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Criminal Law No. 421-02, 4/16/2003. Click here for the full text of this decision FACTS: In the early morning hours of Dec. 23, 1998, Brandon Smith was a passenger in Brent Tucker’s car. Tucker lost control of the vehicle on Spring-Cypress Road in northern Houston. The car struck a concrete culvert, hit a tree and burst into flames. Tucker pulled Smith out of the burning car and, thinking Smith would be safe, ran to find a phone to call the fire department. As the neighbors awoke and a few passers-by gathered, Smith visited with them briefly and then began to walk back across the street. At that moment, a truck rounded the curve and headed straight for Smith. A witness shouted, but to no avail. The truck struck Smith, killing him. The driver of the truck slowed, then continued down the road. Claudia Wong and her husband did not see Smith get struck, but they were there when it happened. They had been driving to work when they came upon Tucker’s flaming car. They turned around to see if they could help and, moments later, the truck hit Smith and left the scene. Realizing what had happened, they took off after the truck, following it as it went down Spring-Cypress, took a right on Klein Church Road, and stopped at a traffic light. At that point, they wrote down the license plate number and returned to the accident scene. Wong testified that, in following the truck, they were going 85 to 90 mph and that they caught up to the truck “fast.” She further testified that the truck never left the road and that there was no other traffic that night. After the Wongs returned to the scene with the license plate number, the deputies entered the plate number into the squad car’s computer. They obtained Cates’ name and an address not far from the accident scene. An investigator calculated that the time it would take to travel from the accident scene to the listed address was no more than five minutes. The deputies went to the address and found the truck. They spoke with Cates’ roommate and then with Cates. Cates was groggy from sleep. An investigator testified that his eyes were bloodshot, his speech sluggish and his breath smelled of alcohol. Cates testified at trial that he had had a few beers the previous evening but he was not intoxicated. HOLDING: The court reverses only that part of the court of appeals’ judgment which affirmed the deadly weapon finding and reforms the trial court’s judgment. The court reviews the record to determine whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found beyond a reasonable doubt that the truck was used or exhibited as a deadly weapon. Cates was convicted of failure to stop and render aid. As the court of appeals recognized, “the gravamen” of that offense “is leaving the scene of the accident.” Therefore, the relevant time period for determining whether his truck was used and exhibited as a deadly weapon is the time period after Smith was hit. The only evidence in the record concerning the manner in which the truck was driven after it hit Smith was Wong’s testimony. She testified that she and her husband drove 85 to 90 mph when they chased the truck. The court of appeals found this testimony sufficient because a jury could rationally infer that the driver of the truck was traveling at the same rate of speed as the Wongs. But there is no evidence that the truck was traveling at this speed. Wong testified that the “chase” ended quickly and they caught up to the truck when it was stopped at a traffic light. This evidence indicates that the truck was moving at a speed less, “perhaps significantly less,” than the Wongs. That the truck stopped at the traffic light also refutes any conclusion that the truck was driven dangerously. Moreover, the truck was found at an address just five minutes away from the accident scene. This supports Wong’s testimony that the chase ended quickly, reflecting that the Wongs must have been driving significantly faster than the truck. And Wong testified that there was no other traffic on the road at the time and that the truck never left the roadway. Furthermore, there is no evidence in this record that anyone was actually endangered by the truck while it left the scene of the accident. The state argues that the facts occurring before the offense of failure to stop and render aid constitute relevant circumstantial evidence that the truck was driven dangerously during that offense. The state contends that since Smith was hit and killed, the truck was obviously a deadly weapon at that time. According to the state, the truck would not then have ceased to be a deadly weapon in the moments immediately afterward. Instead, the state argues, the truck continued to be a deadly weapon even after Smith was hit. The state is correct that facts occurring before and after an offense can, in a given case, be relevant circumstantial evidence of the offense charged. But in this case, there is no evidence indicating that the truck was driven in a deadly manner during the offense of failure to stop and render aid. The fact that the truck was driven in a deadly manner before the offense could assist the trier of fact if it were coupled with other evidence of how the truck was driven during the offense. But absent any evidence of the truck’s use or exhibition as a deadly weapon during the offense, the evidence of how it was driven before the offense is not sufficient to sustain the deadly weapon finding. OPINION: Keasler, J.; Meyers, Price, Johnson, Hervey, Holcomb and Cochran, JJ., join. Keller, P.J., concurs in the result. Womack, J., dissents.

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