COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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MICHAEL LECK TURNER A/K/A No. 08-11-00318-CR
MICHA LEEK TURNER A/K/A §
MICHA LECK TURNER, Appeal from
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Appellant, 43rd District Court
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v. of Parker County, Texas
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THE STATE OF TEXAS, (TC # CR10-0844)
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Appellee.
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OPINION
Michael Leck Turner a/k/a Micha Leek Turner a/k/a Micha Leck Turner, appeals from a
felony conviction for evading arrest or detention with a motor vehicle with two prior convictions
for the same offense. For the following reasons, we affirm.
FACTUAL SUMMARY
On August 30, 2010, between 9:30 and 10 a.m., Patricia Grace heard a knock at her door.
She went to the front bedroom and looked out a window. She saw an unfamiliar woman at her
door and a truck parked at the street. The truck was an older model white Dodge Dakota with
the word “Dakota” written across the door. A man sat inside the truck wearing glasses and a
baseball cap.
Mrs. Grace was home alone and not expecting company, so she did not answer the door.
The woman staggered across her yard, walked to the truck, and got into the passenger side. The
truck then “pulled up a little.” At that point, Mrs. Grace went through her house making sure all
of her doors were locked. As she opened the door between her utility room and her garage, she
realized the garage door was opening. She hit the button to close the door. She made sure the
garage door closed and then waited for a short time to see that the door did not open again.
Mrs. Grace went back inside the house, locked the door, and called the police to report the
incident.
The following day between 4:30 and 5 p.m. the same woman knocked on the front door.
Mrs. Grace saw the same white truck in front of her house. She instantly recognized the truck
and the man in the driver’s seat. Mrs. Grace then yelled for her husband and he called 9-1-1.
Police Officer Tracey Cryer was dispatched to the Grace’s home. At the time, he was in
uniform and driving a marked patrol car. As he approached the location, he observed a white
pickup truck--matching the description--driving toward him. Officer Cryer pulled up so that the
vehicles were facing opposite directions and driver’s door to driver’s door. He rolled down his
window ordered the driver of the truck, later identified as Appellant, to stay put. The officer
testified that his lights were activated during this initial encounter. Officer Cryer then made a
three point turn so that he would be behind Appellant’s truck and facing the same direction.
Before he had completed his turn, Appellant had driven off.
Officer Cryer completed his turn and pursued Appellant, who was traveling at
approximately 89 miles per hour. Appellant sped through an intersection and nearly t-boned
another vehicle, but he was able to slam on his brakes and avoid an accident. Officer Cryer then
caught up so he was right on Appellant’s bumper with his lights flashing and his siren activated.
Appellant stopped, pulled over, and surrendered peacefully. Mrs. Grace’s garage door opener
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and a GPS device which she kept in her vehicle parked outside her home were both recovered
from Appellant’s car.
PROCEDURAL BACKGROUND
Appellant was charged by indictment with the offense of evading arrest or detention. The
indictment also contained two enhancement paragraphs alleging prior convictions for the same
offense. Appellant pled not guilty to the offense charged. Prior to trial, the parties stipulated that
Appellant was the same person who was previously convicted in two evading arrest/detention
with a vehicle cases, as alleged in the enhancement paragraphs of the indictment.
After hearing all of the evidence, the jury found Appellant guilty of the offense as
charged. It also rendered an affirmative finding with respect to Appellant’s use of a deadly
weapon (a motor vehicle) during the commission of the offense. The jury then sentenced
Appellant to serve twenty years in the Texas Department of Criminal Justice-Institutional
Division and to pay $10,000 fine.
SUFFICIENCY OF THE EVIDENCE
In three issues on appeal, Appellant contends the evidence is insufficient to prove beyond
a reasonable doubt that he evaded arrest or detention with a motor vehicle. In Issues One and
Two, he challenges the legal and factual sufficiency of the evidence to support the jury’s finding
that he intended to evade arrest or detention. In Issue Three, Appellant argues that the court
committed reversible error by submitting a special instruction to the jury on the use of a deadly
weapon. As presented, the third point of error is likewise a challenge to the sufficiency of the
evidence.
Standard of Review
We no longer recognize a separate factual sufficiency standard of review in criminal
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cases. Brooks v. State, 323 S.W.3d 893, 894-95 (Tex.Crim.App. 2010). Instead, the legal
sufficiency standard articulated in Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979), is the only standard a reviewing court applies in determining whether the
evidence is sufficient to support a conviction. Brooks, 323 S.W.3d at 894-95. Under the
Jackson standard, we must consider all evidence in the light most favorable to the verdict and in
doing so determine whether a rational justification exists for the trier of fact’s finding of guilt
beyond a reasonable doubt. Brooks, 323 S.W.3d at 894-95, citing Jackson, 443 U.S. at 319, 99
S.Ct. at 2789. In conducting our review we must give deference to the trier of facts
determinations regarding the weight and credibility of witness testimony as the trier of fact is the
sole judge as to the weight and credibility of such testimony. See Brooks, 323 S.W.3d at 894-95.
If the record contains conflicting inferences, we must presume the trier of fact resolved such
facts in favor of the verdict and defer to that resolution. Id. On appeal, we serve only to ensure
the trier of fact reached a rational verdict. Id. We may not reevaluate the weight and credibility
of the evidence produced at trial and in so doing substitute our judgment for that of the fact
finder. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000).
Applicable Law
A person commits the offense of evading arrest or detention, “if he intentionally flees
from a person he knows is a peace officer . . . attempting lawfully to arrest or detain him.”
TEX.PEN.CODE ANN. § 38.04(a)(West Supp. 2012). The statute further provides that:
(b) An offense under this section is a Class A misdemeanor, except that the
offense is:
. . .
(2) a felony of the third degree if:
(A) the actor uses a motor vehicle . . . while the actor is in
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flight and the actor has not been previously convicted under this
section . . . .
TEX.PEN.CODE ANN. § 38.04(b)(2)(A)(West 2011). In other words, the statute provides that the
third-degree offense of evading arrest is committed when a person (1) intentionally; (2) flees; (3)
from a person; (4) he knows is a peace officer; (5) the peace officer is attempting to lawfully
arrest or detain the actor; (6) the actor uses a vehicle while in flight; and (7) the actor has been
previously convicted of evading arrest. Calton v. State, 176 S.W.3d 231, 234 (Tex.Crim.App.
2005). Here, Appellant was charged and convicted of the third degree felony offense of evading
arrest or detention with a motor vehicle.1
Intent to Evade Arrest or Detention
In his first two points of error, Appellant challenges the sufficiency of the evidence to
show he intended to evade arrest or detention. This argument is predicated on Appellant’s
contention that there was no evidence that he heard or otherwise acknowledged Officer Cryer’s
initial verbal instruction to “stay put.”
Officer Cryer testified that he asked Appellant a few questions when he pulled up to the
driver’s side of the truck, including what Appellant was doing in the area and where he was
from. This testimony suggests that Appellant heard the officer because Appellant answered the
questions. During this initial encounter, the officer instructed Appellant “to stop, and not to
move from that spot,” while the officer turned his vehicle around. He described his statements as
a direct command for Appellant to stay put because he was being detained.
Based on this evidence, a rationale jury could have concluded Appellant knew Officer
Cryer was a police officer who was trying to detain him and Appellant fled instead of following
the officer’s orders. In fact, Appellant does not argue that Officer Cryer’s testimony, if believed,
1
The parties stipulated as to Appellant’s prior convictions for the same offense and the jury found the enhancement
paragraph to be true as well.
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is insufficient to show Appellant was being detained; he argues that despite Officer Cryer’s
testimony, “It is unknown [if] Appellant heard the officer or acknowledged the instruction.”
This argument disregards the jury’s province to determine the weight and credibility to give
witness testimony. Here, the jury was free to believe all, some, or none of Officer Cryer’s
testimony. Moreover, Officer Cryer also testified that after handcuffing Appellant, he asked him
why he ran, and Appellant replied that “he had traffic warrants.” A rationale jury could have
viewed his statement as an admission that he did in fact intend to flee. See Washington v. State,
326 S.W.3d 302, 310 (Tex.App.--Fort Worth 2010, pet. ref’d). Viewing all evidence in the light
most favorable to the jury’s verdict, we find sufficient evidence to prove beyond a reasonable
doubt that Appellant knew a police officer was detaining him and fled from that officer.
Appellant’s first two issues are overruled.
Deadly Weapon
The jury not only convicted Appellant of evading arrest or detention with a motor
vehicle, but, in response to a special issue, found that Appellant used or exhibited the motor
vehicle as a deadly weapon during the commission of the offense. In his third and final issue on
appeal, Appellant suggests that the trial court committed reversible error by submitting a special
issue to the jury on a deadly weapon finding because there was no evidence he used his vehicle
as a deadly weapon. According to Appellant, “The only offense committed by Appellant, if in
fact any offense at all, would be speeding over the posted speed limit,” which Appellant asserts
is not sufficient to show he used his vehicle in a manner intended to cause serious injury or death
to any person.
The Texas Penal Code defines a “deadly weapon” as “anything that in the manner of its
use or intended use is capable of causing death or serious bodily injury.” TEX.PENAL CODE ANN.
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§ 1.07(a)(17)(B)(West Supp. 2012). To determine whether sufficient evidence exists to support
a deadly weapon finding in cases involving motor vehicles, we conduct a two-part analysis.
Hilburn v. State, 312 S.W.3d 169, 177 (Tex.App.--Fort Worth 2010, no pet.), citing Sierra v.
State, 280 S.W.3d 250, 255 (Tex.Crim.App. 2009). First, we evaluate the manner in which the
defendant used the motor vehicle during the felony. Sierra, 280 S.W.3d at 255. We then
“consider whether, during the felony, the motor vehicle was capable of causing death or serious
bodily injury.” Id. We look to several factors in determining whether the defendant’s driving
was reckless or dangerous: intoxication, speeding, disregard of traffic signs and signals, erratic
driving, and failure to control the vehicle. Sierra, 280 S.W.3d at 255–56. It is not required that
the actor intend to use the vehicle as a deadly weapon. Drichas v. State, 175 S.W.3d 795, 798
(Tex.Crim.App. 2005). However, the manner of use of the vehicle must pose an actual, not
hypothetical, danger to others. Id. at 799.
Officer Cryer testified that he observed Appellant traveling at a speed of 89 miles per
hour and passing several vehicles along the way. He witnessed Appellant swerve from the left
lane into the right lane, cutting off a large “water truck, a semi truck.” Appellant then drove
threw a red light at an intersection and nearly collided with a car heading in the opposite
direction. Appellant slammed on his brakes and avoided a collision. Cryer testified that he “was
expecting to see a fatality or a major accident.”
Viewing the evidence in the light most favorable to the prosecution, a rational fact finder
could have determined beyond a reasonable doubt that Appellant used his vehicle in a manner
capable of causing death or serious bodily injury. See TEX.PENAL CODE ANN. § 1.07(a)(17);
Sierra, 280 S.W.3d at 256; see also Drichas, 175 S.W.3d at 799 (stating that “a deadly weapon
finding is appropriate on a sufficient showing of actual danger, such as evidence that another
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motorist was on the highway at the same time and place as the defendant when the defendant
drove in a dangerous manner”); Davis v. State, No. 07-04-0104-CR, 2005 WL 3115286, at *3-4
(Tex.App.--Amarillo Nov. 22, 2005, pet. ref’d)(mem. op.)(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). Accordingly, the evidence was
legally sufficient to support the jury’s deadly weapon finding. We overrule Issue Three and
affirm the trial court’s judgment.
October 2, 2013
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating
(Do Not Publish)
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Michael Leck Turner A/K/A Micha Leek Turner A/K/A Micha Leck Turner v. State
Combined Opinion