Lee Andrew Navarro v. The State of Texas--Appeal from 22nd District Court of Caldwell County

Navarro v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-345-CR
NO. 3-91-346-CR
AND
NO. 3-91-347-CR
LEE ANDREW NAVARRO,
APPELLANT
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
NOS. 90-230, 90-231 & 88-232, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING

On two separate indictments, a jury convicted appellant of failure to stop and render aid; the trial court assessed punishment of three years' confinement for each conviction. Tex. Rev. Civ. Stat. Ann. art. 6701d, 38(a), 40 (West 1977 & Supp. 1992). In conjunction with appellant's trial on these indictments, the court also granted the State's motion to adjudicate guilt in appellant's prior conviction for injury to a child and assessed punishment at ten years' confinement. In two points of error, appellant asserts: (1) that the evidence is legally insufficient to sustain the two convictions for failure to stop and render aid; and (2) that the trial court abused its discretion in revoking appellant's deferred-adjudication probation and proceeding to final adjudication. We will affirm the convictions for failure to stop and render aid, and we will dismiss the appeal regarding the final adjudication of appellant's conviction for injury to a child.

 
FAILURE TO STOP AND RENDER AID

Appellant was involved in a two-vehicle collision on September 6, 1990. Appellant and two occupants of the second vehicle, Robert Mercado and Manuel Garcia, were injured. Immediately after the collision, Stephen Parra, a passer-by, stopped to assess the situation. After talking to the occupants of both vehicles, Parra determined that the police and an ambulance should be called. Parra informed appellant of his intentions, and appellant responded, "I don't want any cops here." Parra left to notify the police dispatcher. Appellant spoke with both Mercado and Garcia, and, after Parra left but before the police or ambulance arrived, appellant left the scene on foot.

Appellant complains in his point of error regarding the failure-to-stop-and-render-aid convictions that the evidence presented at trial was legally insufficient to sustain the two convictions. In determining the legal sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all of the evidence in the light most favorable to the verdict, 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 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981).

Appellant was convicted of failing to stop and render aid as required by sections 38 and 40 of article 6701d. Section 38(a) provides in pertinent part: "The driver of any vehicle involved in an accident resulting in injury to or death of any person . . . shall remain at the scene of the accident until he has fulfilled the requirements of Section 40." Tex. Rev. Civ. Stat. Ann. art. 6701d, 38(a) (West 1977). The relevant portion of section 40 provides:

 

The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person . . . shall render to any person injured in such accident reasonable assistance, including the carrying, or the making of arrangements for the carrying, of such person to a physician, surgeon, or hospital for medical or surgical treatment if it is apparent that such treatment is necessary or if such carrying is requested by the injured person.

 

Tex. Rev. Civ. Stat. Ann. art 6701d, 40 (West Supp. 1992) (emphasis added). The State does not contend that appellant failed to stop; rather, the State contends that he violated the statute by failing to remain at the scene and render "reasonable assistance" to Mercado and Garcia after the collision.

 

1. Cause No. 3-91-346-CR; Failure to Render Aid to Garcia.

In Cause No. 3-91-346-CR, the jury found appellant guilty of failing to render aid to Garcia after the collision. Appellant claims that he was aware before he left the scene that Parra was contacting the appropriate authorities. In essence, appellant argues that Parra's actions absolved him of any further duty to render assistance. We disagree. Section 40 imposes a duty to render reasonable assistance. In other words, appellant was required to render such aid and assistance as the facts and circumstances dictate to a person of ordinary temper, disposition, and feeling under like circumstances. See Williams v. State, 102 S.W.2d 212, 213 (Tex. Crim. App. 1937) (interpreting a substantially similar criminal statute, since repealed, imposing a duty to stop and render all "necessary assistance"). The trier of fact must generally determine what assistance, if any, was required and whether reasonable assistance was rendered.

The evidence presented at trial was conflicting as to appellant's actions toward Garcia. The State's witnesses testified that appellant made no effort to inform himself of the circumstances surrounding Garcia's condition or render any assistance. Although appellant apparently had a heated conversation with Garcia before leaving the scene, Garcia testified that they discussed only insurance coverage and that appellant never inquired about Garcia's condition. State's witnesses affirmed that Garcia was visibly rubbing his knees and head because of injuries sustained in the accident. Parra testified that he told appellant the occupants of the other car "needed help." In addition, State's witnesses testified that appellant was intoxicated, repeatedly indicated that he did not want the police contacted, and left the scene without explanation before the ambulance arrived or Parra returned.

Appellant, on the other hand, testified that he did not observe Garcia rubbing his knees or head, that he inquired about Garcia's condition during their conversation, and that Garcia indicated he was "fine." Appellant further testified that he informed Garcia that he was leaving to go to his home, about a mile down the road, to get help. Such conflicts in the testimony, however, were for the jury to resolve, and the jury decided them against appellant. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979).

Appellant relies on the factual analysis in three Texas cases to support his position that the evidence was insufficient to uphold the convictions in the present case. In Powell v. State, 341 S.W.2d 915 (Tex. Crim. App. 1961), the court reversed the conviction of a defendant indicted for failure to carry the injured party to a physician for treatment, because a third party intervened and rendered the required assistance. Similarly, in Bowden v. State, 361 S.W.2d 207 (Tex. Crim. App. 1962), the court reversed the conviction of a defendant indicted for failure to assist in making arrangements for the carrying of the injured party, because a third party intervened and rendered assistance. Appellant argues that the circumstances of the present case are factually similar and that, because Parra intervened and rendered the required assistance, his conviction cannot be upheld. The Powell and Bowden cases are distinguishable, however, because the indictments at issue in those cases charged the defendants with failure to perform a specific act in rendering assistanceparticipating in transporting the injured party to a physician for treatment. In the present case, the State does not contend that appellant failed to carry or to assist in making arrangements to carry the injured party to a physician for medical treatment. Rather, both indictments charged appellant with the failure to "render reasonable assistance." These broadly worded indictments are sufficient to allow conviction if appellant failed to render any assistance deemed reasonable by the circumstances, not solely on proof that defendant failed to transport or make arrangements to transport the injured parties to a physician for treatment. Thus, whether appellant rendered reasonable assistance under the circumstances was a legitimate fact question for the trier of fact.

Appellant relies on the Williams case for the proposition that a defendant's failure to do for the injured party that which was done by others could not be criminal. Williams, 102 S.W.2d at 213. In that case, the defendant was convicted for failure to stop and render aid where, again, a third party had intervened and transported the injured party to a physician. The court's basis for reversing the conviction, however, was due to error in the charge submitted to the jury. The charge apparently authorized a conviction if the jury found that the defendant failed to transport the victim to a physician for medical treatment, regardless of whether such treatment appeared reasonably necessary to the defendant at the time. Although the court reversed the conviction on account of this error, the court acknowledged that the evidence presented created a legitimate fact question:

 

[T]he State's testimony . . . tends to show that appellant made no effort or move to pick up the body of the injured child, or convey her anywhere for medical treatment. This, however, but forms an issue for the jury. . . .

 

State witnesses affirm that no effort was made by appellant. Appellant affirmed that she made every effort which reasonably appeared necessary and proper under the circumstances. If the defensive theory of the case had been properly and appropriately submitted and passed upon by the jury, we would not be prepared to say the facts would not support the conviction.

 

Id. at 213-214 (emphasis added); see also Davis v. State, 199 S.W.2d 155, 158 (Tex. Crim. App. 1946) (where conflicting evidence was presented regarding defendant's attempt to render assistance, the court submitted the question to the jury).

Consistent with Williams and Davis, we conclude in the present case that the conflicting evidence created a legitimate fact question for the jury. Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant failed to render reasonable assistance to Garcia following the accident. We overrule appellant's point of error as to Cause No. 3-91-346-CR.

 

2. Cause No. 3-91-345-CR; Failure to Render Aid to Mercado.

In Cause No. 3-91-345-CR, the jury found appellant guilty of failing to render aid to Mercado after the collision. At trial, Mercado presented conflicting testimony. On direct examination, he testified that he told appellant he had hurt his head. On cross-examination, he testified that he told appellant he was "O.K." Once again, however, the jury, as the trier of fact, was charged with the responsibility of resolving any inconsistencies in Mercado's testimony. See Bowden v. State, 628 S.W.2d 782, 784-85 (Tex. Crim. App. 1982). Viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that appellant failed to render to Mercado the reasonable assistance required by section 40 of article 6701d. We will, therefore, overrule appellant's point of error as to Cause No. 3-91-345-CR.

 
INJURY TO A CHILD

In Cause No. 3-91-347-CR, appellant was indicted on October 12, 1988, for the third-degree felony offense of injury to a child. On August 1, 1989, appellant entered a guilty plea pursuant to a plea agreement, and the trial court deferred adjudication and placed appellant on three years' probation. Pursuant to an agreement between appellant and the State, and in conjunction with the jury trial of the two failure-to-stop-and-render-aid indictments, the trial court also conducted a hearing on the State's motion to adjudicate guilt regarding appellant's prior conviction for injury to a child. On July 10, 1991, the court granted the State's motion and assessed punishment of ten years' confinement.

In this appeal, appellant complains that the trial court abused its discretion in revoking his deferred adjudication probation and proceeding to final adjudication. We conclude that appellant's contention is without merit. Section 42.12 of the Code of Criminal Procedure expressly provides:

 

On violation of a condition of probation imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 24 of this Article. The defendant is entitled to a hearing limited to a determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant's appeal continue as if the adjudication of guilt had not been deferred.

 

Tex. Code Crim. Proc. Ann. art. 42.12, 5(b) (West Supp. 1992) (emphasis added). The court of criminal appeals has consistently affirmed the validity of the express language of this statute. See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992); Daniels v. State, 615 S.W.2d 771 (Tex. Crim. App. 1981); Wright v. State, 592 S.W.2d 604, 606 (Tex. Crim. App. 1980); Williams v. State, 592 S.W.2d 931, 932-33 (Tex. Crim. App. 1979). Because appellant's point of error addresses only issues arising from the hearing held on the motion to adjudicate, this Court does not have jurisdiction to consider appellant's claims on appeal. Phynes, 828 S.W.2d at 2.

 
CONCLUSION

We affirm the convictions for failure to render aid to Robert Mercado (Cause No. 3-91-345-CR) and Manuel Garcia (Cause No. 3-91-346-CR). We dismiss appellant's attempted appeal from the trial court's adjudication of guilt in the injury-to-a-child case (Cause No. 3-91-347-CR).

 

J. Woodfin Jones, Justice

[Before Chief Justice Carroll, Justices Jones and Kidd]

Affirmed as to Cause Nos. 3-91-345-CR and 3-91-346-CR; Appeal Dismissed as to Cause

No. 3-91-347-CR

Filed: October 28, 1992

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