                                                                                  ACCEPTED
                                                                              06-15-00059-CR
                                                                   SIXTH COURT OF APPEALS
                                                                         TEXARKANA, TEXAS
                                                                        8/11/2015 11:24:05 AM
                                                                             DEBBIE AUTREY
                                                                                       CLERK


             IN THE COURT OF APPEALS FOR THE
          SIXTH DISTRICT OF TEXAS AT TEXARKANA
                                                          FILED IN
                                                   6th COURT OF APPEALS
                                                     TEXARKANA, TEXAS
STATE OF TEXAS,            §                       8/11/2015 12:19:00 PM
   APPELLEE                §                            DEBBIE AUTREY
                                                            Clerk
                           §                06-15-00059-CR
    v.                     §            No. 06-14-00059-CR
                           §
JAMES WAYNE WALSH,         §
   APPELLANT                §


                     STATE'S REPLY BRIEF

                 FROM THE 196TH DISTRICT COURT
                      HUNT COUNTY, TEXAS
                   TRIAL CAUSE NUMBER 28,919
         THE HONORABLE ANDREW BENCH, JUDGE PRESIDING


                                NOBLE DAN WALKER, JR.
                                District Attorney
                                Hunt County, Texas

                                G CALVIN GROGAN V
                                Assistant District Attorney
                                P. 0. Box 441
                                4th Floor Hunt County Courthouse
                                Greenville, TX 75403
                                (903) 408-4180
                                FAX (903) 408-4296
                                State Bar No. 24050695
                                     TABLE OF CONTENTS


TABLE OF CONTENTS .......................................................................................... 2
INDEX OF AUTHORITIES ..................................................................................... 3
STATEMENT OF CASE .......................................................................................... 5
ISSUES
PRESENTED ..................................................................................... 5
SUMMARY OF STATE'S ARGUMENTS ............................................................ 5
STATEMENT OF FACTS ........................................................................................ 6
EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE APPELLANT
EVADED ARREST WITH A VEHICLE ................................................................. 9
   STANDARD OF
   REVIEW ......................................................................................... 9

STRONG CIRCUMSTANTIAL EVIDENCE ........................................................ I a

EVADING ARREST IS A CONTIUNOUS OFFENSE ......................................... l2

EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE APPELLANT'S
USED MOTOR VEHICLE AS A DEADLY WEAPON ....................................... 13

STANDARD OF REVIEW ..................................................................................... l3

OFFICER'S IN-CAR VIDEO .................................................................................. l3

PRAYER .................................................................................................................. 14

CERTIFICATE OF SERVICE ................................................................................ 15




                                                                                                                2
                             INDEX OF AUTHORITIES

Federal Cases
Jackson v. Virginia, 443 U.S. 307 (1987) .............................................................. 9

Texas Cases
Boutwell v. State, 719 S.W.2d 164, 180 (Tex. Crim. App. 1985) ........................ 11
Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) ............................. 9
Cates v. State, 102 S.W.3d 735, 739 (Tex. Crim. App. 2003) ............................. 10
Davis v. State, 964 S.W.2d 352, 354 (Tex. App.- Fort Worth 1998, no pet.) .... 11
Earls v. State, 707 S.W.2d 82, 85 (Tex.Crim.App.1986) ..................................... 10
Geesa v. State, 820 S.W.2d 154, 158 (Tex. Crim. App. 1991) .............................. 9
Hernandezv. State, 13 S.W.3d 78,80 (Tex. App. -Texarkana2000) ................ 11
Hobbs v. State, 175 S.W.3d 777, 781 (Tex. Crim. App. 2005) ............................ 12
Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003, en bane) ........... 9
Williams v. State, 970 S.W.2d 566 (Tex. Crim. App. 1998) ............................... 11

Texas Statutes
TEX. Penal Code§ 1.07(17)(A) (Vernon 2013) ................................................... 13
TEX. Penal Code§ 38.04(a) (Vernon 2013) ......................................................... 10




                                                                                                 3
              IN THE COURT OF APPEALS FOR THE
           SIXTH DISTRICT OF TEXAS AT TEXARKANA


THE STATE OF TEXAS,                       §
   APPELLEE                               §
                                          §
      v.                                  §             No. 06-14-00059-CR
                                          §
JAMES WAYNE WALSH,                        §
   APPELLANT                              §



                            STATE'S REPLY BRIEF



TO THE HONORABLE COURT OF APPEALS:

     NOW COMES the State of Texas, Appellee, in this appeal from
Cause No. 28,919 in the I 96th District Court in and for Hunt County, Texas,
Honorable Andrew Bench, Presiding, now before the Sixth District Court of
Appeals, and respectfully submits this its brief to the Sixth District Court of
Appeals.




                                                                              4
                           Statement of the Case

      Appellant was indicted for Evading Arrest Using a Vehicle on March

22, 2013, and arraigned on May 8, 2013. CR Vol.l.p.4. After several

continuances, Appellant was found guilty by a jury on February 11, 2015,

and sentenced to forty-five years in the Texas Department of Corrections.

CR Vol.1.p.5. The jury also made an affirmative deadly weapon finding.

CR Vol.1.p.45. Appellant gave written notice of appeal on February 17,

2015. CR Vol.l.p.53.



                           ISSUE PRESENTED

Issue 1. Was the Evidence Legally Sufficient to Prove Appellant Evaded

Arrest in a Motor Vehicle?

Issue 2: Was the Evidence Legally Sufficient to Prove Appellant Used a

Motor Vehicle as a Deadly Weapon?

                   SUMMARYOFTHEARGUMENT

1. When the strong circumstantial evidence is viewed in a light most

   favorable to the State, a rational juror could have found all the elements

   of Evading Arrest in a Motor Vehicle proven beyond a reasonable doubt.

2. When Officer Wooldridge's in-car video is viewed in a light most

   favorable to the State, a rational juror could have found beyond a



                                                                                5
   reasonable doubt the Appellant used the pickup truck in a manner that

   could have caused death or serious bodily injury.

                             Statement of the Facts

   On February 11,2013, around 5:00p.m. in the late afternoon, Ricky

Nelson observed a suspicious person near his commercial property. RR

Vol.4.p.30. Upon closer inspection, Mr. Nelson believed the man was trying

to steal a loaded utility trailer by hooking it up to a pickup truck. RR

Vol.4.pp.32, 40. At no time did Mr. Nelson ever see another person around

or in the suspicious pickup truck. RR Vol.4.pp.33, 44. Mr. Nelson identified

the suspicious person as being shorter than 5' 11". RR Vol.4.p.33. Mr.

Nelson gave short pursuit in his vehicle until he was able to flag down a

Greenville Patrol Car on Moulton Street. RR Vol.4.pp.34, 47. After Mr.

Nelson pointed out the suspicious vehicle and explained what he had

observed, Greenville Police Officer Bobby Woolridge immediately spotted

the suspect in a tan Ford pickup truck driving through a nearby retail parking

lot. RR Vol.4.pp.35, 47, 50; State's Exhibit No. 15. Officer Woolridge

pulled into the parking lot and got directly behind the tan pickup truck. RR

Vol.4.p.51. Officer Woolridge's in-car video equipment began recording

thirty seconds prior to the activation of the overheard lights. RR Vol.4.p.51;

State's Exhibit No. 21. After pulling onto the service road, Officer



                                                                                 6
Woolridge activated his sirens but the tan Ford pickup truck continued

moving forward. RR Vol.4.p.52. After committing several traffic violations,

the tan Ford pickup truck entered the onramp for Interstate 30 ("IH-30")

westbound traffic. RR Vol.4.p.53. Eventually, Officer Woolridge observed

the tan Ford pickup truck drive through the grass median until it got onto the

IH-30 service road. RR Vol.4.p.54. Officer Woolridge saw the tan Ford

pickup truck head northbound on Davis Circle, a residential street that had

no exit. RR Vol.4.pp.56-7. To avoid getting stuck in the mud and knowing

the pickup truck could not escape, Officer Woolridge drove further up IH-30

until it was safe to tum around. RR Vol.4.p.56.



During the chase, which lasted over a minute and included driving on

Interstate 3 0 at a high rate of speed, several innocent motorists had to take

evasive action to avoid harm's way. The chase ended because the tan Ford

pickup truck got stuck in a ditch behind a residence on Davis Circle. RR

Vol.4.p.58; State's Exhibit No.4. Although Officer Woolridge lost sight of

the suspect vehicle for approximately two minutes, he relocated the vehicle

and requested backup assistance. RR Vol.4.p.61. While Officer Woolridge

waited for backup to arrive, he saw Appellant leaning into the driver's side

of the tan Ford pickup truck. RR Vol.4.p.62. Officer Woolridge believed



                                                                                 7
Appellant was removing items from the pickup truck. RR Vol.4.p.62.

Officer Woolridge also described the suspect as short. RR Vol.4.p.67. After

Officer Woolridge gave verbal commands to stop, Appellant took off

running. RR Vol.4.p.67. Similar to Mr. Nelson, at no time did Officer

Woolridge ever see more than one person inside the tan Ford pickup truck.

RR Vol.4.pp.52, 67.



      Once other Greenville Police Officers arrived, a perimeter was setup

near the area the Appellant was last seen. After spending thirty minutes

canvassing the nearby neighborhood, Greenville Police Officers Phillip

Spencer and Sgt. Eric Camp came upon a shed in a residential backyard. RR

Vol.4.pp.72, 135. Officer Spencer tracked foot shoeprints through the mud,

which led him to the shed. RR Vol.4.pp.144-5. Appellant was found inside

the shed and taken into custody. RR Vol.4.pp.73, 94; State's Exhibit Nos.

18& 19. According to the arresting officers, Appellant was hiding inside the

shed, and officers used a show of force to get him into custody. RR

Vol.4.pp.133, 165. The shed was about 200 yards away from the stuck tan

Ford pickup truck. RR Vol.4.p.69. Police also found documentation linking

Appellant to the suspect vehicle during their evidence collection at the crime

scene. RR Vol.4.p.93; State's Exhibit No.8.



                                                                               8
                                ARGUMENT



1. Evidence was Legally Sufficient to Prove Appellant Evaded Arrest in

   a Motor Vehicle

      a. Standard of Review

   When reviewing legal sufficiency of the evidence, the Courts review all

the evidence in a 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

(1987). The standard of review is the same for both direct evidence and

circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 158 (Tex.

Crim. App. 1991). "While each piece of evidence lacked strength in

isolation, the consistency of the evidence and the reasonable inferences

drawn therefrom, provide the girders to strengthen the evidence and support

a rational jury's finding the elements beyond a reasonable doubt."

Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). To prove

Evading Arrest in a Motor Vehicle, the State had to prove beyond a

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




                                                                             9
a peace officer attempting to lawfully detain or arrest him. TEX. PEN. CODE

Sec. 38.04(a) (Vernon 2013).

      b. Strong Circumstantial Evidence

  Appellant's sole contention at trial and on appeal is that he was not

driving the tan Ford pickup truck on February 11, 2013, and that the State

failed to prove his identity as the driver of the tan Ford pickup truck.

"Evidence as to the identity of a perpetrator of an offense can be proved by

either direct or circumstantial evidence." Earls v. State, 707 S.W.2d 82, 85

(Tex.Crim.App.1986).

  Officer Woolridge tried to investigate into Mr. Nelson's suspicions

further by turning on his overheads and siren, but the tan Ford pickup truck

refused to stop. Neither Mr. Nelson nor Officer Woolridge ever saw more

than one person operating the tan Ford pickup truck on February 11, 2013.

Both witnesses described the pickup truck driver as being short.

  Officer Woolridge saw Appellant removing items from the vehicle. RR

Vol.4.p.112. Instead of complying with Officer Woolridge's command to

stop, Appellant took off running. However, Appellant left behind

identifying information near the pickup truck that was later collected by

police. "Facts occurring before and after an offense can .... be relevant




                                                                               10
circumstantial evidence ofthe offense charged." Cates v. State, 102 S.W.3d

735, 739 (Tex. Crim. App. 2003).

  In Hernandez, this Court found facts very similar to be legally sufficient

to prove the Appellant was operating a motor vehicle while intoxicated.

Hernandez v. State, 13 S.W.3d 78, 80 (Tex. App.- Texarkana 2000). In

Hernandez, Appellant was placed by witnesses, immediately after the

accident, on the driver's side of a pickup truck which belonged to him. !d.

  There are several possible motives for Appellant's actions that day: 1) Mr.

Nelson caught Appellant trying to steal a utility trailer, 2) David Coulson

testified that he discovered his tan Ford pickup truck missing only a few

hours earlier, and he did not know the Appellant nor give him permission to

use it that day. RR Vol.4.pp.23-4, and 3) State's Exhibit No.8 shows

Appellant was on parole and in a stolen vehicle. A person's motive to

commit a particular crime can help with identification issues. Boutwell v.

State, 719 S.W.2d 164, 180 (Tex. Crim. App. 1985). All ofthese illegal acts

leading up to the evading arrest showed a plan by the Appellant.

  There is no logical explanation why the Appellant's personal belongings

would be near Mr. Coulson's truck unless he removed it from inside the

truck. The vehicle license plates did not match up with the registration

sticker, another indicator Appellant had tried to hide the vehicle's stolen



                                                                              11
identity from law enforcement. RR Vol.4.p.150. The most reasonable

explanation why Appellant tried to remove the personal items was because

the truck was stolen, he was on parole, and he had been operating it.

  Based upon all this circumstantial evidence, and without any logical

explanation to prove otherwise, a rational juror could have found all the

essential elements of evading arrest in a motor vehicle proven beyond a

reasonable doubt.



      c. Felony Evading Arrest is a Continuing Offense

  Appellant's actions after he took off running from Officer Woolridge was

evidence the jury could have considered in deciding whether he evaded

arrest in a motor vehicle. Evading arrest is a continuing offense from the

beginning of pursuit until apprehension. Hobbs v. State, 175 S.W.3d 777,

781 (Tex. Crim. App. 2005).

   When Appellant was apprehended at the nearby shed, Officer Woolridge

identified Appellant as the person who ran from him at the ditch. RR

Vol.4.p.112. There is no other logical explanation why Appellant evaded on

foot except that he was also the person who evaded in the Ford pickup truck.




                                                                             12
2. Evidence Was Legally Sufficient to Prove Appellant Used Motor

   Vehicle as a Deadly Weapon

      a. Standard of Review

      Deadly Weapon is defined as a firearm or anything 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 Sec.

1.07(17)(a)-(b) (Vernon 2013). Although a motor vehicle is not considered

deadly weapon per se, it has many times been found to be used as a deadly

weapon. See Williams v. State, 970 S.W.2d 566 (Tex. Crim. App. 1998);

Davis v. State, 964 S.W.2d 352, 354 (Tex. App.- Fort Worth 1998, no pet.).

"To sustain a deadly weapon finding requires evidence that others were

endangered, and not merely a hypothetical potential for danger if others had

been present." Mann v. State, 13 S.W.3d 89, 92 (Tex. App.- Austin 2000).

Appellant's intent to use the motor vehicle as a deadly weapon is not

required. Mann v. State, 58 S.W.3d 132 (Tex. Crim. App. 2001); Mann v.

State, 13 S.W.3d at 92.

      b. Officer's In-car Video Best Evidence

  While Appellant argued that Officer Woolridge's own testimony proved

Appellant did not use the pickup truck as a deadly weapon, later Woolridge



                                                                              13
clarified his answer after watching his in-car video by stating Appellant

quite possibly used the vehicle as a deadly weapon." RR Vol.4.p.l 04.

Although none of the innocent motorists on the public roadways were

identified, their evasive driving can be seen in State's Exhibit No. 21. See

State's Exhibit No. 21. At least two vehicles shared a lane of traffic with

Appellant's pickup truck as he tried to evade from Officer Woolridge, and

one vehicle took evasive action on the onramp to IH-30 by driving on the

shoulder.



                                  PRAYER

      The State prays that the jury's findings be affirmed as there was no

reversible error.



                                              Respectfully submitted,




                                              NOBLE DAN WALKER, JR.
                                              District Attorney
                                              Hunt County, Texas



                                              G CALVIN GROGAN1V
                                              Assistant District Attorney


                                                                               14
                                              P. 0. Box 441
                                              4th Floor, Hunt County
                                              Courthouse
                                              Greenville, TX 75403
                                              State Bar No. 24050695
                                              (903) 408-4180
                                              FAX (903) 408-4296


     CERTIFICATE OF COMPLIANCE WITH T.R.A.P. 9.4(i)(3)

       Relying on Microsoft Word's word count feature used to create the
State's Reply Brief, I certify that the number of words contained in this brief
is 2,490 and the typeface used is 14Font.


                                              G CALVIN GROGAN V
                                              Assistant District Attorney



                      CERTIFICATE OF SERVICE


      A true copy of the State's brief has been mailed via first-class mail
to Jason Duff, Appellee's attorney of record, today, August 11, 2015,
pursuant to Texas Rules of Appellate Procedure.



                                              G CALVIN GROGAN V
                                              Assistant District Attorney




                                                                            15
