OPINION
I.INTRODUCTION
Appellant Tommy Eugene Dotson appeals his conviction for manslaughter. A jury found Dotson guilty of recklessly causing the death of Lori Sitko, and the trial court sentenced him to forty years’ imprisonment and made an affirmative deadly weapon finding. Dotson raises ten issues on appeal. We will affirm.
II.Factual and ProceduRal Background
On November 24, 2001, Dotson’s recreational vehicle (“RV”) was parked with its back end up against a building in a dirt lot located between the 3200 blocks of East Belknap and Race Street in Fort Worth, Texas. At approximately 4:00 p.m., Lori Sitko and Jeffrey Adkins, two homeless individuals, were walking towards downtown on Belknap Street when Sitko picked up a stick and went to the dirt lot where Dotson’s RV was parked. According to Adkins, Sitko began waiving the stick in the air, but did not appear angry or upset and had not reаched the RV when Dotson turned on the engine and started moving towards her. Dotson swerved slightly in Sitko’s direction, hitting Sitko and causing her to fall under the RV. Without braking, Dotson then turned the RV’s wheels to the right, running over Sitko’s body with the driver’s side tires and proceeding to exit the parking lot. Adkins testified that Dotson never stopped or hesitated once he made impact with Sitko’s body, “[h]e just kept running over her.” Dotson then quickly fled the scene. Sitko died as the result of injuries sustained from the collision.
A short time later, after receiving a description of the RV and the license plate number from witnesses, the police located Dotson’s RV parked behind a nearby bar. Dotson was subsequently arrested and taken to John Peter Smith Hospital for a blood test, which revealed that Dotson’s blood alcohol content wаs over two-and-a-half times the legal limit. Thereafter, during the course of investigating the incident involving Dotson and Sitko, the police discovered that Dotson and Sitko knew each other and that there was a history of violent behavior between the two of them. The State charged Dotson with the offense of murder.
At trial, Dotson never disputed that he struck and killed Sitko with his RV. But, he raised the defenses of self-defense and necessity, and the trial court charged the jury on both defensive theories. In addition, the trial court charged the jury on the offense of murder as alleged in the indictment and the lesser included offense of manslaughter. The jury ultimately found Dotson guilty of the offense of manslaughter. During punishment, Dotson pled “true” to the repeat offender allegation in the indictment, and the trial cоurt sentenced him to forty years’ imprisonment and made an affirmative deadly weapon finding. This appeal followed.
III.Sufficiency of the Evidence
In his first two points, Dotson contends that the evidence is legally and factually
A. Standard of Review and Applicable Law
In reviewing the legal sufficiency of the evidence to support a conviction, we view all the evidence in the light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia,
After the defendant has introduced some evidence of a defense, the State bears the burden of persuasion to disprove it.
Zuliani v. State,
In 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,
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,
When a defendant challenges the factual sufficiency of the rejection of a defense, the reviewing court employs the same standard of review articulated in
Zuniga
because once the defendant has met his or her burden of production of evidence as to a defense, the State bears the burden to prove appellant’s guilt of the charged offense beyond a reasonable doubt.
See Zuniga,
at 484;
Zuliani,
Under Texas law, a person commits the offense of manslaughter “if he recklessly causes the death of an individual.” Tex. Penal Code Ann. § 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.”
Id.
§ 6.03(c). Culpable mental state is generally proven through circumstantial evidence.
See Dillon v. State,
Nonetheless, it is a defense to prosecution if the conduct in question is justified based on necessity.
See
Tex. Penal Code Ann. §§ 9.02, 9.22. Conduct is justified under the defense of necessity if (1) the defendant reasonably believed his or her conduct was immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweighed, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.
Id.
§ 9.22. The rationale of .this defense is that “even though he has done the act the crime requires and has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby аvoided a harm of greater magnitude.” Arn
wine v. State,
Self-defense also serves as a justification excluding criminal responsibility for otherwise criminal behavior. Tex. Penal Code Ann. § 9.31. Texas law provides that
[a] person is justified in using deadly force against another:
(1) if he would be justified in using force against the other under Section 9.31 [i.e., when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force];
(2) if a reasonable person in the actor’s situation would not have retreated; and
(3) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to protect himself against the other’s use or attempted use of unlawful deadly force; or
(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
Id. § 9.32(a); see also id. § 9.31.
B. Legally and Factually Sufficient Evidence Exists to Support Jury’s Rejection of Dotson’s Defensive Theories and to Sustain His Conviction for Manslaughter
The evidence reflects that Dotson and Sitko knew each other because both individuals frequented the “Riverside area” of Fort Worth. Dotson lived out of his RV, while Sitko slept on the street with other homeless individuals. Because Dotson suffered from a debilitating foot condition, he often used crutches to get around. He also only wore one lens in his eyeglasses because he had a cloudy eye.
A short time before Sitko’s death, Dotson became angry with Sitko over money аnd told several acquaintances that he was going to kill Sitko. On the evening of November 22, 2001, both Dotson and Sitko went to the Vaquero Orlando bar. According to Leonard Cullop, another homeless individual at the bar, Sitko walked passed Dotson that evening and picked up a twenty dollar bill that was laying on his table. As Sitko walked away, Dotson stood up, approached Sitko, and punched her in the face, knocking her to the floor. Cullop testified that Dotson was immediately escorted out of the bar, screaming “I’m going to kill the fucking bitch.”
The following day, Harvey Passwater, a friend of Sitko’s, noticed that Sitko had a bruised eye and asked where she had gotten the bruise. When Passwater discovered that Dotson had struck Sitko in the face, he and Sitko went to Dotson’s RV to confront him. Passwater testified that when he and Sitko got to Dotson’s RV, he entered the RV and punched Dotson in the face numerous times until Sitko convinced him to stop. After Passwater and Sitko left the RV, Dotson called 911 to report the incident. Rick Benson, a Fort Worth Police Officer, was dispatched to Dotson’s RV to investigate. According to Officer Benson, Dotson’s glasses appeared “tilted and bent” and Dotson had a small amount of blood on one side of his face. But, Officer Benson testified that he did not see injuries justifying more than a citation to Passwater.
Less than twenty-four hours later, Dotson struck and killed Sitko with his RV. Joel Luna witnessed most of the incident involving Dotson and Sitko while eating with his family at a Jack-In-The-Box across the street from the dirt lot. According to Luna, as he drove towards the Jack-In-The-Box, he notiсed Sitko walking down the road and made a comment to his family about the boots that she was wearing. After Luna and his family entered the Jack-In-The-Box and ordered food, they sat at a table next to a window facing towards the dirt lot where Dotson’s RV was parked. A couple of minutes later, Luna’s son exclaimed, “Daddy, look. They have just hit that lady, the one that was walking down the street.” Luna immediately turned, looked out the window, and saw Sitko “bouncing back and forth” on the dirt underneath Dotson’s RV. According to Luna, Dotson then ran over Sitko with his rear tires and exited the dirt lot without ever stopping the vehicle. Af
Detective Ray Wangler, an accident re-constructionist for the Fort Worth Police Department, testified that the distance from Sitko’s body to the building that Dotson’s RV was parked in front of was sixty feet. 2 Detective Wangler, however, could not determine the exact point of impact because there was no indication that Dotson ever attempted to brake or to stop the vehiclе. Detective Wangler testified that when he surveyed the lot where the collision occurred, there were no skid marks, scratches on the pavement, or any other marks in the parking lot that could be attributed to Dotson’s RV. But, according to Detective Wangler, based on the location and the direction of Sitko’s body and the location of a purse that Sitko was carrying at the time of the collision, he believed that Dotson could have driven out of the parking lot without striking Sitko.
As a result of the collision, Sitko suffered numerous abrasions, including “a gliding abrasion” on the left side of her body from sliding across a rough surface. According to Gary Sisler, the medical examiner who examined Sitko, Sitko’s injuries indicated that she was hit above the center of gravity. He testified that there was no indication that the vehicle attempted to stop because there were no injuries to Sitko’s lower extremities. Sisler also testified that Sitko’s fatal injury was “an atlanto-occipital fracture dislocation,” resulting when the base of the skull separates from the first cervical vertebral body causing bruising to the spinal cord. Sit-ko’s autopsy also revealed her blood alcohol level was approximately four times the legal limit at the time of her death.
Billy Walker, a fellow inmate of Dotson’s, testified that he and Dotson discussed the circumstances surrounding Sit-ko’s death and the potential charges against Dotson numerous times while in the Tarrant County Jail. According to Walker, Dotson told him that when he saw Sitko coming towards his RV with a stick, “he dropped it in low and gunned it,” and thereafter, “he could feel the vehicle run over [Sitko] with his dooleys.” Dotson also told Walker that he ran over Sitko to prevent her from breaking his windshield because it had been broken in the past and had cost him $400 in repairs. Walker testified that Dotson indicated that he and Sitko had argued shortly before the incident because she had run off with his money. During their conversations, Dotson never expressed to Walker that the incident involving Sitko was accidental or unintentional. In fact, according to Walker, Dotson “acted nonchalant” about the incident and “acted like it was no big deal because [Sitko] was a homeless person.” In addition, Walker testified that Dotson told him that he believed he would only be charged with manslaughter and that he would probably only receive a five-year sentence based on the incident because the
On appeal, Dotson argues that he proved beyond a reasonable doubt that he acted out of justified necessity and self-defense in running over Sitko with his RV. Despite Dotson’s argument, the trier of fact, as the exclusive judge of the weight and credibility of witnesses’ testimony, was free to accept or to reject all or part of the defensive evidence.
See Saxton,
After examining all of the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found the essential elements of manslaughter beyond a reasonable doubt and also could have found against Dotson on both the necessity and self-defense issues beyond a reasonable doubt. Furthermore, viewing all the evidence in a neutral light, favoring neither party, we also conclude that the evidence supporting the verdict, 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. Accordingly, we hold that the evidence is both legally and factually sufficient to support the jury’s implicit rejection of Dotson’s defensive theories and to sustain his conviction for manslaughter. We overrule Dotson’s first and second points.
IV. Billy Walker’s Testimony
In his third point, Dotson contends that the trial court abused its discretion by overruling his objections to Wаlker’s testimony because Walker deliberately elicited incriminating statements from Dotson as an agent of the State in violation of his Sixth Amendment right to counsel. The State maintains that the admission of Walker’s testimony was proper because Walker did not act as a state agent during his conversations with Dotson.
At trial, shortly after the State commenced its examination of Walker, Dotson moved for a hearing outside the presence of the jury to determine whether Walker was “working with the police department in talking to [Dotson] in the jail after he was charged.” After hearing evidence and argument regarding the admissibility of Walker’s testimony, the trial court overruled Dotson’s objections and permitted him to testify in front of the jury. 3 But, in the court’s charge, the jury was instructed not to consider any evidence of statements Dotson made to Walker if the jury believed that Walker was acting as an agent for the State when talking to Dotson about his case.
A. Standard of Review and Applicable Law
In reviewing a Sixth Amendment right-to-counsel question, we employ the bifurcated standard of review set forth in
Guzman v. State.
It is well settled law that, after the initiаtion of formal criminal proceedings, the State cannot deliberately elicit incriminating statements from an accused without an express waiver of the right to counsel.
Massiah v. United States,
B. Walker Was Not Acting as an Agent of the Stаte During His Conversations with Dotson
Outside the presence of the jury, Walker testified that he initiated contact with Detective Thomas Boetcher of the Fort Worth Police Department by sending him a series of letters regarding his jailhouse conversations with Dotson. In the letters, Walker indicated that he wanted a pending burglary charge dismissed and that he asked Detective Boetcher to have the White Settlement Police Department rein-vestigate the case against him. On December 11, 2001, Detective Boetcher met with Walker and obtained a written statement detailing information received during Walker’s conversations with Dotson. During the meeting, Detective Boetcher informed Walker that he had no control over the White Settlement Police Department and that he could not make any promises regarding his pending case. Walker testified that after the meeting he continued to talk to Dotson about the case on his own accord and continued to send Detective Boetcher letters describing the encounters. According to Walker, Detective Boetcher never requested that Walker continue discussing Dotson’s case with him, nor did he say that it would benefit Walker in anyway with regard to his own case. 4 In addition, although Walker admitted that his burglary charge was ultimately reduced to a misdemeanor, he maintained that the reduction of the charge was not due to his cooperation in the instant case, but rather because he passed a polygraph test.
Viewing the evidence in the light most favorable to the trial court’s ruling, the recоrd does not support Dotson’s contention that Walker was acting as an agent of the State when he conversed with Dotson. Although the State accepted the information that Walker offered regarding Dotson’s case, it did nothing to encourage the elicitation of incriminating statements from Dotson. The State did not bargain for Walker’s assistance, nor did it promise Walker any benefit for his cooperation in
V. Motion FOR Continuance
In his fourth point, Dotson contends that the trial court abused its discretion by overruling his motion for continuance. Specifically, Dotson alleges that (1) he was not ready for trial because the State failed to give him adequate and timely notice and changed the theory of prosecution through reindictments shortly before trial and (2) the State failed to give reasonable notice of its intent to introduce extraneous offenses and unadjudicated bad acts in advance of trial despite his timely requests. The State maintains that Dotson’s complaint is without merit because he cannоt demonstrate that the denial of his request for a continuance resulted in actual prejudice.
Under the Texas Code of Criminal Procedure, a criminal action may be continued on the written motion of a defendant, so long as sufficient cause is fully set forth in the motion. Tex.Code Crim. Proc. Ann. art. 29.03 (Vernon 1989). Granting or denying a motion for continuance is within the discretion of the trial court and will not be reversed on appeal unless it is shown that the court abused its discretion.
Janecka v. State,
In the instant case, although Dotson alleges that the denial of his continuance rendered his counsel unable to prepare an adequate defense, he fails to establish any specific prejudice arising from the trial court’s failure to continue the trial. Our review of the record reveals that Dotson had ample notice of the State’s theory in the case well before trial. In addition, the State provided Dotson with reasonable notice of its intent to introduce extraneous offenses and bad acts. Moreover, Dotson fails to show that the denial of his continuance resulted in unfair surprise, his inability to effectively cross-examine the State’s witnesses, or his inability to adduce crucial testimony that could have been given by potential witnesses. Absent a showing of actual prejudice, we cannot hold that the trial court abused its discretion by denying Dotson’s motion for continuance.
See Heiselbetz v. State,
VI. Jury Argument
In his fifth and sixth points, Dotson contends that the trial court erred by overruling his motion for mistrial because the State improperly commented on his failure to testify and his post-arrest silence during closing argument. The State maintains that the complained-of argument did not
During closing argument at the guilt-innocence phase of the trial, the Stаte made the following argument to the jury:
That is not self-defense, and that is consistent with what Mr. Walker said. He said when he discussed it in jail with the Defendant there was absolutely no claim of self-defense there. The Defendant described gunning it, stomping on it, and there was no claim of self defense to Mr. Walker.
Now, if he was going to try and look like the good guy in all this, why wouldn’t he have said that?
Dotson immediately objected to the argument as improperly commenting on his failure to testify and his post-arrest silence. The trial court sustained Dotson’s objection and instructed the jury to disregard the State’s argument. Dotson then moved for a mistrial, and the trial court overruled his motion.
To determine if a prosecutor’s comment constituted an impermissible reference to an accused’s failure to testify, we must сonsider whether the language used was manifestly intended or was of such a character that the jury would naturally and necessarily consider it to be a comment on the defendant’s failure to testify. Tex.Code Crim. Proo. ANN. art. 38.08 (Vernon 1979);
see Bustamante v. State,
When the trial court sustains an objection and instructs the jury tо disregard but denies a defendant’s motion for a mistrial, the issue is whether the trial court erred in denying the mistrial.
Faulkner v. State,
However, even assuming that the State did indirectly comment on Dotson’s failure to testify or his post-arrest right to remain silent, the trial court’s instruction to disregard was sufficient to cure any harm resulting from the argument. Therefore, we hold that the trial court did not err by overruling Dotson’s motion for mistrial. We overrule Dotson’s fifth and sixth points.
VII. Deadly Weapon Finding
Dotson also raises three points challenging the trial court’s affirmative deadly weapon finding. Specifically, Dotson alleges that the deadly weapon finding was improper because (1) the finding required a higher mental state than that determined by the jury for the offense of manslaughter, (2) the State failed to give timely notice of its intent to seek the deadly weapon finding on the lesser included offense of manslaughter, and (3) the evidence is insufficient to prove that he used or exhibited a deadly weapon by the manner of its use or intended use. The State maintains that the affirmative deadly weapon finding is appropriate in the instant case and is supported by sufficient evidence.
Dotson argues that because he was found guilty of recklessly committing manslaughter by the use of a motor vehicle, he cannot also have been found to have intentionally used or exhibited the same motor vehicle as a deadly weapon. Therefore, he complains that the evidence is legally and factually insufficient to support the trial court’s affirmative deadly weapon finding because the finding required a higher culpable mental state than recklessness. He also complains that the evidence is legally and factually insufficient to prove that he used or exhibited a deadly weapon by the manner of its use or intеnded use.
Under Texas law, all felonies are theoretically susceptible to an affirmative deadly weapon finding.
Patterson v. State,
In addition, our review of the record reveals sufficient evidence to support the trial court’s finding that Dotson operated his RV in such a manner as to render it capable of causing serious bodily injury or death. In the instant case, the evidence demonstrates that Dotson drove his RV towards Sitko and swerved slightly in Sit-ko’s direction, thereby striking and killing her with his RV.
See Tyra v. State,
Dotson also alleges that the State failed to provide him with timely notice of its intent to seek a deadly weapon finding with respect to the lesser included offense of manslaughter. We disagree. On January 24, 2002, Dotson was charged with Sitko’s murder. The indictment alleged that Dotson intentionally or knowingly caused Sitko’s death by striking her with a motor vehicle. On May 22, 2003, Dotson was reindicted, and the reindictment alleged murder and manslaughter, and contained an express allegation that he used or exhibited a deadly weapon during the commission of the offense. It is well settled law that an allegation of serious bodily injury or death caused by some act or instrument is sufficient notice for a deadly weapon finding.
Ex parte Beck,
VIII. Motion for New Trial
In his tenth point, Dotson contends that the trial court abused its discretion by failing to conduct a hearing on his motion for new trial. The State maintains that the trial court did not abuse its discretion by failing to hold a hearing on Dotson’s motion for new trial because the allegations in Dotson’s motion were either determinable by the record or unsupported by factual allegations in his motion and supporting affidavit.
The right to a hearing on a motion for new trial is not absolute.
Reyes v. State,
On June 20, 2003, Dotson filed and presented an amended motion for new trial to the trial court. The trial court never signed a written order denying Dotson’s motion for new trial, and it was overruled by operation of law. Dotson’s amended motion set forth several grounds alleged as a basis for new trial. In Dotson’s brief, however, the only grounds mentioned concern the denial of his motion for continuance and alleged jury misconduct; thus, we will only address these two grounds on appeal.
In his amended motion for new trial, Dotson claimed that the trial court abused its discretion by denying his motion for continuance because (1) the State failed to give him adequate and timely notice and changed the theory of prosecution through reindictments shortly before trial and (2) the State failed to give reasonable notice of its intent to introduce extraneous offenses and unadjudicated bad acts in advance of trial despite his timely requests. He concluded that “[b]y denying the eontinuance[,] the Court denied [him] a fair trial.” He also claimed “that the jury committed jury misconduct in that it failed to follow the jury instructions submitted upon the law of self-defense and necessity as well as that of manslaughter.” The motion contained sworn verifications by Dotson and his counsel that the contents of the motion were based on personal knowledge and were true and correct. Dotson, however, failed to attach an affidavit to his motion in support of his contentions.
Our review of the record reveals that Dotson’s allegations in his amended motion for new trial were conclusory in nature, and therefore, insufficient to put the trial court on notiсe that reasonable grounds for relief existed.
See King v. State,
IX. Conclusion
Having overruled all of Dotson’s points on appeal, we affirm the trial court’s judgment.
Notes
. Dotson also challenges the sufficiency of the evidence to supрort the trial court’s affirmative deadly weapon finding, complaining that "because he was found guilty of recklessly committing manslaughter^] he cannot be found to have intentionally used or exhibited a deadly weapon.” Because he also raises this complaint as his seventh point, we will address it later in this opinion.
. On June 11, 2003, Dotson stipulated to the sixty-foot distance provided by Detective Wangler.
. The trial court granted Dotson a running objection to Walker’s testimony. The substance of Walker’s testimony is detailed in the legal and factual sufficiency portion of this opinion.
. While testifying in front of the jury, Walker once again proclaimed that he was not acting on behalf of the State during his conversations with Dotson and that Detective Boetcher did not offer him any sort of deal in exchange for information about Dotson's case.