                            NUMBER 13-12-00174-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JESSIE JEROME WHITE,                                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 329th District Court
                        of Wharton County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
            Memorandum Opinion by Justice Benavides
      Appellant, Jessie Jerome White, pleaded guilty to the offense of evading arrest or

detention with a motor vehicle, enhanced to a second-degree felony. See TEX. PENAL

CODE ANN. § 38.04 (West Supp. 2011).        However, White pleaded “not true” to the

allegation in the State’s indictment that he used a deadly weapon, to wit: an automobile,

in the course of committing the offense. A special issue on the deadly weapon allegation
was submitted to a Wharton County jury, which found in the affirmative. Accordingly, the

trial court sentenced White to twenty years’ imprisonment with the Texas Department of

Criminal Justice, Institutional Division. By two issues, White asserts that: (1) the trial

court erred in submitting the special issue of use of a deadly weapon to the jury, when the

defendant had previously elected for the court to assess punishment in the event of

conviction; and (2) the evidence was insufficient to support an affirmative finding

regarding use of a deadly weapon. We affirm.

                                        I.      BACKGROUND

        A Wharton County grand jury indicted White for intentionally fleeing from arrest or

detention while using a motor vehicle. See id. The indictment further alleged, among

other things, that during the course of committing the aforementioned offense, White

used his automobile as a deadly weapon—that is, “in the manner of its use, was capable

of causing death or serious bodily injury.” At his trial by jury, White pleaded guilty in open

court to the evading arrest or detention charge, but pleaded “not true” to the deadly

weapon allegation.1

        The State presented the following evidence at trial. On September 28, 2010,

White led up to fifteen Wharton County law enforcement officers in a car chase through

the streets and surrounding areas of the City of Wharton. The State called two City of

Wharton police officers who took part in the chase as witnesses.

        Officer Bobby Cadriel was the first to testify. Without objection, the State played a

videotape for the jury which depicted the pursuit from Officer Cadriel’s police unit’s

dashboard camera. Officer Cadriel testified as the video played. The chase began

        1
          Prior to entering this plea, White filed a motion which elected the trial court to assess punishment
“in the event a verdict of guilty is returned by the jury.”

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shortly before 1:00 p.m., in which Officer Cadriel tailed another officer, Justin Moran, who

drove immediately behind White. Officer Cadriel stated that: (1) White did not drive

within his proper lane for “quite a distance,” before correcting himself, (2) drove on the

right-hand shoulder lane, slammed on his brakes, and then sped up again, and (3) this

action caused Officer Moran to slam on his brakes and swerve, which also caused Cadriel

to slow down, so as to not rear-end Officer Moran’s unit. Officer Cadriel testified that

White approached speeds between 65 to 90 miles per hour during the pursuit, which were

far above the posted speed limit of 55 miles per hour. Cadriel also noted that White

disregarded stop signs during the chase. According to Cadriel, vehicles that traveled in

White’s opposite direction stopped in order to let police officers pass. Toward the end of

the pursuit, Officer Cadriel testified that the road conditions “worsened” to loose gravel

and dirt, “which can be [a] hard [surface] to maintain control of [a] vehicle.” After White

stopped his vehicle, Officer Cadriel observed that a passenger remained inside of White’s

vehicle. During cross-examination, Officer Cadriel admitted that the weather was clear

that day, the roads were dry, and described the visibility as “good.”

       Officer Moran testified next. As with Officer Cadriel, the State played more video

footage taken from the dashboard camera mounted on Officer’s Moran’s police unit, and

Officer Moran also testified as the video played. Officer Moran told the jury that at the

point in which the officer slammed his brakes and his unit began to swerve, he was

“scared” and “concerned” that he was going to lose control of his vehicle and possibly

injure himself or another driver. Officer Moran estimated that White’s vehicle traveled at

speeds of up to 95 miles per hour.




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       The jury returned an affirmative finding that White used his vehicle as a deadly

weapon. Subsequently, the trial court assessed White’s punishment at twenty years’

imprisonment with the Texas Department of Criminal Justice, Institutional Division. This

appeal ensued.

                            II.   DEADLY WEAPON FINDING

       By his first issue, White contends that the trial court erred in submitting the special

issue of use of a deadly weapon to the jury when the defendant had previously elected for

the trial court to assess punishment in the event of conviction.

       A. Preservation of Error

       Generally, as a prerequisite to presenting a complaint for appellate review, the

record must show that:

       (1)    a complaint was made to the trial court by a timely request, objection
              or motion that:

                 (a) stated the grounds for the ruling that the complaining party
                     sought from the trial court with sufficient specificity to make
                     the trial court aware of the complaint, unless the specific
                     grounds were apparent from the context; and

                 (b) complied with the requirements of the Texas Rules of Civil or
                     Criminal Evidence or the Texas Rules of Civil or Appellate
                     Procedure; and

       (2)    the trial court:

                  (a) ruled on the request, objection, or motion, either
                       expressly or implicitly; or

                 (b) refused to rule on the request, objection, or motion, and
                     the complaining party objected to the refusal.

TEX. R. APP. P. 33.1(a); see Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009)

(holding that “[p]reservation of error is a systemic requirement of every appeal”).


                                              4
        The State argues that White failed to object to the deadly weapon submission to

the jury.    We agree. 2      The record reflects that White had several opportunities to

preserve error in this case, but failed to do so.        First, after White pleaded guilty solely on

the evading detention or arrest charge and “not true” for the use of a deadly weapon

allegation, White’s counsel proceeded forward with trial. Next, White’s attorney stated

that he had “no objection” to the jury charge at the charge conference.                Finally, White’s

attorney argued during closing arguments as to why the jury should find that White did

not use or exhibit a deadly in the commission of this offense.                        Accordingly, we

conclude that White failed to preserve error for review on appeal.                See TEX. R. APP. P.

33.1(a).

        White’s first issue is overruled.

                               III.    SUFFICIENCY CHALLENGE

        By his second issue, White asserts that insufficient evidence supports the jury’s

affirmative finding that he used his automobile as a deadly weapon.

        A. Standard of Review

        When reviewing a defendant’s sufficiency challenge, we view the evidence in the

light most favorable to the verdict to determine whether “any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.”

Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (citing Brooks v.

State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010) (plurality op.)); see Jackson v.

        2
           Generally, jury-charge issues are analyzed under a unique standard of review. See Ngo v.
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (en banc); see also Almanza v. State, 686 S.W.2d
157, 160–74 (Tex. Crim. App. 1984) (en banc). However, in light of the procedural history of this case, we
will analyze the issue before us under Texas Rule of Appellate Procedure 33.1(a). Even assuming without
deciding that this issue amounts to a jury-charge issue, we nonetheless conclude that no error exists. See
Polk v. State, 693 S.W.2d 391, 394 (Tex. Crim. App. 1985) (en banc) (“the trier of facts’ verdict on the
indictment may constitute an affirmative finding”).

                                                    5
Virginia, 443 U.S. 307, 319 (1979). The jury is the sole judge of the credibility of

witnesses and the weight to be given to their testimonies, and the reviewing court must

not usurp this role by substituting its own judgment for that of the jury.    Montgomery,

369 S.W.3d at 192. Thus, our duty is “simply to ensure that the evidence presented

supports the jury's verdict and that the State has presented a legally sufficient case of

the offense charged.”       Id. (internal citations omitted).   When faced with a record

supporting contradicting inferences, we must presume that the jury resolved such

conflicts in favor of the verdict, even if not explicitly stated in the record.   Id. (citing

Brooks, 323 S.W.3d at 899 n.13).

         The elements of the offense are measured as defined by a hypothetically correct

jury charge.    Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).      Such a charge is one that

accurately 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.

         B. Discussion

         White only challenges the jury’s affirmative finding that he used his automobile as

a deadly weapon during the course of intentionally fleeing from arrest or detention in a

motor vehicle, as alleged in the indictment.

         To hold evidence legally sufficient to sustain a deadly weapon finding, the

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

dangerous weapon, see TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West Supp. 2011); (2)


                                               6
the deadly weapon was used or exhibited “during the transaction from which” the felony

conviction was obtained, Ex parte Jones, 957 S.W.2d 849, 851 (Tex. Crim. App. 1997);

and (3) other people were put in actual danger, Cates v. State, 102 S.W.3d 735, 738

(Tex. Crim. App. 2003).          See Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App.

2005) (en banc).         A motor vehicle may become a deadly weapon if the manner of its

use is capable of causing death or serious bodily injury.                Id.   Specific intent to use a

motor vehicle as a deadly weapon is not required.               Id.

        White admits that the evidence shows that he was not alone on the roadway and

was speeding at different points during the chase.                     However, White argues that

because no collisions or near-collisions with other motorists took place, there was no

evidence of “actual danger or a showing that the manner of the vehicles use is capable

of causing death or serious bodily injury.” We disagree.

        The jury watched video footage of the pursuit from Officers Cadriel and Moran’s

respective viewpoints.3 Officers Cadriel and Moran testified that White drove at speeds

upwards of 90 miles per hour. During the pursuit, Officer Cadriel testified that White

drove on the wrong side of traffic for “quite a distance” before returning to the correct

lane.   Furthermore, Officer Cadriel testified that White “blew through” a stop sign after

White’s car “fishtailed.”        Aside from labeling the pursuit a “dangerous” one, Officer

Moran testified that at one point, he was “scared” because he was concerned that he

was going to lose control of his own vehicle and injure another motorist or himself.

        After reviewing the evidence in the light most favorable to the affirmative finding,

we conclude that any rational trier of fact could have found beyond a reasonable doubt


        3
            State’s Exhibit 1 and 2 (the dashboard camera videos) were not included in the record on appeal.

                                                      7
that White used his automobile as a deadly weapon during the course of intentionally

fleeing from arrest or detention in a motor vehicle.

       We overrule White’s second issue.

                                  IV.    CONCLUSION

       The trial court’s judgment is affirmed.



                                                       __________________________
                                                       GINA M. BENAVIDES,
                                                       Justice


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

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




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