1... See Tex. R. App. P. 47.4.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-08-138-CR

NO. 2-08-139-CR

ANTHONY DWAYNE MORGAN APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 415TH DISTRICT COURT OF PARKER COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Anthony Dwayne Morgan of felony evading

arrest in a vehicle and burglary of a habitation. Finding the enhancement

allegations to be true in each case, the jury assessed punishment at twenty

years’ confinement in the evading arrest case and sixty years’ confinement in

the burglary case. The trial court sentenced Appellant accordingly. In two
2

issues in each case, Appellant challenges the legal and factual sufficiency of the

evidence. Because we hold that the evidence is legally and factually sufficient

to support both convictions, we affirm the trial court’s judgments. 

Background Facts

Around 10:15 on the morning of August 3, 2007, while on patrol on

Interstate 20, State Trooper Troy Erichsen saw a white Suburban speeding in

the opposite direction. Erichsen turned around and began following the

Suburban and, when he got close to the vehicle, turned on his lights and sirens.

The Suburban changed lanes and accelerated. An eighteen-mile chase ensued,

which ended when the Suburban skidded off the road into a ditch, then into the

yard of a residence, and then around a fountain in the yard, finally stopping.

During the chase, Erichsen did not notice anyone in the vehicle other than the

driver, a dark-complected male wearing a light-colored shirt, whom Erichsen

could not see clearly because of the Suburban’s window tinting.

As the Suburban stopped, Erichsen saw the Suburban’s driver’s door

open. He did not see anyone exit the vehicle; upon inspection he determined

that no one was inside it. A crime scene investigator called to the scene found

a bloody tooth on the floorboard.

On the same morning, shortly after the car chase ended, Appellant

entered a house behind the residence where the Suburban had stopped. The
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owner of the house, Dorothea Vandagriff, was in the kitchen when Appellant

entered.

Vandagriff saw that Appellant was bleeding on his chin and neck. She

stated, “You’re injured,” and offered to get her husband, who was mowing the

lawn. At that point Appellant shut the door, locked it, and closed the blinds.

Appellant stated, “You’ve got to help me[,] and I’ll pay you.” Vandagriff

offered to call 911 and walked toward the telephone, but Appellant pulled her

back from the telephone and said, “No calls.” He asked her for the keys to her

car, and she gave them to him. She showed him her car parked in her garage,

and Appellant said that he wanted her to drive him and that he would pay her.

Appellant walked around the car to the passenger side. Vandagriff walked

around to the driver’s side, and while she was doing so, she saw her neighbor

in her own front yard. Vandagriff ran toward her neighbor, yelling, “He’s

stealing my car.” The neighbor spotted the police officers searching the

neighborhood for the Suburban driver and yelled to the officers, “He’s in there,”

pointing to the Vandagriff home. Appellant started the car, backed it out of the

garage, turned it in the yard, and started to drive out of the driveway, at which

point he was stopped by the police officers and taken into custody. His arrest

occurred within minutes the end of the car chase.
2... See Tex. Penal Code Ann. § 38.04(a), (b)(1) (Vernon 2003) (providing

that “[a] person commits an offense if he intentionally flees from a person he

knows is a peace officer attempting lawfully to arrest or detain him” and “uses

a vehicle while . . . in flight”).

3... Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

4

Evidence of Evading Arrest in a Vehicle is Legally Sufficient

Appellant argues in his second issue that the evidence is legally

insufficient to support the jury’s verdict because the evidence fails to show that

he was the driver of the Suburban.2 In reviewing the legal sufficiency of the

evidence to support a conviction, we view all the evidence in the light most

favorable to the prosecution in order to determine whether any rational trier of

fact could have found the essential elements of the crime beyond a reasonable

doubt.3

The record contains some direct evidence that Appellant was the driver

of the Suburban. It was daylight. Although the windows were tinted, Officer

Erichsen could see into the vehicle. He was able to determine that the driver

was a male who had a dark complexion and wore a light-colored shirt. Erichsen

saw no other person in the vehicle. Appellant is a male with a dark complexion,

and he was wearing a light-colored shirt at the time of his arrest.

The record also contains some circumstantial evidence that Appellant was

the driver of the vehicle. Officer Erichsen and Mrs. Vandagriff both testified
4... Laster v. State, No. PD-1276-07, 2009 WL 80226, at *4 (Tex. Crim.

App. Jan. 14, 2009).

5... Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d

at 778.

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that Appellant was bleeding from the mouth. The crime scene investigator

found a tooth on the floorboard of the Suburban. Appellant went to Mrs.

Vandagriff’s house, which was behind the house where the Suburban finally

came to a stop. When Appellant came into the house, he locked the door and

pulled down the blinds. He was breathing heavily and seemed very nervous.

He tried to flee in Mrs. Vandagriff’s car. Officers arrested Appellant within

minutes of the Suburban’s coming to a stop in Mrs. Vandagriff’s neighbor’s

yard. The Suburban had New Mexico license plates. Appellant had outstanding

New Mexico warrants, and he had a Clovis, New Mexico address.

We treat circumstantial evidence exactly the same way that we treat

direct evidence.4 The question is whether a rational trier of fact could

determine Appellant’s guilt beyond a reasonable doubt.5 Applying the

appropriate standard of review, we hold that the evidence is legally sufficient

to support Appellant’s conviction for evading arrest. We overrule Appellant’s

second issue.
6... Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008); Watson

v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006).

7... Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008);

Watson, 204 S.W.3d at 414–15, 417.

8... Watson, 204 S.W.3d at 417.

9... Laster, 2009 WL 80226, at *3.

6

Evidence of Evading Arrest in a Vehicle is Factually Sufficient

In his first issue, Appellant argues that the evidence is factually

insufficient to support his conviction of evading arrest because the evidence

fails to show that he was the driver of the Suburban. When reviewing the

factual sufficiency of the evidence to support a conviction, we view all the

evidence in a neutral light, favoring neither party.6 We then ask whether the

evidence supporting the conviction, although legally sufficient, is nevertheless

so weak that the factfinder’s determination is clearly wrong and manifestly

unjust or whether conflicting evidence so greatly outweighs the evidence

supporting the conviction that the factfinder’s determination is manifestly

unjust.7 To reverse under the second ground, we must determine, with some

objective basis in the record, that the great weight and preponderance of all the

evidence, though legally sufficient, contradicts the verdict.8

We do not combine the legal and factual sufficiency reviews.9 The facts,

however, remain the same, whether we are engaging in a factual sufficiency
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review or a legal sufficiency review; only the lens through which we view the

evidence changes.

Officer Erichsen followed the Suburban. Although the windows were

tinted, he was able to see into the vehicle and saw only one person, the driver.

He saw that the driver was a male with a dark complexion who was wearing

a light-colored shirt. As the Suburban stopped, Officer Erichsen saw the

driver’s-side door open, although he did not see anyone get out of the vehicle.

He did not testify that he saw any other door open. No one was left in the

vehicle. On the floorboard, the crime scene investigator found a bloody tooth.

Officer Erichsen testified that Appellant is a dark complected male and

was wearing a light-colored shirt at the time of his arrest. Officer Erichsen also

testified that Appellant was bleeding profusely from the mouth at the time of

his arrest and that it appeared that a couple of his teeth had been knocked out.

Officer Erichsen additionally testified that the Suburban had a New

Mexico license plate. Subsequent investigation revealed that Appellant had

outstanding warrants in New Mexico and that Appellant had a Clovis, New

Mexico address.

Mrs. Vandagriff identified Appellant as the person who came into her

house, breathing heavily and appearing very nervous, and who got upset when

she offered to call 911. He took the keys to her car and attempted to drive off.
10... See Tex. Penal Code Ann. § 30.02(a)(1), (3) (Vernon 2003)

(providing that “[a] person commits an offense if, without the effective consent

of the owner, the person . . . enters a habitation . . . [1] with intent to commit

a felony, theft, or an assault” or (2) “and commits or attempts to commit a

felony, theft, or an assault”).

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Mrs. Vandagriff identified Appellant at trial and testified that when he came into

her house, he had blood on his clothing, and his mouth was bleeding.

Mrs. Vandagriff’s house was behind the house where the Suburban

stopped. Appellant was arrested within minutes after the Suburban slid to a

stop in Mrs. Vandagriff’s neighbor’s yard.

Applying the appropriate standard of review, we hold that the evidence

is factually sufficient to support Appellant’s conviction for felony evading

arrest. We overrule Appellant’s first issue.

Evidence of Burglary of a Habitation is Legally Sufficient

In his fourth issue, Appellant contends that the evidence is legally

insufficient to support his burglary conviction because the evidence fails to

establish that Vandagriff did not consent to his entry into the house.10 Direct

and circumstantial evidence supports the jury’s conclusion that the evidence is

legally sufficient to show the absence of consent.

The direct evidence includes testimony of the owners. Mrs. Vandagriff

testified that Appellant did not have her consent to enter her home. Her
11... Laster, 2009 WL 80226, at *3.

12... See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 235

S.W.3d at 778.

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husband testified that Appellant did not have his permission to enter their

home. There is no evidence that anyone else was an owner of the home.

Circumstantial evidence, which we treat in exactly the same way we treat

direct evidence,11 also supports the verdict. When Mrs. Vandagriff said that

she would call her husband, Appellant quickly closed and locked the door and

closed the blinds, both on the door and on the adjacent window. When Mrs.

Vandagriff offered to call 911, Appellant became upset and demanded that she

not do so. He asked Mrs. Vandagriff for the keys to her car, offering to pay her

to help him flee the scene. There is no evidence that Appellant either had

permission to enter the home or believed that he had permission to enter the

home.

Applying the appropriate standard of review,

12 we hold that the evidence

is legally sufficient to support Appellant’s conviction for burglary of a

habitation. We overrule Appellant’s fourth issue.

Evidence of Burglary of a Habitation is Factually Sufficient

In his third issue, Appellant argues that the evidence is factually

insufficient to support his conviction for burglary of a habitation because the
13... See Neal, 256 S.W.3d at 275; Lancon, 253 S.W.3d at 704; Watson,

204 S.W.3d at 414–15, 417.

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evidence does not show the absence of the owner’s consent to Appellant’s

entry into the house.

Mrs. Vandagriff testified that when Appellant came into her kitchen, he

entered through her back kitchen door, which had been closed. She testified

that she did not give Appellant permission to enter her home. Mr. Vandagriff

testified that he did not give Appellant permission to be in his house on the day

of the offense. There is no evidence contradicting these assertions. Applying

the appropriate standard of review,

13 we hold that the evidence is factually

sufficient to support Appellant’s conviction for burglary of a habitation. We

overrule Appellant’s third issue.

Conclusion

Having overruled Appellant’s four issues, we affirm the trial court’s

judgments.

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: March 5, 2009