                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana
        ______________________________

              No. 06-10-00173-CR
        ______________________________


      BRENT GREGORY MOORE, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 241st Judicial District Court
                Smith County, Texas
           Trial Court No. 241-0712-10




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                       MEMORANDUM OPINION

I.         Background

           The genesis of the event leading to Brent Gregory Moore’s conviction of the felony offense

of evading arrest with a vehicle,1 including a deadly weapon allegation, an allegation of a prior

felony conviction, and a previous conviction for evading arrest was a fairly mundane traffic stop in

the early morning hours of April 14, 2010. The traffic stop was occasioned because the pickup

truck Moore was driving on U.S. Highway 69 in Smith County, Texas, did not have an operational

light illuminating his license plate.2

           After having been stopped and pulled over by Jeff Hopson, a Smith County sheriff’s

deputy, the incident rapidly escalated. Moore refused to comply with Hopson’s request to roll

down the driver’s side window of his truck, to place his hands on the steering wheel, and finally, to

exit the vehicle. When Hopson finally reached through the half-open window in an attempt to

unlock the vehicle’s door, Moore grabbed his arm, but Hopson was able to free himself. Back-up

officers Josh Caulkins, Toby Hughes, and Glenn Barnes quickly arrived on the scene to assist

Hopson. After Hopson extricated his arm from Moore’s grasp, Moore put his truck in gear,

turned his truck around so that it was traveling north in the southbound lane, and sped off. As


1
    TEX. PENAL CODE ANN. § 38.04 (West 2011).
2
 Originally appealed to the Twelfth Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.

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Moore sped into the U-turn, Barnes was struck with the rear quarter panel of the truck when Moore

sped off, causing Barnes to suffer a sprained knee. Even though Hughes shot the right front truck

tire, causing it to deflate, and Caulkins fired an additional three rounds in an attempt to disable the

truck, Moore sped off, going north in the southbound lane.

            Reaching speeds of over 100 miles per hour (despite the deflated front tire), Moore fled

from the pursuing deputies.3 The chase ended when Moore’s truck became disabled, evidently as

a result of rounds fired into its engine. Moore was arrested and charged with the felony offense of

evading arrest with a vehicle, with a deadly weapon allegation,4 an allegation of a prior felony

conviction, and a previous conviction for evading arrest. The jury returned a guilty verdict and

assessed a punishment of twenty years’ imprisonment and a fine in the amount of $10,000.00.5

            In a single issue, Moore claims that the evidence is legally insufficient to support the

deadly weapon finding. We affirm the judgment of the trial court.




3
    The chase was captured on three separate video recordings from the responding officers’ patrol vehicles.
4
 The jury was asked, during the punishment phase of the trial, whether Moore used a deadly weapon and answered in
the affirmative. See Lafleur v. State, 106 S.W.3d 91, 94–96 (Tex. Crim. App. 2003) (jury may make affirmative
finding through deadly weapon special issue included in jury charge). Such finding was recorded in the judgment. A
deadly weapon finding limits a defendant’s eligibility for community supervision and parole. TEX. CODE CRIM.
PROC. ANN. art. 42.12, §3g(a)(2) (West Supp. 2011); TEX. GOV’T CODE ANN. §§ 508.145, 508.149, 508.151 (West
Supp. 2011).

An affirmative deadly weapon finding has a negative impact on a defendant’s eligibility for community supervision,
parole, and mandatory supervision. Mann v. State, 58 S.W.3d 132, 133 (Tex. Crim. App. 2001).
5
 The applicable sentencing range was enhanced based on Moore’s plea of true to a prior felony conviction. TEX.
PENAL CODE ANN. § 12.42 (West 2011).

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II.    Standard of Review

       In evaluating legal sufficiency, we 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

evading detention with a motor vehicle beyond a reasonable doubt. See Brooks v. State, 323

S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Hartsfield v. State, 305 S.W.3d

859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal sufficiency review focuses

on the quality of the evidence presented. Brooks, 323 S.W.3d at 917 (Cochran, J., concurring).

We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to

the responsibility of the jury ―to fairly resolve conflicts in testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.‖ Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).

       We are directed to subject challenges to the legal sufficiency of the evidence to the

hypothetically-correct jury charge analysis. 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. This standard ensures that a judgment of acquittal is reserved for those situations




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in which there is an actual failure in the State’s proof of the crime, rather than a mere error in the

jury charge submitted. Id.

III.   Legally Sufficient Evidence Supports the Verdict

       Moore claims that the evidence at trial proved only a hypothetical danger posed by the

manner in which he operated his vehicle because no person was actually placed in danger of

serious bodily injury or death. Moore focuses on the fact that there were no other vehicles

encountered by him on the road during his high-speed flight from the deputies, so the danger posed

by driving at a high rate of speed in the wrong lane of traffic was merely hypothetical. He,

therefore, contends the evidence is legally insufficient to support a finding that he used or

exhibited his vehicle in a manner consistent with the definition of a deadly weapon.

       The Texas Penal Code defines ―deadly weapon‖ as ―anything that in the manner of its use

or intended use is capable of causing death or serious bodily injury.‖ TEX. PENAL CODE ANN.

§ 1.07(a)(17)(B) (West 2011). ―Serious bodily injury‖ is bodily injury that ―creates a substantial

risk of death or that causes death, serious permanent disfigurement, or protracted loss or

impairment of the function of any bodily member or organ.‖                TEX. PENAL CODE ANN.

§ 1.07(a)(46) (West 2011). Within the context of a deadly weapon allegation, the evidence before

this Court must show that (1) the item alleged as a deadly weapon (here, a pickup truck) meets the

statutory definition of a dangerous weapon, (2) the deadly weapon was used during the event that

led to the felony conviction, and (3) other people were put in actual danger. Drichas v. State, 175



                                                  5
S.W.3d 795, 798 (Tex. Crim. App. 2005). Moore only challenges the third requirement, i.e., that

other people were put in actual danger.

       A motor vehicle may be a deadly weapon, depending on the circumstances of its use. Id.

However, not every vehicle used to evade arrest is a deadly weapon. Id. at 799 (―We do not

suggest that a defendant should be charged with using a vehicle as a deadly weapon every time the

offense of evading arrest or detention is committed.‖). A motor vehicle is considered a deadly

weapon if the manner of its use is capable of causing death or serious bodily injury; a deadly

weapon finding is supported ―on a sufficient showing of actual danger.‖ Id.

       Moore claims that the evidence was insufficient here because no one was placed in danger

of serious bodily injury or death. Said another way, Moore contends there is no evidence to show

that his truck was capable of causing death or serious bodily injury to another person. See

Williams v. State, 946 S.W.2d 432, 435–36 (Tex. App.—Fort Worth 1997), rev’d in part on other

grounds, 970 S.W.2d 566 (Tex. Crim. App. 1998) (to sustain finding, there must be evidence to

show vehicle capable of causing death or serious bodily injury to another person). This capability

exists if ―there was someone present who was placed in danger of serious bodily injury or death.‖

Id. at 435. There is no requirement for the actor to have the specific intent to use the vehicle as a

deadly weapon. Drichas, 175 S.W.3d at 798.

       Here, the evidence shows that Moore fled pursuit at speeds in excess of 100 miles per hour

while driving the wrong direction on a divided highway, including portions which were in a



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construction zone. When proceeding up hills, Moore took no precautions of either moving to the

shoulder or slowing down so as to minimize the danger of oncoming traffic appearing

unexpectedly. Although the portion of U.S. Highway 69 where the chase occurred routinely

carries traffic all hours of the day, there was no other traffic on the road at the time of the chase,

other than a single vehicle actually encountered ―when [the chase] was coming to an end.‖ This

lone vehicle was encountered after Moore’s truck moved onto the shoulder after his vehicle had

been disabled and was rolling to a stop. There were no other vehicles encountered in the area

when Moore was traveling at extremely high rates of speed during the chase.

        In a similar case, the Tyler Court of Appeals found the evidence sufficient to sustain a

deadly weapon finding where the appellant fled from the police at speeds that reached 100 miles

per hour. In that case, even though the driver crossed into the oncoming lanes of traffic around

blind curves and paid no heed to traffic control measures, there were no cars in his path at the time.

Thus, the danger was merely hypothetical.                   Jones v. State, No. 12-07-00308-CR, 2008

WL 2814877 (Tex. App.—Tyler July 23, 2008, pet. ref’d) (mem. op., not designated for

publication).6 In addition to hypothetical dangers, Jones involved actual danger illustrated by the

fact that Jones narrowly missed a motorcycle, almost lost control of his own vehicle, another car

had to move into a driveway to avoid Jones, and Jones encountered several oncoming vehicles



6
 Unpublished opinions may be cited to illustrate the reasoning employed when faced with similar facts ―rather than
simply arguing without reference, that same reasoning.‖ Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.––Amarillo
2003, pet. ref’d).

                                                        7
while traveling at a high rate of speed and not keeping solely to his own lane. Id. at *3. The

evidence was, therefore, sufficient to sustain the deadly weapon finding.

       The State argues that Moore posed actual danger in the way he operated his vehicle. It is

apparent that Moore caused actual injury to Barnes, who was struck by the rear quarter panel of

Moore’s truck as he turned his truck and sped off in order to elude capture. As a result of this

contact, Barnes was taken to the hospital for an injury to his knee and was required to wear a knee

brace for two weeks. As a result, Barnes was off duty for a period of time. To be sure, the injury

sustained by Barnes could have been much more severe. The video recording viewed by the jury

reveals that Barnes, as well as the other officers, were standing within inches of Moore’s truck

when he suddenly sped off into a U-turn. While it is questionable whether Barnes’ injury meets

the statutory definition of ―severe bodily injury,‖ it is not required that an actual severe bodily

injury be sustained, only that Barnes had been ―placed in danger of serious bodily injury or death‖

in order to show the vehicle was capable of causing death or serious bodily injury. Williams, 946

S.W.2d at 435. As this Court stated in Drichas v. State, 219 S.W.3d 471, 476 n.5 (Tex.

App.—Texarkana 2007, pet. ref’d), police officers should not be excluded from the class of

persons capable of being endangered by the driver of a fleeing vehicle.

       All that is required for a motor vehicle to be considered a deadly weapon is that it be used

in a manner capable of causing death or serious bodily injury and that it pose an actual risk. The

evidence in the present case met that burden. The manner in which Moore operated his truck



                                                8
posed actual danger to Barnes as well as to the other officers in proximity to his truck at the time he

rapidly accelerated the truck, a course of action which dangerously swung it out in the path of the

officers, who were forced to move quickly back from the truck in order to avoid being struck. The

danger to the deputies was not theoretical, it was real. The evidence here, when viewed in a light

most favorable to the jury’s verdict, supports the conclusion that a rational fact-finder could have

found, beyond a reasonable doubt, that Moore used his truck as a deadly weapon during the

commission of the offense of evading arrest or detention, or immediate flight from said offense.

IV.    Conclusion

       We affirm the judgment of the trial court.




                                               Bailey C. Moseley
                                               Justice

Date Submitted:        July 29, 2011
Date Decided:          August 2, 2011

Do Not Publish




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