Affirmed; Opinion Filed July 27, 2018.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-16-01359-CR

MAC A. DEGRAFFINRIED, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 86th Judicial District Court

Kaufman County, Texas

Trial Court Cause No. 15050738-86-F

MEMORANDUM OPINION

Before Justices Lang, Myers, and Stoddart.

Opinion by Justice Lang

 Following a plea of not guilty, appellant Mac A. Degraffinried (“Degraffinried”) was 

convicted by a jury of evading arrest or detention while using a motor vehicle. The jury also 

answered “yes” to the special issue that Degraffinried used or exhibited a deadly weapon while 

evading arrest. The trial court assessed punishment of 45 years’ incarceration. 

In three issues on appeal, Degraffinried asserts (1) “[t]he evidence is insufficient that 

[a]ppellant used or exhibited a firearm during the commission of evading arrest while using a 

vehicle,” (2) “[t]he trial court erred when it denied [a]ppellant’s requested jury charge,” and (3) 

“[a]ppellant’s right to confront the witnesses against him was violated when the trial court 

considered the PSI at punishment.” We decide against Degraffinried on all issues. The trial court’s

judgment is affirmed. 
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I. Factual and Procedural Background 

The indictment alleged in part that “on or about” October 21, 2015, Degraffinried “did then 

and there, while using a vehicle, intentionally flee from Officer Steve Johns, a person the defendant 

knew was a peace officer who was attempting lawfully to arrest or detain the defendant.” 

At trial, the State presented the testimony of James Lyons and Joe Paul Hobbs, both 

sergeants with the Terrell Police Department. Lyons testified that around 4:00 a.m. on October 31, 

2015, he was dispatched to the home of Degraffinried’s estranged wife in order to arrest 

Degraffinried. During his shift, Lyons was unable to locate Degraffinried. However, Lyons 

returned to Degraffinried’s estranged wife’s home after his shift in “an unmarked vehicle” “to 

maintain observation.” While observing, Lyons saw Degraffinried come “out of the bushes by [a] 

vehicle,” “get into the driver seat” of a car, and drive “southbound past [Lyons].” In his unmarked 

vehicle, Lyons “tried to follow along behind and keep sight of Degraffinried while radioing to the 

other units that [he] had [Degraffinried] in sight” and “[t]hey needed to come get a marked unit up 

there.” Lyons continued to follow Degraffinried until he was joined by Officer Johns and Sergeant 

Hobbs who “moved in to make a stop” of Degraffinried. However, when Officer Johns and 

Sergeant Hobbs “attempted to make a stop on [Degraffinried’s] vehicle, [the vehicle] did not 

yield.” 

Hobbs testified that when he “caught up to [Degraffinried],” he “activated [his] emergency 

lights” and started to follow Degraffinried’s vehicle. Hobbs followed Degraffinried along various 

roads and highways where Degraffinried “reached speeds of approximately 80 to 90 miles [per] 

hour” before Degraffinried eventually returned to his estranged wife’s home. Degraffinried then 

got out of his vehicle and “headed to the side door” of the home. At that point, it was “obvious to 

[Hobbs] that [Degraffinried] was holding something in his hand.” Hobbs “[came] up to the front 

left side of [Degraffinried’s] vehicle” where he “could see down the side of the house and [he] 
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could see that [Degraffinried] was kicking the door and he had a handgun in his hand.” Hobbs then 

told Degraffinried to “drop the gun” and “get [his] hands up,” but Degraffinried did neither. Hobbs 

“felt like [Degraffinried] was intent on getting inside the residence to do harm to the people inside 

at which point [Hobbs] began firing at [Degraffinried] with [his] rifle.” Degraffinried then “went 

over [a] fence around the corner” where Hobbs could “see [Degraffinried] at the back door still 

actively trying to get into the residence.” Hobbs then “fired one more time and [Degraffinried] fell 

to the ground.” Degraffinried was then arrested. 

II. Deadly Weapon Finding

A. Standard of Review

We review a challenge to the sufficiency of the evidence under the standard set out in 

Jackson v. Virginia, 443 U.S. 307 (1979). Evidence is sufficient to support a conviction if, “after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 

319. The Jackson standard is the “only standard that a reviewing court should apply in determining 

whether the evidence is sufficient to support each element of a criminal offense that the State is 

required to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. 

App. 2010) (plurality op.). We “determine whether the necessary inferences are reasonable based 

upon the combined and cumulative force of all the 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). 

We are mindful that “[t]he trier of fact is the sole judge of the weight and credibility of the 

evidence.” Sartain v. State, 228 S.W.3d 416, 424 (Tex. App.—Fort Worth 2007, pet. ref'd). We 

give “full play to the responsibility of the trier of fact to fairly resolve conflicts in testimony, to 

weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 

443 U.S. at 319. “Circumstantial evidence is as probative as direct evidence in establishing the 
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guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper v. 

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). “When the record supports conflicting inferences, 

we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that 

determination.” Dobbs v. State, 434 S.W.3d 166, 169 (Tex. Crim. App. 2014). “Each fact need not 

point directly and independently to the guilt of the appellant, as long as the cumulative force of all 

the incriminating circumstances is sufficient to support the conviction.” Id. 

B. Applicable Law

Section 38.04(a) of the Texas Penal Code provides that “[a] person commits an offense if 

he intentionally flees from a person he knows is a peace officer or federal special investigator 

attempting lawfully to arrest or detain him.” TEX. PENAL CODE §38.04(a). The offense of evading 

arrest is a “continuous offense.” Hobbs v. State, 175 S.W.3d 777, 778 (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 actual danger.” Drichas v. State, 175 S.W.3d 

795, 798 (Tex. Crim. App. 2005). 

“Used” a deadly weapon during the commission of a felony offense “means that the deadly 

weapon was employed or utilized in order to achieve its purpose.” Patterson v. State, 769 S.W.2d 

938, 941 (Tex. Crim. App. 1989). “A deadly weapon may be ‘used’ even if it is merely possessed, 

if that possession facilitates the associated felony offense.” Smith v. State, 176 S.W.3d 907, 919 

(Tex. App.—Dallas 2005, pet. ref'd) quoting Patterson v. State, 769 S.W.2d at 941. “’Exhibited’ 

a deadly weapon means the weapon was “consciously displayed” during the commission of the 

offense.” Id. A firearm is “per se a deadly weapon.” Ex parte Campbell, 716 S.W.2d 523 (Tex. 

Crim. App. 1986).
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C. Application of the Law to the Facts

Degraffinried contends the evidence is “insufficient” to prove Degraffinried “used or 

exhibited” a firearm “during the commission of the evading arrest [sic] while using a vehicle.” 

Specifically, Degraffinried argues (1) Hobbs testified he “didn’t observe a handgun to be in 

[Degraffinried’s] possession until [Degraffinried] was out of his vehicle and had commenced to 

kicking the door” of his estranged wife’s home, (2) “the handgun wasn’t even in [Degraffinried’s] 

hand when he was finally apprehended”, and (3) “none of the evidence...even hints...that anyone 

was ever [sic] placed in danger by the use or exhibition of the firearm.” We cannot agree with 

Degraffinried. 

The offense of evading arrest while using a vehicle is a continuing offense. See Smith v. 

State, 483 S.W.3d 648 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Therefore, it was not 

necessary for Hobbs to observe the handgun while Degraffinried was in the vehicle as Hobbs 

testified he saw Degraffinried holding a handgun after he left the vehicle and before he was 

arrested. See id. at n.6 (“abandoning one's vehicle during a police chase and continuing on foot is 

a continuation of evading in a vehicle.”).

Further, there is no requirement that a handgun be in a defendant’s hand when he is 

apprehended in order for the defendant to “use or exhibit” a deadly weapon. A deadly weapon is 

“used” when its possession “facilitates [an] associated felony offense.” See Smith, 176 S.W.3d at 

919 quoting Patterson v. State, 769 S.W.2d at 941. A deadly weapon is “exhibited” when it is 

“consciously displayed” during the commission of an offense. Id. In this case, Hobbs testified he 

saw Degraffinried holding a handgun and “actively” trying to “get into the residence” even after 

Hobbs told him to “drop the gun” and “get [his] hands up.”
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Finally, Degraffinried contends there is no evidence that “even hints” anyone was placed 

in danger. However, Hobbs testified that when Degraffinried was holding the handgun, he “felt 

like [Degraffinried] was intent on getting inside the residence to do harm to the people inside.”

On this record, we conclude a rational trier of fact could find beyond a reasonable doubt 

that Degraffinried used or exhibited a deadly weapon during the commission of evading arrest 

while using a vehicle. We decide against Degraffinried on his first issue.

III. Jury Charge 

A. Standard of Review 

We review alleged jury charge error in two steps. Kirsch v. State, 357 S.W.3d 645, 649 

(Tex. Crim. App. 2012). First, we determine whether error exists in the charge. Id. at 649. Second, 

if charge error exists, we review the record to determine whether the error caused sufficient harm 

to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005). Where, as 

here, error is properly preserved by a timely objection to the charge, reversal is required only if 

the error was “calculated to injure the rights of the defendant,” which has been defined to mean 

that there is “some harm” caused to the defendant. Almanza v. State, 686 S.W.2d 157, 171 (Tex. 

Crim. App. 1985). In analyzing harm, we consider “the entire jury charge, the state of the evidence, 

including the contested issues and weight of probative evidence, the argument of counsel and any 

other relevant information revealed by the record of the trial as a whole.” Id. at 171. The defendant 

must have suffered “actual rather than theoretical harm.” Cosio v. State, 353 S.W.3d 766, 777 

(Tex. Crim. App. 2011). 

B. Applicable Law

“Under the Texas Constitution, a jury verdict in a felony case is required to be unanimous, 

and under our state statutes, unanimity is required in all criminal cases.” Ngo v. State, 175 S.W.3d 

at 745. “Unanimity in this context means that each and every juror agrees that the defendant 
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committed the same, single, specific criminal act.” Id. “The requirement of jury unanimity is not 

violated by a jury charge that presents the jury with the option of choosing among various 

alternative manner and means of committing the same statutorily defined offense.” Jourdan v. 

State, 428 S.W.3d 86, 94 (Tex. Crim. App. 2014). 

C. Application of the Law to the Facts

The trial court submitted a single special issue that instructed the jury that it must 

“determine beyond a reasonable doubt whether or not [Degraffinried] used or exhibited a deadly 

weapon, to-wit, a motor vehicle and/or firearm, during the commission of the offense.” During the 

charge conference at the guilt-innocence stage of the trial, Degraffinried’s counsel objected to the 

deadly weapon special issue being “presented to the jury as one special issue” and requested the 

trial court submit two special issues, one for the motor vehicle and one for the firearm. The trial 

court overruled the objection. 

Degraffinried contends “the trial court erred when it denied [Degraffinried’s] requested 

jury charge” because “combining the [deadly weapons] into one issue might lead to a nonunanimous verdict.” We disagree. The jury may be “charged in the disjunctive” for “differing 

methods of committing [an offense].” Kitchens v. State, 823 S.W.2d 256, 259 (Tex. Crim. App. 

1991). Therefore, it was not necessary for the jurors to unanimously agree whether the deadly 

weapon was a motor vehicle or a firearm. See Marinos v. State, 186 S.W.3d 167 (Tex. App.—

Austin 2006, pet. ref’d) (“[i]t was not necessary for the jurors to [unanimously] agree whether the 

weapon was a bag, a piece of bag, or appellant's hand.”). The trial court did not err in submitting 

a single deadly weapon special issue. We decide against Degraffinried on his second issue.
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IV. Pre-Sentencing Investigation Report

A. Applicable Law

“A [pre-sentencing investigation report] is used in all non-capital felony cases when 

community supervision is an option and the judge is assessing punishment but does not intend to 

follow a plea-bargain agreement under which the defendant has agreed to imprisonment.” Stringer 

v. State, 309 S.W.3d 42, 45 (Tex. Crim. App. 2010). “The judge must order a PSI unless the 

defendant requests that one not be made and the judge agrees, or the judge determines that there 

is sufficient information in the record to permit sentencing discretion and explains his reasoning 

on the record.” Id. “[W]hen a PSI is used in a non-capital case in which the defendant has elected 

to have the judge determine sentencing” the Confrontation Clause does not apply. Id. at 48.

B. Application of the Law to the Facts 

During the punishment phase of the trial, a pre-sentencing investigation report (“PSI”) 

respecting Degraffinried was submitted as evidence for the trial court’s consideration. The State

offered the PSI based upon the testimony of a probation officer supervisor who approved the 

report. The probation officer who compiled the report had resigned from the probation department. 

Prior to the admission of the PSI, Degraffinried’s counsel objected to its admission “under 

Crawford” because the defense would not have “the opportunity to cross-examine the actual officer 

that conducted the interview and subsequently the report.” The objection was overruled, and the 

trial court granted Degraffinried’s counsel’s request for a “running objection” regarding the PSI. 

On appeal, Degraffinried argues the State “presented the testimony of the supervisor who 

had merely ‘approved’ the PSI” and therefore his “right to confront the witnesses against him was 

violated when the trial court considered the PSI at punishment.” We disagree. When a sentence is 

determined by the trial court, the information in a PSI is not subject to the Confrontation Clause. 

See Stringer v. State, 309 S.W.3d at 48. We decide against Degraffinried on his third issue.
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V. Conclusion 

We decide against Degraffinried on his first, second, and third issue. The trial court’s 

judgment is affirmed. 

 /Douglas S. Lang/

DOUGLAS S. LANG 

JUSTICE 

Do Not Publish

TEX. R. APP. P. 47.2

161359F.U05
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

MAC A. DEGRAFFINRIED, Appellant

No. 05-16-01359-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 86th Judicial District 

Court, Kaufman County, Texas

Trial Court Cause No. 15050738-86-F.

Opinion delivered by Justice Lang. Justices 

Myers and Stoddart participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED.

Judgment entered this 27th day of July, 2018.