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

No. 06

- 21

- 00052

- CR

ZAFRES LAMONN MCDONALD , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 50096

- A

B efore Morriss, C.J., Stevens and Carter , * JJ. Memorandum Opinion by Chief Justice Morriss

__________________________________________ *Jack Carter, Justice, Retired, Sitting by Assignment2 

### ME MORANDUM OPINION
Zafres Lamon n McDonald entered an open plea o f guilty to evading arrest or detention with a motor vehicle and pled true to the State’s punishment

- enhancement allegations. See T EX
. P ENAL C ODE A NN
. § 38. 0 4(b)(2)(A ). After making an affirmative deadly weapon finding, the trial court sentenced McDo na l d to thirty

- four years’ imprisonment. On appeal, McDonald argues that the trial court erred by failing to enforce an alleged plea agreement and that the deadly weapon finding i s not supported by legally sufficient evidence. 1 We find that (1) the tri al co urt properly concluded that there was no binding plea agreement and (2) legally sufficient evidence supports the deadly weapon finding , but that (3) we must modify the trial court’s judgment to reflect the proper degree of offense. As a result, we modif y the t rial court’s judgment to reflect that McDonald was convicted of a third

- degree felony and affirm the trial court’s judgment , as modified

. (1) The Trial Court Properly Concluded that t here Was No Binding Plea Agreement The record shows that th e St a te i nitial ly wished to make a global offer to resolve several charges against McDonald

. 2 On March 17, 2021, the State filed its notice of intent to seek an affirmative deadly weapon finding on this charge of evading arrest or detention . In addition to th is case, the State alleged that McDonald had committed unauthorized use of a motor vehicle, credit card abuse, and other miscellaneous offenses , including resisting arrest, two counts of

1 In companion c au se s number ed 06

- 21

- 00053

- CR, 06

- 21

- 000 54

- CR, and 06

- 21

- 00055

- CR, McDonald ap peals his convicti ons of unauthorized use of a motor vehicle, credit card abuse, and evading arrest or detention with a motor vehicle , respectivel y .
2 T he indictment here contained punishment

- enhancement allegations t hat McDonald was previously convicted of felony offenses of unauthorized use of a motor vehicle and aggravated robbery.3

failure to identify, possession of less than two o unces of a p e nalty g rou p 2 su bst ance, tampering with evidence, and silent or abusive calls to a 9

- 1

- 1 service

. The record also shows that the State was informed of a second charge for evading arrest or detention with a motor vehicle, which had not yet been indicted

. 3 McDon ald argues th at the trial court erred by failing to find the existence of a plea agreement
. After a series of hearings, t he trial court concluded that no plea agreement had been reached b ecause the State represented that (1) the offer was made with the as sumpt ion that McDonald would agree to the deadly weapon finding and (2) t he second evading

- arrest charge was not included in the offer because the State mistakenly believed it was contained o n McDonald’s list of charges due to a “cleri cal error.” We exami ne the his tory of the case for a better understanding of the parties’ arguments and the trial court’s ruling.

a. Procedural H istory On March 18, the day after the State filed its not ice of intent to seek an affirmative deadly weapon fin ding in this case, the trial co urt held a st atus hearing in which the State represented that it had “made an offer of 15 years” for all pending charges. The State announced that the offer wo uld expire that day if not accepted and that it was going to be s eeking a deadly weapo n finding

. The State expla ined , “ [ I] f and when the trial occurs and [McDonald]’s found guilty [,]

. . . he would have to serve at least half his time in [ the Texas Department of C riminal Justice ] bef

ore he’d be eligible for parole.” McDonald’s counsel conf i rmed that he had conveyed the offer to McDonald, who rejecte d it because he had “ never really been on board with pleading to anything other than 24 months state jail on these charges.” Even so,

3 McDonald was convicted of this second evading arrest or detentio n c h arge and appeal s that conviction in our cause number 06

- 21

- 0005 5

- CR.4

McDonald’s cou nsel clarified that he had not informed McDona ld that the State was seeking a deadly we apon finding

. Th e trial court asked if McDonald wanted to take the offer, but he responded, “I have rejected that offer already, sir and I

. . . want three trials.” The State then

an nounce d that it was “ officially rescinding its offer.” After further discussi ons at the same hearing, the State notified McDonald that, because of the habitual

- offender allegations, McDonald’s m inimum punishment was twenty

- five years should he ch oose to go to trial. It then said that i t would “ keep tha t offer on t he table ” until M cDonald could have additional discussions with his attorney , without further specifying whether the plea offer would require McDonald to agree to a deadly weapon findin g . After a break, McDonald’s counsel anno unced t hat McDonald had acce pted the offer

. Y et, w hen McDonald asked if the State would still seek a deadly weapon finding, the State clarified that

“ the deadly weapon stays,” at which point McDonald said, “ I ain’t pleading to no deadly
weapon , ” and in dic ated his preference to go to trial. The State then said, “Your Honor, offer off the table, trial.” At a March 24 status hearing, the State again anno unced that there was no plea agreement and that it s offer had been withdrawn. McDonald’s counsel then sa id,

One of the t h ings that w e wanted to go ahe ad and make a record on was at the last meeting, the State had made an offer of 15 years. Mr. McDonald accepted it

. It fell apart because Mr. McDonald believed, and so did I, that the 15 years did not inclu de an affirmative finding of d eadly weapon. We are still

— we accepted that offer. We stand ready to accept that offer right now.5 And we believe th at the State then changed the offer to i nclude a deadly weapon finding, and we want to hold the State to their original offer of 15 yea rs without a findi ng of deadly weapon. The State responded by arguing that , although it had not specifically addresse d the deadly weapon finding in conveying its offer, it was a required term of the offer’s acceptance because the notice of intent to see k a deadly weapon wa s filed before the first status hearing. The State also argued that, while it originally believed the second evading

- arrest charg e was a “clerical error,” it had since discovered that McDonald had evaded arr e st or detention two days a fter committing the o ffense in this case . As a result, t he State was not prepared to offer a fifteen

year - sentencing recommendation to resolve all of McDonald’s pending cases. On April 15 , McDonald filed a motion to enforce a plea agreement

. Because t he State had represen ted that it woul d be seeking an affirmative deadly weapon finding “when the trial

occur [ r ed] ,” M cDonald’s counsel argued that a plea bargain would remove the need for trial and represented that, as a result, t he State’s original offer had not required McDonald to accept the d eadly weapon finding

. After hearing further argument, the trial court foun d that there was no meeting of the mi nds related to the plea offer. As a result, the trial court overruled McDon a ld’s motion to enforce a plea agreement. On Apri l 16, McDonald entered an open plea of guilty to this offense and the offenses at issue in our companion cases after being admo nished in writing that he was entering a “non

negotiated plea.” McDonald als o entered pleas of true to th e State’s enhancement allegations and pleas in bar to the other miscellaneous offenses. McDonald represe nted that his plea s were made “without any co ercion, duress or promise of benefit other than that stated in the plea6

barga i n agreement.” The trial cou rt accepted McDonald’s pleas ; found him guilty of two counts of evading arrest or detention, one count of unauthorized use of a motor vehicle, and one count of credi t card abus e ; and set the date for a punishment hearing. b. Anal

y sis “A plea agreement is a three

- party contractual arr angement among the Sta te, the defendant, and the trial court.” Becerra v. State , No. 07

- 17

- 00169

- CR, 2018 WL 5289713, at *2 (Te x. App.

— Amarillo Oct. 24, 2018, pet

. ref’d) (mem. op., not designated for publication )

. 4 It “consists of three parts: a plea of guilty, the consideration for it, and the approval by the court o f the ag reement
. ” In re Duffey , 459 S.W.3d 216, 221 (Tex. App.

— Texarkana 2015, orig

. proceeding) (quoting Ortiz v. State , 885 S.W.2d 2 71, 273 (Tex. App.

— Corpus Christi 1994), aff’d , 933 S.W.2d 102 (Tex. Crim. App. 1996)). “ [ T ]he bar gain is the considerati on exch anged to the defendant for the plea of guilty.” Id. (quoting Ortiz , 885 S.W. 2 d at 273)

. “Finalizing a plea agreement involv e s two steps.” Id. at 222. “First, the defendant and the State reach an agreement; when the defend ant enters his plea to the tri al court, the agreement is binding on both parties only.” Id. “Second, the t rial court must accept or reject the recommended punishment; if the court accepts the recommended punishment, the plea agreement becomes binding upo n both parties and the court.” Id. “Conversely, if the trial court

4 “Although unpublished cases h ave no precedentia l value, we may take guidance from them ‘as an aid in developing reasoning that may be employed.’” Rhymes v. State , 536 S.W.3d 85, 99 n. 9 (Tex. App

. — Texarkana 2017, pet. ref’d) (quoting Carrillo v. S tate , 98 S.W.3d 789, 794 (Tex. App.

— Am aril lo 2003, pet. ref’d)).7

rejects the punishment recommendation, the defendant may withdraw his guilty plea, and n either party is bound by the plea agreement.” Id

. 5 “[A] defendant has no right to demand that the State enter into a plea bargai n.” DeRusse v. State , 579 S.W.2d 224, 236 (Tex. Crim. App. 1979). “Only the state may offer or withdraw a plea bargain.” Mo o re v. State , 295 S.W.3d 329, 332 (Tex. Crim. App. 2009). Because, under the first step, “a plea

- ba rgain agreement is sole ly betw een the state and the defendant, only the state and the defendant ma y alter t he terms of the agreement.” Id. McDonald’s argu m ents appear to suggest that an agreement was reached between him and the State, but , under the firs t step, t he “agreement becomes binding [only] when the defendant enters his plea. ” Zapata v. Stat e , 121 S. W.3d 66, 6 9 (Tex. App.

— San Antonio 2003, pet. ref ’ d). Only at that point , “ both the State and the defendant are bound by the terms of the plea barga in agreement and are no t permi tted to take actions inconsistent with the agreement.” Id. As a result, it is only “after the judge has accepted a plea barg a in in open court ” that “ a defendant has a right to enforce the state ’ s part of the plea bargain.” Ex parte Cox , 482 S.W.3 d 112, 116

– 17 (Tex. Crim. App. 2016) . In other words, “ [t] he State is permitted to withdraw a plea offer even after it has been acce p ted by a defendant so long as the plea has not yet been entered and the defendant has not otherwise been harmed by relianc e on th e agreement.” Becerra , 2018 WL 5289713, at *2 (citing DeRusse , 579 S.W.2d at 236); see Moore , 295 S.W.3d

5 Under this second step, the agreement is not binding “[u]ntil all of the necessary parties agree to the terms of the contrac t.” In re Du

ffey , 459 S.W.3d at 221 (quoting Ortiz v. State , 933 S.W.2 d 102, 104 (Tex. Crim. App. 1996)). S o, “ [i]n ord er for the contract to be binding, the trial judge must approve and accept both aspects of [the plea bargain].” Id. at 221

– 22.8

at 332 ( “If the tria l court accepts a plea

- bargain agreement, the state may not withdraw its offer.” ). This is because when an “agreement [i] s withdr awn prior to the entry of appellant’s plea,” the appellant is “in the same po sition he would have been in had no a greement bee n made[] or had the trial court indicated that it would not follow the agreement.” DeRus se , 579 S.W .2d at 236. Here, the record established that McDonald had not entered any plea before seeking to enforce the State’s offer. In fact, during several of t h e hearings discussed above, McDonald repeatedly said that he was not guilty of the offenses a nd that he felt as if he was being f orced to plea d guilty out of fear

. The record established some confusion as to the terms of the State’s offer , but , even had t here been a meeting of the minds, the State was permitted to and did withdraw the offer before McDona ld’s plea. Because there wa s no binding agreement between McDonald and the State, we find that the trial court properly overruled M cDonald’s motion to

en f orce a plea agreement. We overrule t his point of error. (2) Legally Sufficient Evidence Supports the Deadly Wea pon Finding The e vidence at trial showed that McDonald used a motor vehicle as a deadly weapon

. Kiefer Bounds, a trooper with the Texas Depart m ent of Public Safety, testified about the high

speed chase that resulted in McDonald’s charge in this case. Bou nds testifie d tha t, while driving on the highway, he found a vehicle stopped on the right s houlder and decided to pull over to offer his assist a nce, if needed. He contacted McDonald, the driver and sole occupant of the vehicle, who said that he had pul led o ver to use h is cell phone

. Bounds returned to his marked9

patrol unit, reported the licen se plate of the vehicle, and discovered that it had b een stolen. Bounds reapproached McDonald to identify him. The video of t he encounter showed that, while Bo unds was leaned i nto the opened
passenger - side window, McDonald began driving away on the sho ulder of the highway. B ound s testified that he felt h e was in danger of being hit by the vehicle

. He returned to his patrol car and began to chase McDona ld. Bou nds said, a nd the video showed, that , although it was late a t night, there were other ve hicles on the road. On video and at trial, Bounds reporte d that McDonald was travelling at speeds as high as 100 to 105 miles per hour. Bounds testified that h is train ing and ex perience had taught him that a vehicle can be used as a deadly weapon and tha t a vehicle driving 100 miles an hour on a highway is pote n tially dangerous

. The video showed that McDonald wove in and out of his lane while on the interstate , exited t he inters tate by traversing a ramp at a high rate of speed, ran through a stop sign at an intersectio n , and failed to yield to an approaching v e hicle, missing it by a few seconds. After driving through the intersection, McDonald continued to speed down a side road , but realized that his path was blocked by a passing train. McDonald swerved into the grass, made a U

- turn , and continued to evade B o unds at a high rate of speed while driving in the middle of both a northbound and southbound lane. McD onald th en drove for several second s in the opposite lane

o f travel, made a left turn onto a la ne that was also blocked by the passing train, and made

a n other U

- turn , narrowly avoiding Bounds’s patrol unit

. Flying through other stop signs, McDonald raced through another l eft turn at an intersect ion of a highway after failing to st op for an oncoming car. While speeding on a highway bridge , McDonald enter e d the wrong lane of10

travel to avoid hitting a car in front of him and returned to the correct lane of t ravel to avoid a collision with an oncoming vehicle. Just after Bounds repor ted that the chase was reaching speeds of 105 miles per hour, McDonald abru p tly exited the highway, t raveled into a steep ditch, hit a barrier, drove into the woods, and crashed into a t ree. Even so, Bounds was able to escape on foot. Bounds testified that McDonald used the vehicle as a deadly weapon , especially when traveling in the wrong lane of travel and passing the vehicle on the highway bridge ; Bounds expressed concern t hat McDo nald would have a collision that could hurt someone

. He added that M cDonald ’s conduct was consistent with a reckless disregard for human life

. B o unds’ s written report, which was introduced into evidence, stated that McDonald was driving erratic al ly by tr aversing wrong lanes of travel, driving in the middle of two lanes, r unning a st op sign, going at speeds of 105 miles per hour, passing vehicles i n a no - passing zone, leaving the roadway, contacting a concrete barrier, and striking a tree. The t ria l court recited several reasons why it found McDonald’s driving to be erratic

. It found that McDonald had used the stolen vehicle as a deadly weapon afte r stating, “ In fact, one time you passed on a bridge, which if there had been ano ther car coming yo u c ould hav e hurt somebody, seriously injured them, killed yourself, killed some body else.” McDonald argues that the evidence was legally insufficient to su p port the trial court’s finding that he used a motor vehicle as a deadl y weapon. In evaluating McD ona ld’s com plaint, 6 “we must decide whether, in viewing the evidence in the ligh t most favorable to the verdict, a

6 Boun ds d oes not a rgue that the evidence is insufficient to establish the of fense of evading arrest or detention w ith a motor vehicle.11

rational trier of fact could have found be y ond a reasonable doubt that [McDonald] used or exhibited [a motor vehicle] as a deadly weapon when he was [ev ading arr est].” Sierra v. State , 280 S.W.3d 250, 255 (Tex. Crim. App . 2009) (citing Cates v. State , 102 S.W.3d 735, 738 (Tex. Crim. App. 2003)). “We examine legal sufficiency under the direction of the Brooks opinion, while giving deference t o th e respo nsibility of the [fact finder] ‘to fairly resolve conflicts in testim ony, to weigh the evidence, and to draw reasonable inferences from basic fact s to ultimate facts.’” Williamson v. State , 589 S.W.3d 292, 297 (Tex. App.

— Texarkana 2019, pet. re f’d) (quoti ng Hooper v . State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing J ackson v. Virginia , 443 U.S. 307, 318

– 19 (1979); Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007))) ; s ee Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010 ) (plur ality op.)

. To address McDonald’s arguments, w e examine “the manner in wh ich the defendant used the motor vehicle during” the offense and consider whether “ t he motor vehicle was capable of causing death or serious bodily injury” during the offense. Sierra , 280 S.W.3d at 255 (citing Drichas v. State , 175 S.W.3d 795, 798 (Tex. C rim. App. 2005) ). A deadly weapon finding may be sustained only if there is “evide n ce that others were actually endangered, not ‘merely a hypothetical potential for danger if others had b een presen t.’” Cates , 102 S.W.3d 738 (quoting Mann v. State , 13 S. W.3d 89, 92 (Tex. App.

— Austin 2000), adopted by Mann v. State , 58 S.W.3d 132 (Tex. C r im. App. 2001 )); see Brister v. State , 449 S.W.3d 490, 494 (Te x. Crim. App. 2 014).12

In con sidering the manner in which a defendant used his vehicle, we determine whether his or her manner of driving was reckless or dangerous. Sierra , 280 S.W.3d at 255 ( c iting Drichas , 175 S.W.3d at 798; Cates , 102 S.W.3d at 738

– 39)

. Driving has been held to b e reckless or dangerous when the defendant (1) lost control of the vehicle, (2) caused or almost caused an accident, (3) disregarded traffic signals and signs, (4) c aused a high

- speed chase, or (5) drove erratically. See id

. Here, the trial court found, and the evid ence showed , that McDonald lost control of the vehicle and crashed into a tree. He narrowly avoided several cars during the chase, including when he p a ssed the car in front of him on a highway bridge by traveling into oncom ing traffic and then having to return to the correct lane to avoid a collision. McDonald disrega rd ed stop signs, yield signs, and the posted speed limit ; engaged in a high

- speed chas e ; and drove erratically by leaving the roadway and traveling in two opp o sing lanes at the same time. We find that the evidence shows that McDonald drove the vehicle in a reckless and dangerous manner. We next consider whether the manner of his use of th e vehicle was capable of causing serious injury or death such that other people were placed in actual d anger. While “the danger posed to motorists must be actual, and n ot simply hypothetical, the statute itself does not require pursuing police officers or other motorists to be in a zone of danger, take evasive acti on, or requ i re appellant to intentionally strike another vehicle to justify a deadly weapon finding.” Drich as , 175 S.W.3d at 799. “[A] deadly weapon finding is appropriate on a sufficient showi n g of actual danger, such as evidence that another motorist w as on the h i ghway at the same time and pla ce as the defendant when the defendant drove in a dangerous manner .” Id.13

The record in this case establishes that motorists were on the highway when Mc D onald drove in a dangerous manner. The video shows that the re were oth e r vehicles on the interstate

w hen McDonald initiated the high

- speed chase. Early into the c h ase , McDonald failed to yield to an approaching vehicle and missed it only by a few second s . He later sp ed through a highway intersection after failing t o stop for an oncoming car. While speedi ng on a highway bridge, McDonald entered the wrong lane of travel to avoid hitting the car in front of him and returned to the correct lane of travel t o avoid c olli ding with an oncoming vehicle. As in Drichas , w e find that the evidence was sufficien t for the trial court to find, beyond a reaso nable doubt, that McDonald used the vehicle as a deadly weapon while evading arrest. Because the trial court’s deadly weapon finding was supported by sufficient evidence, w e overrule this point of error. (3) We Must Modify the Trial Court’s Judgment t o Reflect the Proper Degree of Offense McDonald’s judgment lists the degree of offense as a first

- degree felony, b ut McDonald’s charge for evading arrest or detention with a motor vehicle was a third

- degree fel ony. See T EX
. P ENAL C ODE A NN
. § 38.04(b)(2)( A). As a result of the State’ s habitual

offender punishment

- enhancement allegations, McDonald’s offense was punis h able “by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more tha n 99 years or less than 25 years. ” T EX
. P ENAL C ODE A NN
. § 12.42(d). While the enhancement allegations were used to elevate McDonald’s punishment r a nge, they did not change the classification of the evadin g arrest or detention offense. See id. ; Ford v. S tate , 334 S.W.3d 230, 234

– 35 (Tex . Crim. App. 2011); Bledsoe v. State , 480 S.W.3d 638, 643 (Tex.14

App.

— Texarkana 2015, pet. ref’d). As a result, the judgment’s recitation that McDonald’s offense was a first

- degr ee felony is incorrect. “This Court h as the power to correct and modif y the judgment of the trial court for

accu racy when the necessary data and information are part of the record.” Anthony v

. State , 531 S.W.3d 739, 743 (Tex. App.

— Texarkana 2 016, no pet. ) (citing T EX
. R. A PP
. P. 43.2(b); Big ley v. State , 865 S.W.2d 26, 27 ( Tex. Crim. App. 1993); Asberry v. State , 8 13 S.W.2d 526, 529 (Tex. App.

— Dallas 1991, pet. ref’d)). “The authority of an a p pellate court to reform incorrect judgments is not dependent u pon the request of any party, nor does it turn on the question of wheth er a party has or has not objected in the trial court.” Id. (quoting Asberry , 813 S.W.2d at 529

– 30). We modify the tria l court’s judgment to reflect that McDonald was con victed of a t hird

degree felony . As modified, the judgment is affirmed

.

Josh R. Morriss, III Chief Justice Date Submitted: January 10 , 2022 Date Decided: March 2 , 2022 Do Not Publish