Jeremy Wade Pue v. State

NO. 07-09-0020-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

JUNE 30, 2009

______________________________

JEREMY WADE PUE,

                                                                                                 Appellant

v.

THE STATE OF TEXAS,

                                                                                                 Appellee

_________________________________

FROM THE 207^TH DISTRICT COURT OF COMAL COUNTY;

NO. CR2008-214; HON. CHARLES RAMSAY, PRESIDING

_______________________________

Memorandum Opinion

______________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Jeremy Wade Pue appeals his conviction for evading arrest with a vehicle. He contends that the evidence was legally and factually insufficient to support the jury’s finding that he used a deadly weapon in the commission of the offense. We affirm.

Background

          Appellant was observed speeding by a police officer. The latter attempted to stop him and activated his lights and siren for that purpose. In response, appellant sped up to approximately 132 miles per hour, ran several stop lights, wove in and out of traffic, “passed other vehicles on the wrong side of the road,” and “nearly sideswiped” another vehicle in attempt to evade the police. Cars were “having to pull over and get out of the way . . . .” Other officers joined in the pursuit which resulted in their placing spikes on the roadway. Though appellant ran over the spikes and suffered a punctured tire, he continued driving on a wheel rim. He was ultimately apprehended and charged with evading arrest while using or exhibiting a deadly weapon. A jury thereafter convicted him of that offense.

Analysis

          The well-established standards by which we review sufficiency complaints are discussed in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), Watson v. State, 204 S.W.3d 404 (Tex. Crim. App. 2006), and their progeny. We need not address them here. Suffice it to say that their application at bar, according to appellant, would reveal that the jury improperly found that he used or exhibited a deadly weapon during his commission of the crime. We disagree.

          The Texas Penal Code defines a “deadly weapon” as “anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or . . . anything that in the manner of its use or intended use is capable of causing death or serious bodily injury . . . .” Tex. Pen. Code Ann. §1.07(a)(17)(A) & (B) (Vernon Supp. 2008). Here, the deadly weapon appellant allegedly used or exhibited was a motor vehicle. Authority holds that such a mechanism can be a deadly weapon when its use or exhibition actually endangers life, i.e. when it does more than simply present a mere potential for endangering others. Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003), citing Mann v. State, 13 S.W.3d 89, 92 (Tex. App.–Austin 2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001). It was the latter requirement, according to appellant, which the State failed to prove. That is, he posited that the evidence at bar did nothing more than show his driving to be a mere potential or hypothetical threat of endangerment. Yet, that appellant engaged in a 25 mile and 12 minute effort to evade police, almost “sideswiped” another vehicle, wove in and out of traffic, ran stop signs, crossed into the “wrong lane” of traffic to pass vehicles, traveled at speeds approximating 132 mph on local roads, drove on a wheel rim once the tire was punctured, drove recklessly according to one officer, “nearly lost control [of his vehicle] a couple of times around curves or going into the other lane of traffic,” passed three cars at the same time at one point, swerved to pass other motorists, and drove at high speeds around blind curves is some evidence upon which a rational jury could conclude, beyond reasonable doubt, that his vehicle actually endangered others. See Drichas v. State,175 S.W.3d 795, 798 (Tex. Crim. App. 2005) (holding evidence of the vehicle driving on the wrong side of the highway as legally sufficient to support a deadly weapon finding); see also Davis v. State, No. 07-04-0104-CR, 2005 Tex. App. Lexis 9745 (Tex. App.–Amarillo November 22, 2005, pet. ref’d) (not designated for publication) (holding that evidence of appellant’s ignoring a stop sign and driving through an intersection without stopping, driving through a residential area at speeds up to 60 miles per hour, and continuously ignoring the patrol car’s emergency lights was legally sufficient evidence to support the finding that he used his vehicle as a deadly weapon). Moreover, so finding neither evinced manifest injustice nor undermined our confidence in the proceeding given the entire record. Consequently, the deadly weapon finding enjoys the support of both legally and factually sufficient evidence.

          Appellant’s issues are overruled, and the judgment is affirmed.

 

                                                                           Per Curiam

 

Do not publish.

jury's verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003). Cognizant that we are to consider all evidence in a neutral light in conducting a factual sufficiency review, we are not, however, required to discuss all evidence admitted at trial. See id. See also Roberts v. State, 221 S.W.3d 659, 665 (Tex.Crim.App. 2007).

The jury is the exclusive judge of the facts. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007) & art. 38.04 (Vernon 1979). As a reviewing court, we must always remain cognizant of the jury's role and unique position in evaluating credibility and demeanor of witnesses and giving weight to contradictory testimonial evidence. Johnson v. State, 23 S.W.3d 1, 8-9 (Tex.Crim.App. 2000). Reconciliation of conflicts in the evidence is within the exclusive province of the jury. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000). Unless the record clearly demonstrates a different result is appropriate, we must defer to the jury's determination. Johnson, 23 S.W.3d at 8.

Sex Offender Registration

Chapter 62 of the Texas Code of Criminal Procedure governs sex offender registration. The sex offender registration laws took effect on September 1, 1991. However, effective September 1, 1997, the Legislature made the registration requirements apply retroactively to any person with a "reportable conviction or adjudication" occurring on or after September 1, 1970. ⁽⁷⁾ See Tex. Code Crim. Proc. Ann. art. 62.002(a). Article 62.051(a) provides that a person who has a reportable conviction shall register with the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days. Tex. Code Crim. Proc. Ann. art. 62.051(a) (Vernon 2006). Article 62.055(a) provides that if a person required to register intends to change address, that person shall, not later than the seventh day before the intended change, report in person to the local law enforcement authority designated as the person's primary registration authority and provide that authority with the person's anticipated move date and new address. Tex. Code Crim. Proc. Ann. art. 62.055(a) (Vernon Supp. 2009). A person commits a felony offense when he is required to register and fails to comply with any requirement of chapter 62. Tex. Code Crim. Proc. Ann. art. 62.102(a) (Vernon 2006).

Legal Sufficiency Analysis

Through the custodian of records for the Texas Department of Criminal Justice-Institutional Division, the State proved that, on October 22, 1991, Appellant was convicted of the aggravated sexual assault of a child. The offense was alleged to have occurred on or about March 25, 1991. Aggravated sexual assault of a child is a reportable conviction. See Tex. Code Crim. Proc. Ann. art. 62.001(5)(A). Accordingly, Appellant falls within the class of offenders subject to the registration requirements of chapter 62.

A copy of the judgment of conviction was admitted into evidence, and the trial court took judicial notice that it is the type of offense that qualifies as a reportable conviction for purposes of chapter 62, subjecting Appellant to the requirements of sex offender registration. The State also introduced a copy of Appellant's signed pre-release notification form explaining to Appellant the registration requirements upon his release from prison and his duty to register.

According to Lieutenant Davis, the custodian of records for the sex offender registration in Canyon, Appellant registered with the Canyon Police Department on July 28, 2006. At that time, Appellant gave his address as 1003 3rd Avenue, Canyon, Texas. Appellant also complied with his annual verifications.

The evidence established that Appellant moved to Clovis, New Mexico on February 6, 2008, intending to enter a six-month rehabilitation program. Although Appellant did register with the appropriate law enforcement authority upon arriving in Clovis, he failed to report his intended change of address to the Canyon Police Department, in person, seven days prior to his intended move. See Tex. Code Crim. Proc. Ann. art. 62.055(a). After realizing that the rehabilitation program in Clovis did not suit Appellant, he returned to Canyon and on February 11th asked his previous employer for a job. ⁽⁸⁾ When he was arrested on February 14th he told the arresting officer that he resided at 1003 3rd Avenue in Canyon. Using February 14th as the latest arrival date in Canyon, his re-registration with the Canyon Police Department on February 22, 2008, was outside the seven day period provided by article 62.051(a)(1).

Appellant insists that the State failed to prove he intentionally or knowingly violated the requirements of sex offender registration. We disagree. Circumstantial evidence of intent must be reviewed with the same scrutiny as other elements of an offense. Laster, 275 S.W.3d at 519-20. ⁽⁹⁾ Regarding Count I of the indictment, Appellant intended to be in Clovis for a six-month program and did not report in person to the Canyon Police Department at least seven days prior to his intended change of address. Evidence of his intent to move to Clovis is demonstrated by the fact that he took his belongings and immediately registered as a sex offender in Clovis. As for Count II, the evidence shows that when Appellant was arrested on February 14th, he told Officer Savage he was living at 1003 3rd Avenue in Canyon. However, he waited at least eight days to register with the Canyon Police Department. This evidence sufficiently establishes that Appellant acted intentionally. See Tex. Penal Code Ann. § 6.03(a) (Vernon 2003).

Viewing the foregoing facts in a light most favorable to the prosecution, we conclude that a rational jury could have found the essential elements of each charged offense beyond a reasonable doubt. Concluding the evidence is legally sufficient to support Appellant's conviction, we must now determine whether it is factually sufficient.Factual Sufficiency Analysis

As stated previously, the facts established the following chronology of Appellant's whereabouts:

• February 6, 2008 - Appellant travels to Clovis, New Mexico, for a six-month rehabilitation program operated by his Uncle, Joe Padilla;
• February 7, 2008 - Appellant registers with the Curry County Sheriff's Office and provides 407 L. Casillas, Clovis, New Mexico 88101, the address of the rehabilitation center, as his address;

• February 9, 2008 - Appellant temporarily in Canyon to talk to his family about the rehabilitation program;
• February 11, 2008 - Appellant voluntarily leaves the rehabilitation program; Appellant meets with the manager of the Pizza Hut in Canyon to request employment;
• February 14, 2008 - Appellant is arrested by Canyon Police Officer Aaron Savage and provides the address of 1003 3rd Avenue, Canyon, Texas during the booking process;

• February 15, 2008 - Appellant's brother-in-law posts bond;

• February 16, 2008 - Appellant resumes living with his sister and brother-in-law at 1003 3rd Avenue in Canyon;
• February 22, 2008 - Appellant reports to the Canyon Police Department and registers 1003 3^rd Avenue, Canyon, Texas, as his residence.

According to the chronology of events, Appellant never reported in person, as required by article 62.055(a), to the Canyon Police Department that he intended to move to Clovis. Appellant's address during the gap between February 11th and 14th is uncertain. However, at the time of his arrest in Canyon on February 14th, he claimed to be living at 1003 3rd Avenue in Canyon. Assuming Appellant had "arrived" in Canyon by that date, he was required to register by February 21st. Consequently, Appellant's registration with the Canyon Police Department on February 22nd fell outside the statutory seven days to register and was not in compliance with article 62.051(a)(1). Viewing the evidence in a neutral light, we cannot conclude that Appellant's conviction is clearly wrong or manifestly unjust. The evidence demonstrates that Appellant failed to comply with certain requirements of the sex offender registration program.

Conclusion

We conclude the evidence embraces all the essential elements of the charged offense and is legally and factually sufficient to support Appellant's conviction. Issues one through six are overruled. Accordingly, the trial court's judgment is affirmed.

Patrick A. Pirtle

Justice

Do not publish.

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.

2. Tex. Code Crim. Proc. Ann. art. 62.102(a) (Vernon 2006).

3. During the punishment phase, evidence was presented that Appellant actually lived at a different address in Canyon before moving in with his sister and brother-in-law.

4. See Tex. Code Crim. Proc. Ann. art. 62.055(a).

5. See Tex. Code Crim. Proc. Ann. art. 62.051(a).

6. Although we combine the standard of review for sufficiency of the evidence, for purposes of our analysis, we will not combine the discussions. See Laster, 275 S.W.3d at 519. "[D]etermining the legal and factual sufficiency of evidence requires the implementation of separate and distinct standards." Id. quoting Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Courts and litigants should not combine their legal and factual sufficiency analyses. Laster, 275 S.W.3d at 519.

7. See Act of June 1, 1997, 75th Leg., R.S., ch. 668, § 1, 1997 Tex. Gen. Laws 2253, 2260.

8. It is not clear in the record where Appellant resided on February 11, 2008.

9. Abrogating a less stringent review of the element of intent previously authorized by Margraves v.State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000).