the State’s two enhancement paragraphs.

We modify the judgment and as modified affirm.

Background

On September 6, 2007, appellant went to the Haverstock Apartments at 5619 Aldine Bender Road, Harris County, Texas. On that day, several work crews under the supervision of Sixto Mondragon were at the apartment complex. Mondragon observed appellant, who was not one of his employees, among the work crews throughout the morning. At some point that morning, a second person arrived and spoke with appellant. After this unidentified second person arrived, Mondragon saw one of his employees, Jose, running and yelling, “[Hje’s got a knife.” Mondra-gon saw appellant walking off with “quick strides” and carrying something covered up, but he did not see what it was. Mon-dragon and others followed appellant at a distance because “[w]e thought he probably had something.” Jose told Mondragon that appellant had stolen a nail gun, and Mondragon called the police. Other workers saw appellant enter an apartment. Mondragon and his father positioned themselves so that they could watch the apartment until the police arrived.

Appellant remained in the apartment between five and twenty minutes. While he was on watch waiting for the police to arrive, Mondragon saw appellant leave. When appellant left the apartment, he had changed his clothes. Appellant walked across the apartment complex parking lot, approximately one-hundred and fifty feet, to a group of unidentified men and spoke with them for approximately five minutes. Mondragon testified that as appellant was returning to the apartment he saw Mon-dragon and recognized him. Mondragon stated, “So, when he got to about halfway to the point where the parking lot was, he pulled out a knife and opened it.” Appellant then approached Mondragon and waved the knife at Mondragon’s chest level. Mondragon thought appellant was going to stab him and was afraid. When appellant was about three or four feet away, Mondragon put his hand in his pocket, “acting like I had a gun or something.” Appellant looked at him, walked away, and went back to the apartment. He did not exit again before the police arrived five or ten minutes later.

When the deputies arrived, they were directed to the apartment in which appellant was hiding. They knocked on the door and obtained the consent of the tenant to enter. The deputies found appellant hiding in the bedroom. They also found a knife near appellant and a nail gun belonging to Mondragon, but they never found the toolbox or other tools that Mon-dragon later accused appellant of stealing. The deputies arrested appellant, and a grand jury indicted him for the aggravated robbery of Sixto Mondragon.

At appellant’s trial, Mondragon testified regarding the events of the morning appellant stole the nail gun. He testified that he noticed appellant around the work crew most of the morning. However, he never saw appellant approach Jose with the knife. Rather, he only saw Jose running and exclaiming, “[H]e’s got a knife.” Mon-dragon also testified that he did not originally know what was in the .bundle appellant carried away from the work site, but he stated that he believed that the bundle contained a large nail gun, a toolbox, drills, and smaller nail guns. Mondragon testified that the large nail gun was worth around three hundred dollars “brand new.”

During the charge conference, appellant’s trial counsel requested an instruction on the lesser included-offense of theft. The State opposed the request and argued that if the theft instruction were given, the court should provide an instruction on aggravated assault as an additional lesser-included offense. The trial court denied both requests. Appellant’s trial counsel objected and preserved the error by explaining his objection to the trial judge and asking that the desired charge be included in the record.

The jury found appellant guilty of aggravated robbery. His sentence was enhanced because of his prior felony convictions for possession of a controlled substance and for burglary of a motor vehicle. Appellant also had three prior convictions for assault. Appellant stipulated to two prior felony convictions, distribution of a controlled substance and burglary of a motor vehicle. The judge instructed the jury on these. Although appellant stipulated to these and the judge instructed the jury on them, in the judgment these are marked “N/A,” or “not applicable.”

Instruction on Lesser-included Offense

In his sole point of error, appellant argues that the trial court erred in denying his request to instruct the jury on the lesser-included offense of theft because there was more than a scintilla of evidence negating the State’s allegation that he threatened Mondragon “in the course of committing theft.” Appellant does not contest the theft of the large nail gun.

1. Standard of Review

An offense is a lesser-included offense if “it is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” Tex.Code Crim. Proc. AnN. art. 37.09(1) (Vernon 2006). A defendant is entitled to an instruction on a lesser-included offense when (1) the proof for the offense charged includes the proof necessary to establish the lesser-included offense and (2) some evidence exists in the record that would permit a rational jury to find that if the defendant is guilty, he is guilty only of the lesser-included offense. Hall v. State, 225 S.W.3d 524, 536 (Tex.Crim.App.2007) (quoting Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App.1994)). The first step in the analysis is a question of law. Id. at 535. It requires comparison of the elements of the offense as alleged in the indictment with the elements of the potential lesser-included offense. Id. at 535-36. If the elements of the lesser offense are “established by proof of the same or less than all the facts required to establish the commission of the offense charged,” the first prong of the test is satisfied. Id. at 536 (quoting Tex.Code Crim. Proc. Ann. art. 37.09(1)).

The second step in the analysis asks whether there is evidence that supports giving the instruction to the jury. Id. In this step of the analysis, anything more than a scintilla of evidence may suffice to entitle the defendant to a charge on the lesser-included offense. Id. The evidence produced must establish the lesser-included offense as “a valid, rational alternative to the charged offense.” Id. (quoting Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App.1999)).

2. Discussion

Here, the indictment alleged that appellant, “while in the course of committing theft of property owned by Sixto Mon-dragon ... and with intent to obtain and maintain control of the property, intentionally and knowingly threatened] and place[d] SIXTO MONDRAGON in fear of imminent bodily injury and death, and the Defendant did then and there use and exhibit a deadly weapon, to wit: A KNIFE.” Appellant argues that the trial court committed reversible error by failing to grant appellant’s request for the lesser-included charge of theft.

A person commits theft if he “unlawfully appropriates property with intent to deprive the owner of property.” Tex. Penal Code Ann. § 31.03(a) (Vernon Supp.2009). A person commits robbery if, “in the course of committing theft” and “with intent to obtain or maintain control of the property,” he “intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.” See Tex. Penal Code Ann. § 29.02(a)(2) (Vernon 2003). To prove aggravated robbery, the State must prove robbery plus an aggravating factor. See Tex. Penal Code Ann. § 29.03(a) (Vernon 2003). Aggravated robbery occurs when “a person commits robbery as defined in Section 29.02,” and he “uses or exhibits a deadly weapon.” Id. § 29.03(a)(2).

The Penal Code defines “in the course of committing theft” as “conduct that occurs in an attempt to commit, during the commission, or in immediate flight after the attempt or commission of theft.” Tex. Penal Code Ann. § 29.01(1) (Vernon 2003). Thus, “the offense of robbery includes any violence in the course of effectuating the theft as well as any violence while in immediate flight from the scene of the theft.” White v. State, 671 S.W.2d 40, 42 (Tex.Crim.App.1984) (emphasis added) (quoting Lightner v. State, 535 S.W.2d 176, 177 (Tex.Crim.App.1976)). This definition “proscribes the use of violence not only in the taking of the property, but also in the immediate efforts of the thief to keep the stolen property.” Id. (emphasis omitted). No completed theft is required for the proscribed conduct to constitute the offense of robbery; nor is it necessary that the victim of the theft or attempted theft and the victim of the robbery be the same. White, 671 S.W.2d at 41-43(affirming aggravated robbery conviction of driver of getaway car who shot pursing bystander in order to free companion who had attempted theft of purse); see Lightner, 535 S.W.2d at 177-78 (affirming aggravated robbery conviction of appellant who drove car towards officer flagged down by women who discovered money missing from cash register when appellant left cleaners).

“The element ‘intent to obtain or maintain control of the property’ in [Section 29.02] ‘deals with the robber’s state of mind regarding the property5 involved in the theft or attempted theft, and not his state of mind in the assaultive component of the offense of aggravated robbery.” White, 671 S.W.2d at 42 (quoting Ex parte Santellana, 606 S.W.2d 331, 333 (Tex.Crim.App.1980)); see McCall v. State, 113 S.W.3d 479, 481 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (stating that “the element of ‘intent to obtain or maintain control of the property’ addresses the robber’s state of mind during the theft or attempted theft, not his state of mind during the assault”). Thus, “violence accompanying an escape immediately subsequent to an attempted theft can constitute robbery under [Section 29.02].” White, 671 S.W.2d at 42; see McCall, 113 S.W.3d at 481 (affirming aggravated robbery conviction of appellant who ran out of store with cigarettes when asked to produce identification with credit card, punched cashier who pursued him, and attempted to run down cashier and customer); Oggletree v. State, 851 S.W.2d 367, 369-70 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd) (affirming aggravated robbery conviction of appellant who stole meat from grocery store, avoided immediate capture, but returned to store where employees held accomplice and threatened them with a knife; holding that appellant’s departure from scene of crime and his return to threaten employees in attempt to liberate confederate “without intervening circumstances” meant that “[a] rational trier of fact could conclude that appellant displayed his knife during immediate flight from the theft”).

Here, when the elements of aggravated robbery as alleged in the indictment are compared with the elements of theft, it is evident that the elements of theft are “established by proof of the same or less than all the facts required to establish the commission of the offense charged.” See Hall, 225 S.W.3d at 536. Theft, by whatever method committed, is necessarily included in the alleged elements of the greater offense of robbery when, as in the instant case, the indictment alleges that the accused threatened another or place him in fear of imminent bodily injury or death “in the course of committing theft.” Earls v. State, 707 S.W.2d 82, 84-85 (Tex.Crim.App.1986). Therefore, the first prong of the test for inclusion of an instruction on the lesser-included offense of theft is satisfied. See Hall, 225 S.W.3d at 535-36.

The next question is whether some evidence exists in the record of this case that would permit a rational jury to find that if appellant is guilty, he is guilty only of theft, satisfying the second prong of the test for a lesser-included-offense instruction. See Tex.Code CRiM. Proc. Ann. art. 37.09; Hall, 225 S.W.3d at 536. In order for appellant to have been entitled to an instruction on the lesser-included offense of theft, some evidence in the record had to negate the jury’s finding that appellant intentionally or knowingly “use[d] or exhibit[ed] a deadly weapon in the course of committing theft.” See Tex. Penal Code Ann. § 29.03 (emphasis added); see Robinson v. State, 174 S.W.3d 320, 333 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd); see also Holiday v. State, 14 S.W.3d 784, 788 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (“To be entitled to a jury instruction on the lesser included offense of theft, there must have been evidence proving appellant committed a theft of [the complainant’s] property, but did not ... threaten him in any way.”).

Because there is unrebutted evidence in the record that appellant threatened Mon-dragon with a knife, causing him to be in fear of imminent bodily injury or death, appellant can show that he was entitled to an instruction on the lesser-included offense of theft of the nail gun only if there is evidence in the record from which a jury rationally could conclude that appellant’s threat to Mondragon did not occur in the course of committing or in immediate flight after committing the theft.

Here, Mondragon learned of the theft of his nail gun when Jose came running towards him yelling, “[H]e’s got a knife.” At that point, Mondragon saw appellant carrying something he could not identify, and he called the police. After appellant went into an apartment, Mondragon and his father “posted up on the side of the building making sure [appellant] didn’t leave while the police got there.” When appellant walked out of the apartment five to twenty minutes later, Mondragon was still “posted up” to wait for the arrival of the deputies. Appellant walked over to a group of unidentified men and spoke with them for approximately five minutes. Then, as appellant passed Mondragon and his father on his return to the apartment, appellant saw Mondragon watching him, approached him, and waved his knife at Mondragon’s chest. Appellant walked off after Mondragon put his hand in his pocket and pretended he had a gun. Approximately fifteen minutes to half an hour passed between the theft and the assault. The police arrived five to ten minutes later and found appellant hiding in the bedroom of the apartment in possession of both the knife and the nail gun.

We conclude that there is no evidence that would permit a rational jury to find that appellant did not have the intent to maintain control over the nail gun he had stolen from Mondragon when he “use[d] or exhibited] a deadly weapon,” namely a knife, to threaten Mondragon on his way back to the apartment where he had left the nail gun, and thus appellant could not have been found guilty only of theft. See Tex. Penal Code Ann. § 31.03(a) (providing that person commits theft if he “unlawfully appropriates property with intent to deprive the owner of property”) Hall, 225 S.W.3d at 536; White, 671 S.W.2d at 42; McCall, 113 S.W.3d at 480-81. We hold that appellant was not entitled to a lesser-included instruction on theft in the jury charge. See Hall, 225 S.W.3d at 536.

We overrule appellant’s sole issue.

Correction of the Judgment

The State requests that this Court correct the written judgment to reflect that appellant entered pleas of true to two prior felony convictions in the enhancement paragraphs and the jury found the allegations in the enhancement paragraphs true.

A Court of Appeals may modify a trial court’s judgment and affirm it as modified. Tex.R.App. P. 43.2(b); see Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App.1993) (holding that courts of appeals may modify judgments); French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App.1992) (holding that “an appellate court has authority to reform a judgment to include an affirmative finding to make the record speak the truth when the matter has been called to its attention by any source”).

Here, appellant entered pleas of true to the two enhancement paragraphs, and the jury found these enhancement paragraphs true. The written judgment, however, incorrectly states “N/A” for appellant’s “Plea to 1st Enhancement Paragraph” and for his “Plea to 2nd Enhancement Paragraph.” The written judgment also incorrectly states “N/A” for the jury’s “Findings on 1st Enhancement Paragraph” and its “Findings on 2nd Enhancement Paragraph.”

We modify the written judgment to reflect that appellant entered a plea of true to the two enhancement paragraphs and that the jury found these enhancement paragraphs true. See Tex.R.App. P. 43.2(b) (allowing courts of appeal to modify judgments and affirm as modified); Bigley, 865 S.W.2d at 27-28 (holding that courts of appeal may modify judgments).

Conclusion

We modify the judgment to reflect that appellant entered a plea of “true” to each of the two enhancement paragraphs and that the jury found each of the enhancement paragraphs true. We affirm the judgment as modified.

Justice ALCALA, dissenting.

ELSA ALCALA, Justice,

dissenting.

I respectfully dissent from the majority opinion’s decision to affirm the conviction of appellant, Melvin Charles Sweed, for aggravated robbery. I would reverse and remand the case because the trial court harmfully erred by failing to instruct the jury on the lesser-included offense of theft.

The dispute between the majority and dissenting opinions centers on whether the appellant threatened Sixto Mondragon, the complainant, with assault with a deadly weapon while appellant was in the immediate flight after the attempt or commission of theft. See Tex. Penal Code Ann. §§ 29.01(1), 29.02(a)(2), 29.03(a)(2) (Vernon 2003) (emphasis added). “ ‘Immediate flight’ is not specifically defined in the Penal Code,” but it has been defined as follows:

Present; at once; without delay; not deferred by any interval of time. In this sense, the word, without any very precise signification, denotes that action is or must be taken either instantly or without any considerable loss of time.

Thomas v. State, 708 S.W.2d 580, 581 (Tex.App.-Eastland 1986, writ ref'd) (describing definition from dictionary).

Although I agree with the majority opinion that the first prong for establishing lesser-included offenses is met here due to the elements of theft being subsumed by the elements of aggravated robbery, unlike the majority opinion I conclude the second prong for establishing a lesser-included offense is met because there is more than a scintilla of evidence that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser-included offenses of theft and assault. See Hall v. State, 225 S.W.3d 524, 535 (Tex.Crim.App.2007) (explaining two prongs for establishing lesser included offenses). Here, the evidence gives rise to at least two, reasonably equal, plausible inferences: either that appellant committed aggravated robbery because the assault occurred while in the immediate flight from theft or, alternatively, that he committed separate offenses of assault and theft because he assaulted the complainant when he was not in immediate flight from the theft. See Evans v. State, 202 S.W.3d 158, 165 (Tex.Crim.App.2006) (stating, “[I]t is clearly the jury that makes the choice of which inference to accept” when the evidence “gives rise to at least two, reasonably equal, plausible inferences”).

There is more than a scintilla of evidence from which the jury could determine appellant was not guilty of aggravated robbery and instead guilty of an assault plus a theft because the assault was not in the immediate flight from the theft. The record shows the events transpired over approximately 30 minutes. Mondragon testified that his work crews were at an apartment complex when he heard one of his workers, Jose, screaming that someone had pulled a knife on him. Jose did not state why the person had pulled a knife on him, and the indictment does not list Jose as a complainant. When Mondragon reached Jose, Mondragon saw appellant and another man walking toward him, as the unknown man acted as if he did not know what was going on. Appellant left alone with a nail gun in his arms and entered an apartment. As they awaited the arrival of police officers, Mondragon and another person positioned themselves on the side of the building to make sure appellant did not leave the apartment. After a short while, appellant left the apartment wearing different clothes. Appellant left the area, walked past the pool, and walked to another building that was about 150 feet away, where he spoke to a group of men for about five minutes before he started walking back toward the apartment where he had been staying. Appellant saw Mondragon, who had remained watching him the entire time. Appellant recognized him and threatened him with a knife causing him to fear that he would be stabbed. Appellant then fled into the apartment. When police officers arrived later, they arrested appellant and found a knife and the nail gun in the apartment.

These events show that after the theft of the nail gun from the work crew, eight activities occurred before appellant threatened the complainant with a knife: (1) appellant left the area where the crew was working, (2) entered the apartment, (3) left the stolen item inside the apartment, (4) changed clothes, (5) left the apartment, (6) walked across a parking lot, (7) spoke to a group of people, and (8) walked back across the parking lot towards the apartment. The jury could have reasonably decided the assault was not in the immediate flight after the theft because:

• the theft occurred at the crew’s work site at the apartment, but the assault occurred in a parking lot;
• there was a 30 minute gap of time between the time appellant stole the nail gun and the time appellant assaulted the complainant with a knife; and
• the many intervening activities by appellant that occurred between the theft and assault — leaving the stolen item inside the apartment, changing clothes, and leaving the apartment to speak with a group of people across the parking lot — -are intervening circumstances showing a gap in the events.

The jury, therefore, reasonably could have determined the theft and assault were two separate events because the assault did not occur in the immediate flight from the commission of the theft, as required for aggravated robbery. See Tex. Penal Code ANN. §§ 29.01(1), 29.02(a)(2), 29.03(a)(2); Thomas, 708 S.W.2d at 581 (immediate means “at once; without delay; not deferred by any interval of time”).

The situation here is procedurally distinguishable from cases on which the majority opinion relies because those cases address only whether the evidence is legally sufficient to establish aggravated robbery and are silent on whether a lesser-included-offense instruction should have been given. See White v. State, 671 S.W.2d 40, 41-42 (Tex.Crim.App.1984); Lightner v. State, 535 S.W.2d 176, 177-78 (Tex.Crim.App.1976); McCall v. State, 113 S.W.3d 479, 480-81 (Tex.App.-Houston [1st Dist.] 2003, no pet.); Oggletree v. State, 851 S.W.2d 367, 369-70 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (establishing test for legal sufficiency of evidence by viewing evidence in light most favorable to jury’s verdict). As noted above, I agree the evidence is legally sufficient to uphold appellant’s conviction for aggravated robbery. The issue here is whether a lesser-included-offense instruction should have been given, which is a topic not addressed by any of these cases.

Importantly, each of the cases cited by the majority opinion are also factually distinguishable in that they fail to show the type of intervening circumstances present here. In McCall, McCall ran out of a store when he stole cigarettes; he was chased by the cashier and customer who subdued him until he managed to escape into his car; and he then drove directly toward the cashier and customer, who feared for their lives as they fled. McCall, 113 S.W.3d at 480. In holding the evidence was legally sufficient to establish aggravated robbery in Oggletree, we said,

[A]ppellant engaged in one continuous, criminal episode, not in a series of incidents. He did not accomplish a successful escape; rather, for reasons unclear in the record, he remained in the vicinity and reappeared to attempt to liberate his confederate. His flight across the parking lot and his reappearance to threaten [the employees] occurred without intervening circumstances. Appellant himself chose to continue his criminal episode by returning to assist his accomplice. A rational trier of fact could conclude that appellant displayed his knife during immediate flight from the theft.

Oggletree, 851 S.W.2d at 369-70. In White, when Carl Sherlock tried to take the complainant’s purse, he let go when she refused to release it, and he was chased by two bystanders, who were shot by appellant who was in a waiting getaway car. White, 671 S.W.2d at 41. In Lightner, Lightner stole money from a cash register, he was immediately followed by a store employee as he ran to his car, and he got into his car and drove it towards the officer who was immediately attempting to arrest him. Lightner, 535 S.W.2d at 176-77. As the court in Lightner stated,

Appellant contends that he was not in immediate flight when apprehended by Officer Collins. Officer Collins caught appellant about 100 yards from the scene of the theft. He started to follow appellant to the back of the shopping center shortly after appellant had entered the rear of the parking lot. Appellant was handcuffed and in custody within seven to nine minutes after the theft.

Id. at 178. In contrast to each of these cases that show immediate events with no intervening circumstances, the jury could have reasonably decided that here the assault was not in the immediate flight after the theft because of the combination of circumstances that show the theft and assault occurred at different locations thirty minutes apart after appellant had left the stolen item behind in his apartment, changed clothes, and left his apartment to speak to a group of people at another location at the apartment complex.

Although this case is in the same procedural posture as Royster v. State, 622 S.W.2d 442 (Tex.Crim.App.1981), this situation is factually distinguishable from it. In Royster, the Court of Criminal Appeals held the trial court did not err by refusing the lesser-included offense instructions of assault and theft when Royster was charged with aggravated robbery. Royster, 622 S.W.2d at 447. After he snatched a purse from a woman, Royster cut the man who chased him immediately following the theft. Id. at 446. Unlike Royster, the jury could have reasonably decided that appellant was not in immediate flight from the theft because after the theft and before the assault, appellant left the stolen property in an apartment, changed clothes, walked across a parking lot, and conversed with a group of people. See id.

The situation here is similar to a case recently reversed by the Amarillo Court of Appeals. Jones v. State, 280 S.W.3d 294, 297-98 (Tex.App.-Amarillo 2007, pet. ref'd). There, the court stated,

In the present case, the record discloses that the issue of threatening or placing the victim in fear of imminent bodily injury or death was hotly contested.... [T]he testimony and the inferences that a jury may make from that testimony is a question for the jury to decide under the appropriate instruction from the court. The initial police officer on the scene indicated that the offense was one of “purse snatching.” After reviewing the record, it appears there was at least more than a scintilla of evidence to support the theory that appellant was guilty of only the offense of theft.

Id. This case is similar to Jones in that the matter of whether the assault was in the immediate flight from theft is properly a question for the jury to decide based on the evidence and the inferences made by the jury. See id.

As the United States Supreme Court long ago explained when reversing a conviction for failure to instruct on a lesser-included offense,

The question is whether the court erred in refusing this request. The evidence as to manslaughter need not be uncontra-dicted or in any way conclusive upon the question; so long as there is some evidence upon the subject, the proper weight to be given it is for the jury to determine. If there were any evidence which tended to show such a state of facts as might bring the crime within the grade of manslaughter, it then became a proper question for the jury to say whether the evidence were true and whether it showed that the crime was manslaughter instead of murder.... The evidence might appear to the court to be simply overwhelming to show that the killing was in fact múrder, and not manslaughter or an act performed in self defence [sic], and yet, so long as there was some evidence relevant to the issue of manslaughter, the credibility and force of such evidence must be for the jury, and cannot be matter of law for the decision of the court.

Stevenson v. United States, 162 U.S. 313, 314-15, 16 S.Ct. 839, 839, 40 L.Ed. 980 (1896).

As Stevenson shows, the error here is one that has been happening repeatedly for over one hundred years. See id. This error is easily preventable by one simple rule: Judges should not refuse to allow juries to decide questions of fact. See id. The question of whether the assault was in the immediate flight from the theft is a matter for a jury to decide based on what inferences may be drawn from circumstantial evidence. See Evans, 202 S.W.3d at 165 (holding court must defer to jury when there are two reasonable inference that can be drawn from circumstantial evidence). I conclude there is more than a scintilla of evidence from which the jury reasonably could determine that theft is a valid, rational alternative to aggravated robbery. I, therefore, would hold that the trial court erred by refusing to instruct the jury on the lesser-included offense of theft.

      . See Tex. Penal Code Ann. § 29.03 (Vernon 2003) (providing elements for aggravated robbery).

      . The record does not include a last name for Jose and Jose did not testify.


author: EVELYN V. KEYES, Justice.

text:
    Melvin Laron DUNCAN, Appellant, v. The STATE of Texas, Appellee.
    No. 01-08-00875-CR.
    Court of Appeals of Texas, Houston (1st Dist.).
    April 22, 2010.
    Discretionary Review Refused Nov. 10, 2010.

      Jerome Godinich Jr., Houston, TX, for Appellant.
    Melvin Laron Duncan, Beeville, TX, pro se.
    Alan Curry, Chief Prosecutor, Appellate Division, Harris County District Attorney’s Office, Houston, TX, for Appellee.
    Panel consists of Justices KEYES, SHARP, and MASSENGALE.
   OPINION

EVELYN V. KEYES, Justice.

On April 29, 2008, appellant, Melvin Lar-on Duncan, entered a plea of guilty, without a recommended punishment, to possessing cocaine weighing more than 4 grams but less than 200 grams. The trial court assessed punishment at seven years’ deferred adjudication community supervision. On July 10, 2008, appellant was arrested for possession of cocaine, and, eight days later, the State moved to adjudicate guilt on his April 29 plea. After a hearing, the trial court adjudicated appellant guilty of his original charge and assessed punishment at 30 years’ imprisonment. Appellant appealed the adjudication of his guilt. His appointed counsel filed an Anders brief, and appellant filed a pro se response.

We affirm.

BACKGROUND

On March 28, 2008, the State indicted appellant for possessing cocaine that weighed more than 4 grams but less than 200 grams. On April 29, 2008, appellant entered a plea of guilty without a recommended punishment. The trial court deferred appellant’s adjudication for seven years and placed 23 conditions on his community supervision, including a prohibition on the use, possession, or consumption of illegal drugs. The trial court certified appellant’s right to appeal, indicating that this was not a plea bargain case with an agreed recommendation as to punishment. On July 10, 2008, police officers again arrested appellant for possession of cocaine. Eight days later, the State moved to adjudicate appellant’s original charge, claiming that he had violated 14 conditions of his community supervision, including the failure to abstain from the use, possession, or consumption of illegal drugs.

On October 24, 2008, the trial court held a hearing on the State’s motion to adjudicate. At the hearing, appellant denied all but one of the allegations against him. Appellant entered a plea of “true” to the allegation that he did not comply with the condition that he make a fifty dollar payment to Crime Stoppers. The State called four witnesses. Officer B. Borak testified that, at approximately 3:00 a.m. on July 10, 2008, he and Officer B. Outlaw, who were on patrol in North Houston, observed appellant commit a traffic violation. They pulled up behind him with their sirens on. As they followed him, they could see into his car because a 12 to 15 inch television set that hung from the ceiling of his car was on. Officer Borak also testified that, as they followed appellant, they observed him reaching into the front passenger’s side of his car as well as into the back of his car, apparently attempting to conceal something. After appellant stopped his car and the officers approached him, Officer Borak noticed a “white crumb-like substance” on the center console of appellant’s car as well as on the front passenger seat. Officer Outlaw testified that he saw “white crumbs” “all over” appellant’s black shirt, lap, and seat, as well as his car’s center console. The officers suspected that the substance was cocaine. They then detained appellant, and Officer Borak field tested the white substance. The test indicated that the substance contained cocaine. The officers then arrested appellant.

After arresting appellant, the officers performed an inventory search of appellant’s car and found small plastic bags that are used to package drugs, a film canister that contained a white residue, a hole cut into the backseat that allowed a person to reach from the passenger’s compartment of the car into the trunk, and, behind the back seat, a bag containing crack cocaine. Officer Borak testified that he never saw appellant hold or touch the bag that contained the crack cocaine and that the police never tested the bag for fingerprints. James Miller, a chemist with the Houston Police Department’s Crime Lab, testified that the substance that the officers recovered from appellant was cocaine and that it weighed more than 4 grams.

The defense called appellant, who testified that he did not commit a traffic violation, that he had only recently begun to drive the car, that the car belonged to him, and that he was unaware there was cocaine in the car. The trial court found the allegations against appellant true and assessed punishment at 30 years’ imprisonment.

The trial court appointed appellate counsel. Appellant’s counsel has filed an An-ders brief. Appellant has filed a pro se response alleging that: (1) the officers lacked justification to stop him, the subsequent search was in violation of the Fourth Amendment, and any evidence recovered was “fruit of the poisonous tree”; (2) his appointed appellate counsel erred by not requesting oral argument and by not requesting that a private investigator be hired to photograph the intersection in which the police claimed appellant committed a traffic violation; and (8) there was no evidence connecting him to the drugs found in the car. The State waived its opportunity to file a response brief.

STANDARD OF REVIEW

Upon receipt of a motion to withdraw and a brief from an appellant’s court-appointed attorney asserting that there are no arguable grounds for reversal on appeal, we must determine that issue independently by conducting our own review of the entire record. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967) (emphasizing that reviewing court — and not appointed counsel — determines, after full examination of proceedings, whether case is “wholly frivolous”); Stafford v. State, 813 S.W.2d 503, 509 (Tex.Crim.App.1991). In conducting our review, we consider any pro se response that the appellant files to his appointed counsel’s Anders brief. See Bledsoe v. State, 178 S.W.3d 824, 826-28 (Tex.Crim.App.2005). Our role in an Anders case is limited to determining whether arguable grounds for appeal exist. See id. at 826-27. We do not rule on the ultimate merits of the issues raised by an appellant in his pro se response. Id. at 827. If we determine that arguable grounds for appeal exist, we must allow the court-appointed attorney to withdraw, abate the appeal, and remand the case to the trial court. See id. at 827. The trial court must then either appoint another attorney to present all arguable grounds for appeal or, if the appellant wishes, allow him to proceed pro se in the appellate court. See id. “Only after the issues have been briefed by new counsel may [we] address the merits of the issues raised.” Id.

If, on the other hand, we determine from our independent review of the entire record that the appeal is wholly frivolous, we may affirm the trial court’s judgment by issuing an opinion in which we indicate that we have reviewed the record and have found no arguable grounds for appeal. See id. at 826-28.

ANALYSIS

Appellant’s pro se issues all pertain to his original plea. He complains that (1) the officers lacked justification to stop him, that the subsequent search was in violation of the Fourth Amendment, and that any evidence recovered was “fruit of the poisonous tree”; (2) his appointed appellate counsel erred by not requesting oral argument and by not requesting that a private investigator be hired to photograph the intersection in which the police claimed appellant committed a traffic violation; and (3) there was no evidence connecting him to the drugs found in the car.

Article 42.12, section 5(b) of the Texas Code of Criminal Procedure governs the right to review, of a trial court’s decision to adjudicate guilt. Article 42.12, section 5(b) states, in relevant part:

On violation of a condition of community supervision imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 21 of this article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. This determination is reviewable in the same manner as a revocation hearing conducted under Section 21 of this article in a case in which an adjudication of guilt had not been deferred. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of community supervision, and defendant’s appeal continue as if the adjudication of guilt had not been deferred....

Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2009).

Section 5(b) of article 42.12 was amended effective September 2007. Before the Legislature amended it, this statute prohibited a defendant on deferred adjudication community supervision from appealing the trial court’s decision to proceed with an adjudication of guilt because the statute read, “No appeal may be taken from this determination.” See Act of May 23, 2007, 80th Leg., R.S., ch. 1308, § 5, 2008 Tex. Sess. Law. Serv. 4395, 4397; see also Pizana v. State, — S.W.3d-, --- (Tex.App.-San Antonio 2009, no pet.). Following the amendment, a defendant may challenge the trial court’s determination to proceed with an adjudication of guilt on the original charge “in the same manner as a revocation hearing conducted under Section 21 of this article in a case in which an adjudication of guilt had not been deferred.” Tex.Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2009); Pizana, — S.W.3d at-.

Appellate review of an order adjudicating guilt ordinarily is limited to determining whether the trial court abused its discretion in determining that the defendant violated the terms of his community supervision. See Tex.Code Crim. PROC. Ann. art. 42.12, § 5(b) (Vernon Supp. 2009); see Rickels v. State, 202 S.W.3d 759, 763 (Tex.Crim.App.2006) (quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex.Crim.App.1984); Manuel v. State, 994 S.W.2d 658, 661 (Tex.Crim.App.1999)) (holding that defendant placed on deferred adjudication community supervision may raise issues relating to original plea proceeding, such as evidentiary sufficiency, only in appeals taken when deferred adjudication community supervision is first imposed and may not wait to raise such issues in appeal from revocation of deferred adjudication).

The trial court’s decision must be supported by a preponderance of the evidence. See Rickels, 202 S.W.3d at 763. The evidence meets this standard when the greater weight of the credible evidence creates a reasonable belief that a defendant has violated a condition of his community supervision. Rickels, 202 S.W.3d at 764 (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex.Crim.App.1974)). As the sole trier of fact, a trial court determines the credibility of witnesses. See id.; Jones v. State, 787 S.W.2d 96, 97 (Tex.App.-Houston [1st Dist.] 1990, pet. ref'd). To support the trial court’s order to adjudicate guilt, the State need only establish one sufficient ground for revocation. See Moore v. State, 605 S.W.2d 924, 926 (Tex.Crim.App.1980) (stating that one sufficient ground for revocation is enough to support trial court’s decision); Joseph v. State, 3 S.W.3d 627, 640 (Tex.App.-Houston [14th Dist.] 1999, no pet.). The appellant examines the evidence in the light most favorable to the trial court’s order. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App.1981).

With very limited exceptions, “the original plea cannot be attacked on an appeal of the revocation proceedings.” Nix v. State, 65 S.W.3d 664, 667-68 (Tex.Crim.App.2001) (applying limitations on appeal to cases of deferred adjudication). The amended language in article 42.12, section 5(b) does not indicate an intent by the Legislature to alter this established limitation. “In fact, the reference in the amended statute to reviewing the trial judge’s determination in the same manner as revocation hearings indicates an intent to retain that limitation.” Pizana, — S.W.3d at-.

There are two long-recognized exceptions to the general rule, the “void judgment rule” and the “habeas corpus” exception. Id. at 667. The Court of Criminal Appeals has held:

A judgment of conviction for a crime is void when (1) the document purporting to be a charging instrument (i.e. indictment, information, or complaint) does not satisfy the constitutional requisites of a charging instrument, thus the trial court has no jurisdiction over the defendant, (2) the trial court lacks subject matter jurisdiction over the offense charged ..., (3) the record reflects that there is no evidence to support the conviction, or (4) an indigent defendant is required to face criminal trial proceedings without appointed counsel, when such has not been waived, in violation of Gideon v. Wainwright [372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799], While we hesitate to call this an exclusive list, it is very nearly so.

Nix, 65 S.W.3d at 668. However, “[a] judgment is void only in very rare situations.” Id. at 668.

Here, none of appellant’s issues regarding his original plea fall within the exceptions to the general rule. See id. Therefore, they may not be raised on appeal from the trial judge’s determination at the revocation hearing. See Nix, 65 S.W.3d at 667-68. Appellant entered a plea of “true” to the allegation that he did not make a fifty dollar payment to Crime Stoppers. His plea of true, standing alone, is sufficient to support revocation. Cole v. State, 578 S.W.2d 127, 129 (Tex.Crim.App.1979). As appellant’s counsel states in his Anders brief, the charging instrument satisfies constitutional requirements, the trial court had jurisdiction, there was sufficient evidence to support the conviction, and appellant had counsel. Therefore, we hold that the trial court did not abuse its discretion in revoking appellant’s community supervision and adjudicating him guilty.

Having reviewed the entire record, appellant’s appointed counsel’s Anders brief, and appellant’s pro se brief, in accordance with Anders and Bledsoe, we conclude that no arguable grounds for reversal exist.

CONCLUSION

We affirm the judgment of the trial court and grant appointed counsel’s motion to withdraw. Appointed counsel retains a duty to inform appellant of the result of this appeal and to inform appellant that he may, on his own, pursue a discretionary review in the Court of Criminal Appeals. See Bledsoe, 178 S.W.3d at 826-27.

      . See Tex. Health & Safety Code Ann. 481.112(d) (Vernon 2003) (providing elements for possession of cocaine weighing more than 4 grams but less than 200 grams).

      . The State also called appellant's probation officer Keith Black.

      . Appellant also claims he was profiled and “singled out.” There is no evidence for or against this in the record, and appellant did not specify the basis for this claim, nor did he direct this Court to evidence to support such a claim.

      . Because this appeal does not involve habeas corpus we do not consider this exception.