                            NUMBER 13-13-00143-CR

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI – EDINBURG


ESIDRO RODRIGUEZ,                                                          Appellant,


                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                    On appeal from the 24th District Court
                         of Calhoun County, Texas.


                          MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Garza and Perkes
             Memorandum Opinion by Chief Justice Valdez
      A jury convicted appellant, Esidro Rodriguez, of evading arrest or detention with

a vehicle, a third-degree felony, and found by special issue that appellant used a deadly

weapon. See TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (West Supp. 2011). Appellant

received a sentence of ten years’ confinement. By one issue, appellant contends that
the evidence was insufficient to support the jury’s finding that the he used the vehicle as

a deadly weapon. We affirm.

                                          I. BACKGROUND1

        Texas Department of Public Safety Trooper Henry Shultz testified that on the

night of April 14, 2012 in Calhoun County, he initiated a traffic stop of appellant’s black

pickup truck because it had an expired license registration sticker and improper license

plate lighting.    Appellant stopped his vehicle; however, Trooper Shultz noticed that

appellant “was riding his brakes,” Trooper Shultz became “concerned.” Trooper Shultz

testified that he waited for appellant to put his vehicle in park before exiting his own

vehicle. However, when Trooper Shultz exited his vehicle, appellant drove off. Trooper

Shultz stated that he pursued appellant at speeds “well over 100.” According to Trooper

Shultz, appellant eventually stopped again, and Trooper Shultz told appellant over his

“external P.A. radio” to exit his vehicle. Trooper Shultz stated that as he made the

announcement, appellant’s truck while in neutral “rolled backwards in the area of [his]

unit.” Trooper Shultz explained, that due to appellant’s vehicle backing up, he “was

forced to back up.” Trooper Shultz said, “At that time I just felt that things were going

south pretty quick so I unlocked my shotgun release to grab my shotgun. It was hung

up and as I was fighting the shotgun to come out of the rack, [appellant] spun in a

circular motion in the intersection. He fled once more in a circular motion.” Trooper

Shultz clarified that appellant “[spun the vehicle] around in a circle like a donut.”

Trooper Shultz continued pursuing appellant. According to Trooper Shultz, appellant


        1
          Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.


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stopped his vehicle again, positioning it facing Trooper Shultz’s car. Trooper Shultz

stated that because the situation had become dangerous, he called for backup.

Trooper Shultz testified that the following occurred:

                After about 10 seconds of sitting in my car not knowing exactly
       what was fixing to happen, if I was going to get rammed or ambushed, I
       felt like a sitting duck in my patrol car, so I opened the door, got out, drew
       my revolver, my pistol, and at that time I started to raise the gun at the
       vehicle and I was going to start giving commands at that point since I had
       a gun out and both hands were ready to act if needed.

       ....

             As soon as I made these motions, the truck, I heard the engine
       accelerate. I heard the rear tires peeling out as they hit the asphalt and
       the headlights came straight at me.

       ....

             I shot two rounds through the windshield. At that time I retreated
       backwards as the truck still came rolling towards me. I retreated back to
       where my gas cap would be on my patrol car. At that time I fired one
       more round through the driver’s door at the driver.

       ....

             After the third shot was fired the truck came to a rest. I ran into the
       darkness into the bar ditch and at that time that’s when I began giving
       commands for them to exit.

       Appellant and another man exited the vehicle, and Trooper Shultz arrested both

men. Trooper Shultz stated that he felt the need to shoot at appellant’s vehicle because

he “felt in fear for [his] life standing next to [his] patrol car with only a pistol in hand while

this large truck was coming at [him].” The State then played a video taken from Trooper

Shultz’s vehicle’s video camera for the jury.

       Texas Ranger Drew Edward Pilkington testified that a motor vehicle can be used

as a deadly weapon and about his investigation of the incident between Trooper Shultz



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and appellant. Ranger Pilkington testified that it was his opinion that the first time

appellant failed to stop for Trooper Shultz, “the manner that he pulled out [onto the

highway] caused the other vehicles to take evasive action and that could have caused

[the occupants of] those vehicles if they crashed, you know, death or serious bodily

injury.” Ranger Pilkington believed that the manner of appellant’s use of his vehicle

could have also caused serious bodily injury or death to his passenger. When asked if

operating a vehicle over 100 miles per hour in a thirty-five mile per hour zone could also

cause serious bodily injury or death and if appellant was operating the vehicle in a

manner constituting a deadly weapon, Ranger Pilkington replied, “Yes, sir, it could

have.” Finally, the prosecutor asked, “Now is accelerating towards that trooper, do you

have an opinion of whether or not that vehicle was being used in such a way that it

could be considered a deadly weapon?” Ranger Pilkington responded, “Yes, sir, it

was.” Ranger Pilkington believed that Trooper Shultz’s use of deadly force by firing his

weapon at appellant’s vehicle was justified.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       In a sufficiency review, we examine the evidence in the light most favorable to

the prosecution to determine whether any rational fact-finder could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319 (1979); see Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim. App.

2010) (plurality op.). The fact-finder is the exclusive judge of the facts, the credibility of

witnesses, and of the weight to be given testimony. Brooks, 323 S.W.3d at 899. We

must resolve any evidentiary inconsistencies in favor of the judgment. Id.




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       We measure the sufficiency of the evidence by the elements of the offense as

defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303, 314

(Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997)). Here, the applicable definition of a deadly weapon is “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 Supp. 2011).

       To determine whether the evidence supports a deadly-weapon finding in cases

involving motor vehicles, we conduct a two-part analysis. Foley v. State, 327 S.W.3d

907, 916 (Tex. App.—Corpus Christi 2010, no pet.); Hilburn v. State, 312 S.W.3d 169,

177 (Tex. App.—Fort Worth 2010, no pet.) (citing Sierra v. State, 280 S.W.3d 250, 255

(Tex. Crim. App. 2009) (setting out factors to consider when determining whether the

defendant used a motor vehicle recklessly or dangerously during a felony)). We first

“evaluate the manner in which the defendant used the motor vehicle during the felony”

by determining whether the defendant’s driving was reckless or dangerous. Sierra, 280

S.W.3d at 255; Foley, 327 S.W.3d at 916. We consider several factors in making this

reckless-or-dangerous determination: (1) intoxication; (2) speeding; (3) disregarding

traffic signs and signals; (4) driving erratically; and (5) failure to control the vehicle.

Sierra, 280 S.W.3d at 255–56; Foley, 327 S.W.3d at 916. We then consider “whether,

during the felony, the motor vehicle was capable of causing death or serious bodily

injury.” Sierra, 280 S.W.3d at 255; Foley, 327 S.W.3d at 916 (citations omitted).

                                      III. ANALYSIS

       Appellant argues, in pertinent part, the following:     (1) the evidence “showed

nothing more than that the defendant was trying to evade arrest by speeding off in his



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car”; (2) that “Officer Shultz was the one who endangered the defendant’s and the

passenger’s life by acting unprofessionally”; (3) that there “was no evidence presented

at trial that defendant’s vehicle came close enough to collide with the trooper’s car”; and

(4) “if defendant really wanted to hurt the trooper, he had plenty of opportunities to do it

prior than this occasion.”

        Appellant does not address which part of the Sierra test he is challenging.

Nonetheless, we will address both parts of the test.          First, we examine whether

evidence was presented that appellant’s driving was reckless or dangerous.             See

Sierra, 280 S.W.3d at 255. The jury heard evidence that appellant sped, made donuts

on the public streets, and entered a highway recklessly causing other motorists to veer

out of his way. From this evidence the jury could have found that appellant disregarded

traffic rules. Evidence was also presented that appellant (1) traveled at over 100 miles

per hour in a thirty-five mile per hour zone, which according to Ranger Pilkington was

using the vehicle in a manner that could have caused serious bodily injury or death; (2)

allowed his vehicle to slide backward “forcing” Trooper Shultz to move his vehicle back;

and (3) drove his vehicle in Trooper Shultz’s direction making Trooper Shultz fear for his

life.   This evidence establishes that appellant drove his vehicle recklessly or

dangerously. See id.

        Next, we examine whether appellant’s use of his motor vehicle was capable of

causing death or serious bodily injury. Sierra, 280 S.W.3d at 255; Foley, 327 S.W.3d at

916. Ranger Pilkington testified that on more than one occasion during appellant’s

commission of evading arrest, appellant used his motor vehicle in a manner that was

capable of causing death or serious bodily injury by “pulling” out onto the highway



                                             6
causing other motorists to take evasive action, driving his vehicle in such a manner with

a passenger in his vehicle, driving over 100 miles per hour in a thirty-five mile per hour

zone, and accelerating his vehicle “towards” Trooper Shultz. Viewing the evidence in

the light most favorable to the prosecution, we conclude that any rational juror could

have found beyond a reasonable doubt that the evidence was sufficient to determine

that appellant drove his vehicle recklessly and dangerously and that he used his vehicle

in a manner capable of causing serious injury or death. See Jackson, 443 U.S. at 318–

19; Brooks, 323 S.W.3d at 898–99; Sierra, 280 S.W.3d at 255-56; Foley, 327 S.W.3d at

916. Thus, the evidence was legally sufficient to support the jury’s finding that appellant

used his vehicle as a deadly weapon. We overrule appellant’s sole issue.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.

                                                   __________________
                                                   ROGELIO VALDEZ
                                                   Chief Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
25th day of July, 2013.




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