                                           ORIGINAL
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                                COURT OF CRIMINAL APPEALS
                                      MAY 26 2015

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                                          FILED IN
                                  COURT OF CRiMINAL APPEALS

                                        MAY 27 2015

                                      Abel Acosta, Cierk


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                                      10
                                               EBB B. MOBLEY
                                                    ATTORNEY AT LAW
                                       422 NORTH CENTER STREET-LOWER LEVEL
                                                         P. O. BOX 2309
                                                 LONGVIEW, TEXAS 75606
                                                  Telephone: (903) 757-3331
                                                     Fax: (903) 753-8289


          March 3, 2015

          Herron Duckett                                    CMRRR: 7011 1570 0001 6360 5575
          Inmate #1920602
          Eastham Unit
          2665 Prison Road #1
          Lovelady, Texas 75851


                                 Re: Appeal No. 06-14-00060-CR
                                      Duckett v. State


          Dear Mr. Duckett:


                     Enclosed is a copy of the opinion that denies your appeal.

                     Under Texas Rule of Appellate Procedure 48,1 must advise you that you have the right to
          file a pro se Petition for Discretionary Review of this opinion within 30 days of the opinion
          (April 2, 2015). Jhe^etition shouIdTTe-^ent to:

0W* for^
       I jJ>^ JrY
              / Af Clerk
                   Court ofCriminal Appeals
 ff)^ ^                     P.O.Boxl2308
 Id h<d          I          Austin, Texas 78711
w         Very Tr)&LV Yours,



          Ebb B. Moblley

          kk/


           enc



           cc:       Bennie Duckett
                     Tony Duckett
                        In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-14-00060-CR




         HERRON KENT DUCKETT, Appellant

                            V.


           THE STATE OF TEXAS, Appellee




         On Appeal from the 124th District Court
                 Gregg County, Texas
               Trial Court No. 43,063-B




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                          MEMORANDUM                              OPINION

         A Gregg County jury convicted Herron Kent Duckett of evading arrest with a vehicle,1
 made an affirmative finding that Duckett used or exhibited a deadly weapon in the course ofthat
 evasion, and directed that he serve forty years in prison. Duckett argues on appeal that the
 evidence was insufficient to support the deadly-weapon finding. We disagree with Duckett and
affirm the trial court'sjudgment.2

         Duckett quarreled with his girlfriend and then drove away in her 2005 Jeep Liberty,
causing her to alert the police. Longview police officer Steven Burt responded to Duckett's

girlfriend's 9-1-1 call and spotted the Jeep about 3:00 a.m. in the parking lot of the apartment
complex where she lived. Burt activated the overhead lights on his police car, but instead of

stopping, Duckett drove the Jeep rapidly out ofthe parking lot and onto a public road. Burt gave
chase with his lights ablaze and his siren sounding; another patrol car driven by Longview police
officer Kendric Montgomery3 joined the chase as the first two vehicles left the parking lot. The
chase continued through the streets of Longview, and after the string ofcars exited the Longview
city limits, they were joined by two vehicles driven by Gregg County sheriff deputies, who
followed the police officers. Describing the circumstances under which the chase took place,
Burt stated, "Driving conditions were clear, drypavement," with "[v]ery light traffic."



xSee Tex. Penal Code Ann. §38.04 (West Supp 2014).
The State alleged and proved multiple prior felony convictions, and Duckett was sentenced to forty years'
imprisonment.

The dash-camera (dash-cam) video recorder in Burt's Chevrolet Tahoe SUV failed to turn on properly when he
activated his overhead lights. The dash-cam video recorder in Montgomery's Tahoe recorded the pursuit.
          Mostof the chase occurred on a four-lane road, often with a turn lane in the middle. Burt

 said Duckett reached speeds of 95 to 100 miles per hour (mph). Burt said Duckett did not drive
 in an erratic fashion, and for the most part, Duckett neither left his lane oftraffic nor jumped
 curbs as he sped. Montgomery's video recording, however, did reflect that Duckett crossed well

 into the two oncoming lanes of traffic before negotiating a wide-right turn onto a two-lane street.
The neighborhood where the chase commenced is shown on the video recording to be primarily
populated with businesses, but the path of the chase progressed through a variety of settings,
traveling through rural areas, returning to business-dominated locales, and then returning to
primarily rural areas. When Duckett made the wide right turn mentioned above,4 he entered onto

a paved, two-lane road for a short distance before turning onto an unpaved road. While

travelling down the unpaved road, Duckett exited from the road and crossed a residential yard.
Burt testified that along this stretch ofthe chase, Duckett drove through a yard and "[took] out" a
mailbox.5 Eventually, Duckett crashed through a barbed-wire fence and another fence or gate,
finally stopping when he hit a tree. The windshield of the Jeep bore a large break, and officers
said they saw blood and bits of hair on the inside of the glass. From these observations and the

fact that (when finally subdued) Duckett was bleeding from his face, the officers opined that
Duckett had struck his head on the inside of the windshield on impact with the tree.

         Duckett attempted to continue his flight on foot, but Burt tackled him. Even then,

Duckett did not willingly submit to the officers' physical restraint. Burt applied a headlock to

4Duckett appears tohave signaled his intent to turn.

5The State asked, "And did it take out a mailbox?" Burt replied, "Yes, sir." We interpret this testimony as a
colloquial way ofsaying Duckett's vehicle ran over ordestroyed a mailbox.
 Duckett, and Montgomery shot Duckett with a Taser. Even so, Duckett continued to struggle,
 and Burt administered blows to Duckett's body and head. The officers eventually handcuffed
 Duckett and placed him under arrest.

         Montgomery corroborated much of Burt's testimony. Montgomery said he stayed a
distance back from the first two vehicles, lest there be insufficient room for him to avoid a pileup
in the event of a traffic accident. He concurred with Burt's testimony saying that the speed of
the chase varied between 50 and 90 mph, and he agreed that Duckett's driving "was not erratic,
just - just speeding." The video recording from Montgomery's vehicle shows the Duckett-led

chase encountering only a handful of vehicles. Four vehicles were encountered in the oncoming
lanes; all of these vehicles appeared to have been in the outside lane (farthest from the caravan

that made up the chased car and the chasers).6 It appears from the video recording that when
Duckett was on the four-lane road portion of the chase, he stayed on the inside or passing lane
portion ofthe roadway. Duckett overtook and passed three vehicles during this leg of the chase
and passed them quite quickly, indicating that he was traveling at a much higher rate of speed
than the other cars and was in close proximityto those vehicles. As the chase returned from the

more rural areas into an area populated by businesses, one vehicle exited the road upon which
the chase was proceeding. From the perspective of Montgomery's dash camera, it appears that
Duckett passed this car either before it entered the exit lane or as it did so. Duckett led his

pursuers through several intersections. Duckett's high-speed driving would have likely posed
danger to others at any of those intersections.

 It is quite possible that these vehicles were in that lane because they had been alerted to the oncoming procession
by the bright overhead emergency lights ofthe police cruisers and were attempting to stay out ofthe way.
                                                         4
          Although Burt said he did not hit or ram Duckett's vehicle with the vehicle he was

driving (and although Montgomery said, from his vantage, he saw no indication that such contact

occurred), Duckett maintained that Burt rammed his vehicle into the one driven by Duckett three
separate times, one of these causing the Jeep driven by Duckett to hit a mailbox.7 Duckett also

testified that the Jeep had a top speed ofonly 75 mph, so he said that it was impossible for him to
have surpassed that speed during the chase.                  Duckett also denied that he had struck the

windshield of the Jeep with his head. He maintained that when his vehicle finally stopped, he
exited the Jeep with his hands raised, after which the officers attacked him, causing the bloodied
head. Duckett posited that the windshield had been smashed by the police after he was taken to

jail in an effort to cover up the fact thatthey had assaulted him.8

         "A motor vehicle may become a deadly weapon if the manner of its use is capable of
causing death or serious bodily injury." Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App.
2005). On appellate review, we examine the evidence at trial in the light most favorable to the

factual determinations made at the trial level to determine whether "any rational trier of fact
could have found beyond a reasonable doubt thatthe [defendant's vehicle] was used or exhibited

as a deadly weapon." Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tisdale v. State, 686 S.W.2d 110, 114 (Tex.
Crim. App. 1985) (op. on reh'g)). To support a deadly-weapon finding, the evidence must show

that the object at issue (here, the vehicle driven by Duckett) qualifies as a deadly weapon; in

Duckett denied having an intent to evade arrest; instead, hesaid he had a "flashback" to a prior bad experience with
law enforcementofficers, leading him to resolve to drive to his father's house.

We defer to the jury in their resolution of conflicts in testimony and to judge the credibility of witnesses. See
Hooper v. State, 214 S.W.3d 9, 13(Tex.Crim. App. 2007).
                                                         5
other words, if it was, "in the manner of its use[,] . . . capable of causing death or serious bodily
injury." We look to see if "the deadly weapon was used or exhibited during the transaction on

which the felony conviction was based,"10 and if"other people were put in actual danger.""
         In Drichas, the defendant recklessly pulled out of a parking lot, causing one police officer

to slam on his brakes. He then led law enforcement officers on a high-speed chase for about

fifteen miles, running through a stop sign without stopping and disregarding other traffic signs

and signals, knocking down a construction barrier, driving for a period on the wrong side of the

road, and finally abandoning his vehicle, which continued to roll, unoccupied, eventually running

into a parked car. Drichas, 175 S.W.3d at 797-98. The Texas Court of Criminal Appeals found

that Drichas'


        manner of using his truck posed a danger to pursuing officers and other motorists
        that was more than simply hypothetical; the danger was real, and the manner in
        which appellant drove his truck made it capable of causing death or serious bodily
        injury, particularly where appellant drove on the wrong side of the highway.

Id. at 798.n

        The holding in Drichas applies to our situation in this case even though, unlike Drichas'

conduct(other than the high speeds Duckett traveled, which were almost certainly in violation of




9TEX. PenalCODE Ann. § 1.07(a)(17)(B) (West Supp 2014).
]0Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014).
 Id. '"Others' connotes individuals other than the actor himself, and danger to the actor alone does not meet the
requisite standard of deadly-weapon use." Id.

  In Drichas, the court took noteof one officer's testimony that while he saw Drichas driveon the wrong sideof the
highway, the officer "never saw any motorists swerve to avoid hitting appellant's truck, [and] stated that 'we were
meeting some trafficsomewhere around that pointthere.'" Drichas, 175 at 798 n.6.
                                                        6
 posted speed limits), we do not find evidence of Duckett's disregard of traffic signs or signals.13
The video recording reveals that Duckett encountered eight vehicles on public roadways during
his flight that were not engaged in the chase. Duckett passed four of those eight on their left,
going in the same direction.14 Based on his high rate ofspeed, a rational jury could have found
that Duckett put those drivers in danger.15                   In addition, Duckett put the pursuing law
enforcement officers in actual danger. (As mentioned before, Montgomery, realizing the dangers
posed by such a high-speed chase, said he kept well behind Burt's and Duckett's vehicles for

fear of an accident.) Near the end of his flight from the officers, Duckett sped down a narrow
road lined with houses, crossed a home's front yard, and knocked down a mailbox. Finally,
Duckett led his pursuers off of the roads into a pasture, bursting through fences, and driving
through what was described as a ravine (which was so deep that although the Longview police
officers could still follow in their SUVs, the deputy sheriffs' sedans were unable to follow).
While Brister instructs that "danger to the actor alone does not meet the requisite standard of

deadly-weapon use,"16 we find the fact that Duckett led the officers over very rough terrain
during thechase and the fact that Duckett himself demonstrated danger by running the vehicle he


  Of course, there were other violations of law that were not in violation of posted signs or signals, such as the
refusal to stop his car when being pursued by law enforcement officers with their warning lights ablaze and sirens
blaring, and the momentary straying from his lane well into the lanes designated for oncoming traffic when
preparing to turn right.

14In assessing the importance of the amount of traffic on the roads in asituation such as Duckett's, "[t]he volume of
traffic on the road is relevant only if no traffic exists." Drichas, 175 S.W.3d at 799. We observe, though, that this
comment was made in thecourt's factual sufficiency review, such review having since been abandoned. SeeBrooks
v. State, 323 S.W.3d893 (Tex. Crim. App. 2010).

 Burt testified that he had seen people struck by motor vehicles, suffering serious bodily injury or death.
l6Brister, 449 S.W.3d at 494.
 piloted into a tree as he was being chased support a finding that the pursuing police officers were
 placed indanger as they tailed the heels of the fleeing Duckett.17

         We find the evidence sufficient to allow a rational jury to have found (1) that Duckett's
 use of the vehicle he drove could have caused death or serious bodily injury, (2) that Duckett
 used this vehicle in the felony offense of evading arrest ordetention with a vehicle, and (3) that
others were put in actual danger as a result of Duckett's actions. We overrule Duckett's point of
error.



         We affirm the trial court's judgment and sentence.




                                                     Bailey C. Moseley
                                                     Justice


Date Submitted:           February 11, 2015
Date Decided:             March 3,2015

Do Not Publish




 The violence of the driving caused part ofthe bumper on Burt's police vehicle to fall off; this occurred when Burt
followed Duckett through a barbed-wire fence.
