                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-18-00295-CR


                           RANDY PHILIP CHAUDRON, APPELLANT

                                                     V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 396th District Court
                                     Tarrant County, Texas
                Trial Court No. 1521449D; Honorable George Gallagher, Presiding

                                            November 8, 2019

                                  MEMORANDUM OPINION

                        Before QUINN, C.J. and PIRTLE and PARKER, J.J.


        Appealing from his conviction for evading arrest with a vehicle,1 Appellant, Randy

Philip Chaudron, challenges his conviction through two issues.2 First, he argues the


        1 TEX. PENAL CODE ANN. § 38.04(b)(2)(A) (West 2019). An offense under this section is a third
degree felony. Appellant’s range of punishment, however, was enhanced based on his two prior final felony
convictions. TEX. PENAL CODE ANN. § 12.42(d) (West 2019). The jury assessed punishment against
Appellant at thirty years of imprisonment.

        2 Originally appealed to the Second Court of Appeals, this appeal was transferred to this court by

the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between precedent of the Second Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3.
evidence was insufficient to show he used a deadly weapon in evading arrest and second,

he argues the trial court erred in refusing to include in its charge to the jury a requested

instruction. We affirm.


       BACKGROUND

       Appellant was charged via indictment with “intentionally flee[ing], using a vehicle,

from J. Reynolds knowing J. Reynolds was a peace officer who was attempting to lawfully

arrest or detain the defendant.” The indictment also included a deadly weapon finding

notice that stated, “And it is further presented in and to said court that during the

commission of the above described felony, the said defendant did use a deadly weapon,

namely a motor vehicle, that in the manner of its use or intended use was capable of

causing death or serious bodily injury.”


       At trial, Fort Worth Police Officer Justin Reynolds testified that on the day he

stopped Appellant, he was monitoring a school zone. He told the jury that the “lights are

activated between 8:30 and 9:30” and agreed that anyone driving in excess of twenty

miles per hour through that zone after 8:30 and before 9:30 in the morning would be

committing a traffic violation.   At just before 9:30, Reynolds observed, using radar,

Appellant driving twenty-nine miles per hour through the school zone. Reynolds initiated

a traffic stop, stopping his motorcycle behind Appellant. Reynolds approached Appellant

and attempted to obtain his identification.      Appellant provided to him identification

belonging to another person and would not give to the officer his own identifying

information. After approximately thirteen minutes of discussion during which the officer

attempted to gain this information, Appellant quickly backed up in his vehicle, hit the

officer’s motorcycle, and knocked it over. He then revved his engine and sped away.

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Reynolds was not injured but did have to move quickly to the sidewalk to avoid being in

the path of Appellant’s vehicle. A recording from Reynold’s body camera, admitted into

evidence, showed these events. Appellant was later apprehended by another officer.


       ISSUE ONE—SUFFICIENCY OF THE EVIDENCE TO SUPPORT DEADLY-WEAPON FINDING

       In his first issue, Appellant contends the evidence was insufficient to support the

jury’s affirmative finding that he used a deadly weapon, to-wit: his vehicle, in evading

arrest. He argues that while he did back over the officer’s motorcycle, he did so in a way

to avoid the officer and when he sped away, he drove to a street that was occupied only

by empty vehicles. Therefore, Appellant asserts, there was no actual danger to anyone

and nothing to support his use of his vehicle as a deadly weapon.


       In order to establish Appellant committed the offense of evading arrest or detention

with a vehicle, the State had to show he intentionally fled from a person he knew was a

peace officer attempting lawfully to arrest or detain him, using a vehicle while in flight.

TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A). Appellant concedes the evidence was

sufficient to prove he evaded arrest or detention and challenges only the finding that he

used his vehicle as a deadly weapon in the course of committing that offense.


       When reviewing a deadly-weapon finding, appellate courts “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 [vehicle]

was used or exhibited as a deadly weapon.” Brister v. State, 449 S.W.3d 490, 493 (Tex.

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

The trier of fact is the sole judge of the weight of the evidence and credibility of the


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witnesses and we may not re-evaluate the weight and credibility determinations made by

the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).


       A motor vehicle is not a deadly weapon per se, but it can be found to be one if it is

used in a manner that is capable of causing death or serious bodily injury. Brister, 449

S.W.3d at 494.     See also TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (defining deadly

weapon). Thus, a vehicle can be a deadly weapon “when it does more than simply

present a mere potential for endangering others.” McKinney v. State, No. 07-12-0206-

CR, 2013 Tex. App. 1431, at *2 (Tex. App.—Amarillo Feb. 13, 2013, no pet.) (mem. op.,

not designated for publication) (citations omitted). To sustain a finding that the object in

question is a deadly weapon, the evidence must illustrate that the object met the definition

of a deadly weapon; the deadly weapon was used or exhibited during commission of the

offense; and other people were put in actual danger. Brister, 449 S.W.3d at 494 (citing

Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005)). To sustain a finding

regarding the use of a deadly weapon, intent to use a motor vehicle as a deadly weapon is

not required. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).              And,

“evidence may be sufficient to support a deadly weapon finding in the absence of any

evidence that either death or serious bodily injury occurred.” Cummings v. State, No. 05-

17-00852-CR, 2018 Tex. App. LEXIS 5925, at *7 (Tex. App.—Dallas July 31, 2018, pet.

ref’d) (mem. op., not designated for publication) (citing Moore v. State, 520 S.W.3d 906,

908 (Tex. Crim. App. 2017)).


       In conducting our analysis, we first evaluate the manner in which the defendant

used the motor vehicle during the commission of the offense. Hilburn v. State, 312

S.W.3d 169, 177 (Tex. App.—Fort Worth 2010, no pet.) (citing Sierra v. State, 280 S.W.3d

                                             4
250, 255 (Tex. Crim. App. 2009)). We then “consider whether, during the felony, the

motor vehicle was capable of causing death or serious bodily injury.” Id.


       Appellant argues here that the evidence did nothing more than show his driving

could have potentially been a danger to others. This, he says, is not sufficient to support

the jury’s deadly-weapon finding.    He notes that when he drove off, Reynolds was

standing a few feet outside Appellant’s vehicle. According to Appellant, the video shows

Appellant, “rather than driving forward and risking coming close to Officer Reynolds, he

backed up to create additional space to flee.” Further, he argues, the direction he fled

was to a street that was unoccupied, save for empty parked vehicles. No one, including

Reynolds, was hurt.


       We must disagree with Appellant’s assessment of the evidence. As the State says

in its response to Appellant’s issue, we are to review the evidence in the light most

favorable to the jury’s deadly-weapon finding. In doing so, we see on the video that

Appellant suddenly and quickly backs his vehicle into Reynold’s motorcycle. We hear a

loud crash as Appellant continues to back into the motorcycle, knocking it over and

disabling it. Appellant then pulls forward toward where the officer is standing, revs his

engine, and takes off. Reynolds runs out of the street and to the sidewalk in order to get

out of Appellant’s path. On the video, we can hear the tires screeching and see dirt flying

in the direction in which Appellant fled. The jury also had before it Reynolds’s testimony

of what happened. Furthermore, during his testimony, Reynolds agreed that he would

consider a vehicle to be capable of causing death or serious bodily injury and that he one

“hundred percent” felt like the way Appellant’s vehicle was driven at him or the way it was

driven off the road could cause someone serious bodily injury or death.

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         The jury was entitled to view Appellant’s operation of his motor vehicle as

dangerous or reckless and as posing an actual risk to Reynolds. Sierra, 280 S.W.3d at

255; Cummings, 2018 Tex. App. LEXIS 5925, at *9-10. Additionally, the jury could have

rationally concluded that the manner in which Appellant used his vehicle could have

caused death or serious bodily injury to any other passerby. The video shows traffic on

the street behind Appellant’s vehicle and Reynolds’s motorcycle. Any one of those

vehicles could have turned onto that street during the time Appellant backed into the

motorcycle and then took off down the street. See Moore v. State, No. 06-10-00173-CR,

2011 Tex. App. LEXIS 5975, at *10-11 (Tex. App.—Texarkana Aug. 2, 2011, no pet.)

(mem. op., not designated for publication) (finding the evidence sufficient to uphold a

finding that a truck was a deadly weapon because the manner in which the defendant

operated it posed actual danger to the officers in proximity to the vehicle at the time he

rapidly accelerated, causing it to dangerously swing out into the path of the officers, who

were forced to move quickly in order to avoid being struck).


         Viewing the evidence in the requisite light, we find a rational jury could have

determined beyond a reasonable doubt that Appellant used or intended to use his vehicle

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

was sufficient to support the jury’s deadly-weapon finding. We overrule Appellant’s first

issue.


         ISSUE TWO—ARTICLE 38.23 INSTRUCTION

         In his second issue, Appellant argues the trial court erred when it refused to include

in its charge to the jury his requested instruction pursuant to article 38.23 of the Code of

Criminal Procedure. As support for his argument, Appellant says there was a factual

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dispute identified at trial over when Reynolds saw Appellant speed through the school

zone. If it was before 9:30 a.m., as the officer testified, Reynolds would have been

attempting to lawfully detain Appellant when he evaded arrest or detention. If, however,

it was after 9:30 a.m., as the “call out” report seemed to indicate with a time of 9:40,

Appellant was not speeding when the school zone was active and as such, Reynolds

would not have been acting lawfully when he attempted to arrest or detain Appellant and

Appellant would not have been guilty of evading arrest.


       We review jury charge error under the Almanza standard. Collins v. State, 462

S.W.3d 617, 624 (Tex. App.—Fort Worth 2015, no pet.) (citing Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). When a timely objection is made,

any error in the charge requires reversal if the error was “‘calculated to injure the rights of

[the] defendant,’ which means no more than that there must be some harm to the accused

from the error.” Id. (citations omitted). This analysis requires a reviewing court to consider

(1) the jury charge as a whole, (2) the arguments of counsel, (3) the entirety of the

evidence, and (4) other relevant factors present in the record. Id. (citations omitted).


       A defendant’s right to the submission of jury instructions under article 38.23(a) is

“limited to disputed issues of fact that are material to his claim of a constitutional or

statutory violation that would render evidence inadmissible.”         Madden v. State, 242

S.W.3d 504, 509-10 (Tex. Crim. App. 2007) (citing Pierce v. State, 32 S.W.3d 247, 251

(Tex. Crim. App. 2000)). The Court of Criminal Appeals has explained the statute by

saying:


       The terms of the statute are mandatory, and when an issue of fact is raised,
       a defendant has a statutory right to have the jury charged accordingly. The

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       only question is whether under the facts of a particular case an issue has
       been raised by the evidence so as to require a jury instruction. Where no
       issue is raised by the evidence, the trial court acts properly in refusing a
       request to charge the jury.


Id. (citing Murphy v. State, 640 S.W.2d 297, 299 (Tex. Crim. App. 1982)).


       There are three requirements a defendant is required to satisfy before he is entitled

to the submission of a jury instruction under article 38.23(a). Madden, 242 S.W.3d at 510

(citation omitted). First, the evidence heard by the jury must raise an issue of fact. Id.

(citations omitted). Second, the evidence on that fact must be affirmatively contested. Id.

(citations omitted). Third, that contested factual issue must be material to the lawfulness

of the challenged conduct in obtaining the evidence. Id. (citations omitted).


       With respect to the first factor, there must be a genuine dispute about a material

fact. Id. (citing Garza v. State, 126 S.W.3d 79, 85 (Tex. Crim. App. 2004)). If there is no

disputed factual issue, the legality of the conduct is determined by the trial judge alone,

as a question of law. Id. (citations omitted). If other facts, not in dispute, are sufficient to

support the lawfulness of the challenged conduct, then the disputed fact issue is not

submitted to the jury because it is not material to the ultimate admissibility of the evidence.

Id. (citations omitted). The disputed fact must be a crucial one in deciding the lawfulness

of the challenged conduct. Id. at 511 (citation omitted).


       Prior to submission of the charge to the jury, the following exchange took place:

       Counsel:       Judge, the only thing we’d request is a 38.23 charge based
                      on the traffic stop. I believe we discussed this outside the
                      presence of the jury beforehand. But that’s the only thing we
                      request in addition to the charge. Otherwise, we have no
                      objections.


                                               8
       Court:         For the jury to determine whether or not it was -- that they
                      would have to disregard anything that would be illegally
                      obtained?

       Counsel:       That’s correct, Judge, based on the traffic stop. I believe the
                      officer testified he was not aware what time he made the
                      traffic stop, and I believe that raises a question as to whether
                      or not it was a valid traffic stop or not.

       Court:         Any response?

       Prosecutor: I would respond that the officer testified he believed it was
                   between 9:00 and 9:20. It was during the time of the school
                   zone. I don’t think there’s anything in evidence to conflict with
                   that fact. So we would argue that there is no evidence to --

       Court:         Okay. I’ll deny that request.

       Counsel:       Thank you, Judge.

       The State argues Appellant’s “request did not specify what facts he believed were

in dispute.” However, the State only quoted the first paragraph of counsel’s request.

Defense counsel did identify that it was the time of the traffic stop that was in dispute, and

the time affected the validity of the traffic stop. The evidence before the trial court included

Reynolds’s testimony and the recording from his body camera. Reynolds testified he saw

Appellant speeding in the school zone during a time the school zone was active. After

stopping Appellant for that violation, Reynolds spoke with Appellant for some thirteen

minutes before Appellant backed over Reynolds’s motorcycle and sped away. It was at

that time Reynolds called dispatch to report the incident. The evidence shows that call

was made at 9:41:59, according to the defense exhibit introduced at the suppression

hearing.   From that evidence, the court could have determined that Reynolds saw

Appellant driving through the school zone before 9:30 a.m., supporting a finding that the

stop was valid. The fact that the school zone is in effect from 8:30 a.m. to 9:30 a.m., that

Reynolds and Appellant spoke for approximately thirteen minutes before Appellant

                                               9
backed into the motorcycle and fled, and that the “call out” report was around 9:40 are all

undisputed facts. These undisputed facts are sufficient to support Reynolds’s traffic stop

of Appellant. Madden, 242 S.W.3d at 509-11. Because Appellant did not satisfy his

burden for entitlement to his requested article 38.23 instruction, the trial court did not err

in refusing to submit that instruction. Id. See also Manifold v. State, No. 06-17-00101-

CR, 2017 Tex. App. LEXIS 10485, at *8-9 (Tex. App.—Texarkana Nov. 9, 2017, pet. ref’d)

(mem. op., not designated for publication) (no error in denying article 38.23 instruction

when it was undisputed that the officer observed the defendant fail to remain entirely

within a single lane of traffic and video evidence supported that testimony). Accordingly,

we overrule Appellant’s second issue.


       CONCLUSION

       Having resolved each of Appellant’s issues against him, we affirm the judgment of

the trial court.




                                                         Patrick A. Pirtle
                                                              Justice


Do not publish.




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