NO. 06-14-00059-CR

____________________________________________________________

IN THE COURT OF APPEALS 

SIXTH DISTRICT 

AT TEXARKANA, TEXAS 

____________________________________________________________

JAMES WAYNE WALSH, APPELLANT 

V.

THE STATE OF TEXAS, APPELLEE 

____________________________________________________________

APPEAL IN CAUSE NUMBER 28,919 

IN THE 196TH JUDICIAL DISTRICT COURT 

OF HUNT COUNTY, TEXAS 

____________________________________________________________

BRIEF FOR APPELLANT 

____________________________________________________________ 

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: 

Comes now the Appellant and submits this brief pursuant to the provisions 

of the Texas Rules of Appellate Procedure in support of his request for the 

judgment of conviction to be overturned in Cause No. 28,919. 

Appellant Requests Oral Argument

ACCEPTED

06-15-00059-CR

SIXTH COURT OF APPEALS

TEXARKANA, TEXAS

7/22/2015 10:47:41 PM

DEBBIE AUTREY

CLERK

 FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS 7/23/2015 8:13:00 AM DEBBIE AUTREY Clerk
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IDENTITY OF PARTIES AND COUNSEL

Appellant’s Attorney:

Jason A. Duff

2615 Lee Street

P.O. Box 11

Greenville, Texas 75403-0011

Appellant’s Trial Attorney:

David Couch

685 Justin Road

P.O. Box 573

Rockwall, TX 75087-4821

Appellee:

The State of Texas by and through

Noble Walker

Hunt County District Attorney

4

th Floor Hunt County Courthouse

2500 Lee Street

Greenville, Texas 75401

Appellee’s Trial Counsel:

Steven Lilley

Hunt County District Attorney’s Office

4

th Floor Hunt County Courthouse

2500 Lee Street

Greenville, Texas 75401
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TABLE OF CONTENTS

Identity of the Parties and Counsel .............................................................2

Table of Contents .......................................................................................3

Index of Authorities .....................................................................................4

Statement of the Case ................................................................................5

Issue Presented..........................................................................................6

Statement of the Facts................................................................................7

Summary of the Argument ..........................................................................9

Argument and Authorities .........................................................................10

Issue Number One .........................................................................10

The evidence is legally insufficient to support the conviction of 

Appellant for Evading.

Issue Number Two.........................................................................14

The evidence is legally insufficient to support a finding of a 

deadly weapon

Prayer for relief ........................................................................................ 17

Certificate of Word Count..........................................................................18

Certificate of Service.................................................................................18
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INDEX OF AUTHORITIES

FEDERAL CASES:

Jackson v. Virginia, 443 U.S. 307. ............................................................10

United States v. Murray, 527 F.2d 401, 410 (5th Cir.1976). ......................10

STATE CASES:

Anderson v. State, 813 S.W.2d 177 (Tex.App.-Dallas 1991, no pet.)........12

Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010). ...................10

Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)......................10

Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 2001). .................11

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) ....................10

Rankin v. State, 46 S.W.3d 899 (Tex.Crim.App. 2001). ...........................15

Redwine v. State, 305 S.W. 3d 360 (Tex. App. – Houston [14 Dist.] 

2010) ........................................................................................................11

Swartz v. State, 61 S.W.3d 781(Tex.App.-Corpus Christi 2001, pet. ref'd) 12

STATE STATUTES:

TEX. PEN. CODE ANN §1.07(17)(A)&(B) (Casemaker 2015) ..................15

TEX. PEN. CODE ANN §38.04(a) (Casemaker 2015) ..............................10

TEX. PEN. CODE ANN §38.04(b)(2) (Casemaker 2015)..........................11

TEX. R. APP. P 78.1(c) (Casemaker 2015) ..............................................16
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STATEMENT OF THE CASE

This is an appeal of and sentence in criminal case for the 354th

Judicial District, in Hunt County, Texas. Appellant was convicted Evading 

Arrest with a Vehicle. Appellant was assessed a sentence Forty Five (45) 

years Imprisonment on February 12, 2015 by a Jury. The Jury made a 

finding that Appellant committed the offence will using a deadly weapon. 

Notice of appeal was given on February 17, 2015. The clerk's record was 

filed April 22, 2015. The reporter's record was filed on April 20, 2015.
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ISSUE PRESENTED

ISSUE ONE: 

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE 

CONVICTION OF APPELLANT OF EVADING ARREST.

ISSUE TWO: 

THE EVIDENCE IS LEGALLY INSUFFICIENT TO SUPPORT THE 

FINDING THAT DEFENDANT USED A MOTOR VEHICLE AS A 

DEADLY WEAPON.
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STATEMENT OF THE FACTS

James Wayne Walsh was charged with one offence in his indictment. 

The indictment alleged that Walsh, while using a vehicle, evaded arrest. In 

the same indictment Walsh was alleged to use the motor vehicle in a 

manner of its use and intended use was capable of causing death or 

serious bodily injury. (CR Vol. 1 p. 11.)

At trial the prosecution began its case by eliciting testimony from a 

David Coulson, the owner of a tan ford pick-up truck. Coulson believed 

that he was to testify about the theft of his truck. (RR Vol. 4 p. 21). 

Coulson then testified that he did not recognize the Walsh, and never saw 

Walsh try to evade arrest in his pick-up truck. (RR Vol.4 p. 24). Then as 

second person, named Rick Nelson testified that from 75 or 100 feet away 

he observed a person in from a tan pick-up truck in between that truck and 

a utility trailer. Nelson stated that only by the time he got close enough this 

person was getting back in that truck. Nelson then told an officer passing 

by that he believed that person was attempting to steal a trailer. (RR Vol. 4 

p. 30-35). Nelson later testified that it was possible that he did not see a 

second person if they were in the floorboard, laying down or leaning over. 

(RR Vol. 4 p. 42).
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Nelson stated that he flagged down Officer Bobby Wooldridge and 

informed him of that he believed a person in the tan truck tried to steal a 

trailer. (RR Vol. 4 p. 34-35). Officer Wooldridge stated that he in turn 

started to follow the tan truck. Wooldridge then stated he activated 

overhead lights and the tan truck stared to accelerate. The State proffered 

evidence of the tan truck through State’s exhibit 21, which showed the 

encounter of Officer Wooldridge. In the video the tan truck maneuvers

through a parking lot on the service road to the onramp of Interstate 30. 

The truck then exists the freeway by crossing a grassy divide and turns 

onto a side street. At that point the truck turns on to a side street out of 

view of the camera. (RR State’s Exhibit 21). Wooldridge eventually 

testified that he could not positively testify that Walsh was the one driving 

the tan truck.

When Wooldridge was asked if it was his testimony that Walsh used 

the truck as a deadly weapon, he said, “I don’t believe so.” Wooldrige 

added that in an evading situation it could always come to that. (RR Vol. 4 

p. 97).
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SUMMARY OF THE ARGUMENT

Issue One:

The evidence is legally insufficient to support the conviction of 

Appellant for evading or detention.

Even when looking at all the evidence in the light most 

favorable to the State, the evidence does not establish that the logical force 

of the evidence, to the Appellant himself. Simply stated, there is a 

complete lack of evidence, which is required to sustain Appellant’s 

conviction.

Issue Two:

The evidence is legally insufficient to support the finding of a deadly 

weapon.

The evidence presented at trial simply does not support a finding that 

the Appellant used a vehicle as a deadly weapon as set out in the statute 

and accompanying caselaw.
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ARGUMENT

Issue One: The evidence is legally insufficient to support the 

conviction of Appellant as indicted.

When reviewing legal sufficiency of the evidence, Courts review all 

the evidence in the light most favorable to the jury's verdict to determine 

whether any rational jury could have found the essential elements of the 

charged offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 

893, 912 (Tex.Crim.App.2010);Jackson v. Virginia, 443 U.S. 307, 319. 

Emphasis added. Legal sufficiency of the evidence is measured by the 

elements of the offense as defined by a hypothetically correct jury charge. 

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The 

hypothetically correct jury charge “sets out the law, is authorized by the 

indictment, does not unnecessarily increase the State’s burden of proof or 

unnecessarily restrict the State’s theories of liability, and adequately 

describes the particular offense for which the defendant was tried.” Id.

To support a conviction of the appellant, the State must prove beyond 

a reasonable doubt that Appellant intentionally fled from a person he knows 

is a peace officer attempting lawfully to arrest or detain him. TEX. PEN. 

CODE ANN §38.04(a) (Casemaker 2015). If the actor uses a vehicle while 
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the actor is in flight the offense is a felony in the third degree. TEX. PEN. 

CODE ANN §38.04(b)(2) (Casemaker 2015).

Because the State only alleged that Walsh evaded arrest using a 

motor vehicle and nothing else it is immaterial if the evidence would 

support a conviction for the lessor included offense of evasion on foot. 

Redwine v. State, 305 S.W. 3d 360 (Tex. App. – Houston [14 Dist.] 2010). 

The hypothetically correct jury charge cannot completely rewrite the 

indictment, but such a charge need not “track exactly all of the allegations 

in the indictment.” Gollihar v. State, 46 S.W.3d 243, 253 (Tex. Crim. App. 

2001). The “‘law’ as ‘authorized by the indictment’ must be the statutory 

elements” of the offense charged “as modified by the charging instrument.” 

Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000), overruled in 

part on other grounds by Gollihar, 46 S.W.3d 243. 

Consequently, if the essential elements of the offense are modified by 

the indictment, the modification must be included. Gollihar, 46 S.W.3d at 

254. However, the hypothetically correct charge “need not incorporate 

allegations that give rise to immaterial variances.” Id. at 256.

Here there is little evidence that would place Walsh as the driver of 

the vehicle that officer Wooldridge followed. There is only evidence that 
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Walsh may have travelled on foot, but there is no evidence of a connection 

to the truck. 

Courts have consistently held that an “uncertain in-court identification 

of an accused as the perpetrator of a crime, standing alone, is insufficient 

to support a guilty verdict." Anderson v. State, 813 S.W.2d 177, 179 

(Tex.App.-Dallas 1991, no pet.), cited in Swartz v. State, 61 S.W.3d 781, 

788 (Tex.App.-Corpus Christi 2001, pet. ref'd); United States v. Murray, 527 

F.2d 401, 410 (5th Cir.1976).

The Fifth Circuit has explained: Questions of identification are, of 

course, ordinarily for the determination of the jury. If, however, the witness

is unsure and there are no other connecting or corroborating facts or 

circumstances the jury is left without evidence upon which to translate

unrelieved uncertainty into belief from the evidence beyond a reasonable 

doubt. Murray, 527 F.2d at 410. In this cases multiple witnesses viewed 

the tan truck and were unable to identify Appellant driving the truck beyond 

a reasonable doubt. 

The State’s witness, Coulson, testified that he did not recognize the 

Walsh, and never saw Walsh try to evade arrest in his pick-up truck. (RR 

Vol.4 p. 24). Then Rick Nelson testified that from 75 or 100 feet away he 

observed a person in from a tan pick-up truck in between that truck and a 
13

utility trailer. Nelson stated that only by the time he got close enough this 

person was getting back in that truck. Nelson later testified that it was 

possible that he did not see a second person if they were in the floorboard, 

laying down or leaning over. (RR Vol. 4 p. 42). Lastly, Officer Wooldridge

eventually testified that he could not positively testify that Walsh was the 

one driving the tan truck. (RR Vol. 4 p. 121). In fact Wooldridge testified 

there was a time when he lost sight of the truck. (RR Vol. 4. p.58). 

Consequently the officer did not observe anyone exit the truck, nor is there 

a witness that did see anyone exit the truck. Moreover, Appellant 

submitted evidence of an unavailable witness who stated Appellant was a 

passenger. (RR Vol. 5 p. 19-22).

The State insufficiently relied on evidence which was not enough to 

create the logical force necessary to allow a rational juror to find that the 

appellant had indeed evaded using a motor vehicle.

Even if evidence that Appellant was seen and found on foot after a 

search by the police is weighed by the fact finder, they could not have 

rationally connected Appellant driving the truck with the pursuit of the tan 

truck. No witness identified Appellant driving the tan truck or exiting the tan 

truck after it had come to a halt. Moreover no witness could even show 

that Appellant was in actual possession of the truck. There was not even 
14

evidence that Appellant is the person who removed the truck from Grayson 

County from its owner.

In this case, the State did not prove beyond a reasonable doubt that 

Appellant intentionally evaded with the motor vehicle. Here, Appellant was 

not seen to be in direct possession of the tan truck by the testifying officer 

or any other witness. 

Therefore, even resolving any facts in the State’s favor, there is 

insufficient evidence to convict the Appellant in this case and his conviction 

should be overturned.

Issue Two: The evidence is legally insufficient to support the 

finding that a deadly weapon was used in the underling 

offence.

If this Court rejects Appellant’s contention that the evidence is legally 

insufficient to convict him of evading arrest with a motor vehicle, then 

Appellant asserts the evidence is at least insufficient to show that he used 

a motor vehicle as a deadly weapon. Appellant’s mere driving of the 

vehicle is not enough to connect him to its use as a deadly weapon. The 

Texas penal code defines a deadly weapon as a firearm or anything 
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manifestly designed, made, or adapted use for the purpose of inflicting 

death or serious bodily injury; or anything that in the manner of its use or 

intended use is capable of causing death or serious bodily injury. TEX. 

PEN. CODE ANN §1.07(17)(A)&(B) (Casemaker 2015).

As stated above a Court must look at all of the evidence in the light 

most favorable to the verdict to determine whether any rational trier of fact 

could have found that the essential elements of the offense were proven 

beyond a reasonable doubt. Jackson at 319. The Court of Criminal 

Appeals has previously indicated that challenges to the sufficiency of the 

evidence concerning deadly weapon findings in particular need not be 

preserved for review at the trial level. Rankin v. State, 46 S.W.3d 899 

(Tex.Crim.App. 2001). 

The only evidence of the truck in motion is a mere 90 seconds of 

video. In the video the tan truck maneuvers through a parking lot on the 

service road to the onramp of Interstate 30. The truck passes a few 

vehicles on the left, then exists the freeway by crossing a grassy divide and 

turns onto a side street. At that point the truck turns on to a side street out 

of view of the camera. In fact the truck appears to slow down before it 

turns off camera. (RR State’s Exhibit 21). When Officer Wooldridge was 

asked if it was his testimony that Walsh used the truck as a deadly weapon, 
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he said, “I don’t believe so.” Wooldrige added that in an evading situation it 

could always come to that. (RR Vol. 4 p. 97). Meaning the officer’s initial 

uncertain testimony indicates that in a chase, the vehicle could become a 

deadly weapon but here it did not. 

Consequently, there is no other evidence of the use of the truck as a 

deadly weapon, the jury was left to speculate without evidence upon which 

to translate unrelieved uncertainty into belief from the evidence beyond a 

reasonable doubt. 

Because the evidence was legally insufficient to sustain a deadly 

weapon finding, the appropriate remedy is for this court to reverse at least

the part of the judgment reflecting the deadly weapon finding, and reform 

the trial court’s judgment to delete it. Tex. R. App. P. 78.1(c) (Casemaker 

2015). 
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PRAYER FOR RELIEF

Wherefore, premises considered, Appellant respectfully prays that his

conviction in the above entitled and numbered cause be reversed and 

acquit him. Appellant further prays for all other lawful relief to which he 

may be entitled, at law or in equity.

Respectfully submitted,

Jason A. Duff

State Bar No. 24059696

2615 Lee Street

P.O. Box 11

Greenville, TX 75403-0011

Attorney for the Appellant
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CERTIFICATE OF COMPLIANCE OF TYPEFACE AND WORD COUNT

In accordance with Texas Rules of Appellate Procedure 9.4 (e) and 

(i), the undersigned attorney or record certifies that Appellant's Brief 

contains 14-point typeface of the body of the brief, 12-point typeface for 

footnotes in the brief and contains 1,980 words, excluding those words 

identified as not being counted in appellate rule of procedure 9.4(i)(1), and 

was prepared on Microsoft Word 2010.

Jason A. Duff

Attorney for the Appellant

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and 

foregoing instrument was forwarded to Hunt County District Attorney Noble 

D. Walker, Jr., P.O. Box 1097, Greenville, Texas 75403, on this the 22nd

day of July, 2015, by hand and to the Court of Appeals in Texarkana via 

Electronic Filing.

Jason A. Duff

Attorney for the Appellant