in the Matter of the Marriage of Jeffery Dwight Marris and Kara Jane Mullins Marris and in the Interest of Kaitlyn Mullins, a Child ( 2003 )

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

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No. 06-02-00186-CV ______________________________



IN THE MATTER OF THE MARRIAGE OF JEFFERY DWIGHT MARRIS AND

KARA JANE MULLINS MARRIS

AND IN THE INTEREST OF KAITLYN MULLINS, A CHILD

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On Appeal from the 6th Judicial District Court Red River County, Texas Trial Court No. 002CV00063

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Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Justice Carter

MEMORANDUM OPINION

Kara Jane Mullins Marris and Jeffery Dwight Marris are the parents of Kaitlyn Mullins, a four-year-old child. After a bench trial, the trial court named the parties as joint managing conservators, giving Jeffery the right to establish the domicile of the child. The court further found it to be in the best interest of the child that each parent have possession of the child for alternating one-week periods. Kara appeals, alleging in nine points of error that the trial court abused its discretion by placing primary custody with the father, awarding possession of the child for one week alternating periods, overruling a motion for new trial without a hearing, and that there is no evidence or alternatively the evidence is insufficient or against the great weight and preponderance that it is in the best interest of the child that each conservator be awarded equal periods of possession, and that there is no evidence or the evidence is insufficient or that the great weight and preponderance of the evidence does not support a finding deviating from the standard possession or visitation guidelines.

Factual Background

Jeffery Marris testified that he has a stable job working for Turner Industries and has a home in Red River County, Texas. His parents live near him and are available to help take care of the child when he is working. Jeffery lives in the home where the parties lived the last few years of their marriage, and the child is comfortable and has enough room at that home. He did assist in taking care of the child during the marriage. Kara lives in Broken Bow, Oklahoma, with her parents, and they all smoke, which he believes causes the child to become ill. Jeffery believes Kara is seeing a truck driver. Jeffery works from 3:00 p.m. until 11:00 p.m. and leaves the child with a babysitter. Jeffery and Kara have complied with the temporary visitation schedule that has been in effect.

Kara is not presently employed. She has recently been hospitalized. She acknowledges that Jeffery is a good father and is capable of taking care of the child. Kara denies having a boyfriend. Kara acknowledged that Jeffery has been living in the home with the child for the last two years during their marriage, that it is a nice home, and that his parents live nearby and are good people who have kept the child quite a bit too. Kara further testified she and Jeffery separated when she was five months pregnant, and Jeffery had nothing to do with the child for five months. The child had been with Kara constantly since she was born. Kara and Jeffery resumed living together when the child was six months old. Kara has the child enrolled in a pre-kindergarten class at Broken Bow. When Kara was working, her mother kept the child.

At the conclusion of the hearing, the trial court named the parties as joint managing conservators and found Jeffery should be the conservator with exclusive right to determine the primary residence of the child. The trial court further found that each parent should have possession of the child for alternating one-week periods. The court in its findings of fact and conclusions of law found that the possession periods should deviate from the standard guidelines so as to encourage frequent contact between the child and each parent and to optimize the development of a close and continuing relationship between them.

The law is well established and codified as follows:

1. It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of a child. Tex. Fam. Code Ann. § 153.131 (Vernon 2002).

2. In rendering an order appointing joint managing conservators, the court shall: (a) designate a conservator who has the exclusive right to determine the primary residence of the child; and may specify that the conservator may determine the child's primary residence without regard to geographic location. Tex. Fam. Code Ann. § 153.134(b)(1) (Vernon 2002).

3. Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of or access to the child for each of the joint conservators. Tex. Fam. Code Ann. § 153.135 (Vernon 2002).

4. If joint managing conservatorship is ordered, the best interest of a child ordinarily requires the trial court to designate a primary physical residence for the child. Tex. Fam. Code Ann. § 153.136 (Vernon 2002).

5. The standard possession order constitutes a presumptive minimum amount of time for possession of a child by a parent named as joint managing conservator who is not awarded the primary physical residence of a child. Tex. Fam. Code Ann. § 153.137 (Vernon 2002).

6. The best interest of the child shall always be the primary consideration of the trial court in determining the issues of conservatorship and possession of and access to a child. Tex. Fam. Code Ann. § 153.002 (Vernon 2002).

Did the trial court err in allowing the father to establish

the primary residence of the child?

The trial court's determination of conservatorship is reviewed under an abuse of discretion standard. Trial courts have wide discretion with respect to custody, control, possession, support, and visitation matters involving the child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Doyle v. Doyle, 955 S.W.2d 478, 480 (Tex. App.-Austin 1997, no writ). In a review applying an abuse of discretion standard, the legal and factual sufficiency of the evidence are not independent grounds of error, but are treated as relevant factors in assessing whether the trial court abused its discretion. In re Bertram, 981 S.W.2d 820, 822 (Tex. App.-Texarkana 1998, no pet.); In re Driver, 895 S.W.2d 875, 877 (Tex. App.-Texarkana 1995, no writ). Therefore, the sufficiency of evidence points will be considered in determining the issue of abuse of discretion.

Under an abuse of discretion standard, a trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or when it acts without reference to any guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). An abuse of discretion does not occur when the trial court bases its decision on conflicting evidence.  Valdez v. Valdez, 930 S.W.2d 725, 731 (Tex. App.-Houston [1st Dist.] 1996, no writ). There is no abuse of discretion if some evidence of a substantive and probative character supports the decision. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.-Houston [1st Dist.] 1993, writ denied).

The evidence presented in this record is very brief, consisting of twenty-six pages of testimony for the entire trial. Kara agreed that Jeffery was capable of taking care of the child. Both parents have had some participation in the child-rearing. Evidence was presented that Jeffery had stable employment and a home that was comfortable to the child. His parents live nearby and are able to assist him with the child when needed.

The trial court faces the parties and the witnesses, observes their demeanor and personality, and feels the forces, powers, and the influences that cannot be discerned by merely reading the record. The trial court is, therefore, in a better position to analyze the facts, weigh the virtues of the parties, and determine what would be in the best interest of a child. Bertram, 981 S.W.2d at 826. In this case, the trial court heard the evidence in making its decision. The trial court stated that it felt the father was in a more stable situation than the mother. We cannot conclude that the trial court abused its discretion in naming the parties as joint managing conservators and designating Jeffery as the conservator to establish the primary residence of the child.

Possession and Access to the Child

Kara further contends the trial court abused its discretion by authorizing alternating equal periods of one-week possession and access by each parent. Kara also contends the trial court erred by deviating from the standard possession order. Joint managing conservatorship does not require an "equal or nearly equal periods of physical possession." Tex. Fam. Code Ann. § 153.135. Equal time is neither prohibited nor recommended. Albrecht v. Albrecht, 974 S.W.2d 262, 265 (Tex. App.-San Antonio 1998, no pet.). Kara argues that, due to geographical proximity, this order is not in the best interest of the child and is disruptive. Kara lives in Broken Bow, Oklahoma, and Jeffery lives in Red River County, Texas. We will take judicial notice that Red River County, Texas, and McCurtain County, Oklahoma, are adjoining counties separated by the Red River and that it is approximately forty-four miles from Clarksville, Texas, the county seat of Red River County, to Broken Bow, Oklahoma. Tex. R. Evid. 201(b)(2). Therefore, the geographical proximity would not, standing alone, create an abuse of discretion.

The standard possession order constitutes a presumptive minimum amount of time for possession of a child by a parent named as a joint managing conservator who is not awarded the primary physical residence of a child. Tex. Fam. Code Ann. § 153.137. In this case, the trial court awarded Kara considerably more time of possession with the child than the standard order requires. While joint managing conservatorship does not require an equal or nearly equal period of physical possession, such an order is clearly authorized. Albrecht, 974 S.W.2d at 265. In this case, the trial court exceeded the presumptive minimum amount of time Kara otherwise would have with the child. The court found it is in the child's best interest that each party have equal periods of physical possession. It is a reasonable conclusion the child is best served by having an equal amount of time with each parent. This is a deviation in the standard possession order, but one that grants Kara more time with her child. The fact that an appellate court might decide a matter differently does not establish an abuse of discretion when the matter was one solely within the trial court's discretionary authority. In re J.E.P., 49 S.W.3d 380, 386 (Tex. App.-Fort Worth 2000, no pet.). We do not believe the trial court abused its discretion in granting each parent equal time for alternating one-week periods.

Did the trial court err and abuse its discretion in overruling

Kara's motion for new trial?

Kara filed a motion for new trial which the trial court overruled without hearing evidence. Attached to her motion for new trial were eight affidavits. The affidavits were from Kara, her mother, her stepfather, her brother, her sister-in-law, and three friends. Generally speaking, a party may not present any additional evidence in a motion for new trial, where that evidence is not newly discovered. See Hillert v. Melton, 64 S.W.2d 991, 992 (Tex. Civ. App.-San Antonio 1933, writ ref'd). However, in matters relating to child custody, it can be error to refuse to grant a motion for new trial, even though the evidence is not newly discovered, where there is an extreme case and the evidence is sufficiently strong. In re C.B.N., 14 S.W.3d 855, 861 (Tex. App.-Beaumont 2000, no pet.); C___ v. C___, 534 S.W.2d 359, 361-62 (Tex. Civ. App.-Dallas 1976, writ dism'd). Even under this relaxed standard, no abuse of discretion is shown unless the evidence presented in support of a motion, and not offered at the original trial, strongly shows that the original custody order would have a seriously adverse effect on the interest and welfare of the child and that presentation of such evidence at another trial would probably change the result. C___, 534 S.W.2d at 362.

In this case, the affidavits presented many of the same allegations that were presented at the trial. Examples are that the mother was the primary caretaker, the hours the father worked, that the father would leave the child with a babysitter during work, that he did not live with and see the child for the first five months of her life, and that he originally denied paternity of the child.

We find the evidence that Kara presented by affidavits was cumulative of other evidence presented at trial. There is no evidence that would strongly show that the original custody order would have a seriously adverse effect on the child and, therefore, there is no indication that such evidence would probably change the result. The point of error is overruled.

We affirm the judgment of the trial court.

Jack Carter

Justice

Date Submitted: July 14, 2003

Date Decided: July 15, 2003

-align: justify; line-height: 0.416667in">          If a phrase, term, or word is statutorily defined, the trial court must submit the statutory definition to the jury. Moore v. State, 82 S.W.3d 399, 408 (Tex. App.—Austin 2002, pet. ref'd). We are, as is any other court, without the power to legislate and read into the statute something omitted by the Legislature by adding to the jury instruction words or standards not expressed in the statute. Barkley v. State, 152 Tex. Crim. 376, 214 S.W.2d 287, 291–92 (1948) (op. on reh'g); Murphy, 44 S.W.3d at 664. Therefore, we must presume the jury knew and applied the common and ordinary meaning to the words included in the jury charge. See Martinez v. State, 924 S.W.2d 693, 698 (Tex. Crim. App. 1996).

          C.       Trial Court Properly Refused Proposed Instruction

          Essentially, Drichas' contention is the jury charge should have included words reflecting the standard of review to be applied when examining the sufficiency of the evidence to support a deadly weapon finding. Merely because his proposed instruction is a correct statement of that standard is not an adequate reason for including it in the court's charge to the jury. Unnecessary instructions should not be given, even if they are correct statements of law. See Pinnacle Gas Treating, Inc. v. Read, 69 S.W.3d 240, 246 (Tex. App.—Waco 2002), rev'd & remanded on other grounds, 104 S.W.3d 544 (Tex. Crim. App. 2003), quoting Raiford v. May Dep't Stores Co., 2 S.W.3d 527, 533 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Unnecessary instructions single out or highlight issues, and in so doing run the risk of being comments on the weight of the evidence. Pinnacle Gas Treating, Inc., 69 S.W.3d at 246.  

          Here, the trial court properly included the statutory definition of "deadly weapon." Based on the foregoing rules and limitations, we conclude the trial court did not err in refusing to include additional language describing the term "deadly weapon." We overrule Drichas' contention.

IV.      Legal and Factual Sufficiency of the Evidence

          Drichas also challenges the legal and factual sufficiency of the evidence to support the jury's finding that he used his truck as a deadly weapon in the commission of the offense. Specifically, he argues the State failed to prove his driving placed someone else in danger of serious bodily injury or death.

          A.       Standards of Review

          For legal sufficiency purposes, the question for the reviewing court is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime (or finding) beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Specifically, we review the record to determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt the truck was used as a deadly weapon. See Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003).

          When reviewing a challenge to the factual sufficiency of the evidence to support the jury's finding, the court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in its finding beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004). There are two ways in which the court may find the evidence to be factually insufficient. First, if the evidence supporting the finding, considered alone, is too weak to support the jury's finding beyond a reasonable doubt, then the court must find the evidence insufficient. Id. Second, if—when the court weighs the evidence supporting and contravening the finding—it concludes that the contrary evidence is strong enough that the state could not have met its burden of proof, the court must find the evidence insufficient. Id. "Stated another way, evidence supporting [the finding] can 'outweigh' the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard." Id.

          B.       A Vehicle as a Deadly Weapon

          The Penal Code defines the term "deadly weapon":

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) 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) (Vernon Supp. 2004–2005). Section 1.07's plain language does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. McCain, 22 S.W.3d at 503. The placement of the word "capable" in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force. Id.; Tisdale v. State, 686 S.W.2d 110, 114–15 (Tex. Crim. App. 1984) (op. on reh'g). If driven so as to endanger lives, a motor vehicle can clearly be a deadly weapon. Cates, 102 S.W.3d at 738; Tyra v. State, 897 S.W.2d 796, 798–99 (Tex. Crim. App. 1995); Ex parte McKithan, 838 S.W.2d 560, 561 (Tex. Crim. App. 1992).

          To sustain a deadly weapon finding, there must be evidence that others were actually endangered, "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), aff'd, 58 S.W.3d 132 (Tex. Crim. App. 2001) (emphasis added). While a deadly weapon finding does not require that the object actually cause death or serious bodily injury, it does require that the object have more than a hypothetical capability of causing death or serious bodily injury. Johnston v. State, 115 S.W.3d 761, 764 (Tex. App.—Austin 2003, pet. ref'd). We must evaluate the "capability" of causing death or serious bodily injury in light of the facts that actually existed while the charged offense was committed, rather than conjecture about what might have happened if the facts had been somewhat different. Williams v. State, 946 S.W.2d 432, 435 (Tex. App.—Fort Worth 1997), rev'd in part on other grounds, 970 S.W.2d 566 (Tex. Crim. App. 1998) (concluding that proper remedy when appellate court sustains challenge to sufficiency of evidence to support deadly weapon finding is ordering deletion of deadly weapon finding rather than ordering new trial on punishment).

          C.       Relevant Cases

          In Williams, the state presented evidence Williams possessed the truck and also used the truck during his comission of the felony offense of driving while intoxicated (DWI). By doing that, he both used and actively employed the truck while committing the DWI felony. Id. at 435. However, there was no evidence that any other person encountered danger from Williams' truck:

[T]here is no evidence that any other motorist was on the highway at the time and place that Williams drove in an intoxicated condition or that any other motorist (besides other troopers the arresting officer called for assistance) ever came upon the scene or encountered danger from Williams' truck or from other traffic because the truck was parked in the highway.

Id. at 435–36. Therefore, the Fort Worth Court of Appeals concluded, the state failed to prove that, in the manner of its use, or intended use, Williams' truck was capable of causing death or serious bodily injury. Accordingly, there should not have been a deadly weapon issue in the jury charge on punishment. Id. at 436.

          In Davis v. State, 964 S.W.2d 352, 354 (Tex. App.—Fort Worth 1998, no pet.), the Fort Worth Court of Appeals factually distinguished its earlier opinion in Williams by pointing to the testimony of the arresting officer that Davis weaved and drove into the oncoming lane of traffic four or five times, and had to take "evasive action" to avoid hitting another car in the oncoming lane.

          In another case, one also involving charges of felony DWI, the testimony showed that the appellant, Mann, "almost hit another vehicle head-on" when Mann's vehicle crossed the centerline, and that a collision did not occur only because the oncoming vehicle "took evasive action." Mann, 13 S.W.3d at 92. Additionally, an officer experienced in reconstructing accidents testified a collision under those circumstances was capable of causing death or serious bodily injury. Id. The Austin Court of Appeals held there was sufficient evidence to support the finding that Mann used his vehicle in a manner capable of causing serious bodily injury or death during the commission of the felony DWI offense. Id.

          D.       Evidence was not Legally and Factually Sufficient to Show Actual                         Endangerment

          While the record in the instant case contains ample evidence that Drichas drove in a reckless manner, we do not find evidence that, during the fifteen-mile chase, Drichas' driving actually placed another person in danger. Based on Williams and Mann, evidence that an accused drove recklessly is insufficient to meet the state's burden of showing that he or she used a vehicle as a deadly weapon during the commission of the offense charged.

                     1.       Evidence Shows Hypothetical Danger, not Actual Endangerment

          Mowery, the officer who initiated the chase on the Arkansas side of Texarkana, testified Drichas nearly caused an accident when Drichas first pulled out of the gasoline station parking lot in a reckless manner:

So when the defendant pulled out in front of me, it was a quick thing where I could barely see him. I had to hit my brakes pretty hard to prevent from having an accident.

          We first note this incident occurred, as Mowery conceded, before the commission of the alleged offense:

Q.. . . did you almost running into the defendant's truck have anything to do with him running, evading Texarkana, Texas police officers for fifteen miles?

A.No.

Q.Does it have anything to do with -- Does what didn't happen at the store, does that have anything to do with the defendant evading police in a vehicle?

                     A.No.

Therefore, we cannot say this near mishap between Mowery and Drichas qualifies as use of a deadly weapon during the commission of the offense charged.

          Mowery testified to the reckless manner in which Drichas drove during the fifteen- mile chase, describing how Drichas failed to stop at stop signs, turned in a way that caused him to temporarily lose traction on the back end of his truck and nearly ended up on the steps of the Bi-State Justice Building, and how he traveled up to seventy miles per hour through downtown streets. Mowery stated that, while "there wasn't a lot" of traffic out at the time of the chase, there was some. Mowery described how Drichas continued to drive at excessive rates of speed in the wrong direction in the construction zone around Highway 59. After Drichas had driven on Highway 59 past the lake, he turned around past the Sulphur River bridge and headed back in the direction of the several police units following him.

          While evidence of the reckless maneuvers Drichas made during the chase are relevant to the issue of whether he drove his truck in a manner sufficient to render it a deadly weapon, based on the reasoning in Williams and Mann, such evidence, alone, is insufficient. While it might be said that Drichas' driving potentially placed the officers at risk of danger, there is no evidence the officers ever had to take evasive action or were placed in the zone of danger during the course of the evasion. Put another way, there is no evidence the officers or any other person were actually endangered. See Williams, 946 S.W.2d at 435–36. The following testimony by Mowery illustrates the failure of the State's evidence:

Q.Was there a lot of traffic out?

A.No, there wasn't a lot. There was some.

Q.Now, during the course of this route that you took, did you at any time see the truck attempt to run over anybody?

                     A.No.

Q.Did you see anybody having to swerve to get out of the way or move rapidly to get out of the way of this truck?

A.Other than me there at the store. No, I didn't see anything, other than me, having to avoid an accident.

Q.Did you see the driver in any way point the truck towards someone or some vehicle in an attempt to run them down or harm them in any way?

A.No. I did observe the defendant driving the wrong way on the highway, though.

Q.I understand, but my question was he didn't point his vehicle at any person or any other vehicle in an attempt to run them down.

A.Well, it was certainly pointed in the wrong direction at that point. I'm not certain of this, but we were meeting some traffic somewhere around that point there.

Q.You never saw anybody have to swerve to get out of his way?

A.No.

We find evidence of reckless driving, but find no evidence this reckless driving actually endangered another person.

          There is also testimony that Drichas "blew past" a Texas officer stationed at an intersection. This evidence, too, fails to reach the level of endangerment necessary to show the truck was a deadly weapon in that it does not reveal that the officer was endangered by Drichas' driving. In fact, the evidence illustrates that the officer was waiting at the intersection to join the chase and that his position was safely outside Drichas' route. On cross-examination, Mowery made clear that, as Drichas sped down Fourth Street, the waiting officer "was not on Fourth Street" and the officer "didn't have the road blocked" or "any portion of [Fourth Street] blocked."

          When Drichas turned around past the Sulphur River bridge, and the officers also turned around to continue the chase, Drichas' truck was smoking and a fine mist of oil was being emitted from it and hitting the windshields of the officers' vehicles. Again, however, this evidence is mentioned only briefly and only incidentally, and no description of any dangerous effects of the oil were ever elicited.

          We also examined the testimony regarding Drichas' entry into the mobile home park and his subsequent abandonment of his moving truck. We note the truck continued to move forward and hit a van, pushing the van into a mobile home. However, there is no showing that a person or persons were in either the van or the mobile home. Further, there is no evidence there was anyone in the mobile home park itself during the time the collision occurred. To assume otherwise would require us to engage in conjecture, which we cannot do.

          The State is correct that the officers testified to conclusions consistent with the language in the statutory definition of "deadly weapon":

Q.. . . And Officer Mowery, you've talked about excessive rates of speed, you've talked about running stop signs, driving on the wrong side of the road the defendant did that night, in your training and experience, the manner the vehicle was used that night, was it capable of causing serious bodily injury or death?

A.Yes, absolutely so.

                     . . . .

Q.During this car chase, we've talked about the excessive rates of speed and the defendant driving on the wrong side of the road and weaving, that early morning, in the manner of its use or intended use, was that vehicle capable of causing serious bodily injury or death?

A.Yes, ma'am.

These conclusory assertions mirroring the statutory language simply do not provide sufficient evidence of the actual endangerment. The state need not show that someone was actually killed or seriously injured; it need only show that another person was actually put in danger of serious bodily injury or death. No such evidence was adduced in this case.

          Even viewing this evidence in a light most favorable to the jury's verdict, we cannot say that a rational trier of fact could conclude Drichas placed others in danger of serious bodily injury or death. Further, viewing the evidence in a neutral light, we cannot conclude that the jury was rationally justified in finding beyond a reasonable doubt Drichas used his truck as a deadly weapon since there is no evidence to show that another person was actually endangered by Drichas' use of his truck. We sustain Drichas' third and fourth points of error.

                     2.       Deletion of Deadly Weapon and Remand for New Trial on Punishment

          We note that the Texas Court of Criminal Appeals has concluded that the proper remedy when the state fails to sufficiently show that a defendant used a deadly weapon during the commission of an offense is for the reviewing court to delete the affirmative deadly weapon finding. Williams, 970 S.W.2d at 566; Narron v. State, 835 S.W.2d 642, 644 (Tex. Crim. App. 1992). Here, however, because deletion of the deadly weapon finding changes the range of punishment available to be assessed against Drichas, we must remand the case for a new trial on punishment. See Tex. R. App. P. 43.3.

          Evading detention is a Class B misdemeanor. Tex. Pen. Code Ann. § 38.04 (Vernon 2003). When a person evades detention with a motor vehicle, however, the offense becomes a state jail felony. Tex. Pen. Code Ann. § 38.04(b)(1). With an affirmative deadly weapon finding, the state jail felony of evasion of detention with a motor vehicle becomes a third degree felony. See Tex. Pen. Code Ann. § 12.35(c) (Vernon 2003). Finally, enhancing this third degree felony under the habitual felony offenders statute with two prior felony convictions, the punishment range then becomes from twenty-five to ninety-nine years or life in prison. See Tex. Pen. Code Ann. § 12.42(d). Removal of the deadly weapon finding, however, also removes one of the enhancements necessary to make evasion of detention punishable by ninety-nine years.

          The State did, of course, show that Drichas used a motor vehicle in evading detention, making the offense a state jail felony. See Tex. Pen. Code Ann. § 12.35(a), (b). However, because the State failed in showing that Drichas used that motor vehicle as a deadly weapon, his offense should have been deemed a state jail felony, rather than a third degree felony under Section 12.35(c)(1). The punishment available for a state jail felony, enhanced with two prior felony convictions pursuant to Section 12.42(a)(2), is that for a second degree felony: two to twenty years in prison and a fine of up to $10,000.00. See Tex. Pen. Code Ann. § 12.42(a)(2) (Vernon Supp. 2004–2005), § 12.33 (Vernon 2003). Therefore, without the deadly weapon finding, but considering the two prior felony convictions alleged under the habitual felony offenders statute—which Drichas admitted were true—the maximum punishment for this conviction is twenty years and a $10,000.00 fine. Without the deadly weapon finding, the ninety-nine-year sentence imposed is well outside that maximum.

          We delete the deadly weapon finding and remand this case to the trial court for a new trial on punishment wherein Drichas' punishment must be assessed pursuant to Sections 12.33 and 12.42(a)(2) of the Texas Penal Code.

                                                                           Donald R. Ross

                                                                           Justice

Date Submitted:      October 27, 2004

Date Decided:         November 9, 2004

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