Opinion Issued April 24, 2003
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-00601-CR
ROBERT ALLEN MARRON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from County Criminal Court at Law No. 13
Harris County, Texas
Trial Court Cause No. 677633
MEMORANDUM OPINION
A jury found appellant, Robert Allen Marron, guilty of the misdemeanor offense of evading detention by a peace officer, and the trial court assessed punishment at 180 days in jail, probated for one year, and a $300 fine. See Tex. Pen. Code Ann. § 38.04 (Vernon 2003). In three points of error, we determine (1) whether the evidence was legally and factually sufficient to support appellant’s conviction, (2) whether the testimony of two deputies about a 9-1-1 call was inadmissible hearsay, and (3) whether the testimony from the owner of a stolen car in which appellant was riding was irrelevant or unduly prejudicial. We affirm.Facts
On January 27, 2002, the Harris County Sheriff’s dispatcher put out a bulletin, based on an anonymous tip, that two males were dumping a stolen Dodge Neon. Three deputies in patrol cars drove to the area. After waiting for a few minutes, a car matching the description given by the anonymous tipper arrived in the area, driven by a person who later turned out to be a 14-year-old boy. Appellant was a passenger in the back seat. The officers turned on their lights and sirens, and the driver drove the car off the road into a ditch. While the car was still moving, the driver jumped out and fled on foot. At the time the driver jumped out, appellant attempted to jump out of the back seat of the car, but lost his balance and rolled once on the ground. While appellant was trying to get up, he was seized and handcuffed.
Legal and Factual Sufficiency
In his first point of error, appellant contends that the evidence is legally and factually insufficient to support his conviction. Appellant contends that the State failed to prove that (1) the peace officers lawfully detained him, (2) the deputy named in the information was the deputy who detained him, (3) appellant intentionally fled, and (4) appellant knew that the deputy was attempting to detain him.
The standard of review for legal sufficiency is to view the evidence in the light most favorable to the conviction and to 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, 11 (Tex. Crim App. 2000). The standard of review for factual sufficiency is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak, or so contrary to the overwhelming preponderance of the evidence, as to undermine confidence in the jury’s determination of guilt. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000).
A. Lawfulness of Detention
Appellant first asserts that the evidence was legally and factually insufficient to support his conviction because his detention was unlawful. Appellant claims that his detention was unlawful because the deputies detained him on the basis of an anonymous tip, which alone does not establish reasonable suspicion necessary to justify an investigative detention. Appellant argues that, if the initial detention was unlawful because it was based only on an anonymous tip, then he could not have committed the offense of evading detention. See Smith v. State, 739 S.W.2d 848, 851 (Tex. Crim. App. 1987) (holding that, if peace officer’s attempt to detain or arrest suspect is unlawful, there can be no offense of evading arrest).
Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968). “The same standards will apply whether the person detained is a pedestrian or is the occupant of an automobile.” Carmouche v. State, 10 S.W.3d 323, 328 (Tex. Crim. App. 2000). To initiate an investigative stop, the investigating officer must possess “a reasonable suspicion based on specific articulable facts that, in light of the officer’s experience and general knowledge, would lead the officer to the reasonable conclusion that criminal activity is underway and that the detained person is connected to the activity.” King v. State, 35 S.W.3d 740, 743 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (quoting Willhite v. State, 937 S.W.2d 604, 606 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d)).
Reasonable suspicion is dependent on both the content of the information possessed and its degree of reliability. Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416 (1990). Information observed firsthand by a police officer is highly reliable, while anonymous tips are less reliable. Compare Terry, 392 U.S. at 22-23, 88 S. Ct. at 1880-81 (holding personally observed criminal activity creates articulable facts that give rise to reasonable suspicion) with Florida v. J.L., 529 U.S. 266, 269-70, 120 S. Ct. 1375, 1378 (2000) (holding anonymous tips are less reliable than firsthand observation by a police officer). A tip by an anonymous informant of undisclosed reliability, standing alone, will rarely establish the requisite level of suspicion necessary to justify an investigative stop. See J.L., 529 U.S. at 269-70, 120 S. Ct. at 1378. However, there are situations in which an anonymous tip, suitably corroborated, exhibits “sufficient indicia of reliability to provide reasonable suspicion to justify the investigatory stop.” Id. (citing Alabama v. White, 496 U.S. at 328, 110 S. Ct. at 2415).
The record shows that the deputies acted in part on an anonymous call. The deputies received a dispatch to investigate a purple-colored Dodge Neon, with a particular license plate number, in a specific area, containing two males allegedly “dumping stolen property.” Two deputies, one of whom had 11 years of experience patrolling this particular area, knew from experience that the area was a popular site for dumping stolen cars. The deputies went to the reported area and observed a purple-colored Dodge Neon carrying two males. Appellant was one of these two males.
The anonymous tip was detailed in that it listed a specific area in which the allegedly stolen car was to be found; a specific make, model, color of car, and license-plate number; and a specific number of occupants in the car. Nearly every detail of the anonymous tip was corroborated by the deputies’ personal observations when the deputies saw a car matching the description given by the tipper, carrying the same number of occupants, and in the same area where the tipper stated that it would be. Therefore, the anonymous tip had sufficient indicia of reliability. See State v. Garcia, 25 S.W.3d 908, 913 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (holding “[c]orroboration by a police officer means, in light of the circumstances, he confirms enough facts so that he may reasonably conclude that the information provided is reliable and detention is justified”). Further, the reliability of the anonymous tip was bolstered by the deputies’ familiarity with the area and the area’s notoriety for being a dumping site for stolen property. Reliability of the anonymous tip was also enhanced by the predictive nature of the tip. See Guevara v. State, 6 S.W.3d 759, 763-64 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d) (citing Alabama v. White, 496 U.S. at 331-32, 110 S. Ct. at 2417) (emphasizing importance of predictive nature of anonymous tip in providing reliability). Therefore, the evidence was legally and factually sufficient to support appellant’s conviction with respect to the deputies’ lawful detention of appellant.
B. Variance
Appellant next asserts that the evidence was legally and factually insufficient to support his conviction because a fatal variance existed between the information charging the appellant with the offense of evading detention and the evidence at trial. Appellant contends that Deputy Christian, the deputy named in the information, was not the same deputy who detained appellant.
A material variance occurs when a discrepancy exists between the allegations in the charging instrument and the proof at trial. See Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (defining variance as situation in which evidence introduced by State failed to prove offense alleged in indictment). In other words, a variance exists when the State has proven the defendant guilty of a crime, but has proven its commission in a manner that differs from the allegations in the charging instrument. Id.
Here, the record shows that Deputies Anderson, Brown, and Christian were all attempting to detain appellant and the driver of the stolen car. All three deputies arrived on the scene at the same time, and all attempted to participate in appellant’s capture. Although Deputy Brown was the only officer actually to handcuff appellant, appellant was attempting to flee from all of the officers, including Deputy Christian. Therefore, there was no variance between the information and the evidence presented at trial.
The evidence was thus legally and factually sufficient to support appellant’s conviction because no fatal variance existed between the information and the evidence at trial.
C. Intentional Flight
Appellant also claims that the evidence was legally and factually insufficient to support his conviction because the State did not show that he had “intentionally fled” from the sheriff’s deputies. Appellant contends that, because the deputy apprehended him before he actually “ran” from the scene, he did not “flee” within the meaning of Texas Penal Code section 38.04. See Tex. Pen. Code Ann. § 38.04 (Vernon 2003).
Intent is a fact question for the jury and may be inferred from the acts and conduct of the accused. See Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999). Because of its nature, intent must generally be inferred from the circumstances under which the prohibited act occurs. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). Although evidence may be in conflict, it is for the jury, as trier of fact, to resolve any conflicts and inconsistencies in the evidence. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).
The record shows that the car in which appellant was riding was being pursued by two patrol cars with activated lights and sirens at the time that appellant allegedly attempted to evade arrest. While being pursued, the driver fled from the moving car. As soon as it was safe to do so, appellant also jumped out of the car and was attempting to get up when he was seized by Deputy Brown. After appellant jumped out of the car, but before he was seized, he was facing the opposite direction from the deputies and ignored their commands to stay down on the ground. Thus, appellant refused to comply with a lawful order, knowing that the order came from a police officer. See Green v. State, 892 S.W.2d 217, 218-19 (Tex. App.—Texarkana 1995, pet. ref’d) (finding evidence sufficient to support defendant’s conviction for evading detention when defendant had disobeyed police officer’s instructions to come to patrol car).
Therefore, we cannot say that the evidence is legally and factually insufficient to support appellant’s conviction because there was sufficient evidence to show that appellant had “intentionally fled” from the sheriff’s deputies, including Deputy Christian.
D. Knowledge Deputies Were Detaining Appellant
Finally, appellant claims that the evidence was legally and factually insufficient to support his conviction because the State did not present evidence that he knew that the deputies were attempting to detain him, rather than the driver.
Here, there is ample evidence to demonstrate that appellant knew that the deputies were attempting to detain him. The car in which appellant was riding was stolen and was being pursued by two patrol cars. The driver had already jumped out of the car and had begun to flee on foot when appellant attempted to jump out of the car. At that time, the deputies were yelling, “Stop, get on the ground.” Appellant was attempting to get up when he was seized and handcuffed. Appellant’s attempts to get up were in complete disobedience of the deputies’ orders. Appellant may have jumped out of the moving car for his own safety because the driver had already abandoned the car and because it was heading towards a shallow ditch. However, after jumping out of the car, appellant disregarded the deputies’ commands to stay down on the ground. At this time, the driver of the car had already fled on foot. Therefore, we hold that the evidence is legally and factually sufficient to support appellant’s conviction because there was sufficient evidence to show that he knew that the deputies were attempting to detain him.
We overrule appellant’s first point of error.
Hearsay
In his second point of error, appellant contends that the trial testimony of two deputies was inadmissible hearsay. Appellant claims that the trial court erred by allowing the deputies to testify about the contents of a 9-1-1 call of which they allegedly did not have personal knowledge.
Hearsay is as an out-of-court statement offered for the truth of the matter asserted. Tex. R.Civ. Evid. 801(d). A statement that is not offered to prove the truth of the matter asserted, but is offered for some other reason, is not hearsay. Jones v. State, 843 S.W.2d 487, 499 (Tex. Crim. App. 1991). We review a trial court’s decision to admit or exclude evidence under an abuse-of-discretion standard; we will thus not reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Roberts v. State, 29 S.W.3d 596, 600 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d).
Here, the deputies’ testimony about the contents of the 9-1-1 call was admissible to show that the deputies had reasonable suspicion to detain appellant. See McVickers v. State, 874 S.W.2d 662, 664 (Tex. Crim. App. 1993) (holding that hearsay is generally admissible to determine whether reasonable suspicion exists for stop). We hold that the trial court did not abuse its discretion by allowing this testimony. See Torres, 71 S.W.3d at 760.
We overrule appellant’s second point of error.
Relevancy and Undue Prejudice
In his third point of error, appellant contends that the testimony from the owner of the stolen car in which appellant was a passenger was inadmissible because such testimony was irrelevant or, alternatively, unduly prejudicial.
All relevant evidence is admissible, except as otherwise provided by the constitution, by statute, or by rules prescribed pursuant to statutory authority. See Tex. R. Civ. Evid. 402. Relevant evidence is evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. See Tex. R. Civ. Evid. 401. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. See Tex. R.Civ. Evid. 403.
At a pre-trial hearing on appellant’s motion to suppress, appellant argued that evidence that the car in which he was riding was stolen should be excluded at trial. Although appellant did not specifically mention Rule 403, he contended that this evidence should be excluded because the jury would have a hard time disregarding the fact that the car in which appellant was riding at the time that he evaded arrest was stolen. Therefore, appellant’s basic argument was that the admission of such evidence would be unduly prejudicial to him. The trial court ruled that his motion to suppress would be carried with trial. Therefore, appellant was required to object timely at trial. See Calloway v. State, 743 S.W.2d 645, 649 (Tex. Crim. App. 1988). Although appellant objected at trial that evidence of the stolen car was irrelevant, he did not object that this evidence was inadmissible as unduly prejudicial. Therefore, appellant waived his unduly-prejudicial objection. See Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996) (holding that, when complaint on appeal does not comport with objection at trial, error is not preserved on this complaint).
With respect to appellant’s objection that evidence of the stolen car was irrelevant, we hold that such testimony was relevant to show appellant’s motivation for attempting to evade detention. Therefore, the trial court did not abuse its discretion by allowing testimony by the owner of the stolen car. See Torres, 71 S.W.3d at 760.
We overrule appellant’s third point of error.
Conclusion
We affirm the trial court’s judgment.
Tim Taft
Justice
Panel consists of Justices Taft, Keyes, and Higley.
Do not publish. See Tex. R. App. P. 47.2(b).