Smith v. State

• Decision Date: 12 November 1987
• Docket Number: No. 856-85,856-85
• Citation: 739 S.W.2d 848
• Parties: Dock Junior SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 848

739 S.W.2d 848

Dock Junior SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 856-85.

Court of Criminal Appeals of Texas En Banc.

Nov. 12, 1987.

Morris L. Overstreet, Amarillo, for appellant.

Bill Baumann, C.A., Amarillo, Robert Huttash, State's Atty., Austin, for the State.

Before the Court en banc.

OPINION ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

Dock Junior Smith, hereinafter appellant, was convicted by the jury of evading arrest, to-wit: intentionally fleeing from Leslie Nivens, an Amarillo Police Officer, while Nivens was attempting to arrest him. See V.T.C.A., Penal Code, § 38.04. The jury also assessed appellant's punishment at 45 days' confinement in the Potter County Jail and a $300 fine, and recommended that the fine only be probated, which recommendation the trial judge followed.

The charging instrument in this cause does not allege what offense appellant had previously committed for which Nivens wanted to arrest him. However, under V.T.C.A., Penal Code, § 38.04, the applicable penal statute, this is not an element of the offense. § 38.04 merely provides that a person commits the offense of evading arrest if he intentionally flees from a person he knows is a peace officer attempting to arrest him. ¹

On direct appeal, appellant challenged the sufficiency of the evidence to sustain his conviction under § 38.04, supra. The Amarillo Court of Appeals agreed with appellant, holding that the act of fleeing an investigatory stop by a police officer is, standing alone, not a criminal offense, and ordered the conviction reversed and the cause remanded to the trial court with instructions to enter a judgment of acquittal. See Smith v. State, 704 S.W.2d 791 (Tex.App. 7th 1985).

We granted the petitions for discretionary review that were filed on behalf of the State by the State Prosecuting Attorney and the local District Attorney in order to determine whether the court of appeals correctly held that the evidence was insufficient to sustain the jury's verdict. Finding that we are in agreement with the court of appeals' conclusion, we will affirm its judgment that reversed the trial court's judgment of conviction.

The record reflects that during argument on appellant's motion for instructed verdict in the trial court the prosecuting attorney candidly admitted to the trial judge that "[W]ithout this Blackmon case [Blackmon v. State, 644 S.W.2d 738 (Tex.Cr.App.1983)], we wouldn't be here ..." (Page 49 of Statement of Facts). The trial judge overruled appellant's motion. On appeal, the State vigorously pursued that case as authority for affirming appellant's conviction. The court of appeals rejected Blackmon, supra, as being authority for affirming appellant's conviction.

In rejecting the State's argument on appeal that Blackmon, supra, controlled the disposition of appellant's contention, that the evidence was insufficient, the court of appeals correctly observed and pointed out the following about what the majority panel opinion of this Court stated and held on original submission in Blackmon, supra. No motion for rehearing was filed in Blackmon, supra, so the En Banc Court did not act in that cause.

The State readily admitted to the trial court that it would not have been in court with this case but for Blackmon v. State, 644 S.W.2d 738, 740 (Tex.Cr.App.1983). There is language in Blackmon that, on first reading, seems to support the State's position, because the Court of Criminal Appeals pointed out that law enforcement officers are entitled to pursue, and subdue, a person who flees a Terry [see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967) ] investigatory stop, just as they may pursue a person who flees an arrest. However, the issue in Blackmon was not whether a person violates § 38.04 if he flees an investigatory stop. Instead, the Court was deciding whether the officer had enough information to detain the defendant, and subsequently arrest him, for another crime. The Court did not determine the threshold issue present here, which is whether the act of fleeing an investigatory stop is, standing alone, a crime. Thus, we are not required to apply Blackmon to these facts.

Section 38.04 creates the crime of evading an arrest. It does not create the crime of evading an investigatory stop. Appellant's first ground of error is sustained. (793).

§ 38.04, supra, is clearly written. An offense does not occur unless and until an individual flees from a peace officer who at that moment in time is attempting to arrest him. "The gravamen of the offense is the evasion of an arrest, not the evasion of a police officer." Jackson, supra. Given the wording of the statute, and the exception therein, it is obvious that "The intent of this section of the penal code is to deter flight from arrest by the threat of an additional penalty and to further discourage forceful conflicts between police and suspects." The Explanatory Comment of Branch's Texas Annotated Penal Code, 3rd Ed., Vol. 3, § 38.04, at page 116. As previously pointed out, under § 38.04, supra, the actual commission of a criminal wrong, i.e., the offense the officer was attempting to arrest the accused for committing, is not an element of the offense. In Alejos, supra, this Court implicitly held that a person who flees from a peace officer who has probable cause to arrest him for committing some criminal offense may be found guilty under § 38.04.

We find that the issue here is whether the statute is violated when an individual flees from an officer who is not attempting to arrest him but is only attempting to stop him for investigation purposes. The court of appeals found that the statute was not violated in that instance. We agree with that holding.

The facts reflect that Nivens, the police officer who ultimately arrested appellant, who was the only witness to testify for the State at the guilt stage of the trial, testified that he was dispatched and went to the Tip Top Club in Amarillo to investigate a reported disturbance resulting from a fight that had apparently occurred inside of the club. No testimony was presented that related to the fight. Nivens candidly admitted when he testified that he could not state what had taken place inside of the Tip Top Club before he arrived at that location either by way of personal knowledge or hearsay. Nivens testified that after he arrived and parked his police car in front of the club, he got out of the car and went to the front of the club where he came into contact with three females he did not know and who he could not say were credible persons. At this time there were approximately 15 to 20 persons standing outside. Nivens testified that while he was speaking with the three females, "the door of the bar [sic] came open and Mr. Smith [appellant] was standing in the doorway. And at this time, the three women said, "He has a gun." [Nivens admitted in his testimony that the women did not tell him how they knew that appellant then had a gun. No gun was then visible.] And at the time, Mr. Smith took off running." After a brief chase, with Nivens hollering at appellant several times during the case "Halt, police!", Nivens ultimately stopped appellant, and, after he had concluded that appellant was intoxicated, he arrested appellant for that offense. A search of both appellant and the area by Nivens failed to turn up any kind of weapon, especially a gun. On cross-examination, Nivens testified that he could not swear under oath that the Tip Top Club was licensed to sell alcoholic beverages, although his testimony strongly suggested that based upon what he had heard he believed that it was a licensed premises.

Officer Nivens also admitted in his testimony that if "we had found the gun" he would have arrested appellant for unlawfully carrying a weapon; that he chased appellant only "to see if he had the gun ... [and] I wanted to talk to him to see if he did have a gun." Officer Nivens further testified that after he arrested appellant nearby where the club was located for being intoxicated in public appellant did not evade him or attempt to flee from him. As previously pointed out, no gun was ever found, either on appellant's person or in the area.

Earlier we said the statute is clearly worded. To the extent that it clearly informs one of the elements of the offense it is. Nevertheless, we find that the statute is deficient in one particular and that is it fails to expressly inform the reader what kind of "arrest" is required. The term "arrest" is not defined in the Penal Code. The provisions of Art. 15.22, V.A.C.C.P., only inform us of when a person is arrested: "A person is arrested when he has been actually placed under restraint or taken into custody by an officer or person executing a warrant of arrest, or by an officer or person arresting without a warrant." As previously pointed out, the statute does not have as an element thereof the offense for which the peace officer was attempting to arrest the accused; the statute merely states that it is an offense if the person intentionally flees from a person he knows is a peace officer "attempting to arrest him." There is also no requirement in the statute that the arrest be lawful. The statute, however, does provide that "It is an exception to the application of this section that the attempted arrest is unlawful." V.T.C.A., Penal Code, § 2.02, states; "(a) An exception to an offense in this code is so labeled by the phrase: 'It is an exception to the application of....' " Subsection (b) provides: "The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception."

Therefore, given the plain terms of § 38.04, supra, and § 2.02, supra, to establish the offense of evading arrest, it is incumbent upon the prosecution to plead and prove the...