Opinion filed November 5, 2009

In The

Eleventh Court of Appeals

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No. 11-07-00358-CR

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LARRY DALE SMITH, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

 Brown County, Texas

Trial Court Cause No. CR18783

M E M O R A N D U M O P I N I O N

Larry Dale Smith appeals his conviction by a jury of the offense of evading arrest, following

his plea of guilty to that offense. The jury found that he used or exhibited a deadly weapon in the

commission of the offense. Smith had pleaded not guilty to the deadly weapon allegation. The jury,

finding that Smith had a prior conviction as alleged, assessed his punishment at twenty years in the

Texas Department of Criminal Justice, Institutional Division. Smith contends in a single point on

appeal that the evidence is factually insufficient to support his conviction. We affirm.

In order to determine if the evidence is factually sufficient, the appellate court reviews all of

the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006)

(overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23

S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App.
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1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court

determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong

and manifestly unjust or whether the verdict is against the great weight and preponderance of the

conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.

John C. Harper testified that he is a lieutenant in the Brownwood Police Department. He

indicated that on December 17, 2006, he noticed a gold Mercury Marquis. He said he followed the

vehicle and noticed that it was changing from the right lane to the left lane and the turn lane without

signaling any of the maneuvers. He indicated that at 1:30 to 2:00 p.m. on a Sunday afternoon, when

this incident occurred, there was quite a bit of traffic on the roadway. After he decided to stop the

vehicle because of its failure to signal its turns, he turned on his lights and moved in front of the

vehicle. Rather than stopping, the vehicle went around him, while rapidly accelerating. The vehicle

moved to the left lane as it approached the intersection of West Commerce and West Austin, then

turned right without stopping for a red light facing in its direction. Lieutenant Harper characterized

West Commerce and West Austin as multilane roadways. He described West Commerce as being

busy. He indicated that, when the vehicle made the right turn on the red light from the left lane, there

was a car in the right lane stopped at the red light. Lieutenant Harper stated that it took him a

moment to clearthat intersection to pursue the vehicle, which had continued on and had accelerated.

He indicated that his vehicle’s siren had multiple tones to alert the public that he was approaching

and requesting the right-of-way. He related that the vehicle he was pursuing continued to accelerate

rapidly. He said that, at another intersection near a Wal-Mart and an Underwoods, the vehicle again

made a right turn from the left lane, while facing a red light, with a vehicle in the right lane stopped

at the light. He mentioned that the vehicle failed to stop at a stop sign when crossing U.S. 377, or

Main Street. Lieutenant Harper stated that it was a very busy intersection that had traffic on it at the

time. He related that the vehicle ran the red light at three other intersections.

Lieutenant Harper described a T-intersection at which no left turns are allowed due to a blind

approach from an underpass. He said the vehicle went through the intersection really fast, making

a left turn. He indicated that, while traveling down one street, the speed reached over eighty miles

per hour and that it may have reached ninety miles per hour. He insisted that, on this road, they

overtook several cars and met several cars coming in their direction. He said this was also true on

another road.
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Lieutenant Harper testified that, at an access road that he characterized as one with a great

deal oftraffic that moves at a high rate ofspeed, the vehicle narrowly missed having an accident with

a pickup pulling a trailer that pulled right in front of the vehicle. He described it as a close call with

a major accident. He also described a later incident in which a driver had to pull completely off the

road as the vehicle and the pursuing officers approached. Lieutenant Harper identified the driver of

the vehicle he pursued as Larry Dale Smith. He testified that, in his opinion, Smith was under the

influence of an intoxicating substance other than alcohol.

On cross-examination, Lieutenant Harper acknowledged that Smith did not try to run over

him with his car, that he did slow down at multiple intersections, that Smith did not try to get him

hit by someone else, that occasionally he would drive in a way to leave more space between his

vehicle and others on the road, that he did not come close to hitting the vehicles stopped in the right

lane when he made a right turn from the left lane, and that he did not hit any other cars. On redirect

examination, Lieutenant Harper noted that, if Smith did not want to hurt someone, the safest thing

to do would have been for him to stop when the officer first tried to stop him.

Bruce Spruill testified that he is a police officer for the City of Brownwood. He said that he

watched the video of the chase in this case and that, based upon his training and experience in

dealing with this type of situation, it was his opinion that the vehicle as it was operated was being

used as a deadly weapon. He said that there was no question about that and that he noticed on the

video instances where there were close calls where members of the public very narrowly missed

getting hit by Smith.

Clayton Wayne Seale, a passenger in Smith’s car, testified that, when the chase began, he

thought they were going to die because he thought they would get run over or run into somebody,

based on the way Smith was driving. He said that there were many times during the chase that Smith

drove through stop signs and red lights in a way that caused him to fear for his own life.

Joshua Dwayne Smith, the son of Larry Dale Smith and a passenger during the chase,

described what happened as: “Well, we sped, kept going, dodging as much traffic as we could,

almost getting hit several different times, almost ramming into other cars, and speeding pretty

much.” He said he was worried for his own personal safety. He indicated that he was worried that

someone was going to get killed. Joshua referred to a vehicle moving on the access road that they

almost collided with.
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An examination of the video of the chase shows that, while Smith did take some precautions

to avoid hitting other vehicles, there were at least two instances in which he narrowly avoided hitting

vehicles at high speed.

We hold that the evidence is factually sufficient to support the jury’s finding that Smith,

during the commission of the offense of evading arrest, used a deadly weapon, a vehicle that, in the

manner of its used or intended use, was capable of causing death or serious bodily injury. Smith

urges that the evidence is insufficient because there was only a hypothetical danger to others, but no

actual danger. He primarily relies on the opinions in Drichas v. State, 175 S.W.3d 795, 799 (Tex.

Crim. App. 2005); Drichas v. State, 219 S.W.3d 471, 475 (Tex. App.—Texarkana 2007, pet. ref’d);

Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003); Mann v. State, 13 S.W.3d 89, 92 (Tex.

App.—Austin 2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001); and Williams v. State, 946

S.W.2d 432, 435-36 (Tex. App.—Fort Worth 1997), rev’d, 970 S.W.2d 566 (Tex. Crim. App. 1998).

We find that all of these cases either support our opinion or are distinguishable. In Drichas,

the court did hold that, in order to justify a deadly weapon finding with respect to a motor vehicle,

the danger posed to motorists must be actual, and not simply hypothetical. Drichas, 175 S.W.3d at

799. The court went on to say, however, that the statute does not require pursuing police officers

or other motorists to be in a zone of danger, take evasive action, or require an appellant to

intentionally strike another vehicle in order to justify a deadly weapon finding. Id. It held that a

deadly weapon finding is appropriate on a sufficient showing of actual danger, such as evidence that

another motorist was on the highway at the same time and place as the defendant when the defendant

drove in a dangerous manner. Id. As we have noted, in this case many motorists were on the

highway at the same time and place as Smith when he was driving in a dangerous manner, including

more than one with whom he almost collided. We find Drichas to support our opinion.

On remand following the opinion in Drichas, the court of appeals held that the evidence was

factually insufficient, noting that, while there may have been some traffic on the roadways of

Texarkana at the time the appellant in that case was driving, the evidence was uncertain regarding

the presence of other motorists, where or when they were encountered, or even whether they were

on the same roadway or a nearby road. Drichas, 219 S.W.3d at 475-76. In the case at bar, the

evidence showed that other vehicles were at or near Smith and that he almost collided with more

than one of them.
John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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We find the opinion in Catesto be distinguishable. In Cates, the court held that, because the

case was one of leaving the scene of an accident, the relevant time period for determining whether

the defendant’s truck was used and exhibited as a deadly weapon was the time period after the

accident. Cates, 102 S.W.3d at 738. The court noted that there was no evidence that the truck was

driven dangerously after the accident nor was there evidence of any other traffic on the roadway nor

any evidence that anyone was endangered by the truck after it left the scene of the accident. Id. In

the case at bar, there is substantial evidence that Smith drove his car dangerously and that there was

other traffic on the roadway while Smith was driving in that manner, some of which traffic was

endangered by Smith’s conduct.

In Mann, the court held that a deadly weapon finding requires evidence that others were

endangered, not merely a hypothetical for danger if others had been present. Mann, 13 S.W.3d at

92. The opinion went on to note that the appellant in that case almost hit another vehicle head-on,

but the other vehicle took evasive action. Id. Additionally, an experienced officer testified that the

collision was capable of causing death orserious bodily injury. Id. The court held that the evidence

was sufficient to support the deadly weapon finding. Id. We find Mann to be consistent with and

supportive of our opinion.

In Williams, a felony driving-while-intoxicated case, the court held that the evidence was

insufficient to support a finding that the appellant used his vehicle as a deadly weapon because there

was no evidence that there was any other motorist on the highway at the time and place the appellant

drove in an intoxicated condition or that any other motorist, other than arresting officers, came upon

the scene or was endangered by the appellant’s truck stopped on the highway. Williams, 946 S.W.2d

at 435-36. As we have previously noted, there was evidence in this case that there were numerous

motorists on the highway at the time and place Smith drove in a dangerous manner, more than one

of which were endangered by his conduct. We overrule Smith’s sole point on appeal.

The judgment is affirmed.

November 5, 2009 PER CURIAM

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Hill, J.1