In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-14-00232-CR ____________________
THE STATE OF TEXAS, Appellant
V.
KEVIN DASHAWN SNEED, Appellee _________________________________ ______________________
On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 12-12-13526 CR ____________________________________________ ____________
MEMORANDUM OPINION
Kevin Dashawn Sneed pleaded guilty to the third-degree felony of evading
arrest or detention with a motor vehicle. The indictment alleged that Sneed used
his vehicle as a deadly weapon. After a bench trial on punishment, the trial court
made an affirmative deadly weapon finding and sentenced Sneed to ten years in
prison. Sneed filed a motion for new trial, which the trial court granted. We
construe the State’s appeal as presenting two issues challenging the trial court’s
decision: (1) the evidence supports a deadly weapon finding; and (2) Sneed’s
1 offense was properly classified as a third-degree felony. We reverse the trial
court’s order granting Sneed’s motion for new trial and remand the cause to the
trial court with instructions to reinstate Sneed’s sentence and the deadly weapon
finding.
Standard of Review
We review a trial court’s decision to grant a motion for a new trial for an
abuse of discretion. State v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim. App. 2014).
We view the evidence in the light most favorable to the trial court’s ruling, defer to
the trial court’s credibility determinations, and presume that all reasonable findings
in support of the ruling have been made. Id. at 104. Generally, a trial court does not
abuse its discretion if the defendant: “(1) articulated a valid legal claim in his
motion for new trial; (2) produced evidence or pointed to evidence in the trial
record that substantiated his legal claim; and (3) showed prejudice to his
substantial rights[.]” State v. Herndon, 215 S.W.3d 901, 909 (Tex. Crim. App.
2007). A trial court abuses its discretion if it grants a new trial for a non-legal or a
legally invalid reason. Thomas, 428 S.W.3d at 104.
Basis for New Trial
We first address Sneed’s contention that the State’s appeal fails to address
all grounds for the trial court’s order. In his motion for new trial, Sneed argued
2 that: (1) he did not use his vehicle as a deadly weapon; (2) he should have been
punished for a state jail felony; and (3) his sentence was too harsh. At the new trial
hearing, the trial court expressed concern over the amendments to section 38.04 of
the Texas Penal Code regarding classification of the offense. The trial court also
explained:
I am concerned about the definition of the deadly weapon, that it must be used or an object as a deadly weapon -- excuse me. Let me read that again. The actor must use it or the object as a deadly weapon not for some other purpose. . . . ...
It’s right here. I’ve got the definition. Firearm, obviously, or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or -- I think this is the definition we’re operating under -- anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
When ruling on a motion for new trial, the trial court may make oral
findings. Tex. R. App. P. 21.8(b). The trial court “may summarize the evidence or
explain the basis for granting or denying a motion for new trial[.]” Herndon, 215
S.W.3d at 905 n.5. The rationale behind this rule is to “ensure that appellate courts
will not need to speculate as to the possible factual findings supporting a trial
judge’s ruling if the trial judge will articulate them.” Landers v. State, 256 S.W.3d
295, 301 n.4 (Tex. Crim. App. 2008). The record indicates that the classification of
Sneed’s offense and the deadly weapon finding were the focus of the new trial
3 hearing and, based on the trial court’s explanations at the hearing, these two
grounds served as the basis for the trial court’s ruling. We conclude that the State
addressed the two grounds on which the trial court’s order was based.
Deadly Weapon Finding
In issue one, the State contends that the evidence supports a deadly weapon
finding and that, even if the evidence is insufficient, the proper remedy is to delete
the finding from the judgment rather than grant a new trial on punishment. We
must determine whether, viewing the evidence in the light most favorable to the
verdict, a rational trier of fact could have found beyond a reasonable doubt that
Sneed used or exhibited his vehicle as a deadly weapon when he was evading
arrest or detention. See Sierra v. State, 280 S.W.3d 250, 255 (Tex. Crim. App.
2009). We consider the manner in which the defendant used the motor vehicle
during the offense and whether the motor vehicle was capable of causing death or
serious bodily injury. Id.; see Tex. Penal Code Ann. § 1.07(a)(17)(B) (West Supp.
2014). If a deadly weapon finding is erroneous, the proper remedy is deletion of
the finding from the judgment. See Plummer v. State, 410 S.W.3d 855, 856 (Tex.
Crim. App. 2013); Williams v. State, 970 S.W.2d 566 (Tex. Crim. App. 1998).
According to the record, the trial court’s concerns regarding the deadly
weapon finding are founded on Plummer. In Plummer, the defendant wore a
4 holstered firearm and a bullet-proof vest as part of his security-guard uniform, but
was charged with and convicted of unlawful possession by a felon of a firearm and
possession of body armor. Plummer, 410 S.W.3d at 856-57. The trial court entered
a deadly weapon finding in the possession-of-body-armor case. Id. at 857. The
Court of Criminal Appeals held that “there must be some facilitation purpose
between the weapon and the associated offense to support a deadly-weapon
finding.” Id. at 856, 864-65. The Court explained that Texas law had expanded the
term “deadly weapon” to include “any instrument that threatens or causes serious
bodily injury, even when the instrument is not inherently or intentionally deadly.”
Id. at 858. According to the Court, this expansion was prompted by cases,
including motor vehicle cases, in which “the object was found to be a deadly
weapon because it caused or facilitated the injury (or risk of injury) posed by the
associated felony.” Id. at 858-59 (citing Tyra v. State, 897 S.W.2d 796 (Tex. Crim.
App. 1995) and Mann v. State, 58 S.W.3d 132 (Tex. Crim. App. 2001)). The
firearm that Plummer possessed was a deadly weapon per se, but “did nothing to
increase the risk of harm or otherwise contribute to the result of wearing body
armor.” Id. at 865. The firearm was used for a “common purpose—looking like a
security guard[.]” Id.
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________
NO. 09-14-00232-CR ____________________
THE STATE OF TEXAS, Appellant
V.
KEVIN DASHAWN SNEED, Appellee _________________________________ ______________________
On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 12-12-13526 CR ____________________________________________ ____________
MEMORANDUM OPINION
Kevin Dashawn Sneed pleaded guilty to the third-degree felony of evading
arrest or detention with a motor vehicle. The indictment alleged that Sneed used
his vehicle as a deadly weapon. After a bench trial on punishment, the trial court
made an affirmative deadly weapon finding and sentenced Sneed to ten years in
prison. Sneed filed a motion for new trial, which the trial court granted. We
construe the State’s appeal as presenting two issues challenging the trial court’s
decision: (1) the evidence supports a deadly weapon finding; and (2) Sneed’s
1 offense was properly classified as a third-degree felony. We reverse the trial
court’s order granting Sneed’s motion for new trial and remand the cause to the
trial court with instructions to reinstate Sneed’s sentence and the deadly weapon
finding.
Standard of Review
We review a trial court’s decision to grant a motion for a new trial for an
abuse of discretion. State v. Thomas, 428 S.W.3d 99, 103 (Tex. Crim. App. 2014).
We view the evidence in the light most favorable to the trial court’s ruling, defer to
the trial court’s credibility determinations, and presume that all reasonable findings
in support of the ruling have been made. Id. at 104. Generally, a trial court does not
abuse its discretion if the defendant: “(1) articulated a valid legal claim in his
motion for new trial; (2) produced evidence or pointed to evidence in the trial
record that substantiated his legal claim; and (3) showed prejudice to his
substantial rights[.]” State v. Herndon, 215 S.W.3d 901, 909 (Tex. Crim. App.
2007). A trial court abuses its discretion if it grants a new trial for a non-legal or a
legally invalid reason. Thomas, 428 S.W.3d at 104.
Basis for New Trial
We first address Sneed’s contention that the State’s appeal fails to address
all grounds for the trial court’s order. In his motion for new trial, Sneed argued
2 that: (1) he did not use his vehicle as a deadly weapon; (2) he should have been
punished for a state jail felony; and (3) his sentence was too harsh. At the new trial
hearing, the trial court expressed concern over the amendments to section 38.04 of
the Texas Penal Code regarding classification of the offense. The trial court also
explained:
I am concerned about the definition of the deadly weapon, that it must be used or an object as a deadly weapon -- excuse me. Let me read that again. The actor must use it or the object as a deadly weapon not for some other purpose. . . . ...
It’s right here. I’ve got the definition. Firearm, obviously, or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or -- I think this is the definition we’re operating under -- anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
When ruling on a motion for new trial, the trial court may make oral
findings. Tex. R. App. P. 21.8(b). The trial court “may summarize the evidence or
explain the basis for granting or denying a motion for new trial[.]” Herndon, 215
S.W.3d at 905 n.5. The rationale behind this rule is to “ensure that appellate courts
will not need to speculate as to the possible factual findings supporting a trial
judge’s ruling if the trial judge will articulate them.” Landers v. State, 256 S.W.3d
295, 301 n.4 (Tex. Crim. App. 2008). The record indicates that the classification of
Sneed’s offense and the deadly weapon finding were the focus of the new trial
3 hearing and, based on the trial court’s explanations at the hearing, these two
grounds served as the basis for the trial court’s ruling. We conclude that the State
addressed the two grounds on which the trial court’s order was based.
Deadly Weapon Finding
In issue one, the State contends that the evidence supports a deadly weapon
finding and that, even if the evidence is insufficient, the proper remedy is to delete
the finding from the judgment rather than grant a new trial on punishment. We
must determine whether, viewing the evidence in the light most favorable to the
verdict, a rational trier of fact could have found beyond a reasonable doubt that
Sneed used or exhibited his vehicle as a deadly weapon when he was evading
arrest or detention. See Sierra v. State, 280 S.W.3d 250, 255 (Tex. Crim. App.
2009). We consider the manner in which the defendant used the motor vehicle
during the offense and whether the motor vehicle was capable of causing death or
serious bodily injury. Id.; see Tex. Penal Code Ann. § 1.07(a)(17)(B) (West Supp.
2014). If a deadly weapon finding is erroneous, the proper remedy is deletion of
the finding from the judgment. See Plummer v. State, 410 S.W.3d 855, 856 (Tex.
Crim. App. 2013); Williams v. State, 970 S.W.2d 566 (Tex. Crim. App. 1998).
According to the record, the trial court’s concerns regarding the deadly
weapon finding are founded on Plummer. In Plummer, the defendant wore a
4 holstered firearm and a bullet-proof vest as part of his security-guard uniform, but
was charged with and convicted of unlawful possession by a felon of a firearm and
possession of body armor. Plummer, 410 S.W.3d at 856-57. The trial court entered
a deadly weapon finding in the possession-of-body-armor case. Id. at 857. The
Court of Criminal Appeals held that “there must be some facilitation purpose
between the weapon and the associated offense to support a deadly-weapon
finding.” Id. at 856, 864-65. The Court explained that Texas law had expanded the
term “deadly weapon” to include “any instrument that threatens or causes serious
bodily injury, even when the instrument is not inherently or intentionally deadly.”
Id. at 858. According to the Court, this expansion was prompted by cases,
including motor vehicle cases, in which “the object was found to be a deadly
weapon because it caused or facilitated the injury (or risk of injury) posed by the
associated felony.” Id. at 858-59 (citing Tyra v. State, 897 S.W.2d 796 (Tex. Crim.
App. 1995) and Mann v. State, 58 S.W.3d 132 (Tex. Crim. App. 2001)). The
firearm that Plummer possessed was a deadly weapon per se, but “did nothing to
increase the risk of harm or otherwise contribute to the result of wearing body
armor.” Id. at 865. The firearm was used for a “common purpose—looking like a
security guard[.]” Id.
5 In this case, the record demonstrates that Sneed’s use of his motor vehicle
helped facilitate the commission of evading arrest or detention and was used for
more than just its common purpose. See id. at 856, 864-65. Deputy Josh Bergland
testified that he was conducting a traffic stop of Sneed’s vehicle when Sneed drove
away from the scene. Bergland testified that during the pursuit, he could barely
keep up with Sneed, even while traveling at speeds in excess of one hundred miles
per hour. Bergland testified that other drivers were on the road and Sneed was
swerving in and out of traffic, causing Bergland concern for himself and other
drivers. Deputy Eric Prado testified that Sneed was driving much faster than other
vehicles and continued driving even after his tires blew out. Bergland testified that
Sneed struck the curb on two occasions, sparks were coming from the vehicle, and
it appeared that Sneed failed to stop or slow down at intersections. According to
Bergland, the debris from Sneed’s vehicle could have punctured one of Bergland’s
tires and caused Bergland to lose steering ability. Prado testified that he was afraid
Sneed might strike another vehicle. Bergland testified that Sneed drove quickly
into a nightclub parking lot where other vehicles and people were present. Once
Sneed stopped his vehicle, he fled on foot and was later apprehended.
The evidence demonstrates a sufficient showing of actual danger. See
Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). The record
6 indicates that other motorists were on the road at the same time and place as Sneed
and that, after using marihuana, Sneed drove in a dangerous manner, i.e., at
excessive speeds, through intersections and an occupied parking lot, with debris
and sparks flying from the vehicle, and with blown-out tires. See id. Sneed’s motor
vehicle facilitated the risk of injury posed by the offense of evading arrest or
detention. See Plummer, 410 S.W.3d at 858-59. Viewing the evidence in the light
most favorable to the prosecution, the evidence is sufficient to establish beyond a
reasonable doubt that Sneed used his vehicle as a deadly weapon. See Sierra, 280
S.W.3d at 255. Therefore, the trial court abused its discretion by granting a motion
for new trial on this basis. See Thomas, 428 S.W.3d at 104. We sustain issue one.
Classification of Offense
In issue two, the State contends that evading arrest or detention is a third-
degree felony, not a state jail felony. Section 38.04 of the Texas Penal Code
addresses the offense of evading arrest or detention. Tex. Penal Code Ann. § 38.04
(West Supp. 2014). Two versions of section 38.04(b) were enacted in 2011. Id. §
38.04(b). The first version provides, in pertinent part, that evading arrest or
detention is:
(1) a state jail felony if:
(A) the actor has been previously convicted under this section; or 7 (B) the actor uses a vehicle or watercraft while the actor is in flight and the actor has not been previously convicted under this section;
(2) a felony of the third degree if:
(A) the actor uses a vehicle or watercraft while the actor is in flight and the actor has been previously convicted under this section . . . .
Id.; see Act of May 24, 2011, 82nd Leg., R.S., ch. 839, § 4, 2011 Tex. Sess. Law
Serv. 2110, 2111 (House Bill 3423); see also Act of May 23, 2011, 82nd Leg.,
R.S., ch. 391, § 1, 2011 Tex. Sess. Law Serv. 1046 (Senate Bill 496). The second
version provides, in pertinent part, that the offense is:
(1) a state jail felony if the actor has been previously convicted under this section;
(A) the actor uses a vehicle while the actor is in flight[.]
Tex. Penal Code Ann. § 38.04(b); see Act of May 27, 2011, 82nd Leg., R.S., ch.
920, § 3, 2011 Tex. Sess. Law Serv. 2320, 2321 (Senate Bill 1416).
The Fort Worth Court of Appeals has concluded that the versions are
reconcilable. Adetomiwa v. State, 421 S.W.3d 922, 926 (Tex. App.—Fort Worth
2014, no pet.). The Court explained that Senate Bill 496 and House Bill 3423
reenacted the previous punishment scheme and “made a single substantive change
8 to section 38.04, adding the terms ‘watercraft’ and ‘federal special investigator,’
respectively, to the statutory language of section 38.04.” Id. Only Senate Bill 1416
altered the punishment scheme “to provide, among other things, that evading arrest
is a third degree felony if the actor uses a vehicle in flight (regardless of whether
the actor has been previously convicted of evading arrest).” Id. The Court
Senate Bill 1416 made more extensive amendments, altering the punishment scheme. Although none of the amendments recited section 38.04 at full length or stated that it was reenacting the statute, the amendments reenacted and published the bulk of the statute “so that [the amendments’] meaning[s] may be known without the necessity of examining the statute amended.” Because each amendment makes substantive changes that the other does not, the amendments are reconcilable. That is, harmonizing all three amendments to give effect to each, Senate Bill 1416 amended the punishment scheme of section 38.04 to provide that evading arrest is a third degree felony if the actor uses a vehicle in flight.
Id. at 926-27 (internal citations omitted). The Court added that, even if the
amendments were irreconcilable, Senate Bill 1416 was the latest of the three bills
to be enacted and would prevail over earlier bills. Id. at 927.
We agree with the Fort Worth Court of Appeals’s conclusion that the
amendments are reconcilable. The offense of evading arrest or detention with a
motor vehicle is a third-degree felony if the actor uses a motor vehicle while in
flight, regardless of whether the actor has a previous conviction for evading arrest
9 or detention. See id. at 926-27; see also Tex. Penal Code Ann. § 38.04(b) (version
two); Act of May 27, 2011, 82nd Leg., R.S., ch. 920, § 3, 2011 Tex. Sess. Law
Serv. 2320, 2321. Because Sneed’s offense was properly classified as a third-
degree felony, Sneed was not entitled to a new trial on grounds that he should have
been punished for a state jail felony. See Thomas, 428 S.W.3d at 104. We sustain
issue two. We reverse the trial court’s order granting Sneed’s motion for new trial
and remand the cause to the trial court with instructions to reinstate Sneed’s
sentence and the deadly weapon finding.
REVERSED AND REMANDED.
________________________________ STEVE McKEITHEN Chief Justice
Submitted on August 28, 2014 Opinion Delivered September 24, 2014 Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.