Shawn Ray Evans v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 30, 2023
• Docket: 09-21-00237-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-21-00237-CR __________________

SHAWN RAY EVANS, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 17-06-07753-CR __________________________________________________________________

MEMORANDUM OPINION

Shawn Ray Evans appeals his conviction for felony driving while intoxicated.

See Tex. Penal Code Ann. §§ 49.04, 49.09(b). Evans did not file a notice of appeal

following his conviction, but later filed a petition for writ of habeas corpus and was

eventually granted an out-of-time appeal by the Court of Criminal Appeals. See Ex

Parte Evans, No. WR-92,783-01, 2021 WL 3177721 (Tex. Crim. App. July 28,

2021). In two issues, Evans argues the evidence was legally insufficient to support

the trial court’s deadly weapon finding, and that his trial counsel rendered ineffective

1 assistance of counsel by failing to argue the deadly weapon issue to the court. As

discussed herein, we affirm the trial court’s judgment.

BACKGROUND

In an open plea, Evans pleaded guilty to the offense of felony driving while

intoxicated. His blood alcohol content after his arrest was 0.146, almost twice the

legal limit. The indictment alleged that during the commission of the offense, Evans

used a deadly weapon, namely a motor vehicle. Evans waived the reading of the

indictment and pleaded guilty “as charged in the indictment.”

The trial court conducted a punishment hearing. No witnesses testified for the

State, but the trial court admitted Evans’s previous criminal history, which showed

that he had three previous convictions for driving while intoxicated. The trial court

also took judicial notice of the pre-sentence investigation report, which contained an

offense report from Trooper Christopher Lucchesi. Lucchesi’s report notes that on

the night of the offense, he arrived on scene and observed a vehicle had struck a tree.

The driver, later identified as Evans, was trapped in the vehicle and emergency

personnel were working to free him. Deputy Cantu, who was the first deputy on

scene, advised Lucchesi that Evans smelled of alcohol and was the vehicle’s only

occupant. The damage to the vehicle was “major, indicating the vehicle struck the

tree at a high rate of speed.” As Evans was loaded into the ambulance, he was

overheard saying that he had a passenger, which police did not find.

2 The next day, Lucchesi interviewed Evans at the hospital, and Evans stated he

was not the driver. When Lucchesi asked Evans how he became pinned in the driver

seat, Evans explained that after the crash, he slid into the driver seat to turn off the

vehicle and take the keys out of the ignition. Lucchesi advised Evans that the front

of the vehicle was destroyed so there would have been nothing to turn off. Evans

maintained that he was the passenger and got stuck after getting in the driver seat.

Evans stated that Jesse Steel was the driver and that he lived near the crash scene.

Lucchesi identified Steel and found an address for him which was very close

to where the crash occurred. Lucchesi told Steel that Evans was in a major crash the

night before and Evans named Steel as the driver. Steel told Lucchesi that he was

unaware of the crash and was not the driver, and he explained that Evans was at his

house the night of the crash. According to Steel, Evans arrived at his house around

7 p.m. with a drink in his hand, and they hung out for a while, drove to the store

together to get beer, and then went back home. Steel stated that Evans left his home

around 10:30 p.m. Lucchesi asked Steel to step in front of his patrol car camera and

take his shirt off. Steel had no injuries on his body or head, which according to

Lucchesi’s report, disproved Evans’s story that Steel was the driver. Steel also

submitted a voluntary written statement that Evans left his house intoxicated

between 10 p.m. to 10:30 p.m. driving a blue Tahoe. Two weeks later, Lucchesi

3 spoke with Evans by phone, and Evans told Lucchesi that he was the driver and Steel

was the passenger.

Four witnesses testified for the defense at the punishment hearing: Sharolyn

Hall; Steve McKeon; Louise Evans; and Evans.

Louise Evans, Evans’s mother, testified that Evans suffered head trauma and

experiences memory-related problems because of the accident. When asked about

the accident, Louise testified:

Q: He had an accident?

A: It was a bad one. Thank God it didn’t involve any other cars.

Q: I was about to say you understand that as bad as it is, it could have been worse?

A: Oh yes. As it was, he died three times that night.

Q: When you indicate that, what exactly are you referring to? He was taken to the hospital?

A: No, they had to revive him and bring him back when he was pinned in the car – or in his, well, truck. I don’t know what you call it, an SUV. And twice on the way to the hospital from what they told me….

When asked on cross-examination about the accident, Louise told the

prosecutor:

Q: And something stood out to me. You said, “Thank God it didn’t involve other cars,” right?

A: Yes.

Q: Because it was a bad accident? 4 A: Yes.

Q: His car crashed into a tree?

A: Uh-huh.

Q: If someone else had been there, who knows what could have happened; is that fair?

Steve McKeon, Evans’s brother, acknowledged that Evans had a long history

of driving while intoxicated and this was his fourth offense. He testified that Evans

has been unable to work since this incident and was still wearing a halo medical

device.

Evans testified that his last memory of the night of the accident was going to

the restroom and taking two sips of his drink. When Evans’s attorney asked him

about whether he had a passenger in his vehicle the night of the accident, Evans

stated that he was, and that Steel had fled the scene.

During closing, Evans’s attorney asked the court for a probated sentence, or

in the alternative, a shorter prison sentence because of his physical condition. The

State argued for the maximum sentence. In discussing the incident which led to the

charges, the State argued:

On May 6th, 2017, as his mother said, we thank God no other cars were on the road that day. And if the only person who was negatively affected by the defendant’s choice was him, the question we now have to ask ourselves is are we willing to give him another chance to run the 5 risk that the next time he does this he’s not the only person on that road and that other members of our community could be there and affected by his choices to drink and consume pills.

The trial court sentenced Evans to fifteen years in prison. The trial court then stated

on the record that it was making an affirmative finding of a deadly weapon in the

case.

While Evans did not initially file a notice of appeal, he did file a First

Amended Application for a Writ of Habeas Corpus under article 11.07 of the Texas

Code of Criminal Procedure. The habeas case was submitted to the Court of Criminal

Appeals for consideration. See Ex parte Evans, 2021 WL 3177721, at *1. The Court

of Criminal Appeals found that trial counsel was ineffective in failing to advise

Evans of his right to appeal the sentence and granted relief as to Evans’s right to file

an out-of-time appeal. See id. In a footnote, the Court of Criminal Appeals found

that the remaining complaints raised in the petition were “without merit.” After the

Court of Criminal Appeals issued its opinion, Evans filed a Motion for New Trial,

alleging the evidence was legally insufficient to support the deadly weapon finding.

The trial court denied the Motion for New Trial. Evans filed his Notice of Appeal.

ANALYSIS

In issue one, Evans complains that the evidence was legally insufficient to

support the trial court’s deadly weapon finding. The State argues that the evidence

was legally sufficient to support the finding because Evans testified for the defense

6 at the sentencing hearing and during his testimony Evans said that he had a passenger

who fled the scene the night of the accident and because the pre-sentence

investigation report contains similar information.

“[T]raditional standards [of review] do not apply to non-capital felony cases

when the defendant enters a plea of guilty or nolo contendere.” Tijerina v. State, 264

S.W.3d 320, 322 (Tex. App—San Antonio 2008, pet. ref’d) (citing Ex parte Martin,

747 S.W.2d 789, 791 (Tex. Crim. App. 1988), and Ex parte Williams, 703 S.W.2d

674, 682 (Tex. Crim. App. 1986)). Under article 1.15 of the Texas Code of Criminal

Procedure, the State is required to introduce evidence into the record to support the

guilty plea. Tijerina, 264 S.W.3d at 323; see Tex. Code Crim. Proc. Ann. art. 1.15.

“The statute expressly provides that the defendant may consent to the proffer of

evidence in testimonial or documentary form, or to an oral or written stipulation of

what the evidence against him would be, without necessarily admitting to its veracity

or accuracy; and such a proffer or stipulation of evidence will suffice to support the

guilty plea so long as it embraces every constituent element of the charged offense.”

Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim. App. 2009); see also Tex. Code

Crim. Proc. Ann. art. 1.15. For instance, a judicial confession that covers all the

elements of the charged offense is sufficient to support a guilty plea. Id. “However,

a stipulation of evidence or judicial confession that fails to establish every element

of the charged offense will not authorize the trial court to convict.” Id.

7 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). “A motor vehicle may become a deadly weapon if the manner of its

use is capable of causing death or serious bodily injury.” Drichas v. State, 175

S.W.3d 795, 798 (Tex. Crim. App. 2005) (citation omitted); see Moore v. State, 520

S.W.3d 906, 908 (Tex. Crim. App. 2017). To establish a deadly weapon finding, the

State must establish that: (1) the object meets the statutory definition of a dangerous

weapon; (2) the weapon was used or exhibited during the transaction from which the

felony conviction was obtained; and (3) other people were actually endangered.

Drichas, 175 S.W.3d at 798 (citations omitted); Brister, 414 S.W.3d at 342.

“To justify a deadly weapon finding under Section 1.07(a)(17)(B), the State

need not establish that the use or intended use of an implement actually caused death

or seriously bodily injury; only that ‘the manner’ in which it was either used or

intended to be used was ‘capable’ of causing death or serious bodily injury.” Moore,

520 S.W.3d at 908 (emphasis in original). “Nor does the plain language of the

provision require that the actor actually intend death or serious bodily injury.” Id.

(citations omitted). “To sustain a deadly weapon finding requires evidence that

others were endangered, and not merely a hypothetical 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). “A deadly-weapon finding is justified if a

8 rational jury could have concluded that the appellant’s vehicle posed an actual

danger of death or serious bodily injury.” Brister, 414 S.W.3d at 342 (citation

omitted). “Therefore, we examine the record for evidence demonstrating that others

were present when the reckless driving occurred.” Id. at 343.

The record reflects that Evans signed “Waivers, Consent, Judicial Confession

& Plea Agreement” whereby Evans swore that:

I JUDICIALLY CONFESSES [sic] to committing the offense of: DRIVING WHILE INTOXICATED SUBSEQUENT OFFENSE as charged by the indictment or information or as a lesser-included offense to the offense charged in the indictment or information. If the information or indictment is amended, I further waive my notice requirements.

Moreover, the indictment alleges that “during the commission of the primary offense

alleged above, the Defendant did then and there use or exhibit a deadly weapon, to-

wit: a motor vehicle[.]” In the hearing on his plea, the record shows that Evans

pleaded guilty to the charge of felony driving while intoxicated.

By swearing that the allegations in the indictment were true, Evans judicially

confessed to using a motor vehicle as a deadly weapon. See Dinnery v. State, 592

S.W.2d 343, 353 (Tex. Crim. App. 1979); Tijerina, 264 S.W.3d at 324. “It is well

settled that a judicial confession standing alone, is sufficient to sustain a conviction

upon a guilty plea.” Potts v. State, 571 S.W.2d 180, 182 (Tex. Crim. App. 1978).

Evans argues that the evidence is not sufficient to sustain the conviction

because the only evidence that another person was around Evans was his own 9 indirect statement that Steel was present. Both during the sentencing hearing, and as

noted in the PSI, Evans told the officers that another person, Steel, was in his vehicle

at the time of the accident. That evidence was before the trial court at the time it

made the deadly weapon finding. That said, even without such evidence, under well-

settled Texas law the judicial confession is sufficient to meet the requirements of

article 1.15 and to sustain the conviction. See Stone v. State, 919 S.W.2d 424, 427

(Tex. Crim. App. 1996); Tijerina, 264 S.W.3d at 324. We therefore overrule Evans’s

first issue on appeal.

In Evans’s second issue, he complains that his trial counsel was ineffective by

failing to argue the deadly weapon issue during the sentencing hearing. To establish

a claim of ineffective assistance of counsel, the defendant must satisfy a two-prong

test. “First, the defendant must show that counsel’s performance was deficient. This

requires showing that counsel made errors so serious that counsel was not

functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the

defense. This requires showing that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is reliable.” Strickland v. Washington,

466 U.S. 668, 687-88 (1984).

When the defendant alleges he received ineffective assistance, the claim

“must be firmly founded in the record, and the record must affirmatively

10 demonstrate the alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999). In our review, we must presume “that counsel’s actions fell

within the wide range of reasonable and professional assistance.” Bone v. State, 77

S.W.3d 828, 833 (Tex. Crim. App. 2002). Given the presumption that the defendant

received effective assistance of counsel, the record on appeal is often not sufficiently

developed to allow an appellate court to determine whether the attorney represented

the defendant in a manner so deficient and lacking that the representation as

unreasonable or unprofessional. Id. “Under Strickland, the defendant must prove, by

a preponderance of the evidence, that there is in fact, no plausible professional reason

for a specific act or omission.” Id. at 836.

Here, the record before us fails to affirmatively demonstrate that no plausible

reason exists to explain why Evans’s attorney did not argue the deadly weapon issue

during the sentencing hearing. The record before us shows that Evans judicially

confessed to the offense in the indictment which alleges that Evans used a motor

vehicle as a deadly weapon.

The bottom line is that claims of ineffective assistance “must be firmly

founded in the record, and the record must affirmatively demonstrate the alleged

ineffectiveness.” Thompson, 9 S.W.3d at 813. The record lacks sufficient

information to support Evans’s complaint, and we conclude Evans has not overcome

11 the strong presumption that his attorney provided him effective assistance during his

trial. Id. at 814. Evans’s second issue is overruled.

Having overruled Evans’s two issues, we affirm the trial court’s judgment.

AFFIRMED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on March 8, 2023 Opinion Delivered August 30, 2023 Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.