Olivas v. State

• Decision Date: 13 September 2006
• Docket Number: No. 1935-04., No. PD-1933-04, No. 1934-04
• Parties: RAYMOND OLIVAS, Appellant, v. THE STATE OF TEXAS.
• Court: Texas Court of Criminal Appeals

202 S.W.3d 137

RAYMOND OLIVAS, Appellant, v. THE STATE OF TEXAS.

Nos. PD-1933-04, 1934-04, 1935-04.

Court of Criminal Appeals of Texas.

Delivered: September 13, 2006.

COCHRAN, J., delivered the opinion of the Court in which KELLER, P.J., PRICE, WOMACK, JOHNSON, KEASLER, HERVEY and HOLCOMB, JJ., joined. MEYERS, J., not participating.

OPINION

COCHRAN, Judge.

Four times, in less than a month, appellant evaded arrest by outracing Bryan or College Station police officers who were attempting to arrest him for stalking and assaulting his former girlfriend. A jury convicted appellant of all four evading arrest charges, and it found that he used his mother's Pontiac Bonneville as a deadly weapon during three of those offenses. The court of appeals rejected appellant's claims of legal and factual sufficiency, but it then found unassigned, fundamental, "structural" error in the jury charge because the special issue did not explain that the State had the burden to prove, beyond a reasonable doubt, that appellant used his mother's car as a deadly weapon.¹ The court of appeals reversed the judgment in the three evading arrest cases that contained deadly weapon findings and remanded those cases for a new trial. Finding that the unobjected-to error in the jury charge did not cause appellant "egregious harm" under Almanza,² we reverse the court of appeals and affirm the trial court's judgment.³

I.

Kim Tunnell, married with two children, had an affair with appellant. She broke off this relationship to save her marriage, but appellant did not want to end the affair. He constantly called Ms. Tunnell's cell phone, leaving voice messages first of love, then of anger, and finally of threats.

On November 27, 2001, Ms. Tunnell received a voicemail message in which appellant told her that if she didn't come out of her house, he would break the door down. Fearing violence, Ms. Tunnell decided to ask the police for help. She recorded the 59 voice messages that appellant had previously left. While she was doing so, appellant called again and told Ms. Tunnell to "count her friggin' hours."

She went to the Bryan Police Department office, reported the telephone harassment, and left the recorded messages with them. At the suggestion of the police, Ms. Tunnell then went to her attorney's office to obtain a restraining order against appellant. As she pulled into the attorney's parking lot, she saw appellant walking "briskly" toward her truck. She began to back out of the parking lot, but, as appellant reached the passenger side of the truck, he pulled out a pistol and "tried to break the passenger side glass." The window did not break, but Ms. Tunnell, who had never seen appellant with a gun before, fled in her truck. Eventually, she drove back to the attorney's office, and he called the police.

Motorcycle Officer John Agnew responded to that call, got a description of the car appellant was driving, and soon saw that car, a beige Pontiac Bonneville registered to appellant's mother, at the Tobacco Barn, a nearby gas station. The driver of the Pontiac saw Officer Agnew behind him, so he got into the car and "immediately started rolling." Officer Agnew followed, turning on his lights and siren as the driver picked up speed. The Pontiac went into the oncoming traffic lane as its driver cut around a sharp curve trying to escape. Once around the curve, the "vehicle just punched it, just took off as fast as it could down MLK" Street. The driver was going a minimum of 50 m.p.h. in a 30 m.p.h. zone. Officer Agnew knew that he needed to stop the Pontiac "quickly before someone gets hurt." The driver again swerved into the oncoming traffic to pass another car in his lane. Officer Agnew testified that the Pontiac, being driven in this manner and at that speed, "was definitely capable of causing serious bodily injury to somebody." Officer Agnew discontinued his pursuit because the Pontiac was "getting way too fast" for him on his motorcycle.

On December 12th, as Ms. Tunnell was driving to the laundromat, appellant drove up behind her in his mother's Pontiac and she heard two "pop" sounds as he pulled the Pontiac up alongside her truck. She called the police on her cell phone as soon as she arrived at the laundromat and discovered a fresh bullet hole in the driver's side of the extended cab. Officer Alvarez responded and found Ms. Tunnell crying and "stomping around" in anger and fear. She told Officer Alvarez that appellant had tried to shoot her. Officer Alvarez examined the truck and found that the bullet had penetrated the truck; he found the bullet fragments in a blanket on the seat. After completing his investigation, Officer Alvarez returned to the police station, but he was soon notified that appellant had called Ms. Tunnell again, this time from a pay phone at a local store, Sloppy Joe's.⁴ Officer Alvarez got back into his patrol-car and was headed toward Sloppy Joe's when he saw the Pontiac pass him. He pulled in behind the Pontiac, turned on his patrol-car video recorder, and called for additional units to stop the car. The Pontiac turned into the same Tobacco Barn gas station where Officer Agnew had first spotted it two weeks earlier. Once Officer Alvarez turned on his lights to make a stop, the Pontiac accelerated, went around the building and through the parking lot at a high rate of speed, and then turned onto MLK Street. Officer Alvarez followed, with the video camera recording the chase, but the Pontiac soon outdistanced the patrol car and disappeared around a corner.

Nine days later, on December 21st, Officer Alvarez learned that appellant was going to be at the Brazos Inn that evening. He, along with two other officers, staked out that location. At about 10:30 p.m., they saw appellant enter the Inn; after a few minutes he left. Appellant got into the same Pontiac that Officer Alvarez had followed and videotaped nine days earlier. Appellant turned onto Highway 6, traveling south. Officer Alvarez and two other officers, all in separate patrol cars, came up behind appellant's car, turned on their emergency lights, and attempted to pull him over. At first appellant slowed down, and pulled over to the right, then he suddenly veered back left and accelerated to at least 95 to 100 m.p.h., leaving the three patrol cars far behind. The officers backed off for safety reasons because they did not want to cause appellant to hit someone. They saw him cut across the grassy median, make a U-turn and start back northbound, making both a northbound mini-van and another car stop in the middle of the highway to avoid a collision. Then, as the patrol cars started to follow, appellant made yet another turn across the highway, through the southbound lanes, and over a grassy embarkment. He pulled onto the frontage road, driving the wrong way. When he came to the intersection, he maneuvered around at least one car and then turned left on University Drive. Officer Alvarez said that the Pontiac was being driven in such a reckless, careless, and aggressive manner that it was capable of causing death or serious bodily injury. Another officer testified that at the speed appellant was driving his "vehicle could become a missile, an object if one loses control; whether it's by trying to exit [or] rear-end another vehicle at a high rate of speed."

On December 24th, Christmas Eve afternoon, Ms. Tunnell reported to the police that appellant was again following her in his mother's car. The dispatcher told her to come to the College Station Police Department. Officer Wiesepape, who had been dispatched to investigate, saw Ms. Tunnell's car as she started to pull into the police department parking lot. Appellant's car was right behind her, but he did not pull into the parking lot. When appellant looked into his rear view mirror and saw Officer Wiesepape driving behind him, he cut across the traffic lanes and into the Taste of China parking lot. He stopped his car, but when Officer Wiesepape also stopped, got out of his patrol car, and started toward the Pontiac, appellant put the car into drive, jumped the curb, drove down a grassy embankment, jumped the curb on the other side of the embankment, and landed back on the road. Appellant "blew" the stop sign without touching his brakes. The oncoming traffic had to stop suddenly. According to Officer Wiesepape, if those cars had not stopped, there would have been an accident. Officer Wiesepape ran back to his car and drove off in pursuit (although he did stop at the stop sign that appellant had run through because the traffic was still blocked by the cars that had stopped for appellant) down Texas Avenue. Appellant had disappeared once more.

Officer Vick heard his fellow officer's "chase in progress" dispatch and saw appellant's car pass by him, traveling at 70-80 m.p.h. in a 45 m.p.h. zone. Officer Vick immediately put on his lights and siren, turned around and started to pursue appellant who continued to accelerate. Appellant ran two more stop signs without braking, and, once again, he disappeared.

Appellant was finally arrested on December 27th, when Ms. Tunnell, at the behest of the police, set up a meeting with appellant at the Culpepper Plaza. Appellant had arrived on a bike. When the police approached and ordered appellant to the ground, he jumped back on his bike and rapidly rode off. The police finally surrounded him as he was riding down a ditch. He told the officer who drove him to jail that if he had been in a car, they never would have caught him. "Police are pussies and they can't catch shit."

In a consolidated trial, a jury convicted appellant of stalking, aggravated assault by threat, and the four evading arrest incidents. The jury also found that appellant had used his mother's Pontiac Bonneville as a deadly weapon during three of the evading-arrest incidents.

Appellant brought two points of error on appeal-legal and factual sufficiency to support the four evading arrest convictions. He argued...