Tamar Javonne Wesson v. the State of Texas ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00166-CR
No. 02-22-00167-CR
___________________________
TAMAR JAVONNE WESSON, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 371st District Court
Tarrant County, Texas
Trial Court Nos. 1712549D, 1712555D
Before Bassel, Womack, and Wallach, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
A jury convicted Appellant Tamar Wesson of the offenses of evading arrest or
detention with a motor vehicle and aggravated assault with a deadly weapon (a motor
vehicle) and assessed punishment for each offense at seven years’ confinement and a
$1,250 fine. The trial court ordered the sentences to run concurrently. The jury
acquitted Appellant of the offense of accident involving injury. In his sole issue,
Appellant argues that the evidence is insufficient to support his convictions. We
affirm.
BACKGROUOND
In the early morning hours of December 5, 2021, the Grand Prairie Police
Department responded to an “intersection takeover” where forty to fifty cars were
doing “burnouts” and engaging in illegal street racing. When the officers approached
the area, the cars began dispersing. Officer Cody Rhew testified at Appellant’s trial
that he observed an older model white Mercedes with no license plate, which
concerned him that the vehicle might be stolen. Officer Rhew initiated a traffic stop
on the white Mercedes, but the driver made an illegal u-turn and sped away.
A white Yukon vehicle appeared and blocked the officers from pursuing the
white Mercedes. Officer Rhew testified that the white Yukon committed multiple
offenses in addition to hindering the apprehension of the Mercedes, including
speeding, driving on the wrong side of the road, and running red lights. Officer John
Killian observed the driver of the white Yukon, with the window down, waving to the
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driver of the white Mercedes saying, “Go, go, go.” The officers identified Appellant as
the driver of the white Yukon.
The officers then pursued Appellant in the white Yukon and traveled at speeds
in excess of 100 miles per hour. At one point Appellant turned off the lights of his
vehicle and “darked out” to make it harder for the officers to see him. Appellant
eventually crashed into another vehicle, sending that vehicle flying into the parking lot
of a Toyota dealership. Officer Killian described the collision by stating it appeared to
be an explosion with smoke, dust, and debris flying through the air. Appellant’s white
Yukon came to rest on the driver’s side. Appellant climbed out of the passenger side
of the vehicle and attempted to run from the officers despite Officer Killian warning
him not to run. Officer Killian released his K-9 dog from his vehicle, and the K-
9 stopped Appellant until the officers arrived and detained him. Officer Rhew
testified that after Appellant was detained, he admitted to running from the officers
and crashing into the vehicle. He said that he could not slow down because he knew
the officers were behind him.
According to Officer Killian, he expected to find the driver of the vehicle
struck by Appellant to be deceased. However, the driver of the vehicle survived the
accident and testified at trial that she suffered broken ribs, that her head was cut open,
and that she had swelling in her leg.
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SUFFICIENCY OF THE EVIDENCE
In the first issue, Appellant contends that the evidence is insufficient to support
his convictions for evading arrest or detention with a vehicle and aggravated assault
with a deadly weapon.
A. Standard of Review
Federal due process requires that the State prove beyond a reasonable doubt
every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.
2781, 2787 (1979); see U.S. Const. amend XIV. The Jackson standard of review, which
is explained below, is the “only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a criminal
offense that the State is required to prove beyond a reasonable doubt.” Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling Clewis v. State, 922 S.W.2d
126 (Tex. Crim. App. 1996)). “[W]e review the sufficiency of the evidence establishing
the elements of a criminal offense under the single sufficiency standard set out in
Jackson v. Virginia.” Acosta v. State, 429 S.W.3d 621, 624 (Tex. Crim. App. 2014).
In our evidentiary-sufficiency review, we view all evidence in the light most
favorable to the verdict to determine whether any rational factfinder could have found
the crime’s essential elements beyond a reasonable doubt. Jackson, 443 U.S. at 319,
99 S. Ct. at 2789; Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017). The
factfinder alone judges the evidence’s weight and credibility. See Tex. Code Crim.
Proc. Ann. art. 38.04; Martin v. State, 635 S.W.3d 672, 679 (Tex. Crim. App. 2021). We
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may not re-evaluate the evidence’s weight and credibility and substitute our judgment
for the factfinder’s. Queeman, 520 S.W.3d at 622. Instead, we determine whether the
necessary inferences are reasonable based on the cumulative force of the evidence
when viewed in the light most favorable to the verdict. Braughton v. State, 569 S.W.3d
593, 608 (Tex. Crim. App. 2018); see Villa v. State, 514 S.W.3d 227, 232 (Tex. Crim.
App. 2017) (“The court conducting a sufficiency review must not engage in a ‘divide
and conquer’ strategy but must consider the cumulative force of all the evidence.”).
We must presume that the factfinder resolved any conflicting inferences in favor of
the verdict, and we must defer to that resolution. Braughton, 569 S.W.3d at 608.
B. Substantive Law and Analysis
Appellant was charged with evading arrest or detention and aggravated assault
with a deadly weapon. 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.” Tex. Penal Code Ann. § 38.04(a). The offense is a
third-degree felony if the actor uses a vehicle while the actor is in flight. Tex. Penal
Code Ann. § 38.04(b)(2).
The jury heard testimony that Appellant hindered the apprehension of the
white Mercedes and also committed numerous traffic violations. Officer Killian
testified that the officers pursued Appellant in marked police vehicles with the sirens
and lights activated. The jury was able to observe videos from the dash cameras of the
patrol vehicles as well as body camera video from the officers. Officer Rhew testified
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that Appellant admitted that he was the driver of the vehicle and that he ran from the
officers. Appellant acknowledged after he was detained that he did not slow down
because he knew the officers were behind him. That video was also played before the
jury. We hold that the evidence is sufficient to support Appellant’s conviction for
evading arrest or detention.
Regarding the aggravated assault with a deadly weapon charge, the trial court’s
charge authorized the jury to convict Appellant of the offense of aggravated assault
with a deadly weapon if they believed from the evidence beyond a reasonable doubt
that Appellant:
recklessly, namely, by driving at a speed or speeds exceeding the
posted speed limit and/or by evading marked Grand Prairie Police
Department patrol units using a motor vehicle and/or by disregarding a
traffic control device caus[ing] bodily injury to [the victim] by causing
[Appellant’s] vehicle to strike the vehicle of [the victim,] and the
[Appellant] did use or exhibit a deadly weapon during the commission of
the assault, namely a motor vehicle.
Bodily injury is defined as “physical pain, illness, or any impairment of physical
condition.” Tex. Penal Code Ann. § 1.07(8).
The evidence showed that Appellant’s vehicle struck another vehicle causing
considerable damage to that vehicle. The driver of the vehicle struck by Appellant
testified at trial that she suffered broken ribs, that her head was cut open, and that she
had swelling in her leg. She told the jury that she still has pain from her injuries.
The Court of Criminal Appeals has established a two-part test for determining
whether a rational trier of fact could have found beyond a reasonable doubt that a
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defendant used or exhibited a vehicle as a deadly weapon. See Sierra v. State,
280 S.W.3d 250, 255 (Tex. Crim. App. 2009). Under this test, we must first “evaluate
the manner in which the defendant used the motor vehicle during the felony” and
then “consider whether, during the felony, the motor vehicle was capable of causing
death or serious bodily injury.” Id.In determining Appellant’s manner of driving, we consider several factors such
as: (1) intoxication; (2) speeding; (3) disregarding traffic signs and signals; (4) driving
erratically; and (5) failure to control the vehicle. Orlando v. State, No. 02-22-00239-CR,
2023 WL 3251010 at *2 (Tex. App.—Fort Worth May 4, 2023, pet. ref’d) (mem. op.,
not designated for publication).
The evidence is sufficient to support a finding that Appellant’s driving was
reckless. The jury heard evidence that Appellant was traveling in a motor vehicle at
speeds in excess of 100 miles per hour while fleeing from the Grand Prairie Police
Department. The officers testified that Appellant committed numerous traffic
violations, including disregarding traffic signs and signals, while fleeing from the
officers. As previously stated, the jury was able to observe the videos from the dash
cameras of the patrol vehicles.
Under the second prong of the Sierra test, we must determine whether
Appellant used his vehicle in a manner capable of causing death or serious bodily
injury. See Sierra, 280 S.W.3d at 255. To support a deadly weapon finding, the record
must show more than a hypothetical potential for danger. Moore v. State, 520 S.W.3d
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906, 913 (Tex. Crim. App. 2017); Orlando, 2023 WL 3251010 at *3. Rather, there must
be evidence that others were actually endangered. Orlando, 2023 WL 3251010 at *3.
The record shows more than a hypothetical potential for danger as Appellant struck
another vehicle causing bodily injury to the driver, including broken ribs, a cut on her
head, and swelling in her leg. Officer Killian described that the impact looked like an
explosion and that he expected a fatality from the accident. Thus, there is more than
sufficient evidence to support a finding that Appellant’s reckless or dangerous driving
actually endangered others. See id. We hold that the evidence is sufficient to prove that
Appellant committed the offense of aggravated assault with a deadly weapon. We
overrule his sole issue.
CONCLUSION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgments.
/s/ Mike Wallach
Mike Wallach
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: October 26, 2023
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