Gary McGee v. State ( 2020 )


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    GARY MCGEE,                                                      No. 08-19-00125-CR
    §
    Appellant,                                                         Appeal from the
    §
    v.                                                               394th District Court
    §
    THE STATE OF TEXAS,                                           of Hudspeth County, Texas
    §
    Appellee.                                                            (TC# 6070)
    §
    OPINION
    After a jury trial, Appellant, Gary McGee, appeals his conviction of evading detention or
    arrest with a vehicle and the finding he used a deadly weapon while committing the offense. We
    affirm.
    BACKGROUND
    Factual Background
    Around midnight, Ryan Glenn, a Texas Department of Public Safety Trooper, was
    patrolling I-10 in Hudspeth County. Trooper Glenn was parked on the right side of the road facing
    the westbound lane and observed a black four-door pickup traveling eastbound on the interstate
    appearing to be going over the speed limit. Trooper Glenn checked the speed from his radar and
    confirmed the vehicle’s speed to be 90 mph—ten miles over the 80 mph speed limit. Trooper
    Glenn prepared to conduct a traffic stop and turned on his red and blue emergency lights while
    Appellant’s vehicle was still traveling towards him. Trooper Glenn drove into the median to
    attempt to slow Appellant down, but Appellant drove pass and sped up. Trooper Glenn’s patrol
    unit camera recorded the incident which was admitted into evidence.
    The recording corroborates Trooper Glenn’s testimony. At time stamp 1:59 of the video,
    Trooper Glenn activated his blue and red emergency lights and drove onto the median of the
    highway. At 2:06, Appellant’s vehicle passed by Trooper Glenn without stopping or slowing
    down. Trooper Glenn made a U-turn, pursued Appellant, and testified he again clocked
    Appellant’s vehicle which reflected an increased speed of 96 mph. At 2:52 of the recording,
    Appellant activated the rear-facing lights of his vehicle. Trooper Glenn testified this act made it
    apparent to him that Appellant had no intention of pulling over. Around 3:45 of the recording,
    Appellant passed two semi-trailer trucks. Around the 5:30 time stamp, Appellant passed a third
    semi-trailer truck. At 6:12, Appellant passed a fourth and fifth semi-trailer truck. Trooper Glenn
    then called for a spike system—a mechanism in which officers place a strip of nail-like objects on
    the road and when a vehicle passes over it, the spikes deflate the tires. After Appellant drove over
    the spike system, Trooper Glenn observed Appellant continuing to evade, driving some distance
    afterwards. Around time stamp 7:23, Appellant exited the interstate and Trooper Glenn followed.
    At 7:43, Appellant finally pulled over to the side of the road and came to a complete stop. At 10:20,
    Appellant opened the driver-side door, exited the vehicle with his hands in the air, and slowly
    walked backwards toward Trooper Glenn’s patrol unit until he was apprehended.
    The pursuit of Appellant lasted approximately five minutes and thirty-seven seconds.
    Trooper Glenn testified he pursued Appellant at a speed of 115-117 mph. The last speed Trooper
    Glenn clocked Appellant with his radar was 96 mph; Trooper Glenn explained that although he
    stopped clocking Appellant’s speed on radar during the pursuit due to safety reasons, however, he
    knew Appellant’s speed was much greater, placing Appellant’s highest speed at 110 mph.
    Procedural Background
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    Appellant was indicted for evading arrest or detention with a motor vehicle and abandoning
    or endangering a child with criminal negligence. Following a trial, the jury found him guilty of
    evading arrest or detention with a motor vehicle, but acquitted him for abandoning or endangering
    a child with criminal negligence. The trial court assessed a punishment of three years and six
    months’ confinement in the Texas Department of Criminal Justice Institutional Division. This
    appeal followed.
    DISCUSSION
    In three issues, Appellant contests the evidence was insufficient for the jury to (1) establish
    his identity as being the motorist of the vehicle the officer saw speeding, (2) establish the essential
    culpable mental state of knowing the officer was attempting to detain him, and (3) find he used the
    motor vehicle as a deadly weapon while committing the offense of felony evasion of detention or
    arrest. We disagree.
    Standard of Review & Applicable Law
    We review claims of insufficiency of the evidence by viewing all the evidence in the light
    most favorable to the State to determine whether any rational trier of fact could have found the
    essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 
    443 U.S. 307
    , 318 (1979); Jenkins v. State, 
    493 S.W.3d 583
    , 599 (Tex.Crim.App. 2016); Wise v. State, 
    364 S.W.3d 900
    , 903 (Tex.Crim.App. 2012). The fact finder judges the weight and credibility of
    evidence. See TEX.CODE CRIM.PROC.ANN. art. 38.04. Reviewing courts may not re-evaluate the
    weight and credibility of the evidence and may not substitute the fact finder’s judgment for their
    own. Williams v. State, No. 02-19-00190-CR, 
    2020 WL 6326150
    , *2 (Tex.App.—Fort Worth
    Oct. 29, 2020, no pet.)(mem. op., not designated for publication)(citing Queeman v. State, 
    520 S.W.3d 616
    , 622 (Tex.Crim.App. 2017). Rather, “we determine whether the necessary inferences
    3
    are reasonable based on the evidence's cumulative force when viewed in the light most favorable
    to the verdict.” Williams, 
    2020 WL 6326150
    , at *2; see Villa v. State, 
    514 S.W.3d 227
    , 232
    (Tex.Crim.App. 2017). When the record supports conflicting inferences, a reviewing court must
    “‘presume that the factfinder resolved the conflicts in favor of the prosecution’” and defer to that
    determination. Wise, 
    364 S.W.3d at 903
    .
    Issue One: Legal Sufficiency to Support Identity
    In Issue One, Appellant contests the sufficiency of the evidence to prove his identity as the
    speeding motorist. Appellant points to the passage of time between the vehicle that was initially
    followed for the speeding violation and the vehicle that was ultimately stopped, asserting the
    evidence failed to show the vehicle stopped by Trooper Glenn was the same vehicle he initially
    pursued. Appellant refers to a thirty second interval that “breaks the connection” to sufficiently
    prove his identity.
    As the sole judge of the weight and credibility of the evidence concerning identity, here,
    the jury could have reasonably relied on the dashboard-camera video evidence that identified
    Appellant as the motorist who was evading arrest. Appellant argues, without directly identifying
    the specific intervals of time in the recording, Trooper Glenn’s view was obstructed at several
    points and the driver was pursued from a considerable distance. However, upon close review of
    the video recording, those contentions are without merit. Although Appellant passed a total of five
    semi-trailer trucks and Trooper Glenn persisted at some distance behind, Appellant’s vehicle
    remained visible throughout the pursuit. At trial, Appellant stated he saw Trooper Glenn’s
    emergency lights when he passed him and admitted he “took too long to pull over.” Moreover, the
    video recording shows after the stop, Appellant exited the driver side of the vehicle. When asked
    why he did not stop, Appellant responded, “I was trying to let you pass,” and “that’s why I kept
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    getting over so you could pass.” Appellant also admitted, “I went ten miles over the speed limit”
    and testified at trial he was “determined not to slow down until I knew for sure that I was being
    pulled over.” This video evidence was admitted at trial and played for the jury. The jury as the fact
    finder was entitled to review the evidence, determine the facts, assess the credibility of the
    witnesses, and weigh their testimony. See Dowdy v. State, No. 08-15-00061-CR, 
    2016 WL 5806412
    , *2 (Tex.App.—El Paso Oct. 5, 2016, pet. ref’d)(not designated for publication)(noting
    that as a reviewing court, we are not permitted to sit as “thirteenth juror” and substitute our
    judgment for that of the fact finder).
    When viewed in the light most favorable to the verdict, the cumulative force of the evidence
    is sufficient to establish Appellant's identity as the motorist who evaded arrest. Issue One is
    overruled.
    Issue Two: Legal Sufficiency to Support Mental Culpable State
    In Issue Two, Appellant contends that even if the proof is sufficient to show identity, the
    evidence is nonetheless insufficient to prove Appellant had the culpable mental state—that he was
    aware or knew Trooper Glenn was attempting to detain him.
    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 and refuses to yield
    to that lawful show of authority. TEX.PENAL CODE ANN. § 38.04(a); Perry v. State, No. 02-19-
    00262-CR, 
    2020 WL 479590
    , at *4 (Tex.App.—Fort Worth Jan. 30, 2020, pet. ref'd)(mem. op.,
    not designated for publication). The accused must know the person from whom he is fleeing is a
    peace officer attempting to arrest or detain him. See Jackson v. State, 
    718 S.W.2d 724
    , 725-26
    (Tex.Crim.App. 1986). Unlawful fleeing is “anything less than prompt compliance with an
    officer’s direction to stop[.]” [Internal quotation marks omitted]. Lopez v. State, 
    415 S.W.3d 495
    ,
    5
    497 (Tex.App.—San Antonio 2013, no pet.)(citing Horne v. State, 
    228 S.W.3d 442
    , 446
    (Tex.App.—Texarkana 2007, no pet.). A jury may infer knowledge from circumstantial evidence,
    such as the acts, words, and conduct of the defendant. Reyes v. State, 
    480 S.W.3d 70
    , 77
    (Tex.App.—Fort Worth 2015, pet. ref'd). A reviewing court determines whether a jury's inferences
    are reasonable “based upon the combined and cumulative force of all the evidence when viewed
    in the light most favorable to the verdict. Hooper v. State, 
    214 S.W.3d 9
    , 17 (Tex.Crim.App. 2007).
    The record contains sufficient circumstantial evidence indicating Appellant's knowledge
    that Trooper Glenn was attempting to detain him throughout the pursuit. The video recording
    shows Trooper Glenn turned on his red and blue emergency lights at time stamp 1:59 and his
    emergency lights remained on throughout the entire pursuit. The video shows Trooper Glenn
    driving onto the median, at time stamp 2:06, Appellant’s vehicle passed Trooper Glenn. After
    Trooper Glenn made a U-turn and pursued Appellant, Trooper Glenn testified Appellant increased
    his speed to 96 mph. At trial, Appellant testified he saw Trooper Glenn’s emergency lights in his
    rear-view after he passed him. When asked whether Appellant knew Trooper Glenn was
    attempting to detain him, he responded, “I think a minute goes by and then the cops not making it
    clear what's going on, and I started to think that maybe it’s me.” Nearly one minute after the pursuit
    began, the recording shows Appellant activated the rear-facing lights of his vehicle, which were
    visibly brighter. Appellant also admitted at trial that he and his passenger, the mother of his child,
    discussed pulling over as they were aware Trooper Glenn was pursuing them, and Appellant
    admitted his passenger told him he should pull over. On cross-examination, Appellant was asked,
    “[y]ou never once thought I should pull over because there is emergency lights coming my
    direction? Isn't that what you are taught to do when you are doing driver's ed[?]” Appellant
    responded, “[y]es, sir.”
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    Appellant drove at a high rate of speed, passed five semi-truck trailers, on a chase that
    exceeded five minutes and only stopped after his tires were blown out from the tire spike system.
    The five minutes and thirty-seven seconds pursuit by Trooper Glenn who attempted to stop
    Appellant reached speeds of 115-117 mph with his emergency lights activated. See Lopez, 415
    S.W.3d at 497 (finding that the jury could have reasonably inferred that defendant knew officers
    were attempting to detain him when officer pursued the defendant with activated lights and sirens
    for about one and a half minutes). In Lopez, the defendant testified that he did not see the lights or
    hear the siren, and the court found that the jury, as the sole judge of the witnesses' credibility, could
    have disbelieved him. Id. In the instant case, Appellant admitted he saw the emergency lights, and
    his failure to promptly stop, his increased speed, the activation of his rear-facing lights, the length
    of the pursuit, stopping only after his tires were spiked, and his admissions at trial, provide more
    than sufficient evidence for a jury to conclude he was aware and intentionally evaded arrest.
    Viewing all the combined and cumulative evidence in the light most favorable to the
    verdict, we hold that any rational fact finder could have found the element of knowledge and intent
    beyond a reasonable doubt. See Jackson, 
    443 U.S. at 319
    ; Queeman, 
    520 S.W.3d at 622
    . Issue
    Two is overruled.
    Issue Three: Legal Sufficiency to Support Deadly Weapon Finding
    In Issue Three, Appellant contends the evidence is legally insufficient to support the jury’s
    deadly weapon finding.
    ‘Deadly weapon’ means:
    (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.PENAL CODE ANN. § 1.07(A)(17).
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    Texas courts consistently uphold deadly weapon findings, involving motor vehicles. Sierra
    v. State, 
    280 S.W.3d 250
    , 255 (Tex.Crim.App. 2009)(citing Drichas v. State, 
    175 S.W.3d 795
    , 798
    (Tex.Crim.App. 2005). See also Turner v. State, No. 08-11-00318-CR, 
    2013 WL 5516447
    (Tex.App.—El Paso Oct. 2, 2013, no pet.)(not designated for publication). Deciding the issue
    involves a two-part test: “[F]irst, we evaluate the manner in which the defendant used the motor
    vehicle during the felony; and second, we consider whether, during the felony, the motor vehicle
    was capable of causing death or serious bodily injury.” Sierra, 280 S.W.3d at 255. Relevant factors
    to the analysis include; speeding, driving erratically, turning abruptly into construction zones,
    driving on the wrong side of a highway, vehicle collisions, failing to maintain control of the
    vehicle, and the presence of other motorists at the same time and place as the defendant. Id. at 254-
    56; Moore v. State, 
    520 S.W.3d 906
    , 907-13 (Tex.Crim.App. 2017); and Couthren v. State, 
    571 S.W.3d 786
    , 793 (Tex.Crim.App. 2019).
    Appellant argues the evidence supports only a hypothetical danger, but based on the
    evidence, we find a rational fact finder could have reasonably concluded Appellant operated his
    vehicle in a manner that was capable of causing death or serious bodily injury. In Appellant’s
    vehicle was his infant child and the baby’s mother. There were also other motorists on the road
    with Appellant as he passed five semi-trailer trucks while going at least 96 mph and up to 115 mph.
    Due to Appellant’s actions, Trooper Glenn was forced to use a spike system to stop Appellant,
    which the State emphasizes, and we agree, could have caused a horrendous accident. Appellant
    himself testified at trial that the spiking of his tires endangered his infant child’s life and admitted
    to “swerve[ing] a little bit” and to “almost los[ing] control of the vehicle.” Even after Appellant
    drove over the spike system and his tires were blown, Trooper Glen testified Appellant continued
    to drive for some distance; see Pointe v. State, 
    371 S.W.3d 527
    , 532 (Tex.App.—Beaumont 2012,
    8
    no pet.)(finding the fact that the defendant had his ten-year old son with him was a relevant factor
    in reaching a deadly weapon finding).
    From this evidence in this record, a rational trier of fact could have found beyond a
    reasonable doubt Appellant drove his motor vehicle in a reckless or dangerous manner that was
    capable of causing serious bodily injury or death to others. Issue Three is overruled.
    CERTIFICATION OF RIGHT TO APPEAL
    We note that the trial court has certified Appellant's right to appeal in this case, but the
    certification does not bear Appellant's signature. The trial judge initialed and inserted the following
    “The court admonished the defendant of these rights on the record in open court after judgment
    was pronounced and sentence imposed. The defendant failed or refused to sign the certification,
    which    is   therefore   being    submitted     without    the   signature    of   the   defendant.”
    See TEX.R.APP.P. 25.2(d).
    Out of abundance of caution, the Court ORDERS Appellant's attorney, pursuant to
    TEX.R.APP.P. 48.4, to send Appellant a copy of this opinion and this Court's judgment, to notify
    Appellant of his right to file a pro se petition for discretionary review, and to inform Appellant of
    the applicable deadlines. See TEX.R.APP.P. 48.4, 68. The Court further ORDERS Appellant's
    attorney to comply with all the requirements of Rule 48.4.
    CONCLUSION
    For these reasons, we affirm.
    December 23, 2020
    YVONNE T. RODRIGUEZ, Justice
    Before Alley, C.J., Rodriguez, and Palafox, JJ.
    (Do Not Publish)
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