James Wayne Walsh v. State ( 2015 )


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  •                                                                                   ACCEPTED
    06-15-00059-CR
    SIXTH COURT OF APPEALS
    TEXARKANA, TEXAS
    8/11/2015 11:24:05 AM
    DEBBIE AUTREY
    CLERK
    IN THE COURT OF APPEALS FOR THE
    SIXTH DISTRICT OF TEXAS AT TEXARKANA
    FILED IN
    6th COURT OF APPEALS
    TEXARKANA, TEXAS
    STATE OF TEXAS,            §                       8/11/2015 12:19:00 PM
    APPELLEE                §                            DEBBIE AUTREY
    Clerk
    §                06-15-00059-CR
    v.                     §            No. 06-14-00059-CR
    §
    JAMES WAYNE WALSH,         §
    APPELLANT                §
    STATE'S REPLY BRIEF
    FROM THE 196TH DISTRICT COURT
    HUNT COUNTY, TEXAS
    TRIAL CAUSE NUMBER 28,919
    THE HONORABLE ANDREW BENCH, JUDGE PRESIDING
    NOBLE DAN WALKER, JR.
    District Attorney
    Hunt County, Texas
    G CALVIN GROGAN V
    Assistant District Attorney
    P. 0. Box 441
    4th Floor Hunt County Courthouse
    Greenville, TX 75403
    (903) 408-4180
    FAX (903) 408-4296
    State Bar No. 24050695
    TABLE OF CONTENTS
    TABLE OF CONTENTS .......................................................................................... 2
    INDEX OF AUTHORITIES ..................................................................................... 3
    STATEMENT OF CASE .......................................................................................... 5
    ISSUES
    PRESENTED ..................................................................................... 5
    SUMMARY OF STATE'S ARGUMENTS ............................................................ 5
    STATEMENT OF FACTS ........................................................................................ 6
    EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE APPELLANT
    EVADED ARREST WITH A VEHICLE ................................................................. 9
    STANDARD OF
    REVIEW ......................................................................................... 9
    STRONG CIRCUMSTANTIAL EVIDENCE ........................................................ I a
    EVADING ARREST IS A CONTIUNOUS OFFENSE ......................................... l2
    EVIDENCE WAS LEGALLY SUFFICIENT TO PROVE APPELLANT'S
    USED MOTOR VEHICLE AS A DEADLY WEAPON ....................................... 13
    STANDARD OF REVIEW ..................................................................................... l3
    OFFICER'S IN-CAR VIDEO .................................................................................. l3
    PRAYER .................................................................................................................. 14
    CERTIFICATE OF SERVICE ................................................................................ 15
    2
    INDEX OF AUTHORITIES
    Federal Cases
    Jackson v. Virginia, 
    443 U.S. 307
    (1987) .............................................................. 9
    Texas Cases
    Boutwell v. State, 
    719 S.W.2d 164
    , 180 (Tex. Crim. App. 1985) ........................ 11
    Brooks v. State, 
    323 S.W.3d 893
    , 912 (Tex. Crim. App. 2010) ............................. 9
    Cates v. State, 
    102 S.W.3d 735
    , 739 (Tex. Crim. App. 2003) ............................. 10
    Davis v. State, 
    964 S.W.2d 352
    , 354 (Tex. App.- Fort Worth 1998, no pet.) .... 11
    Earls v. State, 
    707 S.W.2d 82
    , 85 (Tex.Crim.App.1986) ..................................... 10
    Geesa v. State, 
    820 S.W.2d 154
    , 158 (Tex. Crim. App. 1991) .............................. 9
    Hernandezv. State, 
    13 S.W.3d 78
    ,80 (Tex. App. -Texarkana2000) ................ 11
    Hobbs v. State, 
    175 S.W.3d 777
    , 781 (Tex. Crim. App. 2005) ............................ 12
    Swearingen v. State, 
    101 S.W.3d 89
    , 97 (Tex. Crim. App. 2003, en bane) ........... 
    9 Will. v
    . State, 
    970 S.W.2d 566
    (Tex. Crim. App. 1998) ............................... 11
    Texas Statutes
    TEX. Penal Code§ 1.07(17)(A) (Vernon 2013) ................................................... 13
    TEX. Penal Code§ 38.04(a) (Vernon 2013) ......................................................... 10
    3
    IN THE COURT OF APPEALS FOR THE
    SIXTH DISTRICT OF TEXAS AT TEXARKANA
    THE STATE OF TEXAS,                       §
    APPELLEE                               §
    §
    v.                                  §             No. 06-14-00059-CR
    §
    JAMES WAYNE WALSH,                        §
    APPELLANT                              §
    STATE'S REPLY BRIEF
    TO THE HONORABLE COURT OF APPEALS:
    NOW COMES the State of Texas, Appellee, in this appeal from
    Cause No. 28,919 in the I 96th District Court in and for Hunt County, Texas,
    Honorable Andrew Bench, Presiding, now before the Sixth District Court of
    Appeals, and respectfully submits this its brief to the Sixth District Court of
    Appeals.
    4
    Statement of the Case
    Appellant was indicted for Evading Arrest Using a Vehicle on March
    22, 2013, and arraigned on May 8, 2013. CR Vol.l.p.4. After several
    continuances, Appellant was found guilty by a jury on February 11, 2015,
    and sentenced to forty-five years in the Texas Department of Corrections.
    CR Vol.1.p.5. The jury also made an affirmative deadly weapon finding.
    CR Vol.1.p.45. Appellant gave written notice of appeal on February 17,
    2015. CR Vol.l.p.53.
    ISSUE PRESENTED
    Issue 1. Was the Evidence Legally Sufficient to Prove Appellant Evaded
    Arrest in a Motor Vehicle?
    Issue 2: Was the Evidence Legally Sufficient to Prove Appellant Used a
    Motor Vehicle as a Deadly Weapon?
    SUMMARYOFTHEARGUMENT
    1. When the strong circumstantial evidence is viewed in a light most
    favorable to the State, a rational juror could have found all the elements
    of Evading Arrest in a Motor Vehicle proven beyond a reasonable doubt.
    2. When Officer Wooldridge's in-car video is viewed in a light most
    favorable to the State, a rational juror could have found beyond a
    5
    reasonable doubt the Appellant used the pickup truck in a manner that
    could have caused death or serious bodily injury.
    Statement of the Facts
    On February 11,2013, around 5:00p.m. in the late afternoon, Ricky
    Nelson observed a suspicious person near his commercial property. RR
    Vol.4.p.30. Upon closer inspection, Mr. Nelson believed the man was trying
    to steal a loaded utility trailer by hooking it up to a pickup truck. RR
    Vol.4.pp.32, 40. At no time did Mr. Nelson ever see another person around
    or in the suspicious pickup truck. RR Vol.4.pp.33, 44. Mr. Nelson identified
    the suspicious person as being shorter than 5' 11". RR Vol.4.p.33. Mr.
    Nelson gave short pursuit in his vehicle until he was able to flag down a
    Greenville Patrol Car on Moulton Street. RR Vol.4.pp.34, 47. After Mr.
    Nelson pointed out the suspicious vehicle and explained what he had
    observed, Greenville Police Officer Bobby Woolridge immediately spotted
    the suspect in a tan Ford pickup truck driving through a nearby retail parking
    lot. RR Vol.4.pp.35, 47, 50; State's Exhibit No. 15. Officer Woolridge
    pulled into the parking lot and got directly behind the tan pickup truck. RR
    Vol.4.p.51. Officer Woolridge's in-car video equipment began recording
    thirty seconds prior to the activation of the overheard lights. RR Vol.4.p.51;
    State's Exhibit No. 21. After pulling onto the service road, Officer
    6
    Woolridge activated his sirens but the tan Ford pickup truck continued
    moving forward. RR Vol.4.p.52. After committing several traffic violations,
    the tan Ford pickup truck entered the onramp for Interstate 30 ("IH-30")
    westbound traffic. RR Vol.4.p.53. Eventually, Officer Woolridge observed
    the tan Ford pickup truck drive through the grass median until it got onto the
    IH-30 service road. RR Vol.4.p.54. Officer Woolridge saw the tan Ford
    pickup truck head northbound on Davis Circle, a residential street that had
    no exit. RR Vol.4.pp.56-7. To avoid getting stuck in the mud and knowing
    the pickup truck could not escape, Officer Woolridge drove further up IH-30
    until it was safe to tum around. RR Vol.4.p.56.
    During the chase, which lasted over a minute and included driving on
    Interstate 3 0 at a high rate of speed, several innocent motorists had to take
    evasive action to avoid harm's way. The chase ended because the tan Ford
    pickup truck got stuck in a ditch behind a residence on Davis Circle. RR
    Vol.4.p.58; State's Exhibit No.4. Although Officer Woolridge lost sight of
    the suspect vehicle for approximately two minutes, he relocated the vehicle
    and requested backup assistance. RR Vol.4.p.61. While Officer Woolridge
    waited for backup to arrive, he saw Appellant leaning into the driver's side
    of the tan Ford pickup truck. RR Vol.4.p.62. Officer Woolridge believed
    7
    Appellant was removing items from the pickup truck. RR Vol.4.p.62.
    Officer Woolridge also described the suspect as short. RR Vol.4.p.67. After
    Officer Woolridge gave verbal commands to stop, Appellant took off
    running. RR Vol.4.p.67. Similar to Mr. Nelson, at no time did Officer
    Woolridge ever see more than one person inside the tan Ford pickup truck.
    RR Vol.4.pp.52, 67.
    Once other Greenville Police Officers arrived, a perimeter was setup
    near the area the Appellant was last seen. After spending thirty minutes
    canvassing the nearby neighborhood, Greenville Police Officers Phillip
    Spencer and Sgt. Eric Camp came upon a shed in a residential backyard. RR
    Vol.4.pp.72, 135. Officer Spencer tracked foot shoeprints through the mud,
    which led him to the shed. RR Vol.4.pp.144-5. Appellant was found inside
    the shed and taken into custody. RR Vol.4.pp.73, 94; State's Exhibit Nos.
    18& 19. According to the arresting officers, Appellant was hiding inside the
    shed, and officers used a show of force to get him into custody. RR
    Vol.4.pp.133, 165. The shed was about 200 yards away from the stuck tan
    Ford pickup truck. RR Vol.4.p.69. Police also found documentation linking
    Appellant to the suspect vehicle during their evidence collection at the crime
    scene. RR Vol.4.p.93; State's Exhibit No.8.
    8
    ARGUMENT
    1. Evidence was Legally Sufficient to Prove Appellant Evaded Arrest in
    a Motor Vehicle
    a. Standard of Review
    When reviewing legal sufficiency of the evidence, the Courts review all
    the evidence in a light most favorable to the jury's verdict to determine
    whether any rational jury could have found the essential elements of the
    charged offense beyond a reasonable doubt. Brooks v. State, 
    323 S.W.3d 893
    , 912 (Tex. Crim. App. 2010); Jackson v. Virginia, 
    443 U.S. 307
    ,319
    (1987). The standard of review is the same for both direct evidence and
    circumstantial evidence cases. Geesa v. State, 
    820 S.W.2d 154
    , 158 (Tex.
    Crim. App. 1991). "While each piece of evidence lacked strength in
    isolation, the consistency of the evidence and the reasonable inferences
    drawn therefrom, provide the girders to strengthen the evidence and support
    a rational jury's finding the elements beyond a reasonable doubt."
    Swearingen v. State, 
    101 S.W.3d 89
    , 97 (Tex. Crim. App. 2003). To prove
    Evading Arrest in a Motor Vehicle, the State had to prove beyond a
    reasonable doubt that Appellant intentionally fled from a person he knows is
    9
    a peace officer attempting to lawfully detain or arrest him. TEX. PEN. CODE
    Sec. 38.04(a) (Vernon 2013).
    b. Strong Circumstantial Evidence
    Appellant's sole contention at trial and on appeal is that he was not
    driving the tan Ford pickup truck on February 11, 2013, and that the State
    failed to prove his identity as the driver of the tan Ford pickup truck.
    "Evidence as to the identity of a perpetrator of an offense can be proved by
    either direct or circumstantial evidence." Earls v. State, 
    707 S.W.2d 82
    , 85
    (Tex.Crim.App.1986).
    Officer Woolridge tried to investigate into Mr. Nelson's suspicions
    further by turning on his overheads and siren, but the tan Ford pickup truck
    refused to stop. Neither Mr. Nelson nor Officer Woolridge ever saw more
    than one person operating the tan Ford pickup truck on February 11, 2013.
    Both witnesses described the pickup truck driver as being short.
    Officer Woolridge saw Appellant removing items from the vehicle. RR
    Vol.4.p.112. Instead of complying with Officer Woolridge's command to
    stop, Appellant took off running. However, Appellant left behind
    identifying information near the pickup truck that was later collected by
    police. "Facts occurring before and after an offense can .... be relevant
    10
    circumstantial evidence ofthe offense charged." Cates v. State, 
    102 S.W.3d 735
    , 739 (Tex. Crim. App. 2003).
    In Hernandez, this Court found facts very similar to be legally sufficient
    to prove the Appellant was operating a motor vehicle while intoxicated.
    Hernandez v. State, 
    13 S.W.3d 78
    , 80 (Tex. App.- Texarkana 2000). In
    Hernandez, Appellant was placed by witnesses, immediately after the
    accident, on the driver's side of a pickup truck which belonged to him. !d.
    There are several possible motives for Appellant's actions that day: 1) Mr.
    Nelson caught Appellant trying to steal a utility trailer, 2) David Coulson
    testified that he discovered his tan Ford pickup truck missing only a few
    hours earlier, and he did not know the Appellant nor give him permission to
    use it that day. RR Vol.4.pp.23-4, and 3) State's Exhibit No.8 shows
    Appellant was on parole and in a stolen vehicle. A person's motive to
    commit a particular crime can help with identification issues. Boutwell v.
    State, 
    719 S.W.2d 164
    , 180 (Tex. Crim. App. 1985). All ofthese illegal acts
    leading up to the evading arrest showed a plan by the Appellant.
    There is no logical explanation why the Appellant's personal belongings
    would be near Mr. Coulson's truck unless he removed it from inside the
    truck. The vehicle license plates did not match up with the registration
    sticker, another indicator Appellant had tried to hide the vehicle's stolen
    11
    identity from law enforcement. RR Vol.4.p.150. The most reasonable
    explanation why Appellant tried to remove the personal items was because
    the truck was stolen, he was on parole, and he had been operating it.
    Based upon all this circumstantial evidence, and without any logical
    explanation to prove otherwise, a rational juror could have found all the
    essential elements of evading arrest in a motor vehicle proven beyond a
    reasonable doubt.
    c. Felony Evading Arrest is a Continuing Offense
    Appellant's actions after he took off running from Officer Woolridge was
    evidence the jury could have considered in deciding whether he evaded
    arrest in a motor vehicle. Evading arrest is a continuing offense from the
    beginning of pursuit until apprehension. Hobbs v. State, 
    175 S.W.3d 777
    ,
    781 (Tex. Crim. App. 2005).
    When Appellant was apprehended at the nearby shed, Officer Woolridge
    identified Appellant as the person who ran from him at the ditch. RR
    Vol.4.p.112. There is no other logical explanation why Appellant evaded on
    foot except that he was also the person who evaded in the Ford pickup truck.
    12
    2. Evidence Was Legally Sufficient to Prove Appellant Used Motor
    Vehicle as a Deadly Weapon
    a. Standard of Review
    Deadly Weapon is defined as a firearm or anything manifestly
    designed, made, or adapted use 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 Sec.
    1.07(17)(a)-(b) (Vernon 2013). Although a motor vehicle is not considered
    deadly weapon per se, it has many times been found to be used as a deadly
    weapon. See Williams v. State, 
    970 S.W.2d 566
    (Tex. Crim. App. 1998);
    Davis v. State, 
    964 S.W.2d 352
    , 354 (Tex. App.- Fort Worth 1998, no pet.).
    "To sustain a deadly weapon finding requires evidence that others were
    endangered, and not merely a hypothetical potential for danger if others had
    been present." Mann v. State, 
    13 S.W.3d 89
    , 92 (Tex. App.- Austin 2000).
    Appellant's intent to use the motor vehicle as a deadly weapon is not
    required. Mann v. State, 
    58 S.W.3d 132
    (Tex. Crim. App. 2001); Mann v.
    
    State, 13 S.W.3d at 92
    .
    b. Officer's In-car Video Best Evidence
    While Appellant argued that Officer Woolridge's own testimony proved
    Appellant did not use the pickup truck as a deadly weapon, later Woolridge
    13
    clarified his answer after watching his in-car video by stating Appellant
    quite possibly used the vehicle as a deadly weapon." RR Vol.4.p.l 04.
    Although none of the innocent motorists on the public roadways were
    identified, their evasive driving can be seen in State's Exhibit No. 21. See
    State's Exhibit No. 21. At least two vehicles shared a lane of traffic with
    Appellant's pickup truck as he tried to evade from Officer Woolridge, and
    one vehicle took evasive action on the onramp to IH-30 by driving on the
    shoulder.
    PRAYER
    The State prays that the jury's findings be affirmed as there was no
    reversible error.
    Respectfully submitted,
    NOBLE DAN WALKER, JR.
    District Attorney
    Hunt County, Texas
    G CALVIN GROGAN1V
    Assistant District Attorney
    14
    P. 0. Box 441
    4th Floor, Hunt County
    Courthouse
    Greenville, TX 75403
    State Bar No. 24050695
    (903) 408-4180
    FAX (903) 408-4296
    CERTIFICATE OF COMPLIANCE WITH T.R.A.P. 9.4(i)(3)
    Relying on Microsoft Word's word count feature used to create the
    State's Reply Brief, I certify that the number of words contained in this brief
    is 2,490 and the typeface used is 14Font.
    G CALVIN GROGAN V
    Assistant District Attorney
    CERTIFICATE OF SERVICE
    A true copy of the State's brief has been mailed via first-class mail
    to Jason Duff, Appellee's attorney of record, today, August 11, 2015,
    pursuant to Texas Rules of Appellate Procedure.
    G CALVIN GROGAN V
    Assistant District Attorney
    15