In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-22-00066-CR
DARYL CHRISTOPHER SIMMONS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 2128975
Before Morriss, C.J., Stevens and van Cleef, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION
When Daryl Christopher Simmons submitted to a required drug test while under
indictment and free on bond for a different felony, he tested positive for methamphetamine and
was taken into custody. Granted permission to lock his car, Simmons was escorted out of the
Hopkins County Courthouse into the adjacent parking area by Hopkins County Deputy Major
Willis. Though handcuffed, Simmons managed to flee in his vehicle, while Willis was standing
by Simmons in the open, driver-side door of the vehicle with Willis’s hand on the vehicle.
Simmons’s subsequent conviction1 for escape2 included a deadly weapon finding as to his use of
his vehicle to endanger Willis. The only issue in this appeal of that conviction is whether there
was sufficient evidence to support that finding. Because we conclude that the evidence is
sufficient, we affirm the judgment of the trial court.
Courthouse surveillance video from the time of the escape shows Willis escorting
Simmons to the court’s parking lot. Simmons was handcuffed and was escorted to a white sedan
in the court’s parking lot. After checking the passenger-side window, Simmons went to the other
side and sat in the driver’s seat. He then started the car’s motor. Willis testified that Simmons
could not get one of the windows up and that he allowed Simmons to start the car to use the
automatic window controls. The video then depicts Willis standing between the open, driver-
side door and the driver’s seat. Willis leaned in toward the steering wheel just before Simmons
1 Simmons pled true to two enhancement allegations and was sentenced to sixty-five years’ incarceration. 2 See TEX. PENAL CODE ANN. § 38.06. 2 drove away, with the driver’s door still open. Willis can be seen momentarily holding the driver-
side door and almost losing his balance as Simmons drove away.
Willis described Simmons as “racing off” and testified that Simmons’s driving was
“reckless.” He testified further, “[T]hank goodness I wasn’t in front of that door when he pulled
out[,] because his door was open. I was off to the side. But he could have still [run] over my
foot or knocked me over if I leaned against the vehicle.” Another deputy, Zachary Horne,
testified that a motor vehicle “[a]bsolutely” could be used as a deadly weapon. Simmons was
found at his home later that night and taken back into custody.
Simmons testified and admitted that he was the person in the video who was arrested and
who then drove away while Willis was standing in the open doorway of his car. He denied
intentionally consuming methamphetamine that day and claimed that his wife, whom he said
suffered from “multiple personalities,” spiked his morning coffee with something that caused
him to not be in his “right frame of mind when the situation occurred.”3 He acknowledged being
under the influence of some substance on the day of his arrest and told the jury he remembered
going to his car to lock it. He remembered nothing more until he woke at home, still wearing
handcuffs.4 Simmons also admitted having two previous felony convictions for possession of
methamphetamine, the most recent of which happened only one month before the trial in this
case. He insisted, though, that he was not a drug user.
3 Simmons testified that his wife sent him “a letter apologizing” “for being childish and stupid and wrong.” He said that he had the letter in his possession as he testified, but he made no attempt to introduce the letter as evidence. 4 Outside the presence of the jury, Simmons told the trial court that his wife had put methamphetamine and peyote in his coffee that morning, but he did not name those substances in his testimony. 3 “In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297
(Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “We
examine legal sufficiency under the direction of the Brooks opinion, while giving deference to
the responsibility of the jury ‘to fairly resolve conflicts in testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts.’” Id. (quoting Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). A motor vehicle may be found to have been used or
exhibited as a deadly weapon “if it is used in a manner that is capable of causing death or serious
bodily injury.” Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014).
“Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge.” Williamson, 589 S.W.3d at 298 (quoting Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one
that accurately 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.’” Id. (quoting
Malik, 953 S.W.2d at 240).
“In our review, we consider ‘events occurring before, during and after the commission of
the offense and may rely on actions of the defendant which show an understanding and common
design to do the prohibited act.’” Id. at 297 (quoting Hooper, 214 S.W.3d at 13). “It is not
4 required that each fact ‘point directly and independently to the guilt of the appellant, as long as
the cumulative force of all the incriminating circumstances is sufficient to support the
conviction.’” Id. (quoting Hooper, 214 S.W.3d at 13). “Circumstantial evidence and direct
evidence are equally probative in establishing the guilt of a defendant, and guilt can be
established by circumstantial evidence alone.” Id. (citing Ramsey v. State, 473 S.W.3d 805, 809
(Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13). “Further, ‘we must consider all of the
evidence admitted at trial, even if that evidence was improperly admitted.’” Id. (quoting Fowler
v. State, 517 S.W.3d 167, 176 (Tex. App.—Texarkana 2017), rev’d in part by 544 S.W.3d 844
(Tex. Crim. App. 2018)).
The jury, as “the sole judge of the credibility of the witnesses and the weight to be given
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In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-22-00066-CR
DARYL CHRISTOPHER SIMMONS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court Hopkins County, Texas Trial Court No. 2128975
Before Morriss, C.J., Stevens and van Cleef, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION
When Daryl Christopher Simmons submitted to a required drug test while under
indictment and free on bond for a different felony, he tested positive for methamphetamine and
was taken into custody. Granted permission to lock his car, Simmons was escorted out of the
Hopkins County Courthouse into the adjacent parking area by Hopkins County Deputy Major
Willis. Though handcuffed, Simmons managed to flee in his vehicle, while Willis was standing
by Simmons in the open, driver-side door of the vehicle with Willis’s hand on the vehicle.
Simmons’s subsequent conviction1 for escape2 included a deadly weapon finding as to his use of
his vehicle to endanger Willis. The only issue in this appeal of that conviction is whether there
was sufficient evidence to support that finding. Because we conclude that the evidence is
sufficient, we affirm the judgment of the trial court.
Courthouse surveillance video from the time of the escape shows Willis escorting
Simmons to the court’s parking lot. Simmons was handcuffed and was escorted to a white sedan
in the court’s parking lot. After checking the passenger-side window, Simmons went to the other
side and sat in the driver’s seat. He then started the car’s motor. Willis testified that Simmons
could not get one of the windows up and that he allowed Simmons to start the car to use the
automatic window controls. The video then depicts Willis standing between the open, driver-
side door and the driver’s seat. Willis leaned in toward the steering wheel just before Simmons
1 Simmons pled true to two enhancement allegations and was sentenced to sixty-five years’ incarceration. 2 See TEX. PENAL CODE ANN. § 38.06. 2 drove away, with the driver’s door still open. Willis can be seen momentarily holding the driver-
side door and almost losing his balance as Simmons drove away.
Willis described Simmons as “racing off” and testified that Simmons’s driving was
“reckless.” He testified further, “[T]hank goodness I wasn’t in front of that door when he pulled
out[,] because his door was open. I was off to the side. But he could have still [run] over my
foot or knocked me over if I leaned against the vehicle.” Another deputy, Zachary Horne,
testified that a motor vehicle “[a]bsolutely” could be used as a deadly weapon. Simmons was
found at his home later that night and taken back into custody.
Simmons testified and admitted that he was the person in the video who was arrested and
who then drove away while Willis was standing in the open doorway of his car. He denied
intentionally consuming methamphetamine that day and claimed that his wife, whom he said
suffered from “multiple personalities,” spiked his morning coffee with something that caused
him to not be in his “right frame of mind when the situation occurred.”3 He acknowledged being
under the influence of some substance on the day of his arrest and told the jury he remembered
going to his car to lock it. He remembered nothing more until he woke at home, still wearing
handcuffs.4 Simmons also admitted having two previous felony convictions for possession of
methamphetamine, the most recent of which happened only one month before the trial in this
case. He insisted, though, that he was not a drug user.
3 Simmons testified that his wife sent him “a letter apologizing” “for being childish and stupid and wrong.” He said that he had the letter in his possession as he testified, but he made no attempt to introduce the letter as evidence. 4 Outside the presence of the jury, Simmons told the trial court that his wife had put methamphetamine and peyote in his coffee that morning, but he did not name those substances in his testimony. 3 “In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297
(Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “We
examine legal sufficiency under the direction of the Brooks opinion, while giving deference to
the responsibility of the jury ‘to fairly resolve conflicts in testimony, to weigh the evidence, and
to draw reasonable inferences from basic facts to ultimate facts.’” Id. (quoting Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). A motor vehicle may be found to have been used or
exhibited as a deadly weapon “if it is used in a manner that is capable of causing death or serious
bodily injury.” Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014).
“Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge.” Williamson, 589 S.W.3d at 298 (quoting Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one
that accurately 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.’” Id. (quoting
Malik, 953 S.W.2d at 240).
“In our review, we consider ‘events occurring before, during and after the commission of
the offense and may rely on actions of the defendant which show an understanding and common
design to do the prohibited act.’” Id. at 297 (quoting Hooper, 214 S.W.3d at 13). “It is not
4 required that each fact ‘point directly and independently to the guilt of the appellant, as long as
the cumulative force of all the incriminating circumstances is sufficient to support the
conviction.’” Id. (quoting Hooper, 214 S.W.3d at 13). “Circumstantial evidence and direct
evidence are equally probative in establishing the guilt of a defendant, and guilt can be
established by circumstantial evidence alone.” Id. (citing Ramsey v. State, 473 S.W.3d 805, 809
(Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13). “Further, ‘we must consider all of the
evidence admitted at trial, even if that evidence was improperly admitted.’” Id. (quoting Fowler
v. State, 517 S.W.3d 167, 176 (Tex. App.—Texarkana 2017), rev’d in part by 544 S.W.3d 844
(Tex. Crim. App. 2018)).
The jury, as “the sole judge of the credibility of the witnesses and the weight to be given
their testimony[, could] ‘believe all of [the] witnesses’ testimony, portions of it, or none of it.’”
Id. (quoting Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014)). “We give ‘almost
complete deference to a jury’s decision when that decision is based on an evaluation of
credibility.’” Id. (quoting Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)).
Simmons argues that a rational jury could not have found that he used or exhibited a
motor vehicle as a deadly weapon during his escape. He claims that there is no evidence to show
Willis was actually endangered as Simmons drove his car from the court’s parking lot. Simmons
further claims that there was no evidence that he drove the car “in a deadly manner during” his
escape. At most, he claims, the evidence showed a “hypothetical capability of causing death or
serious bodily injury” as he fled the parking lot. We disagree with Simmons’s assessment of the
record.
5 “A motor vehicle, in the manner of its use or intended use, is clearly capable of causing
death or serious bodily injury and therefore can be a deadly weapon.” Ex parte McKithan, 838
S.W.2d 560, 561 (Tex. Crim. App. 1992). It is not necessary that the person driving the vehicle
intend it to be used as a deadly weapon. See Tyra v. State, 897 S.W.2d 796, 799 (Tex. Crim.
App. 1995). Nor is it required that the use of the motor vehicle causes death or serious bodily
injury. See Drichas v. State, 175 S.W.3d 795, 797 (Tex. Crim. App. 2005). All that is required
is that the evidence show that “‘the manner’ in which [the motor vehicle] was either used or
intended to be used was ‘capable’ of causing death or serious bodily injury.” Moore v. State,
520 S.W.3d 906, 908 (Tex. Crim. App. 2008) (quoting Tucker v. State, 274 S.W.3d 688, 691
(Tex. Crim. App. 2008)).
“To sustain a deadly weapon finding requires evidence that others were endangered, and
not merely a hypothetical potential for danger if others had been present.” Mann v. State, 13
S.W.3d 89, 92 (Tex. App.—Austin 2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001).5 In
Sturgis v. State, No. 12-19-00313-CR, 2021 WL 219295, at *3 (Tex. App.—Tyler Jan. 21, 2021,
no pet.) (mem. op., not designated for publication), a police officer reached into the defendant’s
car to pull him out and arrest him. The defendant “shifted the vehicle in reverse and abruptly
backed up,” while the officer’s “hand was in the door and he was leaning into the driver’s side of
the vehicle.” Id. at *2. That, combined with the defendant’s running a red light and driving
through ditches to avoid the officers’ pursuit, was enough to sustain the trial court’s finding that
Sturgis’s use of the car “placed others in actual danger of death or serious bodily injury.” Id. at
5 The Texas Court of Criminal Appeals adopted the appellate court’s opinion “dealing with the merits of appellant’s deadly weapon claim” “as [its] own without further comment.” Mann, 58 S.W.3d 132. 6 *3. As a result, the court sustained the finding that Sturgis used the vehicle as a deadly weapon
while evading arrest or detention with a motor vehicle. Id.6
Here, the video evidence shows Willis standing between the open, driver-side door and
Simmons, who sat in the driver’s seat. After Simmons started the car, Willis reached for the
steering wheel as the car began to move, and he momentarily lost his balance as Simmons drove
away with the driver-side door still open. Simmons admitted being under the influence of some
form of controlled substance; he admitted that he was not in his “right mind,” and he did not
recall events between being taken into custody and waking up at home wearing handcuffs.7 At
the very least, a rational jury could have found this conduct reckless.8 Reckless driving is a
factor in determining whether a vehicle was used as a deadly weapon. See Sierra v. State, 280
S.W.3d 250, 256 (Tex. Crim. App. 2009) (“Our preceding discussion establishes that some of the
criteria used by the court of appeals include factors that we have found determinative in prior
cases—dangerous and reckless driving and the violation of traffic laws.”). Here, Simmons’s
reckless driving caused Willis to almost lose his balance. In that situation, he could easily have
6 “Although unpublished opinions have no precedential value, we may take guidance from them ‘as an aid in developing reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana 2017, pet. ref’d) (quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)). 7 The jury charge included an instruction on the defense of involuntary intoxication. 8 The Penal Code defines reckless as follows:
A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
TEX. PENAL CODE ANN. § 6.03(c). 7 been knocked to the pavement and been seriously hurt. Willis was placed in real, not
hypothetical, danger by Simmons’s reckless driving. While Simmons did not run a red light or
drive through ditches, that was just a fortuitous circumstance.
A rational jury could have found that the manner in which Simmons drove his car was
capable of causing serious bodily injury to Willis. See Moore, 520 S.W.3d at 913 (“We conclude
that a rational fact-finder could infer that Appellant was using his motor vehicle in this case in a
manner that was capable of causing death or serious bodily injury, even though it did not do so,
and regardless of whether he intended it to. It does not amount to speculation for us to conclude
that there was more than ‘a hypothetical potential for danger if others had been present.’”
(quoting Mann, 13 S.W.3d at 92)).
We overrule Simmons’s sole point of error and affirm the trial court’s judgment.
Josh R. Morriss, III Chief Justice
Date Submitted: November 7, 2022 Date Decided: December 7, 2022
Do Not Publish