Duncan v. State, 09-17-00300-CR
| Decision Date | 25 July 2018 |
| Docket Number | NO. 09-17-00300-CR,09-17-00300-CR |
| Parties | LARRY WAYNE DUNCAN, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 258th District Court San Jacinto County, Texas
A jury convicted appellant Larry Wayne Duncan of failing to stop and render aid, which resulted in death, and assessed punishment at nineteen years of confinement. In nineteen issues, Duncan challenges the sufficiency of the evidence and the admission of his prior convictions, complains of the admission of certain expert opinion testimony, asserts that the failure to give warnings before taking his recorded statement constitutes reversible error, and contends that the punishment verdict is ambiguous because it does not state whether the jury "does" or "does not" assess a fine. We affirm the trial court's judgment.
The victim's father, Billy Scott, testified that his daughter enjoyed jogging, and he identified the route along which she usually jogged. He explained that on February 10, 2015, he saw the victim jogging at approximately 6:20 p.m. Scott testified that it was daylight and the sun was shining. At approximately 7:30 p.m., Scott learned that his daughter had been killed.
Kimila McShan, the mother of the man with whom the victim was in a romantic relationship, testified that her son Klint and the victim lived together in her home. According to McShan, the victim enjoyed running. McShan explained that the victim had several different shoes, and she wore "mix-matched socks all the time." McShan explained that on her way home on February 10, 2015, as she slowed down to turn, she saw the victim "laying in the ditch." McShan testified that she got out of her truck and yelled the victim's name, but the victim did not respond. McShan walked toward the victim and saw that there was blood on the victim's face and she was cold, so McShan called 9-1-1 and reported that someone had hit the victim andshe was lying dead by the road.1 McShan explained that the victim's injuries were obvious, her shirt was "scrambled[,]" her shorts were twisted to the side, and she was only wearing one sock. According to McShan, the victim's shoes had been knocked off. McShan explained that when she reached Cleveland at approximately 6:30, it was dusk. McShan testified that when she saw the victim, it was approximately 7:30 p.m., and it was dark outside. McShan explained that there are no street lights where the victim was found.
Trooper Nickolas Hatton with the Texas Department of Public Safety testified that he was on duty on February 10, 2015. On that date, Hatton was dispatched to the scene, and he and his partner arrived at approximately 7:37, when it was dark. Upon arriving at the scene, he observed a white female lying in the ditch. Hatton explained that his partner photographed the scene, and the photographs were admitted into evidence. Based upon his training and experience, after he examined the victim, Hatton believed that the victim had been struck by a motor vehicle. Hatton testified that he was at the scene for several hours, and no one called or came forward during that time regarding involvement in the crash.
Hatton explained that he examined the roadway for clues. Hatton and his partner found the victim's running shoes, and Hatton believed that the location where they were found gave the authorities "an area of impact." According to Hatton, one of the victim's socks was also recovered. Hatton explained that the authorities placed an orange flag at every location where evidence was found to create a forensic map or scale diagram of the crash scene. Hatton and his partner also found areas where the grass was discolored, as well as areas that "appear to be a gouge or tumbling through the grass." Hatton explained that the gouge area was consistent with a person tumbling along the ground. According to Hatton, there were no skid marks in the area. Hatton testified that shattered glass pieces from a headlamp and its plastic outer edge were also found and collected as evidence, and he took them to a Chevrolet dealership to determine the make and model of the vehicle from which they came.
Hatton explained that Duncan contacted San Jacinto Communications and reported that he might have been involved in a crash on the date in question. Hatton testified that he subsequently spoke with Duncan and viewed Duncan's vehicle, which is a GMC Sierra.2 Duncan told Hatton that he believed he may have beeninvolved in a wreck on February 10, 2015. Hatton testified that Duncan told him "he remembered striking something with his vehicle while traveling on FM 2666."
According to Hatton, his investigation revealed signs that Duncan's vehicle had been involved in a crash. Specifically, Hatton explained that Duncan's vehicle had been damaged on the front passenger side bumper, as well as the hood, the passenger side headlamp, and the fender. Hatton testified that the headlight parts he recovered were made of glass, as were the headlights on Duncan's vehicle, and when the pieces were assembled, they resembled the intact headlight on Duncan's vehicle and were made of the same material. Duncan agreed to come with Hatton to the Coldspring office after being given his Miranda warnings by Sergeant David Gustafson. According to Hatton, Duncan was informed that he was not under arrest, and Duncan agreed to give a statement, which the trial judge determined was voluntary after defense counsel objected.
According to Hatton, Duncan stated that he reached down to pick up a lighter and realized that he had struck something, which he believed was a deer or hog. According to Hatton, Duncan stated that he continued about a hundred feet and then stopped, walked around to the front passenger side of his vehicle, saw that his vehicle was damaged, and got back into his vehicle and drove away. Duncan stated that he did not return to the location farther up the road where he believed he hit something.During cross-examination, Hatton agreed that it is not uncommon for someone in the wooded area of Coldspring to hit a hog or deer.
According to Hatton, the Texas Transportation Code requires the operator of a motor vehicle who has been involved in a crash involving bodily injury or death to stop as close as practicable to the crash scene and to verify whether there was a person involved. Hatton testified that if a person was involved in the accident, the driver must immediately determine whether that person requires aid. Hatton explained that the driver must also immediately return to the scene of the accident if the vehicle was not stopped at the scene.
Trooper Jake Pullen testified that he went with Hatton to the scene on February 10, 2015, and when they arrived on the scene, they saw a deceased female lying in a ditch. Pullen testified that when he placed his fingers on the victim's neck, "her skin felt cold and wet as if there was dew on her skin." Pullen testified that he was present at the victim's autopsy "to pull any evidence that we could and take pictures." According to Pullen, the victim's clothing was collected, as was DNA evidence in the form of blood and hair samples.
Gustafson testified that on the date in question, Hatton informed him that he was on the scene of a fatality crash, and Gustafson responded to the location and contacted Trooper Rae Shel Lee, who is a member of the state accidentreconstruction team. According to Gustafson, he received a phone call from the San Jacinto County Sheriff's Office, during which the operator stated that someone had contacted them and stated that he had been involved in a crash on the road in question, and his vehicle matched the description of the vehicle for which the authorities were searching. Gustafson testified that when he, Hatton, and another officer took the evidence to Martin Chevrolet, the parts manager said he was certain that the vehicle was either a GMC or Chevrolet, model year 1988 to 1998, and was a teal green color. According to Gustafson, the teal colored parts found at the scene matched Duncan's vehicle "identically." Gustafson explained that Duncan informed authorities that he had been involved in a crash the day before.
According to Gustafson, when he spoke with Duncan at Duncan's residence, he read Duncan his Miranda warnings and "made [it] very clear" to Duncan that he was not under arrest. Duncan told Gustafson that Gustafson explained that Duncan agreed to provide a voluntary statement to the rangers who would be waiting for him at the Highway Patrol Office. Gustafson testified that Duncan was not handcuffed when he was put into the patrol vehicle. According to Gustafson, section 550.021 of the Transportation Code does not require that the person operating a vehicle know that he hit a person; rather the Transportation Code requiresthat the driver determine whether he struck a person. Gustafson testified that the driver "must go back to the location of the scene of the accident, which [Duncan] did not do."
Ranger Brandon Bess with the Texas Department of Public Safety testified that Ranger Ryan Clendennen, the Ranger assigned to San Jacinto County, called him on February 11, 2015, and asked for his assistance regarding the investigation of the collision because Clendennen was busy with another matter. Clendennen informed Bess that an individual had contacted the dispatcher and reported that he might have been involved in the collision that killed the victim. Bess explained that he accompanied Clendennen to the crash scene, and he subsequently met Duncan at the Coldspring Highway Patrol Office. Bess explained that he did not read Duncan his Miranda rights before interviewing him. According to Bess, Duncan was not under arrest, and Duncan was not restrained in any way. Bess stated that he informed Duncan that he was...
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