### 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. 03-16-00280- CR

Jam es Nicholas Guzm an, App ellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 426 TH JUDICI AL DISTRICT NO. 741 09, H ONO RAB LE F ANCY H. JEZEK, JUDGE P RESIDING

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

J ames Nicholas Guzman was char g ed with evading arr est by using “a motor vehicle while in flig ht from” a police office r. S ee Tex. Penal Code § 38.04(a) (setting out elements of offe nse), (b)( 2) (spec ify ing that offe nse is third-deg ree felony if actor uses vehicle)

. L ater , the State filed a notice of its intent to seek a finding that Guzman “use[d] and exhibit[ ed] a dea dly wea pon, to-wit: a motor vehicle” during the offe nse. Guzman enter ed a g uilty plea reg arding the underly ing alleg ations but reque sted that the district court deter mine whether h e u s ed or exhibi ted a deadly

wea pon during the offe nse. After considering the evidenc e, the district court enter ed a deadly

wea pon finding and sentenc ed Guzman to fo u r y ea rs ’ imprisonment. See id. § 12.34 (setting out permissible pun is h

me n t r a n g e for third-deg ree felony ). I n a single issue on appea l, Guzman contends that the evidence is leg ally insufficient to support t h e district court’s deadly -we apon finding. We will affirm the district c ourt’s judg ment of convic tion.GOVERN ING LAW AND STANDARD OF REVIEW U n d e r a le g a l- s u f

f ic ie n c y standard of revie w, appellate courts view the evide n c e in th e light most favor able to the verdic t and deter mine whether “ any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979). When perf

ormi n g t h i s re v i ew , an appellate court must bear in mind that it is the fac tfinder’ s duty to weig h the evidenc e, t o resolve conflicts in the testimony , and to make

rea sonable i n fe re n ce s “fr om basic fac ts to ultimate fac ts.” Id. Moreove r, appellate courts must “dete rmine whether the nece ssary infere nces are re as onable based upon the combined and cumulative forc e of all the evidenc e when v iewed in the light most favor able to the verdic t.” Hooper v. State , 214 S.W .3d 9, 16-17 (Tex. Crim. App. 2007). Fur thermore, ap p el l at e courts presume t hat conflicting infere nces wer e resolved in favor of the conviction and defe r to that resolution. Clayton v. State , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007). I n addition, courts must bear in mind that “dire ct and circ umstantial evidenc e are trea ted equally ” and that “[c]ircumstantial evidenc e is as probative as direc t evidenc e in establishi n g t h e gu i l t o f an actor ” and “ca n be sufficie nt” on its own “to establish g uilt.” Kiff e v. State , 361 S.W .3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011, pet. ref

’d). The evidenc e is leg ally insufficient if “the rec ord contains no evidenc e,

or mere ly a ‘m o d i cum’ of evidenc e, probative of an element of the offe nse” or if “the evidenc e conclusively

establishes re asonable doubt.” Id. at 107 (quoting Jack son , 443 U.S. at 320). Reg arding a deadly -we apon finding , the Penal Code define s “‘[d]eadly wea pon,’” in rele vant part, as “any

thing that in the manner of its use or intended use is c apable of causing death

or serious bodily injury .” Tex. Penal Code § 1.07(a) (17). “I n order to sustai n a d ea d l y -w ea pon finding , the evidenc e must demonstrate that: 1) the object meets the definition of a deadly wea pon; 22) the de adly wea pon was used or exhibi ted during the transac tion on whic h the fe lony conviction was based; and 3) other people wer e put in actua l dang er.” Brister v. Stat e , 449 S.W .3d 490, 494 (T ex . Crim. App. 2014). “‘O thers’ connotes individuals other than the actor himself, and dange r to the actor alone d o es n o t m ee t t he requisite standard of deadly -we apon use.” Id. I n addition, “[ o ] b j ects that are not usually considere d dang erous wea pons may become so, depending on t h e

manner in which they are used during the commissi o n o f an offe nse,” and a “motor vehicle may become a deadly wea

pon if the manner of its use is capa ble of causing d ea t h o r serious bodily injury .” Drichas v. State , 175 S.W .3d 795, 798 (Tex. Crim. App. 2005). “Specific intent to use a
motor vehicle as a deadly wea pon is not require d.” Id. Fur ther, when evalua ting “the manner in which the defe ndant used the motor vehicle” and when deter mining whether a “def

endant’ s driving was reckless or dang erous,” revie wing courts can consider, among other thing s, “(1) intox ication; (2 ) s p ee d i n g; (3) disreg arding traff ic signs and signa ls; (4) driving err atically ; and (5) failure to

con t ro l the vehicle.” Foley v. State , 327 S.W .3d 907, 916 (Tex. App.—Corpus Christi 2010, pet. ref ’d) ( mem. op.).

DISCUSSIO N

As set out ab o v e, Guz man pleade d g uilty to the offe nse of evading arr est but
reque sted that the district court deter mine whet h er h e u s ed a deadly wea pon during the offe nse. 1 On appea l, Guzman challeng es the sufficie ncy of the evid en ce supporting the district court’s

We note that Guzman signe d a judicial confe ssion admitting that he “c ommitt ed eac h 1 and eve ry act alleg ed” in the indictment. Althoug h the par ties ag ree d to allow the district court to deter mine if Guzman used or exhibi ted a deadly wea pon during the offe nse, the judicial confe ssion does state that “ [a] ll deadly wea pon alleg ations are true a nd corr ect.” 3deadly -we apon finding and urg es that there is no evidenc e showing “eve n a potential dang er to

others.” Acc ording ly , Guzman asser ts that “the deadly wea

pon finding should be deleted from the judgme nt of conviction.” See W illiams v. State , 970 S.W .2d 566, 566 (Tex. Crim. App. 1998) (dele ting deadly -we apon finding when there was insufficient evidenc e showing that defe ndant used or e x hibited deadly

wea pon during offe nse). Although no witnesses wer e called to testify d u ri n g the punishment hear ing, a video rec ording from a police office r’s dashboar d came ra was adm i t t ed into evidenc e, and the district court revie wed that video befor e making its deter mination. See Carroll v. State , 975 S.W .2d 630, 631 (Tex. Crim. App. 1998) (explaining that afte r defe ndant en ters g uilty plea, proce eding “bec omes a ‘unitary trial’ to deter mine the rema ining i ssue of punishment” (quoting Ricondo v. State , 634 S.W .2d 837, 841 (Tex. Crim. App. 1982) (op. on reh’ g )))

. On the video, the office r is depi cted responding to a call from dis patch at a high rate of speed. Fr om the t ime that the officer turned onto a five-la

ne road, including one turn lane, to the time that Guzman’s car was stopped on that road, approximately two-and- a-ha lf minutes passed. Whil e driving to catc h up to Guzman, the office r p as s ed s ever al cars t rave ling in both direc tions on the road. When Guzman’s vehicle first
appea rs on the vi deo, the vehicle is seen traveling at a high rate of speed and st raddling two lanes of traff ic with the tires from eac h side of the car being well within two separ ate lanes, and Guzman continued to straddle the lanes as the office r approa ched. After the office r caug ht up with Guzman, Guzman continued to drive in two lanes of traff ic, made no eff

ort to s top, ran a red light without braking , and crosse d throug h that i n t er s ec t i on immediately afte r a car trave ling in the opposite direc tion had turned left at the intersec tion and crosse d throug h the lanes that Guzman was driving in. On the other side of the intersec tion and while still straddling two lanes of traff ic, Guzman lost
4control of his ca r af ter attempting to turn rig ht without sl owing down, swer ved off of the roa dway immediately afte r apply

ing his brake s once he lost control of the car , crosse d sever al lanes of traff ic, and cra shed into a utilit y pole. After the collision, the office r interac ted with Guzman, and Guzman sounded disoriented, could not reme mb er i f his g irlfriend was in the car or was at home, and admitted initially

that he did not know wher e he w as. 2 Given that the video chronic les Guzman driving at a high rate of speed on a road with drivers traveling in both direc ti o n s , s t ra d d ling two lanes of traff ic for an ex tended period of t ime, running a re d light without braking immediately afte r a car had t urned left and passed throug h the intersec tion acr oss the lanes that he was trave ling in, losing control of his vehicle, and cra shing his

car into a utilit y pole and in light of the rea sonable infere nces that could be made from that evidenc e, including that Guzman passed the car s trave ling in the same direc tion as him while driving unsafe ly in two lanes of traff

ic, we can easily conclude that there was leg ally -suffic ient evidenc e supporting th e d i s t ri ct court’s deter

mination that the m anner in which Guz man was driving his vehicle when he attempted to evade arr est was capa ble of causing death or serious bodily injury and that other drivers wer e put in actua l dang er. Compare Drichas , 175 S.W .3d at 797-98 (dete rmining that there

was sufficie nt evidenc e to support deadly -we apon finding wher e defe ndant drove wrong way

During the punishment hear ing, the district court aske d Guzman if he had any objections 2 or wanted any chang es made to the prese ntence investiga tion repor t, and Guzman stated that he had n o o b je c ti o n . Cf

. To lb e r t v . S

ta te , N o s . 0 1

- 1 0

- 0 0 5 3 6

- CR , - 0 0 5 3 7

- CR , - 0 0 5 3 8

- CR , 2 0 1 1 WL 3 3 5 9 7 1 8 , at *2-3 (Tex. App.—Houston [1st Dis t

. ] Aug. 4, 2011, pet. ref ’d) (mem. op., not desig nated for publication) (explaining that trial court may take judicial notice of fac t in prese ntence investiga tion repor t in absence of objection and that if there is no obje ction reg arding acc urac y of fa ct in repor

t, no additional proof reg arding fac t need be offe red)

. The repor t spe cified, among other things, that Guzman “re ache d the speed of 137 miles per hour” and that “the odor of an alcoholic bever ag e was emitting fr om” Guzman’s “mouth and his ey es we re bloodshot and g lassy .” 5on highw ay during high- speed chase , failed t o y ield to oncoming traff ic, committed numerous traff ic offe nses, lost control of his car , d ro v e er ratically , “wove betwee n lanes and within lanes,” and abandone d his v eh i cl e wh i l e it was still moving “allowing the truck to roll into a parke d

van, which then hit a mobile home”) , Schwalback v. State , Nos. 02-14- 0 0216-CR, -00217-CR, 2015 WL 601746, at *2 (Tex. App.—For t Worth Fe b. 12, 2015, no pet.) (mem. op., not desig nated for publication) (explaining that jury could have found that any o n e o r m o re of following actions

su p p o rt ed d ea dly -we apon finding : “bac king out of the parking spot at a high rate of speed,”

acc eler ating towards office r “while he was still in front of the vehicle,” “spee ding down residential
streets on a flat tire,” “running throug h a red light at a busy i n t erse ction,” and “driving throug h a field and down a jogg ing trail wher e there wer e pedestria ns”), Rose v. State , No. 11-10-00104- CR, 2012 WL 1380406, at *2-3 (Tex. App.—Eastland Apr. 19, 2012, no pet.) (mem. op., not desig nated for publication) (finding evidenc e to be leg ally sufficie nt to support de adly -we apon deter mination when evidenc e established that defe ndant was intox icated, failed to control his vehicle, and cra shed into parke d car ; that there was “short amount of time betwee n [defendant]’s braking and the impact,” which supported infere nce that defe ndant was driving rec k l es sly ; that “ther e were other m otorists
prese nt at the same time and place as the rec kless driving ”; and that defe ndant “re ar- ended a vehicle with two occupa

nts inside”), and Moore v. State , No. 02-09-00192-CR, 2010 WL 4677272, at *8 (Tex. App.—For

t Worth Nov. 18, 2010, pet. ref ’d) (m em . op., not desig nated for publication) (dec iding that evidenc e was sufficie nt to s u p p ort deadly -we apon finding wher e rec ord showed,
among other things, that defe ndan t failed to control speed and spun his truck around, cra shed into building, drove into oncoming traff ic and never at t empt ed to return to corr ect lane, drove at office r’s car and bare ly missed it, and “caused sever al acc idents and drove awa y from them”), 6with Brister , 449 S.W .3d at 495 (conc luding that there was insufficient evidence wher e evidenc e

showed that “on a single occa sion” defe ndant “brie fly crosse d the cente r line into the oncoming lane of traff ic at a time in which there wer e very few , if an y , cars in that lane” and wher e evidenc e showed that defe ndant comm i t t ed no other traff ic offe nses and promptly pulled over afte r police activate d em er gen cy lights), and Balkissoon v. State , No. 03-13-00382- CR, 2016 WL 1576240,
at *6 (Tex. App.—Austin Apr. 13, 2016, no pet.) (mem. op., not desig nated for publication) (ruling that evidenc e was leg ally insufficient t o s h o w t h at driver place d others in dang er when evidenc e established that only vehicles in a rea wer e driver’ s car

and police of

fice r’s c ar, tha t office r did not have to take evasive action to avoid defe ndant, that office r was not in “‘a ctual dang er’ of colliding with” defe ndant’s vehicle at any time, and that defe ndant “wa s not speeding , wea ving, swerving , or drifting on the roa d”). In fac t, to contend otherw ise border s on frivolous.

For these re asons, we ove rrule G uzman’s issue on appea l.

CONCLUSION Having overr

uled Guzman’s sole issue on appea l, we aff irm t h e d i strict court’s judgme nt of conviction.

__________________________________________ David Pury ear , J ustice Be fore J ustice Jus tices Pury ear , Goodwin, and B ourland Affir med Filed: Jul y

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