                                       COURT OF APPEALS
                                    EIGHTH DISTRICT OF TEXAS
                                         EL PASO, TEXAS


    SHAWN ANTHONY HARRISON,                              '
                                                                           No. 08-19-00025-CR
                                   Appellant,            '
                                                                              Appeal from the
    v.                                                   '
                                                                      372nd Criminal District Court
    THE STATE OF TEXAS,                                  '
                                                                         of Tarrant County, Texas
                                                         '
                                   Appellee.
                                                         '                   (TC# 1513591D)


                                                OPINION

         After a jury trial, Appellant, Shawn Anthony Harrison, appeals the finding he used a deadly

weapon while committing the offense of evading detention or arrest with a vehicle.1 We affirm.

                                             BACKGROUND

         Appellant was indicted for a third-degree felony of evading arrest or detention with a

vehicle. The indictment was enhanced by a prior felony conviction and alleged the motor vehicle

“in the manner of its use or intended use was capable of causing death or serious bodily injury.”

The deadly weapon was alleged to have been “used or exhibited” during the commission of the

felony offense or in flight from the commission of the felony offense and the Appellant used or



1
  This case was transferred from the Fort Worth Court of Appeals, and we apply the precedent of that court to the
extent required by TEX.R.APP.P. 41.3.
exhibited the deadly weapon.

           In April 2016, some unknown person(s) broke into Latrisha Alexander’s Arlington, Texas

apartment, stealing three television sets among other items.2 After discovering her televisions

were possibly being offered for sale on an online social media “app,”3 she anonymously posed as

a buyer negotiating with the online seller to buy her purported HiSense Television. 4 After

haggling a bit over the price for the television, the seller indicated it would be delivered to

Alexander in a white Ford Crown Victoria at a Big Lots shopping center parking lot. Once the

web transaction was finalized, Alexander contacted the Arlington City Police Department,

informing them about her scheduled meeting with the seller.

           Officer Brian Winchester of the Arlington Police Department arranged for a “sting”

operation. Officers Brian Jones and Phil Williams drove to the Big Lots parking lot in an

unmarked police car, to wait for the seller’s arrival. Detective Winchester, in his cruiser, was also

monitoring the “stakeout” in the parking lot.

           Appellant drove into the Big Lot’s parking lot. Appellant was driving a white Crown

Victoria, which was identified as Appellant’s by the license plate number, which matched the

vehicle’s registration and also the plate number of the car displayed on the app, where the seller

had also offered the vehicle for sale. Appellant was alone in the car. Officer Winchester radioed

uniformed Patrol Officers Charles Cisneros and Andrea Davis, who were nearby in marked police

cars, to detain Appellant to investigate Alexander’s burglary and recover her property. Officer



2
    Appellant was not indicted for the burglary or theft.
3
  The app pictured three televisions, and Alexander specifically identified one of the televisions as hers, a HiSense
brand LCD flat screen television, because of the distinctive serial number label she had placed on the back of it.
4
    The seller also was anonymous, using the pseudonym “Izzy.”
                                                            2
Winchester and Officers Cisneros and Davis approached Appellant’s vehicle. As they were

within two feet of Appellant, they directed him to place his hands outside the driver’s window.

At that distance, they were able to clearly observe his face. Appellant extended his hands as

directed and made eye contact with Officers Cisneros and Davis. Then, Appellant quickly

withdrew his hands, smoking his tires as he drove off at a high rate of speed.

           As Appellant left the parking lot, he drove towards Interstate-20. The Arlington Police

did not initiate a pursuit of Appellant because chasing vehicles can be dangerous, especially given

the volume of traffic that day at 4:15 p.m. Sometime later, officers learned that Appellant’s

Crown Victoria had collided with a black SUV on Interstate-20 eastbound. 5 Both vehicles

sustained heavy damage to the passenger side front and rear body panels, The record does not

indicate what injuries the SUV driver sustained but an ambulance was called to the scene of the

accident. Emergency Medical Services’ (EMS) personnel treated the female driver. Webcam

surveillance footage from, a school, Grace Preparatory Academy, adjacent to the highway, showed

Appellant driving his vehicle off the highway, down an embankment, and then onto the school’s

football field.6 The video showed Appellant driving his vehicle across an athletic field parking

the vehicle behind the school next to a trash dumpster. When the officers arrived at the dumpster,

Appellant was gone, but the Crown Victoria’s trunk was open and the HiSense television was

found in the dumpster. Crime scene technicians obtained latent fingerprints from the front of the

television identifying them as Appellant’s.7



5
    There is no evidence how the accident happened, just that it had occurred.
6
    Most of the students had been dismissed for the day, but some Academy administration staff remained.
7
  Evidence technicians did not process Appellant’s Crown Victoria for fingerprints because Officer Winchester
believed he needed a search warrant, which he did not have.
                                                           3
           At trial, Officers Jones and Davis testified motor vehicles traveling recklessly can cause

death or serious injury, are inherently dangerous, and can be deadly weapons when fleeing from

police. Those officers and Officer Winchester positively identified Appellant as the driver of the

white Crown Victoria and obtained a warrant for Appellant’s arrest for evading arrest or detention

with a vehicle.

                                                  DISCUSSION

           Appellant was convicted of evading arrest or detention with a vehicle. TEX.PENAL CODE

ANN. § 38.04(b)(2)(A). He was sentenced to eight years’ incarceration.8 TEX.PENAL CODE ANN.

§ 12.42. Appellant’s sole issue on appeal is the evidence was insufficient for the jury to find he

had used the motor vehicle as a deadly weapon while committing the offense of felony evasion of

detention or arrest.

                                               Standard of Review

           We review claims of insufficiency of the evidence by viewing all the evidence in the light

most favorable to the prosecution to determine whether any rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443

U.S. 307, 318 (1979); Jenkins v. State, 493 S.W.3d 583, 597 (Tex.Crim.App. 2016); Wise v. State,

364 S.W.3d 900, 903 (Tex.Crim.App. 2012). When the record supports conflicting inferences, a

reviewing court must “presume that the factfinder resolved the conflicts in favor of the

prosecution” and defer to that determination. Wise, 364 S.W.3d at 903.

           “Deadly weapon” means:

           (A) a firearm or anything manifestly designed, made, or adapted for the purpose of
               inflicting death or serious bodily injury; or

8
    Appellant previously had been convicted of a felony.
                                                           4
       (B) anything that in the manner of its use or intended use is capable of causing death
       or serious bodily injury.

TEX.PENAL CODE ANN. § 1.07(a)(17).

       Texas courts regularly uphold deadly weapons findings, involving motor vehicles. Sierra

v. State, 280 S.W.3d 250, 255 (Tex.Crim.App. 2009), citing Drichas v. State, 175 S.W.3d 795,

798 (Tex.Crim.App. 2005). See also Turner v. State, No. 08-11-00318-CR, 2013 WL 5516447

(Tex.App.—El Paso Oct. 2, 2013, no pet.)(not designated for publication). Deciding the issue

involves a two-part test: “[F]irst, we evaluate the manner in which the defendant used the motor

vehicle during the felony; and second, we consider whether, during the felony, the motor vehicle

was capable of causing death or serious bodily injury.” Sierra, 250 S.W.3d at 255. Relevant

factors for both parts include: speeding, driving erratically, turning abruptly into construction

zones, driving on the wrong side of a highway, vehicle collisions, failing to maintain control of

the vehicle, and the presence of other motorists at the same time and place as the defendant. Id.

at 254-56; Moore v. State, 520 S.W.3d 906, 907-13 (Tex.Crim.App. 2017); and Couthren v. State,

571 S.W.3d 786, 793 (Tex.Crim.App. 2019).

       Based on the evidence at trial, a rational fact finder could conclude that Appellant operated

his vehicle dangerously and recklessly, and also infer that his driving could cause death or serious

bodily injury. He sped off from the Big Lots parking lot, collided with a SUV, and drove down

an embankment onto the athletic field of a school, where some administrative staff remained. See

Sierra, 250 S.W.3d at 255-56 (failure to maintain control of a vehicle, and driving erratically on

the wrong side of a highway), citing Drichas, 175 S.W.3d at 797; Turner, 2013 WL 5516447, at

*4 (near collision with car headed in opposite direction); Moore, 520 S.W.3d at 907-08, 912-13


                                                 5
(collision). The jury could also have found Appellant’s collusion with the SUV was capable of

causing death or serious bodily injury because of the significant body damage to both vehicles, the

SUV driver was treated by EMS personnel, and Officers Jones’ and Davis’ testimony regarding

motor vehicles traveling recklessly can cause death or serious injury when fleeing from police.

Thomas v. State, No. 05-18-01204-CR, 2019 WL 6598616, *2 (Tex.App.—Dallas Dec. 4, 2019,

no pet.)(mem. op., not designated for publication)(police officer testimony that a motor vehicle is

capable of causing serious bodily injury or death).

       Appellant, however, argues the totality of the State’s evidence on the deadly weapon issue

is meager: Officer Winchester heard about a recent accident involving Appellant’s car, and

Appellant’s vehicle had left the highway, ending up in a parking lot of the Grace Preparatory

Academy. Appellant notes Officer Winchester and his investigating team saw a black SUV with

moderate damage, and a female being treated by EMS.           Appellant, however, ignores other

evidence: a busy freeway on a Friday afternoon at about 4:15 p.m., and the dangerous and reckless

nature of his driving out of the Big Lots parking lot to the freeway onto school property, with

administrative staff present. Additionally, the Arlington police officers testified how motor

vehicles can cause death or serious injury, when fleeing from police. While the jury could have

agreed with Appellant, it did not, and we must view all the evidence in the light most favorable to

the prosecution, presuming that the jury resolved any evidentiary issues and conflicts in favor of

the prosecution. Jenkins, 493 S.W.3d at 599; Jackson, 443 U.S. at 326; and Wise, 364 S.W.3d at

903.

       Appellant cites several cases to support his argument the evidence was insufficient and too

speculative for the jury to find that he used the motor vehicle as a deadly weapon. Principally, he


                                                6
relies on three: Glover v. State, No. 09-13-00084-CR, 2014 WL 1285134 (Tex.App.—Beaumont

March 26, 2014, pet. ref’d)(mem. op., not designated for publication); Foley v. State, 327 S.W.3d

907 (Tex.App.—Corpus Christi 2010, pet. ref’d); and Pointe v. State, 371 S.W.3d 527

(Tex.App.—Beaumont 2012, no pet.). They are all distinguishable. In Glover, a Deputy stopped

an intoxicated driver, who was driving a speeding pick-up truck with a female passenger. Glover,

2014 WL 1285134, at *1,*2. The only other evidence of a vehicular deadly weapon was that

other, unspecified drivers were present during the commission of the offense. Foley involved an

intoxicated driver, who crashed into an aluminum highway barrier. Foley, 327 S.W.3d at 916.

The closest persons to the defendant at the time of the accident were 60 and 225 feet away in an

office building, and there were no other motorists or persons at the scene of the accident. Id. at

917. Other than the defendant himself, no one was in danger of serious bodily harm or death. Id.

In Appellant’s case, he drove erratically, got into an accident with an SUV, resulting in significant

damage to both vehicles, and requiring EMS personnel to treat the driver. We think that these

distinctions in Appellant’s case are substantial, and do not find Glover or Foley persuasive.

       Pointe is a closer call. In Pointe, there was a two-vehicle collision, the police officer citing

the other driver for causing the accident. Pointe, 371 S.W.3d at 530. A bystander corroborated

the other driver being at fault. Id. at 530, 532. Additionally, the defendant had his ten-year-old

son with him, and a hospital later diagnosed the defendant with a concussion. Id. While those

facts somewhat resemble Appellant’s case (an accident, medical treatment for one of the drivers,

etc.), we also believe that Pointe too is distinguishable from Appellant’s case because the

investigating officer cited the other driver for a traffic violation, not the defendant, and the SUV

driver in Appellant’s case received medical care, not Appellant.             Thus, we find Pointe


                                                  7
unpersuasive.

       From this evidence in this record, a rational trier of fact could have found beyond a

reasonable doubt that Appellant drove the motor vehicle in a reckless or dangerous manner capable

of causing serious bodily injury or death to others. We overrule Appellant’s sole issue.

                                            CONCLUSION

       For these reasons, we affirm.



April 30, 2020
                                             YVONNE T. RODRIGUEZ, Justice

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)




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