                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-16-00382-CR

THOMAS BENSON TAYLOR,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                          From the 249th District Court
                             Johnson County, Texas
                             Trial Court No. F50817


                          MEMORANDUM OPINION


      In one issue, appellant, Thomas Benson Taylor, complains that there is insufficient

evidence to support the jury’s finding that he used a deadly weapon during the

commission of the felony offense of driving while intoxicated, a third offense or more.

See TEX. PENAL CODE ANN. § 49.09(b) (West Supp. 2016). Because we conclude that the

evidence is sufficient to support the jury’s deadly-weapon finding, we affirm.
                              I.     PROCEDURAL BACKGROUND

        Here, Taylor was charged by indictment with driving while intoxicated, a third

offense or more. See id. Also included in the indictment were enhancement paragraphs

referencing Taylor’s four prior felony convictions for driving while intoxicated. Prior to

trial, the State indicated its intent to seek a deadly-weapon finding based on the fact that

Taylor used a deadly weapon, his motor vehicle, during the course of committing the

charged offense. This matter proceeded to trial.

        Taylor pleaded guilty to the charged offense and “true” to the enhancement

paragraphs in the indictment. The jury decided punishment. After finding that Taylor

used or exhibited a deadly weapon in the commission of this offense, the jury sentenced

Taylor to thirty-five years’ incarceration in the Institutional Division of the Texas

Department of Criminal Justice. Taylor subsequently filed motions for new trial and in

arrest of judgment. These motions were overruled by operation of law. See TEX. R. APP.

P. 21.8(a), (c). This appeal followed.

      II.     SUFFICIENCY OF THE EVIDENCE SUPPORTING THE DEADLY-WEAPON FINDING

        In his sole issue on appeal, Taylor contends that the evidence is insufficient to

support the deadly-weapon finding because the record does not show that his vehicle

posed an actual danger of death or serious bodily injury to others on the day he was

stopped and arrested for driving while intoxicated. We disagree.




Taylor v. State                                                                       Page 2
A.      Applicable Law

        In reviewing the sufficiency of the evidence, we view all of the evidence in the

light most favorable to the prosecution to determine whether any rational trier of fact

could have made the deadly-weapon finding beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Brooks v. State, 323

S.W.3d 893, 895 (Tex. Crim. App. 2010); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.

App. 2007); see Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005) (“To hold

evidence legally sufficient to sustain a deadly weapon finding, the evidence must

demonstrate that:      (1) the object meets the statutory definition of a dangerous

weapon . . . (2) the deadly weapon was used or exhibited during the transaction from

which the felony conviction was obtained; . . . and (3) that other people were put in

danger.” (internal citations and quotations omitted)). This standard enables the fact

finder to draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Clayton, 235 S.W.3d at 778. In performing our sufficiency review, we may not re-

evaluate the weight and credibility of the evidence or substitute our judgment for that of

the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see Curry v.

State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) (“We resolve inconsistencies in the

testimony in favor of the verdict.”). Instead, we determine whether the necessary

inferences are reasonable based upon the combined and cumulative force of all the




Taylor v. State                                                                          Page 3
evidence when viewed in the light most favorable to the verdict. Hooper v. State, 214

S.W.3d 9, 16-17 (Tex. Crim. App. 2007).

        A trial court must enter a deadly-weapon finding in the judgment if the trier of

fact affirmatively finds that the defendant used or exhibited a deadly weapon during the

commission of a felony offense or during immediate flight therefrom. See TEX. CODE

CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (West Supp. 2016); see also Polk v. State, 693 S.W.2d

391, 394 (Tex. Crim. App. 1985). A “deadly weapon” is “anything that in the manner of

its use or intended use is capable of causing death or serious bodily injury.” TEX. PENAL

CODE ANN. § 1.07(a)(17)(B) (West Supp. 2016). A motor vehicle can be a deadly weapon

if the manner of its use is capable of causing death or serious bodily injury. Id.; see, e.g.,

Sierra v. State, 280 S.W.3d 250, 255-56 (Tex. Crim. App. 2009).

B.      The Facts

        Deputy Gerald Jones of the Johnson County Sheriff’s Office testified that, on the

day in question, he observed Taylor driving a full-size Chevrolet pickup truck

southbound on Old Renfro Road, a heavily-traveled, two-lane road with no shoulder,

near FM 917 at sixty-three miles per hour, though the posted speed limit was forty miles

per hour. Deputy Jones further described Old Renfro Road as having “houses all up and

down the road, drives, county roads that intersect with it,” as well as commercial

properties nearby.




Taylor v. State                                                                         Page 4
        After observing Taylor driving over the posted speed limit, Deputy Jones “waited

for him to pass, then I immediately turned around, activated my emergency lights and

sirens to go catch him.” However, after turning around, Deputy Jones initially lost Taylor

over a hill. He later caught up with Taylor when they both approached a yield sign at

the intersection of Old Renfro Road and FM 917. At this intersection, which was near a

crowded flea market, Taylor made a right turn.1 Though, according to Deputy Jones, one

must “come to a slow, almost to a stop, to check for oncoming traffic” when approaching

a yield sign, Taylor did not do so. Taylor continued on FM 917 for a few yards and then

pulled over. While observing Taylor’s vehicle, Deputy Jones noticed that Taylor drove

over the center line into the oncoming lane of traffic when he turned onto FM 917 and

that another vehicle had to take evasive action because of Taylor’s turn.2 Based on these

observations, Deputy Jones believed that Taylor was operating his pickup truck in a

dangerous manner.

        Thereafter, Deputy Jones initiated a traffic stop of Taylor. Upon approaching

Taylor’s pickup truck, Deputy Jones noticed Taylor’s slurred speech and the smell of

alcohol emitting from Taylor’s breath. Taylor admitted that he had drank “a few” beers

and that he had some beer in the pickup truck. He then “reached down towards his feet



        1Deputy Jones recalled there were numerous vehicles and people standing outside of the flea
market and that the flea market was located maybe ten feet from the road surface.

        2   The testimony established that it was clear and sunny on the day in question.


Taylor v. State                                                                             Page 5
and handed [Deputy Jones] a six-pack of beer.” Three of the beers were open and empty,

and the remaining beers were cold. Deputy Jones also saw that Taylor had a container of

beer that was three-quarters full between his legs, as well as a dog inside the cab of the

pickup truck. Subsequently, Taylor staggered out of the pickup truck, and Deputy Jones

administered the standard field-sobriety tests. Taylor exhibited six of six clues on the

horizontal-gaze-nystagmus test and eight of eight clues on the walk-and-turn test. Taylor

was unable to complete the one-leg-stand test. Deputy Jones arrested Taylor for driving

while intoxicated.3

C.      Analysis

        Viewing the evidence in the light most favorable to the verdict, we cannot say the

evidence is insufficient to support the jury’s deadly-weapon finding. See Brister v. State,

449 S.W.3d 490, 493 (Tex. Crim. App. 2014) (“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.” (quoting Cates v. State, 102 S.W.3d 735, 738

(Tex. Crim. App. 2003))). Indeed, the evidence shows that Taylor drove his full-size

pickup truck in a reckless manner while severely intoxicated—more than two times the

legal limit. Deputy Jones’s testimony reflected that Taylor drove more than twenty miles



        3 Bob Browder, a senior forensic chemist with the Texas Department of Public Safety, stated that
Taylor’s “first subject breath specimen was 0.183. The results of the second breath specimen were 0.176.”
In other words, Taylor’s samples tested more than double the legal limit of 0.08.

Taylor v. State                                                                                   Page 6
over the speed limit, failed to properly yield at the intersection of Old Renfro Road and

FM 917, and had difficulty negotiating the right turn at the intersection, which resulted

in him crossing the center line and causing another vehicle to take evasive action to avoid

a collision. Additionally, the roadways that Taylor traveled upon were narrow with no

shoulder, had heavy traffic, and were surrounded by houses and businesses, especially a

crowded flea market that was merely ten feet from the roadway and was not protected

by a barrier or guardrail. Accordingly, a rational trier of fact could have found beyond a

reasonable doubt that Taylor’s pickup truck was: (1) capable of causing death or serious

bodily injury in the manner of its use; (2) used during the commission of the charged

offense of driving while intoxicated; and (3) put other people in actual danger. See TEX.

PENAL CODE ANN. § 1.07(a)(17)(B); Drichas, 175 S.W.3d at 797-98 (noting that “actual

danger means one that is not merely hypothetical”); see also Sierra, 280 S.W.3d at 255-56.

In other words, a rational trier of fact could have found beyond a reasonable doubt that

Taylor’s pickup truck constituted a deadly weapon in this instance. See TEX. PENAL CODE

ANN. § 1.07(a)(17)(B); Sierra, 280 S.W.3d at 255-56; Drichas, 175 S.W.3d at 798; see also

Brister, 449 S.W.3d at 493; Cates, 102 S.W.3d at 738.

        However, despite the foregoing, Taylor asserts that the evidence is insufficient to

support the deadly-weapon finding because Deputy Jones admitted on cross-

examination that he did not document in his report that Taylor failed to yield the right-

of-way when turning onto FM 917 or that he crossed the center line on FM 917. Taylor


Taylor v. State                                                                      Page 7
also relies on Deputy Jones’s testimony that he did not pull over Taylor for reckless

driving, but rather for speeding. Given this, Taylor contends that his pickup truck was

not a deadly weapon used in the commission of the charged offense. Additionally, Taylor

asserts that this case is similar to Brister. See 449 S.W.3d at 495 (holding that the record

evidence did not allow for a reasonable inference that appellant used his motor vehicle

as a deadly weapon).

        First, assuming Taylor’s interpretation of Deputy Jones’s testimony actually

constituted a conflict in the evidence, we note that conflicts or inconsistencies in the

evidence are within the province of the factfinder to resolve. See Chambers v. State, 805

S.W.2d 459, 461 (Tex. Crim. App. 1991); see also Jackson, 443 U.S. at 326, 99 S. Ct. at 2792-

93; Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008); Curry, 30 S.W.3d at 406.

Moreover, as a reviewing court, we are to defer to the factfinder’s resolution of any

conflicts in the evidence. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2792-93; Lancon, 253

S.W.3d at 706 (“As we explained in State v. Johnson, 23 S.W.3d 1 (Tex. Crim. App. 2000),

an appellate court just give deference to a jury’s decision regarding what weight to give

contradictory testimonial evidence because the decision is most likely based on an

evaluation of credibility and demeanor, which the jury is in the better position to judge.”);

Curry, 30 S.W.3d at 406; Chambers, 805 S.W.2d at 461. As such, we disagree with Taylor’s

assertion that the purported conflicts in the testimony of Deputy Jones demonstrate an

insufficiency of the evidence supporting the deadly-weapon finding.


Taylor v. State                                                                        Page 8
        Moreover, we are not persuaded by Taylor’s reliance on Brister. Specifically, in

Brister, the Court noted that the testimony established “that, on a single occasion,

appellant briefly crossed the center line into the oncoming lane of traffic at a time at which

there were very few, if any, cars in that lane.” Id. at 495. After the officer activated his

emergency lights, “appellant committed no other traffic offenses and appropriately

stopped. There is no testimony that appellant caused another vehicle or person to be in

actual danger.” Id. Based on this evidence, the Brister Court concluded that the evidence

did not support a reasonable inference that appellant used his motor vehicle as a deadly

weapon. Id.

        As noted above, our fact scenario is different. Deputy Jones recounted that Taylor

drove more than twenty miles over the speed limit, failed to properly yield at the

intersection of Old Renfro Road and FM 917, and had difficulty negotiating the right turn

at the intersection, which resulted in him crossing the center line and causing another

vehicle to take evasive action to avoid a collision. The evidence also established that the

roadways that Taylor traveled upon were narrow with no shoulder, had somewhat heavy

traffic, and were surrounded by houses and businesses, including a crowded flea market

that was merely ten feet from the roadway and was not protected by a barrier or

guardrail. Based on this evidence, we find the Brister case to be factually distinguishable

from the case at bar. We therefore overrule Taylor’s sole issue on appeal.




Taylor v. State                                                                         Page 9
                                     III.    CONCLUSION

        We affirm the judgment of the trial court.




                                                 AL SCOGGINS
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
(Chief Justice Gray concurring)*
Affirmed
Opinion delivered and filed April 19, 2017
Do not publish
[CR25]

*(Chief Justice Gray concurs in the Court’s judgment to the extent it affirms the trial
court’s judgment of conviction and deadly-weapon finding. A separate opinion will not
issue.)




Taylor v. State                                                                 Page 10
