Lechuga, Jr., Ruben v. The State of Texas--Appeal from 346th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RUBEN LECHUGA, JR., )

) No. 08-02-00181-CR

Appellant, )

) Appeal from the

v. )

) 346th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20020D00889)

)

O P I N I O N

Ruben Lechuga, Jr. appeals his convictions for the offenses of manslaughter and two counts of accident involving injury/death. The jury found Appellant guilty and assessed punishment at 7 years= imprisonment and a $5,000 fine for the offense of manslaughter and 5 years= imprisonment for each offense of involving injury/death. Appellant raises three issues on appeal: (1) the trial court erred in allowing inflammatory and irrelevant testimony from the decedent=s mother; (2) his trial counsel rendered ineffective assistance of counsel; and (3) the evidence was factually and legally insufficient to support his conviction for manslaughter. We affirm.

On the afternoon of May 24, 2001, grade schoolers were celebrating the last day of the school at Grandview Park on McKinley Street by having egg and shaving cream fights. Eyewitnesses testified that there were many children in the park area, with most witnesses placing the number of children in the park and surroundings at between fifty to seventy. There were children running around the park and some were crossing back and forth on the street.

Manuel Lopez was driving west up McKinley with his wife and daughter and saw in the next block six or seven children, ages ten to fourteen, leaving the park and crossing the street. They were throwing shaving cream all over themselves and horsing around. A white car, later identified as being driven by Appellant, passed by Mr. Lopez at approximately 45 or 50 miles per hour. Mr. Lopez was driving about twenty miles per hour when the vehicle passed him. Mr. Lopez observed two males in the vehicle, one driving and the other in the passenger=s side. According to Mr. Lopez, the vehicle continued to travel at the same speed as when it had passed him. Mr. Lopez noted that the speed limit in that area is 30 miles per hour and at the time commented to his wife that the driver of the white car was going too fast. Mr. Lopez then saw the vehicle hit two children in the street and drive away real fast. Mr. Lopez did not see any brake lights triggering on the vehicle. By the time Mr. Lopez reached the accident scene, the white vehicle had already left. Mr. Lopez testified that he did not see any other vehicle on the roadway nor was there anything obstructing the view.

Nineteen-year-old William Lechuga testified that he was at the park that day with a friend, having egg and shaving cream fights with other kids in the park. Mr. Lechuga stated that a group of boys were crossing from one side and some others were crossing from the other side. He recalled that there were five to ten children in the middle of the road. Mr. Lechuga then saw a white car with black stripes on the side start to speed up. Several of the children were running out of the way, but the vehicle kept going and hit two children. One child was hit by the side of the car, flew up in the air, and landed in the road. The other boy was hit straight on, rolled up onto the car, and went into the windshield. Mr. Lechuga saw the car slow down and the boy fell off. The car then sped away. According to Mr. Lechuga, the car slowed down, but did not stop. To his knowledge, there were no obstructions nor any cars between the vehicle and the kids.

Nineteen-year-old Emanuel Medina testified that he was with William Lechuga in the park that day, throwing eggs and having fun. The sound of wheels peeling off drew Mr. Medina=s attention to the vehicle and he noticed children running out of the way. He observed the two children in the center of the street doing hand motions to stop, but the vehicle did not stop. Mr. Medina turned to look at a friend and when he looked back, he saw both children lying on the street and noticed that the vehicle=s windshield was shattered. He also saw the vehicle drive away from the scene. Mr. Medina did not think the driver=s view had been obstructed in any way and he did not see the vehicle swerve away from the children.

Nineteen-year-old Priscilla Rodriguez went to the park that afternoon to pick up her younger sister. Ms. Rodriguez observed children in the roadway and other children in the park having shaving cream fights. Ms. Rodriguez saw the white car near the park twice that day and at trial identified Appellant as the driver. The first time Appellant passed by the park, he was driving slowly. Ms. Rodriguez noticed that there was a boy in the passenger=s seat. The second time, fifteen minutes later, Ms. Rodriguez saw Appellant driving fast and saw a lot of children in the street. She saw everybody scatter and the two boys get hit by the vehicle. Ms. Rodriguez knew one of the boys, Abraham Rosales, and saw him hit the windshield part of the car. Ms. Rodriguez observed the vehicle brake after hitting the children, then press on the gas, and leave the scene at a high rate of speed.

Priscilla Rodriguez=s seventeen-year-old sister, Veronica Rodriguez, also testified as to her recollection of the incident. Veronica recalled seeing a lot of children crossing the street and a white car coming towards them. She could not remember if there were any vehicles between the white car and the children on the street. Veronica could not see how many people were inside the car. Veronica testified that she saw the car slow down a little bit and then speed up again. Veronica then observed the car drive up McKinley and hit the two boys. After hitting the boys, the vehicle drove off without stopping.

Eighteen-year-old Victor Flores testified that on the day of the incident, he was at the park with a couple of friends, throwing eggs and shaving cream. Mr. Flores was walking towards the street and had stopped on top of a mound in the park when he observed a white car coming up the street, traveling about 35 miles per hour. He had a clear view and observed nothing between the car and the children in the street. To Mr. Flores, it sounded like the driver had sped up by pressing on the gas. Mr. Flores observed one of the children, Abraham, trying to indicate to the driver, but he just got scared and stood there in the street. The car did not slow down or swerve and Mr. Flores did not hear any braking before it hit the children. After hitting the children, the car braked, but then it kept going and left the scene.

Fourteen-year-old D.B. testified that at the time of the incident, she was standing in the park and saw a crowd of kids in the street, crossing the street in both directions. D.B. saw a white car coming towards the crowd, which at first was traveling slow, then went fast, and then slowed down, turning the wheel towards the children. She recalled that the vehicle was going about 30 miles per hour and that the driver hit the brakes right before he hit the children. D.B. saw one of the boys hit the windshield. The driver then pushed the boy=s body away and moved it to the side before leaving at a fast speed.

Nineteen-year-old Jessica Perez testified that she was in the park that afternoon with her friends. Ms. Perez observed ten to fifteen children in the street and the white car speeding towards the children. Ms. Perez recalled that the vehicle was traveling 40 or 50 miles per hour. She identified Appellant as the driver and testified that she had seen Appellant driving the car slower around the park earlier that day. Right before the incident, Ms. Perez saw Appellant driving up McKinley fast, looking straight ahead. She did not see him slow down as he approached the children. According to Ms. Perez, the vehicle never stopped, but did push off Abraham Rosales= body, which was struck in the windshield. Appellant then drove away, traveling at the same speed as before he had hit the two boys. Ms. Perez also recalled seeing three people in Appellant=s vehicle.

El Paso Police Officer Bryan Marusich testified for the State as an expert witness in the field of accident reconstruction. Officer Marusich stated that evidence at the scene included two sets of shoes, a glass debris spray path from the vehicle=s windshield, and blood at the scene. According to Officer Marusich, a motor vehicle versus pedestrian accident scene reconstruction cannot be done where the person hit bounces directly sideways off the side of the vehicle or where a person penetrates the windshield and falls out. Officer Marusich could not determine with any accuracy the actual impact site. Based on windshield damage, Officer Marusich estimated that the vehicle was probably traveling 40 miles per hour. Officer Marusich took braking into consideration in determining his estimate. Officer Marusich also stated that the speed limit in the area was 30 miles per hour. In his opinion, it would have been impossible for the driver not to have known he was involved in some sort of accident.

With respect to weather conditions on that day, Officer Marusich testified that road conditions were dry and the sun would not have been a problem for a driver=s vision on McKinley. In his accident report, Officer Marusich determined that the reasons for the accident included driver inattention, failure to yield the right-of-way to the pedestrians, faulty evasion, and speeding. In his opinion, driving 30 miles per hour would be greater than is prudent and reasonable if there are fifteen or twenty children crossing the street in front of a park. On

cross-examination, Officer Marusich conceded that there was negligence on the part of the pedestrians in the roadway, which contributed to the incident.

Corinne Stern, the Chief Medical Examiner for El Paso County performed the autopsy on twelve-year-old Abraham Rosales. Dr. Stern determined that the cause of death was a blunt force injury to his head. The child=s external and internal injuries included a fractured left shin bone. Dr. Stern testified that by measuring the level of this fracture from the base of the heel, she can determine whether a car was braking at the time it struck an individual in a motor vehicle/pedestrian fatality. The child=s fracture was measured at ten inches from the heel, which Dr. Stern determined was lower than the height of a normal car bumper. In her opinion, the vehicle that struck and killed Abraham Rosales was braking at the time that it struck the child.

At trial, J.A., the twelve-year-old brother of Appellant=s girlfriend, testified on behalf of the defense. J.A. recalled that on May 24, 2001, Appellant was already at his house when he came home from school around 4 p.m. They played video games on J.A.=s Play Station for a while and then left the house to pick up Appellant=s girlfriend from Grandview Park. Appellant, the driver, and J.A. went to Grandview Park and parked nearby and waited to see if they would see Appellant=s girlfriend passing by. J.A. observed children around the park, throwing eggs and shaving cream at each other. There were children flowing off into McKinley Street and some had crossed the street to throw eggs from a farther distance. Appellant and J.A. went around the park twice looking for Appellant=s girlfriend. When they could not find her, they went to a friend=s house of the girlfriend, which was located further down McKinley. Appellant=s girlfriend was not there, so Appellant proceeded to drive back to the park. J.A. recalled that as Appellant was driving up McKinley between 25 to 30 miles per hour, a swarm of about fifteen children ran out from the back of a van parked on the corner. Appellant slammed on the brakes, but one of the children hit the windshield. Appellant stopped for a few seconds and the child fell off the car. Appellant then stepped on the gas and drove away.

On cross-examination, J.A. explained that while driving back to the park they saw two groups of children. Appellant slowed down to let the first group of children pass. Between the first group and the second, Appellant sped up from between 20 to 30 miles per hour to between 25 to 35 miles per hour. A minute later, the second group of children ran out from the back of the van and Appellant hit the brakes. J.A. guessed that the two children who remained in the street were in shock and stayed there instead of trying to run. After leaving the scene, they hid the car at Appellant=s grandmother=s house and then walked to J.A.=s house.

At trial, Appellant testified that on May 24, 2001, he went to his girlfriend=s house after getting off of work in the afternoon. He stayed there playing with her little brother=s Play Station until 5 p.m. He and J.A. then went to the park looking for his girlfriend and parked the car nearby. Appellant saw the activity in the park and noted that there were about seventy kids in the park, having shaving cream and egg fights. Appellant was aware that it was the last day of school and that this activity would probably be going on in the park.

After waiting five minutes, Appellant started driving up McKinley and slowed down to let children pass. Appellant drove around the block, looking for his girlfriend. Appellant then drove back up McKinley and around the block a couple of times looking for his girlfriend, but he did not see her. At that point, he saw his friend Juan=s truck and observed an egg fight between the kids in the bed of the truck and the kids outside on the street. When the truck drove off, Appellant noticed that his girlfriend was in the bed of the truck. Appellant drove around, but lost sight of the truck. Appellant then drove back to his girlfriend=s friend=s house, but his girlfriend was still not there. Appellant then proceeded back up McKinley. Appellant was driving behind a yellow truck with a camper on the back. Appellant noticed that it was going real slow, as if they were preoccupied looking for an address or something. Appellant passed the vehicle on the side and then got back into his lane.

Appellant recalled that he was traveling between 20 to 30 miles per hour as he proceeded up McKinley. Appellant saw a lot of children in front of him and slowed down. Appellant saw a black truck coming the opposite way. After the children moved out of the way, the truck passed by. Appellant recalled that at this point, there was nothing in front of him. All of sudden, Appellant saw children run out into the street. He pressed on the brakes, but it was too late. One of the children flew into his windshield, breaking the glass, then immediately falling off the car. Appellant stopped the car for about a second or two before fleeing the scene. Appellant admitted that he did not stop and render aid and that he was aware an automobile collision could cause death or serious bodily injury. Appellant testified that he left because he was scared, frightened of what might happen to him, and panicked.

On cross-examination, Appellant conceded that in his statement to police, he did not mention that there were children on the street the first time he passed by nor did he mention that he went to the park to pick up his girlfriend. Appellant further testified that the children who ran out in front of him came from the front of a tan van parked on the street side of the park area, referring to a photograph of the scene in State=s evidence. Appellant conceded that he did not mention the van in his statement. Appellant stated that he knew he had been involved in an accident and that he had hit somebody who might possibly be injured, but he did not stop to render aid.

The State called Dolores Luna, the grandmother of the surviving child victim, to testify as a rebuttal witness. Ms. Luna lives with her husband, their daughters, and their grandchildren on McKinley. Ms. Luna and her husband were not at home at the time of the accident. She received a cell phone call from the victim=s aunt, informing her that her grandchild had been injured. When Ms. Luna and her husband arrived at the scene, the police were starting to block the intersections, but they had leeway to get to their home. Instead of parking in their driveway, her husband parked the van in front of their house. After viewing the same photograph of the scene referred to by Appellant, Ms. Luna testified that the van parked on McKinley was their van, which had arrived at the scene after the accident occurred.

Inflammatory Testimony

In Issue One, Appellant asserts that the trial court erred in allowing inflammatory and irrelevant testimony from Elva Olivia Saenz, the mother of the decedent, arguing that her testimony was prejudicial and contained little probative value. In his brief, Appellant complains that Ms. Saenz= testimony was inadmissible under Rule 403 of the Texas Rules of Evidence, however, the record shows that Appellant did not make a Rule 403 objection to her testimony. To preserve an issue for appeal, there must be a timely objection that specifically states the legal basis for the objection. Maldonado v. State, 902 S.W.2d 708, 711 (Tex.App.--El Paso 1995, no pet.); Rezac v. State, 782 S.W.2d 869, 870 (Tex.Crim.App. 1990). Appellant=s complaint on appeal fails to comport with his trial objections, therefore we find he has waived this issue for review. See Tex.R.App.P. 33.1(a). Issue One is overruled.

Ineffective Assistance of Counsel

In Issue Two, Appellant asserts that he was denied effective assistance of trial counsel, alleging four instances of counsel=s deficient conduct by: (1) failing to investigate or object to the admission of the videotape of the accident scene and recovery of Appellant=s vehicle; (2) entering into a stipulation that Appellant did not have a driver=s license at the time of the incident; (3) eliciting an admission from Appellant during direct examination that he did not stop and render aid; and (4) failing to seek a jury charge on the lesser-included offense of criminally negligent homicide.

We review claims of ineffective assistance of counsel under the two-prong test set out by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Crim.App. 1986). To prevail, the appellant must show that trial counsel=s performance was deficient, that is, counsel=s representation fell below an objective standard of reasonableness. Thompson v. State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999); Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064. The appellant must also show that counsel=s deficient performance prejudiced his defense. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). This requires the appellant to show there is a reasonable probability that, but for counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Jackson, 877 S.W.2d at 771.

In reviewing an ineffective assistance of counsel claim, we must indulge a strong presumption that counsel=s conduct falls within the wide range of reasonable professional assistance and the appellant must overcome the presumption that the challenged conduct might be considered sound trial strategy. Thompson, 9 S.W.3d at 813; Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. Any allegation of ineffectiveness must be firmly founded and affirmatively demonstrated in the record to overcome this presumption. Thompson, 9 S.W.3d at 813; see Jackson, 877 S.W.2d at 771. In the majority of instances, this task is extremely difficult because Athe record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.@ Thompson, 9 S.W.3d at 813-14. When faced with a silent record as to counsel=s strategy, this Court will not speculate as to the reasons for counsel=s actions. See Jackson, 877 S.W.2d at 771. It is the defendant=s burden to prove ineffective assistance of counsel by a preponderance of the evidence. Thompson, 9 S.W.3d at 813. In this case, Appellant did not file a motion for new trial to challenge the alleged ineffectiveness of his counsel. The record before this Court does not contain trial counsel=s explanations of the reasons for the inaction alleged as error, therefore it will be difficult for Appellant to rebut the strong presumption that trial counsel=s conduct falls within the wide range of reasonable professional assistance. See Thompson, 9 S.W.3d at 814.

Appellant first asserts that his trial counsel was ineffective for failing to preview a police videotape of the accident scene on McKinley and the recovery of Appellant=s vehicle prior to its showing to the jury and for failing to object to this evidence.[1] Earlier in the trial, the State had introduced fourteen still photographs of the accident scene on McKinley, which Appellant=s counsel said he had previously viewed. These photographs were admitted without objection. The State had already offered the testimony of El Paso Police Officers Aaron Curlee and Eduardo Lopez, who described their recovery of Appellant=s vehicle, including their observations of the damaged condition of the vehicle, blood on the hood by the driver=s side, materials covering the vehicle, and the vehicle=s location on the property where it was found. After the police videotape was shown to the jury, the State offered the testimony of El Paso Police Officer Thomas Garcia who testified that he was aware of the video taken in this case and stated that it was taken before he took photographs of the vehicle. Through Officer Garcia=s testimony, the State introduced eight still photographs that depicted Appellant=s vehicle as it was found by the police. Appellant=s counsel stated that he had previously viewed the photographs and had no objection. These photographs were then admitted into evidence. The record on this appeal does not reveal trial counsel=s reasoning for his conduct with respect to the videotape. Appellant=s allegation is not affirmatively supported by the record, therefore he has failed to overcome the strong presumption that counsel=s conduct fell within the wide range of reasonable professional assistance. See Jackson, 877 S.W.2d at 771. Moreover, Appellant has failed to establish how this alleged deficiency prejudiced the defense as similar evidence was admitted at trial. See Strickland, 466 U.S. at 687, 104 S.Ct at 2064.

Appellant also complains that his trial counsel was ineffective for entering into a stipulation that Appellant did not have a valid driver=s license on May 24, 2001. Appellant argues that this stipulation amounted to an agreement as to a major element of the manslaughter charge alleged in the indictment. However, the record shows that the indictment did not allege that Appellant did not have a valid driver=s license. Rather, the State was required to prove one of three alleged theories of recklessness, which included an allegation that Appellant was Adriving said motor vehicle on a public roadway without the knowledge and skill required to obtain a valid Texas Driver=s license and driving in a public roadway where the then existing conditions were such that the knowledge and skill required to obtain a Texas Driver=s License was necessary to operate such motor vehicle safely . . . .@ The record is silent as to trial counsel=s reasoning for entering into the stipulation, which was signed by all parties, including Appellant. We also note that Appellant later admitted during trial that he did not possess a valid driver=s license on May 24, 2001. Appellant has failed to overcome the presumption of reasonable professional assistance nor has he shown that he was prejudiced by trial counsel=s alleged deficient conduct with respect to the stipulation.

Appellant next asserts that his trial counsel was ineffective for eliciting his admission to the offenses of failure to stop and render aid during direct examination at the guilt-innocence phase of his trial. Prior to Appellant=s testimony, several State witnesses all testified that Appellant=s vehicle hit two children on McKinley and then fled the scene without providing assistance. Appellant=s girlfriend testified that Appellant told her he left the scene because he was scared. Defense witness J.A., the passenger in Appellant=s vehicle, testified that Appellant fled the scene after hitting the children. The record before this Court does not reflect trial counsel=s reasons or strategy regarding the alleged deficient conduct. Absence such evidence, Appellant has failed to overcome the presumption that trial counsel=s actions were sound trial strategy, particularly given the uncontradicted evidence of Appellant=s flight from the accident scene. With respect to this complaint, Appellant has failed to show trial counsel rendered ineffective assistance.

In Appellant=s final complaint, he contends that trial counsel failed to seek a charge on the lesser-included offense of criminally negligent homicide. Appellant=s argument, however, is without merit as this lesser-included offense was submitted to the jury. Having reviewed Appellant=s complaints within his ineffective assistance claim, we find that he has failed to demonstrate that trial counsel=s performance was deficient or that any alleged deficiency prejudiced the defense. Issue Two is overruled.

Sufficiency of the Evidence

In Issue Three, Appellant argues that his conviction for manslaughter was based on legally and factually insufficient evidence. Specifically, Appellant asserts that the State failed to prove he acted recklessly.

Standards of Review

When reviewing the legal sufficiency of the evidence, we review the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App. 2001). We do not resolve any conflict of fact, weigh any evidence, nor do we evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992). Our duty, rather, is to determine if the explicit and implicit findings of the jury are rational by reviewing all the evidence is the light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. In so doing, we resolve any inconsistencies in the evidence in favor of the verdict. Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991).

In reviewing the factual sufficiency of the evidence, we ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is either so obviously weak as to undermine confidence in the jury=s determination or, although adequate if taken alone, is greatly outweighed by contrary proof. King v. State, 29 S.W.3d 556, 563 (Tex.Crim.App. 2000); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). We examine the evidence that tends to prove an elemental fact in dispute and compare it with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997). Our review must employ appropriate deference and should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any evidence presented at trial. See Johnson, 23 S.W.3d at 7. We will set aside a verdict for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Wesbrook v. State, 29 S.W.3d 103, 112 (Tex.Crim.App. 2000).

Manslaughter

A person commits manslaughter if he recklessly causes the death on an individual. Tex.Pen.CodeAnn. ' 19.04(a)(Vernon 2003). A person acts recklessly or is reckless with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. Tex.Pen.Code Ann. ' 6.03(c)(Vernon 2003). The risk must be of such a nature and degree that its disregard 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. AAt the heart of reckless conduct is conscious disregard of the risk created by the actor=s conduct.@ Trepanierv. State, 940 S.W.2d 827, 829 (Tex.App. Austin 1997, pet. ref=d), quoting, Lewis v. State, 529 S.W.2d 550, 553 (Tex.Crim.App. 1975).

Viewing the evidence in the light most favorable to the verdict, the evidence in this case shows that Appellant was driving on McKinley towards the park going over the 30 miles per hour speed limit for the area and according to witnesses, he was driving fast. Appellant passed another vehicle, which he believed was traveling too slow. Without swerving or braking, Appellant drove towards a group of children in the middle of the street and struck two of the children who remained in the roadway. One of the victims, Abraham Rosales, hit the windshield of Appellant=s vehicle with enough force to break through the glass. He died several days later from injuries sustained in the accident. Witnesses testified that there was nothing between Appellant and the children that would have obstructed Appellant=s view of the children in the street. At trial, Appellant testified that he was aware of the activity at the park that day and that there were many children running around the park area. From evidence of Appellant=s conduct and his testimony, the jury could rationally conclude beyond a reasonable doubt that given the circumstances surrounding his conduct, Appellant was reckless in driving in excess of the posted speed limit and at a speed that was greater than reasonable and prudent, a risk that Appellant consciously disregarded when he sped up to pass another vehicle, and then drove straight towards the children up ahead on the street. Therefore, we conclude the evidence is legally sufficient to support Appellant=s conviction for manslaughter.

Appellant also argues that the evidence was factually insufficient to support the manslaughter conviction. Specifically, Appellant points to evidence at trial that the children ran out in front of his car, that he braked before hitting the children, and that a van was obstructing his view. Several witnesses, however, offered contradictory testimony, stating that Appellant was speeding, did not brake before hitting the children, and did not have an obstructed view. While Dr. Stern testified that she determined from the victim=s injuries that the vehicle was braking, Officer Marisuch also testified that his estimation that Appellant was driving approximately 40 miles per hour at the time of collision took braking into consideration. The jury, as fact finder, was free to believe or disbelieve testimony offered by Appellant and defense witness J.A., the passenger in Appellant=s vehicle, and to resolve any inconsistencies in favor of the prosecution. After reviewing all the evidence presented at trial, we conclude the jury=s finding was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Issue Three is overruled.

We affirm the trial court=s judgment.

October 16, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 1

Larsen, McClure, and Chew, JJ.

(Do Not Publish)

[1]Although the police videotape was shown to the jury, it was never formally offered or admitted into evidence as an exhibit, therefore it is not in the record before this Court.