                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-15-00260-CR
                            NO. 02-15-00261-CR


THOMAS PAUL TADSEN                                              APPELLANT

                                      V.

THE STATE OF TEXAS                                                    STATE

                                  ------------

          FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
                 TRIAL COURT NOS. 1378634R, 1379351R

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                       MEMORANDUM OPINION1

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      In two points, Appellant Thomas Paul Tadsen appeals his convictions for

evading arrest and driving while intoxicated (DWI). See Tex. Penal Code Ann.

§§ 38.04(b)(2)(A), 49.04 (West Supp. 2015). We affirm.




      1
      See Tex. R. App. P. 47.4.
                                   Background

      At approximately 4:40 p.m. on Friday, June 20, 2014, Officer Kristopher

Donahey of the Fort Worth Police Department was driving east on East Berry

Street in Fort Worth when he observed a silver Ford F-150 pickup truck stopped

in the center of the roadway ahead. The pickup was positioned perpendicular to

and blocking three lanes of traffic so that no traffic could pass.       As Officer

Donahey neared, he could see the driver, later identified as Appellant, through

the back window of the truck.

      At first Appellant appeared to be experiencing convulsions, but then Officer

Donahey realized that Appellant was actually vomiting on himself.2 Unsure if

Appellant was “drunk [and] puking” or if there was a medical emergency, Officer

Donahey activated the rear police lights on his patrol car,3 got out of the vehicle,

and approached the truck in an attempt to make contact with Appellant.

According to Officer Donahey, as he approached the vehicle, he smelled the

odor of alcohol, but when Appellant noticed Officer Donahey, he gave the officer

a “dismissive hand wave” and took off in his pickup.


      2
        Video recorded by a dash camera in Officer Donahey’s vehicle captured
Officer Donahey’s observations of Appellant and his driving and was admitted at
trial.
      3
       At the time, Officer Donahey was a part of the Zero Tolerance section of
the Tactical Operations Division of the Fort Worth Police Department. On June
20, 2014, he was patrolling in plain clothes in a police car that was marked, but
not equipped with overhead lights. At the time he encountered Appellant, he was
headed home from his ten-hour shift.


                                         2
      As Appellant drove away, the driver’s door to the pickup was still open and

Officer Donahey could see Appellant vomiting out of the door and on himself.

Officer Donahey also observed Appellant swerve into a different lane, then back

into the far right lane, and drive up on a curb before he came to a stop behind

two cars waiting for the light at the intersection of East Berry Street and Interstate

35 to turn green.       In the meantime, Officer Donahey returned to his vehicle,

followed Appellant to the intersection, pulled in behind him, activated his patrol

car lights, called out to Appellant on the radio speaker, got out of his car, and

again began to approach Appellant’s truck. Concerned that, clad in plain clothes,

he might be mistaken for a robber or a car-jacker in that high-crime

neighborhood, Officer Donahey testified that as he approached Appellant’s

pickup, he held up his badge and verbally identified himself as a police officer.

According to Officer Donahey, when he reached the pickup, Appellant rolled his

window down and looked at him with a look of “oh, crap, I’m caught.”              He

described Appellant’s eyes as “huge, like saucers, if you will” and Appellant was

“covered” in vomit from his collarbone to his lap. As soon as Appellant rolled

down his window, Officer Donahey could smell a “very strong odor” of what was

“absolutely” alcohol.

      Because he felt that Appellant was “at a high level of intoxication,” and

could not safely operate the vehicle, Officer Donahey’s primary goal at this point

was to separate Appellant from his vehicle. While Officer Donahey stood beside

the driver’s window talking to Appellant, he repeatedly tried to convince Appellant


                                          3
to put his pickup in park, get out of the vehicle and sit on the tailgate so that

Officer Donahey could call an ambulance.        According to Officer Donahey,

Appellant just stared at him blankly, and at one point mumbled something that

Officer Donahey could not understand because Appellant’s speech was slurred.

But Officer Donahey’s attempts to persuade Appellant to leave his vehicle proved

unsuccessful—

             I knew that the situation was about to get really bad when—
      the light had turned green, I didn’t know it, but I saw him—he went
      from looking at me to looking straight. And I could see out of my
      peripheral traffic began to flow.

As soon as the vehicles in front of him began to move, Appellant took off again,

driving through the intersection and turning right—narrowly missing a pedestrian

in the crosswalk—and entering the freeway heading south.

      Officer Donahey returned to his patrol car and began to follow in pursuit.

But by the time Officer Donahey got back into his patrol car and entered the

freeway, Appellant was so far ahead that—even at speeds which at times

reached 105 miles per hour—Officer Donahey could not catch up to him.

Although he never managed to close the distance, Officer Donahey could see

Appellant’s pickup ahead of him, and he described Appellant’s driving during the

chase as “very erratic” especially given the high volume of rush-hour traffic

present on the roadway that Friday afternoon.

      Officer Donahey had contacted police dispatch requesting assistance

when Appellant entered the freeway, and Officer Joshua Nichols and Officer



                                       4
Chris Kight4 quickly responded.5      Driving a Chevrolet Tahoe, they entered

southbound Interstate 35 from Interstate 20 and positioned their vehicle ahead of

Appellant and Officer Donahey.

      Just as Appellant passed the Tahoe, the officers observed Appellant

almost rear-end another car ahead of him. Officer Nichols testified that traffic on

the interstate was heavy, and when he observed the near-collision, he yelled

aloud out of fear for the safety of those inside. He testified at trial: “I honestly

thought, you know, at the speed he was going, I thought he was going to run into

the car ahead of them. I was worried for the people inside of it.”

      Appellant continued to weave in and out of traffic and Officer Nichols’ fears

eventually came to pass. Driving at a speed that Officer Donahey estimated to

be between 50 and 60 miles per hour, Appellant rear-ended a small, red sedan,

which, in turn, rear-ended a Ford extended-cab pickup, which, in turn, pushed

into another Ford extended-cab pickup, resulting in a four-car pileup. Officer

Donahey testified at trial that Appellant drove his pickup that afternoon in a

manner that “very easily” could have caused “death or serious bodily injury to

another person.” Fortunately, the driver of the sedan, which was sandwiched




      4
        Officer Kight’s name is misspelled as “Knight” at points in the record but
Officer Nichols clarified that it is properly spelled “Kight.”
      5
       The dashboard-camera video recorded in the second police unit was also
admitted into evidence.


                                         5
between the larger pickup trucks, testified that she sustained only bruising and a

small scar on her wrist as a result of the collision.

      Appellant was taken into custody from the scene.             A blood test later

revealed that Appellant’s blood alcohol content was 0.235.6

      Appellant was charged with evading arrest and DWI. Both indictments

included repeat offender notices connected to a 1994 felony conviction for

burglary and notices of a deadly weapon finding alleging that Appellant used his

vehicle as a deadly weapon in committing the crimes. Additionally, the DWI

indictment alleged that Appellant had been twice previously convicted of DWI.

After the cases were consolidated, Appellant pleaded guilty to each of the

primary offenses and “Not True” to the deadly weapon allegations. The jury

found Appellant guilty and further found that he had used his vehicle as a deadly

weapon in the commission of both offenses.              Appellant was sentenced to 7

years’ confinement on each offense, to be served concurrently.

                                     Discussion

I. Deadly weapon finding

      In his first issue, Appellant argues that there was insufficient evidence to

sustain the deadly weapon findings for each offense.




      6
         The legal limit is 0.08. See Tex. Penal Code Ann. § 49.01(2)(B) (West
2011).




                                           6
      In our due process review of the sufficiency of the evidence to support this

deadly weapon finding, we must review the record to determine whether, after

viewing the evidence in the light most favorable to the finding, any rational trier of

fact could have found beyond a reasonable doubt that the vehicle was used or

exhibited as a deadly weapon. See Brister v. State, 449 S.W.3d 490, 493 (Tex.

Crim. App. 2014); Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003).

The appellate court’s duty is not to reweigh the evidence but to act as a due

process safeguard ensuring only the rationality of the factfinder. Brister, 449

S.W.3d at 493–94. The evidence is sufficient to support a deadly weapon finding

in this case if a rational jury could have concluded that Appellant’s use of his

vehicle posed an actual danger—that is, one that is “not merely hypothetical”—of

death or serious bodily injury. See Drichas v. State, 175 S.W.3d 795, 797–98

(Tex. Crim. App. 2005).

      In Drichas, the court of criminal appeals pointed out that “a motor vehicle

may become a deadly weapon if the manner of its use is capable of causing

death or serious bodily injury.”    Id. at 798 (citations omitted).     The court of

criminal appeals held in that case that the motor vehicle was used as a deadly

weapon when the defendant drove the wrong way on a highway during a high-

speed chase, failed to yield to oncoming vehicles, committed numerous traffic

offenses, and abandoned the truck while it was still in motion. Id. at 797–98. In

comparison, the court of criminal appeals has held that a vehicle was not used as

a deadly weapon when there were “very few, if any” other cars on the road and


                                          7
there was no testimony that the defendant caused another vehicle or person to

be in actual danger. Brister, 449 S.W.3d at 495. In addition to considering the

presence of other vehicles or traffic on the roadway, we also consider several

other factors in examining whether a defendant’s driving was reckless or

dangerous: (1) intoxication, (2) speeding, (3) disregarding traffic signs and

signals, (4) driving erratically, and (5) failure to control the vehicle. Cook v. State,

328 S.W.3d 95, 100 (Tex. App.—Fort Worth 2010, pet. ref’d) (citations omitted).

      As set forth above, the facts of this case present substantial evidence that

Appellant endangered lives in evading arrest and driving under the influence. In

addition to testimony from Officer Donahey and Officer Nichols, the jury also had

the benefit of dashboard-camera video recordings from both police units to

observe the actual events as they transpired, the traffic conditions on that day,

and the resulting collision. Additionally, the evidence showed that Appellant’s

blood alcohol level was almost three times the legal limit. See Tex. Penal Code

Ann. § 49.01(2)(B).

      This evidence is sufficient to establish that Appellant used his vehicle in

such a manner as to present an actual danger of serious bodily injury or death to

the other drivers on the road. See Drichas, 175 S.W.3d at 798; Daniel v. State,

478 S.W.3d 773, 781 (Tex. App.—Fort Worth 2015, no pet.) (holding that

appellant used his vehicle as a deadly weapon when he raced it on a “congested

and busy street,” cutting off other cars and requiring other cars on the roadway to

adjust, jumping between lanes, driving very aggressively and at more than twice


                                           8
the speed limit, and “coming within feet” of rear-ending another car); Cook, 328

S.W.3d at 101 (holding that appellant used her vehicle as a deadly weapon when

her blood alcohol level was more than two times the legal limit, she was speeding

and not maintaining a proper lookout while driving, and collided with a

pedestrian, causing his death). We therefore overrule Appellant’s first point.

II. Severity of punishment

      In his second point, Appellant argues that the sentence of seven years’

confinement for each crime “violates the doctrine of proportionality and is

therefore cruel and unusual punishment prohibited by both the Texas and United

States Constitutions.”   The State argues that Appellant did not preserve his

complaint because he did not object when the trial court imposed the sentences.

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d

670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). Further,

the trial court must have ruled on the request, objection, or motion, either

expressly or implicitly, or the complaining party must have objected to the trial

court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d

259, 263 (Tex. Crim. App. 2013). A reviewing court should not address the

merits of an issue that has not been preserved for appeal. Ford v. State, 305

S.W.3d 530, 532 (Tex. Crim. App. 2009).


                                         9
      Generally, an appellant may not complain about his sentence for the first

time on appeal. Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995);

Mercado v. State, 718 S.W.2d 291, 296 (Tex. Crim. App. 1986); Means v. State,

347 S.W.3d 873, 874 (Tex. App.—Fort Worth 2011, no pet.); Laboriel-Guity v.

State, 336 S.W.3d 754, 756 (Tex. App.—Fort Worth 2011, pet. ref’d). Appellant

did not object to his sentence at the time of pronouncement; nor did he object in

a motion for new trial presented to the trial court. As such, Appellant has waived

his complaint regarding the length of his sentences. See Means, 347 S.W.3d at

874 (“Because Appellant did not object to his sentences when they were

imposed or present his motions for new trial to the trial court, he failed to

preserve his sentencing complaints for appellate review.”).        We therefore

overrule Appellant’s second point.

                                     Conclusion

      Having overruled each of Appellant’s points, we affirm the trial court’s

judgments.

                                                  /s/ Bonnie Sudderth
                                                  BONNIE SUDDERTH
                                                  JUSTICE

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

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

DELIVERED: June 30, 2016




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