Lopez v. State

• Decision Date: 09 October 2013
• Docket Number: No. 04–12–00448–CR.,04–12–00448–CR.
• Citation: 415 S.W.3d 495
• Parties: Vincent Andrew LOPEZ, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

415 S.W.3d 495

Vincent Andrew LOPEZ, Appellant

v.The STATE of Texas, Appellee.

No. 04–12–00448–CR.

Court of Appeals of Texas, San Antonio.

Oct. 9, 2013.

Michael D. Robbins, Appellate Public Defender's Office, San Antonio, TX, for Appellant.

Nathan E. Morey, San Antonio, TX, for Appellee.

Sitting: CATHERINE STONE, Chief Justice, SANDEE BRYAN MARION, Justice, PATRICIA O. ALVAREZ, Justice.

OPINION

Opinion by: CATHERINE STONE, Chief Justice.

Vincent Andrew Lopez was convicted by a jury of evading detention.On appeal, Lopez challenges the sufficiency of the evidence to support the jury's verdict and contends the trial court committed reversible error through a comment made during voir dire and by polling the jury sua sponte.We affirm the trial court's judgment.

Sufficiency of the Evidence

A person commits the offense of evading detention if he intentionally flees from a person he knows is a peace officer attempting lawfully to detain him.Tex. Penal Code Ann. § 38.04(a)(West Supp.2012).Lopez contends the evidence is insufficient to show that he was intentionally fleeing from the officer in the instant case because the evidence established that he was unaware that the officer was attempting to detain him.

“When reviewing the sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict to determine whether, based on that evidence and the reasonable inferences therefrom, a jury was rationally justified in finding guilt beyond a reasonable doubt.”Merritt v. State,368 S.W.3d 516, 525(Tex.Crim.App.2012)(citingJackson v. Virginia,443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979)).“The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses.”Id.“Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt.”Hooper v. State,214 S.W.3d 9, 13(Tex.Crim.App.2007).Moreover, juries are permitted “to draw multiple reasonable inferences as long as each inference is supported by the evidence presented at trial.”Id. at 15.A reviewing court determines if a jury's inferences are reasonable “based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict.”Id. at 17.“When the record supports conflicting inferences, we presume that the jury resolvedthe conflicts in favor of the verdict and defer to that determination.”Merritt,368 S.W.3d at 525–26.

Viewing the evidence in the light most favorable to the verdict, Officer Richard Casillas was on patrol with a field training officer, Officer David Brinkman, during the end of his rookie training.At approximately 5:00 a.m., the officers were approaching a highway when they observed two vehicles on the highway traveling at a high rate of speed.The vehicles appeared to be racing.The headlights of the vehicle Lopez was later identified as driving were off.Officer Casillas accelerated to a speed of approximately 100 miles per hour in an effort to catch the vehicles when Lopez's vehicle exited the highway.As Lopez exited the highway, Lopez turned on his headlights.As soon as they caught up to Lopez, either Officer Casillas or Officer Brinkman activated the emergency lights and siren to initiate a traffic stop.When Lopez failed to stop, Officer Brinkman began “chirping the siren” to make sure they attracted Lopez's attention.When Detective Brinkman realized Lopez did not intend to stop, he stopped chirping the siren and allowed it to run continuously.Lopez continued traveling through a residential area making several turns before pulling into his driveway.Officer Casillas estimated that he was behind Lopez for one and one-half minutes or approximately 0.6 miles with his lights and siren activated before Lopez pulled into his driveway.

From the officers' testimony that their lights and siren were activated for 0.6 miles or approximately one and one-half minutes, the jury could reasonably infer that Lopez was aware the officers were attempting to detain him but intended to flee to the driveway of his house.Although Lopez testified that he did not see the lights or hear the siren, the jury, as the sole judge of the witnesses' credibility, could have disbelieved him.SeeMerritt,368 S.W.3d at 525.Moreover, although the officers agreed that Lopez was not accelerating away from them or driving recklessly after he exited the highway, “fleeing” is “anything less than prompt compliance with an officer's direction to stop,” and “fleeing slowly is still fleeing.”Horne v. State,228 S.W.3d 442, 446(Tex.App.-Texarkana 2007, no pet.);Mayfield v. State,219 S.W.3d 538, 541(Tex.App.-Texarkana 2007, no pet.).Lopez's first issue is overruled.

Voir Dire Comment

In his second issue, Lopez contends a comment made by the trial judge during voir dire was reversible error.Acknowledging that no objection was made to the comment, Lopez cites Blue v. State,41 S.W.3d 129(Tex.Crim.App.2000)(plurality opinion), to contend the error was not waived by the failure to object because the trial judge's comment damaged the presumption of innocence which was “a fundamental error of constitutional dimension.”The State notes that the Texas Court of Criminal Appeals issued an opinion after Lopez's brief was filed concluding that “the Blue decision has no precedential value.”Unkart v. State,400 S.W.3d 94, 101(Tex.Crim.App.2013).Although acknowledging that the plurality opinions in Blue could have persuasive value like a concurring opinion, the court held that the opinions in Blue did not support a reversal in Unkart because the circumstances “differ[ed] significantly in several respects from the circumstances in Blue.”Id.

In Blue,“at the beginning of the jury selection process, the trial judge apologized to a group of perspective jurors for their long wait.”41 S.W.3d at 130.In making the apology, the trial judge informed the jurors that the defendant was still deciding whether to accept the State's plea offer or go to trial.Id.The trial judge further stated that she preferred the defendant to plead, and “we were all trying to work toward that and save you time and cost of time.”Id.The plurality in Blue determined that “the trial judge's remarks vitiated the defendant's presumption of innocence.”Unkart,400 S.W.3d at 99.

In Unkart,“the trial judge said that he personally would want to testify if accused of a crime but admonished the prospective jurors that others might have a different perspective, that a defendant could have good reasons not to testify that were unrelated to guilt, and that the law prohibited the jurors from holding a defendant's failure to testify against him.”400 S.W.3d at 96.The court distinguished Blue on several grounds.Id. at 101–02.First, the court noted that the trial judges' attitudes in the two cases were considerably different.Id. at 101.In Blue, the judge's remarks “were an expression of exasperation and impatience” and “essentially faulted the defendant for failing to quickly give up his right to a jury trial and accept a plea offer,” while the remarks by the trial judge in Unkart“were made with the manifest intent to benefit the defendant and to protect his rights” by “hammer[ing] home to jurors that they should not hold a defendant's failure to testify against him.”Id.In addition, “the trial judge in Blue conveyed information about the case that the jurors would not have otherwise known, while the trial judge in [Unkart ] did not.”Id.“Third, the trial judge in Blue told the jurors what he preferred the defendant to do, but the trial judge's remarks in [Unkart ] did not.”Id.“Fourth, the trial judge in [Unkart ] gave the jurors a logical reason to disregard his expressed personal preference,” but no similar discussion occurred in connection with the trial judge's expressed preference that the defendant plead in Blue.Id. at 101–02.Finally, the trial judge in [Unkart ]“emphatically instructed the jurors about what the law required” explaining that “if they agreed with his own preference about testifying, they were required to set that opinion aside and follow the law.”Id. at 102.On the other hand, no instructions were given in Blue that “could be construed as telling the jury to disregard the trial judge's comment” about the plea discussions or the trial judge's preference that the defendant accept the plea.Id.After distinguishing Blue,the court in Unkart held that the appellant waived any error by failing to object and request an instruction to disregard because any residual harm “would have been cured by a timely instruction to disregard the specific comments that appellant found objectionable.”Id.

In this case, during the trial judge's general remarks to the venire panel, the trial judge stated the following in explaining the type of criminal case to be heard:

In this case, I can tell you Mr. Lopez is charged with the offense of evading arrest or detention.And really simply what that is, is it is a state jail felony offense in the State of Texas.At the time that this case was committed, to have an officer try to pull you over while you were in your vehicle and you just fail or refuse to stop, knowing that there is an officer attempting to pull you over.That's really simply what it is.And it's a state jail felony offense.

Lopez contends the trial court's reference to “the time that this case was committed” constituted fundamental error because the comment “tainted the presumption of innocence, and instructed in [sic] the jury, very early on that an offense was committed by Mr. Lopez.”In evaluating Lopez's complaint, we must examine the remark in context.

Immediately after this comment, the trial judge informed the jurors that all citizens, including those accused of crimes, have constitutional rights.The trial judge then explained her role during the trial as...