JAMES RYAN TURLEY III, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion issued February 27, 2001
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-99-02058-CR
No. 05-99-02059-CR
No. 05-99-02060-CR
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JAMES RYAN TURLEY III, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 195th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F99-02389-KN, F99-02388-KN & F99-70109-N
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OPINION
Before Justices Whittington, Bridges, and Roach
Opinion By Justice Whittington
        James Ryan Turley III appeals two convictions for manslaughter and one conviction for failure to stop and render aid. After finding appellant guilty as charged, the jury assessed punishment, enhanced by two prior convictions, at sixty years' confinement for each conviction. In addition, the jury found that appellant used or exhibited a deadly weapon, a motor vehicle, during the commission of each offense. In seven points of error, appellant contends (i) the evidence is legally insufficient to support his convictions for manslaughter, (ii) the evidence is factually insufficient to support his convictions in all three cases, (iii) the trial judge violated appellant's state and federal constitutional rights when he denied appellant's motion for continuance and defined a certain term during voir dire, and (iv) the trial judge abused his discretion in failing to grant appellant's motion for mistrial. For the reasons that follow, we affirm the trial court's judgments.
Background
        Vickie Phillips and her two sons, Antwon Davis and Demarcus Davis, were walking home from the grocery store on the afternoon of December 31, 1998. The three were standing in the grassy median at 9600 Forest Lane when a red pickup truck drove across the median, struck all three, and drove into oncoming traffic. Antwon and Demarcus were killed and Vicki was injured. The driver of the truck fled the scene. The truck was registered to appellant's grandmother, and appellant was later identified as the driver. Appellant was subsequently arrested and charged with manslaughter for the deaths of Antwon and Demarcus and failure to stop and render aid to Vicki.
        At trial, Vicki testified she was walking home from the grocery store on the sunny afternoon of December 31, 1998 with her two sons. Antwon was fourteen years old, and Demarcus was two years old. The three crossed three lanes of traffic to the grassy portion of the median of Forest Lane and were standing there when they were hit. According to Vicki, something “real hard” hit her and knocked her down. When she got up, the street was clear, and her boys were down the street. Vicki testified that the driver of the vehicle did not stop and remain at the scene nor did he give her his name, address, or insurance carrier. He also failed to assist or take Vicki and her sons to the hospital.         Sherri Stamey testified she was driving east on Forest Lane in the center lane when she saw a red pickup coming towards her on the wrong side of the median. She swerved to avoid the truck which crossed back over to the westbound lane and drove off. Sherri then saw a boy's body in the road. She stopped her van and ran to the boy who did not appear to be alive. Sherri looked around, saw another little boy several yards away, and ran to him. Although he was still breathing, his body was twitching. Sherri stayed with the little boy until the paramedics took him to the hospital.
        Alice Sheppard testified she was a passenger in a car driven by Bridget Deutsh on the afternoon of December 31, 1998. Their car was stopped in the left turn lane at a stop light when a red GMC truck with a chrome silver bumper crossed the median directly in front of the light. Alice saw the truck hit the older boy. The boy hit the windshield and fell to the side of the truck. The truck “came into head-on traffic and came to a stop in front of a -- or slowed down significantly in front of the ongoing traffic and then cut in front -- back in front of us.” Alice testified she could see clearly the driver of the truck but conceded that she was unable to identify anyone out of a photographic lineup. Alice also testified she called 9-1-1 and gave the license plate number as UW6816. She admitted the truck's chrome bumper had a silver ball hitch that partially obscured the second letter of the license plate number.
        Michael (Bart) Wortham testified he was with appellant on December 31, 1998. According to Bart, appellant picked him up before noon in appellant's brand new GMC 1999 candy apple red pickup truck. The two drove to Pleasant Grove to get some methamphetamine. After appellant injected Bart and then himself with the methamphetamine, they left Pleasant Grove and headed toward Carrollton. Appellant was driving on Forest Lane, talking on his cell phone, when he began acting as though he had a seizure. At that point, appellant “drove up on the curb and hit three people.” Bart admitted that appellant's mother told him to say appellant had a seizure. He also admitted he had a closed-head injury in 1982 that left him in a “semi-coma.” Bart explained that a “semi-coma” was “where one side of your body is in a coma for 15 years.” He had a grand mal seizure in 1996, has problems with his left side, and needs a cane or wheelchair to get around. He admitted giving several versions of his story in the past and that he was confused about some of the things that happened that day. He testified he was not confused about certain things: he knew he did drugs with appellant that day and that appellant was driving the pickup when he hit three people.
        Dallas police officer Joseph Maddox testified he had worked in the traffic division for over five years, investigating injury and fatality traffic accidents. He was in charge of examining the physical scene and collecting physical evidence. Maddox arrived at the scene of the accident shortly after 3:00 p.m. on December 31, 1998. He testified there were no skid marks on the pavement and no sign that the driver tried to brake on the grassy median. FN:1 He explained that when a driver of a vehicle hits the brakes on grass, the nonrotating tires leave a mark that is “generally discolored or almost to the point to where it was singed or burned or flattened out. . . [and the tires] would actually take portions of the grass up.” Maddox testified he investigated numerous accidents every year. During the course of those investigations, he found it to be dangerous to operate a motor vehicle while speaking on the telephone or under the influence of a drug or controlled substance. He also testified it was important for a driver to: maintain a single lane of traffic, keep a proper lookout, steer away from other vehicles or people to avoid accidents, and timely apply the brakes to avoid colliding with other vehicles or people. Maddox also testified that it would be dangerous for a person to operate a vehicle knowing he had or could have seizures. Finally, Maddox testified that the driver of the vehicle did not remain at the scene of the accident as required by law.
        Detective David S. Hernandez of the Dallas Police Department testified he was assigned to this case shortly after it occurred. Hernandez began investigating by trying to match the license plate number given at the scene of the crime, UW6816, but the number turned up a different vehicle than what witnesses had seen. Hernandez then ran a search for a vehicle similar to that described by witnesses FN:2 with a similar license plate number to that given at the scene. The officer turned up a vehicle matching the description with the license plate number UY6816, registered to Francis Garner, appellant's grandmother. Upon further investigation, the officer discovered that although appellant's grandmother bought appellant the truck and was the registered owner, she had not seen the truck since Christmas. Hernandez determined the truck had a security system with a tracking device known as Low Jack that would allow the truck to be located at anytime. The tracking system was activated and the truck subsequently located at a body shop where Gary Cody Jones (Cody) worked. The truck had been recently repainted.
        Cody testified Larry Joe Cox asked if Cody would repair appellant's truck. Larry Joe knew Cody didn't like appellant and that appellant was not allowed on Cody's property. Larry Joe said appellant ran over a dumpster and wanted to fix the truck before his grandmother found out. Cody was working on the truck when his father told him about the accident. The two men were suspicious and called the police. While Cody's father was on the telephone with the police, appellant and his mother arrived at the body shop. Appellant told Cody he needed the truck back because he had reported it stolen. Cody's father would not let them take the truck so appellant and his mother left. Several minutes later, the police arrived.
        Officer Don Colley assisted officer Hernandez with the follow-up investigation of the accident. He interviewed appellant's brother, Kevin Ray, at a house where he was living at the time in Cleburne. The officer found some vehicle parts out behind the house, including a GMC grill and bug shield. Colley compared the grill and bug shield to pieces found at the scene of the accident and determined they were “consistent, similar in color and in nature.”         Appellant testified he was not driving his truck at the time it struck Vicki and her children. According to appellant, he picked up Bart and drove to Kevin's house. He traded some of Bart's prescription valium for cocaine. After taking some cocaine, appellant “started feeling kind of strange, so I went out to the shed where the couch was, and I laid down, and I kind of went into one of my spells and went off to sleep.” Appellant continued, “I have seizures real bad when I do speed or coke or anything like that. . . I started feeling like I was going to have one, so I laid down and went to sleep. I took some of my medication, some of my prescription . . Primidone. It's a barbiturate. It's for seizures.” According to appellant, when he awoke around 4:00 or 5:00 that afternoon, his truck was gone. Appellant called his cousin, Booger Red, to find out what was going on, then went back to sleep. His cousin, Terry Miller, came by later and asked him to help her move. Appellant agreed. The two drove to Crandall to get a truck and a trailer. They then drove to Terry's house where they loaded her things into the trailer. When they returned to Kevin's house, appellant's truck was there. The front part of the truck was wrecked. Appellant asked around to find out who wrecked his truck, but “they said they thought [appellant] did it.” Appellant did not ask Larry Joe or anyone else to fix the truck. Nevertheless, his cousin, Jeannie, told him later that the truck was at Cody's body shop.
        Appellant admitted on cross-examination that five calls were made to his mother's phone number from his cell phone between 3:18 p.m. and 3:46 p.m. on the afternoon of December 31, 1998, but he denied making the calls. He also conceded there were two phone calls to Cody's body shop, although he testified he did know the body shop's phone number. He also testified on cross- examination that he had been having seizures “real bad the past year, about a year and a half” with as many as six seizures a month. He denied having seizures since he was eight years old and stated that his medical records were incorrect. Appellant said he was not responsible for the accident and that he believed Larry Joe and the others were running a chop shop and involved in drugs.
        After finding appellant guilty as charged, the jury assessed punishment at sixty years' confinement in each case. The jury also found appellant used or exhibited a deadly weapon, a motor vehicle, during the commission of all three offense. These appeals followed.        
Legal Sufficiency of the Evidence
        In his first point of error, appellant contends the evidence is legally insufficient to support his convictions for manslaughter. Under this point, appellant claims the State failed to prove how the acts or omissions resulted in the truck striking the complainants or that any such act or omission was “reckless.” We disagree.
        When reviewing a challenge to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. Turner v. State, 805 S.W.2d 423, 427 (Tex. Crim. App. 1991). We determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Santellan v. State, 939 S.W.2d 155, 160 (Tex. Crim. App. 1997). The factfinder is the sole judge of the witnesses' credibility and the weight to be given their testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984); see Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979). Thus, the factfinder is free to accept or reject any or all of the evidence presented by either side. See Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Stahle v. State, 970 S.W.2d 682, 687 (Tex. App._Dallas 1998, pet. ref'd). The factfinder may draw reasonable inferences from basic to ultimate facts. Sterry v. State, 959 S.W.2d 249, 255 (Tex. App._Dallas 1997, no pet.); Davey v. State, 989 S.W.2d 52, 53-54 (Tex. App._Dallas 1998, pet. ref'd).
        A person commits manslaughter if he recklessly causes the death of an individual. Tex. Pen. Code Ann. § 19.04(a) (Vernon 1994). A person acts recklessly or is reckless with respect to the 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. The risk must be of 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. Tex. Pen. Code Ann. § 6.02(c) (Vernon 1994). A person commits the offense of intoxication manslaughter if he operates a motor vehicle in a public place and is intoxicated and by reason of that intoxication causes the death of another by accident or mistake. Tex. Pen. Code Ann. § 49.08(a) (Vernon 1994).
        Although appellant contends the evidence is insufficient to show he recklessly caused the deaths of Antwon and Demarcus, we disagree. The jury was instructed it could find appellant guilty of manslaughter if it found that appellant :
        recklessly caused the death of an individual, Antwon Davis, while [appellant] was operating a motor vehicle, a deadly weapon, on Forest Lane, a public street in the City of Dallas, in Dallas County, Texas in that [appellant] was operating such motor vehicle while he was under the influence of a drug, a dangerous drug, a controlled substance, alcohol, or a combination of two or more of those substances, or while using a telephone, or while he was failing to drive the motor vehicle in a single lane of traffic, or while he was failing to guide said motor vehicle away from Antwon Davis, or while he was failing to keep a proper look-out while operating the motor vehicle, or while he was failing to timely apply the brakes of the motor vehicle in order to avoid colliding with Antwon Davis, or that he was operating the motor vehicle while he was subject to seizures and blackouts, and that such act or acts, if any, resulted in the motor vehicle colliding with and striking Antwon Davis, thereby causing his death . . .
 
The jury was similarly instructed in the death of Demarcus Davis.
        The evidence in this case, when viewed in the light most favorable to the verdict, shows appellant was driving his pickup truck while under the influence of methamphetamine and talking on his cell phone. Although he was driving west, he crossed over the median of Forest Lane and struck Vicki and her children without attempting to swerve or stop. He came to a brief stop in the eastbound lane but accelerated and drove back over to the westbound lane. Appellant then sped off. In addition, appellant testified he experienced “pretty regular” seizures, with as many as six in a month. From these facts, we conclude a rational jury could infer appellant recklessly caused the deaths of Antwon and Demarcus by operating a motor vehicle while (i) under the influence of a controlled substance, (ii) using a telephone, (iii) failing to drive the motor vehicle in a single lane of traffic, (iv) failing to guide the motor vehicle away from Antwon and Demarcus, (v) failing to keep a proper look-out while operating the motor vehicle, (vi) failing to timely apply the brakes of the motor vehicle in order to avoid colliding with Antwon and Demarcus, or (vii) subject to seizures and blackouts, and that such act or acts resulted in the motor vehicle colliding with and causing the deaths of Antwon and Demarcus. Therefore, we conclude the evidence is legally sufficient to support appellant's convictions for manslaughter. W e overrule appellant's first point of error.
        
Factual Sufficiency of the Evidence
        In his second point of error, appellant contends the evidence is factually insufficient to support his convictions for manslaughter and failure to stop and render aid. Under this point, appellant claims Bart, the State's “star witness,” was not believable because he was an admitted drug abuser who suffered a closed head injury in 1982. Appellant also argues the testimony of other witnesses was unreliable because they were admitted felons and drug users. We disagree.
        In conducting a factual sufficiency review, we examine the jury's weighing of the evidence. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). In so doing, we view all the evidence without the prism of “in the light most favorable to the prosecution.” See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). We do not, however, judge the credibility of witnesses in determining factual sufficiency. Nolasco v. State, 970 S.W.2d 194, 196 (Tex. App._Dallas 1998, no pet.); see Dillard v. State, 931 S.W.2d 689, 696 (Tex. App._Dallas 1996, pet. ref'd, untimely filed). We defer to the jury's findings so as to avoid substituting our judgment for that of the jury. See Johnson, 23 S.W.3d at 7; Jones v. State, 944 S.W.2d 642, 648 (Tex. Crim. App. 1996). The purpose of our review is only to prevent a manifestly unjust result. See Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. “That a different verdict would be more reasonable is, therefore, insufficient to justify reversal.” Medina v. State, 7.W.3d 633, 637 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000). We will uphold the jury's verdict “unless it is so 'against the great weight of the evidence' that it is 'clearly wrong and unjust,' i.e., manifestly unjust, shocking to the conscience or clearly biased.” Medina, 7.W.3d at 637 (citing Clewis, 922 S.W.2d at 135); see Mitchell v. State, 12 S.W.3d 158, 159 (Tex. App._Dallas 2000, no pet.).
        In addition to the elements of manslaughter set forth above, the State was required to show appellant was the driver of the pickup which was involved in the accident resulting in Vicki's injuries and intentionally and knowingly failed to stop and render reasonable assistance. See Tex. Transp. Code Ann. § 550.021 (Vernon 1994); St. Clair v. State, 26 S.W.3d 89, 98 (Tex. App._Waco 2000, pet. ref'd); Allen v. State, 971 S.W.2d 715, 717 (Tex. App._Houston [14th Dist.] 1998, no pet.). The State satisfies its burden of establishing appellant's culpable mental state by showing appellant “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).
        After reviewing all the evidence presented at trial, we conclude the jury's findings were not so against the great weight of the evidence as to be clearly wrong and manifestly unjust. Although appellant highlights a number of inconsistencies in Bart's testimony and would have us conclude that the evidence is factually insufficient, we decline to do so. The jury was the factfinder in this case and, as such, it was the jury's responsibility to resolve any conflicts in the testimony. See Dumas v. State, 812 S.W.2d 611, 615 (Tex. App._Dallas 1991, pet. ref'd). In addition, as factfinder, the jury was entitled to conclude the inconsistencies, if any, in Bart's and any other witnesses' stories were immaterial and inconsequential. Because (i) all of appellant's complaints under this point center around the credibility of the witnesses' testimony and (ii) we may not substitute our judgment for that of the jury on this issue, we conclude the evidence is factually sufficient to support the convictions. We overrule appellant's second point of error.
Motion for Continuance
        In his third and fourth points of error, appellant contends the trial judge erred in denying his oral motion for continuance during trial. Under these points, appellant claims his rights against self- incrimination under the Texas and United States constitutions were violated when the trial judge denied appellant's motion for continuance and “compelled” appellant to testify at trial. We disagree.
        Article 29.03 of the Texas Code of Criminal Procedure provides that a criminal trial may be continued “on the written motion of the State or of the defendant, upon sufficient cause shown.” Tex. Code Crim. Proc. Ann. art. 29.03 (Vernon ). A motion for continuance not in writing and not sworn preserves nothing for review. Dewberry v. State, 4 S.W.3d 735, 755 (Tex. Crim. App. 1999), cert. denied, 120 S. Ct. 2008 (2000); Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995); Montoya v. State, 810 S.W.2d 160, 176 (Tex. Crim. App. 1989).
        Here, appellant orally requested a continuance until the following day which the trial judge denied. Because appellant's motion for a continuance was not in writing, we conclude appellant failed to preserved anything for our review. See Dewberry, 4 S.W.3d at 756. Therefore, we overrule appellant's third and fourth points of error.
Voir Dire
        In his fifth and sixth points, appellant contends the trial judge violated his right to a trial by an impartial jury as guaranteed by the sixth amendment to the United States constitution and article I, section ten of the Texas constitution. Under these points, appellant claims the trial judge erred when he defined the phrase “without hesitation” for the venire panel during voir dire. After reviewing the record, we conclude appellant has failed to preserve these points for our review.
        To preserve a complaint for appellate review, a party must present a timely, specific objection at trial. Tex. R. App. P. 33.1(a); see Martinez v. State, 22 S.W.3d 504, 507 (Tex. Crim App. 2000); Etheridge v. State, 903 S.W.2d 1, 14 (Tex. Crim. App. 1994); Little v. State, 758 S.W.2d 551, 563 (Tex. Crim. App. 1988); Granviel v. State, 552 S.W.2d 107, 121 (Tex. Crim. App. 1976). The failure to make a timely, specific objection waives even constitutional errors. Curry v. State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995); Garcia v. State, 887 S.W.2d 846, 861 (Tex. Crim. App. 1994); Muniz v. State, 851 S.W.2d 238, 255 (Tex. Crim. App. 1993).
        The record shows that appellant did not object or otherwise challenge the trial judge's comments to the venire panel during voir dire. Because appellant failed to object at trial, we conclude he has waived this point of error on appeal. See Smith v. State, 595 S.W.2d 120, 124 (Tex. Crim. App. 1980) (failure to object to trial judge's comment preserved nothing for review); but see Blue v. State, No. 1254-99, slip op. at 3-4, 2000 WL 1827705, at *2-3 (Tex. Crim. App. 2000) (failure to object to trial judge's comments made before attorneys had begun to voir dire prospective jurors did not waive error because judge's comments about defendant's serious consideration of whether to enter plea agreement with State tainted presumption of innocence). We overrule appellant's fifth and sixth points of error.
Motion for Mistrial
        In his final point of error, appellant claims the trial judge erred in denying his request for a mistrial. Under this point, appellant argues the State introduced inadmissible hearsay testimony that was “clearly calculated to inflame the minds of the jury.” Appellant contends that because the statement was inculpatory and inflammatory, we must reverse his convictions. We disagree.
        At trial, the State called Cody to testify. During his testimony, the following occurred:
[STATE:]    And what did [appellant] tell you?
 
[CODY:]    Well, he said, man I need that truck--
 
                        [DEFENSE:]    Judge, I'm _    
 
[CODY:]    _back because I reported it stolen.
 
                        [COURT:]    I'm sorry?
 
                        [DEFENSE:]    I'm going to object to hearsay.
    
                        [COURT:]    Overruled.
 
[STATE:]    Go ahead.
 
[CODY:]    He said, I need that truck. I need it back because I reported the truck stolen. I need to get it back.
 
[STATE:]    Did he tell you why he reported it stolen?
 
[CODY:]    No. His mother, she was acting real frantic running around the car and stuff. And she was saying, I can't believe you hit them kids.
 
                        [DEFENSE:]    Judge, I object to -- I've been trying to object to the hearsay. I'm going to object to it and ask the Court to instruct he jury to disregard those statements. We request a mistrial.
After an off-the-record discussion with both attorneys, the judge instructed the jury to disregard the mother's statements:
        Ladies and gentlemen, I'm sorry. I did not hear that part of the testimony about the statements of the mother as she was running around. Why did you run into those children or something of that nature. You are to disregard that. That is not considered in deliberating your verdict in the case. Just _ I know you can't forget that you heard it, but you must not consider it in reaching a verdict. Does everyone understand my instructions? ( The jury nods heads up and down.)
 
After the judge gave the instruction, defense counsel again requested a mistrial which the trial judge denied.
        Although appellant claims this ruling was error, we disagree. Any error in asking an improper question or in admitting improper testimony is generally cured or rendered harmless by a withdrawal of such testimony and an instruction to disregard. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000); Livingston v. State, 739 S.W.2d 311, 335 (Tex. Crim. App. 1987). The exception to this general rule occurs where the question or the evidence or testimony admitted is “clearly calculated to inflame the minds of the jury and is of such character” as to suggest the impossibility of withdrawing the impression produced on their minds. Guzmon v. State, 697 S.W.2d 404, 408 (Tex. Crim. App. 1985).
        Here, the trial judge promptly instructed the jury to disregard the testimony. He further admonished the jury that it “must not consider it in reaching a verdict.” After reviewing the record before us, we conclude the trial judge's instruction to disregard cured any harm created by the question. See Moore v. State, 882 S.W.2d 844, 847 (Tex. Crim. App. 1994) (instruction to disregard will generally cure harm); Livingston, 739 S.W.2d at 335 (error in asking improper question or admitting improper testimony is cured or rendered harmless by instruction to disregard). Accordingly, we overrule appellant's seventh point of error.
        We affirm the trial court's judgments.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
992058F.U05
 
FN:1
1 The grassy portion of the median where Vicki and her boys were standing measured about twelve feet wide.
FN:2
2 The officer also relied on parts of the vehicle left at the scene, including the box shield, parts of the grill, a rearview mirror, and a side light or turn signal housing. A Chevrolet car dealer was able to tell the officer what vehicle the parts belonged to because “only several vehicles can have that . . ordered custom package.”