IDALIA CERVANTES v. THE STATE OF TEXAS--Appeal from County Court at Law No 1 of Cameron County

 NUMBER 13-04-00151-CR

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

IDALIA CERVANTES, Appellant,

v.

THE STATE OF TEXAS, Appellee.

 On appeal from the County Court at Law No. 1

of Cameron County, Texas.

 MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Hinojosa

A jury found appellant, Idalia Cervantes, guilty of the offense of making a false report to a peace officer.[1] The trial court assessed her punishment at six months= confinement in the county jail and a $200 fine, suspended the jail sentence, and placed her on community supervision for a term of six months. The trial court has certified that this is not a plea bargain case and appellant has the right to appeal. See Tex. R. App. P. 25.2(a)(2). In three issues, appellant contends (1) the evidence is legally and factually insufficient to support her conviction, and (2) the trial court erred in failing to instruct the jury on the law of Aattempt.@ We affirm.

A. Factual Background

On November 12, 2002, two Brownsville police officers were dispatched to the scene of a minor traffic accident involving two vehicles, a Ford Mustang and a Lincoln. The Mustang had rear-ended the Lincoln while the Lincoln was stopped in traffic. Appellant was present at the scene and told the police officers that she was the driver of the Mustang. After determining that appellant was not the driver of the Mustang, the officers arrested her for making a false report to a peace officer.

B. Legal and Factual Sufficiency

Appellant contends the evidence is legally and factually insufficient to support her conviction for making a false report to a peace officer or law enforcement employee. The standard of review for challenging the legal and factual sufficiency of the evidence is well settled. See Jackson v. Virginia, 443 U.S. 307, 319 (1979) (legal sufficiency); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000) (legal sufficiency); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (factual sufficiency); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (legal and factual sufficiency).

A person commits the offense of making a false report to a peace officer or law enforcement employee if, with intent to deceive, she knowingly makes a false statement that is material to a criminal investigation and makes the statement to a peace officer conducting the investigation. Tex. Pen. Code Ann. ' 37.08 (Vernon 2003).

In her first issue, appellant contends the alleged false statement was not made during a criminal investigation. She argues that the statement was made during an interview with a police officer who was responding to a minor traffic accident, which is not a criminal investigation. We disagree.

Manuel Montes, one of the investigating officers, testified that during the course of his investigation, he determined that the Mustang had hit the Lincoln from behind. He said he was in the process of citing appellant for failure to control speed when he was informed that she was not the driver of the Mustang. The Texas Transportation Code provides that an operator of a motor vehicle shall control the speed of the vehicle as necessary to avoid colliding with another person or vehicle that is on or entering the highway. See Tex. Transp. Code Ann. ' 545.351 (Vernon 1999). A violation of this section is a misdemeanor, and any peace officer may arrest a person found committing such a violation. See id. '' 542.301, 543.001. Accordingly, we conclude the investigation was of a criminal nature.

In her second issue, appellant asserts she recanted her statement before the police officers concluded their investigation. Appellant cites no law in support of this assertion, but argues that we should follow the law allowing retraction as a defense to aggravated perjury.

Section 37.05 of the penal code provides that it is a defense to prosecution under section 37.03 (Aggravated Perjury) that the actor retracted his false statement before completion of the testimony at the official proceeding. See Tex. Pen. Code Ann. ' 37.05 (Vernon 2003). However, section 37.05 does not state that retraction is a defense to prosecution under section 37.08.[2] If the legislature had intended to provide such a defense for making a false report to a peace officer, it would have done so.

Viewing the evidence in the light most favorable to the verdict, we conclude that any rational trier of fact could have found the essential elements of the offense of making a false report to a peace officer beyond a reasonable doubt. Furthermore, having reviewed all the evidence in a neutral light, we conclude that (1) the evidence is not so weak as to be clearly wrong and manifestly unjust and (2) the verdict is not against the great weight of the evidence. Accordingly, we hold the evidence is legally and factually sufficient to support appellant=s conviction. Appellant=s first and second issues are overruled.

B. Jury Instruction

In her third issue, appellant contends the trial court erred in refusing to instruct the jury on the law of Aattempt.@

Whenever a defensive theory is raised by the evidence, the defendant is entitled to a jury instruction on that theory. Reese v. State, 877 S.W.2d 328, 333 (Tex. Crim. App. 1994). In determining whether a defensive issue has been raised, this Court must consider all of the evidence raised at trial, regardless of its strength or whether it is controverted. Id. A person commits the offense of Aattempt@ if, with specific intent to commit an offense, she does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended. Tex. Pen. Code Ann. ' 15.01 (Vernon 2003).

The evidence in the record shows appellant told the investigating officers several times that she was the driver of the Ford Mustang despite the fact she was not the driver, thereby effecting the commission of making a false report to a peace officer. There is no evidence in the record that she attempted to make the statement and did not complete it. Thus, the trial court did not commit any error in denying appellant's request for an instruction on Aattempt.@ Appellant's third issue is overruled.

The judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this

the 4th day of August, 2005.

[1] See Tex. Pen. Code Ann. ' 37.08 (Vernon 2003).

[2] We have found no other statute allowing retraction as a defense to prosecution under section 37.08.