Opinion issued January 9, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-00-00706-CR
____________
DAGAN RAY RUTZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court
Harris County, Texas
Trial Court Cause No. 825374
MEMORANDUM OPINION
A jury found appellant, Dagan Ray Rutz, guilty of manslaughter, found that a deadly weapon was used in the commission of the offense, and assessed appellant’s punishment at five years confinement with a $5000 fine. The trial court also ordered appellant, as a condition of his parole, to pay restitution to the decedent’s family totaling $9,051.95.
Appellant presents six issues for review, arguing that the trial court erred in denying his motion to quash the indictment, in admitting hearsay testimony, and in ordering restitution as a condition of parole. He also contends that the evidence was legally and factually insufficient to support his conviction and the jury’s deadly weapon finding. We affirm.
Facts and Procedural Background
At trial, James Risk testified that, on the evening of December 2, 1998, he was driving his pickup truck northbound on Highway 6 in Harris County when he saw a light-colored automobile approaching from the opposite direction at “over a hundred miles per hour.” The light-colored car, later determined to have been appellant’s white Acura, suddenly crossed the center stripe, swerved into Risk’s lane, and clipped the front bumper of Risk’s truck before continuing on toward other northbound traffic. Appellant’s car subsequently struck an automobile driven by the decedent, Silas Leite, with such force that appellant’s car split in two. Harris County Assistant Medical Examiner Dr. Paul Shrode testified that the decedent was killed instantly in this collision.
The front half of appellant’s car subsequently struck a pickup truck driven by Kolby Kettler, who testified that, immediately after the collision, he spoke to appellant while appellant was still trapped inside his car, and appellant stated, “[S]omeone cut me off. I didn’t mean for this to happen.”
Betty Cox testified that her car was traveling in the lane next to the decedent’s automobile and that she saw appellant’s car cross into the northbound lanes and collide with the decedent’s automobile. Shortly after the collision, a young man later identified as Kaleel Tabel approached Cox and told her that “he had gotten off work and that he and the car, the white Acura had been racing from light to light.” Cox testified that the man who made these statements to her had been driving a Ford Mustang.
Houston Police Officer L.M. Labdi testified that he participated in the investigation of the collision and that the posted speed limit at the time of the collision was 50 miles per hour. Officer Labdi identified Kaleel Tabel as the driver of the Ford Mustang. Tabel did not testify.
Houston Police Officer M. W. Potel testified as an expert in accident investigation and reconstruction. Based on his personal investigation of this incident, the statements from the witnesses, his findings at the scene, the damage to the cars, and his calculations concerning the speeds of the cars at the time of and after the collision, Officer Potel formed the opinion that appellant’s car was traveling approximately 80 to 100 miles per hour at the time his car collided with the decedent’s car. Officer Potel also testified that he formed the opinion that appellant was racing with the driver of the Mustang and was driving recklessly.
Gail McCorkle and Arthur Mogart, friends of appellant, testified that, on two separate occasions, appellant admitted to each of them that he had been racing two Ford Mustangs and had been driving at speeds between 80 and 100 miles per hour immediately before the collision. McCorkle testified that appellant told him after the accident, in March or April of 1999, that “if he hadn’t been on cocaine that night” the collision would not have occurred. Mogart also testified that appellant told him he was “high” at the time of the collision. On cross-examination, Mogart admitted that he was currently living with appellant’s ex-girlfriend.
Appellant’s medical records indicated that a blood test administered approximately two hours after the accident did not detect the presence of cocaine but did detect the presence of cannabinoids.
Tim Robinson, another friend of appellant, testified that he saw appellant at another friend’s house a few hours before the collision and never saw appellant take or use any narcotics. Appellant gave Robinson a ride home just before the collision. On cross-examination, Robinson admitted he was currently serving a jail sentence for theft and had two prior theft convictions.
Sam Sweitzer, another friend of appellant, testified that he spent most of the day of the accident with appellant and that appellant had purchased new tires and rims for his car that day. He did not see appellant use any narcotics, but admitted he did not see appellant for one or two hours before the collision. Sweitzer’s father, Bill, testified he met with appellant for about five minutes shortly before the collision when appellant came to Bill’s house looking for Sam Sweitzer. Bill Sweitzer testified that he did not notice anything “unusual” about the way appellant was acting.
Appellant’s mother, Sheila Berthelsen, testified that appellant could not have made the statements attributed to him by Gail McCorkle because in March of 1999 appellant was living in Corpus Christi, returned to Houston for surgery to repair a severed nerve, and remained in the hospital from March 10th to the 15th. After that, appellant lived with her for two weeks before returning to Corpus Christi. Appellant later returned to Houston at the end of April 1999.
Motion to Quash
In his first issue, appellant contends that the trial court erred in denying his motion to quash the indictment. Specifically, appellant claims the indictment was unconstitutionally vague in using the term “high rate of speed” and failed to provide him with sufficient notice of the offense with which he was charged.
We review a trial court’s ruling on a motion to quash an indictment for abuse of discretion. Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim App. 1980); State v. Goldsberry, 14 S.W.3d 770, 772 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). The test for abuse of discretion is whether the trial court acted arbitrarily or unreasonably and without reference to any guiding rules and principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
The indictment reads, in relevant part, as follows:
[Appellant] . . . on or about DECEMBER 2, 1998, did then and there unlawfully, [sic] recklessly cause the death of SILAS LEITE BY DRIVING AN AUTOMOBILE AT A HIGH RATE OF SPEED AND BY FAILING TO MAINTAIN CONTROL OF THE AUTOMOBILE AND BY FAILING TO MAINTAIN A SINGLE LANE OF TRAFFIC AND BY FAILING TO GUIDE HIS VEHICLE AWAY FROM THE VEHICLE DRIVEN BY SILAS LEITE SUCH THAT THE AUTOMOBILE DRIVEN BY [appellant] DID COLLIDE WITH THE VEHICLE DRIVEN BY SILAS LEITE.
Whenever the State charges a defendant with reckless conduct in the commission of an offense, the charging instrument must allege, with reasonable certainty, the acts alleged to constitute recklessness. Tex. Code Crim. Proc. Ann. art. 21.15 (Vernon 1989). Article 21.15 provides as follows:
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.
Id. Here, the indictment charged appellant with recklessly causing the death of the decedent by (1) driving his automobile at a high rate of speed, (2) failing to maintain control of his automobile, (3) failing to maintain a single lane of traffic, and (4) failing to guide his automobile away from the automobile driven by the decedent.
Appellant contends the allegation that he was driving “at a high rate of speed” was too vague to give him sufficient notice of the offense with which he was charged. However, in Townsley v. State, 538 S.W.2d 411, 412-13 (Tex. Crim. App. 1976), the court held that an indictment charging a defendant with “recklessly caus[ing] the death [of the decedent] by driving a motor vehicle at an excessive rate of speed” sufficiently alleged with reasonable certainty the acts relied upon to constitute recklessness. Id. (emphasis added).
We conclude that the language used here was sufficient to allege with reasonable certainty the acts relied upon by the State to constitute recklessness. Accordingly, we hold that the trial court did not abuse its discretion in denying appellant’s motion to quash the indictment.
We overrule appellant’s first issue.
Hearsay Testimony
In his second issue, appellant argues that the trial court abused its discretion in admitting hearsay testimony over his objection. Specifically, appellant objected to the testimony of eyewitness Betty Cox that, after the collision, a man later identified as Kaleel Tabel approached her at the scene and told her that “he and the car, the white Acura had been racing from light to light.”
Hearsay testimony is inadmissible. Tex. R. Evid. 802. However, Rule 803(24) provides that a statement is not excluded by the hearsay rule if, at the time it was made, the statement “so far tended to subject the declarant to civil or criminal liability . . . or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” Tex. R. Evid. 803(24). In criminal cases, a statement that tends to expose a declarant to criminal liability is not admissible “unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Id.
A determination regarding the admissibility of a statement in accordance with rule 803(24) requires a two-step inquiry. Bingham v. State, 987 S.W.2d 54, 57 (Tex. Crim. App. 1999). First, the trial court must determine whether the statement in question tends to expose the declarant to criminal liability. Id. That is, the statement against the appellant’s interest must be sufficiently against the declarant’s interest to be reliable. Guidry v. State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999). Second, the trial court must determine whether there are corroborating circumstances that clearly indicate the trustworthiness of the statement. Tex. R. Evid. 803(24). If both criteria are met, then rule 803(24) is satisfied. Bingham, 987 S.W.2d at 57. We review the trial court’s decision to admit or exclude a hearsay statement under rule 803(24) under an abuse of discretion standard. Id.
The record indicates that Tabel admitted to Cox that he was “racing” appellant’s car on the night of the collision, thereby admitting to the offense of racing and implicating himself in causing the decedent’s death. Such statements exposed Tabel to potential civil and criminal liability and are sufficiently against his interest to be considered reliable. See Tex. R. Evid. 803(24); Guidry, 9 S.W.3d at 139. The record shows the statement at issue was made to Cox a short time after the collision, at the scene of the collision, and specifically referred to the circumstances of the event.
Moreover, other witnesses testified that appellant admitted to them that he had been racing two Ford Mustangs immediately before the accident. We conclude that these circumstances sufficiently corroborate Tabel’s statement to indicate its trustworthiness. See Tex. R. Evid. 803(24). We hold the trial court did not abuse its discretion in overruling appellant’s objection to Cox’s testimony.
We overrule appellant’s second issue.
Sufficiency of the Evidence
In his third and fourth issues, appellant challenges the legal and factual sufficiency of the evidence to sustain his conviction.
We review legal sufficiency by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000).
Under the factual sufficiency standard, we ask “whether a neutral review of all of the evidence both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof.” Id. We will reverse the fact finder’s determination only if a manifest injustice has occurred. Id. In conducting this analysis, we may disagree with the jury’s determination, even if probative evidence supports the verdict, but we must avoid substituting our judgment for that of the fact finder. Id.
As noted above, two witnesses testified that, several months after the collision, appellant admitted to them that he had been racing two other cars at speeds between 80 and 100 miles per hour just before the collision. James Risk, who witnessed the collision, estimated appellant’s car was traveling 100 miles per hour at the time of the collision. Officer M. W. Potel testified that he formed the expert opinion that appellant was driving recklessly and that appellant’s car was traveling at approximately 80 to 100 miles per hour at the time of the collision with the decedent’s car.
We hold that the evidence, viewed in the light most favorable to the jury’s verdict, was legally sufficient to support appellant’s conviction.
Appellant presented three witnesses who testified that they did not observe appellant take or use any narcotics in their presence on the day of the accident and that appellant did not exhibit any signs of having taken any narcotics. However, appellant was not charged with intoxication manslaughter. Thus, any evidence that he was or was not intoxicated at the time of the accident was not directly relevant to the issue of whether he was driving recklessly and failed to maintain control of his car.
Appellant did not contradict the eyewitness testimony, expert testimony, and his own admissions that he was traveling at speeds up to 100 miles per hour at the time of the collision with the decedent’s car. Appellant also did not contradict the evidence that he failed to maintain control of his car, failed to maintain a single lane of traffic, and failed to guide his car away from the decedent’s car. Based on our review of the record, we hold the evidence was factually sufficient to support appellant’s conviction.
We overrule appellant’s third and fourth issues.
Deadly Weapon Finding
In his fifth issue, appellant argues the evidence was “insufficient” to support the jury’s finding that he used a deadly weapon in the commission of the offense. Because appellant has not specified whether his challenge is to the legal or factual sufficiency of the evidence to support this finding, we will consider his claim as a challenge to the legal sufficiency of the evidence. See Markey v. State, 996 S.W.2d 226, 229 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (holding general challenge to sufficiency of evidence does not raise issue of factual sufficiency in criminal cases). Specifically, appellant contends that evidence of a specific intent to cause serious bodily injury or death must accompany the use of a potentially deadly weapon in order for the evidence to support such a finding. Appellant argues that, because he did not intend to cause serious bodily injury or death with his car, the jury could not have reasonably found that a deadly weapon was used.
The penal code defines a deadly weapon as “anything that in the manner of its use or intended use is capable of inflicting death or serious bodily injury.” Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon 1994). Not all deadly weapons need be used with an intent to achieve a specific purpose. Walker v. State, 897 S.W.2d 812, 814 (Tex. Crim. App. 1995). The operation of an automobile may constitute the use of a deadly weapon, and no intent to use the automobile as a weapon need be shown. Id.
We hold no evidence of intent was necessary to support the jury’s finding that appellant used a deadly weapon, his automobile, in the commission of the offense. We further hold that the evidence presented at trial was sufficient to support the jury’s finding that appellant used a deadly weapon in the commission of the offense.
We overrule appellant’s fifth issue.
Restitution Order
In his sixth issue, appellant claims the evidence was “insufficient” to support the restitution order entered by the court.
A trial court’s determination to set an amount of restitution is reviewed under an abuse of discretion standard. Campbell v. State, 5 S.W.3d 693, 696 (Tex. Crim. App. 1999). The amount of restitution set must be just and must have a factual basis for the amount ordered. Id.
Here, the trial court originally ordered appellant to pay $10,000 in restitution to the decedent’s family. On original submission of this appeal, the State conceded that there was “no direct evidence of the value of the loss to [the decedent’s] estate.” We held that, based upon our review of the record, the evidence was not legally sufficient to support the trial court’s order of restitution. By our order of May 30, 2002, we abated this cause for the trial court to conduct a hearing to determine a just amount of restitution to be paid by appellant. See Barton v. State, 21 S.W.3d 287, 288-89 (Tex. Crim. App. 2000) (“The proper procedure where the amount of restitution ordered as a condition of community supervision is not supported by the record is to abate the appeal, set aside the amount of restitution, and remand the case for a hearing to determine a just amount of restitution.”).
The trial court subsequently conducted a hearing on the amount of restitution, a record of that proceeding was filed with this Court, and this cause was reinstated. The record of the restitution hearing indicates that, based on the presentation of business records showing that the decedent’s funeral expenses totaled $9,051.95, the trial court ordered appellant to pay restitution to the decedent’s family in that amount.
We hold the evidence was sufficient to support the trial court’s amended order of restitution and that the trial court did not abuse its discretion in ordering appellant to pay restitution in the amount of $9,051.95.
We overrule appellant’s sixth issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Nuchia and Jennings.
Do not publish. Tex. R. App. P. 47.2(b).