                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00176-CR


CODY WAYNE BEDFORD A/K/A                                             APPELLANT
CODY BEDFORD

                                         V.

THE STATE OF TEXAS                                                         STATE


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             FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                        TRIAL COURT NO. CR12844

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                           MEMORANDUM OPINION1

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      A jury convicted Appellant Cody Wayne Bedford of the offense of evading

arrest or detention while using a vehicle in flight. See Tex. Penal Code Ann.

§ 38.04(b)(2)(A) (West Supp. 2016).2 The jury also found that Appellant used or


      1
          See Tex. R. App. P. 47.4.
      2
       In 2011, the Legislature enacted three separate bills revising article 38.04
without coordinating the various bills into one coherent numbering scheme. See
exhibited a deadly weapon, the vehicle, during the commission of the offense.

After finding that Appellant had previously been convicted of two felony offenses,

the jury assessed his punishment at thirty-seven years’ confinement. In one

point, Appellant contends the evidence is legally insufficient to support the finding

that he used or exhibited a deadly weapon. We affirm.

                                     Evidence

      Around 1:30 or 1:45 a.m. on June 18, 2014, Junior Stewart was letting his

dogs out when he heard tapping on his front door. When Stewart opened his

front door, he saw his daughter, scared and shaking, standing there, so he let her

in; he also saw Appellant sitting in a silver minivan in the driveway. Stewart

called 911, told the dispatcher there was a prowler, and identified Appellant as

the prowler.

      After Stewart hung up the phone, Appellant began beating on the front

door. Appellant then went back to his minivan, honked his horn four or five

times, and started screaming and yelling for Stewart’s daughter. Stewart, after

seeing Appellant back up his minivan as if he was going to drive through the front

door, called 911 again. When Appellant drove his minivan through Stewart’s

front yard, Stewart called 911 a third time. While driving through Stewart’s yard,


Adetomiwa v. State, 421 S.W.3d 922, 924–27 (Tex. App.—Fort Worth 2014, no
pet.). The State here relied on the bill that made evading arrest or detention
while using a vehicle a third degree felony. See Act of May 27, 2011, 82nd Leg.,
R.S., ch. 920, § 3, 2011 Tex. Sess. Law Serv. 2320, 2321 (West) (codified at
Tex. Penal Code § 38.04(b)(2)(A)).


                                         2
Appellant “splintered” Stewart’s mailbox stand. When a police officer arrived,

Appellant drove off.

      After the police officer arrived, Stewart told him that Appellant had just left,

identified Appellant, and gave a description of Appellant’s minivan. Meanwhile,

Officer Michael Holly, who was on his way to Stewart’s, saw Appellant driving the

silver minivan. Aware that Appellant had warrants out for his arrest, Officer Holly

followed Appellant across town but waited for other officers before attempting to

stop him.

      After Appellant reached a residential area, he accelerated quickly to get

away. At this point, Officer Holly turned on his siren and flashers indicating

Appellant needed to stop, but Appellant failed to stop and, instead, continued

down several streets to Acton Highway. By this time Officers Damon Hice and

Bryan Wood had joined Officer Holly in the chase.3

      Officer Holly testified that a lot of the chase occurred through a residential

area and at very high rates of speed. In the residential areas, Officer Holly

estimated Appellant’s speed at forty-five to fifty miles per hour. At one point, it

reached about eighty-five miles per hour. Officer Holly testified Appellant ran

about eight stop signs along the route. Once on Acton Highway, which was

described as a two-lane road with no shoulders and a double-yellow stripe down


      3
        Regarding the officers’ decision to give chase, please see:
http://www.usatoday.com/story/news/2015/07/30/police-pursuits-fatal-injuries/
30187827/


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the center, Appellant drove on the wrong side of the road while going through a

curve.       Officer Holly described Appellant’s driving as “very dangerous” and

capable of causing death or serious bodily injury. Officer Wood had worked

motor vehicle collisions before, and he said there was no doubt Appellant’s car

was capable of causing death or serious bodily injury. After exiting highway 377,

there were no other vehicles on the road except Appellant’s and the pursuing

officers’.

         The chase ended in a cul-de-sac in a residential area. After Appellant

drove into the cul-de-sac, he tried to make a U-turn, but he could not make a

sufficiently tight turn, so he put his car in reverse and rammed the driver’s-side

door of Officer Hice’s patrol vehicle. All of the airbags in Officer Hice’s vehicle

deployed, and his vehicle shut down.           Officer Hice described the impact as

“pretty violent” and explained how it was painful when Appellant’s vehicle hit his

and pushed him into the gun rack in the center console. Officer Holly then pulled

in front of Appellant to block him in. Appellant leaped out of his vehicle and fled

on foot with other officers in pursuit on foot.

         The State introduced three video recordings from the three officers’ cars.

State’s Exhibit 1 was the recording from Officer Wood’s car. State’s Exhibit 2

was from Officer Holly’s car. And State’s Exhibit 3 was the video from Officer

Hice’s vehicle.

         Officer Holly’s video shows the chase started in a city residential

neighborhood.       Officers Wood’s, Holly’s, and Hice’s videos show the chase


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ended in a rural residential neighborhood. Officer Wood’s and Holly’s videos

show traffic before the chase starts but no traffic after the chase starts. Officer

Hice’s video shows traffic as he attempts to join the chase but not after he

encounters Appellant’s minivan.

      The videos show the three police officers following Appellant at a high rate

of speed without successfully shortening the distance between them and

Appellant, show Appellant running stop signs, and show Appellant driving on the

wrong side of the road. As noted above, except for the three police officers,

there were no other motorists while the chase was taking place. However, at one

point during the chase, Officer Hice, who was attempting to join the chase, was in

position to intercept Appellant at an intersection.

      Officer Holly’s video, taken while he was following Appellant, shows

Appellant running a stop sign and turning right in front of Officer Hice’s police car,

which was coming from Appellant’s left; Officer Hice appears to slow down or

brake to allow Appellant to access the road safely. Officer Hice’s video shows

his car coming to that same intersection, and his police car appears to slow

down, allowing Appellant, who had just run the stop sign on Officer Hice’s right,

onto the road without risking a collision.

      Officer Hice’s video shows that once in the cul-de-sac, Appellant appeared

to attempt to make a U-turn but his minivan lacked a tight enough radius to

successfully make the turn. Officer Hice’s police car drove in behind Appellant’s

minivan, effectively impeding Appellant’s ability to back up and pull out.


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Appellant backed up his minivan anyway and struck Officer Hice’s police car.

Officer Holly pulled in front of Appellant, blocking Appellant in the cul-de-sac.

Appellant exited his minivan and ran away on foot.

                                   Complaint

      In one point, Appellant contends the evidence is insufficient to support the

finding that he used or exhibited a deadly weapon. Appellant asserts that there

was no evidence his car weaved or fishtailed out of control. His car never left the

road or the road’s surface. He denied driving on the wrong side of a divided

highway because he denied driving down any road with a dividing line. To the

extent he drove over the middle portion of the roadway, Appellant asserts that

the officers did as well and did so safely. Appellant denied striking any objects

on the roadway or adjacent to it. Appellant denied cutting off any other drivers or

forcing them to take evasive action to avoid a collision.        Appellant denied

imperiling any other drivers because there were no other drivers on the roadway

during the chase.     Appellant contends the only contact between vehicles

occurred when he accidentally touched Officer Hice’s vehicle, which had pulled in

behind him, while he was trying to back up. Appellant stresses that no one was

seriously hurt. Appellant denies that anyone was ever at risk of death or serious

bodily injury.

                              Standard of Review

      The test for determining whether the evidence is sufficient to support a

criminal conviction is whether any rational trier of fact could have found the


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essential elements of the crime beyond a reasonable doubt after viewing the

evidence in a light most favorable to the prosecution.          Drichas v. State,

175 S.W.3d 795, 798 (Tex. Crim. App. 2005). A deadly weapon is “a firearm or

anything manifestly designed, made, or adapted for the purpose of inflicting

death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(A) (West

Supp 2016). A deadly weapon is also “anything that in the manner of its use or

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

§ 1.07(a)(17)(B). To hold evidence sufficient to sustain a deadly weapon finding,

the evidence must show that (1) the object meets the statutory definition of a

deadly weapon, (2) the deadly weapon was used or exhibited during the events

from which the felony conviction was obtained, and (3) other people were put in

actual danger of death or serious bodily injury. See Drichas, 175 S.W.3d at 798;

see also Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014) (quoting

Sierra v. State, 280 S.W.3d 250, 256–57 (Tex. Crim. App. 2009), for proposition

that vehicle must pose an actual danger of death or serious bodily injury).4

      Objects that are not usually considered dangerous weapons may become

so, depending on the manner in which they are used during the commission of

an offense. See Drichas, 175 S.W.3d at 798. A motor vehicle “is not a deadly


      4
       Our review shows the quote the court in Brister relied upon is not from
Sierra but is actually from a subsequent case that cited Sierra for that
proposition. See Roppolo v. State, No. 13-11-00437-CR, 2012 WL 3598736, at
*2 (Tex. App.—Corpus Christi Aug. 22, 2012, pet. ref’d) (mem. op, not
designated for publication) (citing Sierra, 280 S.W.3d at 256–57).


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weapon per se.” Brister, 449 S.W.3d at 494. A motor vehicle may become a

deadly weapon if the manner of its use is capable of causing death or serious

bodily injury. Id.; Drichas, 175 S.W.3d at 798. Specific intent to use a motor

vehicle as a deadly weapon is not required. Drichas, 175 S.W.3d at 798. The

danger posed to motorists must be actual and not simply hypothetical. Id. at 799.

Pursuing officers or other motorists need not be in a zone of danger or take

evasive action. Id. A defendant is not required to intentionally strike another

vehicle. Id. “The volume of traffic on the road is relevant only if no traffic exists.”

Id. “Capability is evaluated based on the circumstances that existed at the time

of the offense.” Id. Section 38.04(b)(2)(A) of the penal code makes using a

vehicle an element of the offense, and section 1.07(a)(17)(B) of the penal code

makes it possible for the vehicle to be a deadly weapon. Tex. Penal Code Ann.

§§ 1.07(a)(17)(B), 38.04(b)(2)(A).     “The statute specifically pertains to motor

vehicles, so a deadly weapon finding is appropriate on a sufficient showing of

actual danger, such as evidence that another motorist was on the highway at the

same time and place as the defendant when the defendant drove in a dangerous

manner.” Drichas, 175 S.W.3d at 799. “An automobile can be a deadly weapon

if it is driven so as to endanger lives.” Cates v. State, 102 S.W.3d 735, 738 (Tex.

Crim. App. 2003).

                                     Discussion

      In Drichas, the defendant drove at speeds of fifty to seventy miles per

hour, causing his truck to fishtail on turns. Drichas, 175 S.W.3d at 797. The


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defendant also disregarded traffic signs and signals, drove erratically, wove

between lanes and within lanes, and drove on the wrong side of the highway. Id.

He turned abruptly into a construction zone, knocking down barricades as he did

so. Id. There was evidence of “some” traffic on the road during the chase. Id.

The chase ended when the defendant turned into a mobile-home park and

abandoned his still moving truck to flee on foot, which allowed the truck to roll

into a parked van, which, in turn, hit a mobile home. Id. at 797–98.

      Appellant initiated the high-speed chase in a residential neighborhood and

ended the high-speed chase in another residential neighborhood. The absence

of other traffic was not a product of Appellant’s driving in remote, unpopulated

areas—because the chase occurred in populated areas at its start and end—but

was apparently a product of the chase occurring in the middle of the night and,

perhaps more importantly, fortuitous luck, as the videos show other cars before

the chase. Officer Hice’s video even showed a pedestrian getting something out

of his car, which was parked on the street, before Officer Hice successfully joined

the   chase.     The    absence    of   people—of    children—in    the   residential

neighborhoods would appear to be attributable to the time of day that the chase

occurred. “The volume of traffic on the road is relevant only if no traffic exists.”

Id. at 799.

      Nevertheless, the evidence showed that the manner in which Appellant

drove his vehicle placed the officers, particularly Officer Hice, in actual danger of

death or serious bodily injury. See id. at 798 (“Appellant’s manner of using . . .


                                         9
his truck posed a danger to pursuing officers and other motorists that was more

than simply hypothetical; the danger was real, . . . particularly where appellant

drove on the wrong side of the highway.”); Duckett v. State, No. 06-14-00060-

CR, 2015 WL 996188, at *3 (Tex. App.—Texarkana Mar. 3, 2015, pet. ref’d)

(mem. op., not designated for publication) (“[The defendant] put the pursuing law

enforcement officers in actual danger.”); Roppolo, 2012 WL 3598736, at *2 (“The

evidence shows appellant actually endangered others as he led the police on a

high-speed chase. As Sergeant Lopes followed appellant . . . , appellant drove to

a parking-lot exit and ‘came to a very fast stop,’ forcing Sergeant Lopez to make

an evasive maneuver with his police car.”); Moore v. State, No. 06-10-00173-CR,

2011 WL 3274840, at *3 (Tex. App.—Texarkana Aug. 2, 2011, no pet.) (mem.

op., not designated for publication) (“[P]olice officers should not be excluded from

the class of persons capable of being endangered by the driver of a fleeing

vehicle.”); Drichas, 219 S.W.3d 471, 476 n.5 (Tex. App.—Texarkana 2007, pet.

ref’d) (same).

      Viewing the evidence in the light most favorable to the verdict, we hold that

a rational trier of fact could have found beyond a reasonable doubt that the

manner in which Appellant drove his car during the offense placed others in

actual danger of death or serious bodily injury. See Drichas, 175 S.W.3d at 798.

We overrule Appellant’s sole point.




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                               Conclusion

      Having overruled Appellant’s sole point, we affirm the trial court’s

judgment.




                                             /s/ Anne Gardner
                                             ANNE GARDNER
                                             JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 22, 2016




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