
    David DRICHAS, Appellant, v. The STATE of Texas, Appellee.
    No. 06-04-00002-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted Jan. 25, 2006.
    Decided Jan. 27, 2006.
    
      Troy A. Hornsby, Miller James Miller and Hornsby LLP, Texarkana, for appellant.
    Nicole Habersang, Asst. Dist. Atty., Texarkana, for appellee.
    Before MORRISS, C.J., ROSS and CARTER, JJ.
   OPINION

Opinion by

Justice ROSS.

David Drichas was convictéd by a jury for evading detention with a motor vehicle. See Tex. Pen.Code Ann. § 38.04(a), (b)(1) (Vernon 2003). The jury also found that, during the commission of the offense, Dri-chas used his vehicle as a deadly weapon. See Tex. Pen.Code Ann. § 12.35(c)(1) (Vernon 2003). Drichas pled true to allegations in the indictment under the habitual felony offenders statute, and the jury assessed his punishment at ninety-nine years’ imprisonment. See Tex. Pen.Code Ann. § 12.42(d) (Vernon Supp.2005). The trial court sentenced Drichas in accordance with the jury’s verdict. Drichas appealed, contending, among other things, that the evidence supporting the jury’s affirmative deadly weapon finding was legally and factually insufficient.

In our original opinion, Drichas v. State, 152 S.W.3d 630 (Tex.App.-Texarkana 2004), rev’d, 175 S.W.3d 795 (Tex.Crim.App.2005), we conducted the requisite review of all the evidence, with specific reference to and application of that evidence required by a sufficiency review. After detailing the evidence and applying the sufficiency review, we concluded the evidence presented by the State was both legally and factually insufficient to support the deadly weapon finding. Accordingly, we deleted the finding, and because the ninety-nine-year sentence imposed was well above the twenty-year maximum for the offense without the finding, we remanded for a new trial on punishment only.

The Texas Court of Criminal Appeals concluded there was some evidence that the vehicle was a deadly weapon. The court reversed that portion of our opinion and remanded to this Court “for a factual-sufficiency analysis consistent with [its] opinion.”

In its own analysis, the Court held that:

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.

Drichas, 175 S.W.3d at 799 (footnote added).

Thus, the court stated that, although the danger to some other motorist must be actual (not just hypothetical), some unspecified degree of proximity is necessary to show that actual danger existed, even though no person was actually endangered. See id. As more clearly indicated in its opinion, the court was not suggesting that the mere existence of some other motorist somewhere on the roadway is sufficient to provide the necessary showing that the defendant’s use of the vehicle placed that person in actual danger. See id. To so construe the court’s opinion would eviscerate the requirement that an actual, rather than hypothetical, person be endangered by the way in which the vehicle was used.

We have reviewed the record, as specifically directed, for “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.” Id. Although there is no concrete evidence to that effect, there are two statements from Texarkana, Arkansas, police officer Lieutenant Dwight Mowery that touch on this issue. The following exchange contains these two statements and the context in which the statements were made:

Q. Was there a lot of traffic out?
A. No, there wasn’t a lot. There was some.
Q. Now, during the course of this route that you took, did you at any time see the truck attempt to run over anybody?
A. No.
Q. Did you see anybody having to swerve to get out of the way or move rapidly to get out of the way of this truck?
A. Other than me there at the store. No, I didn’t see anything, other than me, having to avoid an accident.
Q. Did you see the driver in any way point the truck towards someone or some vehicle in an attempt to run them down or harm them in any way?
A. No. I did observe the defendant driving the wrong way on the highway, though.
Q. I understand, but my question was he didn’t point his vehicle at any person or any other vehicle in an attempt to run them down.
A. Well, it was certainly pointed in the wrong direction at that point. I’m not certain of this, but we were meeting some traffic somewhere around that point there.
Q. You never saw anybody have to swerve to get out of his way?
A. No.

(Emphasis and footnote added.)

When reviewing a challenge to the factual sufficiency of the evidence to support the jury’s finding, the court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in its finding beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004).

The Texas Court of Criminal Appeals has opined that there are two ways in which we may find the evidence to be factually insufficient. First, if the evidence supporting the finding, considered alone, is too weak to support the jury’s finding beyond a reasonable doubt, then we must find the evidence insufficient. Id. Second, if — when we weigh the evidence supporting and contravening the finding— we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. at 485.

First, considering only the evidence supporting the affirmative deadly weapon finding, we conclude the evidence is factually insufficient. As Mowery clearly concedes in the second italicized statement, he is uncertain even about the presence of other motorists. Second, from his statements, one cannot determine where or when the “traffic” was encountered, or even if it was on the same roadway or on a nearby road. Thus, one can neither ascertain directly, or by inference, proximity of the “traffic,” either in time or space to Drichas’ vehicle.

The Texas Court of Criminal Appeals’ opinion directs us to examine the record for evidence that there were other motorists present at the “same time and place” as the reckless driving occurred. With the exception of the pursuing officers, we simply do not have that in this record. While it is likely that, somewhere in Texarkana, there were other motorists on the roadways in those early morning hours, the record before us does not demonstrate in a factually sufficient manner that Drichas and the pursuing officers ever encountered motorists in such a way as to place another in actual danger. The evidence that there may have been some unknown quantity of traffic at some unknown point, at some unknown time, during the pursuit is too weak to support the jury’s finding beyond a reasonable doubt. See id. at 484. The evidence is too weak to directly support the verdict, and the evidence as a whole is so bound by internal qualifications that no reasonable juror could infer that Drichas ever encountered any other motorist in such a way as to place that motorist in actual danger because of the way Drichas was operating his vehicle. We must therefore conclude that evidence, considered alone, is too weak to support the jury’s finding beyond a reasonable doubt. See id.

Examining the record to review the second way in which the evidence may be factually insufficient, we look to the testimony of Texarkana, Texas, police officer Jason Woolridge, who took over the primary pursuit when Drichas entered Texas. In the following excerpt, he describes what he saw when first encountering Drichas and Mowery as they drove into Texas:

Q.... When you — The place that you were at, were you blocking the intersection in any way?
A. No, ma’am.
Q. You were actually kind of like off the side of the road?
A. I was in the far southbound lane.
Q. There — And I believe you said that the only vehicle that you saw besides the truck was Lieutenant Mow-ery’s?
A. Yes, ma’am.

Woolridge also explains that he did not see any other vehicles until the other police units caught up with him at the point when Drichas turned his vehicle around, several miles after Woolridge took over and near the end of the pursuit:

Q. And you did not see any other cars whatsoever until you got pretty close up to the turnaround there at the Sulphur River bridge?
A. Yes, ma’am. [Apparently affirming that he saw no other cars.]
Q. So it was just the two of you.
A. That I could see.

(Footnote added.)

When measuring Mowery’s general, uncertain statements, that there may have been some traffic at some point, against the evidence to the contrary, we conclude that the contrary evidence is strong enough that, on this record, the State could not have met its burden of proof. See Zuniga, 144 S.W.3d at 485. Woolridge clearly states that he saw no other vehicles at the time he took over the chase into Texas and that he saw no other vehicles until the other units caught up with him near the end of the pursuit.

In light of the higher court’s opinion, we note that we do not base this conclusion on the quantity of traffic that may or may not have been encountered. Nor do we measure the probability that another motorist who was present was endangered by Dri-chas. Rather, we measure solely the sufficiency of the evidence that there was another motorist present on the roadway “at the same place and time” as Drichas when he drove in a reckless manner.

Again, the two statements by Mowery regarding the possibility that Drichas and the pursuing officer may have encountered “some traffic” at some point is factually insufficient when measured by the appropriate factual sufficiency standards to allow a jury to conclude beyond a reasonable doubt that the vehicle, as used by Drichas, was a deadly weapon. Further, when viewed in a neutral light and weighed against contrary evidence found in Wool-ridge’s testimony, the State could not have met its burden of proof. The evidence supporting the deadly weapon is factually insufficient.

As pointed out by the Texas Court of Criminal Appeals, 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. Drichas, 175 S.W.3d at 799; Zuniga, 144 S.W.3d at 482.

Accordingly, we reverse the deadly weapon finding, based on the factual insufficiency of the evidence, and remand for a new trial on that issue. 
      
      . Drichas v. State, 175 S.W.3d 795, 800 (Tex.Crim.App.2005). As acknowledged, in reviewing factual sufficiency of the evidence, the Texas Court of Criminal Appeals is limited to determining whether the court of appeals used the correct standard of review. Id. at 799; Zuniga v. State, 144 S.W.3d 477, 482 (Tex.Crim.App.2004).
     
      
      . Williams is both analogous to and distinguishable from the instant case. See Williams v. State, 946 S.W.2d 432 (Tex.App.-Fort Worth 1997), pet. dism'd, 970 S.W.2d 566 (Tex.Crim.App.1998). The Williams court was presented with the issue of jury charge error and, therefore, was called on to review the record to determine whether the deadly weapon issue was raised at all by the evidence. Id. Pointing out that the record demonstrated there was no traffic on the roadway as Williams drove under the influence of alcohol, the Williams court concluded the record did not support the submission of the deadly weapon issue to the jury. Id. at 435-36. Here, we are looking for the same kind of evidence for which the Williams court examined the record, but for a different purpose. We are faced with an issue of sufficiency of the evidence to support the jury’s affirmative finding that Drichas used a deadly weapon while evading arrest or detention. Our conclusion, therefore, has a different impact in that the record may have raised the issue sufficiently to warrant submission of the issue to the jury and still fail to contain factually sufficient evidence to support the jury’s affirmative finding.
     
      
      . We will, necessarily, set out those facts in detail so that we may then apply the standard to those facts.
     
      
      . As noted in our original opinion, this incident occurred before the commission of the alleged offense and therefore fails to qualify as use of a deadly weapon during the commission of the offense charged.
     
      
      . We recognize the evidence did show there were police officers in pursuit of Drichas’ vehicle, and we reiterate our view, expressed in a footnote in our original opinion, that police officers should not be excluded from the class of persons capable of being endangered by the driver of a fleeing vehicle. However, being mindful of the requirement that an actual, rather than hypothetical, person be endangered, we do not believe evidence of pursuing police officers, without more, establishes such endangerment. Otherwise, a fleeing motorist could be charged with using a vehicle as a deadly weapon virtually every time the offense of evading arrest or detention is committed, and this would be contrary to clear and unequivocal language by the Texas Court of Criminal Appeals in Drichas. 175 S.W.3d at 799.
     
      
      . Mowery explained that the other Texas officers caught up to Woolridge at approximately the point at which Drichas turned around on Highway 59.
     
      
      . We note that Woolridge took over the primary position in pursuit of Drichas and that Mowery, as an Arkansas police officer, fell in behind the Texas officer when the Texas officer took over the pursuit. Mowery explains that he was still able to see Drichas' truck throughout the pursuit until the point that Drichas drove into the mobile home park. The record does not indicate otherwise how far back Mowery was from the primary position. So, his position behind the Texas officer may or may not have affected his ability to determine whether they encountered any traffic.
     
      
      . Our remand is specifically limited to trial of the issue of the use of a deadly weapon. This automatically necessitates a new punishment trial where the range will depend on the finding made at the retrial of the deadly weapon issue.
     