Modify and affirm as modified; Opinion Filed December 4, 2019




                                                                    In The
                                            Court of Appeals
                                     Fifth District of Texas at Dallas
                                                         No. 05-18-01204-CR

                                         CHRIS AUTHOR THOMAS, Appellant
                                                      V.
                                          THE STATE OF TEXAS, Appellee

                                 On Appeal from the 292nd Judicial District Court
                                              Dallas County, Texas
                                      Trial Court Cause No. F-1800014-V

                                           MEMORANDUM OPINION
                                       Before Justices Myers, Osborne, and Nowell
                                                Opinion by Justice Nowell
           A jury convicted Chris Author Thomas of evading arrest or detention with a motor vehicle

and sentenced him to seventy-five years’ confinement.1 In two issues, appellant asserts the

evidence is insufficient to show he used a motor vehicle as a deadly weapon and the trial court

erred by precluding his counsel from asking the venire a proper commitment question. In a single

cross issue, the State requests we modify the judgment to show the jury made an express

determination that appellant used a deadly weapon, a motor vehicle. We modify the trial court’s

judgment and affirm as modified.




     1
       The State also charged appellant with two counts of robbery, but a mistrial was declared in both of those cases after the jury was unable to
reach a resolution.
          A. Sufficiency of Evidence to Show Deadly Weapon

          In his first issue, appellant asserts the evidence is insufficient to show he drove a vehicle

in a manner capable of causing death or serious bodily injury. Therefore, the evidence is

insufficient to show he used a motor vehicle as a deadly weapon.

          When assessing the sufficiency of the evidence, we review the record to determine whether,

after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could

have found beyond a reasonable doubt that the appellant used or exhibited the vehicle as a deadly

weapon. Couthren v. State, 571 S.W.3d 786, 789 (Tex. Crim. App. 2019) (considering sufficiency

of the evidence to show motor vehicle used or exhibited as a deadly weapon). “By statute, a motor

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.” Id. (citing TEX. PENAL CODE

§ 1.07(a)(17)(B)). When determining whether the evidence is sufficient to support a deadly

weapon finding, we must “evaluate the manner in which the defendant used the motor vehicle

during the felony” to determine whether it was reckless or dangerous and “consider whether,

during the felony, the motor vehicle was capable of causing death or serious bodily injury,” which

involves determining if the manner of use created actual danger to others. Sierra v. State, 280

S.W.3d 250, 255 (Tex. Crim. App. 2009); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App.

2005).

          Testimony at trial showed appellant and two other men stole a truck from a man and woman

on a date. The men brandished guns, forced the couple from the truck, and drove away with the

truck. The woman reported the robbery to the police.

          Responding to the call, Senior Corporal J. Dickson2 with the Dallas Police Department

located the truck at approximately 1:24 a.m., and began following it. He called “Air 1,” the


   2
       Officer Dickson’s first name does not appear in the record.

                                                                     –2–
department’s helicopter, to monitor the truck from the air. While waiting for Air 1, Dickson,

driving a patrol car, followed the truck on a residential street without turning on his lights or sirens.

At approximately 1:30 a.m., with Air 1 positioned above the stolen truck, Dickson initiated a

felony stop. Appellant continued driving and a high-speed chase ensued.3

           Video footage from Dickson’s dash camera shows that after Dickson activated his lights

and sirens to initiate the felony stop, appellant began driving over 50 miles per hour in a residential

neighborhood. Appellant also crossed a double line in the road, drove on the left side of the street,

and disregarded traffic signals. At one point, although Dickson drove more than 60 miles per hour

through the residential streets, he could not keep pace with appellant. Dickson testified that driving

so fast in a residential neighborhood is dangerous and capable of causing serious bodily injury or

death.

           Dickson continued chasing appellant on to the highway where other cars were driving.

Dickson testified the top speed registered by his marked patrol car was 119 miles per hour, but, at

that time, “[appellant] was pulling away from me.” Dickson did not know how fast appellant was

driving, but explained both vehicles were “traveling at a high rate of speed,” which was extremely

dangerous. During most of the video from Dickson’s dash camera, the truck driven by appellant

cannot be seen; however, Air 1 is visible. The jury saw video footage of the car chase from

Dickson’s dash camera.

           The State asked Dickson whether he considers a motor vehicle a deadly weapon, and he

responded affirmatively. The State then asked whether a motor vehicle is capable of causing

serious injury, bodily injury, or death, and he again replied affirmatively.




      3
        Dickson testified that department policy restricts when officers may engage in car chases because such chases create dangerous situations.
An aggravated robbery is a basis for engaging in a car chase because the assailant is considered “a danger to the public because they are willing to
point a gun at somebody to take their property.”

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       Dickson stopped chasing appellant when officers from the Dallas County Sheriff’s

Department took over the chase. When Deputy Jason Pitts of the Dallas County Sheriff’s

Department began chasing appellant, the truck was moving faster than 100 miles per hour and,

once appellant realized an officer was behind him, appellant increased his speed. The jury saw a

video recording of the chase made by the camera in Pitts’s patrol car. The video shows appellant

swerve to avoid hitting another vehicle driving on the same street, lose control of the truck, and

hit a utility pole holding a power transformer and power lines. The video shows a burst of light,

sparks flying, and live power lines falling to the ground. When Pitts approached the truck,

appellant said: “my bad.” Pitts’s patrol car was wrecked, the lights were torn off, and the back

window was shattered by the falling power lines. Pitts testified a motor vehicle may be a deadly

weapon and is capable of causing serious bodily injury or death, including when the vehicle is

driven at speeds in excess of 100 miles per hour.

       The evidence shows that appellant drove at a high rate of speed through residential

neighborhoods and disregarded multiple traffic signs. He also drove at a high rate of speed, over

119 miles per hour, on the highway with other cars on the road. While driving fast, appellant

narrowly missed colliding with another vehicle in operation before losing control of the truck and

hitting a utility pole holding live power lines, which then fell to the ground. According to

testimony from officers involved in the chase, driving in this manner is dangerous. From this

evidence, a rational trier of fact could have found beyond a reasonable doubt that appellant drove

the motor vehicle in a reckless or dangerous manner capable of causing serious bodily injury or

death to others. We overrule appellant’s first issue.

       B. Modify Judgment to Show Deadly Weapon Finding

       In its cross-issue, the State requests we modify the judgment to show the jury found

appellant used a deadly weapon. A court has the power to modify a judgment to make the record

                                                –4–
speak the truth when it has the necessary information to do so. See TEX. R. APP. P. 43.2(b). When

a jury makes an affirmative deadly weapon finding, the trial court has a mandatory duty to enter a

deadly weapon finding in the written judgment. See Couthren, 571 S.W.3d at 789.

          In this case, the jury unanimously found beyond a reasonable doubt that appellant used or

exhibited a deadly weapon, a motor vehicle. However, under the heading “Findings on Deadly

Weapon,” the judgment states “N/A.” Because we have the necessary information, we modify the

trial court’s judgment by deleting “N/A” and replacing it with “YES, A MOTOR VEHICLE”

under “Findings on Deadly Weapon.”

          C. Voir Dire

          In his second issue, appellant argues his attorney was prohibited from asking a proper

commitment question during voir dire.4 The State asserts appellant’s trial counsel asked an

improper commitment question and, therefore, the trial court did not abuse its discretion by

sustaining its objection or, in the alternative, any error was harmless.

          During voir dire, appellant’s counsel asked the jury: “Even if the State hasn’t proven that

it was used in that manner and means, just because it’s a vehicle in a chase, then you would

determine it’s a deadly weapon, correct? The State objected on the basis of “improper commitment

and a misstatement of the law.” The trial court sustained the objection and instructed the venire

to disregard. Appellant’s counsel then asked: “What I want to know is who has those opinions

about a vehicle being used in a chase and believes that it’s a deadly weapon?” Appellant’s counsel

and members of the venire proceeded to discuss this inquiry.

          We need not address whether the trial court abused its discretion by sustaining the State’s

objection. Assuming, without deciding, the trial court erred by sustaining the objection to the




   4
       Appellant concedes the question was a commitment question, but asserts it was a proper commitment question.

                                                                   –5–
question, the record does not show the error was harmful. Nor does appellant argue in his brief

that he was harmed.

       If we determine a trial court erred by improperly limiting a defendant’s voir dire, we

generally consider it a non-constitutional error and conduct the harm analysis under rule 44.2(b).

See Easley v. State, 424 S.W.3d 535, 542 (Tex. Crim. App. 2014). Under rule 44.2(b), any error

that does not affect a substantial right must be disregarded. TEX. R. APP. P. 44.2(b). A substantial

right is affected when “the error has a substantial and injurious effect or influence in determining

the jury’s verdict.” Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005). Conversely, an

error does not affect a substantial right if we have “fair assurance that the error did not influence

the jury, or had but a slight effect.” Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001).

       When conducting a harm analysis, we consider the whole record, including any testimony

or physical evidence admitted for the jury’s consideration, the nature of the evidence supporting

the verdict, the character of the alleged error and how it might be considered in connection with

other evidence in the case, the jury instructions, the State’s theory and any defensive theories,

closing arguments, voir dire, and whether the State emphasized the error. Easley, 424 S.W.3d at

542; Rich, 160 S.W.3d at 577.

       After sustaining the State’s objection, the trial court did not place any limitation on

appellant’s ability to investigate potential jurors’ opinions about a vehicle being used as a deadly

weapon. See, e.g., Easley, 424 S.W.3d at 542 (applying rule 44.2(b) and concluding no harm when

counsel was denied his preferred method of discussing criminal burdens of proof but was not

precluded from discussing and explaining the beyond-a-reasonable-doubt standard); Lnuk-X v.

State, No. 05-15-00908-CR, 2016 WL 3017565, at *5 (Tex. App.—Dallas May 18, 2016, no pet.)

(assessing harm where State objected to appellant’s counsel’s question during voir dire). Rather,

appellant’s counsel immediately rephrased his question and engaged in a lengthy dialogue with

                                                –6–
members of the venire on the topic, which allowed counsel to obtain the information he sought

with the original question. Additionally, the record shows the State presented ample evidence

supporting the verdict. The couple whose truck was taken testified and identified appellant as the

perpetrator, the officers testified about the high-speed car chase, and the jury saw videos from the

officers’ dash cameras.

       Having reviewed and considered the entire record, we conclude any error by the trial court

in sustaining the State’s objection was non-constitutional and did not have a substantial and

injurious effect or influence in determining the jury’s verdict. See Rich, 160 S.W.3d at 577. We

overrule appellant’s second issue.

       D. Conclusion

       We modify the trial court’s judgment to add the deadly weapon finding. As modified, we

affirm the trial court’s judgment.




                                                   /Erin A. Nowell/
                                                   ERIN A. NOWELL
                                                   JUSTICE


Do Not Publish
TEX. R. APP. P. 47.2(b)
181204F.U05




                                                –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 CHRIS AUTHOR THOMAS, Appellant                     On Appeal from the 292nd Judicial District
                                                    Court, Dallas County, Texas
 No. 05-18-01204-CR         V.                      Trial Court Cause No. F-1800014-V.
                                                    Opinion delivered by Justice Nowell.
 THE STATE OF TEXAS, Appellee                       Justices Myers and Osborne participating.

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       We DELETE the term “N/A” under the heading “Findings on Deadly Weapon.”
       We ADD the words “YES, A MOTOR VEHICLE” under the heading “Findings on
       Deadly Weapon.”

As REFORMED, the judgment is AFFIRMED.


Judgment entered this 4th day of December, 2019.




                                              –8–
