Horne v. State

• Decision Date: 19 June 2007
• Docket Number: No. 06-06-00201-CR.,06-06-00201-CR.
• Citation: 228 S.W.3d 442
• Parties: Brandon HORNE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

228 S.W.3d 442

Brandon HORNE, Appellant, v.The STATE of Texas, Appellee.

No. 06-06-00201-CR.

Court of Appeals of Texas, Texarkana.

Submitted June 6, 2007.

Decided June 19, 2007.

David J. Ingram, Longview, for appellant.

W. Ty Wilson, Asst. Dist. Atty., Longview, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

After clocking Brandon Horne driving forty-five miles per hour in a thirty-five-mile-per-hour zone, State Trooper Kendall Belt turned on his vehicle's overhead lights and pursued Horne's vehicle, but Horne did not stop.Nor did Horne stop when Belt activated the siren.Instead, Horne stuck his arm out his window and motioned for Belt to follow him.Even after Belt pulled up beside Horne's vehicle and used his vehicle's public address system to direct Horne to pull over, Horne shook his head and kept driving.Finally, Belt pulled his vehicle in front of Horne's vehicle and blocked its path.In response, Horne drove onto the curb to circumvent Belt's car.Horne stopped only after later reaching his own mother's house.Horne had not stopped because he knew he had city warrants outstanding against him; he wanted to get his vehicle to his mother's house for safekeeping so it would not get towed to an impound lot.

A Gregg County jury convicted Horne of evading detention in a motor vehicle and assessed his punishment at fifteen months' confinement in a state-jail facility.SeeTEX. PENAL CODE ANN. § 38.04(Vernon 2003).Horne appeals.

We affirm the judgment of the trial court because we hold that (1) legally sufficient evidence supports the verdict, (2)the trial court properly refused to submit an alleged lesser included offense, and (3)the trial court was within its discretion in overruling the mistrial motion.

(1) Legally Sufficient Evidence Supports the Verdict

Horne asserts that the trial court should have instructed a "not guilty" verdict.A point of error complaining about a trial court's failure to grant a motion for directed or instructed verdict is a challenge to the legal sufficiency of the evidence.Williams v. State,937 S.W.2d 479, 482(Tex.Crim.App.1996);Cook v. State,858 S.W.2d 467, 470(Tex.Crim.App.1993).In this case, Horne made no clear request for an instructed or directed verdict, and we have no such ruling to address.But, because Horne in essence challenges the legal sufficiency of the evidence to support his conviction on this direct appeal, we address that issue, regardless of whether it was raised in the trial court.SeeMoff v. State,131 S.W.3d 485, 488(Tex.Crim. App.2004).

In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Johnson v. State,23 S.W.3d 1, 7(Tex.Crim.App.2000).

In essence, Horne complains that the evidence is legally insufficient to prove he"fled" from Belt, or that he had any intention to flee—but, instead, showed that Horne signaled Belt to follow him to his mother's house because he did not want to have his car towed.Horne's argument suggests that flight requires an element of speed, an element of intent to ultimately be free of an officer's control, or both.We disagree.

Surprisingly, there is little precedent addressing the meaning of the word "flee."Dictionaries generally agree that to "flee" means to run away or try to, in some fashion, avoid the person from whom you are fleeing.¹We recently held that "fleeing slowly is still fleeing."SeeMayfield v. State,219 S.W.3d 538, 540(Tex.App.-Texarkana 2007, no pet.).Two other cases are also instructive.

In 1995, in considering a bicyclist who was unwilling to stop for an officer, this Court noted that the refusal to comply with the officer's request to stop could be considered an attempt to evade detention.Green v. State,892 S.W.2d 217, 219(Tex. App.-Texarkana1995, pet. ref'd).The previous year, the Corpus Christi Court of Appeals had opined that a person trying to crawl away from an officer could be "evading" arrest.Leos v. State,880 S.W.2d 180 184(Tex.App.-Corpus Christi 1994, no pet.).

Although it may seem incongruous to think that someone proceeding slowly, or even crawling, away from an officer is "fleeing,"the cases indicate that "fleeing" is anything less than prompt compliance with an officer's direction to stop.Thus, such a delayed compliance legitimately can be found to be an attempt to evade arrest or detention.SeePeople v. Sanchez,86 Cal.App.4th 970, 103 Cal.Rptr.2d 809, 814(2001).

We conclude that, though the evidence indicates Horne had no intent to ultimately escape the officer, it does show that Horne was attempting to evade arrest, even if only for the few minutes it took for him to park his car in front of his mother's house.We hold that the evidence was legally sufficient to support the verdict.We overrule this contention of error.

(2)The Trial Court Properly Refused to Submit an Alleged Lesser Included Offense

Horne also contends that the trial court erred by refusing to honor his request to submit an allegedly lesser included offense to the jury.We disagree.

Horne was originally charged with evading arrest under Section 38.04 of the Texas Penal Code.That section provides that a person commits the offense of evading arrest or detention when he or she"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).The offense becomes a state-jail felony on proof that "the actor uses a vehicle while the actor is in flight" but "has not been previously convicted under"Section 38.04. TEX. PENAL CODE ANN. § 38.04(b)(1).

Horne asserts that he was entitled to have submitted to the jury an alleged lesser included offense of fleeing or attempting to elude a police officer, under Section 545.421(a) of the Texas Transportation Code, usually a class B misdemeanor.That section provides that a person commits the offense when "the person operates a motor vehicle and willfully fails or refuses to bring the vehicle to a stop or flees, or attempts to elude, a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop."TEX. TRANSP. CODE ANN. § 545.421(a)(Vernon 1999).The statute also requires that the officer must be in uniform and must prominently display his or her badge, that the officer's vehicle must be "appropriately marked as an official police vehicle,"² and that the officer's signal may be by hand, voice, emergency lights, or siren.TEX. TRANSP. CODE ANN. § 545.421(b)(Vernon 1999).

Although this is the first time this Court has been confronted with a claim referencing these two crimes, two of our sistercourts of appeals have addressed this very claim.Unfortunately, those two courts have come to opposite conclusions about the most basic question: whether fleeing under Section 545.421(a) of the Texas Transportation Code, a class B misdemeanor, is a lesser included offense of evading arrest under Section 38.04 of the Texas Penal Code, a state-jail felony.

The Fort Worth Court of Appeals treated the misdemeanor as a lesser included offense of the state-jail felony.SeeWalker v. State,95 S.W.3d 516(Tex.App.-Fort Worth2002, pet. ref'd).On the other hand, the Houston First Court of Appeals concluded, after comparing the elements of the two offenses, that the misdemeanor was not a lesser included offense of the felony and that the trial court had thus erred by charging the jury on the misdemeanor as a lesser included offense.SeeFarrakhan v. State,No. 01-04-01205-CR, ___ S.W.3d ___, 2006 WL 3438673(Tex. App.-Houston [1st Dist.]Nov. 30, 2006, pet. granted).Because precedents disagree, and the Texas Court of Criminal Appeals has not ruled on this point, we conduct our own analysis.

In deciding whether a jury should be instructed on a lesser included offense, courts apply the two-pronged Aguilar/Rousseau test.³That test's first prong⁴ requires a determination of whether the requested offense actually is a lesser included offense of the offense charged, as defined by Article 37.09 of the Texas Code of Criminal Procedure.Hall,158 S.W.3d at 473.

Article 37.09 provides, germanely, that an offense is a lesser included offense if "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged."TEX.CODE CRIM. PROC. ANN. art. 37.09(1)(Vernon 2006).An offense is a lesser included offense if it is (1) included within the proof necessary, under the statute and the indictment, to establish the offense charged; and (2) there is evidence from which a rational trier of fact could find that, if the defendant is guilty, he or she is guilty of only the lesser offense.Hall v. State,225 S.W.3d 524, at 535-36(Tex.Crim.App.2007);seeCampbell v. State,149 S.W.3d 149, 152(Tex.Crim.App.2004);see alsoTEX.CODE CRIM. PROC. ANN. art. 37.09(Vernon 2006)."The relevant test is whether the lesser offense could be proved by the same facts necessary to establish the offense charged."Pickens v. State,165 S.W.3d 675, 679(Tex.Crim.App.2005);Jones v. State,586 S.W.2d 542, 545(Tex.Crim.App.1979).In conducting that review, we are to compare the elements⁵ of the two offenses without any reference to the facts or evidence in the particular case.Hall,at 535-36.⁶

The Texas Court of Criminal Appeals, in reviewing the third-degree felony version of the Section 38.04 offense, described the elements of that crime as follows:

The plain language of this statute demonstrates that the third-degree offense of evading arrest is committed when a person (1) intentionally (2) flees (3) from a person (4)he knows is a peace officer (5) attempting to lawfully arrest or detain him and (6) the actor uses a vehicle while in flight and (7) the actor...