BOB McCOY, Justice.
A jury convicted Appellant David Michael McCown of failing to stop and render aid and driving while intoxicated (DWI). The trial court sentenced McCown to ten years' confinement and a $1,000 fine. The trial court probated the confinement portion of McCown's sentence but not the fine. In three issues, McCown argues that the evidence is legally and factually insufficient to prove that he failed to stop and render aid and that the evidence is factually insufficient to prove that he was driving while intoxicated.
II. BACKGROUND FACTS
On August 18, 2002, McCown was involved in a car accident with Javier Bueno-Perez. The accident occurred when McCown took an unprotected left turn at an intersection and crashed head-on into Perez's vehicle.
Susan Phillips and her husband witnessed the accident and stopped to see if McCown and Perez were injured. Phillips, a nurse, immediately went to McCown's truck. Phillips testified that she told McCown to stay still, but he refused and crawled out of his vehicle through the window. McCown then staggered across the street without inquiring into Perez's condition. Phillips also checked on Perez. Phillips testified that Perez was in pain because he sustained some kind of impact to his chest. An ambulance later came and took Perez to the hospital.
McCown apparently made his way to a restaurant about a quarter of a mile away from the scene of the accident. He was later arrested at the restaurant and charged with DWI and failure to stop and render aid.
III. LEGAL AND FACTUAL INSUFFICIENCY
In his first issue, McCown argues that the trial court improperly denied his request for instructed verdict because the evidence is legally insufficient to support his conviction for failure to stop and render aid. In his second and third issues, McCown argues that the evidence is factually insufficient to support the failure to stop and render aid and the DWI convictions.
A. STANDARD OF REVIEW
A challenge to the denial of a motion for instructed verdict is actually a challenge to the legal sufficiency of the evidence. McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.1997); Franks v. State, 90 S.W.3d 771, 789 (Tex.App.-Fort Worth 2002, no pet.). In reviewing the legal sufficiency of the evidence to support
In contrast, when reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. See Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. "This standard acknowledges that evidence of guilt can `preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt." Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id.
In performing a factual sufficiency review, we are to give deference to the fact finder's determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997). We may not substitute our judgment for that of the fact finder's. Zuniga, 144 S.W.3d at 482.
A proper factual sufficiency review requires an examination of all the evidence. Id. at 484, 486-87. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).
B. LEGALLY AND FACTUALLY SUFFICIENT EVIDENCE OF FAILURE TO STOP AND RENDER AID
McCown contends that the evidence is legally and factually insufficient to support his conviction for failure to stop and render aid because the State failed to prove beyond a reasonable doubt that it was "reasonably apparent" to him that Perez needed treatment.
Section 550.021(c) of the Texas Transportation Code defines the offense of failure to stop and render aid. See TEX. TRANSP. CODE ANN. § 550.021(c) (Vernon
The requirements of section 550.021 are found in subsection (a) of the statute, which provides:
Id. § 550.021(a).
To comply with section 550.023, the operator of a vehicle involved in an accident which results in personal injury or death or damage to a vehicle must provide any person injured in the accident reasonable assistance if it is apparent that treatment is necessary. Id. § 550.023.
Because section 550.021 does not prescribe a culpable mental state for commission of the offense or plainly dispense with the need to prove culpability, the State must prove that McCown acted with one of the culpable mental states found in section 6.02 of the Penal Code. See TEX. PENAL CODE ANN. § 6.02(b) (Vernon Supp.2005). The Court of Criminal Appeals has determined 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) (citing TEX. PENAL CODE ANN. § 6.03(b) (Vernon 2003)); accord Jaynes v. State, 673 S.W.2d 198, 201 (Tex.Crim.App.1984); Baker v. State, 974 S.W.2d 750, 750 (Tex. App.-San Antonio 1998, pet. ref'd).
Thus, Texas courts have listed the elements of the offense of failure to stop and render aid as follows: (1) an operator of a vehicle; (2) intentionally or knowingly; (3) involved in an accident; (4) resulting in personal injury or death; (5) fails to stop and render reasonable assistance. Steen, 640 S.W.2d at 915; Allen v. State, 971 S.W.2d 715, 717 (Tex.App.-Houston [14th Dist.] 1998, no pet.). The fifth element can be satisfied by proof that an operator of a vehicle knowingly involved in an accident involving injury or death failed to provide any person injured in the accident reasonable assistance if it was apparent that treatment was necessary. See TEX. TRANSP. CODE ANN. §§ 550.021(a), (c), 550.023; see also Elias, 693 S.W.2d at 587.
McCown does not dispute the fact that he had knowledge of the impact, that his car did in fact hit Perez's, or that he did not render aid to Perez. He does dispute, however, whether the State sufficiently met its burden of proving his knowledge of Perez's injury. He argues that the State failed to prove beyond a reasonable doubt that it was "reasonably apparent" to him that Perez needed treatment because there is no evidence that he saw Perez after the accident or that he ever looked in the direction of Perez's truck following his exit from the window of his own vehicle.
There is no requirement that an accused must have positive, subjective knowledge of the nature or extent of injury resulting from the collision. Such a prerequisite would defeat the public interest,
Here, the State introduced the following evidence showing knowledge that he knew or should have known that the impact caused injury to a person: Perez testified that McCown ran head-on into his truck with sufficient force to cause the
Additionally, Phillips, a witness who heard and saw the result of the accident, testified that the collision caused a loud crash that sounded like metal crashing together. She also testified that she could easily observe that Perez was injured and that this was a "big" accident.
The testimony of Perez and Phillips is sufficient to establish that appellant knew or should have known of the injury to Perez. See Allen, 971 S.W.2d at 718. It is difficult to imagine any accident involving contact of this force between two automobiles in which a reasonable driver would not know that an injury was possible.
Therefore, after viewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found that McCown knew or should have had knowledge that Perez was injured and apparently needed treatment. See Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Furthermore, viewing all of the evidence in a neutral light, favoring neither party, we also conclude that the evidence taken alone, is not too weak to support the finding of guilt beyond a reasonable doubt and that the contrary evidence is not so strong that guilt cannot be proven beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 481. Therefore, we conclude that the evidence is legally and factually sufficient to establish that McCown knew or should have known that he had been involved in an automobile accident sufficient to cause injury to the other driver, Perez. We overrule McCown's first two issues.
C. FACTUALLY SUFFICIENT EVIDENCE OF DRIVING WHILE INTOXICATED
In his third issue, McCown contends that the evidence supporting his DWI conviction was factually insufficient. He argues that besides the odor of alcohol on his breath and the fact that he left the scene of the accident with a staggering gate, there is very little evidence that he was intoxicated. He argues further that his "staggering gate" could have actually been the result of the car accident and not the result of intoxication. The State responds that McCown's conviction is supported by factually sufficient evidence.
A person commits the offense of driving while intoxicated if he operates a vehicle in a public place while intoxicated. TEX. PENAL CODE ANN. § 49.04(a) (Vernon 2003). "Intoxicated" is defined as:
Id. § 49.01(2)(A)-(B). A witness does not have to be an expert to testify that a person he observes is intoxicated by alcohol; therefore, lay opinion testimony by a police officer that a person is intoxicated is probative evidence that a person was "drunk." Henderson v. State, 29 S.W.3d 616, 622 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd).
The following evidence was presented at trial. Phillips testified that McCown smelled of alcohol. Robert Kowalski, the manager of the restaurant where McCown was arrested, testified that McCown's walk was uncoordinated and that he did not appear to have the normal use of his physical and mental faculties. However, Kowalski also stated that he did not recall smelling
Viewing the foregoing evidence in a neutral light, favoring neither party and giving due deference to the fact finder's determinations, we hold that the evidence is factually sufficient to support McCown's conviction for driving while intoxicated. See TEX. PENAL CODE ANN. § 49.01(2)(A); see also Fogle v. State, 988 S.W.2d 891, 894 (Tex.App.-Fort Worth 1999, pet. ref'd) (holding intoxication evidence factually sufficient). Accordingly, we overrule McCown's third issue.
Having overruled all three of McCown's issues, we affirm the trial court's judgments.
DAUPHINOT, J. filed a dissenting opinion.
DAUPHINOT, J. dissenting.
I must dissent from the opinion and judgment affirming Appellant's conviction for the offense of failure to stop and render aid. Although I believe that the majority opinion correctly tracks the applicable statutes, it nevertheless conflicts with the holding of the Texas Court of Criminal Appeals in State v. Stevenson.
The offense of failure to stop and render aid at issue in Stevenson occurred under former article 6701d.
Former section 38(b) provided penalties for failing to fulfill these requirements.
In Stevenson, in which a husband was the driver and his wife was the injured person, the driver remained at the scene as he believed the law required. But the Stevenson court held,
In a footnote, the Stevenson court pointed out that "[e]ven if his wife did not possess some of the information, because she occupied the same vehicle as appellee, the required information could have been conveyed without stopping the vehicle."
Clearly, then, the Stevenson court held that a person involved in an accident resulting in personal injury need not remain at the scene after he had provided his name, address, and the registration number of the vehicle he was driving and the name of his motor vehicle liability insurer.
Despite the fact that the wife was injured, the Stevenson court did not hold that the driver need remain at the scene to secure medical treatment.
In the case now before this court, Appellant left his automobile at the scene of the accident. He therefore provided a motor vehicle registration number and, even if his name, address, and insurance information were not somewhere within the car, the means of learning his name, address, and insurance information, thus satisfying the statutory requirements pursuant to Stevenson.
Appellant did not remain at the scene to secure medical treatment. But as the majority notes, a nurse was on the scene, and she provided such aid as she could. Additionally, someone had called an ambulance. Certainly, more assistance was provided in the case before this court than in Stevenson. Yet, the Stevenson court held that Stevenson had done all that was required of him by providing his name, address, and motor registration number, which he lawfully could have done as he fled the scene, and by presumably coming up with a way to provide insurance information later.