                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-09-00177-CR


JUSTIN HARRIS                                                      APPELLANT

                                             V.

THE STATE OF TEXAS                                                      STATE


                                         ------------

            FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

                                         ------------

                           MEMORANDUM OPINION1
                                          ----------

                                      I. Introduction

      Appellant Justin Harris appeals his conviction for evading arrest.    We

affirm.

                      II. Factual and Procedural Background

      On July 11, 2007, at a quarter past three in the morning, a black Nissan

Sentra pulled into the emergency room sally port at Carrollton’s Trinity Medical

      1
          See Tex. R. App. P. 47.4.
Center.   Twenty-year-old Appellant, who was on probation for driving while

intoxicated, was passed out in the front passenger seat. The driver, a young

man named Mario, left the car and entered the emergency room (ER). Visibly

upset, he reported that his friend had overdosed after taking Xanax while drinking

beer at a party in Irving.

      Nurse Ronne Ynosencio went out to the car and observed Appellant

unconscious, drooling, and sweating profusely. She also noticed that he had a

large wet spot on his pants. ER staff Sonia Horner and Christy Hartley wheeled

a stretcher to the car, and Ynocencio and Horner lifted Appellant onto it.

Ynosencio attempted to wake him by rubbing her knuckles against his sternum

but Appellant did not respond.

      As the nurses pulled up the rails and rolled the stretcher toward the ER,

Appellant woke up, looked around, and stood upright on top of the stretcher. He

then sprung to the ground, landing on his feet.      Ynosencio still held one of

Appellant’s arms, but he swung the other one toward her, breaking free of her

grasp, and bolted for the car. He called to Mario, ―Come on. Let’s go. Let’s go. I

want to leave.‖ Mario told him, ―No. I’m not going to leave. You need to be

checked out. I’m worried about you. You were passed out. I want you to be

checked out.‖

      Appellant was ―awake and alert and angry‖ as he jumped into the

passenger side of the car and continued to plead with Mario, ―Get in the car.

Take me home.‖


                                        2
      Carrollton Police Officer Brion Vannucci, who had been dispatched to

investigate a disturbance at the hospital, pulled his patrol car into the drive of the

ER.   He noticed hospital personnel, a security guard and another individual

gathered around a black Nissan with someone in the passenger seat. A nurse

pointed at the Nissan and said, ―He’s over there.‖ Officer Vannucci parked a

short distance away and walked up to investigate.

      As the officer approached, Appellant climbed over the center console and

into the driver’s seat. The security guard leaned into the driver’s side and tried to

talk Appellant into letting hospital staff check him out to make sure he was all

right. But Appellant put the car in drive and ―pressed down on that gas as hard

as he could,‖ racing around the small traffic circle, and almost hitting Officer

Vannucci and his patrol car.      The officer ran back to his marked patrol car,

activated his emergency lights and siren, and followed.

      Josey Lane is a major divided thoroughfare. Appellant nosed the car into

Josey’s northbound lane and drove it south toward Hebron. Officer Edward Clark

had also responded to the disturbance report from the hospital.              He was

approaching from the south in his marked patrol car when he saw the black

Nissan coming at him in the wrong lane. He stopped just short of the Hebron–

Josey intersection and activated his emergency lights and siren. Within thirty

feet of Clark’s unit, Appellant veered westbound on Hebron. The two patrol cars

fell in behind him. With the officers in pursuit, Appellant accelerated to speeds

over 100 miles an hour.


                                          3
      At Old Denton Highway, Appellant turned north and raced the two miles up

to Indian Run. There, he made a U-turn and sped back to Hebron, taking it west.

He made another U-turn and returned east to Old Denton. There, he turned

south and then west at Branch Hollow. The chase continued on Branch Hollow

to Eisenhower, where Appellant looped back to the intersection of Old Denton

and Hebron.    He took Old Denton once more south, continuing to just past

Branch Hollow, where, after a chase that had lasted approximately fifteen

minutes, he attempted another U-turn but lost control of the car as it skidded into

a curb.2

      Appellant climbed out and started walking.        The officers exited their

vehicles with weapons drawn. Officer Vannucci ordered Appellant to stop and

get on the ground but Appellant ignored him and kept going.              Vannucci

reholstered his weapon, chased Appellant down, and tackled him. Other officers

arrived and applied handcuffs as Appellant continued to struggle.

      At his trial for evading arrest, Appellant testified that he had no memory of

the incident other than having sipped a beer in Mario’s car and waking up two

days later in jail. A jury found him guilty and also found that he had used the car

as a deadly weapon. At the end of the punishment phase, the jury assessed two



      2
       Officers deployed spike strips several times in Appellant’s path. The
strips are designed to puncture fleeing suspects’ tires and shorten chases.
Appellant drove over the strips each time they were set out, and all four of the
Nissan’s tires sustained damage.


                                        4
years’ confinement and a $7,000 fine.          The trial court sentenced Appellant

accordingly. Appellant now brings seven points on appeal.

                          III. Sufficiency of the Evidence

      In his first, second, third, sixth, and seventh points, Appellant challenges

the sufficiency of the evidence to support the jury’s verdict, the trial court’s refusal

to order a directed verdict, and the jury’s deadly weapon finding.

A. Factual Sufficiency of the Evidence

      Appellant’s third and sixth points are claims that the evidence is factually

insufficient. Factual-sufficiency claims are no longer available in Texas because

the court of criminal appeals has held that the Jackson v. Virginia legal-

sufficiency standard is the only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a

criminal offense that the State is required to prove beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling Clewis

v. State, 922 S.W.2d 126 (1996)); see Jackson v. Virginia, 443 U.S. 307, 319, 99

S. Ct. 2781, 2789 (1979). Accordingly, we overrule Appellant’s third and sixth

points.

B. Intent

      In his first point, Appellant contends that the evidence is legally insufficient

to prove that he was aware that he was being chased by a police officer

attempting to lawfully arrest or detain him. For the same reason, he contends in

his second point that the trial court erred when it denied his motion for directed


                                           5
verdict. Because a challenge to the denial of a motion for instructed verdict is

actually a challenge to the sufficiency of the evidence, Canales v. State, 98

S.W.3d 690, 693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003); McCown

v. State, 192 S.W.3d 158, 160 (Tex. App.—Fort Worth 2006, pet. ref=d), we will

review these first two points under the same standard.

      The standard for reviewing a claim that the evidence is insufficient is the

standard set out by the United States Supreme Court in Jackson v. Viriginia. 443

U.S. at 319, 99 S. Ct. at 2789.     Applying that standard, we view all of 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 crime beyond

a reasonable doubt. Id.; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007).

      In determining the sufficiency of the evidence to show intent, and faced

with a record that supports conflicting inferences, we Amust presume—even if it

does not affirmatively appear in the record—that the trier of fact resolved any

such conflict in favor of the prosecution, and must defer to that resolution.@

Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).

      Viewed in the light most favorable to the verdict, the evidence shows that

although Appellant was unconscious when he arrived at the hospital, he soon

became awake and alert enough to balance atop a stretcher, jump from it, land

on his feet, take a swing at the nurse who still had hold of one arm, and break




                                        6
away. Nurse Ynosencio testified, ―It was a deliberate action to get away, yes,

and whatever it took to get away, he was going to do.‖

      Running out to the car, Appellant pleaded with Mario to take him home.

When Mario refused, Appellant climbed across the center console of the Nissan,

put the car in drive and led multiple police officers in marked police cars with

lights flashing and sirens wailing on a chase of some fifteen minutes in duration,

reaching speeds over 100 miles an hour. When he wrecked the car, despite

officers with weapons drawn ordering him to stop and get on the ground, he

continued to try to get away from police until he was tackled and arrested. As

Nurse Ynosencio further testified, ―He was awake and he was alert and he was

aware of the fact that he didn’t want to be there.‖

      Furthermore, as the State points out, the evidence shows that Appellant

had a reason for wanting to avoid attention from the authorities:        underage

drinking while on probation, which, the evidence shows, actually led to a motion

to revoke probation. The evidence supports a reasonable deduction by the jury

that Appellant intentionally fled the police to avoid possibly having his probation

revoked.

      Viewed under the appropriate standard of review, the evidence is sufficient

to support the jury’s implied finding expressed by the verdict that Appellant was

aware that he was being chased by police officers lawfully attempting to detain or

arrest him. Accordingly, we overrule Appellant’s first two points.




                                          7
C. Deadly Weapon

      We also overrule Appellant’s seventh point, in which he contends that the

evidence is insufficient to support the jury’s finding that he used the car as a

deadly weapon. 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 Ann. § 1.07(a)(17)(B) (Vernon Supp. 2010). A motor vehicle may become

a deadly weapon.      Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App.

2005). Nurse Ynosencio testified that when Appellant sped around the circle at

the ER, he almost hit Officer Vannucci. The evidence also shows that Appellant

led officers on a fifteen-minute car chase through residential areas at speeds

exceeding a hundred miles an hour. In addition to the officers pursuing in patrol

cars, officers on foot deployed speed spikes in Appellant’s path and then

retracted them before pursuing squad cars ran over them. Officer Vannucci

testified that a car could be a deadly weapon. And both he and Officer Clark

testified that the manner in which Appellant drove the car put all the officers at

risk of serious bodily injury. Viewed in the light most favorable to the verdict, the

evidence supports a rational juror’s conclusion beyond a reasonable doubt that

Appellant used the car as a deadly weapon. See id.

                         IV. Requested Jury Instruction

      In his fourth point, Appellant contends that the trial court erred when it

denied the following requested jury instruction on involuntary intoxication:




                                         8
       [I]nvoluntary intoxication is a defense to prosecution for an offense
      when it is shown that the accused has exercised no independent
      judgment or volition in taking the intoxicant, and as a result of his
      intoxication, the accused did not know that his conduct was wrong or
      was incapable of conforming his conduct to the requirements of the
      law he allegedly violated.

      Appellant’s proposed instruction is an incorrect statement of the law. First

of all, involuntary intoxication is not ―a defense to prosecution‖ because ―defense‖

is a term of art and exists only if enumerated in the penal code. Tex. Penal Code

Ann. § 2.03(a) (Vernon 2003); Brown v. State, 290 S.W.3d 247, 252 (Tex. App.

Fort Worth––2009, pet. ref’d) (Dauphinot, J., concurring). Although involuntary

intoxication is not a defense, it is implicit in the affirmative defense of insanity

found in section 8.01(a) of the penal code. Tex. Penal Code Ann. § 8.01(a)

(Vernon 2003); Mendenhall v. State, 77 S.W.3d 815, 817 (Tex. Crim. App. 2002);

Torres v. State, 585 S.W.2d 746, 749 (Tex. Crim. App. 1979). The court of

criminal appeals has held that it is an affirmative defense to prosecution that, at

the time of the alleged offense, the defendant, as a result of severe mental defect

caused by involuntary intoxication, did not know that his conduct was wrong.

Mendenhall, 77 S.W.3d at 817–18. The court has also held, however, that it is

not an affirmative defense to prosecution that, at the time of the alleged offense,

the defendant, as a result of a mental defect caused by involuntary intoxication,

was incapable of conforming his conduct to the requirements of the law he

allegedly violated. Id.




                                         9
      Although Appellant’s proposed instruction is defective, a requested charge

need not be ―in perfect form.‖ Chapman v. State, 921 S.W.2d 694, 695 (Tex.

Crim. App. 1996). Rather, it must be ―sufficient to call the trial court’s attention to

the omission in the court’s charge.‖        Id.   Here, the trial court understood

Appellant’s request to be one for an instruction based on the affirmative defense

of insanity brought on by involuntary intoxication. Removing the defects from

Appellant’s proposed instruction and giving it and the record as lenient a reading

as possible, we agree with the trial court that Appellant’s request sought a jury

charge on insanity caused by involuntary intoxication.

      In order to be entitled to that charge, though, there must be some evidence

in the record to show that, at the time of the alleged offense, Appellant, as a

result of severe mental defect caused by involuntary intoxication, did not know

that his conduct was wrong. Tex. Penal Code Ann. § 8.01(a); see Rogers v.

State, 105 S.W.3d 630, 639 (Tex. Crim. App. 2003).

      Even our lenient reading of the record, however, does not support such a

charge. There is no evidence that Appellant was intoxicated involuntarily, that is,

drugged against his will.     Nurse Ynosencio testified that Mario told her that

Appellant had been drinking beer and taking Xanax at a party in Irving. Appellant

testified that he remembered nothing from the time he took a sip of beer to the

time he awoke in jail two days later. He testified that he thought Mario put Xanax

in the beer because he knew Mario had a prescription for Xanax and he had

found out that Mario put something in someone else’s drink sometime before. At


                                          10
most, this self-serving testimony amounts to mere speculation, not evidence.

See Peavey v. State, 248 S.W.3d 455, 465 (Tex. App.––Austin 2008, pet. ref’d).

      And, even if Appellant was intoxicated, and even if we were to speculate

that that intoxication was induced upon him involuntarily, there is no evidence

that it caused a severe mental defect that rendered Appellant without the ability

to realize that his conduct was wrong.        An ―affirmative defense‖ requires the

accused to bear both the burden of production and the burden of persuasion.

Tex. Penal Code Ann. § 2.04 (Vernon 2003); Zuliani v. State, 97 S.W.3d 589,

594 n.5 (Tex. Crim. App. 2003); Alford v. State, 866 S.W.2d 619, 621 (Tex. Crim.

App. 1993). The ―severe mental defect‖ component of this affirmative defense

limits its availability if there is no evidence to support that element. See Coble v.

State, 871 S.W.2d 192, 201 (Tex. Crim. App. 1993), cert. denied, 513 U.S. 829

(1994). Appellant failed to produce any evidence, medical or otherwise, that he

was suffering from insanity due to involuntary intoxication. Based on the record

before us, we hold that the trial court did not err to refuse Appellant’s requested

instruction, and we overrule his fourth point.

                               V. Double Jeopardy

      In his fifth point, Appellant claims that the jury’s deadly weapon finding

punished him twice for the same conduct.

      The Double Jeopardy Clause of the Fifth Amendment, applicable to the

states through the Fourteenth Amendment, protects an accused against a

second prosecution for the same offense for which he has been previously


                                         11
acquitted or previously convicted. Littrell v. State, 271 S.W.3d 273, 275 (Tex.

Crim App. 2008) (citing Brown v. Ohio, 432 U.S. 161, 164–65, 97 S. Ct. 2221,

2225 (1977)). It further protects an accused from being punished more than

once for the same offense. Id.

      Appellant acknowledges that he raises this double-jeopardy issue for the

first time on appeal, and he does not otherwise assert that he raised it at trial. He

contends, however, that he can raise his double-jeopardy complaint for the first

time on appeal because (1) the undisputed facts show that a double-jeopardy

violation is clearly apparent on the face of the record and (2) enforcement of the

usual rules of procedural default serve no legitimate state interest.           See

Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). The parties agree

that this legal standard applies to determine if Appellant preserved his double-

jeopardy claim for review.

      Under Gonzalez, the critical inquiry is whether the record clearly reflects a

double-jeopardy violation. See id. at 643–45. We conclude that the record here

does not and that Appellant has not satisfied the first prong of the Gonzalez test.

      There are three distinct types of double jeopardy claims: (1) a second

prosecution for the same offense after acquittal; (2) a second prosecution for the

same offense after conviction; and (3) multiple punishments for the same

offense. Langs v. State, 183 S.W.3d 680, 685 (Tex. Crim. App. 2006).

      Double jeopardy is not apparent on the face of the record here because

Appellant received a single punishment for a single offense. He was found guilty


                                         12
of evading arrest, which required proof that, using a vehicle, he intentionally fled

from a person he knew to be a peace officer attempting lawfully to arrest or

detain him.   See Tex. Penal Code Ann. § 38.04(a), (b)(2)(A) (Vernon Supp.

2010). The jury also found that the manner in which Appellant had used the

vehicle in committing the offense made it a deadly weapon.

      Even if Appellant did not forfeit his multiple punishments double jeopardy

claim, we rely on our reasoning in Martinez v. State, 883 S.W.2d 771, 772–73

(Tex. App.––Fort Worth, pet. ref’d), to hold that the deadly weapon finding here

does not amount to double jeopardy.

      Under the penal code in effect at the time Appellant committed the offense,

evading arrest using a motor vehicle was punishable as a state jail felony. Tex.

Penal Code Ann. § 38.04(b)(1) (Vernon Supp. 2010). Section 12.35 of the penal

code required that one found guilty of a state jail felony be punished for a third-

degree felony if it was shown at trial that a deadly weapon was used. Id. § 12.35.

      In Martinez, the defendant was convicted of involuntary manslaughter as a

result of driving while intoxicated. Martinez, 883 S.W.2d at 772. The jury found

that the vehicle Martinez was driving was a deadly weapon. Id. On appeal,

Martinez made the same argument as Appellant––that the deadly weapon finding

violated his right to be free of double jeopardy because the action supporting the

deadly weapon finding (driving a vehicle while intoxicated) was also an essential

element of the charged offense. Id.




                                        13
      We rejected that argument then and we reject it now. Section 12.35 of the

penal code makes no exception for enhancement of felonies when the

instrumentality alleged to be a deadly weapon is also an essential element of the

offense. State v. Brown, 314 S.W.3d 487, 490 Tex. App.––Texarkana 2010, no

pet.); see Patterson v. State, 769 S.W.2d 938, 940 (Tex. Crim. App. 1989)

(agreeing with lower court’s conclusion that ―all felonies are theoretically

susceptible to an affirmative finding of use or exhibition of a deadly weapon‖);

Martinez, 883 S.W.2d at 774. Moreover, a person could evade arrest with a

vehicle without using the vehicle as a deadly weapon.          The enhancement,

therefore, comes from using a vehicle in a manner that subjects others to the risk

of death or serious bodily injury, not by merely using a vehicle. Thus, here,

Appellant was found guilty of a state-jail felony, which his use of a deadly

weapon enhanced to a third-degree felony: one offense, one punishment. We

overrule point five.

                                 VI. Conclusion

      Having overruled all of Appellant’s points, the judgment is affirmed.



                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: WALKER, McCOY, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 3, 2011


                                        14
