NUMBER 13-11-00401-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LESTER HAYNES JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 329th District Court of Wharton County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Justice Garza Appellant, Lester Haynes Jr., pleaded guilty to evading arrest or detention with a
vehicle, see TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2011), enhanced to a first-
degree felony as a habitual felony offender, see id. § 12.42(d) (West Supp. 2011). A
jury found that he used his motor vehicle as a deadly weapon. See id. § 12.35(c)(1)
(West Supp. 2011). The trial court sentenced him to ninety-nine years’ imprisonment. See id. § 12.42(d). By a single issue, appellant contends the evidence is insufficient to
support the jury’s deadly weapon finding. We affirm.
I. BACKGROUND
The State presented the testimony of Javier Garza, a City of Wharton, Texas,
police officer involved in the pursuit and arrest of appellant.1
Officer Garza testified that around 1:00 p.m. on January 21, 2011, he noticed
appellant’s vehicle stopped at a traffic light. Officer Garza recognized appellant
because he knew that appellant had an outstanding warrant for a parole violation.
When the light turned green, appellant proceeded through the intersection and was
driving at a high rate of speed. Officer Garza was delayed in getting through the
intersection because there was heavy lunch-time traffic. The officer followed appellant
and activated his emergency lights and siren. Appellant continued to drive out of the
city limits and into the county’s jurisdiction at a high rate of speed. Appellant drove past
various establishments, including an elementary school, funeral home, grocery store,
convenience store, and a junior college. Officer Garza identified the in-car video of his
pursuit of appellant’s vehicle; the video was shown to the jury. At some point during the
chase, appellant was driving in the middle lane or turning lane. Appellant sped through
an intersection on a red light; Officer Garza estimated appellant’s speed to be
approximately 60 to 65 miles per hour in a 40-mile-per-hour speed zone. Officer Garza
was driving at around 100 miles per hour and was unable to catch up to appellant’s
vehicle. At this point in the chase, the highway was limited to a single lane in each
direction. Appellant passed numerous vehicles in areas marked as no-passing zones.
1 The State also presented testimony by Jason Baker, also a City of Wharton police officer. Officer Baker identified the in-car video of the pursuit that was shown to the jury.
2 As appellant approached a school, he was driving about 85 to 90 miles per hour.
Appellant lost control of the vehicle and drove it into a field, where the airbag deployed.
Officer Garza clocked appellant’s maximum speed at 110 miles per hour as he passed
other cars with oncoming traffic.
On cross-examination, Officer Garza stated that during the chase, other vehicles
did not have to swerve out of the way because drivers had pulled over to the shoulder.
II. DEADLY WEAPON FINDING
A. Standard of Review
By his sole issue, appellant contends the evidence is insufficient to support the
jury’s finding that he used his car as a deadly weapon.
The court of criminal appeals has recently held that there is “no meaningful
distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis
factual-sufficiency standard” and that the Jackson standard “is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 902-03, 912 (Tex. 2010) (plurality
op.). Accordingly, we review claims of evidentiary sufficiency under “a rigorous and
proper application of the Jackson standard of review.” Id. at 906–07, 912.
Under the Jackson standard, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979); see Brooks, 323 S.W.3d at 898-99 (characterizing
the Jackson standard as: “Considering all of the evidence in the light most favorable to
3 the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt”).
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)).
B. Law on Deadly Weapon
A deadly weapon is “anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury.” TEX. PENAL CODE ANN. §
1.07(a)(17)(B) (West Supp. 2011). To determine whether the evidence supports a
deadly weapon finding in cases involving motor vehicles, we conduct a two-part
analysis. Foley v. State, 327 S.W.3d 907, 916 (Tex. App.—Corpus Christi 2010, no
pet.); Hilburn v. State, 312 S.W.3d 169, 177 (Tex. App.—Fort Worth 2010, no pet.)
(citing Sierra v. State, 280 S.W.3d 250, 255 (Tex. Crim. App. 2009)). We first “evaluate
the manner in which the defendant used the motor vehicle during the felony.” Sierra,
280 S.W.3d at 255. We then “consider whether, during the felony, the motor vehicle
was capable of causing death or serious bodily injury.” Id.
As to the first part of the Sierra test—the manner in which the defendant
operated the vehicle—we evaluate whether the defendant’s driving was reckless or
dangerous. Id. We consider several factors in examining whether a defendant’s driving
was reckless or dangerous: (1) intoxication; (2) speeding; (3) disregarding traffic signs
and signals; (4) driving erratically; and (5) failure to control the vehicle. Id. at 255–56.
As to the second part of the Sierra test, to sustain a finding that the motor vehicle
could cause death or serious bodily injury, there must be evidence that others were
4 actually endangered. Foley, 327 S.W.3d at 916 (citing Cates v. State, 102 S.W.3d 735,
738 (Tex. Crim. App. 2003); Drichas v. State, 219 S.W.3d 471, 476 (Tex. App.—
Texarkana 2007, pet. ref’d); Williams v. State, 946 S.W.2d 432, 435 (Tex. App.—Fort
Worth 1997, pet. dism'd)). A hypothetical potential for danger is not sufficient. Id.
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NUMBER 13-11-00401-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
LESTER HAYNES JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 329th District Court of Wharton County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion by Justice Garza Appellant, Lester Haynes Jr., pleaded guilty to evading arrest or detention with a
vehicle, see TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2011), enhanced to a first-
degree felony as a habitual felony offender, see id. § 12.42(d) (West Supp. 2011). A
jury found that he used his motor vehicle as a deadly weapon. See id. § 12.35(c)(1)
(West Supp. 2011). The trial court sentenced him to ninety-nine years’ imprisonment. See id. § 12.42(d). By a single issue, appellant contends the evidence is insufficient to
support the jury’s deadly weapon finding. We affirm.
I. BACKGROUND
The State presented the testimony of Javier Garza, a City of Wharton, Texas,
police officer involved in the pursuit and arrest of appellant.1
Officer Garza testified that around 1:00 p.m. on January 21, 2011, he noticed
appellant’s vehicle stopped at a traffic light. Officer Garza recognized appellant
because he knew that appellant had an outstanding warrant for a parole violation.
When the light turned green, appellant proceeded through the intersection and was
driving at a high rate of speed. Officer Garza was delayed in getting through the
intersection because there was heavy lunch-time traffic. The officer followed appellant
and activated his emergency lights and siren. Appellant continued to drive out of the
city limits and into the county’s jurisdiction at a high rate of speed. Appellant drove past
various establishments, including an elementary school, funeral home, grocery store,
convenience store, and a junior college. Officer Garza identified the in-car video of his
pursuit of appellant’s vehicle; the video was shown to the jury. At some point during the
chase, appellant was driving in the middle lane or turning lane. Appellant sped through
an intersection on a red light; Officer Garza estimated appellant’s speed to be
approximately 60 to 65 miles per hour in a 40-mile-per-hour speed zone. Officer Garza
was driving at around 100 miles per hour and was unable to catch up to appellant’s
vehicle. At this point in the chase, the highway was limited to a single lane in each
direction. Appellant passed numerous vehicles in areas marked as no-passing zones.
1 The State also presented testimony by Jason Baker, also a City of Wharton police officer. Officer Baker identified the in-car video of the pursuit that was shown to the jury.
2 As appellant approached a school, he was driving about 85 to 90 miles per hour.
Appellant lost control of the vehicle and drove it into a field, where the airbag deployed.
Officer Garza clocked appellant’s maximum speed at 110 miles per hour as he passed
other cars with oncoming traffic.
On cross-examination, Officer Garza stated that during the chase, other vehicles
did not have to swerve out of the way because drivers had pulled over to the shoulder.
II. DEADLY WEAPON FINDING
A. Standard of Review
By his sole issue, appellant contends the evidence is insufficient to support the
jury’s finding that he used his car as a deadly weapon.
The court of criminal appeals has recently held that there is “no meaningful
distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis
factual-sufficiency standard” and that the Jackson standard “is the only standard that a
reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 902-03, 912 (Tex. 2010) (plurality
op.). Accordingly, we review claims of evidentiary sufficiency under “a rigorous and
proper application of the Jackson standard of review.” Id. at 906–07, 912.
Under the Jackson standard, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 319 (1979); see Brooks, 323 S.W.3d at 898-99 (characterizing
the Jackson standard as: “Considering all of the evidence in the light most favorable to
3 the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt”).
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
314 (Tex. App.—Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)).
B. Law on Deadly Weapon
A deadly weapon is “anything that in the manner of its use or intended use is
capable of causing death or serious bodily injury.” TEX. PENAL CODE ANN. §
1.07(a)(17)(B) (West Supp. 2011). To determine whether the evidence supports a
deadly weapon finding in cases involving motor vehicles, we conduct a two-part
analysis. Foley v. State, 327 S.W.3d 907, 916 (Tex. App.—Corpus Christi 2010, no
pet.); Hilburn v. State, 312 S.W.3d 169, 177 (Tex. App.—Fort Worth 2010, no pet.)
(citing Sierra v. State, 280 S.W.3d 250, 255 (Tex. Crim. App. 2009)). We first “evaluate
the manner in which the defendant used the motor vehicle during the felony.” Sierra,
280 S.W.3d at 255. We then “consider whether, during the felony, the motor vehicle
was capable of causing death or serious bodily injury.” Id.
As to the first part of the Sierra test—the manner in which the defendant
operated the vehicle—we evaluate whether the defendant’s driving was reckless or
dangerous. Id. We consider several factors in examining whether a defendant’s driving
was reckless or dangerous: (1) intoxication; (2) speeding; (3) disregarding traffic signs
and signals; (4) driving erratically; and (5) failure to control the vehicle. Id. at 255–56.
As to the second part of the Sierra test, to sustain a finding that the motor vehicle
could cause death or serious bodily injury, there must be evidence that others were
4 actually endangered. Foley, 327 S.W.3d at 916 (citing Cates v. State, 102 S.W.3d 735,
738 (Tex. Crim. App. 2003); Drichas v. State, 219 S.W.3d 471, 476 (Tex. App.—
Texarkana 2007, pet. ref’d); Williams v. State, 946 S.W.2d 432, 435 (Tex. App.—Fort
Worth 1997, pet. dism'd)). A hypothetical potential for danger is not sufficient. Id.
Therefore, we must “examine the record for evidence that there were other motorists
present at the ‘same time and place’ as the reckless driving occurred.” Id. at 916 (citing
Drichas, 219 S.W.3d at 476).
C. Discussion
Appellant argues that because no cars or persons were forced to take evasive
action and other drivers pulled over to the shoulder, there is no evidence that any other
person or driver was actually endangered by appellant’s vehicle. We disagree.
During the high-speed pursuit, which occurred in the vicinity of businesses and
schools, appellant’s vehicle reached a maximum speed of 110 miles per hour.
Appellant ran a red light, was speeding as he drove in the middle or turning lane with
oncoming traffic, passed other vehicles in a no-passing zone with oncoming traffic, and
finally lost control of the vehicle. Thus, considering more than one of the Sierra factors,
we conclude that appellant’s driving was reckless and dangerous. See Sierra, 280
S.W.3d at 255–56. As to the second part of the Sierra test, other motorists were
present at the same time and place as the reckless driving occurred, and pulled over to
the shoulder. See Foley, 327 S.W.3d at 916. Viewing the evidence in a light most
favorable to the prosecution, we conclude that a rational jury could have determined
beyond a reasonable doubt that appellant used or intended to use his vehicle in a
manner capable of causing death or serious bodily injury. See TEX. PENAL CODE ANN. §
5 1.07(a)(17); Sierra, 280 S.W.3d at 256 (holding evidence of deadly weapon legally
sufficient when defendant exceeded speed limit, failed to maintain control of his SUV,
and in fact caused serious bodily injury to another). We overrule appellant’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS GARZA Justice
Do not publish. TEX. R. APP. P. 47.2(b)
Delivered and filed the 16th day of August, 2012.