JOHN DAVID HILL v. THE STATE OF TEXAS (2018)

MEMORANDUM OPINION

When Constable Ed Shadbolt attempted to stop a pickup truck driven by John David Hill on U.S. Highway 80 approaching Mineola, Hill initially slowed his vehicle and pulled onto the shoulder. Instead of coming to a full stop, Hill continued driving on the shoulder at a moderate speed, eventually re-entering the right-hand lane of the four-lane highway and continuing into Mineola. The pursuit ended when Hill made a wide left turn, drove in close proximity to a convenience store gasoline pump, and then drove into a fence. Consequently, a Wood County jury found Hill guilty of evading arrest or detention with a vehicle ¹ and found that Hill had used his pickup as a deadly weapon. After the State's enhancement allegations were found true, Hill was assessed a sentence of ninety-nine years' imprisonment.

On appeal, Hill complains that there was insufficient evidence ² to support the jury's deadly-weapon finding, that the trial court erred in admitting evidence of a prior conviction that was not properly certified, and that his first two issues combined to be cumulative error that resulted in an improper sentence. Because (1) sufficient evidence supports the deadly-weapon finding, (2) Hill's complaint regarding Exhibits 1A and 1B is without merit, and (3) there was no cumulative error, we will affirm the trial court's judgment. However, we will modify the judgment to reflect that Hill was convicted of a third degree felony.

(1) Sufficient Evidence Supports the Deadly-Weapon Finding

In reviewing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks, 323 S.W.3d at 912 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the trier of fact “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19).

Legal sufficiency of the evidence is measured by the elements of the offense as defined by a “hypothetically correct jury charge.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Horton v. State, 394 S.W.3d 589, 592 (Tex. App.—Dallas 2012, no pet.). The hypothetically correct jury charge “sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Malik. 953 S.W.2d at 240.

To sustain a deadly-weapon finding, the evidence must show beyond a reasonable doubt (1) that Hill used or exhibited a motor vehicle in a manner that was capable of causing death or serious bodily injury, (2) during the commission of evading arrest or detention while using a vehicle, and (3) other people were placed in actual danger. See Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014) (citing Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim. App. 2005)); Sierra v. State, 280 S.W.3d 250, 255 (Tex. Crim. App. 2009); Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003).

Hill contends that the evidence was insufficient to support the finding that he used his vehicle as a deadly weapon. He challenges the evidence supporting the first and third elements, but does not contest that he used a vehicle while evading arrest or detention.

At trial, the jury viewed a video recording taken from Shadbolt's in-car dash camera while he testified. Shadbolt said that he attempted to pull Hill over around 9:45 p.m. because his tail lights and license plate lights were not working. At the time, they were on Highway 80, a four-lane, divided highway, approaching Mineola from the west. The video recording showed that Hill applied his brakes, slowed, put on his right turn signal, and pulled completely onto the paved shoulder, but that he did not stop. Hill continued driving on the shoulder at a moderate rate of speed and eventually returned to the outside lane about forty-five seconds after driving onto the shoulder. During this time, although there were several cars that were traveling on the opposite side of the highway, the only car traveling in the same direction pulled ahead when Hill first slowed down and continued traveling far ahead of him. Hill continued traveling in the outside lane at a moderate speed and entered Mineola, where he passed a vehicle traveling in the inside lane, all the while remaining in his lane. As Hill continued driving in Mineola, he passed through a flashing yellow light without slowing and through two red lights without slowing or stopping. Shadbolt testified, and the video recording confirmed, that there were no vehicles or pedestrians at these intersections, except one vehicle stopped at the second light, which was in the outside westbound lane. After passing through the second red light, Hill executed a sweeping left turn starting from the right lane, crossing the left lane and the two oncoming lanes of travel, exiting the highway, and passing through a convenience store drive between a parked car and a row of gasoline pumps. He then made another left turn, crossed the street, and ran into a fence. During his turn through the convenience store drive, Hill did not appear to slow the speed of his vehicle, and there did not appear to be any pedestrians outside of the convenience store or any vehicle occupants threatened by his maneuver.

Shadbolt estimated that they traveled about one and one-half miles during this time and that Hill was traveling between thirty-five and forty-five miles per hour. He testified that no other vehicles were involved, that nobody got hurt, and that he did not see any patrons inside or outside of the convenience store. Shadbolt also testified, and the video recording confirmed, that Hill fishtailed as he passed through the convenience store drive and turned to the left. He explained that fishtailing occurred because Hill was turning so fast that the truck's back tires lost traction as he was accelerating. Shadbolt also testified that the convenience store was open at the time and that the gasoline pumps were operational. He opined that, when Hill fishtailed through the convenience store drive, he was using his vehicle as a deadly weapon.

Randle Green, who was at that time an officer with the Mineola Police Department, also witnessed Hill turn into the convenience store that night and captured some of Hill's maneuvers on his in-vehicle dash video camera. That video recording was also viewed by the jury. Green was parked about a block east of the convenience store facing west when he saw the flashing lights of Shadbolt's vehicle approaching. About thirty seconds before the flashing lights appear in the video, the recording showed a person walking beside the gasoline pumps and then a vehicle leaving the convenience store. The video recording showed that Green activated his emergency lights and began approaching as Hill went through the convenience store drive. Green confirmed that Hill fishtailed as he drove between a car and the gasoline pumps. He also testified that he saw people both inside and outside of the convenience store. Green agreed that the way Hill's vehicle was driven through the convenience store drive made it a deadly weapon.

To determine whether there is sufficient evidence to support a deadly-weapon finding, “we must decide whether, in viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt that [Hill] used or exhibited his [pickup] as a deadly weapon when he was [evading arrest].” Sierra, 280 S.W.3d at 255 (citing Cates, 102 S.W.3d at 738). We examine “the manner in which the defendant used the motor vehicle during” the offense and consider whether “the motor vehicle was capable of causing death or serious bodily injury” during the offense. Id. (citing Drichas, 175 S.W.3d at 798). A deadly-weapon finding may be sustained only if there is “evidence that others were actually endangered, not ‘merely a hypothetical potential for danger if others had been present.’ ” Cates, 102 S.W.3d at 738 (quoting Mann v. State, 13 S.W.3d 89, 92 (Tex. App.—Austin 2000), adopted by Mann v. State, 58 S.W.3d 132 (Tex. Crim. App. 2001)); see also Brister, 449 S.W.3d at 494.

In considering the manner in which a defendant used his vehicle, we determine whether his or her manner of driving was reckless or dangerous. Sierra, 280 S.W.3d at 255 (citing Drichas, 175 S.W.3d at 798; Cates, 102 S.W.3d at 738–39). Driving has been held to be reckless or dangerous when the defendant (1) lost control of the vehicle, (2) caused or almost caused an accident, (3) disregarded traffic signals and signs, (4) caused a high-speed chase, or (5) drove erratically. See id. In this case, Hill failed to slow his vehicle at the flashing yellow light and failed to stop at two red lights. In addition, Hill drove erratically when he made a sweeping left turn into the convenience store drive without slowing his vehicle and fishtailed as he passed the gasoline pumps and turned left again. He also apparently lost control of his vehicle when he crossed the road and drove into a fence. Thus, the evidence shows that Hill drove his vehicle in a reckless or dangerous manner.

We next consider whether the manner of his use of the vehicle was capable of causing serious injury or death such that other people were placed in actual danger. When Hill failed to slow his vehicle at the flashing yellow lights and failed to slow and stop his vehicle at the red lights, he was driving dangerously. However, the evidence showed that, at the time, there were no pedestrians or other drivers present to be endangered. Therefore, any endangerment in these instances would be hypothetical, which would not support a deadly-weapon finding. See Cates, 102 S.W.3d at 738. The same would be true when he lost control and ran into the fence.

We come to a different conclusion regarding Hill's brief path through the convenience store drive. Hill made a sudden left turn into the convenience store drive without slowing his vehicle and fishtailed between a parked car and operational gasoline pumps. Using its common knowledge, a reasonable jury could conclude that a vehicle speeding and fishtailing near gasoline pumps could easily result in the vehicle striking the pumps and causing a gasoline fire, thus endangering anyone present at the store with serious bodily injury or death. Green testified that there were patrons both outside and inside the store. Although the video recordings did not show anyone outside of the store at the time, they did not eliminate that possibility or undermine Green's testimony that there were patrons inside the store. In addition, the store was open for business, and a reasonable jury could conclude that there was at least one clerk on duty inside the store at the time.

Thus, Hill's manner of using his pickup posed a danger to anyone on the premises of the store that was more than hypothetical; it posed a real danger of causing serious bodily injury or death. See Drichas, 175 S.W.3d at 798. Consequently, we find that a rational jury could find beyond a reasonable doubt that Hill used his pickup in a manner that was capable of causing death or serious bodily injury and that he placed at least one other person in actual danger, based on the evidence presented. Therefore, we find that there is sufficient evidence to support the jury's deadly-weapon finding. We overrule this issue.

(2) Hill's Complaint Regarding Exhibits 1A and 1B Is Without Merit

Hill also complains that the trial court erred when it admitted State's Exhibits 1A and 1B ³ without what he contends is proper certification. Hill's objection at trial and his complaint on appeal was that the district clerk's certificate on the exhibits was not sufficient to admit all of the pages of these exhibits.

In a hearing outside the presence of the jury, Hill objected to State Exhibits 1A, 1B, 2A, 2B, 3A, 3B, 4A, 4B, 5A, 5B, 6A, 6B, 7A, 7B, and 8 as not properly certified. At that hearing, the trial court noted that Exhibit 1A contained a clerk's certificate, but the certificate did not indicate how many pages were contained in the multi-page documents. It also noted that the clerk's certificates on the remainder of the exhibits indicated the number of pages contained in those multi-page documents. The trial court then stated it would set aside Exhibit 1A and reserve its ruling on that exhibit. Later in the hearing, the trial court overruled the objection, but stated that Hill could make his objection to the exhibits when they were offered during the punishment hearing.

When the State offered Exhibits 1A thru 8, inclusive, at the punishment hearing, Hill renewed his objection to all of the exhibits. The trial court overruled Hill's objection as to Exhibits 2A thru 8, inclusive, and admitted those exhibits. However, the trial court did not admit Exhibits 1A and 1B, requiring the State to put on additional evidence of their authenticity, thereby sustaining Hill's objection as to Exhibits 1A and 1B. The trial court admitted Exhibits 1A and 1B only after the State introduced additional evidence tending to show the authenticity of those exhibits.⁴ Hill did not object when these exhibits were admitted after the State had produced additional evidence of their authenticity and does not complain on appeal that this additional evidence was not sufficient.

Since the trial court sustained Hill's only objection to Exhibits 1A and 1B, his complaint on appeal is without merit. We overrule this issue.

(3) There Is No Cumulative Error

Hill also asserts that cumulative error resulted in an improper punishment. The only errors he identifies in support of his argument are the allegedly improper deadly-weapon finding and the enhancement finding based on the admission of Exhibits 1A and 1B. However, we have found no error in these complaints. The Texas Court of Criminal Appeals has never ruled that “non-errors may in their cumulative effect cause error.” Gamboa v. State, 296 S.W.3d 574, 585 (Tex. Crim. App. 2009) (quoting Chamberlain v. State, 998 S.W.2d. 230, 238 (Tex. Crim. App. 1999)). We overrule this issue.

(4) The Judgment Should Reflect the Correct Degree of Offense

We have the authority to modify the judgment to make the record speak the truth, even if a party does not raise such a problem. TEX. R. APP. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.). “Our authority to reform incorrect judgments is not dependent on the request of any party, nor does it turn on a question of whether a party has or has not objected in trial court; we may act sua sponte and may have a duty to do so.” Rhoten, 299 S.W.3d at 356 (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref'd)); see French, 830 S.W.2d at 609.

The judgment incorrectly labels the level of Hill's offense as a first degree felony. Evading arrest or detention with a vehicle is a third degree felony. TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A). If it is shown at trial for a third degree felony that the defendant had previously been convicted of two felonies,⁵ the second felony being committed after the first conviction has become final, punishment can fall within the range prescribed for a first degree felony. TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2017). The State's enhancement allegation in this case was used to enhance Hill's punishment range. However, this procedure does not increase the level of the original offense, only the applicable punishment range.

Accordingly, we modify the trial court's judgment to reflect the degree of offense as a third degree felony.

We affirm the trial court's judgment, as modified.

FOOTNOTES

1.   See TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A) (West 2017).

2.   In his brief, Hill asserts that the evidence was both legally and factually insufficient. In Brooks, the Texas Court of Criminal Appeals found “no meaningful distinction between the Jackson v. Virginia legal-sufficiency standard and the Clewis [v. State, 922 S.W .2d 126 (Tex. Crim. App. 1996),] factual-sufficiency standard, and these two standards have become indistinguishable.” Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010) (plurality op.). Accordingly, we no longer perform factual sufficiency reviews. See Hutchings v. State, 333 S.W.3d 917, 919 n.2 (Tex. App.—Texarkana 2011, pet. ref'd).

3.   State's Exhibits 1A and 1B were documents evidencing Hill's conviction on one of the two prior convictions used for enhancement purposes.

4.   During the course of the punishment hearing, the State elicited additional testimony linking the conviction evidenced in Exhibits 1A and 1B to statements in the other admitted exhibits indicating that Hill had admitted being convicted in the cause number contained in Exhibits 1A and 1B.

5.   Other than a state jail felony.

Josh R. Morriss III Chief Justice