11th Court of Appeals
Eastland, Texas
Opinion
John Vernon Hobbs
Appellant
Vs. No. 11-03-00082-CR B Appeal from Dawson County
State of Texas
Appellee
The jury convicted John Vernon Hobbs of the offense of burglary of a habitation with the intent to commit the felony offense of evading arrest. The jury also convicted appellant of the offense of evading arrest with a vehicle. The jury found that appellant used or exhibited a deadly weapon in the course of committing the offense of evading arrest. Appellant pleaded true to three enhancement paragraphs. The jury assessed his punishment at 40 years confinement for each offense. The trial court ordered that the sentences run concurrently. We affirm.
Late one night, Robby Christopher and Bret Carroll, professional land surveyors, were returning to Lubbock from a business meeting in Midland. As they were traveling on U.S. Highway 87 north of Lamesa, a woman jumped in front of their pickup; she was waving frantically. Christopher and Carroll stopped to see if the woman needed help. While they were stopped, a vehicle traveling southbound stopped, and a man got out of the vehicle and came toward their pickup. After he looked around and in the back of the pickup, he asked: AWhere=s my wife.@ Then he went back to his vehicle and left. Christopher and Carroll reported the incident to A911.@ While they were attempting to find the woman who had jumped in front of them, they saw State Trooper Ronald Mann in his patrol car chasing the vehicle that had stopped by their pickup. Later that night, Christopher and Carroll discovered blood on the door of their pickup. The blood had not been there before they stopped to check on the woman.
Trooper Mann testified that, on the night that the offense of evading arrest began, he heard a dispatch regarding a woman in the roadway north of Lamesa on U.S. Highway 87. Trooper Mann learned that a man in a white, two-door older-model vehicle had picked up the woman. Trooper Mann began to pursue a car which fit that description. He attempted to get the vehicle to pull over by activating his lights and using verbal commands over the PA system installed in his patrol unit. The driver of the vehicle made several U-turns on the shoulder, drove on the wrong side of the road, and crossed the median to the proper side of the highway. The driver finally turned onto a county road; and, eventually, drove into a private driveway; drove around a house located there; and then returned to the highway. At some point in time, the woman managed to get out of the vehicle.
After appellant reentered the highway, he drove the vehicle for about a mile and turned into a field. Trooper Mann did not follow the vehicle into the field for fear of damaging his patrol car; but, rather, he and others set up a perimeter and began a search. Authorities found the vehicle abandoned in a field adjacent to the field that appellant had first entered. There were footprints headed southwest along the driver=s side of the abandoned vehicle; there was also a set of prints left by a small dog. Officer Kent Parchman, a K-9 officer with the Dawson County Sheriff=s Department, and his dog followed those Atracks@ until the search was called off for the night. The next morning, Officer Parchman=s dog picked up the tracks on the perimeter of Waldrop=s Well, the place where the officers had set up a command post. The tracks ended at a house located at Waldrop=s Well and the officers apprehended appellant there. The woman who had been in the car did not appear to have been injured, but she was concerned about two small dogs that had been in the car with her before appellant pushed her out of the vehicle. When authorities finally located appellant, he had a small dog with him.
Appellant brings four points of error. First, he asserts that the evidence is legally insufficient to support an affirmative finding that he used a deadly weapon in connection with the evading arrest with a motor vehicle conviction. Next, he asserts that the evidence is legally insufficient to support a conviction of burglary of a habitation because the felony was complete at the time of entry into the habitation. Appellant asserts in a pro se supplemental brief that the evidence is legally and factually insufficient to support a conviction of evading arrest with a motor vehicle.
First, we will address appellant=s contention that the evidence is legally and factually insufficient to support the conviction of evading arrest with a motor vehicle. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). In order to determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light and determine whether the evidence supporting guilt is so weak as to render the conviction clearly wrong and manifestly unjust or whether the evidence supporting guilt, although adequate when taken alone, is so greatly outweighed by the overwhelming weight of contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404 (Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996).
A person commits the offense of evading arrest when he intentionally flees from a person who he knows is a peace officer and who is attempting lawfully to arrest or to detain him. The offense becomes a felony if the person uses a vehicle while in flight. TEX. PENAL CODE ANN. ' 38.04 (Vernon 2003). Appellant contends that there was insufficient evidence to show that he was the operator of the motor vehicle. Appellant argues that there was no blood found on him, in his vehicle, or at the scene and, therefore, that he could not be the person who approached Christopher and Carroll and left bloodstains on the pickup. Also, Christopher and Carroll did not identify appellant as the man who came up to their pickup on the date of the offense. However, Trooper Mann identified appellant=s vehicle as fitting the description that Christopher and Carroll reported and stated that it was in close proximity to the place where the initial contact was made. Trooper Mann said that the abandoned vehicle in the field was the same one that he had been pursuing.
Appellant further argues that there was no evidence that the tracks found at the house where appellant was found were the same tracks found by Officer Parchman next to the abandoned vehicle in the field. There were no comparison casts made of the footprints so that they might be matched to appellant=s footwear. Also, no officer was able to testify what type of shoes appellant was wearing when he was arrested. Officer Parchman testified that he only tracked the prints that were south of the vehicle. However, in order to be sure that there was no contamination of the scene around the vehicle, Officer Parchman started tracking about a quarter of a mile from where the driver had gotten out of the vehicle; there were no other footprints other than appellant=s coming from where he had left the vehicle. Officer Parchman=s dog immediately picked up the track and followed it. In Officer Parchman=s opinion, the tracks found at the location of the abandoned vehicle and the tracks later found at Waldrop=s Well were the same tracks. He testified that the tracks alerted on by his dog at Waldrop=s Well the next morning were similar in shape. The tracks were Asome type of hiking boot, that waffle-type print, there was also a set of smaller dog tracks.@ There were no other footprints in the perimeter of Waldrop=s Well that had dog prints with them.
It is clear from viewing the evidence in the light most favorable to the verdict that a rational trier of fact could have found that appellant was evading arrest in the motor vehicle that Trooper Mann pursued and later found abandoned. Also, there was no contrary evidence that was so overwhelming such that the verdict was clearly wrong or manifestly unjust. We overrule both of the points raised in appellant=s supplemental pro se brief.
We also hold that the evidence was legally sufficient to support an affirmative finding that appellant used the vehicle as a deadly weapon. Evidence is legally sufficient if, after reviewing all the evidence in the light most favorable to the verdict, we determine that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, supra; Jackson v. State, supra.
TEX. PENAL CODE ANN. ' 1.07(a)(17)(B) (Vernon Supp. 2004) defines a deadly weapon as Aanything that in the manner of its use or intended use is capable of causing death or serious bodily injury.@ An automobile can be a deadly weapon if it is driven so as to endanger lives. Tyra v. State, 897 S.W.2d 796 (Tex.Cr.App.1995). The evidence must demonstrate that the deadly weapon was used or exhibited Aduring the transaction from which@ the felony conviction was obtained. The evidence must support more than just a hypothetical potential for danger. There must be evidence that others were actually in danger. Cates v. State, 102 S.W.3d 735, 738 (Tex.Cr.App.2003); Mann v. State, 13 S.W.3d 89 (Tex.App. B Austin 2000), aff=d, 58 S.W.3d 132 (Tex.Cr.App.2001). The evidence in this case supports a finding that there were others who were actually in danger at the time appellant was operating the vehicle. Appellant had a passenger in the vehicle for a portion of the time that he was evading arrest. Appellant made several U-turns from the shoulder of the road, drove on the wrong side of the road, and crossed the median. Appellant was traveling at high speeds, and he was turning the lights off and on and other drivers could not see the vehicle. At one point, appellant drove around a house, through a backyard, and back onto the road; a gas tank was located by the side of the house. Trooper Mann saw other vehicles while he was pursuing appellant. Trooper Mann testified that appellant was operating the vehicle in a dangerous manner. A camera mounted in the trooper=s vehicle recorded the pursuit, and the jury saw that tape recording. The evidence is legally sufficient to show that appellant used the vehicle in such a manner that it was capable of causing death or serious bodily injury. Appellant=s first point of error is overruled.
Next, appellant contends that the evidence was not legally sufficient to support the burglary of a habitation conviction. A person commits the offense of burglary of a habitation if: (1) without the effective consent of the owner; (2) he enters a habitation; (3) not then open to the public; (4) with intent to commit a felony, a theft, or an assault. TEX. PENAL CODE ANN. ' 30.02(a)(1) (Vernon 2003).
The State alleged in the indictment that appellant had the intent to commit the felony of evading arrest. Again, a person commits the offense of evading arrest when he intentionally flees from a person who he knows is a peace officer that is attempting lawfully to arrest or to detain him. Section 38.04. The offense becomes a felony when the person uses a vehicle while in flight. Section 38.04. Appellant argues that the offense of evading arrest was complete when appellant abandoned the vehicle in the field. Thus, appellant argues that he could not have entered the habitation with the intent to commit felony evading arrest. We disagree. Generally, a crime is complete when each of the elements have occurred. Barnes v. State, 824 S.W.2d 560 (Tex.Cr.App.1991), overruled on other grounds, Proctor v. State, 967 S.W.2d 840 (Tex.Cr.App.1998). However, evading arrest is an offense that is inherently a continuing offense. Unlike escape which is complete when a defendant departs from custody without permission, a person fleeing from a peace officer continues to flee until he is caught. Appellant relies upon Lawhorn v. State, 898 S.W.2d 886 (Tex.Cr.App.1995), for his proposition. In Lawhorn, the defendant was charged with burglary of a habitation with intent to commit the felony offense of escape. The court there noted that the escape offense was over as soon as the escape occurred. That is not the case when the charge is evading arrest. Here, the offense of evading arrest began when appellant did not stop after Trooper Mann turned on his overhead lights and began to pursue him. The offense continued until appellant was later caught and arrested. Appellant used a vehicle while in flight and in the course of evading arrest, and he committed a felony. Appellant engaged in a continuous course of conduct of evading, not two separate offenses of evading. See Fox v. State, 801 S.W.2d 173 (Tex.App. B Houston [14th Dist.] 1990, pet=n ref=d). The evidence is legally sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant committed the offense of burglary of a habitation with the intent to commit the felony offense of evading arrest with a vehicle. We overrule appellant=s second point of error.
The judgment of the trial court is affirmed.
JIM R. WRIGHT
JUSTICE
February 26, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.