
    Michael RUBIO, Appellant, v. The STATE of Texas, Appellee.
    No. 08-04-00325-CR.
    Court of Appeals of Texas, El Paso.
    Aug. 29, 2006.
    Rehearing Overruled Oct. 4, 2006.
    
      Matthew DeKoatz, El Paso, for Appellant.
    Jaime E. Esparza, Dist. Atty., El Paso, for State.
    Before BARAJAS, C. J., McCLURE, and CHEW, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This case arises out of a traffic accident in a trendy entertainment district known as Kern Place which is located near the University of Texas at El Paso. Restaurants and clubs line both sides of the main thoroughfare as well as several side streets. There is considerable pedestrian traffic as patrons walk between establishments and to and from their parked cars. Michael Rubio appeals his two-count conviction of manslaughter in the deaths of two such pedestrians. The jury assessed punishment at ten years’ confinement for each count. We affirm.

FACTUAL SUMMARY

On November 26, 2003, Appellant celebrated with friends, starting at Hooter’s where they ate and drank some beer. Around 1 a.m., the group moved on to the 02 Bar at Mesa and Cincinnati Streets in Kern Place and left at 2 a.m. when the bar closed. Appellant and his passengers, Joseph Rodriguez and Yadira Esais, then drove to Village Inn to use the restroom before heading to a friend’s house on the east side of town. Appellant drove back toward the bar to meet Terry Ibarra who planned to follow Appellant across town to make sure he arrived home safely. In the meantime, Ibarra phoned Appellant to ask where he was. As Appellant approached the intersection of Mesa and Cincinnati, he hit Alexis Olivares and Alejandra Gutierrez who were trying to cross the street. Both died within minutes of the accident due to severe head injuries. Ibarra testified she was on the phone with Appellant at the time of the accident.

When police arrived at the scene, they noticed that Appellant exhibited signs of intoxication. He had slurred speech, bloodshot glossy eyes, droopy eyelids, swayed balance, and a strong odor of alcohol. Appellant failed the field sobriety test. He was arrested and transported to R.E. Thomason Hospital. Blood was drawn from Appellant at 4 a.m., and the lab results indicated a blood alcohol content of .17.

Police recovered data from Appellant’s vehicle. His Yukon Denali was equipped with an air bag sensing module that records information upon heavy impact. The sensors reported that Appellant was traveling at a constant rate of speed of 47 m.p.h. and that he did not brake prior to impact. The speed limit at the intersection is 35 m.p.h. and there were no skid marks at the scene of the accident.

Appellant was indicted under cause number 20040D01226 for two counts of intoxication manslaughter. This indictment was later dismissed and he was then re-indicted under cause number 20040D04632 for two counts of intoxication manslaughter and two counts of manslaughter. Each count alleged Appellant used his motor vehicle as a deadly weapon during commission of the offense. The jury found Appellant guilty of two counts of manslaughter and assessed punishment at ten years’ confinement for each count. The trial court entered judgment in accordance with the jury’s verdict, including a deadly weapon finding.

CHARGE ERROR

In his first three issues for review, Appellant complains of charge error. In reviewing charge error, we employ a two-step analysis. First, we view the charge as a whole to determine whether error actually exists. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). Our review is not limited to a series of isolated statements or portions of the charge standing alone. Torres v. State, 116 S.W.3d 208, 211 (Tex.App.-El Paso 2003, no pet.). Second, we must determine whether sufficient harm resulted from the error so as to require reversal. Almanza, 686 S.W.2d at 171; Washington v. State, 930 S.W.2d 695, 698 (Tex.App.-El Paso 1996, no pet.). Which harm analysis applies depends upon whether the defendant objected. Torres, 116 S.W.3d at 211. If a timely objection was made at trial, we will reverse if as a result of the error there was some harm to the defendant. Almanza, 686 S.W.2d at 171. If the defendant failed to object, we will reverse only if the error was fundamental and the defendant suffered egregious harm. Id. In order to assess the degree of harm, we examine the error in light of the entire jury charge, the state of the evidence, including the contested issues and the weight of the probative evidence, the arguments of counsel, and any other relevant information. Id.

Disjunctive Jury Charge

In his second issue, Appellant contends the charge did not require the jury to unanimously agree on the verdict. He complains that the charge incorrectly inserted intoxication manslaughter in the manslaughter charge by alleging he was driving while under the influence of alcohol. He also contends that driving while under the influence is a separate criminal offense so that the trial court’s use of the disjunctive “or” precluded the jury from unanimously agreeing on the specific criminal acts he was alleged to have committed.

Four counts were presented in the charge. Counts 2 and 4 involved manslaughter while Counts 1 and 3 alleged intoxication manslaughter. The relevant portion reads:

Now if you find from the evidence beyond a reasonable doubt that on or about the 27th day of November, 2003, in El Paso County, Texas, the Defendant, MICHAEL RUBIO, did then and there recklessly cause the death of an individual, namely [Victim], by driving the motor vehicle of MICHAEL RUBIO at a speed greater than the posted speed limit, or by talking on a phone while driving, or by driving while under the influence of alcohol, or by any combination of the above three acts, thereby causing the motor vehicle driven by MICHAEL RUBIO to collide with [Victim], a pedestrian, then you will find the Defendant, MICHAEL RUBIO, guilty as charged in [Count 2 and Count 4] of the Indictment [Verdict Form C and Verdict Form I] and [next proceed to consider Count 3 and not consider Criminally Negligent Homicide in the two paragraphs below].

Jury unanimity is required in felony cases. Ngo v. State, 175 S.W.3d 738, 745 (Tex.Crim.App.2005). In this context, unanimity means that each and every juror agrees that the defendant committed the same, single, specific criminal act. Ngo, 175 S.W.3d at 745. Unanimity ensures that each juror is convinced beyond a reasonable doubt that the prosecution proved each essential element of the offense. Jefferson v. State, 189 S.W.3d 305 (Tex.Crim.App.2006), citing State v. Johnson, 243 Wis.2d 365, 627 N.W.2d 455, 459-60 (Wis.2001). In reviewing a disjunctive jury charge, we first determine whether the application paragraphs contain different criminal acts or whether they merely instruct as to different means of committing a single offense. Ngo, 175 S.W.3d at 744; Milam v. State, 2006 WL 304528 at * 7 (Tex.App.-El Paso 2006, pet. ref'd)(not designated for publication); Holford v. State, 177 S.W.3d 454, 461 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd). If the disjunctive paragraphs merely inform the jury of different means of committing a single offense, then the jury need not unanimously agree on which alternative means the defendant used to commit the offense. Milam, 2006 WL 304528 at *7; Holford, 177 S.W.3d at 462.

If the charge describes how the defendant committed the criminal act as opposed to whether he committed the act, then jury unanimity is not required. Ngo, 175 S.W.3d at 745-46; see Jefferson, 189 S.W.3d at 311-14. To determine what criminal act has been prohibited by statute, a handy rule of thumb is to look to the statutory verb defining the criminal act. Ngo, 175 S.W.3d at 746 n.24. Here, the issue was manslaughter. Under the manslaughter statute, the prohibited criminal act is causing the death of an individual and how a person commits manslaughter is by reckless behavior. Recklessness is defined as a conscious disregard of a substantial and unjustifiable risk that the circumstances exist or the result will occur. TexPenal Code Ann. § 6.03 (Vernon 2003). Here, the charge alleged Appellant was reckless: (1) in driving a motor vehicle at a speed greater than the posted speed limit, (2) in talking on a cell phone while driving, (3) in driving under the influence of alcohol, or (4) by any combination of the above three acts.

Appellant contends that driving while under the influence of alcohol is a separate criminal act of intoxication manslaughter. We disagree. “Driving under the influence of alcohol” is not the same as “driving while intoxicated.” The latter suggests a person who was driving in a public place had lost normal use of either mental or physical faculties or had a blood alcohol concentration of .08 or more. TexPenal Code Ann. § 49.01, 49.08 (Vernon 2003). The former suggests a person was driving after having consumed alcohol without requiring any determination as to the illegality of situation. Buie v. State, 2003 WL 21189757 at *2 (Tex.App.-Austin 2003, no pet.)(a jury can determine whether a person’s driving after consuming alcohol shows requisite degree of risk without having to consider if the consumption of the substance deprived him of his normal use of his physical and mental faculties). The fact that one may legally drive after consuming alcohol does not prevent the State from alleging the driver was reckless in doing so. Id. Thus, the actions of driving under the influence of alcohol can be used to show a conscious disregard of a substantial risk. We overrule Issue Two.

Deadly Weapon Finding

We will consider Appellant’s first and third issues together because they both deal with the deadly weapon finding. In his first issue, Appellant argues the charge failed to place upon the State the proper burden of proof of beyond a reasonable doubt regarding a deadly weapon finding. In his third issue, he contends the trial court erred by precluding a negative finding of a deadly weapon in the verdict form. Because he did not raise either of these issues at trial, we will reverse only if the error resulted in egregious harm. Almanza, 686 S.W.2d at 171.

If the jury is the trier of fact, a trial court may only enter an affirmative finding of a deadly weapon if: (1) the deadly weapon was specifically pled as such in the indictment, (2) the weapon pled is per se a deadly weapon, or (3) a special issue is submitted and answered affirmatively. Polk v. State, 693 S.W.2d 391, 396 (Tex.Crim.App.1985). Here, the deadly weapon finding was specifically pled in the indictment. The verdict stated, “We, the Jury, find the Defendant, MICHAEL RU-BIO, Guilty of Manslaughter as charged in [Count 2 and Count 4] of the indictment.” Counts 2 and 4, differing only in the identity of the victim, provided:

And the Grand Jurors of aforesaid, upon their oaths aforesaid, do further say, charge and present in and to said Court at said term that on or about the 27th day of November, 2003 and anterior to the presentment of this indictment, in the County of El Paso and State of Texas, MICHAEL RUBIO, hereinafter referred to as Defendant,
PARAGRAPHA
did then and there recklessly cause the death of an individual, namely, [Victim], by driving the motor vehicle of MICHAEL RUBIO at a speed greater than the posted speed limit thereby causing the motor vehicle driven by MICHAEL RUBIO to collide with [Victim], a pedestrian,
PARAGRAPH B
did then and there recklessly cause the death of an individual, namely, [Victim], by talking on the phone while driving thereby causing the motor vehicle driven by MICHAEL RUBIO to collide with [Victim], a pedestrian,
PARAGRAPH C
did then and there recklessly cause the death of an individual, namely, [Victim], by driving while under the influence of alcohol thereby causing the motor vehicle driven by MICHAEL RUBIO to collide with [Victim], a pedestrian,
And it is further presented that said Defendant did use and exhibit a deadly weapon, to-wit: a motor vehicle, that in the manner of its use and intended use was capable of causing death and serious bodily injury, during the commission of and immediate flight from said felony offense,
AGAINST THE PEACE AND DIGNITY OF THE STATE.

We agree that before an affirmative finding of a deadly weapon can be made, the State must prove beyond a reasonable doubt that the defendant used a deadly weapon. Hill v. State, 913 S.W.2d 581, 583 (Tex.Crim.App.1996). But we disagree that the charge required a separate finding and failed to properly place the burden of proof on the State. First, the jury made their affirmative finding in compliance with Polk because they found Appellant guilty of manslaughter as charged in the indictment. Polk, 693 S.W.2d at 396. Second, even if we were to assume error, the failure to instruct the jury on the burden of proof regarding the deadly weapon was not egregious. The jury was properly instructed that the State had the burden of proof of beyond a reasonable doubt throughout the trial, and in both the general instructions and the manslaughter application paragraphs of the charge. We conclude that Appellant did not suffer egregious harm. Delgadillo v. State, 2004 WL 1375404 at * 10-11 (Tex.App.-El Paso 2004, pet. ref'd).

In support of his arguments, Appellant relies on Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) and Olivas v. State, 153 S.W.3d 108, 115 (Tex.App.-Waco 2004, pet. granted). In Apprendi, the Supreme Court held that any fact which increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63. Appellant claims the affirmative deadly weapon finding increases his penalty because it requires him to serve half of his sentence. Tex.Code CRIm.Prog.Ann. art. 37.07 § 4(a)(Vernon Supp.2006). Although an affirmative deadly weapon finding impacts a defendant’s parole eligibility, it does not extend the statutory range of punishment. TexPenal Code Ann. § 19.04 (Vernon 2003). The punishment imposed here was within the statutory range of two to twenty years. TexPenal Code Ann. § 12.33. Consequently, Apprendi is inapplicable.

We believe Olivas is inapplicable as well. There, the charge added an extra question on the verdict form after the jury had determined whether Olivas had evaded arrest using a vehicle:

Answer the Deadly Weapon Question only if you have found the defendant guilty. Otherwise do not answer the Deadly Weapon Question.
DEADLY WEAPON
WE, THE JURY, find the defendant RAYMOND OLIVAS did use a deadly weapon during the commission of the offense alleged in the indictment. [Emphasis in original.]
PRESIDING JUROR
WE, THE JURY, find that the defendant, RAYMOND OLIVAS, did not use a deadly weapon during the commission of the offense alleged in the indictment. [Emphasis in original.]
PRESIDING JUROR

The divided Waco court first found this unassigned error was fundamental in nature. The charge was erroneous because it was unclear which party bore the burden of proof and what quantum of proof was necessary. Olivas, 153 S.W.3d at 115. Here, Appellant complains because the separate issue was omitted entirely. There could be no confusion where the remainder of the charge clearly articulated the State had the burden to prove the elements of its case beyond a reasonable doubt. We overrule Issues One and Three.

MOTION TO ABATE APPEAL

Finally, we turn to Appellant’s fourth issue in which he contends that we have effectively denied his right to effective assistance of counsel because we denied his motion to abate the appeal. A few procedural matters are relevant. Appellant was sentenced on October 19, 2004. Trial counsel timely filed a notice of appeal. On December 30, 2004, trial counsel presented a motion for leave to file an untimely motion for new trial to then-Judge Richard Roman. Judge Roman signed an order the same day, granting leave to file. The basis of the motion was that counsel had recently learned of jury misconduct. For the sake of accuracy, we note that the motion was also filed in the wrong cause number.

On February 24, 2005, a hearing took place before the Honorable Angie Juarez Barill, the newly-elected judge of the 346th District Court. Appellate counsel and the prosecuting attorney offered arguments as to whether the court had jurisdiction to consider the merits of the motion. After reviewing the jurisdictional issues, Judge Barill denied the motion.

Appellant then sought relief in this court, asking us to abate the appeal to allow the trial court to consider the motion for new trial. We denied the motion on May 23, 2005. Appellant filed a motion to reconsider the abatement, which we denied on June 8, 2005. Now, in his brief on the merits, he complains that the failure to abate was error.

The Court of Criminal Appeals has considered this issue in several contexts. In Drew v. State, 743 S.W.2d 207 (Tex.Crim.App.1987), the appellant assigned error to the trial court’s denial of his untimely motion for new trial due to lack of jurisdiction. He also complained that insofar as the motion alleged jury misconduct, the court erred in denying the motion without an evidentiary hearing. The Court of Criminal Appeals concluded that since the trial court lacked authority to entertain the untimely motion for new trial, it had not erred in refusing to consider allegations of jury misconduct. Id. at 223.

In Price v. State, 826 S.W.2d 947 (Tex.Crim.App.1992), the court of appeals affirmed conviction as to the issues presented on guilt/innocence. But it abated the appeal concerning a punishment issue and ordered the trial court to consider the motion for new trial. If the court did not hold a hearing and rule within thirty days, the intermediate court would reverse the judgment. The State filed a petition for discretionary review, claiming that the appellate court had not considered its dispos-itive issue that the motion for new trial was not timely presented. After first concluding that the abatement was not an interlocutory order, the Court of Criminal Appeals reversed and remanded to the intermediate court for a determination of timeliness.

Several years later, the high court revisited the issue, devoting considerable time to outlining the cases in which abatement has been addressed. In Oldham v. State, 977 S.W.2d 354 (Tex.Crim.App.1998), it reversed an order of abatement from the intermediate court of appeals. That court had concluded the defendant was denied counsel at a critical stage of the proceedings. Oldham had been sentenced on January 13, 1992. Although she had retained trial counsel, she filed a pro se notice of appeal. Appellate counsel was not appointed until March 16. The Court of Criminal Appeals reversed, holding that Oldham had made no showing that she was denied counsel during this period of time, nor had she overcome the presumption that counsel had acted effectively. Id. at 363. It also concluded that the intermediate court had erred in relying upon Rule 2(b) of the Texas Rules of Appellate Procedure as a mechanism to extend the time limits for the filing of a motion for new trial. Id. at 360. In two more recent cases, the court dismissed the State’s petitions for discretionary review complaining of the double abatement proceedings utilized in Houston because the appellate abatements were interlocutory and not ap-pealable. See Jack v. State, 149 S.W.3d 119 (Tex.Crim.App.2004); Smith v. State, 131 S.W.3d 502 (Tex.Crim.App.2004).

Here, Appellant was represented at trial and in the post-sentencing stage. Trial counsel filed a proper notice of appeal. Although the motion for new trial was not filed until 72 days after sentencing, the record reveals that the untimeliness was not due to the absence of counsel. The motion was untimely because counsel had just learned information suggesting the possibility of jury misconduct. To the extent allegations of ineffective assistance may be urged against trial counsel for his failure to learn of the purposed misconduct earlier, Appellant may avail himself of his post-conviction remedies via habeas corpus. We are not to be understood as holding that abatement is never proper to discern whether an appellant has been denied counsel at a critical stage of the proceedings. Instead, our holding is limited to those circumstances where the record conclusively establishes otherwise. We overrule Issue Four. Having overruled all issues for review, we affirm the judgment of the court below. 
      
      . There was conflicting testimony on this point. Appellant’s passengers claimed Ibarra was actually talking with Rodriguez — not Appellant — at the time of the accident.
     
      
      . Appellant suggests he preserved error because he argued this point in both his Motion for Judgment and Sentence Nunc Pro Tunc and his Motion for New Trial. But a special request for instruction or an objection regarding error in the charge is timely only if submitted in writing or dictated to the court reporter before the charge is read to the jury. TexCode Cmm.Proc.Ann. arts. 36.14, 36.15 (Vernon Supp. 2006).
     
      
      . The indictment was also read to the jury.
     