Affirmed and Memorandum Opinion filed February 20, 2014.




                                           In The

                       Fourteenth Court of Appeals

                                  NO. 14-13-00288-CR

                 KENYATTA WESLEY FREDERICK, Appellant

                                              V.
                          THE STATE OF TEXAS, Appellee

                     On Appeal from the 413th Judicial District
                             Johnson County, Texas1
                          Trial Court Cause No. F46217

                   MEMORANDUM                          OPINION


       Appellant Kenyatta Wesley Frederick was convicted by a jury of evading
arrest with a vehicle. On appeal, he argues the evidence is legally insufficient to

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        This case was transferred to the Fourteenth Court of Appeals from the Tenth Court of
Appeals in Waco; we apply transferor court’s precedents if there is a conflict. Tex. R. App. P.
41.3. There is no conflict between the Fourteenth Court of Appeals and the Tenth Court of
Appeals on the dispositive legal issues in this case.
support the conviction and the jury’s finding that appellant used or exhibited a
deadly weapon in the commission of the offense. We conclude the evidence is
sufficient to support the conviction and the deadly weapon finding and, therefore,
we affirm.

                I.     FACTUAL AND PROCEDURAL BACKGROUND

      Officer Damian Bethell is a Deputy Sheriff with the Johnson County
Sheriff’s Office. He has training and experience in drug recognition including
training from the Drug Enforcement Administration (DEA) on the manufacture of
methamphetamine. At approximately 4:00 in the morning, Bethell was patrolling
near Interstate 35 when he noticed a Blue Crown Victoria with an obstructed
license plate. The paper dealer tag was flopping up and down so that Bethell could
not read it. Bethell activated his emergency lights and siren, and initiated a traffic
stop. Bethell approached the driver and obtained identification that identified the
driver as appellant. Carrying appellant’s identification card and his permanent
license plates, Bethell walked back toward his patrol car to run the license plate
number through the computer system. As he walked away, Bethell saw a clear
plastic baggie on the “little hump right behind the back seat right before the seat
and the main — the driver and the passenger seat.” Bethell testified that the clear
plastic baggie appeared to contain methamphetamine. Bethell immediately placed
the things he was carrying on the trunk of appellant’s car and called for backup.
Because his radio was not working properly, and he thought it might be
approximately 45 minutes before backup arrived, Bethell decided to conduct a solo
arrest of appellant for possession of a controlled substance.

      Bethell walked toward appellant’s car with his service weapon drawn and
loudly requested that appellant get out of the car. Bethell asked three times, but
appellant refused to get out of the car. After the third request, appellant looked at

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Bethell and drove away at an accelerated speed, with the car’s headlights off.
Bethell ran to his patrol car and pursued appellant. Driving at approximately 115
miles per hour, Bethell was unable to catch up to appellant whose speed Bethell
estimated to be between 120 and 130 miles per hour. Bethell observed appellant
exit Interstate 35 and drive over 120 miles per hour on the service road. He also
observed appellant run through a red light at an intersection, and attempted to
pursue, but lost sight of appellant. Bethell testified that he did not maintain a speed
of over 100 miles per hour on the service road because there were intersecting
county roads, which created a risk that another driver could enter the service road
with no warning. The jury was shown the video from Bethell’s patrol car, which
corroborated his testimony.

       Officer Charles Garrett of the Burleson Police Department was one of the
patrol officers dispatched to help apprehend appellant during the high speed chase.
Garrett observed the car traveling in the center of Interstate 35 with no headlights.
Garrett pursued appellant, but could not catch up to his car.

       Several days later, appellant was arrested while sleeping in his car at his
mother’s home. The jury found appellant guilty of the offense of evading arrest
with a vehicle as alleged in the indictment.

                                  II.    ANALYSIS

       Appellant contends that the evidence is legally insufficient to establish that
the arrest was lawful and appellant knew the peace officer was attempting to arrest
him.

       Section 38.04 of the Texas Penal Code establishes the elements of the
offense of evading arrest or detention: “A person commits an offense if he
intentionally flees from a person he knows is a peace officer or federal special


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investigator attempting to arrest or detain him.” Tex. Penal Code § 38.04(a). The
offense is a third degree felony if “the actor uses a vehicle while the actor is in
flight.” Tex. Penal Code § 38.04(b)(2). Thus, to convict appellant of the charged
offense, “the State had to prove appellant, while using a vehicle, intentionally fled
from a person he knew to be a peace officer attempting lawfully to arrest or detain
him.” Redwine v. State, 305 S.W.3d 360, 362 (Tex. App.—Houston [14th Dist.]
2010, pet. ref’d). A person violates Section 38.04 “only if he knows a police
officer is attempting to arrest him but nevertheless refuses to yield to a police show
of authority.” Id.

      In evaluating the legal sufficiency of the evidence, we must view all of the
evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Because the
factfinder views the evidence first-hand, the factfinder is in the best position to
resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences
from the evidence. See id.; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App.
2009) (“[U]nlike the factfinder—who can observe facial expressions and hear
voice inflections first-hand—an appellate court is limited to the cold record.”). We
presume that the factfinder resolved any conflicts in favor of the verdict and must
defer to that resolution, as long as it is rational. Jackson, 443 U.S. at 326. “After
giving proper deference to the factfinder’s role, we will uphold the verdict unless a
rational factfinder must have had reasonable doubt as to any essential element.”
Laster, 275 S.W.3d at 518.

A.    The evidence is legally sufficient to support that the arrest was lawful.
      Appellant first argues Bethell did not have sufficient probable cause to arrest
him. Appellant does not challenge the validity of the traffic stop. Appellant argues

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Bethell’s observation of the clear plastic baggie containing what he believed to be
methamphetamine was not sufficient evidence to associate appellant with criminal
activity and establish probable cause.

         A police officer may arrest an individual without a warrant if (1) there is
probable cause with respect to that individual and (2) the arrest falls within one of
the statutory exceptions. State v. Steelman, 93 S.W.3d 102, 107 (Tex. Crim. App.
2002). One of those exceptions provides that “[a] peace officer may arrest an
offender without a warrant for any offense committed in his presence or within his
view.” Tex. Code Crim. Proc. art. 14.01(b).

         The “plain view” doctrine requires that (1) law enforcement officials must
lawfully be where the object can be “plainly viewed”; (2) the “incriminating
character” of the object in plain view must be “immediately apparent” to the
officials; and (3) the officials must have the right to access the object. Keehn v.
State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009). In this case, appellant
challenges the second prong, whether the incriminating character of the object was
immediately apparent to Bethell. The second prong, the immediacy requirement,
requires only a showing of probable cause that the item discovered is incriminating
evidence; actual knowledge of the incriminating evidence is not required. Joseph v.
State, 807 S.W.2d 303, 308 (Tex. Crim. App. 1991). Probable cause exists where
the known facts and circumstances are sufficient to warrant a man of reasonable
prudence in the belief that contraband will be found. Wiede v. State, 214 S.W.3d
17, 24 (Tex. Crim. App. 2007). An officer may rely on training and experience to
draw inferences and make deductions as to the nature of the item seen. Nichols v.
State, 886 S.W.2d 324, 325–26 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d);
Johnson v. State, 720 S.W.2d 239, 240 (Tex. App.—Houston [14th Dist.] 1986, no
pet.).

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      When Bethell conducted the traffic stop and approached the car while
investigating the traffic violation, he was legally in a position to see, in plain view,
the clear plastic baggie between the front and back seats of the car. The clear
plastic baggie contained what Bethell believed to be methamphetamine. Bethell
testified that he received training from the DEA in the recognition of narcotics
including training in the manufacture of methamphetamine. Because Bethell saw
what his training caused him to believe was methamphetamine in plain view, he
had probable cause to believe appellant committed an offense within his view. See
Tex. Code Crim. Proc. art. 14.01(b).

B.    The evidence is legally sufficient to support that appellant knew the
peace officer was attempting to arrest him.
      Appellant further argues the evidence was insufficient to show that appellant
knew Bethell was attempting to arrest him. A person commits a crime under
Section 38.04 only if he knows a police officer is attempting to arrest him, but
nevertheless refuses to yield to a police show of authority. See Redwine 305
S.W.3d at 362.

      In this case, appellant contends he was initially detained during a traffic stop
and complied with the officer’s command up to the point at which the officer
pulled his service weapon and ordered appellant to get out of the car. Appellant
cites Griego v. State, 345 S.W.3d 742 (Tex. App.—Amarillo 2011, no pet.), and
Redwine v. State, 305 S.W.3d at 360, in support of his argument that he was
unaware the officer was attempting to arrest him. The facts presented in each of
these cases are distinguishable from the facts of this case.

      In Griego, two officers were on their way to a house with their lights and
sirens activated in response to a report of illegal activity when the officers met the
defendant traveling the opposite direction in a vehicle matching the suspect’s car.

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345 S.W.3d at 746. The officers turned around at a bend in the road and followed
the defendant for approximately 17 seconds to a residential driveway. Id. at 747–
48. As the officers pulled up to the residence, the defendant got out of the car, and
walked toward the residence, at which time the officers ordered him to stop. Id. at
747. When the defendant did not comply, an officer used a taser to subdue him. Id.
The court in Griego concluded that the evidence was not sufficient to show the
defendant knew before getting out of his car that the officers were attempting to
arrest him. Id. at 752–53. However, the court concluded that the defendant knew or
should have known that officers were trying to arrest him after they ordered him to
stop. Id. at 755.

       In Redwine, the defendant was driving on a rural road when he encountered
a patrol car driving in the opposite direction. 305 S.W.3d at 361. The officers in the
patrol car decided to turn around and pursue the defendant for driving too near the
center of the road, but the officers never activated their emergency lights and siren.
Id. The officers followed the defendant’s vehicle onto a dirt driveway where they
found the vehicle unoccupied. Id. at 362. They exited the patrol car and shouted,
“Sheriff!” Id. The defendant eventually returned on foot to his vehicle where he
was arrested. Id. The defendant was convicted of evading arrest using a vehicle,
and this court concluded the evidence was legally insufficient to support the
conviction because there was no evidence that appellant evaded arrest while he
was in his vehicle. Id. at 362, 368.

       By contrast, in this case, appellant complied when Bethell initiated the
traffic stop. Bethell used his lights and sirens and was wearing a deputy sheriff’s
uniform. When Bethell saw the suspected methamphetamine, drew his weapon,
and shouted three times for appellant to get out of the car, appellant sped away at a
high rate of speed. When appellant drove away, Bethell continued to pursue him

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with lights and sirens. Also, Garrett testified he used his emergency lights when he
attempted to pursue appellant. Appellant did not stop his vehicle while being
pursued by officers using emergency lights and sirens.

       We therefore conclude, viewing the evidence in the light most favorable to
the verdict, and drawing reasonable inferences therefrom, a rational jury could
have determined beyond a reasonable doubt that appellant knew a peace officer
was attempting to arrest him. See Jackson, 443 U.S. at 319. We overrule
appellant’s first issue.

C.    The evidence is legally sufficient to support the jury’s finding that
appellant used or exhibited a deadly weapon in the commission of the offense.
       In his second issue appellant argues the evidence is legally insufficient to
support the jury’s finding that appellant used or exhibited a deadly weapon during
the offense.

       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 §
1.07(a)(17)(B). The evidence must demonstrate that the deadly weapon was used
or revealed “during the transaction from which” the felony conviction was
obtained. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003). There must
be evidence that others were actually endangered to sustain a deadly weapon
finding. Id. at 738.

       An automobile can be a deadly weapon if it is used in a manner capable of
causing death or serious bodily injury to others. Tyra v. State, 897 S.W.2d 796,
798–99 (Tex. Crim. App. 1995). Specific intent to use an automobile as a deadly
weapon is not required. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App.
2000). To determine whether an automobile was used as a deadly weapon, we (1)
“evaluate the manner in which the defendant used the motor vehicle during the

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felony;” and (2) “consider whether, during the felony, the motor vehicle was
capable of causing death or serious bodily injury.” Sierra v. State, 280 S.W.3d 250,
255 (Tex. Crim. App. 2009).

      We first consider the manner in which appellant used his automobile. In
doing so, we examine whether appellant’s driving was reckless or dangerous. Id.
Courts have considered several factors in examining whether a defendant’s driving
was reckless or dangerous: (1) intoxication, Tyra, 897 S.W.2d at 798–99; (2)
speeding, Drichas v. State, 175 S.W.3d 795, 797 (Tex. Crim. App. 2005); (3)
disregarding traffic signs and signals, id.; and (4) driving erratically, id; Mann v.
State, 13 S.W.3d 89, 91–92 (Tex. App.—Austin 2000), aff’d, 58 S.W.3d 132 (Tex.
Crim. App. 2001).

      In this case, the record reflects that appellant was speeding, driving between
120 and 130 miles per hour while on the freeway and the service road and turning
his lights off and on. Bethell testified that he pursued appellant on the service road,
which had several intersections from which an innocent bystander could emerge at
any minute. While speeding on the service road, appellant ran through a red light.
Bethell’s testimony was corroborated by the in-car video viewed by the jury, which
showed Bethell’s pursuit speed at 115 miles per hour except when he was on the
service road. The video also reflects other traffic on the freeway and the service
road, which was endangered during the high-speed chase.

      Viewing all of the evidence in the light most favorable to the verdict, we
conclude the evidence is sufficient to support the jury’s finding that appellant used
his car as a deadly weapon during the commission of the offense of evading
detention with a motor vehicle. A reasonable jury could have found that appellant
drove his car in a reckless or dangerous manner while fleeing the police. See
Jackson, 443 U.S. at 319. We overrule appellant’s second issue.

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                                III. CONCLUSION

      Accordingly, we affirm the trial court’s judgment.


                                      /s/    Tracy Christopher
                                             Justice



Panel consists of Justices Boyce, Christopher, and Brown.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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