IN THE

TENTH COURT OF APPEALS

No. 10-16-00382-CR

THOMAS BENSON TAYLOR,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 249th District Court

Johnson County, Texas

Trial Court No. F50817

MEMORANDUM OPINION

In one issue, appellant, Thomas Benson Taylor, complains that there is insufficient 

evidence to support the jury’s finding that he used a deadly weapon during the 

commission of the felony offense of driving while intoxicated, a third offense or more. 

See TEX. PENAL CODE ANN. § 49.09(b) (West Supp. 2016). Because we conclude that the 

evidence is sufficient to support the jury’s deadly-weapon finding, we affirm.
Taylor v. State Page 2

I. PROCEDURAL BACKGROUND

Here, Taylor was charged by indictment with driving while intoxicated, a third 

offense or more. See id. Also included in the indictment were enhancement paragraphs 

referencing Taylor’s four prior felony convictions for driving while intoxicated. Prior to 

trial, the State indicated its intent to seek a deadly-weapon finding based on the fact that 

Taylor used a deadly weapon, his motor vehicle, during the course of committing the 

charged offense. This matter proceeded to trial.

Taylor pleaded guilty to the charged offense and “true” to the enhancement 

paragraphs in the indictment. The jury decided punishment. After finding that Taylor 

used or exhibited a deadly weapon in the commission of this offense, the jury sentenced 

Taylor to thirty-five years’ incarceration in the Institutional Division of the Texas 

Department of Criminal Justice. Taylor subsequently filed motions for new trial and in 

arrest of judgment. These motions were overruled by operation of law. See TEX. R. APP.

P. 21.8(a), (c). This appeal followed.

II. SUFFICIENCY OF THE EVIDENCE SUPPORTING THE DEADLY-WEAPON FINDING

In his sole issue on appeal, Taylor contends that the evidence is insufficient to 

support the deadly-weapon finding because the record does not show that his vehicle 

posed an actual danger of death or serious bodily injury to others on the day he was 

stopped and arrested for driving while intoxicated. We disagree.
Taylor v. State Page 3

A. Applicable Law

In reviewing the sufficiency of the evidence, we view all of the evidence in the 

light most favorable to the prosecution to determine whether any rational trier of fact 

could have made the deadly-weapon finding beyond a reasonable doubt. Jackson v. 

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323 

S.W.3d 893, 895 (Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. 

App. 2007); see Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005) (“To hold 

evidence legally sufficient to sustain a deadly weapon finding, the evidence must 

demonstrate that: (1) the object meets the statutory definition of a dangerous 

weapon . . . (2) the deadly weapon was used or exhibited during the transaction from 

which the felony conviction was obtained; . . . and (3) that other people were put in 

danger.” (internal citations and quotations omitted)). This standard enables the fact 

finder to draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319, 99 S. Ct. 

at 2789; Clayton, 235 S.W.3d at 778. In performing our sufficiency review, we may not reevaluate the weight and credibility of the evidence or substitute our judgment for that of 

the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see Curry v. 

State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) (“We resolve inconsistencies in the 

testimony in favor of the verdict.”). Instead, we determine whether the necessary 

inferences are reasonable based upon the combined and cumulative force of all the 
Taylor v. State Page 4

evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214 

S.W.3d 9, 16-17 (Tex. Crim. App. 2007). 

A trial court must enter a deadly-weapon finding in the judgment if the trier of 

fact affirmatively finds that the defendant used or exhibited a deadly weapon during the 

commission of a felony offense or during immediate flight therefrom. See TEX. CODE 

CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (West Supp. 2016); see also Polk v. State, 693 S.W.2d 

391, 394 (Tex. Crim. App. 1985). 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. 2016). A motor vehicle can be a deadly weapon 

if the manner of its use is capable of causing death or serious bodily injury. Id.; see, e.g., 

Sierra v. State, 280 S.W.3d 250, 255-56 (Tex. Crim. App. 2009).

B. The Facts

Deputy Gerald Jones of the Johnson County Sheriff’s Office testified that, on the 

day in question, he observed Taylor driving a full-size Chevrolet pickup truck 

southbound on Old Renfro Road, a heavily-traveled, two-lane road with no shoulder, 

near FM 917 at sixty-three miles per hour, though the posted speed limit was forty miles 

per hour. Deputy Jones further described Old Renfro Road as having “houses all up and 

down the road, drives, county roads that intersect with it,” as well as commercial 

properties nearby. 
Taylor v. State Page 5

After observing Taylor driving over the posted speed limit, Deputy Jones “waited 

for him to pass, then I immediately turned around, activated my emergency lights and 

sirens to go catch him.” However, after turning around, Deputy Jones initially lost Taylor 

over a hill. He later caught up with Taylor when they both approached a yield sign at 

the intersection of Old Renfro Road and FM 917. At this intersection, which was near a 

crowded flea market, Taylor made a right turn.1 Though, according to Deputy Jones, one 

must “come to a slow, almost to a stop, to check for oncoming traffic” when approaching 

a yield sign, Taylor did not do so. Taylor continued on FM 917 for a few yards and then 

pulled over. While observing Taylor’s vehicle, Deputy Jones noticed that Taylor drove 

over the center line into the oncoming lane of traffic when he turned onto FM 917 and 

that another vehicle had to take evasive action because of Taylor’s turn.2 Based on these 

observations, Deputy Jones believed that Taylor was operating his pickup truck in a 

dangerous manner. 

Thereafter, Deputy Jones initiated a traffic stop of Taylor. Upon approaching 

Taylor’s pickup truck, Deputy Jones noticed Taylor’s slurred speech and the smell of 

alcohol emitting from Taylor’s breath. Taylor admitted that he had drank “a few” beers 

and that he had some beer in the pickup truck. He then “reached down towards his feet 

 

1 Deputy Jones recalled there were numerous vehicles and people standing outside of the flea 

market and that the flea market was located maybe ten feet from the road surface.

2 The testimony established that it was clear and sunny on the day in question.
Taylor v. State Page 6

and handed [Deputy Jones] a six-pack of beer.” Three of the beers were open and empty, 

and the remaining beers were cold. Deputy Jones also saw that Taylor had a container of 

beer that was three-quarters full between his legs, as well as a dog inside the cab of the 

pickup truck. Subsequently, Taylor staggered out of the pickup truck, and Deputy Jones 

administered the standard field-sobriety tests. Taylor exhibited six of six clues on the 

horizontal-gaze-nystagmus test and eight of eight clues on the walk-and-turn test. Taylor 

was unable to complete the one-leg-stand test. Deputy Jones arrested Taylor for driving 

while intoxicated.3

C. Analysis

Viewing the evidence in the light most favorable to the verdict, we cannot say the 

evidence is insufficient to support the jury’s deadly-weapon finding. See Brister v. State, 

449 S.W.3d 490, 493 (Tex. Crim. App. 2014) (“Appellate courts “review the record to 

determine whether, after viewing the evidence in the light most favorable to the [verdict], 

any rational trier of fact could have found beyond a reasonable doubt that the [vehicle] 

was used or exhibited as a deadly weapon.” (quoting Cates v. State, 102 S.W.3d 735, 738 

(Tex. Crim. App. 2003))). Indeed, the evidence shows that Taylor drove his full-size 

pickup truck in a reckless manner while severely intoxicated—more than two times the 

legal limit. Deputy Jones’s testimony reflected that Taylor drove more than twenty miles 

 

3 Bob Browder, a senior forensic chemist with the Texas Department of Public Safety, stated that 

Taylor’s “first subject breath specimen was 0.183. The results of the second breath specimen were 0.176.” 

In other words, Taylor’s samples tested more than double the legal limit of 0.08.
Taylor v. State Page 7

over the speed limit, failed to properly yield at the intersection of Old Renfro Road and 

FM 917, and had difficulty negotiating the right turn at the intersection, which resulted 

in him crossing the center line and causing another vehicle to take evasive action to avoid 

a collision. Additionally, the roadways that Taylor traveled upon were narrow with no 

shoulder, had heavy traffic, and were surrounded by houses and businesses, especially a 

crowded flea market that was merely ten feet from the roadway and was not protected 

by a barrier or guardrail. Accordingly, a rational trier of fact could have found beyond a 

reasonable doubt that Taylor’s pickup truck was: (1) capable of causing death or serious 

bodily injury in the manner of its use; (2) used during the commission of the charged 

offense of driving while intoxicated; and (3) put other people in actual danger. See TEX.

PENAL CODE ANN. § 1.07(a)(17)(B); Drichas, 175 S.W.3d at 797-98 (noting that “actual 

danger means one that is not merely hypothetical”); see also Sierra, 280 S.W.3d at 255-56. 

In other words, a rational trier of fact could have found beyond a reasonable doubt that 

Taylor’s pickup truck constituted a deadly weapon in this instance. See TEX. PENAL CODE 

ANN. § 1.07(a)(17)(B); Sierra, 280 S.W.3d at 255-56; Drichas, 175 S.W.3d at 798; see also

Brister, 449 S.W.3d at 493; Cates, 102 S.W.3d at 738.

However, despite the foregoing, Taylor asserts that the evidence is insufficient to 

support the deadly-weapon finding because Deputy Jones admitted on crossexamination that he did not document in his report that Taylor failed to yield the rightof-way when turning onto FM 917 or that he crossed the center line on FM 917. Taylor 
Taylor v. State Page 8

also relies on Deputy Jones’s testimony that he did not pull over Taylor for reckless 

driving, but rather for speeding. Given this, Taylor contends that his pickup truck was 

not a deadly weapon used in the commission of the charged offense. Additionally, Taylor 

asserts that this case is similar to Brister. See 449 S.W.3d at 495 (holding that the record 

evidence did not allow for a reasonable inference that appellant used his motor vehicle 

as a deadly weapon). 

First, assuming Taylor’s interpretation of Deputy Jones’s testimony actually 

constituted a conflict in the evidence, we note that conflicts or inconsistencies in the 

evidence are within the province of the factfinder to resolve. See Chambers v. State, 805

S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Jackson, 443 U.S. at 326, 99 S. Ct. at 2792-

93; Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008); Curry, 30 S.W.3d at 406. 

Moreover, as a reviewing court, we are to defer to the factfinder’s resolution of any 

conflicts in the evidence. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2792-93; Lancon, 253 

S.W.3d at 706 (“As we explained in State v. Johnson, 23 S.W.3d 1 (Tex. Crim. App. 2000), 

an appellate court just give deference to a jury’s decision regarding what weight to give 

contradictory testimonial evidence because the decision is most likely based on an 

evaluation of credibility and demeanor, which the jury is in the better position to judge.”); 

Curry, 30 S.W.3d at 406; Chambers, 805 S.W.2d at 461. As such, we disagree with Taylor’s 

assertion that the purported conflicts in the testimony of Deputy Jones demonstrate an 

insufficiency of the evidence supporting the deadly-weapon finding.
Taylor v. State Page 9

Moreover, we are not persuaded by Taylor’s reliance on Brister. Specifically, in 

Brister, the Court noted that the testimony established “that, on a single occasion, 

appellant briefly crossed the center line into the oncoming lane of traffic at a time at which 

there were very few, if any, cars in that lane.” Id. at 495. After the officer activated his 

emergency lights, “appellant committed no other traffic offenses and appropriately 

stopped. There is no testimony that appellant caused another vehicle or person to be in 

actual danger.” Id. Based on this evidence, the Brister Court concluded that the evidence 

did not support a reasonable inference that appellant used his motor vehicle as a deadly 

weapon. Id.

As noted above, our fact scenario is different. Deputy Jones recounted that Taylor 

drove more than twenty miles over the speed limit, failed to properly yield at the 

intersection of Old Renfro Road and FM 917, and had difficulty negotiating the right turn 

at the intersection, which resulted in him crossing the center line and causing another 

vehicle to take evasive action to avoid a collision. The evidence also established that the 

roadways that Taylor traveled upon were narrow with no shoulder, had somewhat heavy 

traffic, and were surrounded by houses and businesses, including a crowded flea market 

that was merely ten feet from the roadway and was not protected by a barrier or 

guardrail. Based on this evidence, we find the Brister case to be factually distinguishable 

from the case at bar. We therefore overrule Taylor’s sole issue on appeal.
Taylor v. State Page 10

III. CONCLUSION

We affirm the judgment of the trial court.

AL SCOGGINS

Justice

Before Chief Justice Gray,

Justice Davis, and

Justice Scoggins

(Chief Justice Gray concurring)*

Affirmed

Opinion delivered and filed April 19, 2017

Do not publish

[CR25]

*(Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the trial 

court’s judgment of conviction and deadly-weapon finding. A separate opinion will not 

issue.)