                                     In The

                               Court of Appeals
                   Ninth District of Texas at Beaumont
                            ____________________

                             NO. 09-14-00232-CR
                            ____________________

                     THE STATE OF TEXAS, Appellant

                                       V.

                 KEVIN DASHAWN SNEED, Appellee
_________________________________      ______________________

                 On Appeal from the 9th District Court
                      Montgomery County, Texas
                    Trial Cause No. 12-12-13526 CR
____________________________________________                      ____________

                         MEMORANDUM OPINION

      Kevin Dashawn Sneed pleaded guilty to the third-degree felony of evading

arrest or detention with a motor vehicle. The indictment alleged that Sneed used

his vehicle as a deadly weapon. After a bench trial on punishment, the trial court

made an affirmative deadly weapon finding and sentenced Sneed to ten years in

prison. Sneed filed a motion for new trial, which the trial court granted. We

construe the State’s appeal as presenting two issues challenging the trial court’s

decision: (1) the evidence supports a deadly weapon finding; and (2) Sneed’s

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offense was properly classified as a third-degree felony. We reverse the trial

court’s order granting Sneed’s motion for new trial and remand the cause to the

trial court with instructions to reinstate Sneed’s sentence and the deadly weapon

finding.

                                 Standard of Review

      We review a trial court’s decision to grant a motion for a new trial for an

abuse of discretion. State v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim. App. 2014).

We view the evidence in the light most favorable to the trial court’s ruling, defer to

the trial court’s credibility determinations, and presume that all reasonable findings

in support of the ruling have been made. Id. at 104. Generally, a trial court does not

abuse its discretion if the defendant: “(1) articulated a valid legal claim in his

motion for new trial; (2) produced evidence or pointed to evidence in the trial

record that substantiated his legal claim; and (3) showed prejudice to his

substantial rights[.]” State v. Herndon, 215 S.W.3d 901, 909 (Tex. Crim. App.

2007). A trial court abuses its discretion if it grants a new trial for a non-legal or a

legally invalid reason. Thomas, 428 S.W.3d at 104.

                                 Basis for New Trial

      We first address Sneed’s contention that the State’s appeal fails to address

all grounds for the trial court’s order. In his motion for new trial, Sneed argued

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that: (1) he did not use his vehicle as a deadly weapon; (2) he should have been

punished for a state jail felony; and (3) his sentence was too harsh. At the new trial

hearing, the trial court expressed concern over the amendments to section 38.04 of

the Texas Penal Code regarding classification of the offense. The trial court also

explained:

      I am concerned about the definition of the deadly weapon, that it must
      be used or an object as a deadly weapon -- excuse me. Let me read
      that again. The actor must use it or the object as a deadly weapon not
      for some other purpose. . . .
      ...

      It’s right here. I’ve got the definition. Firearm, obviously, or anything
      manifestly designed, made, or adapted for the purpose of inflicting
      death or serious bodily injury; or -- I think this is the definition we’re
      operating under -- anything that in the manner of its use or intended
      use is capable of causing death or serious bodily injury.

      When ruling on a motion for new trial, the trial court may make oral

findings. Tex. R. App. P. 21.8(b). The trial court “may summarize the evidence or

explain the basis for granting or denying a motion for new trial[.]” Herndon, 215

S.W.3d at 905 n.5. The rationale behind this rule is to “ensure that appellate courts

will not need to speculate as to the possible factual findings supporting a trial

judge’s ruling if the trial judge will articulate them.” Landers v. State, 256 S.W.3d

295, 301 n.4 (Tex. Crim. App. 2008). The record indicates that the classification of

Sneed’s offense and the deadly weapon finding were the focus of the new trial

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hearing and, based on the trial court’s explanations at the hearing, these two

grounds served as the basis for the trial court’s ruling. We conclude that the State

addressed the two grounds on which the trial court’s order was based.

                              Deadly Weapon Finding

      In issue one, the State contends that the evidence supports a deadly weapon

finding and that, even if the evidence is insufficient, the proper remedy is to delete

the finding from the judgment rather than grant a new trial on punishment. We

must determine whether, viewing the evidence in the light most favorable to the

verdict, a rational trier of fact could have found beyond a reasonable doubt that

Sneed used or exhibited his vehicle as a deadly weapon when he was evading

arrest or detention. See Sierra v. State, 280 S.W.3d 250, 255 (Tex. Crim. App.

2009). We consider the manner in which the defendant used the motor vehicle

during the offense and whether the motor vehicle was capable of causing death or

serious bodily injury. Id.; see Tex. Penal Code Ann. § 1.07(a)(17)(B) (West Supp.

2014). If a deadly weapon finding is erroneous, the proper remedy is deletion of

the finding from the judgment. See Plummer v. State, 410 S.W.3d 855, 856 (Tex.

Crim. App. 2013); Williams v. State, 970 S.W.2d 566 (Tex. Crim. App. 1998).

      According to the record, the trial court’s concerns regarding the deadly

weapon finding are founded on Plummer. In Plummer, the defendant wore a

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holstered firearm and a bullet-proof vest as part of his security-guard uniform, but

was charged with and convicted of unlawful possession by a felon of a firearm and

possession of body armor. Plummer, 410 S.W.3d at 856-57. The trial court entered

a deadly weapon finding in the possession-of-body-armor case. Id. at 857. The

Court of Criminal Appeals held that “there must be some facilitation purpose

between the weapon and the associated offense to support a deadly-weapon

finding.” Id. at 856, 864-65. The Court explained that Texas law had expanded the

term “deadly weapon” to include “any instrument that threatens or causes serious

bodily injury, even when the instrument is not inherently or intentionally deadly.”

Id. at 858. According to the Court, this expansion was prompted by cases,

including motor vehicle cases, in which “the object was found to be a deadly

weapon because it caused or facilitated the injury (or risk of injury) posed by the

associated felony.” Id. at 858-59 (citing Tyra v. State, 897 S.W.2d 796 (Tex. Crim.

App. 1995) and Mann v. State, 58 S.W.3d 132 (Tex. Crim. App. 2001)). The

firearm that Plummer possessed was a deadly weapon per se, but “did nothing to

increase the risk of harm or otherwise contribute to the result of wearing body

armor.” Id. at 865. The firearm was used for a “common purpose—looking like a

security guard[.]” Id.




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      In this case, the record demonstrates that Sneed’s use of his motor vehicle

helped facilitate the commission of evading arrest or detention and was used for

more than just its common purpose. See id. at 856, 864-65. Deputy Josh Bergland

testified that he was conducting a traffic stop of Sneed’s vehicle when Sneed drove

away from the scene. Bergland testified that during the pursuit, he could barely

keep up with Sneed, even while traveling at speeds in excess of one hundred miles

per hour. Bergland testified that other drivers were on the road and Sneed was

swerving in and out of traffic, causing Bergland concern for himself and other

drivers. Deputy Eric Prado testified that Sneed was driving much faster than other

vehicles and continued driving even after his tires blew out. Bergland testified that

Sneed struck the curb on two occasions, sparks were coming from the vehicle, and

it appeared that Sneed failed to stop or slow down at intersections. According to

Bergland, the debris from Sneed’s vehicle could have punctured one of Bergland’s

tires and caused Bergland to lose steering ability. Prado testified that he was afraid

Sneed might strike another vehicle. Bergland testified that Sneed drove quickly

into a nightclub parking lot where other vehicles and people were present. Once

Sneed stopped his vehicle, he fled on foot and was later apprehended.

      The evidence demonstrates a sufficient showing of actual danger. See

Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). The record

                                          6
indicates that other motorists were on the road at the same time and place as Sneed

and that, after using marihuana, Sneed drove in a dangerous manner, i.e., at

excessive speeds, through intersections and an occupied parking lot, with debris

and sparks flying from the vehicle, and with blown-out tires. See id. Sneed’s motor

vehicle facilitated the risk of injury posed by the offense of evading arrest or

detention. See Plummer, 410 S.W.3d at 858-59. Viewing the evidence in the light

most favorable to the prosecution, the evidence is sufficient to establish beyond a

reasonable doubt that Sneed used his vehicle as a deadly weapon. See Sierra, 280

S.W.3d at 255. Therefore, the trial court abused its discretion by granting a motion

for new trial on this basis. See Thomas, 428 S.W.3d at 104. We sustain issue one.

                                Classification of Offense

      In issue two, the State contends that evading arrest or detention is a third-

degree felony, not a state jail felony. Section 38.04 of the Texas Penal Code

addresses the offense of evading arrest or detention. Tex. Penal Code Ann. § 38.04

(West Supp. 2014). Two versions of section 38.04(b) were enacted in 2011. Id. §

38.04(b). The first version provides, in pertinent part, that evading arrest or

detention is:

      (1) a state jail felony if:

                (A) the actor has been previously convicted under this section;
                or
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             (B) the actor uses a vehicle or watercraft while the actor is in
             flight and the actor has not been previously convicted under this
             section;

      (2) a felony of the third degree if:

             (A) the actor uses a vehicle or watercraft while the actor is in
             flight and the actor has been previously convicted under this
             section . . . .

Id.; see Act of May 24, 2011, 82nd Leg., R.S., ch. 839, § 4, 2011 Tex. Sess. Law

Serv. 2110, 2111 (House Bill 3423); see also Act of May 23, 2011, 82nd Leg.,

R.S., ch. 391, § 1, 2011 Tex. Sess. Law Serv. 1046 (Senate Bill 496). The second

version provides, in pertinent part, that the offense is:

      (1) a state jail felony if the actor has been previously convicted under
      this section;

      (2) a felony of the third degree if:

             (A) the actor uses a vehicle while the actor is in flight[.]

Tex. Penal Code Ann. § 38.04(b); see Act of May 27, 2011, 82nd Leg., R.S., ch.

920, § 3, 2011 Tex. Sess. Law Serv. 2320, 2321 (Senate Bill 1416).

      The Fort Worth Court of Appeals has concluded that the versions are

reconcilable. Adetomiwa v. State, 421 S.W.3d 922, 926 (Tex. App.—Fort Worth

2014, no pet.). The Court explained that Senate Bill 496 and House Bill 3423

reenacted the previous punishment scheme and “made a single substantive change

                                             8
to section 38.04, adding the terms ‘watercraft’ and ‘federal special investigator,’

respectively, to the statutory language of section 38.04.” Id. Only Senate Bill 1416

altered the punishment scheme “to provide, among other things, that evading arrest

is a third degree felony if the actor uses a vehicle in flight (regardless of whether

the actor has been previously convicted of evading arrest).” Id. The Court

explained:

      Senate Bill 1416 made more extensive amendments, altering the
      punishment scheme. Although none of the amendments recited
      section 38.04 at full length or stated that it was reenacting the statute,
      the amendments reenacted and published the bulk of the statute “so
      that [the amendments’] meaning[s] may be known without the
      necessity of examining the statute amended.” Because each
      amendment makes substantive changes that the other does not, the
      amendments are reconcilable. That is, harmonizing all three
      amendments to give effect to each, Senate Bill 1416 amended the
      punishment scheme of section 38.04 to provide that evading arrest is a
      third degree felony if the actor uses a vehicle in flight.

Id. at 926-27 (internal citations omitted). The Court added that, even if the

amendments were irreconcilable, Senate Bill 1416 was the latest of the three bills

to be enacted and would prevail over earlier bills. Id. at 927.

      We agree with the Fort Worth Court of Appeals’s conclusion that the

amendments are reconcilable. The offense of evading arrest or detention with a

motor vehicle is a third-degree felony if the actor uses a motor vehicle while in

flight, regardless of whether the actor has a previous conviction for evading arrest

                                           9
or detention. See id. at 926-27; see also Tex. Penal Code Ann. § 38.04(b) (version

two); Act of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex. Sess. Law

Serv. 2320, 2321. Because Sneed’s offense was properly classified as a third-

degree felony, Sneed was not entitled to a new trial on grounds that he should have

been punished for a state jail felony. See Thomas, 428 S.W.3d at 104. We sustain

issue two. We reverse the trial court’s order granting Sneed’s motion for new trial

and remand the cause to the trial court with instructions to reinstate Sneed’s

sentence and the deadly weapon finding.

      REVERSED AND REMANDED.


                                             ________________________________
                                                    STEVE McKEITHEN
                                                         Chief Justice

Submitted on August 28, 2014
Opinion Delivered September 24, 2014
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




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