### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00451- CR

Timm y Ray G arza, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 368 TH JUDICI AL DISTRICT

NO. 09- 1713 -K 368, H ONO RAB LE B URT CARNES, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
A j ury found Tim my Ray Garza g uilty o f t h e offe nses of driving while i ntox icated
with a child passeng er and endang ering a child. At the outset of the trial, Gar za had pleade d g uilty

to evading arr est. The jury also found that he used his motor vehicle as a deadly wea pon while committing t hese of

fense s. The jury

assessed punishment of six y ear s in prison for both the DW I
and evading arr est offe nses and eig ht y ear s in prison, probate d for t en y ea rs, for the offe nse of
child end an ger m en t

. Gar za appea ls, asser ting that the jury ’s finding that he used his vehicle as a deadly wea pon is not supported by

leg ally sufficie nt evidence . We will affirm the judg ment.
Geor g etown Police Depa rtment Offic er Ky le Sanford test i fi ed t hat he saw a Honda Civic run a red light at the intersec tion of L eande r Road and I nterstate Hig hway 35. Sanford
activate d his overhe ad lights and signa led for the Civic driver to stop. I nstead, the driver enter ed
the interstate. Despite Sanford’ s esca lating signa ls to stop—including flashing red and blue lights, sirens, and an ai r h o rn

— t he driver continued driving south at highw ay speeds up to 73 miles
per hour. Round Rock police office rs assisted by limit ing acc ess to the fre ewa y , controlling traff

icapproa ch i n g from the rea r, and deploy ing a spike strip in the Civic’s path. The spike strip puncture d the Civic’s two left tires. The Civic, on two fl at t i re s , somehow continued south

u n d et er re d , althoug h Sanford testified that “the driver started to wea ve more, cross into the
other lanes of traff

ic. He had a lot more difficulty , of course , controlling the vehicle riding on only two working tires.” The Civic was ca sting spar ks and tire de bris onto the road.
After the Civic crossed into the City of Austi n, police deploy ed another spi ke st rip
that puncture d the rig ht front tire. The Civic continued driving south, exit ing on a fly over to
183 southbound, a maneuve r that Sanford beli ev ed was risky

. The Civic finally exit ed at
Manor Road, and Gar za, the driver, abandone d his now smoking car as it rolled to a stop. Garza fled from poli ce on foot, who eventually captur ed him

. Police t h en discovere d Gar za’s three -y ear -old

son strapped into a car seat. Fe arf ul that the still -smoking car might ignite, police remove d the boy
from the c ar.
I n addition to hear ing testimony , the jury watche d a video re co rdi ng of the pursuit taken by came ras mounted on police car s. The jury convicted Garza of DWI , evading police, and endang ering his child. By his lone issue on appea l, Gar za challeng es the jury ’s finding that he used

o r ex hibited a deadly wea pon when committing these offe nses. Garza contends that his drivin g perf ormanc e did not provide leg al sufficie ncy of the evidenc e to support the deadly wea pon finding

. When determining whether leg ally sufficie nt evidence supports the dea dly wea pon fi n d i n g, we first evalua te the manner in which the defe ndant used the motor vehicle during t h e felony , and then we consider whether , during the felony , the motor vehicle was capa ble of causing
death or serious bodily injury

. Sierra v. State , 280 S.W .3d 25 0 , 2 5 5 (Tex. Crim. App. 2009). A deadly wea

pon is “any

thing that in the manner o f i t s u s e o r intended use is capa ble of causing
death or serious bodily injury .” Tex. Penal Code Ann. § 1.07(a) (17)( B) (West 2011). Bodily injury

2i s “p h y sical pain, illness, or any impairment of phy sical conditi on,” while serious bodi ly inju ry i s

“bodily inj u ry t h at cre ates a substantial risk of death or that cause s death, serious perma nent disfigur ement, or protrac ted loss or impairment of the function of any bodily member or org an.” Id. § 1.07(a) (8), (46). A vehicle can be used as a deadly wea pon. Drichas v. State , 175 S.W .3d 795,
798 (Tex. Crim. App. 2005) (driv er disreg arde d traff ic signs and signa ls, drove err atically , wove be tween la

nes and w ithin lanes, and drove down the wrong side of the hig hway ). A ve hicle
is not, however, al way s deeme d to be a deadly wea pon. Cates v. State , 102 S.W .3d 735, 738-39 (Te x
. Crim. App. 2003) (re versing finding that vehicle that killed person on street was used as a deadly wea

pon as t he driver returned home and thereby committed the offense of failure to stop

an d rende r aid). A vehicle may be used as a deadly wea pon even if the defe ndant did not have a specific intent to use it as such. Drichas , 175 S.W .3d at 798. “While a deadly wea pon finding does

not require that the object act u al l y cause death or serious bodily injury , it does require that the object have more than a hy pothetical capa

bility of causing death or serious bodily injury .” Johnston 1

v. State , 115 S.W .3d 761, 764 (Tex. App.—Austin 200 3 ), aff’d , 145 S.W .3d 215 (Tex. Crim. App. 2004).
We will view the evidenc e in the l ight most favor able to the verdict and determine
whether the jury rationally could have found bey ond a rea sonable doubt that Gar za used his vehicle

as a deadly wea

pon. See Brooks v. State , 3 23 S.W .3d 893, 899 (Tex. Crim. App. 2010); see also

Appellant mentions in his summary of the arg ument that he believes the jury should have 1 been instructed that a showing of actua l harm is require d for a deadly wea pon finding

. He does not prese nt that i s s u e i n t h e m ain text as a point of err or, howeve r. Reg ardle ss, we conclude that no showing of actua l harm is require d, and the trial court did not err by failing to include an instruction requiring a finding of actua l harm. See Johnston v. State , 115 S.W .3d 761, 764 (Tex. App.—Austin 2003), aff’d , 145 S.W .3d 215 (Tex. Crim. App. 2004). 3Jack

son v. Virginia , 443 U.S. 307, 319 (1979). We defe r to the jury ’s cre dibilit y and weight
deter minations. Brooks , 323 S.W .3d at 894; Jack son , 443 U.S. at 319.
Police office rs who p u rs ued Gar za provided testimony supporting the finding

. Offic er Sanford testified that, afte r Gar za’s left tires wer e defla ted, “the driver started to wea ve more,

cross into the other lanes of traff ic. He had a lot more difficulty , of course , controlling the vehicle riding on only two working tires.” During this time, Gar za was driving on I H- 3 5 at s p ee d s up to
73 miles per hour. Geor g etown Police Depa rtment Offic er Wy att Raley , who joined the pursuit in
prog ress, stated that Gar za’s tires disintegr ate d and hit trailing vehicles but did not cause him to make evasive maneuvers. Sanford testified that h e b el i eved Gar za’s ability to control t he vehicle
declined as the chase wore on and his tires deter iorated. He testified that Gar za cut off one driver by chang ing lanes abruptly and that tire debris forc ed Sanford to take evasive action. Sanford asser ted
that the disintegr ating tires could have cause d a loss of control that posed a signific ant risk had Gar za been require d to make a sudden chang e of direc tion in traff ic—althoug h he ag ree d that situation did

not occur during the pursuit. Sanford testified tha t Garza a bandoned his vehicle before it came to

a co m plete stop and that it rolled forwa rd while Gar za’s child was strapped to a child safet y s ea t inside. Geor g etown Police Depa rtment I nterim Serg eant Dale Dunca n testified that when he arr ived

at the scene shortly af

t er t h e s t o p, Gar za’s vehicle was “destroy ed” from the disintegr ation of the
three tires. Dunca

n testified that the ca

r wa s smoking so much he fea red tha t it would ignite.
Gar za attempted to e s ta

b li s h th r o u g h c r o s s - e xa

mi n a ti o n s u p port for his arg ument that, despite police office rs’ stated fea rs of what might have happene d, Gar za did not injure or impe ril
any one. Sanford conce ded that he had no scientific rese arc h to deter mine whether or how much the
likelihood t h at Ga rz a would lose control of his vehicle incre ased once the tires wer e flattene d.
S an fo rd also acknow ledg ed that Gar za stay ed in his lane most of the time and used turn signa ls

4when he chang ed lanes. Police tactics minimi zed the number of other drivers on the road, there by

minimi zing the per il to others from Gar za’s driving

.

Although no one was injured d u ri n g Gar za’s evasion, we cannot say based on this

rec ord t h at n o rea sonable jury could rationally conclude that this use of a vehicle was capa ble
of causing death or serious bodily injury

. Garza not only drove the car while intox icated, he drove
it while flee ing p o l i ce wi t h h i s y oung son strapped into the rea r seat. He drove it down a major highw ay at up to 73 mph, acr oss two spike strips deploy ed by police, and then continued on damag ed and disintegr ating tires. The tire debris cause d one police office r to take evasive action and “destroy ed” G arza’s ve hicle. With his son still strapped into the c ar, he abandone d the car rolling
and smoking so heavi l y that a police office r fea red it would ignite. Whil e the ear ly stag es of this pursuit may have been more like the rela tively uneventf ul drive in Cates , see 102 S.W .3d at 738-39,
and may never have rea ched the level of r isk demonstrated in Drichas , see 175 S.W .3d at 798, we conclude that, viewed in the light most favor able to the verdic t, the evidenc e is leg ally sufficie nt to

su p p o rt t h e jury ’s finding that Gar za used the car as a deadly wea pon while driving while
intox icated, e vading arr est, and e ndang ering a child.

Affir med.

J eff Rose, J ustice
Be fore J ustices Pury ear , Pemberton and Rose
Affir med Filed: Aug ust 31, 2011
Do Not Publish

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