Unique Lanae McKinney v. The State of Texas--Appeal from 167th District Court of Travis County (per curiam)
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NO. 07-12-0206-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
FEBRUARY 13, 2013
__________________________________
UNIQUE MCKINNEY,
Appellant
V.
THE STATE OF TEXAS,
Appellee
__________________________________
FROM THE 167TH DISTRICT COURT OF TRAVIS COUNTY;
NO. D-1-DC-12-904005; HON. MIKE LYNCH, PRESIDING
__________________________________
Memorandum Opinion
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Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ
Unique McKinney (appellant) appeals her conviction for evading arrest. In effort
to avoid arrest, she sped away in a car through city streets, crossed into oncoming
traffic, drove in and out of traffic, ran red lights, and eventually struck another vehicle.
The person operating the vehicle appellant struck was taken to the hospital. Her two
issues concern the sufficiency of the evidence underlying the deadly weapon finding
and the trial court's decision to admit into evidence a recording of a phone conversation
in which appellant allegedly engaged while in jail. We affirm.
Issue One – Deadly Weapon Finding
Appellant contends that the evidence was insufficient to establish that the vehicle
she drove constituted a deadly weapon. We disagree.
The pertinent standard of review is described in Brooks v. State, 323 S.W.3d
893, 894-95 (Tex. Crim. App. 2010).
Next, a “deadly weapon” is “anything manifestly designed, made, or adapted for
the purpose of inflicting death or serious bodily injury; or . . . anything that in the manner
of its use or intended use is capable of causing death or serious bodily injury.” TEX.
PEN. CODE ANN. § 1.07(a)(17)(A) & (B) (West Supp. 2012). A motor vehicle can be a
deadly weapon when its use or exhibition actually endangers life, i.e. when it does more
than simply present a mere potential for endangering others.
Cates v. State, 102
S.W.3d 735, 738 (Tex. Crim. App. 2003), citing Mann v. State, 13 S.W.3d 89, 92 (Tex.
App.–Austin 2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001); Pue v. State, No. 0709-0020-CR, 2009 Tex. App. LEXIS 4962, at *2-3 (Tex. App.–Amarillo June 30, 2009, no
pet.) (mem. op., not designated for publication).
Here, appellant drove at speeds
approaching 90 to 100 mph over three miles while swerving into oncoming traffic,
weaving in and out of traffic, running stop lights, crossing into the “wrong lane” of traffic
to pass vehicles, and ultimately striking another car while driving in the wrong traffic
lane.
This is some evidence upon which a rational jury could conclude, beyond
reasonable doubt, that appellant’s vehicle actually endangered others and thus,
constituted a deadly weapon. See Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim.
2
App. 2005) (holding evidence of the vehicle driving on the wrong side of the highway as
legally sufficient to support a deadly weapon finding); see also Davis v. State, No. 0704-0104-CR, 2005 Tex. App. LEXIS 9745 (Tex. App.–Amarillo November 22, 2005, pet.
ref’d) (mem. op., not designated for publication) (holding that evidence of appellant’s
ignoring a stop sign and driving through an intersection without stopping, driving through
a residential area at speeds up to 60 miles per hour, and continuously ignoring the
patrol car’s emergency lights was legally sufficient evidence to support the finding that
he used his vehicle as a deadly weapon).
Issue Two – Admission of Evidence
Appellant next complains of the trial court's decision to admit a recorded jail
statement. It allegedly was inadmissible due to the lack of authentication. We overrule
the issue.
Assuming arguendo that the recording was inadmissible, we nevertheless
conclude that the matter was harmless. The evidence supporting appellant's conviction
for evading arrest was quite overwhelming. And, while effort was made to try and
authenticate the recording via a witness, that effort was not time consuming. Nor did
the prosecutor overly emphasize the recording during closing arguments; it was simply
mentioned twice. 1 Given this, we cannot say that the decision to admit the evidence
affected appellant's substantive rights. See Motilla v. State, 78 S.W.3d 352, 355-56
(Tex. Crim. App. 2002) (holding that Texas Rule of Appellate Procedure 44.2(b)
provides that non-constitutional error is error “that does not affect substantial rights” of
the complainant and that “the character of the alleged error and how it might be
1
The comments made in the recorded phone call relied on by the prosecutor were “[h]e kept
coming, so I hit his bitch ass, and then she was going to crank it back up, she says in the jail call, and
leave.”
3
considered in connection with other evidence in the case” are factors to consider in the
harm analysis).
Accordingly, we affirm the judgment of the trial court.
Per Curiam
Do not publish.
4
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