Opinion issued April 7, 2010
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In The
Court of Appeals
For The
First District of Texas
NO. 01-08-00188-CR
CARLOS CASTILLO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 1104753
DISSENTING OPINION
The majority’s opinion gives new meaning to the phrase “arresting gaze.” To hold that a glance from an officer is sufficient to transform an investigative detention into a custodial arrest and constitute a “completed” arrest is in conflict with decisions from our sister courts and the Court of Criminal Appeals on this issue. I therefore dissent.
In the present case, it was the appellant who voluntarily agreed to accompany the officer as the officer investigated further and voluntarily accepted a ride in the back seat of the police vehicle. The officer himself testified that appellant was neither under arrest nor in custody. As egress from the rear seat of a police vehicle cannot be effected absent the rear door being opened from outside the vehicle, appellant was restrained, but a reasonable person would not have understood that to have been converted into “a restraint to the degree associated with a formal arrest” by a mere glance—no matter how piercing—from an officer. Rather, a reasonable person would have believed, as apparently did appellant, that he was about to be arrested.
Before appellant fled, the officer took no action to change the nature of the detention from an investigative detention to custodial arrest other than looking at appellant. Surely something more must transpire than the simple exchange of ambiguous glances or gestures before an investigative detention transforms into a “completed” formal arrest.
A person cannot commit the offense of escape unless there has been a completed arrest; if there is no completed arrest, a person is not guilty of escape, although he may be guilty of evading or resisting arrest.[1] See Tex. Penal Code Ann. § 38.06(a) (Vernon Supp. 2009) (“A person commits an offense if he escapes from custody when he is . . . under arrest for . . . an offense.”); Sample v. State, 292 S.W.3d 135, 137, n.1 (Tex. App. Houston [14th Dist.] 2008, pet. ref’d) (citing Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim. App. 2000)) (emphasis added). In the present case, while appellant was certainly restrained at the time that the marijuana was discovered, the officer never actually completed an arrest[2] of appellant.
Under the second prong of Medford, an arrest is complete only when “a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.” Medford, 13 S.W.3d at 773. The “reasonable person” standard must be applied “in the context of an arrest” in order “to prevent a conviction based upon some less intrusive type of seizure,” such as an investigative detention. Id. The only occurrences between the discovery of the marijuana and appellant’s fleeing the vehicle that could have “completed” the arrest were an exchange of glances and appellant’s subsequent “slumping” in his seat. While I agree that appellant in this case undoubtedly recognized that his crime had been discovered and that he “indicated by his body language his awareness that the officers had the information necessary to arrest him”,[3] I disagree with the majority’s conclusion[4] that appellant’s “slump” proved that appellant “understood the situation to constitute a restraint of freedom of movement to the degree which the law associates with formal arrest.”[5]
In Sample, the defendant was also initially in the back seat of a patrol car under an investigative detention. But, unlike here, the officer in Sample took a specific and unambiguous action to convert that investigative detention into an arrest by telling the defendant that he was under arrest. See Sample, 292 S.W.3d at 137. The Fourteenth Court of Appeals specifically relied on the officer’s statement to the defendant that he was under arrest to convert an investigatory detention confinement into a completed arrest, stating that
Although it is clear that appellant was first stopped by the officers and placed in the back seat of their patrol car under an investigative detention, the jury could have concluded that appellant’s arrest was complete before he fled from Officer Carter.
Appellant was confined in the patrol car when Officer Carter informed him that he was under arrest. The jury could rationally conclude appellant’s arrest was legally complete at this moment.
Id. (emphasis added).
Is a reasonable person who voluntarily agreed to ride in the backseat of a police vehicle to believe that he has now been placed under formal arrest by virtue of a single glance? Under the circumstances of this case, a reasonable person would only have understood that he was going to be arrested.
I am not persuaded that a rational trier of fact could have found that appellant was under arrest at the time he fled the scene, based upon little more than a passing glance or indeterminate gesture. For this reason, I respectfully dissent. I would find the evidence legally insufficient to support the offense of escape, grant appellant’s first issue, reverse appellant’s conviction, and enter a judgment of acquittal. Appellant fled because he believed that he was about to be arrested. He committed the offense of evading arrest, not escape.
Jim Sharp
Justice
Panel consists of Chief Justice Radack and Justices Sharp and Taft.[6]
Publish. Tex. R. App. P. 47.2(b).
Justice Sharp, dissenting.
[1] As noted by the court of criminal appeals,
. . . a logical reading of the escape statute and those statutes in pari materia (see, e.g., § 38.04 Tex. Pen. Code, Evading Arrest or Detention) indicates the legislature envisioned that an arrest be complete before an individual can be charged with escape… If one could be prosecuted for escape without a completed arrest, it would negate the effectiveness of an evading arrest or detention charge.”
Medford v. State, 13 S.W.3d 769, 773 (Tex. Crim. App. 2000).
[2] It is critical here to distinguish between “custody” and “arrest.” We may not use such terms interchangeably. See Warner v. State, 257 S.W.3d 243, 247 (Tex. Crim. App. 2008). A person may be in custody, but not under arrest. Id.
[3] See Majority Opinion, p. 11(emphasis added).
[4] Id.
[5] Our sister courts have also considered whether detentions were converted into arrests and held that simply because a defendant has acquiesced to a detention, that did not complete an arrest. In In re B.J.J., the Austin Court of Appeals held that, even though a juvenile had been taken into (an unrestrained) detention—to which the juvenile had submitted—“the detention was not a completed arrest for the purpose of the escape statute, and a reasonable person in [his] position would not have understood himself to be restrained to the degree the law associates with a formal arrest.” No. 03-07-00633-CV, 2008 Tex. App. LEXIS 5212, at *7–8 (Tex. App.—Austin July 9, 2008, no pet.). See also Diggs v. State, No. 10-07-00102-CR, 2008 WL 3112408 (Tex. App.—Waco, Aug. 6, 2008) (reversing conviction for escape, holding that defendant was merely in process of being arrested when he fled, even though he briefly submitted to officer’s authority).
6 Justice Tim Taft, who retired from the First Court of Appeals effective June 1, 2009, continues to sit by assignment for the disposition of this case, which was submitted on May 26, 2009.