author: MEYERS, J. KEASLER, J.,

text:
    John Tuy PHAM and Chance Derrick Gonzales, Appellants, v. The STATE of Texas.
    Nos. PD-12-04, PD-72-04.
    Court of Criminal Appeals of Texas.
    June 8, 2005.

      G. Allen Goodling, Houston, for Appellant in PD-12-04.
    Carol M. Cameron, Assist. Dist. Atty., Houston, Matthew Paul, State’s Atty., Austin, for the State.
    Michael B. Charlton, Alvin, for Appellant in PD-72-04.
    MEYERS, J., delivered the opinion of the Court, in which KELLER, P.J., and PRICE, WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ., join.
   OPINION

MEYERS, J.

Appellant John Tuy Pham was convicted by a jury of the offense of murder, and was assessed a punishment of life imprisonment in the TDCJ Institutional Division. Appellant Chance Derrick Gonzales pled guilty to the offense of murder in the 208th District Court of Harris County, Texas. He was sentenced to 45 years’ confinement in the Texas Department of Criminal Justice (“TDCJ”) institutional division pursuant to a plea bargain.

We consolidated Appellants’ cases, as the same issues are raised in each of their appeals, and both cases are being appealed from the First Court of Appeals in Harris County. We will affirm the judgment of the court of appeals in both cases.

I. Facts

Appellant Pham was sixteen years old at the time he became a suspect in the drive-by shooting that resulted in the death of the victim, Dung Van Ha. At 2:35 p.m. on September 9, 1998, Houston police officers arrested Appellant at Clear Brook High School. At 3:35 p.m., a magistrate gave Appellant legal warnings as required by section 51.095 of the Texas Family Code. Subsequently, Appellant was taken to the police station and questioned by an investigator. Appellant admitted to his involvement in the shooting at approximately 4:38 p.m. He was then taken to a juvenile facility for processing by the police officers. An officer from this processing facility first notified Appellant’s family at about 8:15 p.m. when he spoke to Appellant’s sister. No one from the police department spoke with Appellant’s parents until 9:50 p.m. Appellant’s parents did not come to see him until the following day.

Appellant Gonzales was arrested in connection with a shooting death during a robbery at a convenience store when he was 15 years old. Appellant was identified by two witnesses who confirmed that he shot the victim while attempting to steal beer from the store for a gang party. Police arrested Appellant at a party, sometime between midnight and 1:30 a.m. Before police officers took Gonzales to a juvenile processing office at approximately 2:30 a.m., the officers made a stop at a sheriff’s station where they left him for 20-30 minutes so they could pick up a surveillance tape from a convenience store. This tape showed Appellant committing a similar type of robbery the same night. Appellant was given his Miranda warnings in the car on the way to the processing facility. The officer’s then took Appellant to a municipal judge at 3:35 a.m., where he was given the warnings required by Texas Family Code section 51.095. It was in the judge’s chambers with the police officers that Appellant Gonzales then gave his written statement. The arresting officer testified that he did not notify Appellant’s parents that their son had been arrested. Appellant Gonzales’ parents did not know that he had been arrested until he was processed into the juvenile arresting facility five to six hours after he was arrested, and after he gave his statement to police.

II. Procedural History: Pham

Appellant Pham originally appealed his conviction to the First Court of Appeals. The court of appeals in Pham v. State (Pham I), reversed the conviction based on the conclusion that the trial court erred in admitting Appellant’s statement. The court held the statement inadmissible due to the State’s violation of Texas Family Code § 52.02(b), and remanded the case to the trial court. The State subsequently-filed a petition for discretionary review with this court, which was granted. This court vacated Pham I in Pham v. State (Pham IT), and remanded the case to the court of appeals in light of the decision in Gonzales v. State (Gonzales II). Upon reconsideration, the court of appeals decided Pham v. State (Pham III), on November 26, 2003. In this decision, the court held that the trial court had properly admitted Appellant’s confession, and that Appellant was not entitled to a jury instruction on the admissibility of his confession. Appellant subsequently filed a petition for discretionary review to this Court.

III. Procedural History: Gonzales

Appellant Gonzales appealed to the First Court of Appeals from a plea of guilty. The court of appeals handed down its original decision (Gonzales I) on November 4, 1999, holding that Appellant’s confession was inadmissible because the State had not met its burden of proving that Texas Family Code § 52.02(b) had not been violated. We granted the State’s petition for discretionary review, and on February 13, 2002, vacated the decision of the court of appeals (Gonzales II). This Court held in Gonzales II that Appellant’s statement was not inadmissible merely because the State failed to follow the requirements of Texas Family Code § 52.02(b). We held that an exclusionary analysis under Texas Code of Criminal Procedure Article 38.23, including a causal connection analysis, had to be undertaken by the court, and had not been. Therefore the case was remanded. Upon reconsideration of the case, the court of appeals handed down an opinion on November 26, 2003 (Gonzales III), holding that, in an article 38.23 exclusionary analysis, the initial burden was on the appellant to demonstrate a violation of a statutory requirement as well as a causal connection between the violation and his ensuing confession. Finding that Appellant Gonzales presented no evidence to demonstrate this causal connection, the court of appeals affirmed the judgment of the trial court and held Appellant’s statement admissible. Appellant then filed a petition for discretionary review with this Court.

IV. First Court of Appeals’ Decisions and Grounds for Review

The court of appeals held in Pham III that the State did obtain Appellant Pham’s confession in violation of Texas Family Code section 52.02(b), however, in light of our opinion in Gonzales II, the court also held that the confession was not automatically inadmissible without first conducting an analysis under Texas Code of Criminal Procedure article 38.23 to determine whether there was a causal connection between the illegal conduct and the acquisition of the evidence. The court of appeals interpreted our remand in Gonzales II as implying that an attenuation-of-taint analysis was an insufficient analysis to satisfy the requirement that a causal connection be established. Therefore the court of appeals determined that the causal connection analysis required by this Court in Gonzales II must be separate from an attenuation-of-taint analysis. The court of appeals further relied on our opinion in Roquemore v. State, 60 S.W.3d 862 (Tex.Crim.App.2001) for this conclusion, where this Court first conducted a causal connection analysis and found a causal connection between the recovery of stolen property and the illegality of police conduct, but failed to conduct an attenuation-of-taint analysis because the State did not raise the argument.

The court of appeals next addressed the issue of which party has the burden of proving a causal connection, noting that no direct authority establishes who takes on this burden. The court pointed out that the issue is not who has the ultimate burden of persuasion as to the admissibility of a confession, as this clearly rests with the State in an attenuation-of-taint analysis, but rather who has the initial burden of production of proof of a causal connection between the violation of the statute and the ensuing confession. The court ultimately held that the defendant should shoulder this initial burden of proof, analogizing the situation to that of a violation of the statute requiring that a defendant promptly be taken before a magistrate. The court also based its conclusion upon more practical considerations, such as the fact that it is more “reasonable to place the burden on the defendant to produce evidence to which only the defendant has access.” The court concluded that the State has the burden to demonstrate attenuation of the taint once the defendant has satisfied the initial burden of production of some evidence that shows a causal connection between the police illegality and the recovery of the evidence. The court found that Appellant Pham produced no evidence of a causal connection, and therefore did not meet his burden, making it unnecessary to conduct an attenuation-of-taint analysis, and rendering his confession admissible.

In Appellant Gonzales’ case, the court of appeals, citing its decision in Pham III (discussed above), again held that when there is a violation of section 52.02(b) of the Texas Family Code, the initial burden is on the defendant to demonstrate a violation of the statutory requirement and a causal connection between that violation and the ensuing confession. Again, the court held that Appellant Gonzales produced no evidence that would demonstrate a causal connection between the police violation of the Family Code and his ensuing confession, therefore his statement was admissible.

Both Appellants argue that a causal-connection analysis is part and parcel of an attenuation-of-taint analysis, and that the burden of proof falls on the State to negate the causal connection between the violation and the confessions of the two Appellants. Appellants claim that the court of appeals ignored cases stating that when voluntariness is an issue, the burden of proof for admissibility of confessions lies with the State, and argue that this Court did not create a separate causal connection analysis in Gonzales II.

The State argues in these cases that the court of appeals did not err in placing the burden of production on Appellants to offer evidence to prove that violations of the Family Code occurred, and that they were causally connected to the ensuing confessions. The State contends that Appellants failed to meet the burden of production, i.e. they did not produce any evidence that their statements were obtained in violation of any laws. Additionally, the State argues that causal connection and attenuation-of-taint are two separate analyses by which a court will determine whether evidence was obtained in violation of the law as set out in article 38.23.

We granted review in both of these cases to clarify the causal connection analysis which must be undertaken in article 38.23 suppression of evidence claims. In Appellant Pham’s case, we granted the following two grounds for review: 1) did the court of appeals err in holding that causal connection and attenuation-of-taint constitute separate analyses, and 2) did the court of appeals err by requiring Appellant to prove a causal connection between the violation of section 52.02(b) of the Texas Family Code and Appellant’s confession? In Appellant Gonzales’ case, we granted the following ground for review: did the court of appeals adopt the wrong standard by which a causal connection must be established under article 38.23 to justify suppression of evidence seized in violation of the Family Code?

IV. Law

Neither party argues with the settled law that the burden of proof is initially on the defendant to raise the exclusionary issue by producing evidence of a statutory violation, and that this burden then shifts to the State to prove compliance. The main issue we face here is whether the defendant has the burden of producing evidence that shows the violation is connected to the obtaining of the evidence sought to be suppressed.

Appellants argue that a causal connection analysis cannot be separated from an attenuation analysis, and thus, since it is well settled that the State bears the burden of proving attenuation of taint, the burden is also upon it to produce evidence of a causal connection. We disagree. If we follow this circular argument, anytime an appellant asserted a statutory violation of Family Code section 52.02(b), a court would immediately have to conduct an attenuation-of-taint analysis because it is part of the causal connection analysis. This would further the assumption that once Appellant shows a violation of the statute under 52.02(b), the evidence is automatically assumed inadmissible unless the State demonstrates attenuation-of-taint, an assumption which we expressly rejected in Gonzales II.

We have held that the State may make an attenuation-of-taint argument which is included under an Article 38.23 analysis. However, this argument is discussed by a court only if the State raises it. Analysis of causal connection and attenuation-of-taint are not the same. An attenuation-of-taint analysis is not always required and therefore need not always be conducted. We have expressly held that a causal connection between a violation of section 52.02(b) and the obtaining of evidence must be shown before the evidence is rendered inadmissible. If there is no causal connection shown in the first place, there is no reason for the State to argue that the taint of the violation is so far removed that the causal connection is broken. Attenuation-of-taint breaks this connection. . It does not negate the existence of the causal connection.

If the defendant produces evidence that there is a causal connection, the State may either try to disprove this causal evidence, i.e. disproving that there is a causal connection in existence at all, or, the State may make an attenuation-of-taint argument. Attenuation-of-taint is evaluated under the four-step Brown v. Illinois analysis, in which the State may argue that although the defendant has demonstrated evidence of a causal connection, the taint of the violation was so far removed from the obtaining of the evidence that the causal chain the defendant demonstrated is in fact broken. In short, without first establishing that there is a causal connection between the violation and the obtaining of the evidence, there can be nothing for the State to assert has been broken through the attenuation-of-taint factors. Thus, we uphold the court of appeals’ conclusion that a causal connection analysis regarding Family Code section 52.02(b), as required by this Court in Gonzales II before evidence may be deemed inadmissible, is separate from an attenuation-of-taint analysis, which may be used by the State to rebut a defendant’s causal connection argument.

We also uphold the court of appeals’ distribution of the burdens of proof in both of these cases. We have long held that “the burden of persuasion is properly and permanently placed upon the shoulders of the moving party. When a criminal defendant claims the right to protection under an exclusionary rule of evidence, it is his task to prove his case.” In Russell v. State, we again cited this holding. Recognizing that this analysis was used for federal claims of illegal search and seizure under the Fourth Amendment, and because Texas statutory law is silent as to how the burden of proof is distributed on a motion to suppress, this Court adopted some of the rules followed by federal courts in distributing burdens of proof.

Appellant argues that the burden should be on the State to show the causal connection, and analogizes this situation to the admissibility of confessions when issues of voluntariness are raised. Although the burden is on the State to prove that a defendant’s confession was voluntary once the issue has been raised, that situation may be distinguished from the statutory violation of the Texas Family Code we have here. All a defendant must do on a claim of involuntary confession is to demonstrate there is a cognizable violation, and the confession is immediately presumed inadmissible unless the State can prove by a preponderance of the evidence that it was made voluntarily. There is no requirement that a defendant establish any causal connection between the illegal conduct and the ensuing confession; the defendant simply must raise the voluntariness issue. In this case, it is not enough for the defendant to merely establish a violation. Under Texas case law, it is required that a causal connection be established, and we hold that the defendant, as the moving party wishing to exclude the evidence, is responsible for the burden of proving this connection.

Thus, the court of appeals correctly held that the burden is on the defendant, as the moving party in a motion to suppress evidence obtained in violation of the law under Art. 88.23, to produce evidence demonstrating the causal connection which this court required in Gonzales II. The burden then shifts to the State to either disprove the evidence the defendant has produced, or bring an attenuation-of-taint argument to demonstrate that the causal chain asserted by the defendant was in fact broken.

Y. Conclusion

In the case of Appellant Pham, we hold that the court of appeals conducted the appropriate analysis, and that the court did not err in requiring Appellant Pham to produce evidence to prove a causal connection between the violation of section 52.02(b) of the Texas Family Code and his ensuing confession. The decision of the court of appeals is affirmed.

In the case of Appellant Gonzales, we hold that the court of appeals adopted the correct standard by which a causal connection must be established under Art. 38.28 to justify the suppression of evidence seized in violation of the Family Code. The decision of the court of appeals is affirmed.

KEASLER, J., filed a dissenting opinion.

KEASLER, J.,

dissenting.

The Court concludes that an attenuation-of-taint analysis is different from a causal-connection analysis. Because the only support for this conclusion is a troublesome substantive footnote, and the conclusion is in conflict with Supreme Court jurisprudence, I dissent.

The United States Supreme Court introduced the attenuation concept over 65 years ago in Nardone v. United States. There the Court explained that “[sjophisti-cated argument may prove a causal connection between information obtained through illicit wire-tapping and the Government’s proof,” but “[a]s a matter of good sense ... such connection may have become so attenuated as to dissipate the taint.” In other words, an analysis of the “causal connection” between the violation of the law and the discovery of the evidence is part and parcel of the “attenuation of taint” analysis. They are one and the same. If the evidence is obtained as a direct result of the illegal action, then there is a causal connection between the two. If the discovery of evidence is a remote result of the illegal action, then there is an attenuation of the taint. The two events are either causally connected or they are attenuated. The doctrines are two sides of the same coin.

We recognized this in Bell v. State when we addressed the “taint attenuation to determine whether the causal chain between the illegal arresi/first confession and subsequent events was broken.” Later, in State v. Daugherty, we discussed “what Article 38.23(a) means by ‘evidence obtained in violation of the law.” We explained that the “ordinary meaning” of “obtained” accommodated the attenuation doctrine because “depending on how removed the actual attainment of the evidence is from the illegality, the ordinary person would not consider that evidence to have been ‘obtained’ by that illegality.” Even when evidence would not have been obtained but for an illegality, we said, if the eventual discovery of the evidence was far removed from the illegality then the evidence would not need to be excluded “because the ordinary meaning of ‘obtained’ does not extend to such a remote, or ‘attenuated,’ causal relationship.” So we, too, have recognized that the attenuation doctrine encompasses a causal connection analysis.

But a few years ago in Roquemore v. State, we dropped a mischievous footnote. After analyzing whether there was a causal connection between the illegality and the discovery of the evidence, we then said that “we need not do an attenuation of taint analysis because the State did not raise the argument.” With this footnote, we implied that an attenuation analysis is separate from a causal-connection analysis. This is not true, of course, and the footnote itself is dicta, but those facts have not stopped this footnote from having a negative impact on the law.

The footnote has certainly confused the First Court of Appeals. On original submission in Pham, the First Court analyzed whether there was a causal connection between the illegality and the discovery of evidence, and the court concluded that there was. The court said the following:

If the arresting officers had promptly notified appellant’s parents of his arrest approximately two hours before his confession, there would have been time for them to get to the juvenile processing office at 1200 Travis before the confession. As in Comer, we cannot say with any degree of confidence that if appellant had access to his parents or his attorney, he would still have chosen to confess to the crime.

Despite the court’s analysis, we granted the State’s petition and remanded the case for the Court of Appeals to consider the issue again in light of Gonzales. The First Court was somewhat perplexed, saying:

In our original opinion, we conducted a taint-attenuation analysis, tracking Comer. This was apparently an insufficient analysis to avoid a remand for reconsideration in light of Gonzales,

The court determined from our remand that, “at the outset,” it should “determine whether causal connection and attenuation of the taint constitute separate analy-ses.” It then found that the case “most clearly demonstrating separate analyses for causal connection and attenuation of the taint, and the order in which they are to be undertaken, is Roquemore.” The court concluded that, “[biased on Roque-more, and based on the fact that our attenuation-of-the-taint analysis in Pham I was found inadequate to satisfy a Gonzales causal-connection analysis, we conclude that there are separate analyses for causal connection and attenuation of the.taint.”

But the footnote in Roquemore was misguided and misleading. Additionally, a remand from this Court in light of another case does not necessarily mean that the appellate court was wrong in its original analysis. It means only that we want the court to consider the issue again and determine if its analysis needs to be altered in light of the new opinion. In this case, there was no need for the Court of Appeals to alter its analysis in Pham, I. It had already done an attenuation/causal connection analysis, which is all that Gonzales required.

In other jurisdictions, it is a given that an attenuation-of-the-taint analysis and a causal-connection analysis are one and the same. The United States Court of Appeals for the Tenth Circuit says that “the government must prove, from the totality of the circumstances, a sufficient attenuation or break in the causal connection between the illegal detention and the consent.” The Eleventh Circuit says that “challenged evidence will be admissible under the ‘attenuation’ doctrine if the causal connection between the constitutional violation and the discovery of the evidence has become so attenuated as to dissipate the taint.” The Fifth Circuit refers to the analysis as the “causal-taint attenuation” analysis. State courts have held similarly.

Once we acknowledge that the attenuation analysis and the causal-connection analysis are one and the same, the question regarding burden of proof is answered. In Brown v. Illinois, the United States Supreme Court set forth some of the factors to be considered in a causal connection/attenuation analysis, then added that “the burden of showing admissibility rests, of course, on the prosecution.” We have also recognized that “the burden of showing attenuation and thus admissibility rests with the prosecution.”

In both Pham and Gonzales, the appellate court erred in analyzing the causal connection separately from the attenuation of the taint. The court also erred in placing the burden of showing a causal connection on the appellants. I would reverse both judgments. Because the majority holds otherwise, I dissent.

      . John Tuy Pham v. State, 36 S.W.3d 199 (Tex.App.-Houston [1st Dist.] 2000).

      . Texas Family Code section 52.02(b) states:

        A person taking a child into custody shall promptly give notice of the person’s action and a statement of the reason for taking the child into custody, to:
      (1) the child's parent, guardian, or custodian; and (2) the office or official designated by the juvenile board, (emphasis added)

      . Pham v. State, 72 S.W.3d 346 (Tex.Crim.App.2002).

      . Gonzales v. State, 67 S.W.3d 910 (Tex.Crim.App.2002) (Gonzales II).

      . Pham v. State, 125 S.W.3d 622 (Tex.App.Houston [1st Dist.] 2003) (Pham III).

      . Gonzales v. State, 9 S.W.3d 267 (Tex.App.Houston [1st Dist.] 1999) (Gonzales I).

      . Gonzales v. State, 67 S.W.3d 910 (Tex.Crim.App.2002).

      . Gonzales v. State, 125 S.W.3d 616 (Tex.App.-Houston [1st Dist.] 2003) (Gonzales III).

      . Id. at 618.

      . Id. at 619.

      . Pham III at 625.

      . Id.

      . Id.

        .Id. at 626.

      . Id. at 627.

      . Id.

      . Johnson v. State, 871 S.W.2d 744 (Tex.Crim.App.1994).

      . Roquemore v. State, 60 S.W.3d 862 (Tex.Crim.App.2001).

      . Gonzales v. State, 67 S.W.3d 910 (Tex.Crim.App.2002) (Gonzales II).

      . Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

      . Mattei v. State, 455 S.W.2d 761, 766 (Tex.Crim.App.1970)(quoting Rogers v. United States, 330 F.2d 535 (5th Cir.1964), cert. denied, 379 U.S. 916, 85 S.Ct. 265, 13 L.Ed.2d 186 (1964)).

      . Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986).

      . United States v. Reynolds, 367 F.3d 294 (5th Cir.2004).

      . 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (U.S.1939).

      . Id. at 341, 60 S.Ct. 266.

      . 724 S.W.2d 780, 791 (Tex.Crim.App.1986).

      . 931 S.W.2d 268 (Tex.Crim.App.1996).

      . Id. at 269.

      . Id. at 270.

      . Id.

      . 60 S.W.3d 862 (Tex.Crim.App.2001).

      . Id. at 875 n. 14.

      . See Young v. State, 826 S.W.2d 141, 156 n. 5 (Tex.Crim.App.1991).

      . Comer v. State, 776 S.W.2d 191 (Tex.Crim.App.1989).

      . Pham v. State, 36 S.W.3d 199, 204-05 (Tex.App.-Houston [1st Dist.] 2000) (Pham I).

      . Pham v. State, 72 S.W.3d 346 (Tex.Crim.App.2002) (Pham II), citing Gonzales v. State, 67 S.W.3d 910 (Tex.Crim.App.2002).

      . Pham v. State, 125 S.W.3d 622 (Tex.App.Houston [1st Dist.] 2003) (Pham III) (internal citations omitted).

      . Id. at 625.

      . Id.

      . Id. at 625-26.

      . United States v. Caro, 248 F.3d 1240, 1247 (10th Cir.2001).

      . United States v. Terzado-Madruga, 897 F.2d 1099, 1113 (11th Cir.1990).

      . United States v. Causey, 818 F.2d 354, 361 (5th Cir.1987), rev'd on other grounds, 834 F.2d 1179 (5th Cir.1987). See also United States v. Wipf, 397 F.3d 677, 684 (8th Cir.2005) (“challenged evidence derived through police illegality will still be admissible under the 'attenuation' doctrine if the causal connection between the constitutional violation and the discovery of the evidence has become so attenuated as to dissipate the taint”); United States v. Green, 111 F.3d 515, 521 (7th Cir.1997) ("[e]vidence - may be 'sufficiently distinguishable to be purged of the primary taint' if 'the causal connection between the illegal police conduct and the procurement of the evidence is “so attenuated as to dissipate the taint’ of the illegal action” ’ ”); United States v. Johnson, 626 F.2d 753, 758 (9th Cir.1980) (stating that "majority opinion in Dunaway repeatedly emphasizes that it is the 'causal connection' that is the relevant inquiry in making the attenuation determination”).

        . See, e.g., Hornsby v. State, 517 So.2d 631, 638 (Ala.Crim.App., 1987) (causal connection may become so attenuated as to dissipate the taint); State v. Tapply, 124 N.H. 318, 326, 470 A.2d 900 (N.H.1983) ("Because of his illegal detention, any statements made by him during such period must be excluded unless the State shows that there has been a sufficient attenuation of the original taint to remove the causal connection between the illegal custody and the statements.”); State v. Barry, 86 N.J. 80, 94, 429 A.2d 581 (N.J.1981) ("By focusing on 'the causal connection between the illegality and the confession,’ the attenuation doctrine serves to indicate when exclusion is necessary to further the purpose of deterrence."); State v. Garcia, 123 S.W.3d 335, 346 (Tenn.2003) (addressing "whether the causal connection between an unlawful seizure and a subsequent consent has been broken, i.e. whether the primary taint of an unlawful seizure has been sufficiently attenuated”).

      . 422 U.S. 590, 603-604, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). See also Dunaway v. New York, 442 U.S. 200, 218, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

      . Boyle v. State, 820 S.W.2d 122, 131 (Tex.Crim.App.1989).


source: Caselaw Access Project

author: HERVEY, J., COCHRAN, J.,

license: Public Domain

text:
    John Vernon HOBBS, Appellant, v. The STATE of Texas.
    No. PD-0570-04.
    Court of Criminal Appeals of Texas.
    June 22, 2005.

      Artie Aguilar, Lubbock, for Appellant.
    Sammy M. McCrary, Asst. District Attorney, Lamesa, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion of the Court

in which KELLER, P.J., MEYERS, WOMACK, JOHNSON, KEASLER, HOLCOMB, JJ., joined.

In this case we decide that appellant committed one, continuous offense of evading arrest as defined by Tex. Pen.Code, Section 38.04(a), which provides:

A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.

The evidence shows that one evening at around 10:00 p.m., appellant fled in his vehicle from a police officer when the officer attempted to stop him. Appellant drove his vehicle into a field. The officer did not pursue appellant for fear of damaging his patrol car. The police set up a perimeter and began searching for appellant. They later found appellant’s abandoned vehicle in another field. Police, with the help of a dog, searched for appellant until 2:30 a.m. at which time the police suspended the search because the dog and the officers were tired and the field was too dark to effectively search for appellant. The police resumed the search at 8:30 a.m. and eventually found appellant hiding in a woodshed attached to a home eight miles from where appellant abandoned his vehicle.

A jury convicted appellant of felony evading arrest and burglary of a habitation with the intent to commit felony evading arrest. The jury assessed appellant’s punishment, enhanced by three prior felony convictions, at 40 years’ confinement for each offense. The trial court ordered these sentences to run concurrently.

Appellant claimed on direct appeal that the evidence is insufficient to support his conviction for burglary of a habitation with intent to commit felony evading arrest because the felony evading arrest offense was completed when appellant abandoned his vehicle before appellant’s entry into the habitation. The Court of Appeals rejected this claim and decided that the felony evading arrest “continued until appellant was later caught and arrested.” See Hobbs v. State, No. 11-03-00082-CR slip op. at 6, 2004 WL 350475 (Tex.App.-East-land, February 26, 2004) (not designated for publication). We exercised our discretionary authority to review this decision. The grounds upon which we granted discretionary review state:

1) Is felony evading arrest in a motor vehicle a continuing offense after the vehicle is no longer in use?
2) Is it legally possible to enter a habitation with the intent to commit the felony of evading arrest in a motor vehicle when the actor is not in possession of the vehicle?

Appellant’s complaint is two-fold. He alleges that he could not have intended to commit a felony evasion of arrest offense when he entered the habitation because any such offense was completed when he abandoned the vehicle. Thus, he claims no burglary as defined in Tex. Pen. Code, § 30.02(a)(1), (2), could have been committed as this section requires an entry into a habitation with the intent to commit a felony. The crux of appellant’s argument is that at most he committed two offenses of evading arrest. He claims that he committed one evading arrest offense which was completed when he abandoned his vehicle at which time his commission of the other evading arrest offense began when he continued his flight on foot. Appellant essentially argues that the different means of locomotion are what makes these two separate offenses.

This presents an issue of statutory construction, particularly whether the different means of locomotion are “allowable units of prosecution” under Section 38.04(a) which, in relevant part, defines the offense as a person who “flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.” This language plainly does not define separate offenses (or “allowable units of prosecution”) when different means of locomotion are used. In addition, Section 38.04(b)(1), which elevates the punishment level for the offense defined in Section 38.04(a) when a vehicle is used, requires only that a vehicle be used at some time during the commission of this offense. As applied to this case, Section 38.04(b)(1) did not require that appellant intended to use his abandoned vehicle (or some other vehicle) when he entered the habitation.

Appellant also claims that the felony evading arrest was completed when, according to appellant, the police gave up the pursuit. Appellant further claims that, if evading is a continuing offense from the beginning of pursuit until apprehension, then the successful evader that commits a criminal trespass days, weeks, months or years later, is guilty of burglary of a habitation with the intent to commit felony evading. Appellant argues in his brief on discretionary review:

The Court of Appeals determination that evading arrest is inherently a continuing offense and their ruling that it continued from the beginning of the chase until Petitioner’s apprehension and arrest would lead to absurd results. For example, any person that effectively evaded arrest on foot that was apprehended hours, days, weeks, months or even years later during a traffic stop where they were driving the vehicle would be guilty of evading arrest with a motor vehicle, even though at no time was a vehicle used in the successful evasion of the original pursuing officer.... Therefore, a person is only committing the offense of evading for so long as the officer is actively attempting lawfully to arrest or detain him. According to the plain language of the statute, once an officer gives up the pursuit, the suspect is no longer evading arrest, he has evaded arrest. While his fugitive status continues the active commission of the crime of evading arrest has been completed. In this case, officers gave up their pursuit of Petitioner on two occasions. The first being when [an officer] ceased pursuit in his patrol unit. (Citation to record omitted). Even if the court concludes that the pursuit was not given up then, it was certainly given up when [the officers] stopped for the night. (Citation to record omitted). Therefore, Petitioner had evaded the officers and the offense was complete. There is no evidence that he later knew they were searching for him.[] Petitioner’s actions after the pursuit entered were those of secreting himself and seeking shelter.[]

The record, however, does not support a finding that the police gave up the pursuit. Instead, the record reflects that the pursuit was temporarily suspended and resumed several hours later when it was feasible for the officers to effectively search for the appellant. This case does not present the situation described in appellant’s brief of the successful evader who commits a criminal trespass days, weeks, months or years later.

The dissenting opinion apparently agrees that the felony evading arrest offense continued until appellant’s apprehension and that appellant was still in the process of committing this offense when he entered the woodshed. See Hobbs v. State, slip op. at 1, 2004 WL 3S0475 (Tex.Cr.App. No. PD-0570-04, delivered this date) (Cochran, J., dissenting) (evading arrest may be a continuing offense and a change in the manner of locomotion — from fleeing in a vehicle to fleeing on foot — does not convert a single, continuous criminal act of evading arrest into separate crimes). The dissenting opinion, however, claims that the Court’s decision is not dispositive of whether appellant intended to commit this felony when he entered the woodshed. See Hobbs v. State, slip op. at 3-4, 2004 WL 350475 (Tex.Cr.App. No. PD-0570-04, delivered this date) (Cochran, J., dissenting) (fact that evading arrest may be a continuing offense not determinative of appellant’s intent when he entered the woodshed). The dissenting opinion claims that appellant is not guilty of the burglary offense unless the evidence shows that he intended to use a vehicle again to escape arrest when he entered the woodshed. See Hobbs, slip op. at 2 (Cochran, J., dissenting).

We disagree. A decision that the felony evading arrest offense continued until appellant’s apprehension is dispositive of whether appellant intended to commit this felony when he entered the woodshed. If (as everyone apparently agrees) the felony evading arrest offense in this case is a continuing offense, the evidence must show only that appellant used a vehicle at some time during the commission of this offense for him to be guilty of the burglary offense. It is not necessary for the evidence to show that appellant intended to use a vehicle again when he entered the woodshed. The dissenting opinion essentially would decide that appellant committed a separate misdemeanor evading arrest offense when he entered the woodshed while he was still in the process of committing the other felony evading arrest offense.

The judgment of the Court of Appeals is affirmed.

COCHRAN, J., filed a dissenting opinion, in which PRICE, J., joined.

COCHRAN, J.,

filed a dissenting opinion, in which PRICE, J., joined.

I respectfully dissent to the majority’s resolution of this case of first impression. I agree with the majority that evading arrest may be a continuing offense and that a change in the manner of locomotion — from fleeing in a vehicle to fleeing on foot — does not thereby convert a single, continuous criminal act of evading arrest into separate crimes. However, that is not the determinative issue in assessing the sufficiency of evidence in this burglary prosecution. As I see it, the underlying legal issue that appellant presents (albeit inartfully) is as follows: Was there legally sufficient evidence to prove that, at the moment appellant broke into Barbara Wal-drip’s woodshed, he had the intent to commit the crime of felony evading arrest? Felony evading arrest requires the use of a vehicle to escape arrest. Burglary, however, focuses upon the future intent of the defendant at the moment he crosses the threshold. It matters not whether he has committed a felony before arriving at the house or whether he is continuing to commit a felony at the time he arrives at the house. The focus is entirely upon the present mens rea of the intruder concerning his intended purpose in entering the house.

Therefore, I cannot understand how, unless there were a car within that woodshed, or at least nearby, a rational jury could determine that appellant’s intent in making a criminal entry into the habitation was to evade arrest by using a motor vehicle. There is ample evidence to support the inference that appellant entered Ms. Waldrip’s woodshed with the intent to hide from the pursuing police, but that is a misdemeanor evading arrest offense, not a felony. Therefore, I would reverse appellant’s conviction and forty-year sentence for burglary, although his forty-year sentence for the separate felony evading arrest conviction which was ordered to run concurrently with the burglary sentence would remain intact.

In its burglary indictment, the State alleged that appellant entered Ms. Waldrip’s home (actually the woodshed attached to her home) with the intent to commit a felony, namely the felony offense of evading arrest with a vehicle. Burglary cannot be committed unless the felonious intent exists at the moment of the unlawful entry. But all of the evidence shows that appellant had a misdemeanor-ish intent— he was “on the lam” and hiding out to evade arrest. He exercised that intent by hiding in Ms. Waldrip’s woodshed. Felony evading arrest, however, requires an additional element — use of a vehicle while in flight. The fact that appellant had used a vehicle several hours earlier to evade arrest does not necessarily mean that he intended to use a vehicle to evade arrest after he entered Ms. Waldrip’s woodshed. The fact that evading arrest may be a continuing offense or that appellant may not have “completed” the offense of felony evading arrest with a vehicle is simply not determinative of his intent — his mens rea — at the brief shining moment that he entered Ms. Waldrip’s woodshed. Under the Texas burglary statute, the evidence must support a finding that appellant intended to commit a felony after he entered the woodshed.

Many states have followed the lead of the Model Penal Code and amended their burglary statutes such that an unlawful entry with the intent to commit any offense suffices to establish burglary. This may be a sound position because, as the Model Penal Code commentary notes, “an intrusion for any criminal purpose creates elements of alarm and danger to persons who may be present in a place where they should be entitled to freedom from intrusion.” Further, broadening the burglary statute to include the intent to commit any criminal offense avoids the sometimes difficult problem of proof concerning exactly what kind or level of dime the intruder intended to commit after his unlawful entry.

A comparison between legal outcomes under the Texas statute and the Model Code provision may be helpful. The facts in this case are strikingly similar to those set out in State v. Wallace, in which the Appellate Court of Connecticut held that there was sufficient evidence to prove that the defendant unlawfully entered an apartment with the intent “to escape from the pursuing police.” Under Connecticut law, such an attempted escape constitutes the misdemeanor offense of interfering with a police officer. Under Texas law, those same facts constitute the misdemeanor offense of evading arrest. There is one small, but crucial, distinction between the Connecticut and Texas burglary statutes. Connecticut defines burglary as an unlawful entry with the intent to commit any crime, while the Texas statute requires an unlawful entry with the intent to commit “a felony, theft, or an assault.” The defendant in Wallace, like appellant in this case, argued that the crime of interfering with a police officer (a.k.a. evading arrest) was complete before the moment he entered the victim’s apartment. That argument was rejected by the Connecticut Court of Appeals, just as it was properly rejected by the court of appeals and this Court in the present case. The issue in Wallace is the same as the issue in this case: What was the defendant’s intent at the moment he unlawfully entered the victim’s home? In both cases the intent was the same: to hide from or evade arrest by pursuing police. In Connecticut, however, the intent to commit any crime after entry of the house suffices — even a misdemean- or. In Texas, only the intent to commit a felony (or any theft or assault) suffices— not misdemeanor evading arrest. Thus, the two cases must be resolved differently because the two burglary . statutes are drafted differently.

In sum, I do not think that there was legally sufficient evidence to prove that, at the moment appellant broke into Barbara Waldrip’s woodshed, he had the intent to commit, after his entry, the felony offense of evading arrest by using a vehicle. Therefore, I respectfully dissent.

      . Tex. Pen.Code, Section 38.04(b)(1), provides:
      (b) An offense under this section is a Class B misdemeanor, except that the offense is:
      (1) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section;

        . The point of error presenting this claim in appellant’s brief in the Court of Appeals stated:
      Is the evidence legally sufficient to support a conviction on the Burglary of a Habitation charge where the intended felony was complete at the time of entry into the Habitation?

      . The underlying felony in these cases is the felony evading arrest.

      . Under appellant’s construction of Article 38.04(a), therefore, a person would commit 10 evading arrest offenses when (1) that person fled from the police in his car which he abandoned and (2) fled on foot until (3) he used a small-wheeled (less than 14 inches in diameter) bicycle which he abandoned and (4) fled on foot until (5) he used a pair of roller skates which he abandoned and (6) fled on foot until (7) he used a pair of roller-blades which he abandoned and (8) fled on foot until (9) he used a skateboard which he abandoned and (10) fled on foot until he was caught.

      . See generally Vineyard v. State, 958 S.W.2d 834 (Tex.Cr.App.1998); Patterson v. State, 152 S.W.3d 88, 92-94 (Tex.Cr.App.2004) (Hervey, J., concurring in the judgment).

      . This construction of Section 38.04(a) finds support in the New Mexico Court of Appeals' construction of a similar statute in a similar case where the defendant initially fled from the police in his car and then on foot. See State v. LeFebre, 130 N.M. 130, 19 P.3d 825, 830-32 (App.2001) (division of evading an officer based on different means of locomotion used during one chase episode “is artificial and not required or contemplated by the [applicable] statute”).

      . The evidence that appellant was hiding in the habitation when the police found him is evidence that appellant knew that the police were still searching for him.

      . These claims are not encompassed within the grounds upon which we granted discretionary review. The Court of Appeals also did not address these specific claims. And, it is not clear that appellant fairly presented them in the Court of Appeals. Appellant summarized his argument in the Court of Appeals as follows:
      The evidence is legally insufficient to support a conviction on the Burglary of a Habitation charge because the underlying felony was complete prior to the entrance into the habitation. Appellant had ditched the car and the officers had called off the search prior to the entrance. Also, Appellant was on foot and was not in a vehicle when Appellant entered into the habitation. Thus, the underlying felony was complete prior to Appellant entering the habitation and therefore Appellant could not have the intent to commit evading arrest with a vehicle. The most intent Appellant could have had was evading arrest, a misdemeanor, and that would not be enough to support a conviction of Burglary of a Habitation with the intent to commit evading arrest with a vehicle.

      . See Hobbs, slip op. at 3 (Cochran, J., dissenting) (appellant had only a misdemeanorish intent at time of unlawful entry into the woodshed).

      . Appellant filed a pro se P.D.R. but was appointed an attorney for purposes of briefing the merits of his P.D.R. issues.

      . Hobbs v. State, No. 11-03-00082-CR, 2004 WL 350475, 2004 Tex.App. LEXIS 1796 (Tex. App.-Eastland 2004) (not designated for publication). Such a ruling would not preclude the State from pursuing any other appropriate charges stemming from this incident.

      . See Conrad v. State, 154 Tex.Crim. 624, 626, 230 S.W.2d 225, 226 (1950) ("Since 1886, in the case of Harris v. State, 20 Tex.App. 652, it has been the consistent holding of this court that the intent to commit the felony or crime of theft, essentially necessary to constitute the crime of burglary, must exist at the time of and accompany the entry into the house”); Coleman v. State, 832 S.W.2d 409, 413 (Tex.App.-Houston [1st Dist.] 1992, pet ref d) ("The intent to commit a felony or a crime of theft must exist at the time of and accompany the entry into the habitation”); see generally, Rol-lin M. Perkins & Roland N. Boyce, Criminal Law 266 (3d ed.1982) (noting that "an intent to commit a mere trespass, or even a misdemeanor ... will not satisfy the common-law definition. Furthermore the intent must accompany both the breaking and the entry”); Wayne R. LaFave, Substantive Criminal Law § 21.1(e) at 219 (2d ed. 2003) ("The intent must be to commit a felony within the dwelling house. Thus, it would not be a burglary to pass through a dwelling as a matter of choice on the way to an offense elsewhere, although it would be if the route was necessary to reach the object or situs of the intended crime”) (citing Robles v. State, 664 S.W.2d 91, 92-94 (Tex.Crim.App.1984) (stating that Texas burglary statute did not require that defendant intended to steal property from within the premises, only that “the unlawful entry was made for the purpose of furthering commission of the intended theft"; holding that defendant who entered banker's home with a gun and with intent to take banker to his bank to withdraw money for defendant was sufficient to prove burglary even though defendant did not intend that actual theft of money occur at the house; " 'gaining entry was critical to the success of appellant's plan to extort the money' ”)).

      . Tex. Penal Code § 38.04(a)(1) & (2)(A).

      . The majority cites State v. LeFebre, 130 N.M. 130, 19 P.3d 825, 830-32 (N.M.Ct.App.2001), for; the proposition that evading arrest, despite a change in the means of locomotion, may be a continuing offense. In LeFebre, the court of appeals agreed with the defendant's argument that double jeopardy principles prevented his conviction for two distinct crimes of evading arrest when he used a car to elude capture, then abandoned it, and fled on foot. Id. As the majority correctly points out in footnote four, double jeopardy principles would bar multiple convictions for evading arrest when the criminal act is one continuous course of conduct with only the means of locomotion changing. That, however, is not what is at issue in this case.

      . Under both the Texas statute and the Model Penal Code, the State must prove that at the time the defendant entered unlawfully he intended to commit the underlying crime after he entered the premises. See Robles, 664 S.W.2d at 93-94; Model Penal Code § 221.1, Comment at 76-77 ("The word 'therein' in Subsection (1) of the Model Code provision [defining burglary] performs the same function by requiring that the intent to commit an offense after the entry has been effected”).

      . Model Penal Code § 221.1 (1980); see La-Fave, § 21.1(e) at 220 & n. 119 (listing states).

      . Model Penal Code § 221.1, Comment at 75. The homeowner's "perception of alarm and danger, moreover, will not depend on the particular purpose of the intruder. The fact that he may be contemplating a minor offense will be no solace to those who may reasonably fear the worst and who may react with measures that may well escalate the criminal purposes of the intruder.” Id.

      . LaFave, § 21.1(e) at 220 n. 120.

      . 56 Conn.App. 730, 745 A.2d 216 (2000).

      . 56 Conn.App. at 739, 745 A.2d at 221.

      . Conn. Gen.Stat. § 53a-167a(a) & (b) ("Interfering with an officer is a class A misdemeanor”).

      . Tex Penal Code § 38.04(a) & (b).

      . Conn. Gen Stat. § 53a-103(a) ("A person is guilty of burglary in the third degree when he enters or remains unlawfully in a building with intent to commit a crime therein”).

      . Tex. Penal Code § 30.02(a)(1).

      . The Connecticut court of appeals stated:
      The defendant claims that in the present situation., an individual has completed all of the elements of interfering before attempting the unlawful entry and has no intent to commit a separate offense within the building entered. Thus, the defendant claims, a person who has committed all of the acts necessary to establish the offense prior to the unlawful entry does not, as a matter of law, enter with the intent to commit the crime therein. We are unpersuaded.
      We conclude that the jury could logically infer that the defendant was attempting to avoid being discovered by the police when he ran through various backyards, hid in the bathtub of Xie’s apartment and attempted to break into homes. The unlawful entry into the apartment at 502 Orange Street and the attempted entry into the other residences, coupled with the intent to interfere with the police officers searching for him, supports the convictions of burglary and attempted burglary as found by the jury.
      56 Conn.App. at 736 & 740, 745 A.2d at 220 & 222.


author: HERVEY, J.,

text:
    Ex parte James McCURRY, Applicant.
    No. AP-74969.
    Court of Criminal Appeals of Texas.
    June 29, 2005.

      James McCurry, pro se.
    Jack Roady, Assistant District Attorney, Houston, Matthew Paul, State’s Attorney, Austin, for State.
   OPINION

HERVEY, J.,

delivered the opinion for a unanimous Court.

This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, Tex.Code Crim. PRoc. Applicant was serving a ten-year sentence on a conviction for sexual assault of a child when he was placed on mandatory supervision pursuant to § 508.001(5), Tex. Gov’t Code. Applicant was confined at the Ben Reid Correctional Facility (a private correctional facility) as a condition of his mandatory supervision.

Applicant contends that the imposition of this condition without first providing him with a hearing to contest it violated due process. He claims that this condition “is qualitatively different from punishment characteristically suffered by sex-offender parolees.”

Applicant relies on a Fifth Circuit decision in Coleman v. Dretke which held that a parole panel violated due process by imposing sex offender registration and sex offender therapy as conditions of an inmate’s release to mandatory supervision without providing the inmate (who had never been convicted of a sex offense or otherwise found to be a sex offender) an opportunity to contest his sex offender status. See Coleman v. Dretke, 395 F.3d 216, 221-25 (5rth Cir.2004). Coleman applied the principle that due process guarantees an inmate some process before the government can impose conditions that are “qualitatively different” from the punishment characteristically suffered by a person convicted of the crime, and which have stigmatizing consequences. Id. Coleman decided that both of these factors were present in that case. Id. (due process provided inmate with liberty interest in freedom from stigma of sex offender classification and compelled sex offender treatment which was qualitatively different from other conditions which may attend an inmate’s release).

Applicant has not shown that his confinement in the Ben Reid facility is “qualitatively different” from conditions authorized by statute (see footnote 1) and characteristically imposed on many other convicted sex offenders who are placed on mandatory supervision. We are unable to conclude that this condition is “such a dramatic departure from the basic conditions of parole” for many other convicted sex offenders that due process mandates procedural protections. Id. Nor can we conclude that applicant’s confinement in the Ben Reid facility is a “stigmatizing classification” like the one in Coleman where an inmate who had never been convicted of a sex offense nevertheless was classified as a sex offender with stigmatizing consequences. Id. Applicant, therefore, was not entitled to a hearing to contest his confinement in the Ben Reid facility as a condition of his mandatory supervision.

Habeas corpus relief is denied.

      . The applicable statutes put an inmate on notice that a parole panel may impose as a condition of mandatory supervision any condition that a court may impose on a defendant placed on community supervision under Article 42.12, Tex.Code Crim. Proc. See § 508.221, Tex. Gov't Code. A court may require as a condition of community supervision that a defendant serve time in a community corrections facility such as the Ben Reid Facility. See Article. 42.12, §§ 11, 12, 18, TexCode Crim. Proc.; Article 42.13 § 1(b)(2), TexCode Crim. Proc. Applicant, therefore, was on notice that this condition could have been imposed as a condition of his mandatory supervision.


author: KEASLER, J.,

text:
    Rachelle L. HOWELL, Appellant, v. The STATE of Texas.
    No. PD-887-04.
    Court of Criminal Appeals of Texas.
    Sept. 14, 2005.

      Terrence W. Kirk, Austin, for Appellant.
    Jeffrey L. Van Horn, First Asst. S.A., Matthew Paul, State’s Attorney, Austin, for the State.
   OPINION

KEASLER, J.,

delivered the opinion of the Court

joined by KELLER, P.J., and PRICE, WOMACK, JOHNSON, HERVEY, HOLCOMB, and COCHRAN, JJ.

During jury deliberations at Rachelle Howell’s trial, the jurors requested certain testimony be read to them. The judge asked if the jury was in disagreement, and they replied that one or more of them did not clearly hear the testimony. The judge found that this constituted a dispute under the relevant statute. We conclude that the judge did not abuse his discretion in reaching this conclusion, and the Court of Appeals erred in holding otherwise.

Facts

The State charged Howell with DWI. She pleaded not guilty, and the case went to trial. During deliberations, at about 2:45 p.m., the jury sent out a note saying, “We would like a copy of the police officer’s testimony — specifically, whether he believes the defendant was intoxicated at the time of arrest.”

The judge sent to the jury the following excerpt from the reporter’s record:

Q: What was your conclusion?
A: Based on what I saw on the field sobriety and what I noticed in her eyes, I believed that she was intoxicated to the point where she didn’t have normal use of her normal mental or physical faculties at that point.

At 3:40, the jury sent out another note saying, “We are currently deadlocked 3-3 and are making no progress toward resolution. Can the court offer guidance?” The judge responded, “Keep deliberating.”

At about 3:45, the jury sent out the following note:

1. We want the record of the police officer’s testimony when being questioned by the Prosecutor (not the Defense). Initial and redirect.
2. We want the chart pad summary that the Prosecutor used in closing argument.

At this point, defense counsel pointed out that “there has to be a specific point of disagreement.” The judge responded that he “[had] to answer, ‘Be more specific.’ The following discussion ensued:

THE COURT: That is normally what I respond is be more specific, and then go from there.
[DEFENSE COUNSEL]: Maybe, be more specific about the point of your dispute.
[PROSECUTOR]: No, I don’t think we can inquire as to their deliberation.
THE COURT: You are right. She is correct. The thing I get from this is they want the whole record.
[PROSECUTOR]: Right.
THE COURT: I am not going to give them the whole record, so I have got to tie it down by saying, “Be more specific,” and two, “Not in evidence.” Very simple.

The court responded to the jury’s note with “1. Be more specific. 2. Not in evidence.”

At 4:00, the judge received another note from the jury saying, “We want the officer’s testimony, when being questioned by the Prosecutor, concerning the eye movement test (1st test performed) on the defendant.” The following discussion occurred:

[DEFENSE COUNSEL]: The first one — they have to explicitly, have to have a disagreement as to the testimony of the witness.
THE COURT: All right. I’ll go ahead and write, do you have a disagreement as to that testimony. Do you like that response?
[PROSECUTOR]: I don’t want to ask what is it.
[DEFENSE COUNSEL]: Okay, yeah. I see, I see.
THE COURT: I will ask them if they are in disagreement. If you start looking for—
[PROSECUTOR]: Judge, is that what they are asking in the first question?
THE COURT: Let me make the response, okay? “Are you in disagreement as to the testimony?”
[PROSECUTOR]: How about “as to this testimony”?
THE COURT: “Are you in disagreement as to this testimony?” Okay.

The judge sent that question to the jury. The jury responded, “We have an individual (or maybe more) who didn’t clearly hear all of the testimony and wants to review it.” The parties discussed this response:

[DEFENSE COUNSEL]: No, actually, I don’t believe this — I don’t think this is something we can answer under 36.28.
THE COURT: Let me see it again.
[PROSECUTOR]: Well, in disagreement. It’s defined as a disagreement. I don’t think they agree on the testimony; some people think it says one thing, and—
THE COURT: I’m sorry, I beg your pardon. I beg your pardon. They have a disagreement. The question was “Are you in disagreement as to this testimony?” “We have an individual (or maybe more) who didn’t clearly hear all of the testimony and wants to review it.”
[DEFENSE COUNSEL]: They have a disagreement? They have an individual or maybe more who didn’t clearly hear all of the testimony and wants to review it. I don’t think that matches 36.28.

After a recess, the following discussion ensued:

THE COURT: Well, all right. Let’s see what you came up with in response to the original question, the officer’s testimony when being questioned by the prosecutor concerning the eye movement test, first test performed, on the defendant. That is the question.
[DEFENSE COUNSEL]: I think the rule contemplates a specific disagreement about a specific point. I think the—
THE COURT: Let me read it. “We have an individual (or maybe more) who didn’t clearly hear all the testimony and wants”—
I’ve got to go back, first of all, to the question, okay, because it is in response to my question, on disagreement as to testimony. First of all, I guess we’ve really got to go back. “We want the record of the police officer’s testimony when being questioned by the prosecutor (not the defense).” Okay. And in response I said, “Be more specific,” and they come back with this: ‘We want the officer’s testimony when being questioned” — I’m sorry. Isn’t it at the bottom of that page?
Yeah, here is the one I just got done reading. And my response, okay — oh, I’m sorry — “Are you in disagreement as to the testimony?”
And this is where they came back with that response. But they were specific in the first question, We want the record of the police officer’s testimony when being questioned by the prosecutor. And I said, “Be more specific.” So they come down and say, we want the part about the question by the prosecutor, concerning the eye movement, the first, the first test. All right.

The court reporter read back to counsel and the judge a portion of the record. Then:

THE COURT: Now the Court proposes to send back these portions of the record in response to the question.
[DEFENSE COUNSEL]: I am going to object to providing this information. I don’t believe this request for testimony reflects disagreement; and, therefore, I believe it is not a proper request under 36.28. On that basis, I object.
THE COURT: Objection overruled.

The court then sent back the testimony.

The jury ultimately returned and found Howell guilty. The judge sentenced her to 180 days in jail, probated for two years, and a $2000 fine.

On Appeal

Howell appealed, arguing in her second point of error that the trial judge erred in allowing testimony to be read back to the jury in the absence of a disagreement. The Court of Appeals agreed, relying on Moore v. State and distinguishing Robison v. State. , The appellate court found the error harmful and reversed Howell’s conviction.

We granted the State’s petition for discretionary review to decide whether the trial judge abused his discretion by inferring a dispute when, in response to the judge’s inquiry about whether a disagreement existed, the jury responded that some members of the jury did not hear the testimony.

Analysis

Article 36.28 provides that “if the jury disagree as to the statement of any witness they may, upon applying to the court, have read to them from the court reporter’s notes that part of such witness testimony or the particular point in dispute, and no other....” This statute seeks to balance our concern that the trial court not comment on the evidence with the need to provide the jury with the means to resolve any factual disputes it may have.

When the jury asks that certain testimony be re-read, the judge must first determine if the request is proper under Article 36.28. A simple request for testimony does not, by itself, reflect disagreement, implicit or express, and is not a proper request under Art. 36.28. Instead, the request must reflect that the jurors disagree about a specified part of testimony. The trial judge’s conclusion as to whether there is a factual dispute between the jurors is reviewed for an abuse of discretion. A trial judge abuses his discretion when his decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree.

As the Court of Appeals recognized, our leading cases in this area are Moore and Robison. In Moore, the jury sent out a note during deliberations stating that it would like “the testimony of Moore, Ing [sic] and Schmidt describing what happened from the point where Ms. Moore was taken through the doors from the public area.” The defendant requested that the judge tell the jurors that they must certify there was a dispute among them as to that testimony. The judge denied that request and told the jury that the court reporter had to retrieve her notes so the testimony would not be available until 1:00 p.m. At 1:45 p.m. the jury sent out a second note: “The jury requests to hear the earlier requested testimony of officer Ing [sic] and then retire for further deliberation. If the other testimony is needed we will request it.” The judge told the jury that he was still waiting for the court reporter to return. At 3:15 p.m. the jury sent out a third note: “We cannot progress any further until Officer Ing’s [sic] testimony is read for us. Is the court reporter here so she can read that portion of the testimony?” The court reporter had returned by this time, and the defendant objected to reading any testimony “because the jury has not certified that there is a dispute among themselves.” The judge overruled the objection, and the court reporter read portions of the witness’s testimony to the jury.

We agreed with the Court of Appeals that “the last note from the jury, considered by itself or in conjunction with the prior notes, did not indicate the jury was in disagreement or specify a particular matter that was the focus of disagreement.” We held that “[a] simple request for testimony does not, by itself, reflect disagreement, implicit or express, and is not a proper request under Art. 36.28.” We explained that “[t]o hold otherwise permits speculation in every case as to the possibility of disagreement.”

Three months later we decided Robison. There, the jury initially requested “[d]ocu-mentation that would give time of death for each victim” and “[ejvidence or transcript containing the findings of the Chief of Psychiatry at TCOM [Texas College of Osteopathic Medicine].” The judge responded by telling the jurors that the law required them to disagree before testimony could be read back and that they should notify the court of the particular part or parts of any testimony which was in dispute.

Twenty minutes later the jury sent another note stating, ‘We respectfully request all written documents that were submitted into evidence be brought to us.” The judge responded, “You have all the written documents that were submitted into evidence other than the three documents attached to this answer. If you are referring to oral testimony concerning a particular witness’ testimony, you are instructed that you must be specific about the oral testimony you want reproduced for you and which is in dispute.” The jury foreman responded, “Request transcript of Hatcher’s [the prosecutor’s] cross-examination of Dr. Price, in which Hatcher read excerpts from, the report of the Chief of Psychiatry at TCOM.” At this point the judge sent the jury the transcription.

We concluded that the judge did not violate Art. 36.28. We distinguished Moore, because in that case, “[t]he trial court made no affirmative effort to determine if there was a dispute about the requested testimony, let alone what the dispute may be.” In Robison, on the other hand, “there were three separate requests made by the jury in determining whether a dispute existed, each becoming increasingly narrow in scope” and the judge “clearly informed the jury that testimony would be read back only in the event of a dispute.” We concluded that “[t]he trial court was properly cautious in observing the competing concerns of article 36.28 of the Texas Code of Criminal Procedure.”

This case falls somewhere between Moore and Robison. Like Robison, in this case there were multiple requests for testimony, each becoming increasingly specific. But unlike Robison, here the judge never told the jury that a disagreement was required. Instead, the judge merely inquired as to whether the jury was in disagreement.

The Court of Appeals, noting this distinction, concluded that this case was more similar to Moore. The Court found that the jury never indicated a disagreement in this case, and that the increasingly specific notes were irrelevant because the judge had not told the jury that a disagreement was required. But in reaching this decision, the Court of Appeals failed to properly apply the standard of review.

An appellate court should not disturb a trial judge’s decision under Art. 36.28 “unless a clear abuse of discretion and harm is shown.” The test for abuse of discretion “is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action; rather, it is a question of whether the trial court acted without reference to any guiding rules or principles, and the mere fact that a trial court may decide , a matter within its discretionary authority differently than an appellate court does not demonstrate such an abuse.” Although a simple request for testimony is insufficient to reflect a dispute, a trial judge may, in its discretion, infer a dispute in a given case. The judge’s inference of dispute need only have some basis other than mere speculation.

Here, the jury asked for the police officer’s testimony. When told to be more specific, the jury asked for the testimony concerning the “eye movement test.” The judge asked the jury if they were in disagreement, and the jury said that they had an individual, or maybe more, who didn’t clearly hear all of the testimony.

The judge went to great lengths to examine the notes of the jury and determine whether a dispute existed. The judge did not rely solely on speculation; instead, he analyzed the notes and believed that they reflected a dispute. Like the court in Robison, “by considering the last note requesting the testimony in conjunction with prior notes from the jury and the corresponding instructions from the trial court, it was not unreasonable to infer a disagreement among the jury.” Like Robi-son, the judge here made an “affirmative effort to determine if there was a dispute about the requested testimony.” And as in Robison, the trial judge was “properly cautious in observing the competing concerns of article 36.28 of the Texas Code of Criminal Procedure.” The trial judge concluded that the jury disagreed over the substance of the police officer’s testimony. This was a reasonable conclusion under the circumstances. We cannot say the judge abused his discretion in inferring a dispute among the jurors in this case.

Howell argues that, “[w]here some of the jury members do not hear or remember testimony, there can by definition be no ‘dispute’ about it.” She seems to say that a jury must use the word “disagree” or “disagreement” in its note to the judge in order to satisfy the statute. We reject this hypertechnical interpretation. The statute requires that the jury disagree; it does not require that the jury use any particular words to express that disagreement. The issue is not whether a person who did not hear certain testimony can ever be said to be in disagreement with a person who did hear it. As always, whether a disagreement exists will depend upon the particular facts of each case. The only issue we must decide today is whether in this case, this judge abused his discretion by inferring a disagreement based on these particular jury notes. In this case, the judge’s decision that a disagreement was shown is not “so clearly wrong as to lie outside the zone within which reasonable persons might disagree.” The Court of Appeals erred to conclude otherwise.

Conclusion

We reverse the judgment of the Court of Appeals and remand this case to that court for consideration of Howell’s remaining points of error.

MEYERS, J., did not participate.

Appendix

Q: Let me pause. Did you observe smooth pursuit in her eyes when you did the first part that you just described?

A: No, ma’am, I did not.

Q: When you did the maximum deviation, did you observe the jerking in her eyeballs?

A: Yes, ma’am.

Q: You mentioned that some other drugs can cause that?

A: (Nods affirmatively).

Q: Antihistamines taken or allergies cause that?

A: No, a central nervous depressant like spray paint, somebody that is doing PCP or stimulant, central nervous depressant that would cause it to stand out.

Q: Were there any indications that she was doing any of these illegal drugs?

A: No, ma’am.

Q: What was the next part of the test?

A: The third part is from the same position, instead of coming all the way out to here, what we will do is go a whole lot slower, and we will move it over until the point where you see the nystagmus start; so this is where you see the eyes smooth to a point. And it will start bouncing at that point. This pretty much tells you, you can estimate about where it starts. And that we get to right here, and it starts and it will stop right there, and we will do the other eye the same way.

Q: About how many degrees, how many degrees out does the jerking in her eyes start?

A: Somewhere between, between BO to 35, somewhere, not all the way out, but before we get tot he maximum.

Q: I’m sorry, I didn’t hear that.

A: Between 30 and 35. 45 is out here, and you are starting in the middle, 30 would put it about right here somewhere between here and here. It doesn’t look like a whole lot but if you are looking at it this way, your eyes aren’t moving comparative to the pen. The eyes aren’t moving. The earlier nystagmus starts in your eyes, I have found—

[DEFENSE COUNSEL]: Objection to narrative.

THE COURT: Just respond to the question.

Q: What does it indicate to you when that jerking or nystagmus starts earlier on? And speak up.

A: That they have had more to drink than what most people will admit to having. Almost everybody that I have dealt with will say a couple or two beers. I have only had one or two of them say I have had a six-pack. And the earlier, the earlier the nystagmus starts in the eyes, I have found is an indication that they have had more than what they are actually saying.

Q: In terms of how you score this test, are there, is there a percentage score or a letter score that you give to a person? How do you score this test?

A: What we are looking for are the clues of intoxication, which is the lack of smooth pursuit, and it is one clue per eye.

Q: So that is two clues?

A: Two.

Q: And then you have maximum deviation which is all the way out, and the nystagmus at deviation is also two?

A: Two. So that is four.

Q: If you have nystagmus prior to maximum deviation between 30 and 35, that is two more clues, so you have a total of six clues. How many did you observe in the defendant when you did this test on the eye?

A: Six clues.

Q: Six clues?

A: Six clues total. She had the maximum amount of clues and you could get.

Q: And can someone who is a practiced drinker or a frequent drinker control this effect on their eyes if they concentrated hard?

A: No, there is no way to control it. It is an involuntary action. It is an involun-

tary muscle response. There is no way you can do it.

Q: All of these questions about the horizontal gaze nystagmus test, if she had looked anywhere else, like at cars moving or lights moving or birds flying through the sky, would she have been performing the tests properly?

A: No, ma’am.

Q: Did she keep her eyes on the stimulus as you moved back and forth?

A: Yes, ma’am.

Q: Did she perform at least that part of the test in order to maintain the integrity of the results?

A: Yes, ma’am.

Q: Did you do the tests properly in order to read her results properly?

A: Yes, ma’am.

Q: If somebody has very distinct and obvious nystagmus is it necessary to do each part of the test twice?

A: If it’s very obvious when you first do it the very first time, if there is no question that nystagmus has started at maximum deviation, and some people will see it, and it is obvious that is what it’s doing; I have done where I do it one time on this side, and I will go back and do it one time on this side, if it’s that obvious.

Q: The manual says you start with the left eye, right?

A: Yes, ma’am.

Q: And you started with her right eye?

A: Yes, ma’am.

Q: In your experience does that affect the performance of the test?

A: No, ma’am.

Q: Have you altered your administration of these tests in any way that would change the reliability of the results?

A: No, ma’am.

      . See Appendix.

      . Howell v. State, 149 S.W.3d 686, 691-92 (Tex.App.-Austin 2004).

      . 874 S.W.2d 671 (Tex.Crim.App.1994).

      . 888 S.W.2d 473 (Tex.Crim.App.1994).

      . Howell, 149 S.W.3d at 692-93.

      . Tex.Code Crim. Proc. art. 38.23.

      . Robison, 888 S.W.2d at 480.

      . Iness v. State, 606 S.W.2d 306, 314 (Tex.Crim.App.1980).

      . Moore, 874 S.W.2d at 673.

      . Id.

      . Robison, 888 S.W.2d at 480.

      . Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992).

      . Moore, 874 S.W.2d at 672.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id.

      . Id. at 673.

      . Id.

      . Id. at 674.

      . Robison, 888 S.W.2d at 480.

      . Id.

        .Id.

      . Id.

      . Id.

      . Id.

      . Id. at 481.

      . Id.

      . Id.

      . Howell, 149 S.W.3d at 691-92.

      . Brown v. State, 870 S.W.2d 53, 55 (Tex.Crim.App.1994)

      . Randon v. State, 107 S.W.3d 646, 648 (Tex.App.-Texarkana 2003, no pet.), citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. onreh’g).

      . Moore, 874 S.W.2d at 673, citing Jones v. State, 706 S.W.2d 664, 667 (Tex.Crim.App.1986).

      . Id. at 674.

      . Robison, 888 S.W.2d at 481.

      . Id.

      . Id.

      . Cantu, 842 S.W.2d at 682.


author: JOHNSON, J., MEYERS, J.,

text:
    David DRICHAS, Appellant, v. The STATE of Texas.
    No. PD-1915-04.
    Court of Criminal Appeals of Texas, En Banc.
    Oct. 19, 2005.

      Troy Hornsby, Texarkana, for Appellant.
    Nicole Habersang, Asst. Criminal District Atty., Texarkana, Matthew Paul, State’s Atty., Austin, for State.
   OPINION

JOHNSON, J.,

delivered the opinion of the Court

in which KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined.

In the early morning hours of March 21, 2002, appellant led police officers from Arkansas and Texas on a high-speed chase through parts of both jurisdictions. Appellant was arrested in Texas and indicted for evading detention in a motor vehicle, a felony offense in violation of Tex. Penal Code § 38.04. Appellant’s criminal history contained fourteen felony convictions, including drug possession, burglary, theft, escape, and eluding arrest or detention. The state, therefore, charged appellant as a habitual offender. Tex. Penal Code § 12.42(d). Approximately two months before trial, the state moved to amend the indictment to include an allegation that appellant had used his truck as a deadly weapon. Tex. Penal Code § 12.35(c). The trial court granted the motion. At the close of the state’s guilt evidence, appellant moved to dismiss the deadly weapon allegation, but the trial court overruled the motion. The jury convicted appellant of evading detention with a vehicle, found that he had used the vehicle as a deadly weapon, and sentenced him to 99 years’ confinement in the Texas Department of Criminal Justice-correctional institutions division (TDCJ-CID).

Appellant appealed, asserting that the trial court had erroneously denied his request to dismiss the deadly weapon allegation. The court of appeals, relying on Williams v. State, Davis v. State, and Mann v. State, found that, to sustain a deadly weapon finding, there must be evidence sufficient to show that others were actually, not simply hypothetically, endangered. While the court of appeals noted that if “driven so as to endanger lives, a motor vehicle can clearly be a deadly weapon” and seemed to concede that appellant’s manner of use was sufficient to render the truck a deadly weapon, it concluded that the evidence to support a deadly weapon finding in this case was both factually and legally insufficient because the state had failed to show actual danger. Drichas v. State, 152 S.W.3d 630 (Tex.App.-Texarkana 2004). The court of appeals deleted the deadly weapon finding and, because the deletion altered appellant’s punishment range, remanded the case to the trial court for a new punishment trial. The state petitioned for discretionary review, contending in its sole ground for review that the court of appeals had misconstrued the standard for reviewing sufficiency of evidence to support a deadly weapon finding and had effectively altered the definition of a deadly weapon. We reverse and remand.

The Evidence

Testimony showed that appellant recklessly pulled out of a gas station parking lot, spinning his wheels, failing to yield to oncoming traffic, and cutting off Lieutenant Dwight Mowery of the Texarkana, Arkansas, Police Department, forcing him to slam on the brakes of his unmarked police car. Lieutenant Mowery followed appellant’s truck for a short distance and observed appellant’s truck fishtail as appellant, at a high speed, ran a stop sign and attempted to make a left turn. Lieutenant Mowery activated his lights, and appellant fled.

Appellant ultimately led law enforcement officers from three agencies on a fifteen-mile high-speed chase into Texas, during which he drove at speeds, 50 to 70 miles per hour, that caused his truck to fishtail on turns and reduced appellant’s ability to control it. Appellant disregarded traffic signs and signals, drove erratically, wove between lanes and within lanes, turned abruptly into a construction zone, knocking down barricades as he did so, and drove on the wrong side on the highway. Lieutenant Mowery testified that “some” traffic was present on the road during the chase. The pursuit ended when appellant turned into a mobile-home park and abandoned his still moving truck to flee on foot, thus allowing the truck to roll into a parked van, which then hit a mobile home.

Analysis

The Code of Criminal Procedure directs the trial court to submit to the jury any issue that is raised by the facts, Tex. Code Crim. Proc. art. 36.14, and authorizes a deadly weapon finding upon sufficient evidence that a defendant “used or exhibited” a deadly weapon during the commission of or flight from a felony offense, Tex.Code CRIM. PROC. art. 42.12 § 3g(a)(2). A deadly weapon is anything that “in the manner of its use or intended use is capable of causing death or serious bodily injury.” Tex. Penal Code § 1.07(a)(17)(B). In this instance, the jury answered the deadly weapon finding affirmatively. If the court of appeals properly determines that the state failed to show that a defendant used a deadly weapon in the commission of an offense, that court may delete the deadly weapon finding. Narron v. State, 835 S.W.2d 642, 644 (Tex.Crim.App.1992).

Legal Sufficiency

The inquiry on review of the legal sufficiency of the evidence to support a criminal conviction is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution. Cates v. State, 102 S.W.3d 735, 738 (Tex.Crim.App.2003)(citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). To hold evidence legally sufficient to sustain a deadly weapon finding, the evidence must demonstrate that: (1) the object meets the statutory definition of a dangerous weapon, Tex. Penal Code § 1.07(a)(17)(B); (2) the deadly weapon was used or exhibited “during the transaction from which” the felony conviction was obtained, Ex parte Jones, 957 S.W.2d 849, 851 (Tex.Crim.App.1997); and (3) that other people were put in actual danger. Cates, 102 S.W.3d at 738.

Objects that are not usually considered dangerous weapons may become so, depending on the manner in which they are used during the commission of an offense. Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App.1991). A motor vehicle may become a deadly weapon if the manner of its use is capable of causing death or serious bodily injury. Ex parte McKithan, 838 S.W.2d 560, 561 (Tex.Crim.App.1992). Specific intent to use a motor vehicle as a deadly weapon is not required. McCain v. State, 22 S.W.3d 497, 503 (Tex.Crim.App.2000); Walker v. State, 897 S.W.2d 812, 814 (Tex.Crim.App.1995).

Appellant’s manner of using of 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. We find that the evidence in this case, viewed in a light most favorable to the prosecution, supports a conclusion that a rational trier of fact could have found the legal elements of evading detention and using a vehicle as a deadly weapon beyond a reasonable doubt.

Factual Sufficiency

Reading Williams, Davis, and Mann together, the court of appeals concluded that appellant’s actions constituted reckless driving, but that the record lacked sufficiently specific evidence to justify a deadly weapon finding because the pursuing officers and other motorists were not in actual danger. In support of this conclusion, the court of appeals found that appellant had not put other motorists into a zone of danger because Lieutenant Mowery had testified that only “some” traffic was present on the road during the chase and that appellant neither attempted to strike motorists with his vehicle nor forced motorists to take evasive action. Drichas, 152 S.W.3d at 638.

In a factual-sufficiency analysis, the evidence is viewed in a neutral light. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996). While the court of appeals may disagree with the jury’s conclusions, it must also exercise appropriate deference in order to avoid substituting its judgment for that of the jury, particularly in matters of credibility. Clewis, 922 S.W.2d at 133. There are two ways in which a court may find the evidence to be factually insufficient: the evidence supporting the finding, considered alone, is too weak to support the jury’s finding beyond a reasonable doubt; or the contravening evidence is so strong that the state could not have met its burden of proof. Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App.2004). Reversal of the judgment and remand for a new trial is the proper remedy when a court of appeals finds that evidence is factually insufficient. Id. at 482.

Generally, courts should interpret a statute in light of its plain language. Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). While the court of appeals is correct in noting that the danger posed to motorists must be actual, and not simply hypothetical, the statute itself does not require pursuing police officers or other motorists to be in a zone of danger, take evasive action, or require appellant to intentionally strike another vehicle to justify a deadly weapon finding. The volume of traffic on the road is relevant only if no traffic exists. Williams, 946 S.W.2d at 435-36. The plain language of the statute indicates that a deadly weapon finding will be sustained if the definition of a deadly weapon is met. Capability is evaluated based on the circumstances that existed at the time of the offense. Williams, 946 S.W.2d at 435. The statute specifically pertains to motor vehicles, so a deadly weapon finding is appropriate on a sufficient showing of actual danger, such as evidence that another motorist was on the highway at the same time and place as the defendant when the defendant drove in a dangerous manner. Mann, 13 S.W.3d at 92. We do not suggest that a defendant should be charged with using a vehicle as a deadly weapon every time the offense of evading arrest or detention is committed. The determination to seek a deadly weapon finding in those circumstances is a fact-specific inquiry, and the facts will not always support such a finding.

In reviewing factual sufficiency of the evidence, we are limited to determining whether the court of appeals used the correct standard of review. Zuniga, 144 S.W.3d at 482. Although the court of appeals correctly cited the standard of review for examining factual sufficiency, the court failed to indicate which grounds, according to Zuniga, necessitate a finding of factual insufficiency. The court simply cited to portions of the trial record and stated that the evidence was factually insufficient to support a deadly weapon finding because the state failed to show actual danger. However, the court misconstrued the actual danger requirement by equating a deadly weapon’s capability of causing death or serious bodily injury with its probability of doing, thus reading into the statute an additional requirement of evasive action or zone of danger.

We reverse the judgment of the court of appeals concerning the legal sufficiency of the evidence and remand the cause to the court of appeals for a factual-sufficiency analysis consistent with this opinion.

KELLER, P.J., and WOMACK, J., concurred in the result.

PRICE, J., dissented.

MEYERS, J., filed a dissenting opinion.

MEYERS, J.,

dissenting.

Because I agree with the opinion of the court of appeals, I respectfully dissent.

      . 946 S.W.2d 432 (Tex.App.-Fort Worth 1997), rev’d in part on other grounds, 970 S.W.2d 566 (Tex.Crim.App.1998).

      . 964 S.W.2d 352 (Tex.App.-Fort Worth 1998).

      . 13 S.W.3d 89 (Tex.App.-Austin 2000), aff'd, 58 S.W.3d 132 (Tex.Crim.App.2001).

      .“Whether in finding the evidence legally and factually insufficient to support the jury’s finding that Drichas used his truck as a deadly weapon, the court of appeals misapplied and misconstrued the standard for reviewing claims of evidentiary insufficiency relating to a deadly weapon finding and, in so doing, essentially altered the definition of a deadly weapon.”

      . The record does not reflect whether the mobile home was occupied at the time of the impact.

      . Lieutenant Moweiy testified that he observed appellant driving the wrong way on the highway during the chase, and although he admitted that he never saw any motorists swerve to avoid hitting appellant's truck, he stated that "we were meeting some traffic somewhere around that point there.”