Donald Ray Cates aka Don Ray Cates v. The State of Texas--Appeal from 18th District Court of Johnson County

Donald Ray Cates aka Don Ray Cates v. The State of Texas /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-00-061-CR

 

DONALD RAY CATES AKA DON RAY CATES,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 18th District Court

Johnson County, Texas

Trial Court # F33484

O P I N I O N

Appellant Cates appeals his conviction for escape by use or threatened use of a deadly weapon to effect such escape, for which he was sentenced to Life in the Texas Department of Criminal Justice, Institutional Division.

Appellant was charged by indictment:

Count One, Paragraph One:

Appellant, on July 21, 1999, escaped from the custody of Deputy Monica Thorpe following his conviction for the felony offense of possession of a controlled substance, and used or threatened to use a deadly weapon, namely a firearm, to effect his escape.

 

Count One, Paragraph Two:

Appellant, on July 21, 1999, escaped from the custody of Deputy Monica Thorp following his conviction for the felony offense of possession of a controlled substance, and caused bodily injury to Deputy Thorp to effect his escape.

 

Count Two:

Appellant, on July 21, 1999, caused bodily injury to Deputy Monica Thorp, knowing that Deputy Thorp was a public servant lawfully discharging an official duty.

The indictment alleged seven prior felony convictions as enhancements.

The jury found appellant guilty on Count One, Paragraph One; Count One, Paragraph Two; and Count Two; made a deadly weapon finding in Count One, Paragraph One; found all seven enhancements to be True; and assessed appellant Life on Count One, Paragraph One, and 75 years in both Count One, Paragraph Two and Count Two.

Appellant asserting two issues, appeals only his conviction on Count One, Paragraph One, for which he was assessed Life.

Issue One: The evidence was insufficient to sustain a conviction for escape by means of the use or threatened use of a deadly weapon where the undisputed evidence was that appellant at no time had possession or control of the weapon alleged.

Issue Two: The evidence was insufficient to sustain an affirmative finding of the use of a deadly weapon in the commission of an offense where the undisputed evidence was that appellant at no time during the commission of the offense had possession or control of a deadly weapon.

On July 21, 1999, appellant was convicted of felony possession of a controlled substance. At about 5 p.m., after that trial, Johnson County Sheriff s Department Transport Officer Monica Thorp placed handcuffs on appellant and placed appellant in the back seat of the sheriff s vehicle to transport appellant back to the jail. Appellant managed to remove his handcuffs, climbed over into the front seat, and struck Deputy Thorp on the right side of her head with his fist. Momentarily stunned by the blow to her head, Thorp s first thought was to reach for her weapon, a .357 Smith & Wesson. As she reached for her weapon, she felt appellant s hand on the gun trying to pull it from the holster. As Thorp struggled to prevent appellant from getting the weapon out of the holster with her right hand, she attempted to steer away from parked cars with her left. She also tried to stop the car by hitting her brakes, but appellant countered by stepping on the accelerator.

As a result of the struggle, Thorp s vehicle hit the curb, blew out two tires, and came to a stop. Appellant exited the car, commandeered another vehicle, and continued his flight. He was later apprehended in Tennessee and returned to Texas, where he was indicted for his escape.

Appellant contends the evidence was insufficient to prove that appellant used or threatened to use a deadly weapon during the commission of the offense of escape.

Tex. Pen. Code, Section 38.06 Escape, provides:

(a) A person commits the offense if he escapes from custody when he is

(1) under arrest for, charged with, or convicted of an offense . . .

(e) An offense under this section is a felony of the first degree if to effect his escape the actor . . .

(2) uses or threatens to use a deadly weapon.

A firearm is per se a deadly weapon. Tex. Pen. Code, Section 1.07(a)(17)(A).

Appellant was in custody and had been convicted of a felony when he escaped while being transported back to the jail. The offense was a felony if he used or threatened to use a deadly weapon to effectuate his escape.

In Patterson v. State, 769 S.W.2d 938, 941, the Court of Criminal Appeals in 1989 stated use is commonly employed to describe conduct in which the verb s object, again, in this case a deadly weapon, is utilized in order to achieve a purpose. In other words, the deadly weapon must be utilized, employed, or applied in order to achieve its intended result: the commission of a felony offense or during immediate flight therefrom.

In McCain v. State, 22 S.W.3d 497, the Court of Criminal Appeals, citing Patterson, held that the determining factor in determining whether a deadly weapon was used is whether the deadly weapon was used in facilitating the underlying crime, which here was escape.

In reviewing the legal sufficiency, we view the evidence in the light most favorable to the verdict, and ask whether any rational trier of fact could have found beyond a reasonable doubt all the elements of the offense. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996); Santellan v. State, 939 S.W.2d 155, 160 (1997).

In reviewing the factual sufficiency, we view all the evidence without the prism in the light most favorable to the prosecution. Clewis v. State, 922 S.W.2d 126, 131 (Tex. Crim. App. 1996); Santellan, Id., p. 164, 165. We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. State, 955 S.W.2d 404, 410 (Tex. Crim. App. 1997); Santellan, Id., p. 164.

Appellant contends that absent evidence that the appellant had possession and control of the gun that neither a conviction for such offense nor an affirmative finding of the use of a deadly weapon during the commission of the offense can be sustained. We reject appellant s contention.

A rational trier of fact could have found beyond a reasonable doubt that appellant s grabbing Thorp s weapon was to facilitate his escape. Thus, a deadly weapon was used or threatened to be used in the escape.

The evidence was both legally and factually sufficient to support the jury s findings that a deadly weapon was used or threatened to be used by appellant to effect his escape.

Both of appellant s issues and the contentions made thereunder are overruled.

The judgment is affirmed.

 

FRANK G. McDONALD

Chief Justice (Retired)

 

Before Chief Justice Davis,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed October 18, 2000

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