Court Of Appeals v. The State Of Tex.
| Decision Date | 15 July 2010 |
| Docket Number | NUMBER 13-09-00334-cv |
| Parties | COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG LARRY ADAMS,Appellant, v. THE STATE OF TEXAS,Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 94th District Court of Nueces County, Texas.
Before Justices Rodriguez, Benavides, and Vela
A jury found appellant Larry Adams guilty of the felony offense of evading arrest or detention using a vehicle and sentenced him to forty years' imprisonment after evidence of his prior felonies was presented. See Tex. Penal Code Ann. § 38.04(a), (b)(2)(A) (Vernon Supp. 2009); see also id. § 12.42(d)(4) (Vernon Supp. 2009) (). The trial court heard and denied appellant'smotion for new trial, which asserted ineffective assistance of counsel. By twelve issues, appellant contends the following: (1) the evidence was factually insufficient to support his conviction; (2-3) counsel was ineffective; (4) the trial court made improper comments on the weight of the evidence; (5) appellant's sentence was disproportionate to the offense; (6) the trial court erred in failing to submit a lesser-included offense to the jury; (7) the trial court improperly instructed the jury on the range of punishment; (8) appellant was denied the opportunity to testify during the guilt/innocence phase of trial; (9) the jury panel should not have been informed of a prior conviction for evading arrest; (10) the trial court made improper comments to the jury panel regarding the range of punishment and his prior felony convictions; (11) the trial court erred in conducting a hearing outside the presence of the jury without appellant present; and (12) the prosecutor made an improper jury argument. We modify the judgment and affirm as modified.
By his first issue, appellant contends that the evidence is factually insufficient to support his conviction for evading detention with a vehicle. Specifically, appellant complains that the evidence does not establish that (1) he used his vehicle to intentionally flee from the officer, and (2) the officer was attempting lawfully to detain appellant at the time he fled.
At the guilt/innocence phase of trial, Police Officer Stephen Cox testified that on January 7, 2009, he was on patrol, driving a fully-marked patrol car and wearing hisuniform. At 5:24 a.m. that morning, he was dispatched to the Golla neighborhood, a highcrime area in the refinery district. It was still dark when he responded to a report of "a suspicious vehicle in the alleyway behind the 1200 block of Golla"; "a dark-colored small pickup truck in the alleyway, which did not belong there." Officer Cox later explained that there were two calls about this particular incident. One of the calls reported two people rummaging through back yards in the area.
Officer Cox testified that the alleyway was an unpaved utility easement separating residences from commercial property, an easement not meant to be driven upon by the residents. Officer Cox further explained that the easements were well-known for providing burglars and thieves easy access into backyards and that he was "not accustom[ed] to seeing vehicles going in and out of those easements for any legitimate purposes, especially not that time of day."
Officer Cox approached an open field which provided the only access point to the easement, and he observed appellant's small, red pickup truck backing out of the utility easement and into the open field. Officer Cox drove over the curb and into the field, turning on his overhead lights, his take-down lights, and his spotlight to determine what appellant was doing in the area. Officer Cox agreed that it was clear he was trying to detain appellant.
After Officer Cox turned on his lights and was about thirty yards from appellant, he saw appellant turn his head to the side and look directly at him. Appellant immediately put the truck into drive and accelerated into the easement, driving past three lots until he was stopped by an area of thick brush too thick to pass. Appellant then got out of the vehicleand fled on foot. Officer Cox shouted, "Police," and yelled for appellant to stop. A short time later, backup officers caught appellant and returned him to Golla Street.
Officer Cox testified that he did not see appellant commit any crimes and did not have a warrant for his arrest. Appellant was not under arrest or detention when Officer Cox attempted to approach him. There was no proof that appellant was trespassing on personal property or committing any crime by his presence in the alleyway. Officer Cox also agreed with the State that he was attempting lawfully to detain appellant.
On cross-examination, Officer Cox responded that a bike was found in the easement "a couple of houses further down" from where the truck stopped. At that time, Officer Cox could not determine whether the bike was stolen. No one claimed ownership of the bike, and Officer Cox agreed that no one reported a home being broken into or that any thefts occurred at that particular time. There was nothing else that "jumped out" at Officer Cox that he suspected to be stolen. Officer Cox stated that he was attempting to detain appellant to question him when he approached appellant; that he "had more than enough reasonable suspicion to stop and detain [appellant] and ascertain what he was doing in the area."
Martin D. Sanchez, who resided on Golla Street, testified that around 4:00 a.m. on the morning in question, he saw a vehicle parked under a tree in the alleyway behind his neighbor's house. He called 911 to report the presence of a "suspicious vehicle." Later, Sanchez saw appellant walk up to the truck. Sanchez further testified that when appellant got into his truck, a police car approached "real quick" from around the corner. The patrol car's lights were on. Appellant went "forward in that direction through the alleyway,... but he finally stopped." When appellant stopped the vehicle, he opened the door and fled, andthe officer yelled for him to stop and "hold it." Appellant jumped over Sanchez's fence. He ran between the garages and out on to the street in front of the residences.
Sanchez explained that he did not see appellant reverse the truck or back out of the alleyway; however, when the officer came up from behind with his "cherry lights" on, he saw appellant move his vehicle forward or to the right side of the alleyway for approximately twenty-five feet. Sanchez agreed that Officer Cox turned on his lights before appellant began to move forward.
The court of criminal appeals has set forth the standard for factual sufficiency review as follows:
In a factual sufficiency review, the evidence is reviewed in a neutral light rather than in the light most favorable to the verdict. Evidence can be factually insufficient in one of two ways: (1) when the evidence supporting the verdict is so weak that the verdict seems clearly wrong and manifestly unjust, and (2) when the supporting evidence is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Although an appellate court's factual sufficiency review of the evidence allows the court to second-guess the jury to a limited degree, the review should still be deferential to the jury's verdict.
Williams v. State, 301 S.W.3d 675, 684-85 (Tex. Crim. App. 2009) (citations omitted), cert denied, 2010 U.S. LEXIS 4837, 78 U.S.L.W. 3729 (U.S. June 14, 2010) (No. 09-9635). Our review of a factual sufficiency challenge should be examined under the principles of review for a hypothetically correct jury charge. Grotti v. State, 273 S.W.3d 273, 280-81 (Tex. Crim. App. 2008). "'Such a 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.'" Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).
The offense of evading arrest or detention, a Class A misdemeanor, is committed when the defendant "intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him." Tex. Penal Code Ann. § 38.04(a). "'[F]leeing is anything less than prompt compliance with an officer's direction to stop." Horne v. State, 228 S.W.3d 442, 446 (Tex. App.-Texarkana 2007, no pet.). The offense of evading arrest or detention is raised to a third-degree felony if "the actor uses a vehicle while the actor is in flight and the actor has been previously convicted [of evading arrest or detention]."2 Tex. Penal Code Ann. § 38.04(b)(2)(A). The indictment in the present case tracked the language of the third-degree felony evading-detention-with-a-vehicle statute and the habitual, felony-offender statute. See id. §§ 12.42(d)(4), 38.04(a), (b)(2)(A).
Appellant first contends that the evidence is factually insufficient to establish that appellant knew of the officer's intentions to detain him while he was still in his truck. Appellant claims that he only jumped out of his vehicle and fled after he saw the officer approaching him in the alley.
Officer Cox, however, testified that, when he turned on his red and blue overhead lights and his spotlight, he was only thirty yards from appellant and that appellant turned and looked directly at him. It was then that appellant put his truck in gear and acceleratedaway from Officer Cox. Sanchez's testimony differed concerning the location of appellant's truck and whether appellant was backing his truck when Officer Cox first observed him. However, both Officer Cox and Sanchez...
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