PD-0057-15 January 21, 2015
NO._____________________
IN THE
COURT OF CRIMINAL APPEALS OF TEXAS AUSTIN, TEXAS
TOMMY SCOTT THOMAS, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE ____________________________________________________________ APPELLANT’S PETITION FOR DISCRETIONARY REVIEW NO. 06-14-00002-CR COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA On appeal from Cause Number 41,489-B In the 124th District Court of Gregg County, Texas Honorable Alfonso Charles, Judge Presiding
Hough-Lewis (“Lew”) Dunn P.O. Box 2226 Longview, TX 75606 Tel. 903-757-6711 Fax 903-757-6712 Email: dunn@texramp.net Texas State Bar No. 06244600 Attorney for Appellant
APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT TABLE OF CONTENTS
PAGE
INDEX OF AUTHORITIES ……………………………………. iii
STATEMENT REGARDING ORAL ARGUMENT …………… iv
STATEMENT OF THE CASE …………………………………. 1
STATEMENT OF PROCEDURAL HISTORY ………………… 1
GROUND FOR REVIEW ………………………………………. 2
DID THE COURT OF APPEALS APPLY THE CORRECT STANDARD OF REVIEW FOUND IN CARMOUCHE IN EVALUATING ABUSE OF DISCRETION BY THE TRIAL COURT, WHEN A REASONABLE ALTERNATIVE PERCEPTION OF THE VIDEO CONTROVERTS THE FINDING OF THE TRIAL COURT FOR PROBABLE CAUSE TO STOP?
REASONS FOR REVIEW ………………………………………. 2
ARGUMENTS AND AUTHORITIES …………………………… 2
PRAYER FOR RELIEF …………………………………………… 7
CERTIFICATE OF SERVICE ……………………………………. 7
CERTIFICATE OF COMPLIANCE ……………………………… 8
APPENDIX
Tommy Scott Thomas v. State, Cause No. 06-14-00002-CR (Tex. App. – Texarkana, delivered December 16, 2014)
ii INDEX OF AUTHORITIES
CASES PAGE
Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000) …… 2, 4, 5, 6
Garcia v. State, 218 S.W.3d 756 …………………………………. 3 (Tex. App. – Houston [1st Dist.] 2007, no pet.)
Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ……….. 4
Hutchison v. State, 424 S.W.3d 164 ……………………………… 4 (Tex. App. – Texarkana 2014, no pet.)
Mapp v. Ohio, 367 U.S. 643 (1961) ……………………………… 3
State v. Cantwell, 85 S.W.3d 849 ………………………………... 3 (Tex. App. – Waco 2002, pet. ref’d)
State v. Johnson, 336 S.W.3d 649 (Tex. Crim. App. 2011) ……… 4
Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010) ………… 4
RULES AND STATUTORY PROVISIONS
Amend. IV, U. S. CONST. ………………………………………… 3
Amend. XIV, U. S. CONST. ………………………………………. 3
Art. 1, Section 9, TEX. CONST. ………………………………….. 3
Art. 1, Section 19, TEX. CONST. ………………………………… 3
TEX. CODE CRIM. PRO. Art. 1.04 ……………………………… 3
TEX. CODE CRIM. PRO. Art. 1.06 ……………………………… 3
iii INDEX OF AUTHORITIES (CONT’D)
TEX. CODE CRIM. PRO. Art. 38.23 ……………………………… 3
TEX. PENAL CODE § 38.04 …………………………………….. 1
TEX. TRANSP. CODE § 543.001 ..…………………………….. 3
TEX. TRANSP. CODE § 545.104(b) …………………………….. 2
TEX. R. APP. PRO. 66 …………………………………………… 1
TEX. R. APP. PRO. 66.3(c) ……………………………………… 2
STATEMENT REGARDING ORAL ARGUMENT
Appellant has raised an important question and believes that oral
argument would help clarify the issue presented in his petition for
discretionary review. Therefore, he respectfully requests oral argument.
iv TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:
NOW COMES TOMMY SCOTT THOMAS, Appellant in this cause, by
and through his attorney of record, Hough-Lewis (“Lew”) Dunn, and, pursuant to
the provisions of TEX. R. APP. PRO. 66, et seq, moves this Court to grant
discretionary review, and in support will show as follows:
STATEMENT OF THE CASE
Appellant was charged by indictment with evading arrest or detention in a
motor vehicle, in violation of TEX. PENAL CODE § 38.04 (CR 4). He filed a
“Motion to Declare Penal Code Section 38.04 Unconstitutional” (CR 35) and a
“Motion to Quash the Indictment” on that basis (CR 24); however, both motions
were denied after a pre-trial hearing (CR 66). After a bench trial Appellant was
found guilty and, based upon enhancements proven at punishment, sentenced to a
term of thirty (30) years in the Texas Department of Criminal Justice, coupled with
a finding of the use of a deadly weapon (CR 101). Appellant timely perfected his
appeal (CR 105).
STATEMENT OF PROCEDURAL HISTORY
Appellant presented four (4) issues in his appellate brief. The conviction was
affirmed in a memorandum opinion not designated for publication. Tommy Scott
Thomas v. State, No. 06-14-00002-CR (Tex. App. – Texarkana, delivered
December 16, 2014). This petition is due to be filed on January 14, 2015, and,
therefore, is timely filed.
GROUND FOR REVIEW: DID THE COURT OF APPEALS APPLY THE CORRECT STANDARD OF REVIEW FOUND IN CARMOUCHE IN EVALUATING ABUSE OF DISCRETION BY THE TRIAL COURT, WHEN A REASONABLE ALTERNATIVE PERCEPTION OF THE VIDEO CONTROVERTS THE FINDING OF THE TRIAL COURT FOR PROBABLE CAUSE TO STOP?
REASONS FOR REVIEW: Review is proper pursuant to TEX. R. APP. PRO. 66.3 (c) because the Court of Appeals has rendered its decision in in a way that conflicts with a decision of this Court on the issue of video evidence, namely, Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000).
ARGUMENT AND AUTHORITIES
Late at night the State’s witness, Officer Jacob Schroeder, saw what he
perceived as Appellant’s flat-bed truck fail to signal a left turn and, based upon
that, chased and stopped Appellant (4 RR 16 ff). This implicated TEX. TRANSP.
CODE § 545.104(b), which states that “an operator intending to turn a
vehicle…signal continuously for not less than the last 100 feet of movement of the
vehicle before the turn.” State’s Exhibit No. 1, a video from the officer’s patrol car,
was admitted into evidence and played for the trial court (4 RR 18).
Prior to that testimony, Appellant’s trial counsel objected to the evidence,
moving for its suppression (4 RR 13). The trial court acknowledged the objection
and stated that he would rule on the issue of probable cause at the conclusion of
testimony (4 RR 13-14).
After hearing the evidence, the trial court found there was probable cause:
“Based on the testimony of the officer and State’s Exhibit 1, the video, the
evidence shows the defendant at a stop sign – or at an intersection, and that, as the
defendant begins his turn onto Highway 80, that is when he turn signal
appears….That does and is a violation of the Traffic Code, and it does justify
probable cause to initiate a traffic stop. So the Court will find that there was
probable cause for the stop.” (4 RR 83).
Probable cause to stop is viewed in the context of the Fourth Amendment
and its Texas counterpart, that is, search and seizure are subject to the restrictions
of Amend. IV and Amend. XIV, U. S. CONST., and Art. 1, Sections 9 and 19,
TEX. CONST. See also, Art. 1.06 and 1.04, also Art. 38.23, TEX. CODE CRIM.
PRO. See, Mapp v. Ohio, 367 U.S. 643 (1961); State v. Cantwell, 85 S.W.3d 849
(Tex. App. – Waco 2002, pet. ref’d).
It has been stated that a peace officer is authorized to arrest without a
warrant a driver who violates the provisions of the Texas Transportation Code.
Section 543.001, TEX. TRANS. CODE; Garcia v. State, 218 S.W.3d 756, 760
(Tex. App. – Houston [1st Dist.] 2007, no pet.).
The Court of Appeals reviewed the decision of the trial court under the
bifurcated standard of review, deferring to the trial court’s determination of
historic facts and mixed questions of law and fact that rely on the credibility of a
witness, but applying a de novo standard of review to pure questions of law and
mixed questions that do not depend on credibility determinations, citing to Wilson
v. State, 311 S.W.3d 452 (Tex. Crim. App. 2010), Carmouche v. State, 10 S.W.3d
323 (Tex. Crim. App. 2000), Hutchison v. State, 424 S.W.3d 164 (Tex. App. –
Texarkana 2014, no pet.), State v. Johnson, 336 S.W.3d 649 (Tex. Crim. App.
2011), and Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) (Thomas v.
State, Slip. Op., pp. 5-6).
The Court of Appeals stated, in relevant part: “Our independent review of
the video recording also reveals (1) that the vehicle’s brake lights were on as the
vehicle approached the stop sign, (2) that there was no turn signal used as the
vehicle approached the stop sign, (3) that the vehicle came to a complete stop at
the stop sign, (4) that the vehicle began to make a left turn, and (5) that the turn
signal was not engaged until the vehicle was already in the process of turning”
(Slip Op., p.8).
Appellant, however, respectfully disagrees with the evaluation of the video
made by the Court of Appeals. The problem with the analysis is that the flat-bed
truck driven by Appellant is somewhat unusual in its configuration of rear lights,
stop lamps, and turn indicators. On the right and left sides the same lights are used
for all three functions, both at the top and bottom of the truck. In other words, the
truck, when braked, will show a stronger red light than ordinarily seen at night
from the lamps, and then, if a turn signal is activated, that light will pulse between
its heavier brightness (indicating a stop) and a lesser brightness.
Carmouche v. State, 10 S.W.3d at 332 provides guidance. There this Court
reviewed the videotape of a search and ruled that the independent evidence of the
videotape controverted the testimony of witnesses, providing “indisputable visual
evidence” contradicting the testimony in the trial court.
The question is this: what is the rationale underlying Carmouche? Appellant
suggests that it is the objective, rather than subjective, evidence given by video or
photographic means. In evaluating evidence one must defer to objective evidence,
free of subjective interpretation. That is the kind of evidence furnished by a
videotape. No subjective filter is interposed between the facts and their ready
observation by the trier of fact or the reviewing court The facts speak for
themselves without an intermediary.
With that in mind, therefore, Appellant contends that the perceptions by a
reviewing court should be guided by an objective rule, namely, that to conclude
that a piece of evidence is dispositive in this sort of case, the standard should
include: first, a review of all of the relevant facts; second, a critique of alternative
interpretations; and third, an analysis as to why the conclusion reached is the only
reasonable alternative. That is the rationale underlying Carmouche, an analysis not
followed by the Court of Appeals. In the case at bar the Court of Appeals never
described the somewhat unique configuration of the brake-turn-nighttime lamps on
the flatbed truck and their operations vis-a-vis each other. How could the Court of
Appeals be certain, for instance, that it was not mistaking the “on and off” of brake
lights for the actual pulsing of the turn indicator? That is, Appellant was indicating
his turn; yet, because of the configuration of the lights, an alternative way of seeing
the lights would be to conclude that it was the truck intermittently braking and not
indicating a turn.
Because the Court of Appeals failed to analyze the stop under the rationale
of Carmouche, Appellant requests that his petition for discretionary review should
be granted.
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant respectfully prays
that this Court grant discretionary review, and, after full briefing on the merits,
issue an opinion reversing the Court of Appeals’ Judgment and remand this cause
to the trial court for a new trial.
Respectfully submitted,
/S/ Hough-Lewis Dunn Hough-Lewis (“Lew”) Dunn P.O. Box 2226 Longview, TX 75606 Tel. 903-757-6711 Fax 903-757-6712 Email: dunn@texramp.net Texas State Bar No. 06244600 Attorney for Appellant
CERTIFICATE OF SERVICE
I hereby certify, by affixing my signature above, that a true and correct copy
of the foregoing Petition for Discretionary Review, was sent to the following
person by certified mail, return receipt requested, on the 14th day of January, 2015,
to Ms. Lisa C. McMinn, State Prosecuting Attorney, at P.O. Box 13046, Austin,
TX 78711-3046 and also sent by electronic means to the email address:
information@spa.texas.gov; also a true and correct copy was sent by first class
mail to Ms. Zan Colson Brown, Assistant District Attorney, 101 E. Methvin, Suite
333, Longview, TX 75601 and also sent by electronic means to the email address:
zan.brown@co.gregg.tx.us on the same date.
/S/ Hough-Lewis Dunn Hough-Lewis Dunn
CERTIFICATE OF COMPLIANCE
I certify that the foregoing document complies with Rule 9, TEX. R.
APP. PROC., regarding length of documents, in that exclusive of caption, identity
of parties and counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, issues presented, statement of jurisdiction,
statement of procedural history, signature, proof of service, certification, certificate
of compliance, and appendix, it consists of 1,601 words.
Tommy Scott Thomas v. State, Cause No. 06-14-00002-CR (Tex. App. – Texarkana, delivered December 16, 2014) In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-14-00002-CR
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 41489-B
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION Following a bench trial, Tommy Scott Thomas was convicted of evading arrest or
detention with a motor vehicle. After entering a finding of true to the State’s enhancement
allegations, the trial court sentenced Thomas to thirty years’ imprisonment. On appeal, Thomas
argues (1) that the trial court erred in overruling his motion to quash the indictment on the
ground that the evading arrest statute is unconstitutional because it was enacted by a bill that
violated the one-subject rule, (2) that the trial court erred in denying his motion to suppress
evidence because the arresting officer illegally initiated a traffic stop, (3) that the trial court erred
in finding that the Dodge flatbed pickup truck that he was driving was used as a deadly weapon,
and (4) that there was a fatal variance between the alleged date of a previous conviction used for
enhancement and the actual date of the previous conviction. Because we overrule all points
raised by Thomas, we affirm the trial court’s judgment.
I. The Trial Court Properly Denied Thomas’ Motion to Quash the Indictment
Article III, Section 35 of the Texas Constitution states, “No bill . . . shall contain more
than one subject.” TEX. CONST. art. III, § 35(a). “The purpose of the single-subject rule is to
prevent log-rolling—the inclusion in a bill of several subjects having no connection with each
other in order to create a combination of various interests in support of the whole bill.” Ex parte
Jones, 410 S.W.3d 349, 351 (Tex. App.—Houston [14th Dist.] 2013), aff’d, 440 S.W.3d 628
(Tex. Crim. App. 2014) (citing LeCroy v. Hanlon, 713 S.W.2d 335, 337 (Tex. 1986)). “A bill
satisfies the rule, ‘even if it contains numerous provisions, however diverse, as long as these
2 provisions relate directly or indirectly to the same general subject and have a mutual
connection.’” Id. (quoting LeCroy, 713 S.W.2d at 337).
Evading arrest with a motor vehicle was previously classified as a state-jail felony, but
became a third-degree felony following amendments to Section 38.04 of the Texas Penal Code,
which were made by the Legislature in 2011 via Senate Bill 1416. Compare TEX. PENAL CODE
ANN. § 38.04(b)(2)(A) (West Supp. 2014) (punishing offense as third-degree felony), with Act of
May 27, 2009, 81st Leg., R.S., ch. 1400, § 4, sec. 48.04(b), 2009 Tex. Gen. Laws 4385, 4385–
86, amended by Act of May 27, 2011, 82d Leg., R.S., ch. 920, § 3, sec. 38.04(b), 2011 Tex. Sess.
Law Serv. 2321, 2322 (West) .
As initially drafted, Senate Bill 1416 was only designed to add tire-deflation devices to
the list of prohibited weapons under Section 46.05 of the Texas Penal Code and made no
mention of the evading arrest statute. Jones, 440 S.W.3d at 630 (citing TEX. PENAL CODE ANN.
§ 46.05 (West 2011)). Three months later, Senate Bill 1416 was amended to address the evading
arrest statute. Id. As explained by Jones,
At the time at which each legislative chamber voted for its enactment, Senate Bill 1416’s title read, “An Act relating to the creation of the offense of possession, manufacture, transportation, repair, or sale of a tire deflation device; providing criminal penalties.” H.J. of Tex., 82nd Leg., R.S. 4375 (2011); see S.J. of Tex., 82nd Leg., R.S. 4150–51 (2011). Although the caption did not mention evading arrest, identical bills were adopted and passed by the Texas House of Representatives and the Texas Senate, and the substance of those bills included elevating the penalty for evading arrest in a motor vehicle. See H.J. of Tex., 82nd Leg., R.S. 4316 (2011); S.J. of Tex., 82nd Leg., R.S. 4151 (2011) (passing bill). More specifically, as enrolled and enacted, Senate Bill 1416 included five sections that (1) amended Section 46.01 of the Texas Penal Code to provide a definition of what constitutes a tire-deflation device, (2) amended Section 46.05 of the Texas Penal Code to make a tire-deflation device a prohibited weapon, (3) amended Section 38.04 of the Texas Penal Code to elevate the punishment 3 range for first-time offenders evading arrest in a motor vehicle and to provide for penalties for offenses where a tire-deflation device is used while an actor is in flight, and (4) and (5) provided for an effective date of September 1, 2011.
Id. at 630–31 (footnote omitted).
On the basis that Senate Bill 1416 “criminalize[d] the possession . . . of tire-deflation
devices on the once [sic] hand, yet, on the other hand, elevated the penalty for evading arrest in a
vehicle,” Thomas filed a motion to quash the indictment, arguing that Section 38.04 is
unconstitutional because Senate Bill 1416 violated the one-subject rule. Following a hearing, the
trial court denied Thomas’ motion to quash, ruling that the statute was constitutional.
On appeal, Thomas argues that the trial court erred in this ruling. We conduct a de novo
review of a trial court’s denial of a motion to quash. Lawrence v. State, 240 S.W.3d 912, 915
(Tex. Crim. App. 2007). Our analysis is greatly simplified by the fact that the Texas Court of
Criminal Appeals has already spoken on this very issue. In Jones, the court explained that
Senate Bill 1416 has one subject—the “imposition of criminal penalties described in the Texas
Penal Code for offenses involving motor vehicles.” Jones, 440 S.W.3d at 632. Further, the court
found that the provisions of Senate Bill 1416 also had “a mutual connection in that their
enactment was intended to better protect law enforcement and the public from actors who evade
arrest.” Id. at 630. 1
1 The court reached that conclusion after discovering that (1) in the original bill analysis, the sponsoring author’s statement of intent explained that, while pursuing suspects, law enforcement officers “‘had to deal with the suspects throwing ‘tire deflation devices’ at [their] vehicles and then evading arrest as a result,’” (2) during the debate on amendments, Representative Allen Fletcher explained that the bill should be amended because “‘[d]rug runners along the southern border have been deploying these tire deflation devices while being pursued by law enforcement. . . . [which] endanger everyone else on the roadway,’” and (3) a similar amendment was orally presented by Senator Juan Hinojosa and also accepted. Jones, 440 S.W.3d at 630, 632–33 (citing Senate Comm. on Criminal Justice, Bill Analysis, Tex. S.B. 1416, 82d Leg., R.S. (2011); Archived House Chamber Video, 82d Leg., R.S., May 19, 2011, 4 The Texas Court of Criminal Appeals has already decided Thomas’ first point of error
against him. Accordingly, we overrule it.
II. Thomas Was Lawfully Stopped
Thomas moved to suppress evidence obtained following the traffic stop that eventually
led to his arrest on the ground that the arresting officer did not have reasonable suspicion to
initiate the traffic stop. A routine traffic stop—a seizure—implicates both the United States and
Texas Constitutions and, under both, must be reasonable. Berkemer v. McCarty, 468 U.S. 420,
436–37 (1984); Francis v. State, 922 S.W.2d 176, 178 (Tex. Crim. App. 1996); see U.S. CONST.
amend. IV; TEX. CONST. art. I, § 9. It is undisputed that the officer here did not have a warrant to
stop Thomas. Thus, the State was required to prove that the seizure was reasonable. See
Delafuente v. State, 414 S.W.3d 173, 176 (Tex. Crim. App. 2013). The trial court found that the
State met its burden, prompting this point of error on appeal.
We review a trial court’s ruling on a motion to suppress evidence for abuse of discretion
and overturn that ruling only when it is so clearly wrong that it falls outside the zone of
reasonable disagreement—that zone in which reasonable minds may disagree over what the
ruling should be. Martinez v. State, 348 S.W.3d 919, 922 (Tex. Crim. App. 2011); Crain v.
State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Hutchison v. State, 424 S.W.3d 164, 175 (Tex.
App.—Texarkana 2014, no pet.). “In reviewing such a ruling, we apply a bifurcated standard of
review.” Wilson v. State, 311 S.W.3d 452, 457–58 (Tex. Crim. App. 2010) (citing Carmouche v.
1:30 p.m. session at 06:08:20, TEX. HOUSE REPRESENTATIVES, http://tlchouse.granicus.com/MediaPlayer.php?view _id=19&clip_id=4988; Archived Senate Chamber Video, 82d Leg. R.S., May 27, 2011 Senate Session, Part II at 1:22:40, TEX. SENATE, http://tlcsenate.granicus.com/MediaPlayer.php?view_id=12&clip_id=1728). 5 State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000)). “We approach our review with two
standards, ‘giving almost total deference to a trial court’s determination of historic facts and
mixed questions of law and fact that rely on the credibility of a witness, but applying a de novo
standard of review to pure questions of law and mixed questions that do not depend on
credibility determinations.’” Hutchinson, 424 S.W.3d at 175 (quoting Martinez, 348 S.W.3d at
922–93); see State v. Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011); Wilson, 311
S.W.3d at 458; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
At a suppression hearing, the trial court is the sole trier of fact and exclusive judge of the
credibility of the witnesses and the weight to be given their testimony. St. George v. State, 237
S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman, 955 S.W.2d at 89. A trial court’s ruling on a
motion to suppress will be affirmed if it “is reasonably supported by the record and is correct
under any theory of law applicable to the case.” Young v. State, 283 S.W.3d 854, 873 (Tex.
Crim. App. 2009) (per curiam).
Law enforcement officers may stop and briefly detain individuals suspected of criminal
activity on less information than is constitutionally required for probable cause to arrest. Terry v.
Ohio, 392 U.S. 1, 22 (1968). To make an investigative stop, the officer must possess a
reasonable suspicion based on specific, articulable facts that, in light of the officer’s experience
and general knowledge, would lead the officer to reasonably conclude the person detained
actually is, has been, or soon will be engaged in criminal activity. United States v. Sokolow, 490
U.S. 1, 9–10 (1989); Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001); Zervos v.
State, 15 S.W.3d 146, 151 (Tex. App.—Texarkana 2000, pet. ref’d). “This is an objective
6 standard that disregards any subjective intent of the officer making the stop . . . .” Ford v. State,
158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The facts used to support the investigative stop
must support more than a mere hunch or suspicion. Davis v. State, 947 S.W.2d 240, 244 (Tex.
Crim. App. 1997). “If an officer has a reasonable basis for suspecting that a person has
committed a traffic offense, the officer may legally initiate a traffic stop.” Zervos, 15 S.W.3d at
151; see TEX. CODE CRIM. PROC. ANN. art. 14.01(b) (West 2005).
At Thomas’ suppression hearing, Jacob Schroeder, a patrol officer for the White Oak
Police Department, testified that he initiated a traffic stop at 2:27 a.m. after he observed the
white Dodge flatbed pickup truck driven by Thomas turn without using a signal.
Thomas admits that turning without properly signaling is a violation of Section 545.104
of the Texas Transportation Code and that a police officer is authorized to initiate a traffic stop
upon observing such a violation. See TEX. TRANSP. CODE ANN. § 545.104(b) (West 2011).
However, he argues (1) that Section 545.104 only requires that “[a]n operator intending to turn a
vehicle . . . signal continuously for not less than the last 100 feet of movement of the vehicle
before the turn” and (2) that the dashcam video recording of the stop demonstrated that Thomas
did activate his turn signal as required. Id.
The trial court disagreed with Thomas’ assessment of Schroeder’s dashcam video
recording, ruling in the following manner:
The first issue the Court has to address is whether there was probable cause to attempt to initiate a traffic stop in this case. Based on the testimony of the officer and State’s Exhibit 1, the video, the evidence shows the defendant at a stop sign -- or at an intersection, and that, as the defendant begins his turn onto Highway 80, that is when his turn signal appears. Also, through the officer’s testimony, that’s when it first appeared. That does and is a violation of the Traffic Code, and it 7 does justify probable cause to initiate a traffic stop. So the Court will find that there was probable cause for the stop.
Our independent review of the video recording also reveals (1) that the vehicle’s brake lights
were on as the vehicle approached the stop sign, (2) that there was no turn signal used as the
vehicle approached the stop sign, (3) that the vehicle came to a complete stop at the stop sign,
(4) that the vehicle began to make a left turn, and (5) that the turn signal was not engaged until
the vehicle was already in the process of turning.
In sum, the video recording supports the trial court’s factual determination that Thomas
failed to “signal continuously for not less than the last 100 feet of movement of the vehicle
before the turn.” TEX. TRANSP. CODE ANN. § 545.104(b). Therefore, the trial court’s ruling that
Schroeder had a reasonable basis for suspecting that Thomas had committed a traffic offense was
supported by the record. Accordingly, we overrule Thomas’ second point of error.
III. The Trial Court’s Finding that the Truck Was Used as a Deadly Weapon Is Supported by the Record
“A deadly weapon is anything that ‘in the manner of its use or intended use is capable of
causing death or serious bodily injury.’” Drichas v. State, 175 S.W.3d 795, 798 (Tex. Crim.
App. 2005) (quoting TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (West 2011)). Thomas argues that
the evidence was legally insufficient to prove that the truck was used as a deadly weapon.
“The inquiry on review of the legal sufficiency of the evidence to support a criminal
conviction is whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt after viewing the evidence in a light most favorable to the
prosecution.” Id. (citing Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003); Jackson v.
8 Virginia, 443 U.S. 307, 318–19 (1979)). “Objects that are not usually considered dangerous
weapons may become so, depending on the manner in which they are used during the
commission of an offense.” Id. (citing Thomas v. State, 821 S.W.2d 616, 620 (Tex. Crim. App.
1991)). “A motor vehicle may become a deadly weapon if the manner of its use is capable of
causing death or serious bodily injury.” Id. (citing Ex parte McKithan, 838 S.W.2d 560, 561
(Tex. Crim. App. 1992) (per curiam)). “Specific intent to use a motor vehicle as a deadly
weapon is not required.” Id. (citing McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App.
2000); Walker v. State, 897 S.W.2d 812, 814 (Tex. Crim. App. 1995)).
“To hold evidence legally sufficient to sustain a deadly weapon finding, the evidence
must demonstrate that: (1) the object meets the statutory definition of a dangerous weapon, . . .
(2) the deadly weapon was used or exhibited ‘during the transaction from which’ the felony
conviction was obtained[,] and (3) that other people were put in actual danger.” Id. (citation
omitted) (quoting Ex parte Jones, 957 S.W.2d 849, 851 (Tex. Crim. App. 1997)). Here, Thomas
challenges the third factor.
After Schroeder activated his patrol car lights to initiate the traffic stop of Thomas’
vehicle, Thomas fled, leading to a lengthy and dangerous chase to apprehend him. The video
from Schroeder’s dashcam shows that Thomas committed traffic violations too numerous to
count during the lengthy chase. According to Schroeder, Thomas sped during most of the chase,
travelling “at least 60 miles an hour” through a thirty-five-mile-per-hour zone and reaching a top
speed of eighty miles per hour on the highway. Much of the travelled roadway was a narrow,
winding, two-lane highway. The dashcam video also shows that, while speeding to evade arrest,
9 Thomas switched lanes numerous times without signaling, blazed through stop signs at
intersections in residential areas without stopping, wove within his lane of travel, continuously
crossed into and drove a considerable distance in the opposite lane of travel, and drove several
times with his vehicle in both the southbound and northbound lanes of travel. During one of the
many times Thomas chose to drive in the wrong lane, flagrantly disregarding traffic laws and the
inherent dangers of his actions, Thomas encountered oncoming traffic and barely avoided a
head-on collision.
The dashcam video of the near miss showed that Thomas’ vehicle was completely in the
oncoming lane of travel when the headlights of an oncoming car became visible. Thomas
maneuvered over to the correct lane to avoid the accident just as the oncoming car slammed on
its brakes. Although the video recording demonstrated that Thomas was in the correct lane when
the oncoming car passed, it also shows that the car veered onto the shoulder to avoid the collision
and that the car’s right tires were still on the shoulder when Schroeder passed. Even after this
near miss, Thomas continued to speed off. After several more minutes, Thomas crossed over the
oncoming lane of travel, drove through a ditch, ran the truck into a tree, exited the truck, and
continued evading on foot. The chase ended when Schroeder ran after Thomas, caught up to
him, tased him, and placed him under arrest.
10 Based on the near-miss, the trial court found that the truck was used as a deadly weapon. 2
On appeal, Thomas argues that this finding was in error because there was no accident and
because it was unclear from the dashcam video recording whether the car actually swerved to
avoid Thomas. 3 In establishing that a vehicle is a deadly weapon, it is not necessary that the
evidence prove that another motorist swerved to avoid a collision with the defendant’s vehicle.
See Drichas, 175 S.W.3d at 798 n.6.
2 The trial court’s finding reads as follows:
[T]he Court can see and the video shows the defendant drive on the wrong side of the road on a two-lane, winding road; that there was oncoming traffic in that -- on that road; that that vehicle is coming the other direction.
The defendant is driving in the wrong lane, and is driving in the wrong lane when you can see the headlights of the other vehicle approaching, and is only about four to five seconds away before the defendant’s vehicle gets back into his correct lane of traffic. The video also shows that vehicle having had to move to the side of the road. The vehicle was still moving even when the officer passes it.
....
I believe, by beyond a reasonable doubt, the State has proven its allegation of a deadly weapon, and I will make an affirmative finding of a deadly weapon. 3 Thomas also argues that, because (1) “the video actually shows that the other car did not go off the road to avoid Appellant, but passed him in its own lane of travel, at which time Appellant was in his lane of travel,” and because (2) “the other vehicle then, about one and half to two seconds after passing Appellant, moved to that driver’s right, placing its right wheels off the pavement,” (3) “one can conclude from the video that the other car left the road not because of the actions of Appellant but in order to defer to the officer who was giving chase.” This argument questions the province of the fact-finder. 11 As explained in Drichas, although
the danger posed to motorists must be actual, and not simply hypothetical, the statute itself does not require pursuing police officers or other motorists to be in a zone of danger, take evasive action, or require appellant to intentionally strike another vehicle to justify a deadly weapon finding. . . . The statute specifically pertains to motor vehicles, so a deadly weapon finding is appropriate on a sufficient showing of actual danger, such as evidence that another motorist was on the highway at the same time and place as the defendant when the defendant drove in a dangerous manner.
Id. at 799 (citations omitted).
Here, the danger was actual—not theoretical. Schroeder’s testimony and the dashcam
video from his patrol car demonstrate that another vehicle was on the roadway at the same time
and place as Thomas while Thomas was driving in a dangerous manner. Therefore, viewing the
evidence in a light most favorable to the prosecution, we find it legally sufficient to support the
trial court’s finding that Thomas’ truck was used as a deadly weapon. We overrule Thomas’
third point of error.
IV. There Was No Fatal Variance with Respect to the Enhancement Allegation
Pursuant to a plea of guilty, Thomas was convicted of possession of a controlled
substance on November 3, 1988. Thomas received a suspended sentence of ten years’
imprisonment and was placed on ten years’ probation. On February 27, 1991, the trial court
revoked Thomas’ probation, sentenced him to ten years’ confinement, and ordered him to pay a
$1,000.00 fine. In its indictment, the State alleged that Thomas “was finally convicted” of the
12 felony offense of possession of a controlled substance “on the 28th day of February, 1991, in
Cause Number 9977 in the 115th District Court of Upshur County, Texas.” 4
First, Thomas argues that there is a fatal variance between the indictment and the proof at
trial because the actual date of the underlying conviction was November 3, 1988. While it is
generally true that a conviction resulting in a probated sentence is still a conviction, “‘[i]t is well-
settled that a probated sentence is not a final conviction for enhancement purposes unless it is
revoked.’” Ex parte White, 211 S.W.3d 316, 319 (Tex. Crim. App. 2007) (quoting Ex parte
Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992)). This is true because successful
completion of probation/community supervision renders that conviction unavailable for use in
enhancement. Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992). Thus, the
State’s allegation that Thomas “was finally convicted” on the date that his probation was revoked
is correct. See id.; Williams v. State, 356 S.W.3d 508, 516–17 (Tex. App.—Texarkana 2011, pet.
ref’d); see also Perry v. State, No. 06-08-00039-CR, 2009 WL 1138812, at *7 (Tex. App.—
Texarkana Apr. 29, 2009, pet. ref’d) (mem. op., not designated for publication). 5
Yet, Thomas argues that the indictment lists the date of the judgment revoking probation
as February 28, 1991, whereas the judgment shows that the revocation was entered on
February 27, 1991. “It is well settled that it is not necessary to allege prior convictions for the
purpose of enhancement with the same particularity which must be used in charging on the
4 The State also alleged that Thomas was finally convicted of the felony offense of possession of a controlled substance with intent to deliver “on the 4th day of January, 2002, in Cause Number 3572 in the 8th District Court of Rains County, Texas.” 5 Although this unpublished case has no precedential value, we may take guidance from it “as an aid in developing reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d). 13 primary offense.” Freda v. State, 704 S.W.2d 41, 42 (Tex. Crim. App. 1986). Variances of the
type raised by Thomas are not fatal unless they has misled him to his prejudice. Id.; Thompson
v. State, 563 S.W.2d 247, 251 (Tex. Crim. App. [Panel Op.] 1978); see Dominguez v. State, No.
07-02-0264-CR, 2003 WL 834778, at *1 (Tex. App.—Amarillo Mar. 4, 2003, pet. ref’d) (mem.
op., not designated for publication) (holding immaterial a one-day variance between date of final
conviction as alleged in indictment and as proved at trial). Here, Thomas neither contends nor
illustrates that he was misled to his prejudice in any way by the variance. Thus, the variance is
not fatal. Accordingly, we overrule Thomas’ last point of error.
V. Conclusion
We affirm the trial court’s judgment.
Jack Carter Justice
Date Submitted: November 20, 2014 Date Decided: December 16, 2014
Do Not Publish