Gilbert v. State

• Decision Date: 11 May 2023
• Docket Number: 08-22-00188-CR
• Parties: REGINALD C. GILBERT, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

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REGINALD C. GILBERT, Appellant, v. THE STATE OF TEXAS, Appellee.

No. 08-22-00188-CR

Court of Appeals of Texas, Eighth District, El Paso

May 11, 2023

Do Not Publish

Appeal from the 142nd Judicial District Court of Midland County Texas(TC# CR57536)

Before Rodriguez, C.J., Palafox, and Soto, JJ.

MEMORANDUM OPINION^[1]

GINA M. PALAFOX, Justice

A jury convicted AppellantReginald C. Gilbert of evading arrest or detention in a motor vehicle, enhanced for a prior conviction, and assessed punishment at twelve years' confinement, which the trial court imposed.SeeTex Penal Code Ann. § 38.04(a)(b)(2)(A).The enhancement paragraph included a conviction for the felony offense of burglary of a habitation, to which Gilbert entered a plea of "true."On appeal, Gilbert asserts issues challenging the establishment of proper venue, complaining of improper jury argument, and contending the evidence was legally insufficient to support his conviction.We affirm.

I.BACKGROUND

On February 24, 2022, an indictment issued alleging that on December 27, 2021, Gilbert intentionally fled from Alexander Duwel knowing that he was a peace officer who was attempting to lawfully arrest or detain him by use of a motor vehicle.A jury trial was held in August 2022.

The State's presentation of evidence began with testimony from Alexander Duwel, a certified peace officer of the state.In December 2021, Duwel worked as a detective with the Midland Police Department assigned to the property division task force covering crimes related to thefts and burglaries.Specifically, he was investigating a string of burglaries reported in the city of Midland.Based on his investigation, Detective Duwel had identified four persons as suspects of the burglaries.The suspects included Gilbert, and his wife, Hope, along with Perry Futrell and Ashley Barrett.

On Monday, December 27, 2021, at around 10:00 a.m., Duwel conducted surveillance on a storage unit located at a facility in the 2900 block of West Kentucky Street.Specifically, he was observing storage unit 175 to corroborate information he had received identifying that unit as being used to store stolen items from the string of burglaries.On duty that day, Detective Duwel was driving an unmarked vehicle, a maroon Ford Taurus Interceptor.Though unmarked, the vehicle was outfitted with red and blue emergency lights and a siren.Duwel wore a black polo shirt, tan tactical pants, and a body armor vest displaying "Police" on its front and back.

While conducting surveillance, Detective Duwel observed a Ford F-150 pickup truck drive into the parking lot of the storage facility, then park directly in front of unit 175.Duwel approached the truck in his own vehicle intending to confirm the identification of the occupants of the truck.Before he made contact, the Ford F-150 drove away.Duwel testified the truck drove southbound and made a left into an alley that ran behind the storage complex.Duwel followed, driving on a street running parallel until he was able to move behind the pickup truck.Duwel described that he activated his emergency lights and sirens soon after he drove behind the truck.

Duwel testified that when he activated the emergency lights and sirens, the vehicle did not pull over; rather, the driver continued "at a high rate of speed, meaning it was just higher than the posted speed limit."He acknowledged, however, that he did not know the exact speed.The truck turned once more and then came to a stop at an intersection.Once at rest, the pickup truck driver exited and began fleeing on foot.Duwel testified he immediately recognized Gilbert as the truck's fleeing driver.Duwel did not chase after him because there were two other occupants inside the truck.From an officer safety standpoint, he explained he chose to stay with the truck.The other two occupants were identified as Shane Gilbert and Hope Gilbert, who Duwel believed were Gilbert's brother and wife, respectively.

Duwel was not equipped with a body camera or in-car camera at the time of the incident.When Duwel called for backup, four officers arrived at his location and other officers also searched the area looking for Gilbert.He was not located that day.Duwel testified that Shane and Hope would not identify the driver, and neither were initially cooperative.Later, however, Duwel recalled hearing from Hope the name of "Brian" while they all remained on scene.He testified he never pressed for Brian's last name and did not otherwise follow up on the lead because "[he] knew it was [Gilbert]."Duwel applied for a warrant for the arrest of Gilbert.

The State also presented the testimony of Hunter Terral, the owner of the Ford F-150 that had been pulled over by Duwel.Terral testified he loaned his vehicle to Gilbert three times including at about 9:00 a.m. on the morning of December 27, 2021.Gilbert told Terral he only needed his vehicle for about 45 minutes.Gilbert had agreed he would pay him $150.Terral described that his vehicle was not returned as promised and neither Gilbert nor Hope answered when he tried calling them.Eventually, he received a call from a sheriff's deputy informing him that his vehicle had been towed.

The defense called Hope Gilbert as a sole witness in its case in chief.Hope testified she had been married to Gilbert for eleven years.She testified that after the driver stopped the vehicle and fled on foot, she told the detectives that Gilbert was not the driver of the vehicle.Instead, it was a man named Brian.Hope also testified that Terral loaned the truck to her, and that Gilbert was never able to use the vehicle.

On cross-examination, Hope acknowledged she pleaded no contest to a charge of hindering apprehension.Previously, Hope had also pleaded no contest to a past burglary of a habitation charge.Hope also confirmed that Gilbert called her from prison on August 12, 2022, telling her not to use names in the phone conversation and to write down exactly what he was going to tell her.Gilbert then told Hope exactly what she needed to testify to at trial.Hope testified she did not write anything down because he only told her information that was truthful.

After the close of evidence, the jury returned a verdict finding Gilbert guilty of the offense of evading arrest or detention while operating a motor vehicle.During the punishment phase, Gilbert entered a plea of true to the enhancement paragraph of the indictment, which alleged Gilbert had been convicted in 2011 of the felony offense of burglary of a habitation.The jury then returned a verdict assessing a punishment of 12 years' imprisonment and no fine.The trial court imposed the sentence assessed by the jury.

This appeal followed.

II.ISSUES ON APPEAL

Gilbert presents three issues on appeal.First, he asserts the State failed to prove sufficient facts to establish venue in Midland County, Texas.Second, he contends the trial court abused its discretion in overruling his objections to the State's improper jury argument and denying his motion for mistrial.Lastly, he urges the evidence was insufficient to sustain his conviction for evading arrest with a motor vehicle.Because Gilbert's sufficiency challenge would afford him the greatest relief, if sustained, we begin with the third issue.

III.LEGAL SUFFICIENCY OF THE EVIDENCE

Gilbert contends the evidence was legally insufficient to support his conviction for evading arrest and detention with a motor vehicle.Specifically, Gilbert asserts the State failed to establish he was the driver of the vehicle in question, and that he knew a law enforcement officer was attempting to lawfully detain him.

A.Standard of review and applicable law

In assessing the sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.SeeJackson v. Virginia, 443 U.S. 307, 319(1979);Brooks v. State, 323 S.W.3d 893, 912(Tex. Crim. App.2010).This standard gives full play to the responsibility of the trier of fact to resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.Hooper v. State, 214 S.W.3d 9, 15(Tex. Crim. App.2007).

Because the trier of fact is the sole judge of the weight of the evidence and credibility of the witnesses, we may not reevaluate the weight and credibility determination made by the fact finder.TEX. CODE CRIM. PROC. ANN. art. 38.04;Margraves v. State, 34 S.W.3d 912, 919(Tex. Crim. App.2000);Dewberry v. State, 4 S.W.3d 735, 740(Tex. Crim. App.1999).We must resolve any inconsistencies in the evidence in favor of the verdict.Curry v. State, 30 S.W.3d 394, 406(Tex. Crim. App.2000).

The elements of evading arrest of detention while using a motor vehicle are (1) intentionally fleeing (2) from a person whom the defendant knows is a peace officer (3) trying to lawfully arrest or detain him, and (4) using a motor vehicle while in flight.SeeTex. Penal Code Ann. § 38.04(a).The accused must know the person from whom he is fleeing is a peace officer attempting to arrest or detain him.SeeJackson v. State, 718 S.W.2d 724, 726(Tex. Crim. App.1986).Unlawful fleeing is "anything less than prompt compliance with an officer's direction to stop[.]"Lopez v. State, 415 S.W.3d 495, 497(Tex. App.-San Antonio 2013, no pet.)(quotingHorne v. State, 228 S.W.3d 442, 446(Tex. App.-Texarkana 2007, no pet.)).Proof that an officer is attempting to arrest or detain can be shown by the officer displaying authority through use of a verbal...