Opinion filed November 5, 2009




                                              In The


   Eleventh Court of Appeals
                                            __________

                                     No. 11-07-00358-CR
                                          ________

                            LARRY DALE SMITH, Appellant

                                                 V.

                               STATE OF TEXAS, Appellee


                            On Appeal from the 35th District Court
                                     Brown County, Texas
                               Trial Court Cause No. CR18783


                            MEMORANDUM OPINION
       Larry Dale Smith appeals his conviction by a jury of the offense of evading arrest, following
his plea of guilty to that offense. The jury found that he used or exhibited a deadly weapon in the
commission of the offense. Smith had pleaded not guilty to the deadly weapon allegation. The jury,
finding that Smith had a prior conviction as alleged, assessed his punishment at twenty years in the
Texas Department of Criminal Justice, Institutional Division. Smith contends in a single point on
appeal that the evidence is factually insufficient to support his conviction. We affirm.
       In order to determine if the evidence is factually sufficient, the appellate court reviews all of
the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006)
(overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23
S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App.
1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court
determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong
and manifestly unjust or whether the verdict is against the great weight and preponderance of the
conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11.
       John C. Harper testified that he is a lieutenant in the Brownwood Police Department. He
indicated that on December 17, 2006, he noticed a gold Mercury Marquis. He said he followed the
vehicle and noticed that it was changing from the right lane to the left lane and the turn lane without
signaling any of the maneuvers. He indicated that at 1:30 to 2:00 p.m. on a Sunday afternoon, when
this incident occurred, there was quite a bit of traffic on the roadway. After he decided to stop the
vehicle because of its failure to signal its turns, he turned on his lights and moved in front of the
vehicle. Rather than stopping, the vehicle went around him, while rapidly accelerating. The vehicle
moved to the left lane as it approached the intersection of West Commerce and West Austin, then
turned right without stopping for a red light facing in its direction. Lieutenant Harper characterized
West Commerce and West Austin as multilane roadways. He described West Commerce as being
busy. He indicated that, when the vehicle made the right turn on the red light from the left lane, there
was a car in the right lane stopped at the red light. Lieutenant Harper stated that it took him a
moment to clear that intersection to pursue the vehicle, which had continued on and had accelerated.
He indicated that his vehicle’s siren had multiple tones to alert the public that he was approaching
and requesting the right-of-way. He related that the vehicle he was pursuing continued to accelerate
rapidly. He said that, at another intersection near a Wal-Mart and an Underwoods, the vehicle again
made a right turn from the left lane, while facing a red light, with a vehicle in the right lane stopped
at the light. He mentioned that the vehicle failed to stop at a stop sign when crossing U.S. 377, or
Main Street. Lieutenant Harper stated that it was a very busy intersection that had traffic on it at the
time. He related that the vehicle ran the red light at three other intersections.
       Lieutenant Harper described a T-intersection at which no left turns are allowed due to a blind
approach from an underpass. He said the vehicle went through the intersection really fast, making
a left turn. He indicated that, while traveling down one street, the speed reached over eighty miles
per hour and that it may have reached ninety miles per hour. He insisted that, on this road, they
overtook several cars and met several cars coming in their direction. He said this was also true on
another road.



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        Lieutenant Harper testified that, at an access road that he characterized as one with a great
deal of traffic that moves at a high rate of speed, the vehicle narrowly missed having an accident with
a pickup pulling a trailer that pulled right in front of the vehicle. He described it as a close call with
a major accident. He also described a later incident in which a driver had to pull completely off the
road as the vehicle and the pursuing officers approached. Lieutenant Harper identified the driver of
the vehicle he pursued as Larry Dale Smith. He testified that, in his opinion, Smith was under the
influence of an intoxicating substance other than alcohol.
        On cross-examination, Lieutenant Harper acknowledged that Smith did not try to run over
him with his car, that he did slow down at multiple intersections, that Smith did not try to get him
hit by someone else, that occasionally he would drive in a way to leave more space between his
vehicle and others on the road, that he did not come close to hitting the vehicles stopped in the right
lane when he made a right turn from the left lane, and that he did not hit any other cars. On redirect
examination, Lieutenant Harper noted that, if Smith did not want to hurt someone, the safest thing
to do would have been for him to stop when the officer first tried to stop him.
        Bruce Spruill testified that he is a police officer for the City of Brownwood. He said that he
watched the video of the chase in this case and that, based upon his training and experience in
dealing with this type of situation, it was his opinion that the vehicle as it was operated was being
used as a deadly weapon. He said that there was no question about that and that he noticed on the
video instances where there were close calls where members of the public very narrowly missed
getting hit by Smith.
        Clayton Wayne Seale, a passenger in Smith’s car, testified that, when the chase began, he
thought they were going to die because he thought they would get run over or run into somebody,
based on the way Smith was driving. He said that there were many times during the chase that Smith
drove through stop signs and red lights in a way that caused him to fear for his own life.
        Joshua Dwayne Smith, the son of Larry Dale Smith and a passenger during the chase,
described what happened as: “Well, we sped, kept going, dodging as much traffic as we could,
almost getting hit several different times, almost ramming into other cars, and speeding pretty
much.” He said he was worried for his own personal safety. He indicated that he was worried that
someone was going to get killed. Joshua referred to a vehicle moving on the access road that they
almost collided with.



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       An examination of the video of the chase shows that, while Smith did take some precautions
to avoid hitting other vehicles, there were at least two instances in which he narrowly avoided hitting
vehicles at high speed.
       We hold that the evidence is factually sufficient to support the jury’s finding that Smith,
during the commission of the offense of evading arrest, used a deadly weapon, a vehicle that, in the
manner of its used or intended use, was capable of causing death or serious bodily injury. Smith
urges that the evidence is insufficient because there was only a hypothetical danger to others, but no
actual danger. He primarily relies on the opinions in Drichas v. State, 175 S.W.3d 795, 799 (Tex.
Crim. App. 2005); Drichas v. State, 219 S.W.3d 471, 475 (Tex. App.—Texarkana 2007, pet. ref’d);
Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003); Mann v. State, 13 S.W.3d 89, 92 (Tex.
App.—Austin 2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001); and Williams v. State, 946
S.W.2d 432, 435-36 (Tex. App.—Fort Worth 1997), rev’d, 970 S.W.2d 566 (Tex. Crim. App. 1998).
       We find that all of these cases either support our opinion or are distinguishable. In Drichas,
the court did hold that, in order to justify a deadly weapon finding with respect to a motor vehicle,
the danger posed to motorists must be actual, and not simply hypothetical. Drichas, 175 S.W.3d at
799. The court went on to say, however, that the statute does not require pursuing police officers
or other motorists to be in a zone of danger, take evasive action, or require an appellant to
intentionally strike another vehicle in order to justify a deadly weapon finding. Id. It held that a
deadly weapon finding is appropriate on a sufficient showing of actual danger, such as evidence that
another motorist was on the highway at the same time and place as the defendant when the defendant
drove in a dangerous manner. Id. As we have noted, in this case many motorists were on the
highway at the same time and place as Smith when he was driving in a dangerous manner, including
more than one with whom he almost collided. We find Drichas to support our opinion.
       On remand following the opinion in Drichas, the court of appeals held that the evidence was
factually insufficient, noting that, while there may have been some traffic on the roadways of
Texarkana at the time the appellant in that case was driving, the evidence was uncertain regarding
the presence of other motorists, where or when they were encountered, or even whether they were
on the same roadway or a nearby road. Drichas, 219 S.W.3d at 475-76. In the case at bar, the
evidence showed that other vehicles were at or near Smith and that he almost collided with more
than one of them.



                                                  4
       We find the opinion in Cates to be distinguishable. In Cates, the court held that, because the
case was one of leaving the scene of an accident, the relevant time period for determining whether
the defendant’s truck was used and exhibited as a deadly weapon was the time period after the
accident. Cates, 102 S.W.3d at 738. The court noted that there was no evidence that the truck was
driven dangerously after the accident nor was there evidence of any other traffic on the roadway nor
any evidence that anyone was endangered by the truck after it left the scene of the accident. Id. In
the case at bar, there is substantial evidence that Smith drove his car dangerously and that there was
other traffic on the roadway while Smith was driving in that manner, some of which traffic was
endangered by Smith’s conduct.
       In Mann, the court held that a deadly weapon finding requires evidence that others were
endangered, not merely a hypothetical for danger if others had been present. Mann, 13 S.W.3d at
92. The opinion went on to note that the appellant in that case almost hit another vehicle head-on,
but the other vehicle took evasive action. Id. Additionally, an experienced officer testified that the
collision was capable of causing death or serious bodily injury. Id. The court held that the evidence
was sufficient to support the deadly weapon finding. Id. We find Mann to be consistent with and
supportive of our opinion.
       In Williams, a felony driving-while-intoxicated case, the court held that the evidence was
insufficient to support a finding that the appellant used his vehicle as a deadly weapon because there
was no evidence that there was any other motorist on the highway at the time and place the appellant
drove in an intoxicated condition or that any other motorist, other than arresting officers, came upon
the scene or was endangered by the appellant’s truck stopped on the highway. Williams, 946 S.W.2d
at 435-36. As we have previously noted, there was evidence in this case that there were numerous
motorists on the highway at the time and place Smith drove in a dangerous manner, more than one
of which were endangered by his conduct. We overrule Smith’s sole point on appeal.
       The judgment is affirmed.


November 5, 2009                                                                          PER CURIAM
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1


       1
           John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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