Porter v. State

• Decision Date: 27 February 2008
• Docket Number: No. 10-07-00138-CR.,10-07-00138-CR.
• Citation: Porter v. State, 255 S.W.3d 234 (Tex. App. 2008)
• Parties: John Christopher PORTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

255 S.W.3d 234

John Christopher PORTER, Appellant, v.The STATE of Texas, Appellee.

No. 10-07-00138-CR.

Court of Appeals of Texas, Waco.

February 27, 2008.

Rehearing Overruled April 1, 2008.

Judith Shields, The Woodlands, for appellant.

David P. Weeks, Crim. Dist. Atty., Huntsville, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

TOM GRAY, Chief Justice.

Porter appeals his conviction for misdemeanor evading arrest or detention.SeeTEX. PENAL CODE ANN. § 38.04(a)(Vernon 2003);cf.id.(b)(Vernon 2003).We affirm.

Sufficiency of the Evidence.In Porter's first two issues, he contends that the evidence was insufficient.Porter argues that "Officer Blackshear's continued detention of [Porter] was in violation of the Fourth Amendment."¹(Br.at 17);seeU.S. CONST. amend. IV

The Texas Penal Code creates the offense of evading arrest or detention in the following terms: "A person commits an offense if he 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).One of "[t]he elements of the offense of evading arrest" is that "the attempted arrest is lawful."Johnson v. State,634 S.W.2d 695, 695(Tex.Crim.App.[Panel Op.]1982), overruled in part on other grounds, Jackson v. State,718 S.W.2d 724, 727(Tex. Crim.App.1986);accordAlejos v. State,555 S.W.2d 444, 448(Tex.Crim.App.1977)(op. on reh'g);seeRuffin v. State,234 S.W.3d 224, 226(Tex.App.-Waco2007, pet. dism'd).

The Fourth Amendment to the United States Constitution provides, "The right of the people to be secure in their persons ..., against unreasonable ... seizures, shall not be violated...."U.S. CONST. amend. IV.

"If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender."Brendlin v. California,___ U.S. ___ n. 7, 127 S.Ct. 2400, 2410 n. 7, 168 L.Ed.2d 132(2007)(quotingAtwater v. City of Lago Vista,532 U.S. 318, 354, 121 S.Ct. 1536, 149 L.Ed.2d 549(2001));seeArmendariz v. State,123 S.W.3d 401, 404(Tex.Crim.App.2003)."Probable cause" to arrest "exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed."Henry v. United States,361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134(1959);seeWong Sun v. United States,371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441(1963);Parker v. State,206 S.W.3d 593, 596-97(Tex.Crim.App.2006).

"[T]he protection against unreasonable seizures" also "extends to `seizures that involve only a brief detention short of traditional arrest.'"California v. Hodari D.,499 U.S. 621, 639, 111 S.Ct. 1547, 113 L.Ed.2d 690(1991)(quotingUnited States v. Brignoni-Ponce,422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607(1975));seeTerry v. Ohio,392 U.S. 1, 16-19, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968);Ford v. State,158 S.W.3d 488, 493(Tex.Crim.App.2005)."Beginning with Terry v. Ohio, the" United States Supreme "Courthas recognized that a law enforcement officer's reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further."Hiibel v. Sixth Judicial Dist. Court,542 U.S. 177, 185, 124 S.Ct. 2451, 159 L.Ed.2d 292(2004)(citingTerry,392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889);seeFordat 494.The United States Supreme Court has "acknowledged police authority to stop a person `when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.'"United States v. Hensley,469 U.S. 221, 227, 105 S.Ct. 675, 83 L.Ed.2d 604(1985)(quotingUnited States v. Place,462 U.S. 696, 702, 103 S.Ct. 2637, 77 L.Ed.2d 110(1983)(emphasis omitted));seeHiibel at 186, 124 S.Ct. 2451(citingHayes v. Florida,470 U.S. 811, 816, 105 S.Ct. 1643, 84 L.Ed.2d 705(1985));United States v. Sokolow,490 U.S. 1, 7-10, 109 S.Ct. 1581, 104 L.Ed.2d 1(1989);Fordat 492."The officer's action must be `justified at its inception, and ... reasonably related in scope to the circumstances which justified the interference in the first place.'"Hiibel at 185, 124 S.Ct. 2451(quotingUnited States v. Sharpe,470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605(1985))(internal quotation marks omitted)(alteration inHiibel);seeTerry at 20, 88 S.Ct. 1868;Davis v. State,947 S.W.2d 240, 242(Tex. Crim.App.1997)."[T]he seizure cannot continue for an excessive period of time...."Hiibel at 185-86, 124 S.Ct. 2451(citingPlace at 709, 103 S.Ct. 2637).

"In assessing whether a detention is too long in duration to be justified as an investigative stop," it is "appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant."Sharpe,470 U.S. at 686, 105 S.Ct. 1568(citingMichigan v. Summers,452 U.S. 692, 701 n. 14, 101 S.Ct. 2587, 69 L.Ed.2d 340(1981));seeMuehler v. Mena,544 U.S. 93, 101, 125 S.Ct. 1465, 161 L.Ed.2d 299(2005);Kothe v. State,152 S.W.3d 54, 64(Tex.Crim.App.2004)."[O]nce the original purpose for the stop is exhausted, police may not unnecessarily detain" persons "solely in hopes of finding evidence of some other crime."Kotheat 64(emphasis in orig.).

In evaluating probable cause or reasonable suspicion, we consider the "totality of the circumstances."Maryland v. Pringle,540 U.S. 366, 371-72, 124 S.Ct. 795, 157 L.Ed.2d 769(2003)(citingIllinois v. Gates,462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527(1983));United States v. Arvizu,534 U.S. 266, 273-74, 122 S.Ct. 744, 151 L.Ed.2d 740(2002)(citingUnited States v. Cortez,449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621(1981));Castro v. State,227 S.W.3d 737, 741(Tex.Crim. App.2007);Torres v. State,182 S.W.3d 899, 902(Tex.Crim.App.2005).That evaluation may include consideration of the fact that "[t]he delay in th[e] case was attributable ... to the evasive actions of"the defendant.Sharpe,470 U.S. at 687-88, 105 S.Ct. 1568.

The manner-and-means allegations in the information here charged generally that Porter "did ... intentionally flee from Calvin Blackshear, a person [Porter] knew was a peace officer who was attempting lawfully to arrest or detain" Porter.(1 C.R. at 1.)The trial court, in accord with that allegation, instructed the jury to find Porter guilty if the jury found beyond a reasonable doubt that Porter "did ... intentionally flee from Calvin Blackshear, a person [Porter] knew to be a peace officer who was attempting lawfully to arrest or detain" Porter.(Id. at 12);cf.Hooper v. State,214 S.W.3d 9, 14(Tex.Crim.App.2007);Malik v. State,953 S.W.2d 234, 240(Tex.Crim.App.1997).The jury generally found Porter "GUILTY of the offense of evading arrest or detention, as charged in the information."(1 C.R. at 16.)

Legal Sufficiency.In Porter's first issue, he contends that the evidence was legally insufficient.

"In assessing the legal sufficiency of the evidence ..., `we consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found the essential elements of the crime beyond a reasonable doubt.'"Williams v. State,235 S.W.3d 742, 750(Tex.Crim.App.2007)(internal footnote omitted)(quotingHooper,214 S.W.3d at 13);seeJackson v. Virginia,443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979);Clayton v. State,235 S.W.3d 772, 778(Tex.Crim.App.2007);Moreno v. State,755 S.W.2d 866, 867(Tex.Crim.App.1988)."Under a legal sufficiency review, `our role is not to become a thirteenth juror.This Court may not re-evaluate the weight and credibility of the record evidence and thereby substitute our judgment for that of the factfinder.'"Williamsat 750(quotingDewberry v. State,4 S.W.3d 735, 740(Tex.Crim. App.1999))."Thus, reviewing courts give deference to `the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'"Id.(quotingHooperat 13)(internal quotation marks omitted);seeTEX.CODE CRIM. PROC. ANN. art. 36.13(Vernon 2007),art. 38.04(Vernon 1979).

Porter argues, "The evidence is legally insufficient to prove that [Porter] was under a lawful detention because the detention exceeded the scope of a valid detention."(Br.at 17.)Porter points out that "[t]he arrest occurred after at least fifteen to twenty minutes of questioning."(Id.(citing1 R.R.at 116).)

The State points primarily to the following evidence.The arresting officer, Huntsville Police Department OfficerCalvin Blackshear, testified that he detained Porter and three other persons present at the scene for investigation of five offenses: consuming alcohol after hours, possession of alcohol by minors, illegal dumping,² public intoxication,³ and unnecessary noise.⁴SeeTEX. ALCO. BEV.CODE ANN. §§ 105.06(b), 106.05(a)(Vernon 2007);TEX. HEALTH & SAFETY CODE ANN. § 365.012(a)(Vernon Supp.2007);TEX. PENAL CODE ANN. § 49.02(a);HUNTSVILLE, TEX., CODE OF ORDINANCES§ 21.01.05(A), (B)(4), (C)(2007), available at http://www.municode.com/ Resources/gateway.asp?pid=14355 & sid=43.Officer Blackshear further testified as follows.In patrolling an apartment complex at about 2:00 a.m., Officer Blackshear saw several people"drinking and hollering" at the first-floor balcony or porch of an apartment.(1 R.R.at 81.)When Officer Blackshear approached the apartment, he saw "twenty to thirty," or "dozens of beer bottles or cans spread all around the area" adjacent to the porch.(Id.;id. at 102.)Officer Blackshear found three other people besides Porter at the...