Virgil Bryant III v. the State of Texas

IN THE
TENTH COURT OF APPEALS

No. 10-23-00416-CR

VIRGIL BRYANT III,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 443rd District Court
Ellis County, Texas
Trial Court No. 48897CR

MEMORANDUM OPINION

A jury convicted Virgil Bryant III of the felony offense of driving while intoxicated

– third offense or more and found that Bryant’s vehicle was used as a deadly weapon in

commission of the offense. See TEX. PENAL CODE ANN. §§ 1.07(a)(17)(B), 49.04, 49.09(b).

Bryant pled true to four felony enhancement paragraphs, and punishment was assessed

at ninety-nine years in the Texas Department of Criminal Justice – Institutional Division.
In his sole issue on appeal, Bryant contends that the evidence is insufficient to support

the jury’s deadly weapon finding. We affirm.

STANDARD OF REVIEW

The Court of Criminal Appeals has expressed our standard of review of sufficiency

issues as follows:

When addressing a challenge to the sufficiency of the evidence, we
consider whether, after viewing all of the evidence in the light most
favorable to the verdict, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State,
514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the
appellate court to defer “to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at
319. We may not re-weigh the evidence or substitute our judgment for that
of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007). The court conducting a sufficiency review must not engage in a
“divide and conquer” strategy but must consider the cumulative force of all
the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate
about the meaning of facts or evidence, juries are permitted to draw any
reasonable inferences from the facts so long as each inference is supported
by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex.
Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214
S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder
resolved any conflicting inferences from the evidence in favor of the verdict,
and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
Crim. App. 2012). This is because the jurors are the exclusive judges of the
facts, the credibility of the witnesses, and the weight to be given to the
testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
Direct evidence and circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a conviction so
long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
(Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

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We measure whether the evidence presented at trial was sufficient to
support a conviction by comparing it to “the elements of the offense as
defined by the hypothetically correct jury charge for the case.” Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically correct
jury charge is one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried.” Id.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The “law
as authorized by the indictment” includes the statutory elements of the
offense and those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

ANALYSIS

To hold evidence legally sufficient to sustain a deadly weapon finding, the

evidence must demonstrate that: (1) the object meets the definition of a deadly weapon;

(2) the deadly weapon was used or exhibited during the transaction on which the felony

conviction was based; and (3) that other people were put in actual danger. Brister v.

State, 449 S.W.3d 490, 494 (Tex. Crim. App. 2014). 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 ANN. § 1.07(a)(17)(B). A motor vehicle can be a deadly weapon

if it is used in a manner capable of causing death or serious bodily injury to others. See

Cates v. State, 102 S.W.3d 735, 738 (Tex. Crim. App. 2003). “Others” means individuals

other than the actor himself. Brister, 449 S.W.3d at 494. To determine whether a motor

vehicle is a deadly weapon, we evaluate the manner in which the defendant used the

vehicle during the felony and consider whether, during the felony, the vehicle was
Bryant v. State Page 3
capable of causing death or serious bodily injury. Sierra v. State, 280 S.W.3d 250, 255 (Tex.

Crim. App. 2009). In reviewing the manner in which Bryant used the vehicle during the

felony, we examine whether his driving was reckless or dangerous in light of several

factors, including: (1) intoxication, (2) speeding, (3) disregarding traffic signs and signals;

and (4) driving erratically. See id.; Tyra v. State, 897 S.W.2d 796, 798-99 (Tex. Crim. App.

1995); Drichas v. State, 175 S.W.3d 795, 797 (Tex. Crim. App. 2005); Mann v. State, 13 S.W.3d

89, 91-92 (Tex. App.—Austin 2000), aff’d, 58 S.W.3d 132 (Tex. Crim. App. 2001).

Bryant relies on Brister to support his insufficiency argument. See Brister, 449

S.W.3d at 491-95. We are not persuaded by Bryant’s factual comparison between Brister

and the instant case. In Brister, the extent of the evidence supporting the deadly-weapon

finding was that the appellant briefly crossed into the oncoming lane of traffic on one

occasion when very few, if any, cars were in that lane. Id. at 491-92. The Court of Criminal

Appeals found that there was no reasonable inference that the appellant used his motor

vehicle as a deadly weapon where there was no evidence that the appellant caused

another vehicle or person to be in actual danger. Id. at 495. In contrast, the record in this

case supports a finding that Bryant used his vehicle in a manner that caused actual danger

to others and was capable of causing serious bodily injury or death. Here, a concerned

citizen called 9-1-1 after observing the driver of a white pickup truck – later identified as

Bryant – driving erratically on the highway for approximately two miles. A recording of

the 9-1-1 call was admitted into evidence without objection and published to the jury. As

Bryant v. State Page 4
the caller followed the white truck, he advised dispatch that he witnessed the vehicle

nearly drive off the road twice, nearly hit a guardrail, and fail to maintain a single lane of

traffic. When dispatch asked the caller to provide the license plate number for the suspect

vehicle, the caller initially indicated that he was too scared to get close enough to read it.

The caller also described how the driver of the white truck ran two vehicles off the road

and nearly sideswiped another vehicle, narrowly avoiding three separate wrecks.

Further, the record reveals that Bryant’s blood alcohol content was approximately three

times the legal limit.

Accordingly, viewing the evidence under the appropriate standards and

applicable law, we find that the record supports a conclusion that a rational trier of fact

could have found beyond a reasonable doubt that Bryant used the vehicle as a deadly

weapon. We overrule Bryant’s sole issue on appeal.

Conclusion

Having overruled Bryant’s sole issue on appeal, we affirm the judgment of the trial

court.

STEVE SMITH
Justice

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Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
Opinion delivered and filed January 30, 2025
Do not publish
[CRPM]

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