             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-18-00105-CR
           No. 02-18-00114-CR
      ___________________________

     JERRY LYNN BROWN, Appellant

                     V.

           THE STATE OF TEXAS


   On Appeal from the 415th District Court
            Parker County, Texas
   Trial Court Nos. CR17-0276, CR17-0275


Before Sudderth, C.J.; Gabriel and Womack, JJ.
Memorandum Opinion by Chief Justice Sudderth
                            MEMORANDUM OPINION

          Jerry Lynn Brown, who turned fifty-eight years old during his trial, surfed

match.com while working away from home and then divorced his wife after meeting a

woman he described as “the most beautifulest” woman he had ever seen.1 He moved

into her house. But after the $55,000 he entrusted to her disappeared, he searched the

house for clues to the money’s whereabouts and discovered her medical records,

which revealed to him for the first time that she was formerly a he. According to

Brown, his resulting mid-life crisis led him on a crime spree of bank robberies and car

thefts.

          A few days after one of the bank robberies,2 Brown stole a car from a

dealership after a test drive, dragging a salesman whose hand was caught in the

vehicle’s door as he did so. Brown was indicted for aggravated robbery with a deadly

weapon (the car-theft case at issue here)3 and for robbery (the bank-robbery case at

issue here). See Tex. Penal Code Ann. § 29.02. He pleaded guilty to the lesser-


      Brown offered, and the trial court admitted into evidence, a photo of the
          1

paramour, which tends to confirm his description.

        The two offenses at issue in this case were part of a several-day crime spree
          2

that included another bank robbery and car theft.

       The indictment in the car-theft case alleged that on or about April 3, 2017,
          3

while in the course of committing theft of property and with the intent to obtain or
maintain control of said property, Brown intentionally, knowingly, or recklessly
caused bodily injury to Jason Little by dragging him with a motor vehicle and used or
exhibited a deadly weapon (the motor vehicle).


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included offense of robbery in the car-theft case and to robbery in the bank case,

deferring the issue of whether he used a deadly weapon (the vehicle that he had

stolen) in the car-theft case until punishment in a trial to the bench. At the trial’s

conclusion, the trial court made an affirmative finding on the deadly-weapon

allegation and sentenced Brown to concurrent sentences of 50 years’ confinement in

the car-theft case and 20 years’ confinement in the bank robbery case.

      In a single issue, Brown argues that the evidence is insufficient to support the

affirmative finding that he used a deadly weapon in the car-theft case, arguing that

there was no evidence that the vehicle he stole had more than a hypothetical capability

of causing death or serious bodily injury.4 The State responds that the evidence is

sufficient to support the trial court’s finding that the vehicle was a deadly weapon

because its manner of actual—not just intended or hypothetical—use was capable of

causing serious bodily injury or death to the salesman and to others present.

      A “deadly weapon” includes “anything that in the manner of its use or intended

use is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B). To

sustain a deadly-weapon finding, the evidence must show that: (1) the object meets

the definition of a deadly weapon; (2) the deadly weapon was used or exhibited during

the transaction on which the felony conviction was based; and (3) other people were

put in actual danger. Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014). The

      4
       A deadly-weapon finding affects a convicted felon’s parole eligibility, among
other things. See Moore v. State, 520 S.W.3d 906, 908 (Tex. Crim. App. 2017).


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statute does not require that the actor actually intend to cause death or serious bodily

injury. Moore, 520 S.W.3d at 908. We view all of the evidence in the light most

favorable to the judgment to determine whether any rational factfinder could have

found beyond a reasonable doubt that the vehicle was used or exhibited as a deadly

weapon. See Brister, 449 S.W.3d at 493 (citing Cates v. State, 102 S.W.3d 735, 738 (Tex.

Crim. App. 2003)); see also Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789

(1979) (sufficiency standard).

      A motor vehicle is not a deadly weapon per se, but it may 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. The sufficiency of the evidence depends on the specific testimony

in the record about the vehicle’s manner of use. See id. at 494–95 (holding evidence

insufficient to support deadly-weapon finding when testimony did not reflect that the

DWI defendant caused another vehicle or person to be in actual danger: he briefly

crossed the center line into the oncoming lane of traffic when there were few, if any,

cars in that lane, he committed no other traffic offenses, and he appropriately stopped

after the officer activated his emergency lights); see also Moore, 520 S.W.3d at 908

(stating that to justify a deadly-weapon finding under penal code section

1.07(a)(17)(B), “the State need not establish that the use or intended use of an

implement actually caused death or serious bodily injury; only that ‘the manner’ in

which it was either used or intended to be used was ‘capable’ of causing death or

serious bodily injury”). The court of criminal appeals has held that testimony about a

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near head-on collision suffices to establish more than a mere hypothetical danger of

death or serious bodily injury to another. Moore, 520 S.W.3d at 909 (referencing Mann

v. State, 58 S.W.3d 132, 132 (Tex. Crim. App. 2001)). Likewise, if the record reflects

that the defendant’s driving was reckless or dangerous during the felony’s

commission—such as speeding or failing to control the vehicle or apply the brakes—

and actually caused serious bodily injury, the evidence is sufficient to support the

deadly-weapon finding. See id. at 910 (discussing Sierra v. State, 280 S.W.3d 250, 256

(Tex. Crim. App. 2009)); Johnston v. State, 115 S.W.3d 761, 764 (Tex. App.—Austin

2003) (“An alleged deadly weapon’s capability of causing death or serious bodily

injury in the manner of its use must be evaluated in light of the facts that actually

existed when the felony was committed.”), aff’d, 145 S.W.3d 215 (Tex. Crim. App.

2004).

         A defendant uses his motor vehicle in a manner that is capable of causing death

or serious bodily injury, even when no actual death or serious bodily injury occurs and

regardless of his intent, when there is more than a hypothetical potential for danger if

others are present. Moore, 520 S.W.3d at 913 (holding that the manner in which the

appellant used his motor vehicle placed others in substantial danger of death or

serious bodily injury, even if no one was actually seriously hurt, when he drove while

intoxicated and rear-ended a vehicle that was stopped at a red light on the service road

of a highway, causing a chain reaction of collisions that pushed a third vehicle into an

intersection when cars in the intersecting roadway had the right-of-way).

                                            5
      Brown testified that he was under the influence of hydrocodone and Xanax

when he committed the bank and car robberies. A few days after robbing the bank,

Brown stole a pickup from a dealership after the salesman offered to let him test drive

the vehicle. However, because the salesman retained the key fob (the vehicle was

keyless), after Brown absconded with the pickup, it would not run outside the fob’s

presence after the engine was turned off. When the pickup finally ran out of gas,

Brown abandoned it at a store near Southwest Volkswagen, presenting a convenient

opportunity for Brown to steal a replacement vehicle.

      When Brown arrived at Southwest Volkswagen, he met car salesman Jason

Little, who allowed him to test drive a Mustang. After completing the test drive,

Brown waited until Little got out before he sped away. Little gave chase, and as he

grabbed ahold of the Mustang, his hand became stuck in the passenger-side door

handle. Little testified that after his hand finally broke free, momentum carried him

forward into a parked vehicle, causing him minor injuries and some damage to the

parked vehicle.

      The dealership’s surveillance video corroborates Little’s version of events,

showing the point at which Brown pulls away in the Mustang, with Little running

alongside it. It shows the Mustang’s velocity increase and then Little being flung like a

rag doll into some parked cars at the point Brown made his escape. Additionally, it

provides a depiction of the general scene that day—a sunny Monday afternoon in



                                           6
April, with salesmen and customers walking in and out of the showroom and the

occasional vehicle driving through the lot.

         Little described himself as very scared and very shocked when Brown started

driving away with him attached to the vehicle, and that while his injuries ultimately

were minor, he could have been hurt a lot worse.           He also testified that he

occasionally suffered joint pain as a result of the incident. On cross-examination, he

acknowledged that Brown might not have realized that his hand was caught and that

Brown could have thought he was just running alongside the vehicle to get Brown to

stop.5

         Based on Little’s testimony alone, viewed in the light most favorable to the

deadly-weapon finding, the trial court could have found beyond a reasonable doubt

that Brown used the vehicle as a deadly weapon as to Little, who only serendipitously

suffered minor, rather than more serious, injuries when he was dragged and flung into

a parked vehicle.     But based on the video evidence depicting other drivers and

pedestrians at the dealership, entering and exiting the showroom from the car lot at or

around the time of the theft, the trial court could also have found that others besides

Little were put in actual danger from a vehicle driven by a man on painkillers who was

        Brown testified that he had seen Little running beside the car but did not see
         5

that his hand was caught in the door. Brown said he had been completely clear of
Little before he tried to drive away and that it had not been his intention to hurt
Little. Cf. Moore, 520 S.W.3d at 908 (stating that the actor does not have to actually
intend to cause death or serious bodily injury).



                                              7
attempting to escape in a stolen Mustang. See Brister, 449 S.W.3d at 494 (reciting as an

element to sustain a deadly-weapon finding that “other people were put in actual

danger,” but holding that testimony did not reflect the presence of others to endanger

by appellant’s driving); cf. Johnston, 115 S.W.3d at 764 (holding that a lit cigarette used

to intentionally burn a child “could only be capable of causing death or serious bodily

injury if used in a manner different from that supported by the record”).

      Brown’s goal was to take a vehicle, and he did so without regard to Little’s

safety or the safety of anyone else on the car lot, presenting a more-than-hypothetical

potential for danger to the dealership’s employees and customers, even if the only

actual injuries suffered that day were minor. See Moore, 520 S.W.3d at 908, 913.

Accordingly, we overrule Brown’s sole issue and affirm the trial court’s judgments.



                                                        /s/ Bonnie Sudderth
                                                        Bonnie Sudderth
                                                        Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: March 14, 2019




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