Jessie Lee Shaw v. The State of Texas--Appeal from 6th District Court of Lamar County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-05-00238-CR
______________________________
JESSIE LEE SHAW, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th Judicial District Court
Lamar County, Texas
Trial Court No. 20876
Before Morriss, C.J., Ross and Carter, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Jessie Lee Shaw was convicted by a Lamar County jury of using a motor vehicle in evading arrest or detention. The jury found Shaw used or exhibited the automobile as a deadly weapon. Shaw elected to have the trial court assess punishment. Shaw pled true to having been previously convicted for two prior felony offenses enhancing the punishment range. (1) The trial court sentenced Shaw to forty years' incarceration. We affirm the trial court's judgment, as we find that the evidence was legally and factually sufficient. (2)

The Chase

On June 12, 2005, around 6:00 p.m., Officer Vance Boller (3) had just finished his shift for the Paris Police Department and picked up his two daughters from their day care facility. On the west side of town, at a local wrecker service, which Boller knew to be closed at that time of day, Boller saw a white car backed up to the business' fence, and a male loading the car with items from inside the fence. The male was later identified as Shaw. Finding this activity suspicious, Boller called dispatch to suggest an on-duty officer investigate. After being told there were no available officers, Boller parked his truck about seventy-five yards away and continued to watch Shaw load his vehicle. After a while, Boller approached Shaw. When Shaw saw Boller, who was still in his police officer's uniform, Shaw entered his vehicle, without closing the trunk or the car door, and sped away. Boller returned to his personal vehicle and pursued. Boller called dispatch and was told no officers were immediately available to pursue Shaw. At some point, Trooper Greg Wilson of the Texas Department of Public Safety joined the pursuit, and Boller allowed Wilson to take the lead. Soon thereafter, Paris police officer J. D. Simmons placed "stop sticks" on a road in Shaw's path; after Shaw's vehicle crossed the stop sticks (puncturing two of Shaw's tires), Simmons joined the chase.

Shaw proceeded to lead the officers on a high-speed chase, reaching approximately sixty miles per hour in a residential zone where the speed limit was forty-five. During this chase, Shaw passed other vehicles in a nonpassing zone; Boller specifically testified that Shaw led the officers through a residential and "[h]igh pedestrian area" where there was "pretty good traffic." At some points, as Shaw passed other vehicles on the road, there were "a couple" of other vehicles between Shaw and Boller. Boller said there were "a lot of vehicles" on the road as Shaw traveled from Campbell to Graham Streets. Shaw's chase also included: running at least two stop signs; driving through a dip in the road at such speed that his car became airborne momentarily; and traveling as much as a mile after the "stop sticks" punctured at least two of his tires. After crossing the "stop sticks," Shaw ran a stop sign and crossed Loop 286, where intersecting traffic was not required to stop. Boller testified that that particular intersection was "a heavily travel[e]d area" where "major accidents" had occurred. Shaw finally came to a stop in the entrance to the local Kimberly Clark factory.

Analysis

Shaw's sole points on appeal contend the evidence was legally and factually insufficient to sustain the jury's finding that he used or exhibited the car which he drove as a deadly weapon. In a somewhat similar situation, we recently reversed a finding of a car being used as a deadly weapon in an evading arrest conviction. (4) There, we found the evidence legally and factually insufficient to support the deadly weapon finding where there was "no evidence" Drichas' reckless driving actually endangered another person, and thus, the evidence was legally and factually insufficient to support the deadly weapon finding. Drichas, 152 S.W.3d at 638-39. The Texas Court of Criminal Appeals reversed our holding. As regards our analysis of the legal sufficiency of the evidence, the Texas Court of Criminal Appeals said 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 [Drichas] drove his truck made it capable of causing death or serious bodily injury . . . . " Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005). As for our finding that the evidence was factually insufficient to support a deadly weapon finding, (5) the Texas Court of Criminal Appeals stated, "[t]he volume of traffic on the road is relevant only if no traffic exists," and capability to cause death or serious bodily injury "is evaluated based on the circumstances that existed at the time of the offense." Id. at 799 (citing Williams v. State, 946 S.W.2d 432, 435-36 (Tex. App.--Fort Worth 1997), rev'd in part on other grounds, 970 S.W.2d 566 (Tex. Crim. App. 1998)). On remand, we applied the Texas Court of Criminal Appeals' language in Drichas as follows: "although the danger to some other motorist must be actual (not just hypothetical), some unspecified degree of proximity is necessary to show that actual danger existed, even though no person was actually endangered." Drichas v. State, 187 S.W.3d 161, 163 (Tex. App.--Texarkana 2006, pet. filed). We examined the record to determine whether there was sufficient evidence that "there was another motorist present on the roadway 'at the same place and time' as Drichas when he drove in a reckless manner." Id. at 166. Under such analysis, we again concluded the evidence was factually insufficient. Id.

Shaw's Case

The instant case is markedly different from that presented in Drichas. Officer Boller testified that, in his opinion, Shaw operated his car, during the chase, in a way that made the car a deadly weapon. Boller witnessed Shaw pass other vehicles in no-passing zones and drive through a residential area at a high rate of speed. Shaw led officers through a "[h]igh pedestrian area" where other cars were present. Boller described the roads during the chase as having "pretty good traffic," and sometimes there were a "couple of cars" between Shaw and Boller as Boller pursued. A video from Officer Simmons' car shows Simmons placing the "stop sticks"; Shaw's car crossing over the "stop sticks" and passing Simmons; and then Simmons participating in the last minutes of the chase. As Simmons joins the pursuit, at least one vehicle can be seen to have pulled over for Simmons, and as many as five to eight vehicles (other than law enforcement vehicles) are seen at the intersection where Shaw's vehicle came to a stop. Boller specifically said that, during the chase, there were other vehicles on the road.

Based on the circumstances present and evidence admitted, we find this case distinguishable from Drichas. Shaw's use of his vehicle "was more than simply hypothetical; the danger was real." Drichas, 175 S.W.3d at 798. There was ample evidence of other vehicles on the roads as Shaw led officers on this pursuit. The evidence was legally and factually sufficient to sustain the jury's conviction.

We affirm the judgment.

 

Jack Carter

Justice

 

Date Submitted: August 30, 2006

Date Decided: October 20, 2006

 

Do Not Publish

 

1. Evading detention with a motor vehicle is a state-jail felony. See Tex. Penal Code Ann. 38.04(b)(1). With an affirmative finding of the use of a deadly weapon, it becomes a third-degree felony. See Tex. Penal Code Ann. 12.35(c)(1). Enhancing the third-degree felony with two prior felony convictions increases the punishment range to imprisonment for life or any term of years not more than ninety-nine years or less than twenty-five years. Tex. Penal Code Ann. 12.42(d).

2. We review the legal sufficiency of the evidence by determining whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).

 

The Texas Court of Criminal Appeals has very recently modified the factual sufficiency review. In a factual sufficiency review, we view all the evidence in a neutral light and determine whether the evidence supporting the verdict is so weak that the jury's verdict is clearly wrong and manifestly unjust or whether the great weight and preponderance of the evidence is contrary to the verdict. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000); see Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996); Watson v. State, No. PD-0469-03 (Tex. Crim. App. Oct. 18, 2006), available at http://www.cca.courts.state.tx.us/OPINIONS/ HTMLOPINIONINFO.ASP?OPINIONID=14579.

3. The State advises that the officer's name is correctly spelled "Boehler." However, we use the spelling of the court reporter in the reporter's record.

4. See Drichas v. State, 152 S.W.3d 630 (Tex. App.--Texarkana 2004), rev'd, 175 S.W.3d 795 (Tex. Crim. App. 2005).

5. In our original opinion, we noted that the record before us was devoid of any evidence or any of the pursuing "officers or any other person were actually endangered" by Drichas' driving. Drichas, 152 S.W.3d at 638.