## In the Court of Appeals Second Appellate D istrict of Texas

at Fort Worth

___________________________ No. 02

- 20

- 00014

- CR

_________

__________

________

On Appeal from the 213th District Court Tarrant County, T exas Trial Court No. 1607141R

B efore Womack, Wallach, and Walker, JJ. Opinion by Jus tice Walker 

### J OSE 

### A. S ERRANO 

### , Appellant

V 

### . T HE 

### S TATE OF 

### T EXAS2 OPI N ION I. I NTRODUCTION Jose A. Serrano appeals from his convicti on and twenty

- five

- year sentence for felony evading arrest or detention with a vehicle

. Se e Tex. Penal Code Ann. § 38.04 (a

), (b)( 2 ) (A)

. He raises three points on appeal : (1) the trial court violated his right t o confront wit ne sses by c onsideri ng a presentence investigation report (PSI) at pu ni shment ; (2) the trial court erred by r efusing to include his requested less er
- incl uded

- offense instruction in the guilt

– inn ocence charge; a n d ( 3) the trial court ’ s finding that he used his vehicle as a deadly weapon is not supported by suffi cient ev ide nce. We affirm. II. BACKGR OUND Police officers saw Serrano commit a traffic violat ion after leaving a n alleged drug house and d riving away in a car. Serrano did not stop after the police tur ned on their lights and sirens and a tte mpted to pull him over. A f ter a n over
- six

- mil e chase on both hig hways and resi dential streets, S errano fina lly pulled over and police arrested him. As a result, t he S t ate charged him w it h eva ding arrest, enhanced by a habitua l

offender notice and a deadl y - weapon allegation

. The State later filed a direct reindic t m ent, and after a trial, a jury f ound him guilt y . Serrano ele cted to have the
tr ial cou rt assess his punish ment and requested the pr eparation of a PSI. After a hearing on punishment, at wh ich the tri a l court also heard evidence pertin ent to the deadly

- weapon allegation, the trial court found the habi tual

- offender par agraph true,3

found the deadly

- wea pon allegation true, and assessed Serrano ’ s punishment at twenty

- five years ’ confinement

. Serrano has challenged his convicti on and sentence on appeal. III. CONFRONTATION
- C LAUSE COMPLAIN T NOT PRESERVED In his first point , Se rra no complains that the trial court violated his Sixth

Amendmen t right to conf ront w itnesses by cons i de rin g a PSI at punishment

. H e candid ly admits that the T e xas Court o f Criminal Appeals has held adversely to him on the merits of thi s comp laint, a nd he acknowledges that he failed to pre serve the complaint. However, Serrano contends that he wa s not required to preserve the complaint because “ the Court of Crimi nal Appeals has held t hat under circumstances where the law is well

- s ett led to the point where any objection in the trial court would be f util e, the claim will n ot be considered f or f e i ted f or later review. ” He cites Ex parte Ha thorn , 296 S.W.3d 570, 5 72 (Tex. Cri m. App. 20 09) , and Ex par te Turner , 542 S. W. 2d 1 87, 189 (Tex. Cr im . App. 1976), as support. But Hathorn an d Turner are b o th postconviction writ cases in which the Court of Criminal Appea ls h eld that , in that context , p reservation at trial was not required to argue for reve rsal of a co nviction b ased on a higher

- court change in the law that occurred after the trial

. Hathorn , 296 S. W.3d at 571

– 72 ; Turner , 542 S.W.2d at 189 ( “ The petitioner ’ s trial was on September 21, 1965, almost two years b efore the decision in Washington v. Texas, sup ra. It w ould be unreasonable to expect the petitioner to anticipate the fu ture decision of the United States Supreme Court. ” )

.4

Not only is this case no t in t he po st conviction

- writ posture, Serrano has identif ied no change in th e law since trial o f wh ich he now se eks to tak e advantage

. On direct appeal , the Rule s of A ppellate P r oce dure and Court of Cri minal Appeals case law require that Confrontation

- Clause co mplaints be preserved at trial to b e raised on appeal. See T ex. R. App. P. 3 3.1( a )(1); Da vi s v. State , 313 S.W.3d 317, 347 (T ex. Crim. App. 2010)

. Because S errano did not preserve this c omplaint at trial , we overrule his first point

. See Sells v. State , 488 S.W.3d 397, 398

– 99 (Tex. App.

— Fort Worth 2016, pet. re f ’ d). IV. FLEEING NOT L ESSER
- INCLUDED OF EV ADING ARREST In hi s second point , S e rran o argues that the tri al court erred by refusing to include his reques ted instruction to the jury on what he clai m s is the less er
- included offense of f

leeing a police officer. See Tex. Tran sp. Code Ann. § 545.421(a).

A. S TANDARD OF R EVIEW We a nalyze tw o step s to dete rmine whether an appellant was en titled to a l ess er
- include d

- offense instru ction: (1) Are t he elements of the lesser

- included offense included within the proof necessary to establish the charged offense’s elements? (2) Is ther e ev idence in the r ecord fro m which a jury could find the def endant guilty of only the lesser

- included offense? State v . Meru , 414 S.W.3d 1 59, 161 (Tex. Crim. App. 2013); Hall v. State , 225 S.W.3d 524, 528, 535

– 36 (Tex. Crim. App. 2007); Rousseau v. State , 85 5 S.W.2d 666, 6 72

– 73 (Te x. Crim. App. 1993 ). But the5

sec ond step is c ond itional: we reach it only if we answer th e first question affir m a tively

. See Meru , 414 S.W.3d at 16 2

– 6 4. The first step in the lesser

- included

- offense analysis is a lega l ques ti on a nd so does not depend on the trial e vidence. Hal l , 225 S.W.3d at 535. This step c ompares the elem ents of the offe n se as alleged in the indictment with the elements of the requested lesser offense. Meru , 414 S.W.3d at 162. The requested less er off en se m ust meet the requirement s of at leas t one of the fou r types of lesser offenses desc ribed in A rticle 37.09 of the C o d e of Cr iminal P rocedure. Tex. Code Crim. Proc. Ann.
art. 37.09; Moore v. State, 969 S.W .2d 4, 8 (Tex. Crim. App. 1998). Serran o reli es on t he lesser

- included

- offe nse type des cribed in Cod e o f Criminal Proced ure Article 37. 09(1). Under A r ticle 37.09 (1), a n offense is a lesser

included offense of another offense if the i ndictment for the greater offense either (1) alleges all the lesser

- in clud ed

- offense elements or (2) alleges elements plus fa cts

— including descriptive averme nts, such as no nstatutory manne r and means, that are meant only to provide notice

— from which we ca n deduce all the lesser

- included

offense elements. Ex parte W atson , 30 6 S. W.3d 259, 273 (Tex. Cri m. App. 2009 ) (op. on reh ’g) . Therefore, we should compare the greater off ense’s statutory elements (and any descriptive averments alleged in the indictment ) to the lesser offense’s statutory elements. Id.6 B. I NDICT MENT A

ND E LE MENTS OF O F FENSES Penal Code Section 38.04 (a) pro vid es that “[ a] person commits an o ffense if he in tentionally f

lee s from a person he knows is a peace officer or federal spec ial investigator attempting lawfully to arrest or detain him. ” Te x. P enal C od e An n. § 38.04(a). The offe nse is a third

- degree felony if “ the actor uses a vehicle wh ile . . . in fl ight. ” Id. § (b ) (2)(A) ; Adetomiwa v. State , 421 S. W. 3d 922 , 927 (Tex. App.

–– Fort Wo rth 2014 , n o pet.)

. H e re, t he direct re i ndictment tra cked the statut e, a lleg ing that Serrano int entionally f

led , using a vehicle, from J. Hinz , knowing Hinz was a peace of ficer who was at t empting to lawfully arrest or detain S errano. Similarly , a per son commit s the offense of fleeing or attempti ng to elude a police offic er “ if the person o perates a motor vehicle and wilfully fails or refuses to bring the ve hicle to a stop or fle e s, or attempts to elude, a pursuing police vehicle when given a vi sual or audible s ignal to bring the vehicl e to a sto p. ” Tex. Transp. Code Ann. § 5 45.421(a). The stop signal “ may be by hand, voice, emergency light, or siren ” ; “ [t] he off

icer giving the s ignal must be in uniform and prominently display the officer ’ s bad ge of office ” ; an d “ [t]he officer ’ s vehicl e must bear t he insignia of a law enf orce ment agency, re gardless of whether the vehicle displays an emergency light. ” Id. § 545.42 1(b). C. A NALYS I S Serran o does not rely strictly on recent appl ications o f the sta ndard of rev iew

a rticulated b y the T e xas C ourt of Crimi nal Appeals; instead, he rel ie s on the anal ysis7

and outcome of this court ’ s 2002 opi nion in W a lker v. State , in which we held

–– based

o n a cognate

- evid ence m ode of analysis that the Court of Crimina l Appeals has sin ce disavowed

–– that f

leein g in that cas e was a le sser
- included offe nse of evading arrest or detention because “ the only difference between the two stat utes a s applied to the facts of th [at] case [wa] s the element of evading arrest that require [d] appellant ’ s k nowledge that the officer was attempting t o lawfully ar rest or detain him. ” 9 5 S.W.3d 516, 519 (Tex. App.

–– Fort Worth 2002, pet. ref ’ d). Although Serra n o argues t hat the T e xas Court of Criminal Appeals has never expressly overruled W a lker , that court acknow

ledged in a footnote in Farr

a khan v. State that the S t ate h a d conceded that (a) W a lker relie d on a disavowed cognate

- e vidence approach and (b) H all v. State , which post

- Wa lker clarified the applic able cognate

- pleadings standard of review recit ed in sub section IV. A above, 1 exp ressly disapproved of cases employing a c ognate

- evidence mode of analysis. Farrakhan v. State , 247 S .W.3d 720, 72 2 n

. 6 ( Tex . Crim

. App. 2008) ; Hall , 225 S.W .3d at 5 37 ( disapproving of “ decisions that have held [to] the contrary ”

1 In Hall , the court de scribed four different approaches to de te rmining whether an offense i s a lesse r
- incl uded offense of another: strict statutory, cognate pleadings , cogna t e evidence, a nd inherently rela ted. 225 S.W.3d at 525

– 26

. Under t he cog n at e plea dings a pproach , the court looks only to t he facts and elemen ts as alleged in the chargin g i nstru ment rather than to any evidence adduced at trial, as do es the c ognate

eviden ce approach. Id. After reviewing the different appro aches and its prior hol dings , t h e co urt concluded, “ We now hold that the [cognate

- ] pleadi ngs approa ch i s the sole tes t f

or determining in the first step whether a party may be entit led to a lesser

- inclu ded

- offense instru ction. ” Id. at 535

.8

of the cogn ate

- pleadings approach and naming some of those cases ) 2 ; see al so Oliva v. State , 548 S .W.3d 518 , 520 (Tex. Crim. App. 2018) ( “ We , of cours e, are not bound by any agreement or concessions by the parties on an issue of law. ” )

. Relying on the clear articulation of the appropr iate standar d of review in Hall and subsequen t Cou rt

o f Criminal Ap peals cases reiterating that we are to use a cognate

- ple adi n gs a nalysis instead of a cognate

- evidence a nalysis , we decline to rely on W a lker ’ s conclusion based

on a now
- erro neous analys is

. U s ing the cognate

- pleadings approac h , we hold that after c omparing th e elements and descr iptive facts alleged in t he ind i ctmen t to the elements of fleeing, fleeing is no t a lesser

- included offense of evading arrest ; because we so hold, we do not go to the s econd step and analyze the evidenc e adduced at t rial. See Farrakhan , 247 S. W.3d at 723 ( “ It is only after th e al leged lesser offense passes the s crutiny u nder the firs t step of the analysis that we then proceed to the second step

. . . . ” )

. For the th ird

- degree

- felony offense of e vading , the S t ate alleged and had to prove that (1) Serrano ( 2 ) using a vehicle ( 3) intenti onally ( 4 ) fle d ( 5 ) from a person ( 6 ) he knew was a poli ce officer ( 7 ) who was l awfully atte mpting t o arrest or detain him

. Tex. Penal Code Ann. § 38.04 (a) . In contrast, the f leeing o ffense would have

r equire d proof that (1) Serrano (2) operate d a motor vehicl e (3) and wilfully (4) either

2 That Hall ex pre ssly named some of the se cases b ut not other s, including W alker , does not mean that the Court of Crimi nal Appeals le ft W a lker ’ s flawed analysis intact.9

(a) failed or refused to bring that veh ic le to a sto p , or (b) fled , or attempted to elude , a pursu ing police vehicle bearing the i nsign i a of a law enforcement agency , ( 5 ) after being given a visual or audible signal to s top the vehic le ( 6 ) by either hand, voice, emergency light, or s iren ( 7 ) by an o f ficer in uniform ( 8 ) with a pr ominently displayed badge . Tex. Tra nsp. Code Ann. § 545.421 ( a) , (b). As other cour ts of appeals have noted, when we employ the proper cog nate

pl eadin g s test, we see th at t he S t ate has to prove additional facts for fleein g that it does not have to prove to show evading: that th e police officer was in a vehicle, or if the offi cer was dri ving a vehicle, that it was marked with law enforce ment insign i a ;
t h at the officer wa s in uniform and w earin g a badge ; and that the office r gave a visual or audible signal to stop

. See, e.g. , Peav ey v. State , 248 S.W .3d 455, 46 8

– 6 9 ( Tex. App.

–– Austin 2008 , pet. ref

’ d) ; Horne v. State , 228 S. W.3d 44 2, 446

– 49 (T ex. Ap p.
–– T e x arkana 2007, no pet.) ; Farr akhan v. S t

ate , 263 S.W. 3d 124, 136

– 40, 143

– 44 (Tex. App.

–– Houston [1 st Dist.] 2007 ) , 3 aff ’ d , 247 S.W.3d at 724 ; see al so Keller v. State ,

3 The court of a ppeals i n Far rakhan d istinguished Wal

ker : “ That the State could and did present evidence of these four additio nal facts in proving appellant ’ s guilt of the charged offense does not mean that the State was r e quired to do so. It is only the latter in quiry that determin es whet h er an offense co nstitutes a les ser
- included offense of the charged offense. ” 263 S. W.3d a t 139 ; see M c Kithan v. State , 324 S. W.3d 582, 592

– 94 (Tex. Cri m. A pp. 2010 ) ( ana lyzing Farrakh an and Hall , discussing how Walker ’ s analysis differed from th e court o f appeals ’ s in Fa rr akhan , and co nclu ding that for cognate

- pleadings analysis, “ [t]he releva nt inquir y is not what the evidence may show but what the State is required to p rove to establ is h the charged offense ” ; th us, an offense ma y not be a lesser i ncluded offense even if the State prove d all of its elements in trying the charged offense )

.10

No. 09

- 19

- 00204

- C R , 2021 WL 2345547, at *2

– 3 (Tex. App.

–– Beaumont June 9 , 202 1, pet . ref

’ d) (mem. o p., not de signated for publication) ; Adams v. State , No. 13

- 09

- 00334

- CR, 2010 WL 278 37 45, at *9 (Tex. App.

— Corpus Christi

– Edinburg July 15, 2010, pe t. ref’ d

) (me m. op., not de signate d for publication )

. Bec ause fleeing requires p roof of ele ments that evading does not, fleeing is not a lesser

- included offense of evading

. Peavey , 248 S. W.3d at 469 ; Farr akhan , 26 3 S.W.3d at 139, 143

– 44

. The refo re, the tri al c o urt did not err by refusing to include Serrano ’ s requested fleeing instru c tion in th e cha r ge. See Peavey , 248 S .W.3d at 469 ; cf. Tex. Code Crim. Proc. An n. art. 36.14 (requiring trial judge to inst ruct jury only on “ law applicable to the c ase ” ) . We

ov er r ule S e rrano ’ s second point

. V. DEADLY
- WEAPON FINDING SUPPORTED BY EVIDEN CE In his third poi nt, Serrano complains that the evidence does not support the trial court ’ s deadly

- weapon finding.

A. A PPLICABLE L

AW AND S TANDARD OF R E VIEW By sta tute, a mot or vehicle is not a deadly weapon per se, but it can be a deadl y weapon if it s “ manner of

. . . use or intended use is capable of causing death or serious bodily injury. ” Tex. Penal Code Ann. § 1.07(1 7) (B) ; Couthren v. State , 571 S.W.3d 786, 78 9 (Tex. Crim. App. 2019)

. “Serious bodily injury” is “bodily injury that creates a substa n tial ri sk of death or tha t causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Tex. Pena l Code Ann. § 1.07(46). A vehicle is not capable of causing11

death or ser ious bodily inju r y unle ss its manner of use presents an “actual danger” of causing such harm. Drichas v. State , 175 S.W.3d 79 5, 799

– 800 (Tex. Crim. App. 2005)

. To determine if t he evidence show s sufficiently whether a vehicle was used as a deadly wea p on, we use a two

- part te st: “ first, we evaluate the manner in which the defendant used the motor vehic le during the felony; an d second, we consider whether, during the felony, the m otor vehicle was capable of causing death or serious bodily injury. ” Sier

ra v. State , 280 S.W.3d 250, 255 (Tex. Crim. App. 2009)

. The evading

arrest statute “does not require purs uing police officers or other motorists to be in a zone of danger, take eva sive action, or require [the] appellant to intentionally strike another ve hicle to justify a deadl y weapon finding.” Drichas , 175 S. W.3d at 799. B. A PPLICABLE F ACTS According to the parties ’ agreement, the tria l judge considered the deadly

we apon allega tion at pu nishme nt. Th is phase occurred o ve r two day s, with a little

o v er two months in between , because Serr ano requ ested that a PSI be prepared. On the second day of punishment, the trial court admitted the PSI , and the Sta te re

offered “ everything that [

was] already in e vidence ” from guilt

– innocence and the first day of punishment ; the trial court “ [g]ranted ” the re

- offer. 4

4 A visiting judge presided over guilt

– innocence, and the presiding tria l judge, at Se rrano’s electi on , decided Serrano’s punishment, including making a finding on the hab i tual

- offender

- en hancement alleg ation in addition to the deadly

- weapon allegation

. The presiding judge said he intended to review the reporter ’ s record f rom guilt

– innocence ; he a lso sa id that he had watched t he admitted video recording of the chase and stop. Serrano does not complain that the trial judge did not review the reporter ’ s12

At guilt

– innocence , Fort Worth Police Office r Jacob Hinz testified t hat on March 31, 2014, he and his partner Tyler Ra wdon were inves t i gatin g a narcotics complaint near 100 0 E a st Arling t o n in Fort Worth ; Rawdon was driving whil e Hinz was working the radio and computer. As they drove by a quadple x where heroin was allegedly be i ng sold , t he y noticed Serrano “ walking from the rear of the location
to wards the vehicle parked on the street. ” When Serrano saw the police car, he “ kne l t down near his car as if he was checking on it, checking on a tir e, or c hecking o n a bum p er making su re the vehicle was ok ay. ” Ser ra no staye d that way for a couple of minu tes. After about two to three minutes, Serrano got in to the car

. The officers t urned around and drove up behin d him with the p o lice car ’ s lights off. They saw Serrano pull away from the cu rb without signaling a nd run a stop sign

. After Serrano pull ed away from the curb, the office rs turned on the police car ’ s headlights and bega n to fol low him. Their overhead lights were not on at the time. After turning, Serrano be gan speedi ng, and the officers could not keep up with him. They eventually found S errano on another street and began follo wing him. S errano was driving “ at a high r ate of speed ” ; he wa s going so fast they had a hard time keeping up with him again. Rawdon and Hinz advise d other officers by radio that Serrano was driving recklessly ; eve ntually, another officer spotted Serrano ’ s car and record from g uilt

– inn o cence , nor d oes he challenge t he tri al jud ge ’ s ruling granting the St ate ’ s re
- off

er of the guilt

– i nnocence evid ence.13

followed it until Rawdon and Hin z could catch up. After driving a couple of miles,
t h ey cau ght up with Serrano on I

- 30

. After catching up with S e rrano, Rawdo n activated hi s body camera , a n d the officer s turned on the police c ar ’ s lights and sirens

. But Serrano did not stop. Accordi ng to H inz, there “ were a few ” cars on the highwa y , and Serr ano was putting th em in dan ger because of his “ high rate of speed

. ” According to H inz, Serrano was drivi ng “ [ r ] e cklessly ” : “ [a]t one point, he went int o the oncoming lane s of traffic and just the high rate of speed through neighborhood s. ” Hinz described S errano ’ s driving , agree ing th at he was weavin g in and out of light to m oderate traffic. When Serra no was dri ving through a residential neighborhood, at a speed “ [p]robably in the 60s, ” Hinz not iced at le ast one pede strian

“ on the left side. ” Hinz testifi ed that based on his training and experience , at the speed he w as driving , Serrano could have en dangered the li fe of the ped estrian he passed as w ell as the lives of othe r drivers. Accordin g to Hinz, durin g the chase the officers saw Serrano run a red li ght and stop sig n a nd fail to use a signal t o take right
turns. Serrano e ventually stopped his car , and the o fficers we re able to arrest him. On cross

- examinatio n, Hinz admitted that Rawdon drove by th e pedestrian at the same speed and “ essen t ially ” via the same path as Serrano ; according to Hinz, he

“ didn ’ t do anything to place that pedestri an in danger. ” On redirect, the pr osecutor was able to e licit that one difference between Serrano ’ s driving and Rawdon ’ s driving14

was that Rawdon ’ s car had a siren and lights a ctivated while Serrano ’ s had only headlights to warn th e ped estrian

. Importantly, a s did the tr ial court, we have watc hed the video of the chase. The vide o s hows Serrano r unning a red light on the service road after exi tin g the interstate ; turning right without stopp ing at a second red light , from the middle lane, around a slowed or stopped ca r i n t he right lane ; driving at a high speed down a two

lane curv ing roa d without a shoulder, past a fair amount of oncoming traffic a nd past one car pulled over to the rig ht in the same lane ; and drivin g down several residential
stree ts li ned with parked car s, at one po int passing close by a parked car, with its headli ghts on, and a p e destrian on the si dewalk next to the car. C. A N ALYSIS Serrano ’ s argument relies e x clusiv ely on his ac cou nt of the bodycam video showing the officers ’ chase; he contends that it s hows that he was speeding only occasionally ; that although h e ran a red ligh t , he slowe d down f irst , and t here was

“ absolutely no traffic present except for a vehicle in the r ight lan e [,] w hich

. . . Serrano slowed to go aro un d , and the polic e cars taili ng him ” ; t hat although he drove through a residen tial area “ without coming to a comp l et e stop at the st op sign before makin g a right turn ” and speeding, there was “ no moving vehic ular tra ffi c appearing on the video ” in that resi dential area ; and that altho ug h he crossed a yellow lin e on the15

highway, there was not oncoming traff ic at that t

ime. Thus, Serran o appears to challenge only the “ actual danger , ” second part of the two

- step test. 5 Serrano invites us to elevate what fac ts were not i n evidence over t hose facts that were in evidence and the re asonable inferen c es from those facts that a factfinder

cou ld make

. See Moore v. S t ate , 520 S.W.3d 9 06, 91 2 (Tex. Crim. Ap p. 2017). The video shows cars having to slow down and , in s ome case s, stop to avoid Ser ra no and the of ficer s ; this includes a specif ic time that Ser r ano turned right , without stopp ing at

a s top sign, from th e middle la ne direct ly in front of a car in the r ight lane

. The video also shows Serrano dri ving at a high speed do wn residential stree ts lined with parked cars on either side ; at least one of tho s e streets was so congested with parked ca rs that only one lane of traffic coul d get through. Serrano ran a red light exiting the highway, as well as several stop sig ns in re sidential neighborho od s. Stopped c ars can be seen about to enter the larger road w ays where Serrano was driving , an d numero us cars

w ere driving in the o ncoming lane while Serrano was driving at hig h speed on a curving road . Fi nally, Serrano altern ated bet ween burst s of speed a nd hitting his brakes, causi ng the officers following him t o do the same

. See Drichas , 175 S.W.3d at 798

.
5 Nevertheles s, Serrano ’ s driving as d epicted on the video

–– especially his driving at a high speed down a two

- la ne resid ential street lined on both side s with parked cars so th at only one mo vin g car could get through

–– was r eckless. See Drichas , 175 S. W.3d at 797

– 98 ; see also , e.g. , Shaw v. State , No. 06

- 05

- 002 38

- CR, 2006 WL 3024975, at *1 (Tex. App.

— Texarkana Oct. 20, 2006, pet. ref’d) (mem. op., not design ated for pub lication)

.16

As did the appell ant in Haz lewood v. St ate , Serrano relies on three distinguishable intermediate appellate court opin ions to support his argument ; they do not affect our conclusion

. No. 02

- 18

- 00372

- CR , 201 9 WL 2635567, at *2 (Tex. App.

–– Fort Worth June 27, 2019, pet. ref

’ d ) (mem. op., not de signated for publication). The appellant i n Glover had been driving while intox icated a nd speedi ng, but the r ecord did “not contain any other evidence that [he] was dr iving recklessly

. ” Glover v. State , No. 09

- 13

- 00084

- CR, 2014 WL 1285134, at *2 (Tex. App.

–– Beaumont Mar. 26, 2014, pet. ref ’ d) (mem. op., not designated for publicatio n). In F oley , the appellant c rashed his truck while driving intoxicated, but the evidence showed that the closest person n e arby wa s working in an office building sixty feet away. Foley v. State , 327 S.W.3d 907, 910, 917 (Tex. App.

–– Corpus Christi

– Edinbur g 2010, p et. ref

’ d) (“ [T]her e is no evidence in the record before us that there were other persons or vehic les at the same ‘ time an d place’ as Foley. No one other than Foley himself ‘was placed in danger of serious bodily injury or death.’ ” (citat

ions omi tted)). And in Pointe v. St at e , officers responded to a
two

- car collision and determined that a driver had pulled o ut in f r ont of Pointe ’ s car and was at fault. 371 S.W.3d 527, 530, 532 (Tex. App.

–– Beaumont 2012, no pet.). Although the investiga ting off icer thou ght Pointe might be i ntoxicated after speaking to him and noticing beer bottles in the car, and af ter Pointe showe d signs of intoxication on some of the standard field

- sobriety test s, t he record contained no inferences that Pointe had enga ged in a ny reckle ss or dangerous dri vi ng before or as a17

cause of the accident

. Id. at 530, 532. Because these cas es are factually disting uishable, we do not consider them persuasive in this specific matter

. The video depicting Ser rano ’ s driving provided ample evidence t o support the trial court ’ s fi nding s that he drove recklessly , dangerously, or both , and that his dr i ving p ut othe rs in actu a l dan g er of serious b odily injury or de ath. Thus, the evidence is sufficient to support th e trial court ’ s deadly

- weapon finding. We overru le Serrano ’ s t hir d po int. V I . C ONCLUSION Havi ng overruled Serrano ’ s three points, we affirm the trial cour t ’ s jud g ment. /s/ Brian Walker Brian Walker Justice Pub lish Delivered : November 18, 2021