Opinion filed April 30, 2014




                                     In The

        Eleventh Court of Appeals
                                  __________

                               No. 11-12-00109-CR
                                   __________

                  ARTURO B. MENDOZA, JR., Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                     On Appeal from the 238th District Court
                            Midland County, Texas
                        Trial Court Cause No. CR39381


                      MEMORANDUM OPINION
       The jury convicted Appellant, Arturo B. Mendoza, Jr., of the offenses of
felony driving while intoxicated and evading arrest or detention with a vehicle and,
upon finding the enhancement allegations to be true, assessed Appellant’s
punishment for each offense at confinement for fifty years. The jury also found
that Appellant used a “Jeep automobile” as a deadly weapon during the
commission of the offense of evading arrest or detention with a vehicle. The trial
court ordered Appellant’s sentences to run concurrently. We affirm.
      In his sole issue on appeal, Appellant challenges the deadly weapon finding.
Appellant argues that the evidence was insufficient to support a deadly weapon
finding because the evidence failed to demonstrate that any person was actually
placed in danger by Appellant’s driving.
      A vehicle is not a deadly weapon per se, but can be found to be a deadly
weapon if it is used in a manner that is capable of causing death or serious bodily
injury. See TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West Supp. 2013). To
determine whether a motor vehicle was used as a deadly weapon, we first evaluate
the manner in which Appellant used the vehicle, including whether he drove
dangerously or recklessly or violated traffic laws. Sierra v. State, 280 S.W.3d 250,
255 (Tex. Crim. App. 2009). Second, we evaluate whether the vehicle was capable
of causing death or serious bodily injury. Id. To sustain a deadly weapon finding,
there must be evidence that others were actually endangered; the mere hypothetical
potential for danger if others had been present will not support a deadly weapon
finding. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003). We must
view the evidence in the light most favorable to the verdict and determine whether
a rational trier of fact could have found beyond a reasonable doubt that Appellant
used or exhibited the Jeep as a deadly weapon when he was evading arrest or
detention. See Sierra, 280 S.W.3d at 255.
      The record shows that Officer William Taylor Welch of the Midland Police
Department attempted to conduct a traffic stop of a silver Jeep Cherokee that was
traveling over the posted speed limit. Officer Welch activated his emergency
lights and siren, but the driver of the Jeep did not pull over. The driver of the Jeep,
later identified as Appellant, instead led police on a 30-minute chase. The initial
stages of the pursuit occurred inside the city limits, and Appellant drove
cautiously. Officer Welch testified that there was heavy traffic on the major
roadways that they encountered during the pursuit and that there were “citizens on
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the road that were having to stop or get out of the way to avoid the vehicle
pursuit.” Appellant’s cautiousness was aided by Midland police officers who tried
to block traffic at major intersections to keep anybody from having a wreck.
Appellant eventually left the city limits.
      With respect to the traffic outside the city limits on County Road 120 and
the Rankin Highway, Officer Welch stated: “There wasn’t a whole lot of traffic
that we had to pass. There was more traffic . . . coming towards us.” Only a center
stripe separated the lanes on these roads. Appellant subsequently turned onto
FM 1213 and drove in excess of 100 miles per hour on that road. While traveling
over 100 miles per hour, Appellant passed a pickup traveling in the same direction
and met a “truck-tractor” traveling in the opposite direction. The drivers of those
vehicles were “able to get out of the way safely.” As Appellant approached a busy
highway, he lost control of the Jeep, drove through a barbed-wire fence, and got
stuck in a muddy field.
      Trooper Robert Donald Manley participated in the last ten minutes of the
pursuit. Trooper Manley testified that he and other officers ran into the irrigated
field where the Jeep was stuck and yelled at Appellant to stop, turn the vehicle off,
and exit the vehicle. Appellant did not comply but, instead, attempted to get the
Jeep unstuck and drive away.           According to Trooper Manley, Appellant
temporarily got the Jeep unstuck and “almost hit a deputy with the vehicle.”
Officer Welch eventually used his baton and broke the driver’s window so that the
officers could open the door, extract Appellant from the Jeep, and arrest him.
      Appellant appeared to be intoxicated. His blood was drawn at the jail
infirmary. Testing showed that Appellant’s blood alcohol concentration was 0.24
grams of alcohol per 100 milliliters of blood: three times the legal limit.
      In addition to the testimony of the peace officers, a DVD recording of the
entire pursuit was admitted into evidence and played for the jury.            We have
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reviewed the recording and note that, in addition to the excessive speeds driven
outside the city limits, Appellant also exceeded the speed limit while in the city
limits, failed to stop at numerous stop signs in residential areas, and sped away as
an officer attempted to enter the passenger’s side of the Jeep when Appellant
slowed down at a stop sign.
        Although the Jeep did not hit anybody, there were other vehicles on the road
with Appellant, including a tanker truck at the busy intersection where Appellant
lost control of the Jeep. Officer Welch testified that an intoxicated person driving
112 to 116 miles per hour is a danger to the public and that Appellant could have
caused death or serious bodily injury in the manner in which he operated the Jeep
during the police pursuit. Furthermore, Appellant almost hit a deputy with the
Jeep.
        We hold that a rational trier of fact could have found beyond a reasonable
doubt that Appellant used the Jeep as a deadly weapon when he was evading arrest
or detention. There were people present that were endangered by Appellant’s use
of the Jeep; the evidence does not reflect a mere “hypothetical potential for danger
if others had been present.” See Cates, 102 S.W.3d at 738. The evidence is
sufficient to support the deadly weapon finding.         Appellant’s sole issue is
overruled.
        We affirm the judgments of the trial court.




                                                      JOHN M. BAILEY
April 30, 2014                                        JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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