## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00066

- CR

DARYL CHRISTOPHER SIMMONS , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 2128975

Before Morriss, C.J., Stevens and van Cleef , JJ. Memorandum Opinion by Chief Justice Morriss2 

### ME MORANDUM OPINION When Daryl Christopher Simmons submitted to a required drug test while under indi ctment and free on bond for a different felony, he tes ted positive f or metha mphet amine and
was t aken into custo dy . Granted permission to lock his car, Simmons was escorted out of the Hopkins County Courthouse into the adjacent parking area by Hop kins County D eputy Major
W illis

. Th ough handcuffed, Simmons ma na ged to flee in his vehicle, while Willi s was standing by Simmons in the open , driver

- side door of the v ehicle with Willi s ’ s hand on the vehicle

. Simmons ’ s subsequent conviction 1 for e scap e 2 included a deadly weapon fin ding as to his use of his v eh icle t o en d ange r Willis. The only issue i n this appeal of that convicti on is whether there

was sufficient evidence to support that finding. Because we con clude that the evidence is sufficient, we aff

irm the judgment of the tr ial cou rt. Courthouse sur v e il lance video from the time of the escape show s Willis escort ing Simmons to the court ’ s parking lot

. Simmons was handcuffed and was escorted to a white sedan in the court ’ s parking lot. After checking the passenger

- si de window, Simmons went to th e oth e r side and sat in the driver ’ s seat. He then s tarted t he car ’ s motor

. Willis testified that S immons could not get one of the windows up a nd that he allowed Simmons to start the car to use the automatic window c ontrols. T he video then depicts W il l is stan d ing betwe en the open , driver

side door and the driver ’ s seat . Willis lean ed in toward the steering wheel just before Simmons

1 Simmo ns pl ed true to two enhance ment allegations and w as sentenced to sixty

- five years’ incarceration.

2 See T EX
. P ENAL C ODE A NN
. § 38.0 6.3

dr o ve away, with the driver ’ s door still open. Willis can be seen momentarily hold ing the driver

s ide door and almost l o s in g his balance a s Simmons dr o ve away . Willis describe d Si mmons as “ racing off ” and testified that Simmons ’ s driving was

“ reckless

. ” He testified further, “ [T] hank goodness I wasn ’ t in front of that door when h e pulled
out [,] because his door was open. I was o f f to the s ide. But he could have still [ r u n ] over my foot or knocked me over if I leaned against the vehicle. ” Another deputy, Zachary Horne, testified that a moto r vehicle “ [a]bsolutely ” could be used as a deadly weap on. Simmons was found at his home l a te r that night and t aken back into custody. Simmons testified and admitted that he was the person in the video who was arrested and who then dr o v e away w h i l e Willis was standing in the open doorway of his car

. He denie d intentionally consuming met ham phe t a mi ne that day and claimed that his wife, whom he said suffered from “ multiple personalities , ” spiked his morning coffee with something that caused him to not be in his “ right frame of mind when the situation occurred. ” 3 He acknowledged being under the i n f

lu ence of some substance on the day of his arrest and told the jury he remember e d going to his car to l ock it . He remembered nothing more until he woke at home , still wearing handcuff s . 4 Simmons also admitt ed having t wo previous felony conviction s for p o ss ession of methamphetamine , the most recent of which happened only one month before the trial in this

case . He in sisted, though, that he was n ot a drug user

.

3 Simmons t e stified that his wife sent him “a lette r apologiz ing” “for being childish and stupid and w rong.” H e s aid that h e had the letter in his possession as he testified , but he made no at tempt to introduce the letter as evidence

.
4 Outside the presen c e of the j ury, Simmons told the trial court that his wif e had put met hamphetamine and peyote i n his coffee that morning, but he did not name those substanc es in his testimony.4

“ In evaluat ing legal sufficiency, we review all the evide nce in the light most favorab le to
t h e trial c ourt ’ s judgment to determine whether any rational jury could have found the essent ial elements of the offense beyond a reas onable doubt. ” Williamson v. State , 589 S.W.3d 292, 297 (Tex. App.

— Texarkana 2019 , pet . ref ’ d) (citing Brooks v. Sta te , 32 3 S. W.3d 8 93, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia , 443 U.S. 307, 319 (1979 )). “ We

exa mine legal sufficiency under the direction of the Brooks opinion, while giving deference to the res ponsibility of the jury ‘ to fa irly r e solve con flicts in test imony, to weigh the evidence, and to draw reasonable inferences from basic facts to u ltimate fact s. ’ ” Id. (quoting Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). A motor vehicle ma y be found to have been used o r exhi bi t ed as a d eadly weap on “ if it is used in a manner that is capable of causing death or serious bodily injury. ” Brister v. State , 449 S.W.3d 490, 494 ( Tex. Crim. App. 2014)

.

“ Legal sufficiency of the evidence is measure d by the elements of the offen se as d e f ined by a hypothetic ally correct jury charge. ” Williamson , 589 S.W.3d at 298 (quoting Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “ The ‘ hypothetically correc t ’ jury charge is ‘ one that accurately sets out the law, is authoriz ed by t he i n dictment, does not unnecessarily increase the Stat e ’ s burden of proof or unnecessarily restrict the State ’ s theories of liability, and adequately d escribes the particular offen se for which the defendant was tried. ’ ” Id

. (quoting Malik , 953 S.W .2d at 240)

.

“ In our review, we consider ‘ events occurrin g be fore, during and after the commission of the offense and may rely on actions of the d efendant whi ch show an understanding and common design to do the prohibited act

. ’ ” Id. at 297 (q uot ing Hooper , 214 S.W. 3 d at 13 )

. “ It is not5

required that each fact ‘ point directly and independent ly to the guilt of the appell ant, as long as the cumulative force of all the incriminatin g circumstanc es is sufficient to support the conviction. ’ ” Id

. (q uoting Hooper , 214 S.W. 3 d at 13). “ Circumstantial evidence and direct evidence are equal ly probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alo ne. ” Id

. (citing Ramsey v. State , 473 S.W.3d 805, 80 9 (Tex. Crim. App. 2015 ) ; Hooper , 214 S.W.3d at 13 )

. “ Further, ‘ we must consider all of the evidence admitted at trial, even if t hat evidence was improperly ad mitted. ’ ” Id

. (quoting Fowler
v. State , 51 7 S.W.3d 167, 176 (Tex. App.

— Texarkana 2017), rev ’ d i n part by 544 S.W.3d 84 4 (Tex. Cr im. App. 2018)). The jury, as “ the sole judge of the cre dibility of the witnesses and the weight to be given their testimony[, could] ‘ believe all of [the] w itnesses ’ tes timony, portions of it, or none of it. ’ ” Id. (quoting Thomas v. State , 444 S .W.3d 4, 10 (Tex. Crim. App. 2014) )

. “ W e give ‘ alm ost complete deference to a j ury ’ s decision when that d ecision is based on an evaluat ion of credibi lity. ’ ” Id

. (quoting Lancon v. State , 253 S.W.3d 699, 70 5 (Tex. Crim. App. 2008) )

. Simmons argues that a rational jury could not have found that he us ed or exhib ited a motor vehicle as a dea dly weapon durin g his escape

. He claims that there is no evidenc e to show Willis was actually endangered as Simmons drove his car from the court ’ s parking lot . Simmons
f urther cl aims that there was no eviden ce that he drove the car “ i n a deadly manner duri ng ” his

e scape . At most, he claims , the evidence showed a “ hypothet ical capability of causing death or serious bodily injury ” as he fled the parking lot. We d is agree w ith Simmo ns ’ s assessment o f the record.6

“ A mot or vehicle, in the manner of its use or inten ded u se, is clearly capable of causing death or serious bodily i njury and therefore can be a deadly weapon. ” Ex parte Mc Kithan , 838 S.W.2d 560, 561 ( Tex. Crim. App

. 1992). It is not necessa ry that the person driving the vehicle intend it to be used as a de adly weapon. See Tyra v. St ate , 897 S.W.2d 796, 799 ( Tex. Cri m. App. 1995). Nor is it required that the use of the mo tor vehicle cause s death or serious bodily
i njury. S ee Drichas v. Sta te , 175 S.W .3d 795, 797 ( Tex. Crim. App. 2005). All th at is requir ed is that the evidence show that “ ‘ the manner ’ in which [the motor vehicle] was either used or intended to be used was ‘ capable ’ of causing death or serious bodi l y injury. ” Moore v. State , 520 S.W.3 d 906, 908 ( Tex. Crim. App. 2008) ( quoting Tucker v. Sta te , 274 S.W.3d 688, 691 ( Tex . Crim. App. 2008) )

.

“ To sustain a deadly weapon finding requires evidence that others were endangered, and not merely a hypothetical p otential for danger if oth ers had b een present. ” Mann v. State , 13
S.W .3d 89, 92 (Tex. App

. — Austin 2000), aff ’ d , 58 S. W.3d 132 ( Tex. Crim. App. 2001)

. 5 In Sturgis v. State , No. 12

- 19

- 00313

- CR, 2021 WL 219295, at *3 (Tex. App.

— Tyler Jan. 21, 2021 , no pet

. ) (mem. o p. , not designated for publication) , a police officer reach ed into t he defendant ’ s car to pull hi m out and ar rest him. The defendant “ shifted t he vehicle in reverse and abruptly backed up, ” while the officer ’ s “ hand was in the door and he was l e a ning into the driver ’ s side of the vehicle. ” Id

. at *2. Tha t , combined with th e defe nda nt ’ s running a red light and drivi ng through ditches to avoid the off icers ’ pursuit , was enough to sustain the trial court ’ s finding that Sturgi s ’ s use of the car “ pl a ced other s in actual danger of death or serious bodily injury

. ” Id

. at

5 The Texas Court of Criminal Appeals adopted the appellate court ’ s opinion “dea l ing with t he merits of appellant’s d eadly weapon claim” “as [its] own witho ut furt he r comment.” Mann , 58 S.W.3d 132

.7

*3. As a resu lt , the cou rt s ustain ed the finding th at Sturgis used the vehicle as a de adly weapon while evading arrest or detention with a motor vehicle. Id

. 6 Here, t he video evid e nce shows Willis s tanding between the open , driver

- side door and Simmons , who sat in the driver ’ s seat

. Af ter Simmons star ted the car, W illis reach ed for the steering wheel as the car beg a n to move , and he momentarily los t his balance as Simmons dr o ve

aw a y with th e driver

- s ide door still open

. Simmons admitted being under the influen ce of some
f orm of controlled substance ; he admitted that he wa s not in his “ ri ght mind , ” and he did not recall events between being taken into custody and waking up at home w earing ha ndcuffs. 7 At the very least, a rational jury could have f ound t his conduct reckless. 8 Reckless d riving is a facto r in determining whether a ve hicle was used a s a deadly weapon. See Sierra v. State , 280 S.W.3d 250, 256 ( Tex. Crim. App. 2009) ( “ O ur preced ing discussion establishes t hat some of the criteria used by the court of appeals in clude factors that we have fou n d determinative in prior

cas es

— dangerous and reckless driving and the violation of traffic laws. ” ). Here, Simmons ’ s reckless drivi n g caused Willis to almost lose his ba lance. In that situation, he c ould easily have

6 “Although unpublished opinions have no precedential value, we may take guidance from them ‘as an aid in developing reasoning that may be empl oyed. ’ ” Rhymes v. State , 536 S.W.3d 8 5, 99 n.9 (Tex. App.

— Texarkana 2017 , pet. ref’d) (quoti ng Carri llo v. State , 98 S.W.3d 789, 794 (Tex. App.

— Amari llo 2003, pet. ref’d)).

7 The jury charge included an instruction on the defense of involuntary intox i cat ion.

8 The Penal Code defines reckle s s as follows: A person ac ts recklessly, or is reckl ess, with respect to circumstances surrounding his conduc t or the result of his conduct when he is aware of but consciously disregards a substantial and unjusti f ia ble ris k that the circumstances exist o r the result will occur. The risk must be of such a n ature and degree that its disregard constitutes a gross de viation from the standard of care that an ordinary person would exercise under all the circumstances a s v iewed f r om the actor ’ s standpoint.
T E X
. P ENAL C ODE A NN
. § 6.0 3 (c)

.8

been knocked to the pa vement and been s erious ly hurt. Willis was placed i n real, no t hypothetical, danger by Simmons ’ s reckless driving. While Simmons did not run a red light or drive through ditches, that was just a fortuitous circumsta nce. A rational jury could hav e found that the manner in whi ch Simmons drove his car was capable of causing serious bodily injury to Willis. See Moore , 520 S.W.3d at 913 ( “ We conclude
t hat a rat ional fact

- finder could in fer that Appellant was using hi s motor vehicle in this case i n a

manne r that was capabl e of causing death or serious bodi ly injury, even though it did not do so, and regardless of whether he intended it to. It does not a mount to speculation for us to concl ude that there was more than ‘ a hypothetical potential for da nger if o thers had been p resent

. ’ ” ( q uoting Mann , 13 S.W.3d at 92) )

. We ov errule Simmons ’ s sole point of error and affirm the trial court ’ s judgment

.

Jo s h R. Morr iss, III Chief Justice
Date S ubmitted: November 7, 2 022 Date Decided: December 7, 2022 Do Not Publish