Larry Wayne Duncan v. State

In The

Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-17-00300-CR
________________

LARRY WAYNE DUNCAN, Appellant

V.

THE STATE OF TEXAS, Appellee
__________________________________________________________________

On Appeal from the 258th District Court
San Jacinto County, Texas
Trial Cause No. 11,485A
__________________________________________________________________

MEMORANDUM OPINION

A jury convicted appellant Larry Wayne Duncan of failing to stop and render

aid, which resulted in death, and assessed punishment at nineteen years of

confinement. In nineteen issues, Duncan challenges the sufficiency of the evidence

and the admission of his prior convictions, complains of the admission of certain

expert opinion testimony, asserts that the failure to give warnings before taking his

recorded statement constitutes reversible error, and contends that the punishment

1
verdict is ambiguous because it does not state whether the jury “does” or “does not”

assess a fine. We affirm the trial court’s judgment.

BACKGROUND

The victim’s father, Billy Scott, testified that his daughter enjoyed jogging,

and he identified the route along which she usually jogged. He explained that on

February 10, 2015, he saw the victim jogging at approximately 6:20 p.m. Scott

testified that it was daylight and the sun was shining. At approximately 7:30 p.m.,

Scott learned that his daughter had been killed.

Kimila McShan, the mother of the man with whom the victim was in a

romantic relationship, testified that her son Klint and the victim lived together in her

home. According to McShan, the victim enjoyed running. McShan explained that

the victim had several different shoes, and she wore “mix-matched socks all the

time.” McShan explained that on her way home on February 10, 2015, as she slowed

down to turn, she saw the victim “laying in the ditch.” McShan testified that she got

out of her truck and yelled the victim’s name, but the victim did not respond. McShan

walked toward the victim and saw that there was blood on the victim’s face and she

was cold, so McShan called 9-1-1 and reported that someone had hit the victim and

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she was lying dead by the road.1 McShan explained that the victim’s injuries were

obvious, her shirt was “scrambled[,]” her shorts were twisted to the side, and she

was only wearing one sock. According to McShan, the victim’s shoes had been

knocked off. McShan explained that when she reached Cleveland at approximately

6:30, it was dusk. McShan testified that when she saw the victim, it was

approximately 7:30 p.m., and it was dark outside. McShan explained that there are

no street lights where the victim was found.

Trooper Nickolas Hatton with the Texas Department of Public Safety testified

that he was on duty on February 10, 2015. On that date, Hatton was dispatched to

the scene, and he and his partner arrived at approximately 7:37, when it was dark.

Upon arriving at the scene, he observed a white female lying in the ditch. Hatton

explained that his partner photographed the scene, and the photographs were

admitted into evidence. Based upon his training and experience, after he examined

the victim, Hatton believed that the victim had been struck by a motor vehicle.

Hatton testified that he was at the scene for several hours, and no one called or came

forward during that time regarding involvement in the crash.

1
Leeann Barnes, telecommunicator for the San Jacinto County Sheriff’s
Office, testified that she answered a 9-1-1 call regarding the victim at 7:36 p.m. on
February 10, 2015. Barnes also testified that she received a 9-1-1 call from Duncan
on the following day.
3
 Hatton explained that he examined the roadway for clues. Hatton and his

partner found the victim’s running shoes, and Hatton believed that the location

where they were found gave the authorities “an area of impact.” According to

Hatton, one of the victim’s socks was also recovered. Hatton explained that the

authorities placed an orange flag at every location where evidence was found to

create a forensic map or scale diagram of the crash scene. Hatton and his partner also

found areas where the grass was discolored, as well as areas that “appear to be a

gouge or tumbling through the grass.” Hatton explained that the gouge area was

consistent with a person tumbling along the ground. According to Hatton, there were

no skid marks in the area. Hatton testified that shattered glass pieces from a

headlamp and its plastic outer edge were also found and collected as evidence, and

he took them to a Chevrolet dealership to determine the make and model of the

vehicle from which they came.

Hatton explained that Duncan contacted San Jacinto Communications and

reported that he might have been involved in a crash on the date in question. Hatton

testified that he subsequently spoke with Duncan and viewed Duncan’s vehicle,

which is a GMC Sierra. 2 Duncan told Hatton that he believed he may have been

2
Hatton testified that Duncan signed a consent to search form.
4
involved in a wreck on February 10, 2015. Hatton testified that Duncan told him “he

remembered striking something with his vehicle while traveling on FM 2666.”

According to Hatton, his investigation revealed signs that Duncan’s vehicle

had been involved in a crash. Specifically, Hatton explained that Duncan’s vehicle

had been damaged on the front passenger side bumper, as well as the hood, the

passenger side headlamp, and the fender. Hatton testified that the headlight parts he

recovered were made of glass, as were the headlights on Duncan’s vehicle, and when

the pieces were assembled, they resembled the intact headlight on Duncan’s vehicle

and were made of the same material. Duncan agreed to come with Hatton to the

Coldspring office after being given his Miranda warnings by Sergeant David

Gustafson. According to Hatton, Duncan was informed that he was not under arrest,

and Duncan agreed to give a statement, which the trial judge determined was

voluntary after defense counsel objected.

According to Hatton, Duncan stated that he reached down to pick up a lighter

and realized that he had struck something, which he believed was a deer or hog.

According to Hatton, Duncan stated that he continued about a hundred feet and then

stopped, walked around to the front passenger side of his vehicle, saw that his vehicle

was damaged, and got back into his vehicle and drove away. Duncan stated that he

did not return to the location farther up the road where he believed he hit something.

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During cross-examination, Hatton agreed that it is not uncommon for someone in

the wooded area of Coldspring to hit a hog or deer.

According to Hatton, the Texas Transportation Code requires the operator of

a motor vehicle who has been involved in a crash involving bodily injury or death

to stop as close as practicable to the crash scene and to verify whether there was a

person involved. Hatton testified that if a person was involved in the accident, the

driver must immediately determine whether that person requires aid. Hatton

explained that the driver must also immediately return to the scene of the accident if

the vehicle was not stopped at the scene.

Trooper Jake Pullen testified that he went with Hatton to the scene on

February 10, 2015, and when they arrived on the scene, they saw a deceased female

lying in a ditch. Pullen testified that when he placed his fingers on the victim’s neck,

“her skin felt cold and wet as if there was dew on her skin.” Pullen testified that he

was present at the victim’s autopsy “to pull any evidence that we could and take

pictures.” According to Pullen, the victim’s clothing was collected, as was DNA

evidence in the form of blood and hair samples.

Gustafson testified that on the date in question, Hatton informed him that he

was on the scene of a fatality crash, and Gustafson responded to the location and

contacted Trooper Rae Shel Lee, who is a member of the state accident

6
reconstruction team. According to Gustafson, he received a phone call from the San

Jacinto County Sheriff’s Office, during which the operator stated that someone had

contacted them and stated that he had been involved in a crash on the road in

question, and his vehicle matched the description of the vehicle for which the

authorities were searching. Gustafson testified that when he, Hatton, and another

officer took the evidence to Martin Chevrolet, the parts manager said he was certain

that the vehicle was either a GMC or Chevrolet, model year 1988 to 1998, and was

a teal green color. According to Gustafson, the teal colored parts found at the scene

matched Duncan’s vehicle “identically.” Gustafson explained that Duncan informed

authorities that he had been involved in a crash the day before.

According to Gustafson, when he spoke with Duncan at Duncan’s residence,

he read Duncan his Miranda warnings and “made [it] very clear” to Duncan that he

was not under arrest. Duncan told Gustafson that “he hit something that he thought

was either a deer or maybe a hog. He didn’t know for sure.” Gustafson explained

that Duncan agreed to provide a voluntary statement to the rangers who would be

waiting for him at the Highway Patrol Office. Gustafson testified that Duncan was

not handcuffed when he was put into the patrol vehicle. According to Gustafson,

section 550.021 of the Transportation Code does not require that the person

operating a vehicle know that he hit a person; rather the Transportation Code requires

7
that the driver determine whether he struck a person. Gustafson testified that the

driver “must go back to the location of the scene of the accident, which [Duncan]

did not do.”

Ranger Brandon Bess with the Texas Department of Public Safety testified

that Ranger Ryan Clendennen, the Ranger assigned to San Jacinto County, called

him on February 11, 2015, and asked for his assistance regarding the investigation

of the collision because Clendennen was busy with another matter. Clendennen

informed Bess that an individual had contacted the dispatcher and reported that he

might have been involved in the collision that killed the victim. Bess explained that

he accompanied Clendennen to the crash scene, and he subsequently met Duncan at

the Coldspring Highway Patrol Office. Bess explained that he did not read Duncan

his Miranda rights before interviewing him. According to Bess, Duncan was not

under arrest, and Duncan was not restrained in any way. Bess stated that he informed

Duncan that he was free to leave, but a seventy-two hour hold was placed on Duncan

after the interview. Bess testified that he recorded his conversation with Duncan, and

the recording was admitted into evidence and played for the jury over defense

counsel’s objections that it constituted hearsay because it was not an admission by a

party opponent.

8
 According to Bess, after his interview with Duncan, the authorities “had an

investigation that we needed to conduct.” Bess testified that Duncan agreed to take

a breath test, and no alcohol was detected. Bess explained that Duncan took the test

close to midnight on the day after the accident, and he explained that alcohol does

not stay in a person’s system that long if the person is alive. Bess explained that he

examined Duncan’s vehicle and noted that the front-right fender of the vehicle, the

hood, the windshield, the passenger’s side mirror, and the roof had sustained

damage. Bess testified that he saw what appeared to be blood or remnants of blood

on the vehicle. According to Bess, Duncan stated that the vehicle did not have any

damage prior to the accident.

Clendennen testified that on February 10, 2015, he learned of an auto-

pedestrian fatality, and he contacted Gustafson the following day. Clendennen

testified that he and Bess viewed the accident scene. Clendennen explained that

Gustafson contacted him about Duncan, but because Clendennen was unable to take

Duncan’s statement, he asked Bess for assistance. After Duncan gave a statement to

Bess, Clendennen learned of the vehicle that was possibly involved in the accident,

and he viewed the vehicle at the Texas Department of Public Safety. Clendennen

explained that the right front portion of the vehicle and the hood were damaged, as

9
was the bumper. According to Clendennen, blood spatter was also visible along the

right front fender and passenger’s side mirror.

Jimmy Jones of Martin Chevrolet’s parts department testified that he assisted

some officers with identifying the kind of vehicle from which the parts came, and

after conducting internet research, they concluded that the parts were from a

Chevrolet pickup. Jones explained that older models have glass headlamps, but the

headlamps of newer models contain more plastic. Jones testified that there are no

differences between the headlights of Chevy and GMC trucks. Jones testified that

the parts could have come from Duncan’s truck, but he does not know if they did.

Lee testified that she has received extensive training in the field of crash

reconstruction and is a member of the state crash reconstruction team. Lee explained

that Gustafson called her to assist with reconstructing the accident. Lee testified that

upon arriving at the scene, she saw the victim, observed her injuries, and learned the

victim’s identity. Lee explained that it was dark when she arrived. According to Lee,

Hatton, Pullen, and Gustafson assisted her with the reconstruction process. Lee

testified that she observed the entire crash location that night, and saw “a large

amount of debris.” Lee explained that most of the debris consisted of pieces of glass

from a headlamp lens, but there were also a few pieces of colored trim. Lee testified

that she marked the location of each piece of debris and “held the flashlight for the

10
trooper that was collecting it.” Lee explained that she also took measurements and

photographs. Lee testified that because the pieces of the headlamp were glass, she

believed that the vehicle involved was an older model pickup or SUV, but she did

not know the make or model year of the vehicle.

Lee explained that she believed an auto-pedestrian crash had occurred, and

that the victim’s injuries were consistent with a fender wrap crash because she was

struck at her center of mass. Lee explained that a gouge mark was consistent with

the victim’s body’s first contact with the ground, and subsequent marks or gouges

were consistent with her body tumbling or traveling along the ground. Lee testified

that she believed that her work had become a criminal investigation because there

was an accident involving the death of a person and no vehicle was at the scene.

According to Lee, the damage to Duncan’s vehicle, which she later observed at the

highway patrol office, was consistent with the debris found at the crash scene. Lee

also explained that there was what she believed to be blood spatter on the fender of

Duncan’s vehicle. Lee testified that, based upon the location of the victim’s injuries

and the location of the victim’s body, she believed the victim “was jogging on or

along that roadway somewhere and she was struck from behind by this vehicle.”

Jennifer Pollock of the Texas Department of Public Safety Crime Laboratory

in Houston testified that her team performed a forensic examination of Duncan’s

11
vehicle at the highway patrol office and collected several samples during that

process. Pollock analyzed the samples for DNA, compared them to a known profile,

and found that the samples were from the victim. Jenny Lounsbury, a forensic

scientist with the Texas Department of Public Safety, testified that she performed a

trace analysis on the vehicle and four pieces of debris, and she observed that the

debris physically matched the vehicle, both in color and fit.

Dr. John Ralston, chief forensic pathologist for Forensic Medical of Texas in

Beaumont, testified that he performed an autopsy of the victim. During the autopsy,

Ralston collected samples of the victim’s hair and blood. Ralston testified that the

victim suffered multiple injuries, including fractures of her skull, cervical spine,

thoracic spine, ribs, femurs, and tears of the brain stem, spinal cord, and aorta, as

well as multiple scrapes or abrasions to her skin. Ralston explained that the victim’s

injuries were “consistent with what’s known as a bumper impact or point of impact

injury[,]” and he testified that the force that struck the victim “appeared to be applied

from behind.” Ralston testified that a bumper like the one on Duncan’s truck could

have caused the victim’s injuries. According to Ralston, no drugs or toxins were

found in the victim’s system. Ralston explained that the cause of the victim’s death

was “multiple injuries due to a motor vehicle striking a pedestrian[,]” and the manner

12
of death was accident. Various photographs of the autopsy were admitted into

evidence over defense counsel’s objection.

Ronnie Fulcher, a supervisor and shop hand at B & B Tire and Truck Services

(“B & B”), testified that Duncan once worked for B & B as a driver and mechanic.

According to Fulcher, Duncan was working for B & B on February 10, 2015, and

Fulcher saw Duncan that day between 3:45 and 4:30 p.m. Fulcher explained that

Duncan smelled faintly of stale alcohol, and Fulcher saw a beer in Duncan’s truck

and also saw Duncan drinking the beer. Fulcher testified that he later told a ranger

that Duncan seemed distant and “heavily intoxicated[,]” and he also stated that

Duncan’s words were slurred. According to Fulcher, when Duncan arrived at work

on February 11th, Duncan seemed “[a] little more stressed than usual[]” and was

tapping his fingers and saying “the F-word.”

Barbara Faircloth testified that Duncan lives with her niece, Christina Meek.

Faircloth testified that she saw Duncan at her home on the date in question at

approximately 4:30 p.m. According to Faircloth, Duncan was upset with her niece

because he had found out that she had not made payments on his truck, and Duncan

had a small paper bag with alcohol in it. Faircloth explained that she gave a recorded

statement to Clendennen, during which she reported that she believed Duncan was

intoxicated and that she was concerned about him operating a motor vehicle.

13
Faircloth testified that she never saw Duncan open the bottle or drink from it at her

home, but Duncan “acted like he had been drinking before he got to my house.”

Faircloth told Clendennen that she believed the bottle contained whiskey. Faircloth

explained that she told Duncan he should not be driving and she offered to drive

Duncan home, but he “got in his truck and took off[.]”

David Davis testified that he saw Duncan at approximately 7:00 p.m. on the

date in question. According to Davis, Duncan stumbled coming down some small

steps, and Davis believed Duncan was drunk. Davis explained that Duncan seemed

upset, and Duncan told Davis that he had run over something.

Duncan’s mother, Agnes Walker, testified that she saw Duncan twice on

February 10, 2015. According to Walker, Duncan came by her house at 5:00, and

they discussed a Verizon bill about which Duncan was upset. When asked whether

Duncan drinks whiskey or bourbon, Walker responded affirmatively, and she then

added, “but he doesn’t drive when he does it.” Over defense counsel’s objection, the

trial court allowed the State to impeach Walker by showing her a judgment which

indicated that Walker was convicted of driving while intoxicated in 1994, and she

admitted that he did drink and drive when he was twenty-one years old. Walker

testified that Duncan returned to her home shortly after 7:00 p.m. According to

Walker, Duncan seemed somewhat upset because he thought he had hit a deer and

14
damaged the truck he had just acquired. Walker testified that Duncan told her that

he had dropped his cigarette lighter, and when he raised up, he had hit something.

According to Walker, Duncan said that all he saw was fur, and Duncan “said it

could’ve been a deer or it could’ve been a man.” Walker explained that Duncan said

that whatever he hit was “[r]unning down the road or something.” Walker testified

that when she heard about the victim on the police scanner in her home, she called

Duncan. Duncan told his mother that he had been on a different road than the one

where the crash occurred.

Christina Meek testified that she lived with Duncan in February 2015.

According to Meek, she and Duncan had spent the weekend before the date in

question at a lake house, and they got into an argument regarding the truck note and

a cell phone bill. Meek explained that she and Duncan returned to their home on

February 10, and they went to get another vehicle. According to Meek, Duncan had

consumed one beer. Meek testified that along the way, she purchased a “tallboy”

Busch beer for Duncan, and he drank it. According to Meek, Duncan also consumed

a twelve-ounce beer when they reached their destination. Meek explained that the

argument she had with Duncan began after he had consumed the beers. Meek

testified that Duncan intended to go to Verizon to inquire about the cell phone bill,

and Meek did not believe Duncan should have been operating a motor vehicle

15
“[b]ecause he had already had three beers in him.” Meek opined that Duncan was

“intoxicated, but not highly intoxicated.”

Meek explained that she did not hear about the accident until the next day.

According to Meek, Duncan awakened her in the early morning hours of February

11 and told her that he had hit “something” or “someone.” Meek testified that

Duncan told her he had struck a deer or hog, but that Duncan also said that it could

have been “someone.” According to Meek, Duncan told her that he needed to return

to the truck because he believed he had left a beer inside the truck.

Duncan testified that on the morning of February 10, 2015, he was at a lake

house with Meek. According to Duncan, after he and Meek returned home, they got

into an argument. Duncan testified that Meek stopped and bought him a beer, but

Meek was driving at that time. According to Duncan, Meek also bought him a beer

“for later to put in the icebox at the house.” Duncan testified that he and Meek argued

again at approximately 3:00 p.m. Duncan denied drinking while they were arguing.

According to Duncan, Meek got tired of arguing, said she was going to Trinity, and

handed him the beer out of the car. Duncan testified that he laid the beer in the front

seat of the truck. Duncan denied consuming any other alcoholic beverages.

Duncan testified that after unsuccessfully attempting to obtain a battery for

the truck, he decided to go to the Verizon store, and he learned that his outstanding

16
bill was almost $2000. Duncan explained that he became angry, and after leaving

Verizon, he bought a bottle of R&R whiskey and went to his mother’s home. Duncan

testified that he did not open the bottle of R&R, did not consume alcohol at his

mother’s home, and was not intoxicated when he arrived at her home. Duncan

testified that he went to take care of his horse, and he decided to leave that location

at approximately 6:00 p.m., when it was dusk, and to return to his mother’s home.

Duncan stated that he was not drinking and was not intoxicated.

Duncan testified that as he was driving, he reached down to retrieve his

cigarette lighter from the seat, and he “hit something.” He estimated that the collision

occurred at approximately 7:00 p.m. Duncan explained that he looked up and did not

see anything, and he then applied his brakes and stopped. Duncan testified, “I got

out to see what I hit and then see what the damage was to the truck” because he

believed that the headlights were not working. Duncan testified that he did not go

back to the point of impact to see if he hit anything, but he got out, walked around

the front of the truck, and looked to make sure that whatever he hit was not

underneath the truck. According to Duncan, he walked around to the passenger side

of the truck and looked down the ditch line but did not see anything, so he assumed

he had struck a deer or hog. Duncan testified that he never walked past the end of

his vehicle.

17
 Duncan testified that he decided to return to Shepherd, where his daughter and

son-in-law reside. After realizing that they were not at home, he called his brother

and told him that he needed a ride home because he had hit a deer or hog. According

to Duncan, the bottle of whiskey was still in the front seat of his truck, unopened.

Duncan testified that he returned to his mother’s house and told her that he had hit a

deer or hog, and he denied telling his mother that he thought he might have hit

someone who was jogging. Duncan explained that his brother arrived and took him

back to Cleveland.

Duncan testified that his mother called to tell him that the victim had been

struck on 2666 about eight miles out, but Duncan explained that he did not believe

he was involved in that accident because he was closer to a different road. According

to Duncan, Meek later came home after he was already asleep, and he spoke to her

when he got up to go to work. Duncan testified that he subsequently received another

telephone call from his mother, during which his mother told him that the victim had

been struck while jogging and green paint had been found, so Duncan decided to

contact the San Jacinto County Sheriff’s Department, and he told them that he

thought he hit a deer or hog on 2666. Duncan testified that if he had realized he had

struck a person, he would have waited and called “E.M.S. or 9-1-1 or something.”

Duncan stated, “I wouldn’t have left the person laying on the side of the road.”

18
 During cross-examination, Duncan testified that he had been convicted of the

federal offense of possession of a firearm by a felon, as well as possession of cocaine

in Harris County. Duncan admitted that he was the only person operating the truck

that day, and that the vehicle was involved in an accident, but he denied knowing

that he struck anyone. Duncan denied seeing any of the victim’s blood and tissue on

his truck. Duncan testified that he stopped about one hundred feet from the scene of

the accident. Duncan testified that he did not investigate to see if a person was

involved and needed assistance. Duncan denied telling Meek that he had hit

someone. During rebuttal, Bess testified that Duncan said in his statement that he

pulled over after “probably about 100 yards.”

ISSUES ONE, TWO, THREE, FOUR, FIVE, AND SIX

In issue one, Duncan challenges the legal sufficiency of the evidence to prove

that he knew he had struck a human being when he left the location, and in issue

two, Duncan challenges the factual sufficiency of the evidence to prove that he knew

he had struck a human being when he left the scene. In issue three, Duncan asserts

that he made a diligent inquiry and formed a reasonable belief that he had only struck

an animal, and that his leaving the scene was justifiable. In issue four, Duncan

contends the evidence was legally insufficient because the State did not negate

mistake of fact. In issue five, Duncan argues that there was legally insufficient

19
evidence that he had the requisite knowledge that he had struck a human being with

his vehicle, and in issue six, Duncan challenges the legal sufficiency of the evidence

that he had intentionally and knowingly failed to stop and render aid to a human

being. We address these issues together.

In a legal sufficiency review, we consider all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S.

307, 318-19 (1979)). The jury is the ultimate authority on the credibility of witnesses

and the weight to be given their testimony. Penagraph v. State, 623 S.W.2d 341, 343

(Tex. Crim. App. [Panel Op.] 1981). We give deference to the jury’s responsibility

to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13.

We must resolve any inconsistencies in the evidence in favor of the verdict. Curry

v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). In 2010, the Court of Criminal

Appeals concluded that there is no meaningful distinction between a legal-

sufficiency review and a factual-sufficiency review and held that “the Jackson v.

Virginia standard is the only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a criminal

20
offense that the State is required to prove beyond a reasonable doubt. All other cases

to the contrary . . . are overruled.” Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010).

Section 550.021 of the Texas Transportation Code, which defines the offense

of failing to stop and render aid, provides as follows, in pertinent part:

(a) The operator of a vehicle involved in an accident that results or is
reasonably likely to result in injury to or death of a person shall:

(1) immediately stop the vehicle at the scene of the accident or as
close to the scene as possible;

(2) immediately return to the scene of the accident if the vehicle is
not stopped at the scene of the accident;

(3) immediately determine whether a person is involved in the
accident, and if a person is involved in the accident, whether that person
requires aid; and

(4) remain at the scene of the accident until the operator complies
with the requirements of Section 550.023.

....

(c) A person commits an offense if the person does not stop or does not
comply with the requirements of this section. An offense under this
section:

(1) involving an accident resulting in:

(A) death of a person is a felony of the second degree[.]

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Tex. Transp. Code Ann. § 550.021(a), (c) (West Supp. 2017). Section 550.023

requires the operator of a vehicle that is involved in an accident resulting in the injury

or death to a person to provide his name, address, vehicle registration number, and

liability insurer to any person injured, show his driver’s license, and provide

assistance to any person injured in the accident if it is apparent that treatment is

necessary. Id. § 550.023 (West 2011).

Because section 550.021 does not prescribe a culpable mental state for the

offense, the State must prove that Duncan acted with one of the culpable mental

states found in section 6.02 of the Texas Penal Code. See Tex. Penal Code Ann. §

6.02(b) (West 2011) (providing that if a culpable mental state is not described by the

definition of the offense, one is nevertheless required “unless the definition plainly

dispenses with any mental element[]”); Id. § 6.02(d) (setting forth the culpable

mental states, from highest to lowest). The Court of Criminal Appeals has held that

the State satisfies this burden by showing that “the accused had knowledge of the

circumstances surrounding his conduct, i.e., had knowledge that an accident had

occurred.” Goss v. State, 582 S.W.2d 782, 785 (Tex. Crim. App. 1979) (internal

citation omitted). As our sister Court of Appeals ably explained, the 2015

amendment to section 550.021 added the requirement that the driver immediately

determine whether a person is involved in an accident, and that any further addition

22
to the statute would be mere surplusage if the State were required to prove the driver

knew that the accident involved death or injury to a person before the State could

show that the driver shirked his duty to stop and render aid. Mayer v. State, 494

S.W.3d 844, 849-50 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d). The

elements of the offense of failure to stop and render aid are as follows: (1) an

operator of a vehicle; (2) intentionally or knowingly; (3) involved in an accident; (4)

resulting in injury or death of any person; (5) fails to stop and render reasonable

assistance. McCown v. State, 192 S.W.3d 158, 162 (Tex. App.—Fort Worth 2006,

pet. ref’d). “[T]he knowledge requirement of section 550.023 is satisfied if an

objective examination of the facts shows that it would be apparent to a reasonable

person that someone has been injured in an accident and is in need of reasonable

assistance.” Id. at 163. Section 8.02 of the Texas Penal Code provides as follows: “It

is a defense to prosecution that the actor through mistake formed a reasonable belief

about a matter of fact if his mistaken belief negated the kind of culpability required

for commission of the offense.” Tex. Penal Code Ann. § 8.02(a) (West 2011)

(emphasis added).

The jury heard evidence that Duncan had argued with Meek on the day of the

accident, Duncan had consumed three beers before the accident, and Duncan was

intoxicated. In addition, the jury heard evidence, including Duncan’s own testimony,

23
that Duncan knew he had struck something, but he nevertheless proceeded for either

a hundred feet or a hundred yards and stopped, walked around to the passenger side

of his vehicle to assess the damage, and got back into his vehicle and drove away

without returning to the point of impact or walking past the end of his vehicle. The

jury also heard evidence from Meek and Walker that Duncan told them he struck

either an animal or a person. Additionally, the jury heard evidence that the victim

was lying in the ditch and had visible injuries.

The State was not required to prove that Duncan knew that he had struck a

human being; rather, the State was required to prove Duncan had knowledge of the

circumstances surrounding his conduct, i.e., Duncan knew that an accident had

occurred. See Goss, 582 S.W.2d at 785; Mayer, 494 S.W.3d at 849-50. The State

was required to prove that Duncan operated a vehicle, was involved in an accident

that resulted in the victim’s death, and intentionally or knowingly failed to stop and

render reasonable assistance. See McCown, 192 S.W.3d at 162. It was within the

province of the jury to weigh the testimony and to resolve any conflicts in the

testimony. See Hooper, 214 S.W.3d at 13. The jury could have concluded that

Duncan’s alleged mistaken belief that he struck an animal was not reasonable under

the circumstances. See Tex. Penal Code Ann. § 8.02(a). Finally, as explained above,

the Court of Criminal Appeals has directed that we no longer review evidence for

24
factual sufficiency in criminal cases. See Brooks, 323 S.W.3d at 912. Viewing the

evidence in the light most favorable to the verdict, we conclude that a rational trier

of fact could have found the essential elements of the offense beyond a reasonable

doubt. See Hooper, 214 S.W.3d at 13. The evidence is legally sufficient to support

the verdict. Accordingly, we overrule issues one, two, three, four, five, and six.

ISSUES SEVEN, EIGHT, NINE, TEN, AND ELEVEN

In issue seven, Duncan argues that the three convictions, which he identifies

as State’s exhibits 115A, 120, and 121, are over ten years old, did not involve moral

turpitude, and were not shown to have the probative value required by Rule 609(b)

of the Texas Rules of Evidence. In issue eight, Duncan contends that the use of one

of the convictions for impeachment during guilt-innocence was reversible error

because Duncan’s alleged lack of an appointed attorney when he pleaded guilty

renders the conviction void and a structural constitutional error. In issue nine,

Duncan complains that the admission of a 1994 judgment for which he served time

violated Article 37.07, section 3(i) of the Texas Code of Criminal Procedure. In issue

ten, Duncan argues that the trial court erred by admitting the 1994 judgment in both

guilt-innocence and punishment, “not only for impeachment, but also to increase

[the] sentence length assessed[.]” In issue eleven, Duncan argues that the numerous

convictions were admitted in violation of Rule 609(b) of the Texas Rules of

25
Evidence and without “essential findings or limiting instructions, thereby

necessitating reversal.” 3 We address these issues together.

The record reflects that State’s exhibit 115A is a judgment stating that Duncan

pleaded guilty to driving while intoxicated in San Jacinto County in 1994; State’s

exhibit 118 is a judgment indicating that Duncan pleaded guilty to the federal offense

of being a felon in possession of a firearm; State’s exhibit 119 is a judgment which

states that Duncan pleaded guilty to possession of cocaine in Harris County in 2006;

State’s exhibit 120 is a judgment which indicates that Duncan pleaded guilty to

driving with a suspended license in Polk County in 1995; and State’s Exhibit 121 is

a judgment reflecting that Duncan pleaded guilty to possession of methamphetamine

in Liberty County in 2004.

As discussed above, exhibit 115A was initially mentioned by the State during

its questioning of Walker. The prosecutor asked whether Duncan drinks whiskey or

bourbon, and Walker responded affirmatively, and she then volunteered, “but he

doesn’t drive when he does it.” Over defense counsel’s objection that Rule 609 only

allows impeachment of a person with his own conviction and that the conviction is

3
Although Duncan does not explicitly identify exhibits 118 and 119 in his
issues, we will also address the admission of those convictions because he discusses
them in his brief.
26
over fifteen years old, 4 the State impeached Walker by showing her the judgment

which indicated that Walker was convicted of driving while intoxicated in 1994,

questioning her about it, and having her testify that it was true. However, the record

reflects that exhibit 115A was not admitted into evidence until the punishment phase.

During cross-examination, Duncan admitted that he had been convicted of the

offenses referenced in exhibits 118 and 119. The State offered exhibits 118 and 119

into evidence during its cross-examination of Duncan, but withdrew the exhibits

after defense counsel objected, and they were not admitted into evidence until the

punishment phase. The record reflects that exhibits 120 and 121 were not offered

and admitted into evidence until the punishment phase. Defense counsel stated “No

objections[]” when exhibits 115, 118, 119, 120, and 121 were offered and admitted

into evidence during the punishment phase.

Duncan asserts that he lacked counsel when he pleaded guilty to the

conviction reflected in exhibit 115A because the line on the judgment where his

attorney’s name should be is blank, and that the use of exhibit 115A for impeachment

was structural constitutional error. Duncan is correct that a prior conviction obtained

in violation of a defendant’s right to counsel is void and cannot be used for purposes

4
While objecting, defense counsel conceded that there “may be a slight door
that’s opened[.]”
27
of either guilt or enhancement or punishment in a subsequent case. Burgett v. Texas,

389 U.S. 109, 115 (1967). Although the places on the 1994 judgment where defense

counsel’s name should be were left blank, that fact, standing alone, does not facially

establish that Duncan was not represented by counsel. Cf. Burgett, 389 U.S. at 112,

115 (holding that lack of counsel was demonstrated when the judgment affirmatively

stated that the defendant came “without counsel”); see Baxley v. State, 547 S.W.3d

266, 2018 WL 1701843, at *2 (Tex. App.—Texarkana 2018, pet. ref’d)

(distinguishing a judgment that does not conclusively reflect that the defendant had

counsel from the judgment at issue in Burgett). When a judgment does not show on

its face that it was obtained without assistance of counsel, the attack on the prior

judgment is collateral, and ‘“the record must leave no question about the existence

of the fundamental defect.’” Baxley, 2018 WL 1701843, at *3 (quoting Nix v. State,

65 S.W.3d 664, 668-69 (Tex. Crim. App. 2001)). The appellant has the burden to

show that he was indigent and did not voluntarily waive his right to counsel. Id.

(citing Chancy v. State, 614 S.W.2d 446, 447 (Tex. Crim. App. [Panel Op.] 1981)).

‘“If the record is incomplete, and the missing portion could conceivably show that

the defect does not in fact exist, then the judgment is not void, even though the

available portions of the record tend to support the existence of the defect.”’ Id.

(quoting Nix, 65 S.W.3d at 668-69).

28
 The record does not establish that Duncan was indigent at the time of the 1994

conviction, and Duncan did not establish those facts by testimony or other evidence.

As stated above, defense counsel agreed to the admission of the 1994 judgment

during the punishment phase, and the document was not admitted into evidence

during guilt-innocence. Duncan did not conclusively establish that the 1994

judgment is void. 5

Rule 609 provides that a witness may only be impeached through a conviction

of a felony or crime of moral turpitude. Tex. R. Evid. 609(a)(1). However, an

exception to the limitations of Rule 609 exists when the witness opens the door by

leaving a false impression with the jury. See Delk v. State, 855 S.W.2d 700, 704

(Tex. Crim. App. 1993) (explaining that a defendant who created a false impression

about his criminal history could be impeached with a prior misdemeanor conviction

for public intoxication); see also Monkhouse v. State, 861 S.W.2d 473, 476 (Tex.

App.—Texarkana 1993, no pet.). We see no reason why the rule should be different

when the witness claiming law-abiding behavior by the defendant is someone other

than the defendant. See generally Delk, 855 S.W.2d at 704. In addition, viewing the

5
The State attached to its brief a document purporting to be a waiver of counsel
by Duncan in the 1994 case. However, we may not consider attachments to briefs
that were not properly made part of the appellate record. See Tex. R. App. P. 34.1;
Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

29
record as a whole, we cannot say that the trial court allowing the State to impeach

Walker with Duncan’s 1994 conviction had more than a slight influence on the

verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (holding

that a substantial right is affected when the alleged error had a substantial and

injurious effect in determining the jury’s verdict); see also Tex. R. App. P. 44.2(b).

Article 37.07, section 3(i) of the Texas Code of Criminal Procedure provides

that “[e]vidence of an adjudication for conduct that is a violation of a penal law of

the grade of misdemeanor punishable by confinement in jail is admissible only if the

conduct upon which the adjudication is based occurred on or after January 1, 1996.”

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(i) (West Supp. 2017). 6 Even if the

admission of the 1994 conviction into evidence during the punishment phase was

erroneous, viewing the entire record as a whole, including Duncan’s four other prior

convictions, we cannot say that the admission of the 1994 conviction (State’s Exhibit

115A) into evidence had more than a slight influence on the verdict. See King, 953

S.W.2d at 271; see also Tex. R. App. P. 44.2(b). In light of the record as a whole,

including Duncan’s admissions to the convictions reflected in exhibits 118 and 119,

we conclude that any error in the State mentioning exhibits 118 and 119 during

6
Because the amendments to Article 37.07 do not materially affect the
outcome of this appeal and do not affect subsection (3)(i), we cite to the current
version of the statute.
30
cross-examination and initially offering them into evidence was harmless. See King,

953 S.W.2d at 271; see also Tex. R. App. P. 44.2(b). In addition, as discussed above,

defense counsel did not object to the admission of exhibits 115A, 118, 119, 120, and

121 into evidence during the punishment phase. See Tex. R. App. P. 33.1(a); Webb

v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988) (holding that it is axiomatic

that motions in limine do not preserve error). For all of the foregoing reasons, we

overrule issues seven, eight, nine, ten, and eleven.

ISSUES TWELVE, THIRTEEN AND FOURTEEN

In issue twelve, Duncan argues that Ralston’s opinion testimony was legally

insufficient evidence to prove that a motor vehicle caused the victim’s death. In issue

thirteen, Duncan asserts that Ralston’s opinion testimony was insufficient to prove

that Duncan’s motor vehicle caused the victim’s death, and in issue fourteen, Duncan

argues that Ralston’s opinion testimony is “legally insufficient to prove the agency

of appellant as part of the corpus delecti of the offense[.]” We address these issues

together.

As discussed above, Ralston testified that the victim’s injuries were consistent

with a point of impact injury from behind and that a bumper like the one on Duncan’s

vehicle could have caused the victim’s injuries. Ralston also testified that the

victim’s cause of death was multiple injuries due to being struck by a vehicle.

31
Duncan’s arguments regarding Ralston’s testimony ignore the other evidence,

including: Scott’s testimony that the victim was jogging on the evening she died;

Hatton’s testimony that, based upon his training and experience, he believed the

victim had been struck by a motor vehicle; Hatton’s testimony regarding the damage

to Duncan’s vehicle and the resemblance of the debris to the intact headlight of

Duncan’s vehicle; Duncan’s statements and trial testimony that he knew he had

struck something; Gustafson’s testimony that the parts found at the scene matched

Duncan’s vehicle identically; Lee’s testimony that the victim’s injuries were

consistent with a fender wrap crash; Pollock’s testimony that DNA samples from

Duncan’s vehicle were from the victim; Lounsbury’s testimony that the debris

matched Duncan’s vehicle; and the testimony of Walker and Meek that Duncan told

them he hit something or someone. Duncan cites no authority supporting the

proposition that Ralston’s testimony, standing alone, must be legally sufficient to

prove that a motor vehicle driven by Duncan caused the victim’s death. The totality

of the evidence is sufficient to support the verdict. See Hooper, 214 S.W.3d at 13.

We overrule issues twelve, thirteen, and fourteen.

ISSUES FIFTEEN, SIXTEEN, SEVENTEEN, AND EIGHTEEN

In issue fifteen, Duncan argues that he was not given the warnings required by

article 38.22 of the Texas Code of Criminal Procedure before giving a statement to

32
law enforcement. In issue sixteen, Duncan contends that the trial court abused its

discretion by admitting his recorded statements as evidence because he did not

receive the warnings required by article 38.22. In issue seventeen, Duncan asserts

that because “lawmen” had arranged his statement, physically took him to the

station, towed his vehicle, and subsequently arrested him, his Fifth and Fourteenth

Amendment rights were violated by recording his statement without first giving

warnings as provided by article 38.22. In issue eighteen, Duncan argues that since

he received no warnings under 38.22 and a complete tape of his statement was

admitted as evidence, “reversal is required.” We address these issues together.

We review a trial court’s ruling on the admission of evidence for an abuse of

discretion. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009). We will

uphold the trial court’s decision unless it lies outside the zone of reasonable

disagreement. Id. The test for abuse of discretion is whether the ruling was arbitrary

or unreasonable. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

An oral statement by an accused as a result of custodial interrogation is inadmissible

in a criminal proceeding unless the statement reflects that he was warned (1) of his

right to remain silent and to refuse to make a statement, (2) any statement may be

used as evidence; (3) he has the right to have an attorney present to advise him before

and during questioning; (4) if he is indigent, an attorney will be appointed to advise

33
him before and during questioning; (5) he may terminate the interview at any time;

and (6) before making the statement, he knowingly, intelligently, and voluntarily

waived the aforementioned rights. Tex. Code Crim. Proc. Ann. art. 38.22, §§ 2(a), 3

(West 2018); see also Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). By its

express terms, article 38.22 applies only to statements made as a result of custodial

interrogation. Tex. Code Crim. Proc. Ann. art. 38.22, § 3. The defendant bears the

initial burden to establish that his statement resulted from a custodial interrogation.

Herrera v. State, 241 S.W.3d 520, 526 (Tex. Crim. App. 2007).

Duncan testified that he contacted the San Jacinto County Sheriff’s office. In

addition, as previously discussed, Hatton testified that Duncan was informed that he

was not under arrest, and Duncan agreed to give a statement. Gustafson explained

that Duncan was not handcuffed when he was put into the patrol vehicle, and Duncan

agreed to provide a voluntary statement to the rangers who would be waiting for him

at the Highway Patrol Office. On the recording of his statement, Duncan was asked

for his name, date of birth, social security number, address, and driver’s license

number. Ranger Bess then informed Duncan that he was not under arrest, was “not

going to be arrested tonight[],” “that’s the door[,]” “it’s unlocked[,]” and “you’re

free to go at anytime[,]” and Duncan stated that he understood. We hold that the

evidence authorized the trial court to find that Duncan’s statement was not the

34
product of a custodial interrogation, and that the warnings provided in article 38.22

were therefore not required. Accordingly, we conclude that the trial court did not

abuse its discretion by admitting Duncan’s recorded statement into evidence. We

overrule issues fifteen, sixteen, seventeen, and eighteen.

ISSUE NINETEEN

In issue nineteen, Duncan argues that the punishment verdict is ambiguous and

must be reversed because the jury did not state whether it does or does not assess a

fine. Underneath the paragraph in which the jury assessed the term of Duncan’s

confinement, the punishment verdict form stated “In addition thereto, WE DO/WE

DO NOT assess a fine in the amount of $2500.00 (not to exceed $10,000). Although

the jury did not circle either “we do” or “we do not,” there would be no reason for

the jury to have written in “$2500.00” unless its intent was to assess a $2500 fine.

We reject Duncan’s contention that the punishment verdict is ambiguous.

Accordingly, we overrule issue nineteen. Having overruled all of Duncan’s issues,

we affirm the trial court’s judgment.

AFFIRMED.

______________________________
STEVE McKEITHEN
Chief Justice

35
Submitted on March 15, 2018
Opinion Delivered July 25, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Johnson, JJ.

36