                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

                                               §
 MICHAEL LECK TURNER A/K/A                                     No. 08-11-00318-CR
 MICHA LEEK TURNER A/K/A                       §
 MICHA LECK TURNER,                                                Appeal from
                                               §
                       Appellant,                               43rd District Court
                                               §
 v.                                                           of Parker County, Texas
                                               §
 THE STATE OF TEXAS,                                            (TC # CR10-0844)
                                               §
                       Appellee.
                                               §


                                         OPINION

       Michael Leck Turner a/k/a Micha Leek Turner a/k/a Micha Leck Turner, appeals from a

felony conviction for evading arrest or detention with a motor vehicle with two prior convictions

for the same offense. For the following reasons, we affirm.

                                    FACTUAL SUMMARY

       On August 30, 2010, between 9:30 and 10 a.m., Patricia Grace heard a knock at her door.

She went to the front bedroom and looked out a window. She saw an unfamiliar woman at her

door and a truck parked at the street. The truck was an older model white Dodge Dakota with

the word “Dakota” written across the door. A man sat inside the truck wearing glasses and a

baseball cap.

       Mrs. Grace was home alone and not expecting company, so she did not answer the door.
The woman staggered across her yard, walked to the truck, and got into the passenger side. The

truck then “pulled up a little.” At that point, Mrs. Grace went through her house making sure all

of her doors were locked. As she opened the door between her utility room and her garage, she

realized the garage door was opening. She hit the button to close the door. She made sure the

garage door closed and then waited for a short time to see that the door did not open again.

Mrs. Grace went back inside the house, locked the door, and called the police to report the

incident.

       The following day between 4:30 and 5 p.m. the same woman knocked on the front door.

Mrs. Grace saw the same white truck in front of her house. She instantly recognized the truck

and the man in the driver’s seat. Mrs. Grace then yelled for her husband and he called 9-1-1.

       Police Officer Tracey Cryer was dispatched to the Grace’s home. At the time, he was in

uniform and driving a marked patrol car. As he approached the location, he observed a white

pickup truck--matching the description--driving toward him. Officer Cryer pulled up so that the

vehicles were facing opposite directions and driver’s door to driver’s door. He rolled down his

window ordered the driver of the truck, later identified as Appellant, to stay put. The officer

testified that his lights were activated during this initial encounter. Officer Cryer then made a

three point turn so that he would be behind Appellant’s truck and facing the same direction.

Before he had completed his turn, Appellant had driven off.

       Officer Cryer completed his turn and pursued Appellant, who was traveling at

approximately 89 miles per hour. Appellant sped through an intersection and nearly t-boned

another vehicle, but he was able to slam on his brakes and avoid an accident. Officer Cryer then

caught up so he was right on Appellant’s bumper with his lights flashing and his siren activated.

Appellant stopped, pulled over, and surrendered peacefully. Mrs. Grace’s garage door opener



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and a GPS device which she kept in her vehicle parked outside her home were both recovered

from Appellant’s car.

                               PROCEDURAL BACKGROUND

       Appellant was charged by indictment with the offense of evading arrest or detention. The

indictment also contained two enhancement paragraphs alleging prior convictions for the same

offense. Appellant pled not guilty to the offense charged. Prior to trial, the parties stipulated that

Appellant was the same person who was previously convicted in two evading arrest/detention

with a vehicle cases, as alleged in the enhancement paragraphs of the indictment.

       After hearing all of the evidence, the jury found Appellant guilty of the offense as

charged. It also rendered an affirmative finding with respect to Appellant’s use of a deadly

weapon (a motor vehicle) during the commission of the offense. The jury then sentenced

Appellant to serve twenty years in the Texas Department of Criminal Justice-Institutional

Division and to pay $10,000 fine.

                             SUFFICIENCY OF THE EVIDENCE

       In three issues on appeal, Appellant contends the evidence is insufficient to prove beyond

a reasonable doubt that he evaded arrest or detention with a motor vehicle. In Issues One and

Two, he challenges the legal and factual sufficiency of the evidence to support the jury’s finding

that he intended to evade arrest or detention. In Issue Three, Appellant argues that the court

committed reversible error by submitting a special instruction to the jury on the use of a deadly

weapon. As presented, the third point of error is likewise a challenge to the sufficiency of the

evidence.

                                        Standard of Review

       We no longer recognize a separate factual sufficiency standard of review in criminal



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cases. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010). Instead, the legal

sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979), is the only standard a reviewing court applies in determining whether the

evidence is sufficient to support a conviction. Brooks, 323 S.W.3d at 894-95. Under the

Jackson standard, we must consider all evidence in the light most favorable to the verdict and in

doing so determine whether a rational justification exists for the trier of fact’s finding of guilt

beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95, citing Jackson, 443 U.S. at 319, 99

S.Ct. at 2789.    In conducting our review we must give deference to the trier of facts

determinations regarding the weight and credibility of witness testimony as the trier of fact is the

sole judge as to the weight and credibility of such testimony. See Brooks, 323 S.W.3d at 894-95.

If the record contains conflicting inferences, we must presume the trier of fact resolved such

facts in favor of the verdict and defer to that resolution. Id. On appeal, we serve only to ensure

the trier of fact reached a rational verdict. Id. We may not reevaluate the weight and credibility

of the evidence produced at trial and in so doing substitute our judgment for that of the fact

finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000).

                                          Applicable Law

       A person commits the offense of evading arrest or detention, “if he intentionally flees

from a person he knows is a peace officer . . . attempting lawfully to arrest or detain him.”

TEX.PEN.CODE ANN. § 38.04(a)(West Supp. 2012). The statute further provides that:

       (b) An offense under this section is a Class A misdemeanor, except that the
       offense is:

                                           .      .     .

               (2) a felony of the third degree if:

                       (A) the actor uses a motor vehicle . . . while the actor is in

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                          flight and the actor has not been previously convicted under this
                          section . . . .

TEX.PEN.CODE ANN. § 38.04(b)(2)(A)(West 2011). In other words, the statute provides that the

third-degree offense of evading arrest is committed when a person (1) intentionally; (2) flees; (3)

from a person; (4) he knows is a peace officer; (5) the peace officer is attempting to lawfully

arrest or detain the actor; (6) the actor uses a vehicle while in flight; and (7) the actor has been

previously convicted of evading arrest. Calton v. State, 176 S.W.3d 231, 234 (Tex.Crim.App.

2005). Here, Appellant was charged and convicted of the third degree felony offense of evading

arrest or detention with a motor vehicle.1

                                    Intent to Evade Arrest or Detention

        In his first two points of error, Appellant challenges the sufficiency of the evidence to

show he intended to evade arrest or detention. This argument is predicated on Appellant’s

contention that there was no evidence that he heard or otherwise acknowledged Officer Cryer’s

initial verbal instruction to “stay put.”

        Officer Cryer testified that he asked Appellant a few questions when he pulled up to the

driver’s side of the truck, including what Appellant was doing in the area and where he was

from. This testimony suggests that Appellant heard the officer because Appellant answered the

questions. During this initial encounter, the officer instructed Appellant “to stop, and not to

move from that spot,” while the officer turned his vehicle around. He described his statements as

a direct command for Appellant to stay put because he was being detained.

        Based on this evidence, a rationale jury could have concluded Appellant knew Officer

Cryer was a police officer who was trying to detain him and Appellant fled instead of following

the officer’s orders. In fact, Appellant does not argue that Officer Cryer’s testimony, if believed,

1
  The parties stipulated as to Appellant’s prior convictions for the same offense and the jury found the enhancement
paragraph to be true as well.

                                                       -5-
is insufficient to show Appellant was being detained; he argues that despite Officer Cryer’s

testimony, “It is unknown [if] Appellant heard the officer or acknowledged the instruction.”

This argument disregards the jury’s province to determine the weight and credibility to give

witness testimony. Here, the jury was free to believe all, some, or none of Officer Cryer’s

testimony. Moreover, Officer Cryer also testified that after handcuffing Appellant, he asked him

why he ran, and Appellant replied that “he had traffic warrants.” A rationale jury could have

viewed his statement as an admission that he did in fact intend to flee. See Washington v. State,

326 S.W.3d 302, 310 (Tex.App.--Fort Worth 2010, pet. ref’d). Viewing all evidence in the light

most favorable to the jury’s verdict, we find sufficient evidence to prove beyond a reasonable

doubt that Appellant knew a police officer was detaining him and fled from that officer.

Appellant’s first two issues are overruled.

                                         Deadly Weapon

       The jury not only convicted Appellant of evading arrest or detention with a motor

vehicle, but, in response to a special issue, found that Appellant used or exhibited the motor

vehicle as a deadly weapon during the commission of the offense. In his third and final issue on

appeal, Appellant suggests that the trial court committed reversible error by submitting a special

issue to the jury on a deadly weapon finding because there was no evidence he used his vehicle

as a deadly weapon. According to Appellant, “The only offense committed by Appellant, if in

fact any offense at all, would be speeding over the posted speed limit,” which Appellant asserts

is not sufficient to show he used his vehicle in a manner intended to cause serious injury or death

to any person.

       The Texas Penal Code defines a “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.



                                               -6-
§ 1.07(a)(17)(B)(West Supp. 2012). To determine whether sufficient evidence exists to support

a deadly weapon finding in cases involving motor vehicles, we conduct a two-part analysis.

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). First, we evaluate the manner in which the

defendant used the motor vehicle during the felony. Sierra, 280 S.W.3d at 255. We then

“consider whether, during the felony, the motor vehicle was capable of causing death or serious

bodily injury.” Id. We look to several factors in determining whether the defendant’s driving

was reckless or dangerous: intoxication, speeding, disregard of traffic signs and signals, erratic

driving, and failure to control the vehicle. Sierra, 280 S.W.3d at 255–56. It is not required that

the actor intend to use the vehicle as a deadly weapon. Drichas v. State, 175 S.W.3d 795, 798

(Tex.Crim.App. 2005). However, the manner of use of the vehicle must pose an actual, not

hypothetical, danger to others. Id. at 799.

       Officer Cryer testified that he observed Appellant traveling at a speed of 89 miles per

hour and passing several vehicles along the way. He witnessed Appellant swerve from the left

lane into the right lane, cutting off a large “water truck, a semi truck.” Appellant then drove

threw a red light at an intersection and nearly collided with a car heading in the opposite

direction. Appellant slammed on his brakes and avoided a collision. Cryer testified that he “was

expecting to see a fatality or a major accident.”

       Viewing the evidence in the light most favorable to the prosecution, a rational fact finder

could have determined beyond a reasonable doubt that Appellant used his vehicle in a manner

capable of causing death or serious bodily injury. See TEX.PENAL CODE ANN. § 1.07(a)(17);

Sierra, 280 S.W.3d at 256; see also Drichas, 175 S.W.3d at 799 (stating that “a deadly weapon

finding is appropriate on a sufficient showing of actual danger, such as evidence that another



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motorist was on the highway at the same time and place as the defendant when the defendant

drove in a dangerous manner”); Davis v. State, No. 07-04-0104-CR, 2005 WL 3115286, at *3-4

(Tex.App.--Amarillo Nov. 22, 2005, pet. ref’d)(mem. op.)(not designated for publication)

(holding that evidence of appellant’s ignoring a stop sign and driving through an intersection

without stopping, driving through a residential area at speeds up to 60 miles per hour, and

continuously ignoring the patrol car’s emergency lights was legally sufficient evidence to

support the finding that he used his vehicle as a deadly weapon). Accordingly, the evidence was

legally sufficient to support the jury’s deadly weapon finding. We overrule Issue Three and

affirm the trial court’s judgment.


October 2, 2013
                                     ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating

(Do Not Publish)




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