Duckett, Herron Kent ( 2015 )

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10
EBB B. MOBLEY
ATTORNEY AT LAW
422 NORTH CENTER STREET-LOWER LEVEL
P. O. BOX 2309
LONGVIEW, TEXAS 75606
Telephone: (903) 757-3331
Fax: (903) 753-8289
March 3, 2015
Herron Duckett CMRRR: 7011 1570 0001 6360 5575
Inmate #1920602
Eastham Unit
2665 Prison Road #1
Lovelady, Texas 75851
Re: Appeal No. 06-14-00060-CR
Duckett v. State
Dear Mr. Duckett:
Enclosed is a copy of the opinion that denies your appeal.
Under Texas Rule of Appellate Procedure 48,1 must advise you that you have the right to
file a pro se Petition for Discretionary Review of this opinion within 30 days of the opinion
(April 2, 2015). Jhe^etition shouIdTTe-^ent to:
0W* for^
I jJ>^ JrY
/ Af Clerk
Court ofCriminal Appeals
ff)^ ^ P.O.Boxl2308
Id h175 S.W.3d 795, 798 (Tex. Crim. App.
2005). On appellate review, we examine the evidence at trial in the light most favorable to the
factual determinations made at the trial level to determine whether "any rational trier of fact
could have found beyond a reasonable doubt thatthe [defendant's vehicle] was used or exhibited
as a deadly weapon." Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Tisdale v. State, 686 S.W.2d 110, 114 (Tex.
Crim. App. 1985) (op. on reh'g)). To support a deadly-weapon finding, the evidence must show
that the object at issue (here, the vehicle driven by Duckett) qualifies as a deadly weapon; in
Duckett denied having an intent to evade arrest; instead, hesaid he had a "flashback" to a prior bad experience with
law enforcementofficers, leading him to resolve to drive to his father's house.
We defer to the jury in their resolution of conflicts in testimony and to judge the credibility of witnesses. See
Hooper v. State, 214 S.W.3d 9, 13(Tex.Crim. App. 2007).
5
other words, if it was, "in the manner of its use[,] . . . capable of causing death or serious bodily
injury." We look to see if "the deadly weapon was used or exhibited during the transaction on
which the felony conviction was based,"10 and if"other people were put in actual danger."
In Drichas, the defendant recklessly pulled out of a parking lot, causing one police officer
to slam on his brakes. He then led law enforcement officers on a high-speed chase for about
fifteen miles, running through a stop sign without stopping and disregarding other traffic signs
and signals, knocking down a construction barrier, driving for a period on the wrong side of the
road, and finally abandoning his vehicle, which continued to roll, unoccupied, eventually running
into a parked car. Drichas, 175 S.W.3d at 797-98. The Texas Court of Criminal Appeals found
that Drichas'
manner of using his truck posed a danger to pursuing officers and other motorists
that was more than simply hypothetical; the danger was real, and the manner in
which appellant drove his truck made it capable of causing death or serious bodily
injury, particularly where appellant drove on the wrong side of the highway.
Id. at 798.n
The holding in Drichas applies to our situation in this case even though, unlike Drichas'
conduct(other than the high speeds Duckett traveled, which were almost certainly in violation of
9TEX. PenalCODE Ann. § 1.07(a)(17)(B) (West Supp 2014).
]0Brister v. State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014).
Id. '"Others' connotes individuals other than the actor himself, and danger to the actor alone does not meet the
requisite standard of deadly-weapon use." Id.
In Drichas, the court took noteof one officer's testimony that while he saw Drichas driveon the wrong sideof the
highway, the officer "never saw any motorists swerve to avoid hitting appellant's truck, [and] stated that 'we were
meeting some trafficsomewhere around that pointthere.'" Drichas, 175 at 798 n.6.
6
posted speed limits), we do not find evidence of Duckett's disregard of traffic signs or signals.13
The video recording reveals that Duckett encountered eight vehicles on public roadways during
his flight that were not engaged in the chase. Duckett passed four of those eight on their left,
going in the same direction.14 Based on his high rate ofspeed, a rational jury could have found
that Duckett put those drivers in danger.15 In addition, Duckett put the pursuing law
enforcement officers in actual danger. (As mentioned before, Montgomery, realizing the dangers
posed by such a high-speed chase, said he kept well behind Burt's and Duckett's vehicles for
fear of an accident.) Near the end of his flight from the officers, Duckett sped down a narrow
road lined with houses, crossed a home's front yard, and knocked down a mailbox. Finally,
Duckett led his pursuers off of the roads into a pasture, bursting through fences, and driving
through what was described as a ravine (which was so deep that although the Longview police
officers could still follow in their SUVs, the deputy sheriffs' sedans were unable to follow).
While Brister instructs that "danger to the actor alone does not meet the requisite standard of
deadly-weapon use,"16 we find the fact that Duckett led the officers over very rough terrain
during thechase and the fact that Duckett himself demonstrated danger by running the vehicle he
Of course, there were other violations of law that were not in violation of posted signs or signals, such as the
refusal to stop his car when being pursued by law enforcement officers with their warning lights ablaze and sirens
blaring, and the momentary straying from his lane well into the lanes designated for oncoming traffic when
preparing to turn right.
14In assessing the importance of the amount of traffic on the roads in asituation such as Duckett's, "[t]he volume of
traffic on the road is relevant only if no traffic exists." Drichas, 175 S.W.3d at 799. We observe, though, that this
comment was made in thecourt's factual sufficiency review, such review having since been abandoned. SeeBrooks
v. State, 323 S.W.3d893 (Tex. Crim. App. 2010).
Burt testified that he had seen people struck by motor vehicles, suffering serious bodily injury or death.
l6Brister, 449 S.W.3d at 494.
piloted into a tree as he was being chased support a finding that the pursuing police officers were
placed indanger as they tailed the heels of the fleeing Duckett.17
We find the evidence sufficient to allow a rational jury to have found (1) that Duckett's
use of the vehicle he drove could have caused death or serious bodily injury, (2) that Duckett
used this vehicle in the felony offense of evading arrest ordetention with a vehicle, and (3) that
others were put in actual danger as a result of Duckett's actions. We overrule Duckett's point of
error.
We affirm the trial court's judgment and sentence.
Bailey C. Moseley
Justice
Date Submitted: February 11, 2015
Date Decided: March 3,2015
Do Not Publish
The violence of the driving caused part ofthe bumper on Burt's police vehicle to fall off; this occurred when Burt
followed Duckett through a barbed-wire fence.