Opinion
02-22-00239-CR
05-04-2023
Jon Richard Orlando, Appellant v. The State of Texas
Do Not Publish
On Appeal from Criminal District Court No. 4 Tarrant County, Texas Trial Court No. 1680759D
Before Sudderth, Bassel, and Wallach, JJ.
MEMORANDUM OPINION
Mike Wallach Justice
A jury convicted Appellant Jon Richard Orlando of evading arrest or detention, a third-degree felony offense enhanced by two prior felony convictions, and found that Orlando had used a deadly weapon during the commission of the offense. On appeal, Orlando argues in a single point that the evidence is insufficient to support the jury's deadly weapon finding. We will affirm.
I. Background
On April 7, 2021, the Watauga police department received a disturbance call from an apartment complex reporting that two men were arguing in the parking lot and that one had threatened to shoot the other. Five officers responded.
Because the caller had identified one of the vehicles involved as a "white or blue" truck, one of the responding officers, Brandon Pickett, approached the driver's side of Orlando's white truck and knocked on the window. Upon noticing Officer Pickett, Orlando began to back out of the parking spot in an attempt to flee, causing Pickett to step away from the truck.
One of the other officers, Kevin Bell, testified that Orlando backed into another vehicle, which was being driven at the time, then drove forward over a curb into a "grassy area" before making a U-turn back into the parking lot. Upon reentering the parking lot, Orlando's truck collided with an unoccupied vehicle with sufficient force to knock it into a second vehicle parked beside it, spin both vehicles approximately ninety degrees, and cause pieces to fly off, damaging a third vehicle approximately ten to fifteen feet away. Orlando then crashed his truck into a tree, disabling it.
Orlando was arrested and charged with evading arrest or detention with a vehicle, a third-degree felony offense. See Tex. Penal Code Ann. § 38.04(b)(2)(A); see also id. § 12.42(d). The indictment contained a habitual offender enhancement paragraph alleging that Orlando had two prior felony convictions and a "deadly weapon finding notice" alleging that Orlando had used "a deadly weapon, namely, a motor vehicle" during the commission of the offense. After the jury convicted Orlando and made an affirmative deadly weapon finding, the trial court sentenced him to thirty-five years in prison. This appeal followed.
Absent the habitual offender enhancement, the maximum prison sentence that the trial court could have imposed for Orlando's third-degree felony offense was ten years. See Tex. Penal Code Ann. § 12.34(a). As Orlando acknowledges in his brief, though the trial court never made an express finding that the indictment's enhancement paragraph was "true," the State presented evidence that Orlando had been convicted of the prior felonies as alleged in the indictment. Given the evidentiary support in the record, we presume that the trial court implicitly found the enhancement paragraph "true" in assessing Orlando's sentence. See Ice v. State, 914 S.W.2d 694, 695 (Tex. App.-Fort Worth 1996, no pet.) ("[W]e presume that the trial court made the findings necessary to support its ruling, so long as those implied findings are supported by the record.... If the implied . . . finding is supported by the record, it must be sustained."); see also Jackson v. State, 474 S.W.3d 755, 756-57 (Tex. App.-Houston [14th Dist.] 2014, pet. ref'd) (concluding that the pre-sentence investigation report provided sufficient evidence of appellant's prior convictions to support the trial court's implied finding that the indictment's enhancement paragraphs were true).
II. Discussion
In a single point, Orlando asserts that the evidence is insufficient to support the jury's deadly weapon finding. This argument is without merit.
A. Standard of Review
When evaluating the sufficiency of the evidence to support a deadly weapon finding, we apply the familiar Jackson standard. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979). Thus, we must "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 that the truck was used or exhibited as a deadly weapon." Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003) (first citing Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; and then citing Tisdale v. State, 686 S.W.2d 110, 114 (Tex. Crim. App. 1985) (op. on reh'g)).
B. Analysis
The Texas 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 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. We will address both prongs of this test below.
1. Orlando's Manner of Driving
Under the first prong of the Sierra test, we must evaluate Orlando's manner of driving to determine whether it was reckless or dangerous. See Foley v. State, 327 S.W.3d 907, 916 (Tex. App.-Corpus Christi-Edinburg 2010, pet. ref'd) (citing Sierra, 280 S.W.3d at 255). In making this determination, "[w]e 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." Id.
Here, the evidence is sufficient to support a finding that Orlando's driving was reckless or dangerous. The record shows that Orlando was intoxicated, drove erratically, and failed to control his vehicle. Officer Pickett testified that he believed that Orlando was intoxicated, a belief that is supported by Orlando's crashing his vehicle into multiple cars and a tree. Cf. Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010) (noting that "the inference" that a driver's intoxication caused an accident "is even stronger when the accident is a one-car collision with an inanimate object"). If there were any doubt about Orlando's intoxication, his trial counsel removed it by conceding the point on the record. Orlando's erratic driving and inability to control his vehicle were clearly demonstrated by testimonial, photographic, and video evidence showing that Orlando backed into one car, hopped a curb, hit another parked car, and then crashed into a tree. Thus, a rational factfinder could have found that Orlando's driving was reckless or dangerous. See Foley, 327 S.W.3d at 916.
Orlando's counsel stated, "[Orlando] was intoxicated. I'll give you that too. He was intoxicated. He was driving. He shouldn't have been either of those. But that's a different problem for a different court on a different day ...."
2. Whether Orlando's Vehicle Was Capable of Causing Death or Serious Bodily Injury
Under the second prong of the Sierra test, we must determine whether Orlando 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 906, 913 (Tex. Crim. App. 2017); Cates, 102 S.W.3d at 738. Rather, there must be evidence that others were actually endangered. Foley, 327 S.W.3d at 916 (first citing Cates, 102 S.W.3d at 738; then citing Drichas v. State, 219 S.W.3d 471, 476 (Tex. App.- Texarkana 2007, no pet.); and then citing Williams v. State, 946 S.W.2d 432, 435 (Tex. App.-Fort Worth 1997), aff'd in part, rev'd in part on other grounds, 970 S.W.2d 566 (Tex. Crim. App. 1998)). Thus, we must examine the record for evidence that there was someone "at the same time and place" who was actually imperiled by Orlando's driving. See id. (quoting Drichas, 219 S.W.3d at 476).
Here, the record clearly shows there were a number of people-both pedestrians and other drivers-who were "at the same time and place" as Orlando during his reckless driving episode. See id. For instance, Orlando backed his vehicle into an occupied vehicle. There were a number of police officers in the vicinity of Orlando's vehicle who had to move out of the way to avoid being hit. Indeed, it was Officer Pickett's knocking on Orlando's driver-side window that prompted Orlando to attempt to drive off. In addition, there were other people nearby, including pedestrians walking back and forth and children riding their bikes. Thus, there is more than sufficient evidence to support a finding that Orlando's reckless or dangerous driving actually endangered others. See Cates, 102 S.W.3d at 738.
Because, given the evidence in the record, a rational trier of fact could have found both (1) that Orlando drove recklessly or dangerously and (2) that his reckless or dangerous driving actually endangered people, the deadly weapon finding is not erroneous. See Sierra, 280 S.W.3d at 255; see also Jackson, 443 U.S. at 319, 99 S.Ct. at 2789. Accordingly, we overrule Orlando's sole point.
Orlando cites Glover v. State, 09-13-00084-CR, 2014 WL 1285134, at *1-2 (Tex. App.-Beaumont Mar. 26, 2014, pet. ref'd) (mem. op., not designated for publication), Foley, 327 S.W.3d at 916-17, and Pointe v. State, 371 S.W.3d 527, 530, 532 (Tex. App.-Beaumont 2012, no pet.), to support his contention that the evidence is insufficient to support the jury's deadly weapon finding. However, all of these cases are distinguishable. In Glover, the court found the evidence legally insufficient to support the deadly weapon finding because although the appellant had been driving over the speed limit while intoxicated, the record did "not contain any other evidence that [he] was driving recklessly." Glover, 2014 WL 1285134, at *2. Unlike Glover, the record in this case contains abundant evidence of Orlando's reckless or dangerous driving, including hopping a curb to drive in a grassy area not meant for vehicular traffic and colliding with multiple vehicles and a tree. In Foley, the court found the evidence insufficient because it did not satisfy the second prong of the Sierra test- there was no evidence that the appellant's reckless driving actually endangered anyone because at the time the appellant wrecked his vehicle, the closest person was working inside an office building sixty feet away. Foley, 327 S.W.3d at 917. This is in stark contrast to the present case in which there were multiple people in close proximity, including pedestrians who had to take evasive action to avoid being hit. Finally, in Pointe, the evidence was found insufficient to support the deadly weapon finding because officers determined that another driver had pulled out in front of the appellant's car and was at fault for the collision. Pointe, 371 S.W.3d at 530, 532. No such mitigating factors are present here. Unlike Pointe, Orlando's driving created all of the danger in this case. Thus, none of the cases upon which Orlando relies are on point.
III. Conclusion
Having overruled Orlando's sole point, we affirm the trial court's judgment.