Clark v. State

573 S.W.3d 367

Delbert Ray CLARK Jr., Appellant

v.The STATE of Texas, Appellee

NO. 09-17-00401-CR

Court of Appeals of Texas, Beaumont.

Submitted on February 13, 2019

Opinion Delivered March 27, 2019

Brett W. Ligon, District Attorney, Brent Chapell, Assistant District Attorney, Conroe, for Appellee.

Darin J. Ray, Duckworth and Ray, LLP, Conroe, for Appellant.

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

CHARLES KREGER, Justice

Delbert Ray Clark, Jr. was indicted for the offense of evading arrest or detention with a motor vehicle, a third-degree felony. See Tex. Penal Code Ann. § 38.04(a), (b) (West 2016). The indictment included an allegation that Clark used a motor vehicle as a deadly weapon. See Tex. Penal Code Ann. § 1.07(a)(17)(B) (West Supp. 2018). The indictment also contained an enhancement paragraph regarding his prior felony convictions. See generally Tex. Penal Code Ann. § 12.42 (West Supp. 2018).

Clark entered an open plea of guilty to the offense of evading arrest or detention with a motor vehicle and pled true to the prior felony convictions but contested the charge that he used a motor vehicle as a deadly weapon. The deadly weapon issue and punishment were tried to the court. The trial court made an affirmative finding on the deadly weapon issue. The third-degree felony of evading arrest or detention with a motor vehicle was enhanced to a second-degree felony due to Clark’s prior felony convictions, and the trial court sentenced Clark to ten years confinement in the Institutional Division of TDCJ.

In a single issue on appeal, Clark argues the evidence was insufficient to support the trial court’s affirmative finding that he used a motor vehicle as a deadly weapon since no person was placed in actual danger by his motor vehicle during the commission of the charged offense. We sustain his issue and modify the judgment accordingly.

Background

Clark admitted to evading arrest or detention, and video evidence captured the event in its entirety. The disputed issue in this case is whether Clark used his vehicle as a deadly weapon during the offense of evading arrest or detention.

The Montgomery County Deputy Constable who made the arrest testified that on the night of July 15, 2017, he was working an approved extra employment assignment for a granite company in Conroe in a marked patrol car and in full uniform. The officer testified he observed headlights coming down the road which caught his attention, because he knew no one was supposed to be in that area. The officer explained there was only one house at that end of the road, and multiple law enforcement agencies had recently raided it. The officer testified that as the vehicle approached a stop sign, he turned on the headlights of his patrol car. He observed the vehicle suddenly stop, the driver’s side door open, and then the car reverse very quickly. The officer spotlighted the car to try to determine the identity of the driver. He testified that he had not yet turned on his overhead patrol lights, only his headlights, and continued to monitor the driver’s movements.

According to the officer, the vehicle then accelerated at a high rate of speed, ran a stop sign, and turned left, traveling directly towards the officer. The officer described Clark’s driving as "very erratic and reckless." As Clark drove off the road toward some mailboxes, placing the officer directly in Clark’s path and in danger of being hit on his driver’s side door, the officer took evasive action by quickly reversing his patrol car. The officer testified that Clark’s vehicle would have struck him if he had not moved. When Clark passed the officer’s patrol car, Clark’s vehicle had already reentered the roadway. The officer then activated his overhead patrol lights as Clark’s vehicle passed in front of the patrol car. There was no evidence offered that the arresting officer attempted to stop or detain Clark at any time before Clark’s vehicle passed by the officer’s patrol car.

After the officer turned on his overhead patrol lights, Clark continued to accelerate and tried to evade him. According to the officer, Clark ran a stop sign and accelerated at a high rate of speed down the road until the vehicle ran another stop sign and "wrecked out." The speed limit was 30 miles per hour on the road where Clark was driving, and the officer testified he paced Clark at approximately 60 miles per hour. The officer indicated the chase occurred in a residential area, and Clark traveled about a mile from where he fled. Once Clark wrecked into a ditch, he jumped out of the driver’s door and ran a short distance before he stopped and was apprehended. According to the officer, Clark admitted that the officer scared him when he spotlighted him, which was why he fled.

On cross-examination, the arresting officer agreed that he did not have his overhead patrol lights on when Clark passed by his patrol car but that he turned on his overhead patrol lights as Clark passed in front of the patrol car. The arresting officer denied that Clark was trying to evade him when the officer first activated his overhead patrol lights; instead, it was the officer’s opinion that Clark became aware he was trying to stop him a few seconds after the overhead patrol lights were activated.

The dash cam video from the officer’s patrol car was admitted into evidence and played for the court. The video showed Clark’s vehicle passing in front of the officer’s patrol car approximately one second after the officer activated the overhead patrol lights. The video also shows Clark’s car does not appear to be very near to the patrol car as it passes in front of it, traveling in the roadway. While the video shows Clark rolled through two stop signs, it also shows Clark applied the brakes several times and activated his blinkers before turns. The pursuit lasted about one minute. In the video, no other motorists are visible on the roadway during the brief chase, and the pursuing officer remained some distance behind Clark’s vehicle.

The video shows Clark admitting to using methamphetamine prior to the incident and repeatedly saying he was on his way to pick up drugs. At one point in the video, the officer asked Clark why he reversed his vehicle, and Clark responded that he did not know who or what the officer was when the spotlight came on. Clark said he was scared and had had trouble in the past with people on that road.

The officer testified that there were no vehicles on the road besides Clark’s and his patrol car. The officer admitted there was no evidence that anybody’s life was in danger during the brief chase except his own.

Clark testified that he was leaving the area after getting high, and when he pulled up to a stop sign, the deputy scared him when he turned his headlights on. Clark indicated he opened his door, so he could back up and turn around, but then the officer "hit [him] with his spotlight" and he "took off." Clark testified he did not know the other vehicle was law enforcement at that time. Clark indicated he did not realize he drove toward the deputy’s vehicle or recall going near the deputy’s vehicle. Clark denied it was his intent to threaten the deputy, hit him, or run him over. Clark confirmed he knew at some point later that an officer was attempting to detain him. Clark testified he did not believe he drove the car in such a way that it would be considered a deadly weapon and denied trying to hurt anybody with the car. Nevertheless, Clark confirmed he knew there was a police officer behind him, and he saw the overhead patrol lights once they were activated. Clark indicated he did not pull over because he did not want to return to jail. Clark ultimately admitted he was on his way to retrieve drugs from gang members.

Standard of Review

Clark argues the evidence is legally and factually insufficient to support the trial court’s affirmative finding on the deadly weapon issue.¹ When there is a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. See Brooks v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ) (concluding the Jackson standard "is the only standard that a reviewing court should apply" when examining the sufficiency of the evidence); Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citations omitted). The factfinder is the sole judge of the witnesses' credibility and weight to be given to their testimony. Tate v. State , 500 S.W.3d 410, 413 (Tex. Crim. App. 2016) (citations omitted). A factfinder may draw multiple reasonable inferences so long as each inference is supported by the evidence presented at trial. Hooper , 214 S.W.3d at 15. Accordingly, we are required to defer to the factfinder’s determinations of weight and credibility of the witnesses. See Brooks , 323 S.W.3d at 899. As we noted in another case involving a deadly weapon finding, "[o]ur duty, as a reviewing court, is not to reweigh the evidence from reading a cold record but to act as a ‘due process safeguard ensuring only the rationality of the factfinder.’ " Brister v. State , 414 S.W.3d 336, 342 (Tex. App.—Beaumont 2013, pet. granted) ( Brister I ), aff'd , 449 S.W.3d 490 (Tex. Crim. App. 2014) ( Brister II ) (quoting Williams v. State , 937 S.W.2d 479, 483 (Tex. Crim. App. 1996) ).

Analysis

Ultimately, we must determine, in viewing the evidence in the light most favorable to the verdict, whether a rational factfinder could find beyond a reasonable doubt that Clark 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) (citing Cates v. State , 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) ). To be legally sufficient to sustain a deadly weapon finding, the evidence must show: "...