Opinion filed No vember 5, 2009



### In The 

# Eleven th Court of Appeals

__________ 

### No. 1 1- 07 -0 03 58 -CR

____ ____ LARRY DA LE SM ITH, Ap pellant

V.
STA TE OF TEX AS , A ppellee

On App eal from the 35th Distric t Court Brown County, Texas Trial Court Cause No. CR 18783

M E M O R

A N D U M O P I N I O N L arr y Dale Smith a

ppeals his c onviction by a jury of the offe nse of evadingarr est, following his plea of guilty

to that offe nse. The jury found t hat he used or exhibi ted a deadly wea pon in the

c o m m i s s i o no f

t h e o f f e n s e
. S m i t h h a d p l e a d e d n o t g u i l t y t o t h e d e a d l y w e a p o na l l e g a t i o n
. T h e j u r

y, finding that Smit h had a pr ior conviction as a lleg ed, asse ssed his punishment at twenty y ear s in the Texas Depar

tment of Criminal Justi ce, I nstitut ional Division. Smit h contends in a single point on

a pp e a l th a t th e e vid e nc e is f a c tua lly ins uf fi c ie nt t o s up po rt

his c on vic tio n. We a ff

ir m. I n order to determine if the evidenc e is fac tually sufficie nt, the appellate court re views all of the evidenc e in a ne utral lig ht. W a t s o n v . Stat e , 2 0 4 S.W .3d 404, 414 (Tex. Crim. App. 2006) (o ve rr uli ngin p art Zun iga v . S

tat e , 14 4 S.W. 3d 47 7 (T e x. Cr im. Ap p. 20 04 )) ; J oh ns on v . S

tat e , 23 S.W. 3d 1, 10 -1 1 (T e x. Cr im. Ap p. 20 00 ); Cai n v . S tat e , 958 S.W .2d 404, 407-08 (Te x . Crim. App.2

19 97 ); Cle wis v . S

tat e , 922 S.W .2d 126, 129 (Tex. Crim. App. 1996). Then, t h e re viewing court deter mines whether the evidenc e supporting the verdic t is so weak that the ver dict is clear ly wrong
an d m an i festly

unjust or whether

the ver dict is ag ainst the g reat weig ht and pre pondera nce of the conflicting evidenc e. W

atson , 2 04 S.W. 3d

a t 41 4- 15 ; Johnson , 23 S.W .3d at 10-11. J ohn C. Harpe r testified that he is a lieutenant in the B rownwood Po l i ce De p artment. He indicated that on De cembe r 17, 2006, he noticed a g old Mercur y Marquis. He said he followe d the vehicle and noticed that it wa s chang ing from the rig ht la ne to the left lane and the turn lane without signa ling a

ny of the maneuvers. He indicated t hat at 1:30 to 2:00 p.m. on a Sunday afte rnoon, whe n this incident occurr ed, ther e wa s quite a bi t of t raf fic on the roadway . After he dec ided to stop the vehicle be cause of its failure to sig nal its turns, he turned o n h i s lights and move d in front of the

ve hic le . Rathe r t

ha n s top pin g , the ve hic le we nt a ro un d h im, wh ile ra

pid ly a c c e le ra tin g . T he ve hic le moved to the left lane as it approa ched the intersec tion of W est Commerce and West Austin, then turned rig ht without st opping f or a r ed lig ht fac ing in its direc tion. L ieutenant Ha rper char acte rized West Com merc e and West Austin as m ultilane roadw ay s. He described West C ommerce as being busy . He indicated that, when the vehicle made the rig ht turn on the re d light fr om the left lane , there

wa s a c ar i n th e ri g ht l ane stop ped at th e re d li g ht. L ie ute na nt H arp e r s ta te d th a t it

too k h im a moment to c lear that intersec tion to pursue the vehicle , which had c ontinued on and had a cce lerated. He indicated that his vehicle’ s siren had multiple tones to aler t the publ ic t hat he was a

pproac hing

and re qu e sti ng the ri g ht- of -w ay
. He re la te d tha t the ve hic le he wa s p ur su ingc on tin ue d to a c c e le rate

ra pid ly

. He sa id that, a t ano the r i nte rs e c tio n n e ar a Wal -M art

and an U nd e rw oo ds , th e ve hic le a g a in made a rig ht turn from the lef

t lane, while fac ing a red light, with a vehic le in the rig ht lane stopped at the lig ht. He mentioned that the ve hicle fa iled to stop at a stop sig n when c rossing U.S. 377, or Main Street. L ieutenant Ha rper stated that it was a ve ry

busy intersec tion that had traff ic on it at the tim e . H e re la te d th a t th e ve hic le ra n th e re d li g ht at th re e oth e r i nte rs e c tio ns
. L ieutenant Ha

rper descr ibed a T- intersec tion at which no left turns a re a llowed due to a blind approa ch fr om an under

pass. He said the vehicle went throug h the intersec tion really fast, making a lef t turn. He indicated that, whil e traveling down one street, the speed reac hed over eig hty miles per hour an d

th a t i t m ay

h a v e r e a c h e d

n in e ty mi le s p e r

h o u r
. H e in s is te d

th a t, o nth is r o a d , the y overtook seve ral c ars and met sever al ca rs coming in their direc tion. He said this was also true on another road.3

L ieutenant Ha

rper testified that, at an acc ess road that he chara cter ized as one with a g reat de a l of tr a ff

ic that move s at a hig h ra te of sp e e d, the ve hic le na rr ow ly mis se d h a vin g an a c c ide nt w ith

a pic ku p p ull inga

tr a ile r t hat pu lle d r ig ht i n f

ro nt o f the ve hic le

. He de sc ri be d it a s a c los e c a ll w ith a major acc ident. He also descr ibed a later incident in w hich a driver had to pull complete ly off the road a s the vehicle and the pur suing of fice rs appr oache d. L ieutenant Ha rper identified the drive r of the vehicle he pursued as L arr y Dale Smith. He testified that, in his opinion, Sm ith was under the inf lue nc e of an in toxic a tin g su

bs tanc e oth e r t

ha n a lc oh ol. On cr oss-examination, L ieutenant Harpe r ac knowledg ed that Smith did not try to run over him wi th h is c ar, that he did

slo w d ow n at mu lti ple int e rs e c tio ns , th a t Smi th d id n ot t ry to g e t hi m hit by so me on e e lse , th a t oc c a sio na lly he wo uld

dr ive in a

wa y to l eave mo re spa c e be tw e e n h is vehicle a nd others on the r oad, that he did not come close to hitti ng the vehicle s stopped in the rig ht lane whe n he made a right t urn from the left lane, a nd that he did not hit any

other c ars. On r edire ct examination, L ieutenant Harpe r not ed that, if Smit h did not want to hurt someone, the safest thing to d o w ou ld h a ve be e n f

or him to s top wh e n th e of

fi c e r f ir st t ri e d to sto p h im. Br uce Spruill testified that he is a police office r for the City of Br ownwood. He sa id that he

watc he d th e vid e o o f t

he c ha se in t

his c a se and

that, based up on hi s tra ini ngand e xpe ri e nc e in dealingwith this t y

pe of situation, it was his opinion that the vehicle a s it was operated was be ing used as a deadly wea

pon. He said that there was no que stion about that and that he notice d on the video instance s w h er e t h er e we re c lose ca lls where me mbers of the public very narr owly missed g etting hit by

Smit h. Clay ton Way ne Seale , a passe n ger in S mith’s car, te stified that, when the c hase be g an, he t h o u g h tt h e y w e r e g o i n g t o d i e b e c a u s e h e t h o u g h tt h e y w o u l d g e t r u n o v e r o r r u ni n t o s o m e b o dy, ba se d o n the wa

y Smith wa s dr ivi ng
. He sa id that the re we re many tim e s d ur ingthe c ha se tha

t Smi th drove throug h stop signs and r ed lig hts in a way that cause d him to fear f

or his own life. J oshua Dwa

y ne Smith, the son of L arr y Dale Smith an d a passe ng er dur ing the chase , descr ibed what ha

ppened a s: “Well, we sped, kep t g oing, dodg ing a s much traf fic a s we c ould,

a lmo st ge tti nghit

se ve ra l di ff

e re nt t ime s, a lmo st r a mmi ngint o o the r c ars , a nd sp e e din g pr e tty much.” He s aid he was worried for his own personal safe ty

. He indica ted that he wa s worrie d that

someone wa s g oing to g et killed. J oshua ref err ed to a vehicle moving on the acc ess road that they almost collided with.4

An examination of the video of the chase shows that, while Smit h did take some pre cautions to avoid hitting ot her vehicles, there were at least t wo i nstance s in which he narr owly avoided hitting vehicles at high spe ed. We hold that the evidence is factua lly sufficie nt to support the jury ’s finding that Smit h, during the commission of the offe nse of e vading arr est, used a deadly wea pon, a vehic le that, in the

mann e r o f i ts u se d o r i nte nd e d u se , w a s c a pa ble of caus in g de a th o r s e ri ou s b od ily inj ur y . Sm ith urg es that the e vidence is insuff icient beca

use there was only a hy

pothetical dang er to other s, but no actua l dang er. H e primar ily relies on the opinions in Dr ic ha s v . S tat e , 1 7 5 S. W. 3 d

7 9 5 , 7 9 9 ( T e x. Cr im. Ap p. 20 05 ); Dr ic ha s v . S tat e , 219 S.W .3d 471, 475 (Tex. App.—Texarkana 2007, pet. re f’d) ; Cat es v . S tat e , 102 S.W. 3d 73 5, 73 8 (T e x. Cr im. Ap p. 20 03 ); Ma nn v . S tat e , 1 3 S. W. 3 d 8 9 , 9 2 ( T e x. App.—A u s t i n 2000), aff’d , 58 S.W .3d 132 (Tex. Crim. App. 2001); and W ill iam s v . S

tat e , 946 S.W .2d 432, 435-36 (Tex. App.—For t Worth 1997), rev’d , 970 S.W .2d 566 (Tex. Crim. App. 1998). We find that all of these c ases either support our opi nion or are distinguishable. In Drichas , the cour t did hold that, in order to justify a dea dly wea pon finding with respec t to a motor vehicle, the dang er posed to motorists must be actua l, and not simply hy pothetical. Drichas , 175 S.W .3d at 799. The court went on to sa y , howeve r, that the statute does not r equire pursuing polic e o fficers

or oth e r m oto ri sts to b e in a zon e of dan ger, t a ke e va siv e a c tio n, or re qu ir e an a

pp e lla nt t o intentionally

strike another

vehicle in or der to justify a dea dly wea pon finding

. Id. I t he ld t hat a deadly wea pon finding is appropriate on a suff icient s howing of actual dang er, suc h as evide nce that another motorist was on the hig hway at the same time and place as the de fenda nt when the defenda

nt drove in a

dang erous manne r. Id. As we ha ve noted, in thi s case many motorists were on the highw ay at the same time and place as Smith when he wa s driving in a dang erous manne r, including more than one with whom he almost collided. We find Dr ic ha s to support our opinion. On rema nd following the opinion in Drichas , the court of appeals held that the e vidence was fac tua ll y in s u f

f ic ie n t, n o ti n g th a t, w h il e th e r e ma y h a v e b e e n s o me tr a f

f ic o n th e r o a dw a y s of Texarkana

at the time the appellant in that c ase was driving , the evidenc e wa s uncer tain reg arding the pre sence of other motorists, wher e or w hen they wer e enc ountere d, or eve n whether they wer e on the same r oadwa

y or a ne arby

road. Drichas , 219 S.W .3d at 4 7 5 -7 6

. I n t he ca se at ba r, the evidenc e showe d that other ve hicles we re at or nea r Smith and that he almost co l l i d ed with more tha n o ne of the m.John G . H ill , For m er Just ic e, Cour

t of A ppea ls , 2nd D is tri ct

of T ex as a t For

t W orth, s itt ing by

a ss ig nm ent

. 1
5 We find the opinion in Cates to be distinguishable. I n Cates , the cour

t held that, beca

use the

case was one of l eaving the s cene of an acc ident, the relevant t ime period for deter mining whe ther the def endant’ s truck wa s used and e x hibited as a de adly wea pon was t h e t i m e p eriod a fter the

acc ident. Cates , 102 S.W .3d at 738. The court noted that there was no evidenc e that the truck wa s driven da ng erously afte r the acc ident nor wa s there e vidence of any other tra ffic on the roadw ay nor any evidenc e that any one was endang ere d by the truck afte r it lef t the scene of the a ccide nt. Id. In the ca se at bar, t here is substantial evidenc e that Smit h drove his ca r dang erously

and that ther e wa s other tra ffic on the roadw ay while Smith was driving in that manne r, some of w hich traf fic was

e nd ang e re d b y

Smith’ s c on du c t. I n Mann , the court h el d t h at a deadly wea pon finding require s evidenc e that other s were endang ere d, not merely

a hy pothetical for dang er if others had be en pre sent. Mann , 13 S.W .3d at 92. The opinion we nt on to note that the appe llant in that case a lmost hi t another ve hicle hea d-on, but the other vehicle took e vasive a ction. Id. Additionally , an ex perie nced office r t estified that the

c o l l i s i o n w a s c a

p a b l e o f c a u s i n g d e a t h o r s e r i o u s b o d i l y i n j u r y. Id. The c ourt held that the e vidence was suff icient to support the dea dly wea pon finding

. Id. We find Mann to be consistent with and supportive of our opinion. I n W illiams , a felony driving -while-intoxicated case , the court held that the e v i d en ce was insufficient to support a f

inding that the a

ppellant used his vehicle as a deadly wea pon beca use there

was no e vidence that there was a ny other motorist on the hi g hway at t he ti me and place the appe llant drove in an intox icated condition or t hat any other motorist, other than a rre sting off

icer s, came upon the sce ne or was e ndang ere d by the appe llant’s truck stopped on the hig hway

. W illiams , 946 S.W .2d at 435-36. As we have previously noted, t here was evidence in this case that there wer e numer ous motorists on t he hig hway at the time a nd place Smit h drove in a dang erous manner , more than one of wh ic h w e re e nd ang e re d b y his c on du c t. We ov e rr

ule Smit h’ s so le po int

on a pp e a l. The judg ment is affirme d.

November

5, 2009 PER C URI AM Do not publish. See T EX
. R. A PP
. P. 47.2(b). Panel consists of: Wright, C.J ., M c C a l l , J. , an d

H i l l , J. 1