James Wayne Walsh v. State ( 2015 )

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
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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
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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
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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.
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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
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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
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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
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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.
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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
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