NUMBER 13-13-00143-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

ESIDRO RODRIGUEZ, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court

of Calhoun County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Garza and Perkes

Memorandum Opinion by Chief Justice Valdez

A jury convicted appellant, Esidro Rodriguez, of evading arrest or detention with 

a vehicle, a third-degree felony, and found by special issue that appellant used a deadly 

weapon. See TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (West Supp. 2011). Appellant 

received a sentence of ten years’ confinement. By one issue, appellant contends that 
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the evidence was insufficient to support the jury’s finding that the he used the vehicle as 

a deadly weapon. We affirm.

I. BACKGROUND1

Texas Department of Public Safety Trooper Henry Shultz testified that on the 

night of April 14, 2012 in Calhoun County, he initiated a traffic stop of appellant’s black 

pickup truck because it had an expired license registration sticker and improper license 

plate lighting. Appellant stopped his vehicle; however, Trooper Shultz noticed that

appellant “was riding his brakes,” Trooper Shultz became “concerned.” Trooper Shultz 

testified that he waited for appellant to put his vehicle in park before exiting his own 

vehicle. However, when Trooper Shultz exited his vehicle, appellant drove off. Trooper 

Shultz stated that he pursued appellant at speeds “well over 100.” According to Trooper 

Shultz, appellant eventually stopped again, and Trooper Shultz told appellant over his 

“external P.A. radio” to exit his vehicle. Trooper Shultz stated that as he made the 

announcement, appellant’s truck while in neutral “rolled backwards in the area of [his] 

unit.” Trooper Shultz explained, that due to appellant’s vehicle backing up, he “was 

forced to back up.” Trooper Shultz said, “At that time I just felt that things were going 

south pretty quick so I unlocked my shotgun release to grab my shotgun. It was hung 

up and as I was fighting the shotgun to come out of the rack, [appellant] spun in a 

circular motion in the intersection. He fled once more in a circular motion.” Trooper 

Shultz clarified that appellant “[spun the vehicle] around in a circle like a donut.” 

Trooper Shultz continued pursuing appellant. According to Trooper Shultz, appellant 

 

1

Because this is a memorandum opinion and the parties are familiar with the facts, we will not 

recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons 

for it. See TEX. R. APP. P. 47.4.
3

stopped his vehicle again, positioning it facing Trooper Shultz’s car. Trooper Shultz 

stated that because the situation had become dangerous, he called for backup. 

Trooper Shultz testified that the following occurred:

After about 10 seconds of sitting in my car not knowing exactly 

what was fixing to happen, if I was going to get rammed or ambushed, I 

felt like a sitting duck in my patrol car, so I opened the door, got out, drew 

my revolver, my pistol, and at that time I started to raise the gun at the 

vehicle and I was going to start giving commands at that point since I had 

a gun out and both hands were ready to act if needed.

. . . .

As soon as I made these motions, the truck, I heard the engine 

accelerate. I heard the rear tires peeling out as they hit the asphalt and 

the headlights came straight at me.

. . . .

I shot two rounds through the windshield. At that time I retreated 

backwards as the truck still came rolling towards me. I retreated back to 

where my gas cap would be on my patrol car. At that time I fired one 

more round through the driver’s door at the driver.

. . . .

After the third shot was fired the truck came to a rest. I ran into the 

darkness into the bar ditch and at that time that’s when I began giving 

commands for them to exit.

Appellant and another man exited the vehicle, and Trooper Shultz arrested both 

men. Trooper Shultz stated that he felt the need to shoot at appellant’s vehicle because 

he “felt in fear for [his] life standing next to [his] patrol car with only a pistol in hand while 

this large truck was coming at [him].” The State then played a video taken from Trooper 

Shultz’s vehicle’s video camera for the jury.

Texas Ranger Drew Edward Pilkington testified that a motor vehicle can be used 

as a deadly weapon and about his investigation of the incident between Trooper Shultz 
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and appellant. Ranger Pilkington testified that it was his opinion that the first time 

appellant failed to stop for Trooper Shultz, “the manner that he pulled out [onto the 

highway] caused the other vehicles to take evasive action and that could have caused

[the occupants of] those vehicles if they crashed, you know, death or serious bodily 

injury.” Ranger Pilkington believed that the manner of appellant’s use of his vehicle 

could have also caused serious bodily injury or death to his passenger. When asked if 

operating a vehicle over 100 miles per hour in a thirty-five mile per hour zone could also 

cause serious bodily injury or death and if appellant was operating the vehicle in a 

manner constituting a deadly weapon, Ranger Pilkington replied, “Yes, sir, it could 

have.” Finally, the prosecutor asked, “Now is accelerating towards that trooper, do you 

have an opinion of whether or not that vehicle was being used in such a way that it 

could be considered a deadly weapon?” Ranger Pilkington responded, “Yes, sir, it 

was.” Ranger Pilkington believed that Trooper Shultz’s use of deadly force by firing his 

weapon at appellant’s vehicle was justified.

II. STANDARD OF REVIEW AND APPLICABLE LAW

In a sufficiency review, we examine the evidence in the light most favorable to 

the prosecution to determine whether any rational fact-finder could have found the 

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 

U.S. 307, 319 (1979); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App. 

2010) (plurality op.). The fact-finder is the exclusive judge of the facts, the credibility of 

witnesses, and of the weight to be given testimony. Brooks, 323 S.W.3d at 899. We 

must resolve any evidentiary inconsistencies in favor of the judgment. Id.
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We measure the sufficiency of the evidence by the elements of the offense as 

defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 314 

(Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234, 240 

(Tex. Crim. App. 1997)). Here, the applicable definition of a deadly weapon is “anything 

that in the manner of its use or intended use is capable of causing death or serious 

bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West Supp. 2011).

To determine whether the evidence supports a deadly-weapon finding in cases 

involving motor vehicles, we conduct a two-part analysis. Foley v. State, 327 S.W.3d 

907, 916 (Tex. App.—Corpus Christi 2010, no pet.); Hilburn v. State, 312 S.W.3d 169, 

177 (Tex. App.—Fort Worth 2010, no pet.) (citing Sierra v. State, 280 S.W.3d 250, 255 

(Tex. Crim. App. 2009) (setting out factors to consider when determining whether the 

defendant used a motor vehicle recklessly or dangerously during a felony)). We first 

“evaluate the manner in which the defendant used the motor vehicle during the felony”

by determining whether the defendant’s driving was reckless or dangerous. Sierra, 280 

S.W.3d at 255; Foley, 327 S.W.3d at 916. We consider several factors in making this 

reckless-or-dangerous determination: (1) intoxication; (2) speeding; (3) disregarding 

traffic signs and signals; (4) driving erratically; and (5) failure to control the vehicle. 

Sierra, 280 S.W.3d at 255–56; Foley, 327 S.W.3d at 916. We then consider “whether, 

during the felony, the motor vehicle was capable of causing death or serious bodily 

injury.” Sierra, 280 S.W.3d at 255; Foley, 327 S.W.3d at 916 (citations omitted).

III. ANALYSIS

Appellant argues, in pertinent part, the following: (1) the evidence “showed 

nothing more than that the defendant was trying to evade arrest by speeding off in his 
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car”; (2) that “Officer Shultz was the one who endangered the defendant’s and the 

passenger’s life by acting unprofessionally”; (3) that there “was no evidence presented 

at trial that defendant’s vehicle came close enough to collide with the trooper’s car”; and 

(4) “if defendant really wanted to hurt the trooper, he had plenty of opportunities to do it 

prior than this occasion.”

Appellant does not address which part of the Sierra test he is challenging. 

Nonetheless, we will address both parts of the test. First, we examine whether 

evidence was presented that appellant’s driving was reckless or dangerous. See

Sierra, 280 S.W.3d at 255. The jury heard evidence that appellant sped, made donuts 

on the public streets, and entered a highway recklessly causing other motorists to veer 

out of his way. From this evidence the jury could have found that appellant disregarded 

traffic rules. Evidence was also presented that appellant (1) traveled at over 100 miles 

per hour in a thirty-five mile per hour zone, which according to Ranger Pilkington was 

using the vehicle in a manner that could have caused serious bodily injury or death; (2)

allowed his vehicle to slide backward “forcing” Trooper Shultz to move his vehicle back;

and (3) drove his vehicle in Trooper Shultz’s direction making Trooper Shultz fear for his 

life. This evidence establishes that appellant drove his vehicle recklessly or 

dangerously. See id.

Next, we examine whether appellant’s use of his motor vehicle was capable of 

causing death or serious bodily injury. Sierra, 280 S.W.3d at 255; Foley, 327 S.W.3d at 

916. Ranger Pilkington testified that on more than one occasion during appellant’s

commission of evading arrest, appellant used his motor vehicle in a manner that was 

capable of causing death or serious bodily injury by “pulling” out onto the highway 
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causing other motorists to take evasive action, driving his vehicle in such a manner with 

a passenger in his vehicle, driving over 100 miles per hour in a thirty-five mile per hour 

zone, and accelerating his vehicle “towards” Trooper Shultz. Viewing the evidence in 

the light most favorable to the prosecution, we conclude that any rational juror could 

have found beyond a reasonable doubt that the evidence was sufficient to determine 

that appellant drove his vehicle recklessly and dangerously and that he used his vehicle

in a manner capable of causing serious injury or death. See Jackson, 443 U.S. at 318–

19; Brooks, 323 S.W.3d at 898–99; Sierra, 280 S.W.3d at 255-56; Foley, 327 S.W.3d at 

916. Thus, the evidence was legally sufficient to support the jury’s finding that appellant 

used his vehicle as a deadly weapon. We overrule appellant’s sole issue.

IV. CONCLUSION

We affirm the trial court’s judgment.

__________________

ROGELIO VALDEZ

Chief Justice

Do not publish.

TEX. R. APP. P. 47.2(b).

Delivered and filed the

25th day of July, 2013.