                                         NO. 07-09-0025-CR

                                   IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                            AT AMARILLO

                                               PANEL D

                                         OCTOBER 15, 2009

                               ______________________________


                                    BRIAN GARZA, APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE

                             _________________________________

                   FROM THE 426TH DISTRICT COURT OF BELL COUNTY;

                     NO. 63,030; HONORABLE FANCY H. JEZEK, JUDGE

                              _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                               OPINION


       Appellant, Brian Garza, was convicted by a jury of evading arrest by use of a motor

vehicle,1 a state jail felony punishable as a third degree felony by virtue of a deadly weapon




       1
           See Tex. Penal Code Ann. § 38.04(a), (b)(1) (Vernon 2003).
finding.2 During the punishment phase of the trial, Appellant pled true to an enhancement

allegation3 and the jury sentenced him to seventeen years confinement. Appellant asserts

three issues asking whether: (1) the result of the proceeding would have been different had

he received effective assistance from his counsel; (2) the trial court committed error by

charging the jury with a deadly weapon instruction when evidence of actual endangerment

was factually insufficient to justify a finding that the motor vehicle was used as a deadly

weapon; and (3) the trial court’s judgment of conviction should be modified to reflect the

correct offense level.


       Originally appealed to the 3rd Court of Appeals, this case was transferred to this

Court by the Texas Supreme Court pursuant to its docket equalization efforts. See Tex.

Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between

precedent of the 3rd Court of Appeals and that of this Court on any relevant issue. See

Tex. R. App. P. 41.3. We modify the trial court’s judgment and affirm as modified.


                                            Background


       In May 2008, Appellant was indicted by a Bell County Grand Jury for evading arrest

by use of a motor vehicle. The indictment alleged an offense occurring on or about April

17, 2008. The indictment also alleged Appellant used and exhibited his vehicle as a



       2
           See Tex. Penal Code Ann. 12.35(c) (Vernon Supp. 2008).

       3
           See Tex. Penal Code Ann. 12.42(a)(3) (Vernon 2003).

                                                   2
deadly weapon during the commission of the offense and it contained an enhancement

paragraph describing a prior felony conviction.4


        I.         Pretrial Proceedings


        On August 21, 2008, Appellant requested notice of the State’s intention to use

extraneous offenses at trial. The State responded that, among other offenses, the State

intended to present evidence that Appellant was driving while intoxicated when he was

arrested on the instant offense.5


        On November 3, 2008, the trial court held a hearing on Appellant’s motion seeking

to prevent the State from offering any evidence of intoxication. Appellant asserted the

evidence was irrelevant and, if relevant, more prejudicial than probative. The State

countered that evidence of intoxication was relevant to its allegation that, in the course of

evading arrest, Appellant was operating a motor vehicle as a deadly weapon. The State

also asserted that Appellant’s breath test and his throwing beer containers from the car

while fleeing was the same transaction, contextual evidence. The State indicated there

would also be testimony by officers who believed Appellant’s physical appearance at the

time he was arrested indicated he was intoxicated, a technical supervisor of breath testing,

and the person who administered the breath test. The trial court overruled Appellant’s

        4
         Specifically, the indictm ent asserted that Appellant had previously been convicted of the felony
offense of burglary of a vehicle.

        5
            Appellant was charged with driving while intoxicated in a separate proceeding.



                                                       3
objection to evidence of him throwing beer containers from his car during the chase and

withheld its ruling on the remaining objections until the State intended to proffer evidence

of Appellant’s intoxication. Prior to trial, the State filed a witness list naming Elmer Weber,

a Department of Public Safety technical supervisor over breath testing and analysis.


       II.    Trial


       The following evidence was adduced at a jury trial held November 4 through 5. On

April 17, 2008, at approximately 3:20 a.m., Officer Bradford Hunt first observed Appellant

driving his vehicle very slowly. He ran Appellant’s license plate and discovered it had

expired four months earlier. In preparation for a traffic stop, he turned on the red and blue

lights atop his patrol car. Appellant continued to drive. Officer Hunt then intermittently

beeped his siren to no avail.


       Appellant stopped at a traffic light. And, when the light turned green, Appellant

remained at the intersection. Believing Appellant had finally come to a stop, Officer Hunt

turned his spotlight on Appellant’s car, called for assistance, and stood outside his vehicle

behind the driver’s door. Through the public address system mounted on the front of the

car, he commanded Appellant to: “Stay right there, don’t move or you are going to jail.”




       Appellant reacted by speeding away.          Officer Hunt turned on his siren and

alternating high beam headlights in addition to the red and blue lights atop his patrol car


                                              4
and initiated pursuit.6 In the next thirty minutes, Appellant engaged numerous police

officers in an eighteen mile car chase. During the pursuit, Appellant’s behavior included

speeding as fast as fifteen to twenty miles per hour over the speed limit(s) through a

residential neighborhood, road construction zone, and over highways; running stop signs;

swerving within a traffic lane; throwing beer cans from his car; driving at speeds of forty to

fifty miles per hour on deflated tires that were smoking with sparks flying from the bare

rims; and, driving on the wrong side of a highway in the direction of oncoming traffic while

crossing blind hills with very little visibility.


        The car chase ended in a trailer park where Appellant was arrested. When his car

was searched, the officers found an empty can of beer and a twenty-four pack of beer

containing three unopened cans. Officer Shawana Neely, who drove the second patrol car

in pursuit behind Officer Hunt, testified that, at the time of his arrest, Appellant’s speech

was slurred, his eyes were red and glassy, he staggered when he walked, and he smelled

strongly of alcoholic beverage.7


        Officer Joshua Moore testified that, after he obtained Appellant’s consent, he

administered two breath tests, one at 4:30 a.m. and a second test at 4:41 a.m. Weber,

        6
            At one point during the pursuit, there were three such vehicles in pursuit of Appellant.

        7
          Prior to testim ony related to Appellant’s intoxication, a hearing was held outside the presence of the
jury. The State asserted that evidence of Appellant’s intoxication was relevant to its deadly weapon allegation,
i.e., a person consum ing large quantities of alcoholic beverage would be less likely to control their car than
som eone who had not been drinking. Appellant asserted he did not receive proper notice that such evidence
would be presented in the guilt/innocence phase and asked for a continuance to obtain an expert to counter
the State’s evidence related to Appellant’s breath test. The trial court overruled Appellant’s objection to
adm ission of the evidence and denied Appellant’s m otion to continue.

                                                        5
technical supervisor for DPS’s breath testing program, testified that the legal limit, or point

in which all individuals are deemed intoxicated, for a breath test in Texas was .080.

Appellant’s results were .084 and .087, respectively.8


        Following the testimony, the jury found Appellant guilty of evading arrest while using

his automobile as a deadly weapon. During the punishment stage of the trial, Appellant

pled “true” to a prior felony conviction alleged in the indictment9 and the trial court

instructed the jury that the maximum sentence of confinement was a term not more than

twenty years or less than two years.                 Thereafter, the jury sentenced Appellant to

confinement for seventeen years. The trial court issued its judgment of conviction and this

appeal followed.


                                                Discussion


        Appellant contends his counsel was ineffective because, although his counsel had

received notice the State intended to offer evidence of his intoxication at trial, his counsel


        8
           Appellant’s counsel cross-exam ined W eber on issues related to the design of Breathalyzer
m achines, the reaction of acetate to alcohol, degrees of m achine error, the effect of m outh alcohol from
belching or burping prior to, or during, a test and the absence of a blood sam ple. After establishing that
W eber did not know, or was not privy, to certain inform ation, he obtained W eber’s testim ony that he could not
tell the jury based on a lack of the inform ation whether the breathalyzer results were accurate regarding the
tim e of the car chase.

        9
           Neither party put on any witnesses during the punishm ent stage. The State offered evidence of
various judgm ents and pleas by Appellant including three guilty pleas to the offense of evading arrest on
Novem ber 19, 1992, March 11, 1994, and March 5, 1999. Although § 38.04(b)(2) of the Penal Code, perm its
an offense of evading arrest to be punished as a third degree felony if the person “uses a vehicle while [he]
is in flight and [he] has been previously convicted [of evading arrest],” this provision is inapplicable here
because the State did not offer evidence of these prior convictions during the guilt phase of Appellant’s trial.
See Calton v. State, 176 S.W .3d 231, 234, 236 (Tex.Crim .App. 2005).

                                                       6
was not prepared to counter the State’s evidence. Appellant next contends the trial court

erred by charging the jury with a deadly weapon instruction when there was insufficient

evidence to justify a jury finding on the issue. Lastly, Appellant asserts the trial court’s

judgment of conviction should be modified because he was convicted of a second degree

felony offense rather than a third degree felony offense as stated in the judgment.


       I.     Ineffective Assistance of Counsel


       We examine ineffective assistance of counsel claims by the standard enunciated

in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

and adopted by Texas in Hernandez v. State, 726 S.W.2d 53, 55-57 (Tex.Crim.App. 1986).

Appellant has the burden to show by a preponderance of evidence (1) trial counsel’s

performance was deficient, i.e., fell below the prevailing professional norms, and (2) the

deficiency prejudiced the defense; that is, but for the deficiency, there is a reasonable

probability that the result of the proceeding would have been different. See Thompson v.

State, 9 S.W.3d 808, 812 (Tex.Crim.App. 1999). We examine the totality of counsel’s

representation to determine whether Appellant received effective assistance but do not

judge counsel’s strategic decisions in hindsight. Id. at 813. Rather, counsel’s conduct is

viewed with great deference. Goodspeed v. State, 187 S.W.3d 390, 392 (Tex.Crim.App.

2005). Any allegation of ineffectiveness must be firmly founded in the record, and the

record must affirmatively demonstrate the alleged ineffectiveness. Thompson, 9 S.W.3d

at 812.


                                             7
        In the usual case in which an ineffective assistance claim is made, “the record on

direct appeal will not be sufficient to show that counsel’s representation was so deficient

and so lacking in tactical or strategic decisionmaking as to overcome the presumption that

counsel’s conduct was reasonable and professional.” Bone v. State, 77 S.W.3d 828, 833

(Tex.Crim.App. 2002). This is generally the case because a silent record provides no

explanation for counsel’s actions and therefore will not overcome the strong presumption

of reasonable assistance. Freeman v. State, 125 S.W.3d 505, 506 (Tex.Crim.App. 2003);

Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App. 2003).


        This case demonstrates the “inadequacies inherent in evaluating ineffective

assistance claims on direct appeal.”                 Patterson v. State, 46 S.W.3d 294, 306

(Tex.App.–Fort Worth 2001, no pet.).10 Appellant did not file a motion for new trial, the trial

court did not hold a hearing to determine whether Appellant’s complaints of ineffective

assistance involved actions that may, or may not, have been grounded in sound trial

strategy and the record does not reflect counsel’s reasons for doing, or failing to do, the

things of which Appellant complains.


        That said, the record reflects that Appellant’s counsel had notice of the State’s

intention to use evidence of Appellant’s intoxication at trial as early as August 2008, nearly

three months before trial. The hearing transcript for November 3 indicates Appellant’s


        10
         The m ost effective procedure for raising a claim of ineffective assistance is alm ost always habeas
corpus. Aldrich v. State, 104 S.W .3d 890, 896 (Tex.Crim .App.2003).



                                                     8
counsel had adopted a strategy to keep such evidence from being admitted at trial. Prior

to the admission of the evidence on November 4, Appellant’s counsel again argued against

its admission but failed. Thereafter, having been unsuccessful in persuading the trial court

that the evidence should be excluded, Appellant’s counsel thoroughly and ably cross-

examined the State’s primary witness regarding the reliability of breathalyzer tests and

Appellant’s breath test. Based on this record, we cannot say that Appellant’s legal

representation fell below prevailing professional norms.


       Appellant also complains that his trial counsel was ill-prepared because he failed

to procure an expert on intoxication in advance of trial to counter the State’s evidence.

Trial counsel’s failure to call an expert is irrelevant absent a showing that an expert witness

was available to testify on this issue and the expert’s testimony would have benefitted

Appellant. See King v. State, 649 S.W.2d 42, 44 (Tex.Crim.App. 1983). Appellant makes

no such showing.


       On this record, to find Appellant’s counsel ineffective, we would have to engage in

prohibited speculation. See Stafford v. State, 101 S.W.3d 611, 613-14 (Tex.App.–Houston

[1st Dist.] 2003, pet. ref’d). Absent evidence of counsel’s strategy, we cannot denounce

counsel’s actions as ineffective nor can we determine that there is a reasonable probability

that the outcome would have been different. For this reason, Appellant has not met either

prong of the Strickland test. Accordingly, Appellant’s first issue is overruled.




                                              9
       II.     Jury Charge


       An appellate court reviews a trial court’s submission, or omission, of a jury

instruction under an abuse of discretion standard. See Wesbrook v. State, 29 S.W.3d 103,

122 (Tex.Crim.App. 2000); Slott v. State, 148 S.W.3d 624, 632 (Tex.App.–Houston 2004

[14th Dist.], pet. ref’d). When applying this standard, we may not substitute our judgment

for that of the trial court but simply determine whether the trial court’s ruling was arbitrary

or unreasonable. See Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001).


       To establish a deadly weapon finding, the State must demonstrate that: (1) the

object meets the statutory definition of a dangerous weapon,11 (2) the deadly weapon was

used or exhibited “during the transaction from which” the felony conviction was obtained;

Ex parte Jones, 957 S.W.2d 849, 851 (Tex.Crim.App. 1997); and (3) that people were

actually endangered, as opposed to a mere hypothetical potential for danger if others had

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


       Objects that are not usually considered dangerous weapons may become so,

depending on the manner in which they are used during the commission of an offense.

Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App. 1991). A motor vehicle may

become a deadly weapon if the manner of its use is capable of causing death or serious

bodily injury. Ex parte McKithan, 838 S.W.2d 560 (Tex.Crim.App. 1992). Specific intent


       11
         “Deadly weapon” m eans “anything that in the m anner of its use or intended use is capable of
causing death or serious bodily injury.” Tex. Penal Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2008).

                                                 10
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); Walker v. State, 897 S.W.2d 812, 814 (Tex.Crim.App.

1995).


         The State’s evidence at trial indicated that, during Officer Hunt’s pursuit, Appellant

exceeded the speed limit driving through a residential area, construction zone, and over

highways and streets by as much as twenty miles per hour. He was intoxicated and

weaved within, and without, his driving lane. After his tires were deflated, he drove his

disabled vehicle on the deflated tires creating a thick smoke from burning rubber and, when

he no longer had tires, created a stream of sparks where the rim’s metal met the pavement

at speeds of forty to fifty miles per hour. He crossed the center line of a highway and drove

in the direction of approaching traffic over blind hills with limited visibility to determine

whether cars were approaching the hill’s crest from the opposite direction. He passed

vehicles at intersections where cross traffic was blocked by police officers and cars pulled

off the roadway to avoid his oncoming vehicle. At the very least, these facts raise an issue

whether the manner in which Appellant used his vehicle made it capable of causing death

or serious bodily injury.12 See Sierra v. State, 280 S.W.3d 250, 255 (Tex.Crim.App. 2009);

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




         12
           The Code of Crim inal Procedure directs the trial court to subm it to the jury any issue that is raised
by the facts; Tex. Code Crim . Proc. Ann. art. 36.14 (Vernon 2007), and, when charging the jury upon an issue
adverse to the defendant, the trial court errs in issuing the instruction only if the issue is not suggested or
raised by the facts. Cannon v. State, 84 Tex. Crim . 504, 208 S.W . 339, 341 (1918) (on reh’g).

                                                       11
       Appellant asserts this evidence is insufficient to raise a fact issue because it only

establishes a mere hypothetical potential for danger if others had been present. Here,

Appellant’s driving endangered not only the officers in pursuit of his vehicle but the public,

i.e., drivers who would have likely crossed his path in the absence of police intervention

at intersections and those drivers who actually pulled onto the shoulder to avoid Appellant’s

oncoming vehicle. See Sierra, 280 S.W.3d at 254-56 [collected cases cited therein];

Drichas, 175 S.W.3d at 798 (where defendant, in the course of evading detention with a

vehicle, led law enforcement officers on a fifteen-mile high-speed chase during which he

disregarded traffic signs and signals, drove erratically, wove between and within lanes,

turned abruptly into a construction zone, and drove on the wrong side of the highway,

Court of Criminal appeals held that his use of a motor vehicle “posed a danger to pursuing

officers and other motorists that was more than simply hypothetical”); Mann v. State, 13

S.W.3d 89, 92 (Tex.App.–Austin 2000), aff’d, 58 S.W.3d 132 (Tex.Crim.App. 2001)

(evidence is sufficient if it raises a fact issue whether “others were endangered”).


       We find that the State’s evidence was sufficient to create a fact issue whether

Appellant’s manner of using his car posed a danger to pursuing officers and the public that

was more than hypothetical. Accordingly, the trial court did not abuse its discretion by

issuing a deadly weapon charge to the jury. Appellant’s second issue is overruled.




                                             12
       III.       Judgment of Conviction


       The trial court’s Judgment of Conviction indicates Appellant was convicted of

evading arrest with a motor vehicle, a third degree felony. Appellant contends the trial

court mischaracterized his offense as a third degree felony because he was sentenced

under the punishment range applicable to a second degree felony and the sentence

actually imposed was greater than that allowed for a third degree felony.


       As previously noted, Appellant was indicted for evading arrest while using a motor

vehicle, a state jail felony, under section 38.04(b)(1) of the Penal Code. In addition, the

indictment alleged the use of a motor vehicle as a deadly weapon in the commission of the

offense, making the offense punishable as a third degree felony.13 Still further, the

indictment alleged a prior felony conviction, making the offense punishable as a second

degree felony.14


       At the guilt/innocence stage of the trial, the trial court submitted to the jury the

primary offense under section 38.04(a), the use of a motor vehicle under section

38.04(b)(1), and a special issue as to whether Appellant used that vehicle as a deadly

weapon under section 12.35(c)(1). The jury found Appellant guilty and answered the

special issue in the affirmative. The trial then proceeded to the punishment phase where

the prior felony conviction came into play.

       13
            See fn. 2, supra.

       14
            See fn. 3, supra.

                                              13
       The punishment range for convictions of state jail felonies are set forth in section

12.35 of the Texas Penal Code. The statute specifies the punishment for regular or non-

aggravated state jail felonies in section 12.35(a) and (b), and for aggravated state jail

felonies in section 12.35(c).


       Here, Appellant was convicted of evading arrest under section 38.04(b)(1), a state

jail felony. The nature of the offense never changed but, because of the jury’s affirmative

finding of the use of a deadly weapon during the commission of the offense, the offense

became an aggravated state jail felony punishable under section 12.35(c) as a third degree

felony. The state jail felony of which Appellant was convicted did not, however, become

a third degree felony.


       During the penalty phase, that part of the indictment alleging the prior felony

conviction was read to the jury and Appellant pled “true” to these allegations. In its jury

charge, the trial court authorized the jury to assess a sentence of confinement for a term

not more than twenty years or less than two years–the sentence applicable to a second

degree felony offense; pursuant to section 12.42(a)(3) of the Penal Code. Aggravated

state jail felonies, punishable under the provisions of section 12.35(c), are subject to the

habitual criminal provisions of section 12.42(a). State v. Mancuso, 919 S.W.2d 86, 90

(Tex.Crim.App. 1996). See Bunton v. State, 136 S.W.3d 355, 363 (Tex.App.–Austin 2004,

pet. ref’d).




                                            14
        Although Appellant was punished within the proper, applicable punishment range

based on this crime and his criminal history, he was, nonetheless, convicted of only a state

jail felony. The notation on the trial court’s judgment indicating Appellant was convicted

of a third degree felony is a clerical error, not the product of judicial reasoning.15 Thus, we

are authorized to reform the trial court’s judgment so that it may speak the truth. See

French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992); Smith v. State, 223 S.W.3d

690, 696-97 (Tex.App.–Texarkana 2007, no pet.). This Court has the authority to modify

an incorrect judgment when it has the information and evidence necessary to do so. See

Tex. R. App. P. 43.2(b); Figueroa v. State, 250 S.W.3d 490, 518 (Tex.App.–Austin 2008,

pet. ref’d), cert. denied, 129 S.Ct. 1340, 173 L.Ed.2d 609 (2009).


        We therefore reform the trial court’s judgment to reflect Appellant was convicted by

a jury of evading arrest, a state jail felony, aggravated by a finding that Appellant used and

exhibited a deadly weapon in the commission of the offense, enhanced by a prior felony

conviction. Although we sustain Appellant’s third issue as to modification of the trial court’s

judgment, we overrule his issue in so far as it asserts that the sentence imposed was

greater than that allowed by law.




        15
           Likewise, the failure of the Judgment of Conviction to reflect that the offense was enhanced by a
prior felony conviction is a clerical error.

                                                    15
                                       Conclusion


       We modify the judgment of the trial court to indicate Appellant was convicted of a

state jail felony, aggravated by the use of a deadly weapon, enhanced by a prior felony

conviction. As modified, the trial court’s judgment is affirmed.




                                                 Patrick A. Pirtle
                                                    Justice

Publish.




                                            16
