in Re: Matter Involving the Assignment of Lottery Prize of Walter Gonzalez

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00054-CV

______________________________

 

 

IN RE: MATTER INVOLVING THE ASSIGNMENT OF

LOTTERY PRIZE OF WALTER GONZALEZ

 

 

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On Appeal from the 200th Judicial District Court

Travis County, Texas

Trial Court No. GN500013

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            This Court has been notified that a party in this appeal has filed a petition for bankruptcy. Walter Gonzalez filed a petition in bankruptcy May 6, 2004, in the United States Bankruptcy Court for the Southern District of Texas, under cause number 04-20607. Pursuant to 11 U.S.C.A. § 362 (West 2004), further action in this cause is automatically stayed, and the appeal, including any pending motions, is suspended. See Tex. R. App. P. 8.2.

            Accordingly, for administrative purposes, this case is abated and will be treated as closed. Any party may reinstate the case by promptly filing a motion with an attached certified copy of the order showing that the automatic bankruptcy stay has been lifted or terminated and specifying what further action, if any, is required from this Court. In the event of reinstatement, any period that began to run and had not expired at the time of suspension will begin anew when the proceeding is reinstated. Any document filed while the proceeding is suspended will be deemed filed on the same day, but after, the Court reinstates the appeal. Tex. R. App. P. 8.2, 8.3.

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          August 16, 2005

Date Decided:             August 17, 2005

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00113-CR

                                                ______________________________

 

 

                              HOMER DAVID HOLLOMAN, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                  

 

 

                                         On Appeal from the 5th Judicial District Court

                                                              Cass County, Texas

                                                      Trial Court No. 2009-F-00266

 

                                                                                                   

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                            Memorandum Opinion by Justice Moseley

                                                     MEMORANDUM  OPINION

 

            Homer David Holloman was convicted by a jury of evading arrest or detention with a vehicle.  On appeal, Holloman alleges that the trial court’s failure to include the offense of fleeing or attempting to elude a police officer as a lesser-included offense of evading detention by use of a motor vehicle constituted reversible error.  He also argues that the trial court’s judgment was not supported by legally sufficient evidence.^[1]  We affirm the trial court’s judgment as modified.

I.          Holloman Was Not Entitled to a Lesser-Included Offense Instruction

            In his first point of error, Holloman argues that the trial court erred in overruling his objection that fleeing or attempting to elude a police officer^[2] (“fleeing”) should have been included in the jury charge as a lesser-included offense of evading detention by use of a motor vehicle (“evading”).^[3]  The Texas Court of Criminal Appeals has spoken on this very claim in Farrakhan v. State, where the court held that the crime of fleeing was not a lesser-included offense of evading.  247 S.W.3d 720, 724 (Tex. Crim. App. 2008); see McKithan v. State, 324 S.W.3d 582, 593 (Tex. Crim. App. 2010) (“In Farrakhan, we approved of the court of appeals’s decision that the ‘fleeing’ offense was not a lesser-included offense of the charged ‘evading’ offense even though proof of the charged ‘evading’ offense may also have shown the ‘fleeing’ offense. . . . These were not lesser-included offenses of the charged offenses . . . because the State was not required to prove these offenses in establishing the charged offenses, even though the State’s evidence may have shown them.”). 

            Utilizing the reasoning employed by our sister court in Farrakhan v. State, which the Texas Court of Criminal Appeals has upheld, we likewise conclude that Holloman was not entitled to an instruction on fleeing since it is not a lesser-included offense of evading.  263 S.W.3d 124, 143–44 (Tex. App.—Houston [1st Dist.] 2006), aff’d, 247 S.W.3d 720 (Tex. Crim. App. 2008).  Holloman’s first point of error is overruled.

II.        Legally Sufficient Evidence Supported the Trial Court’s Judgment

            A.        Standard of Review

            In evaluating legal sufficiency, we review all the evidence in the light most favorable to the verdict to determine whether any rational jury could have found the essential elements of evading arrest or detention with a vehicle beyond a reasonable doubt.  Brooks, 323 S.W.3d at 912 (citing Jackson, 443 U.S. at 319); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).  Our rigorous legal sufficiency review focuses on the quality of the evidence presented.  Brooks, 323 S.W.3d at 917 (Cochran, J., concurring).  We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19). 

            Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically-correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); see also Grotti v. State, 273 S.W.3d 273, 280 (Tex. Crim. App. 2008); Vega v. State, 267 S.W.3d 912, 916 (Tex. Crim. App. 2008).  “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).  Evading arrest or detention is a state-jail felony if “the actor uses a vehicle while the actor is in flight.”  Tex. Penal Code Ann. § 38.04(b)(1)(B).  Thus, the hypothetically-correct jury charge required the State to prove that (1) Holloman; (2) intentionally or knowingly; (3) fled from a person he knew was a peace officer; (4) who was attempting to lawfully detain or arrest him. 

            B.        The Sufficient Evidence

            Uniformed officers Eric White and Shane Lawrence were travelling in a marked patrol car when they passed Holloman’s Dodge Diplomat on the road.  White noticed Holloman was not wearing his seat belt, and his license plate and registration were expired.  Lawrence testified that White “reached down and turned his lights on and as soon as he turned his lights on I told him, I said, Corporal, I believe he’s trying to run.  [Holloman] accelerated.  You could hear his motor, the acceleration in the motor as he took off.”  White testified the patrol car lights were on and sirens were blaring. 

            Holloman drove at a “high rate of speed,” leading White, Lawrence, and other officers who had joined the pursuit on a lengthy chase.  During the attempted flight, Holloman disregarded at least seven stop signs.  At one point, White testified Holloman “ran [a] stop sign . . . and went across the highway into the ditch and narrowly missed a westbound car.”  Then, Holloman took “the car off into a pasture.”  “[H]e throwed [sic] the tread off of his right front tire.”  After Holloman travelled “off-road[,] he jump[ed] out of the car and start[ed] running.”  “[H]e fled on foot up the hill and toward the wood line.”  Lawrence exited the patrol car driven by White and followed Holloman on foot.  Joining the pursuit, Officer Richard Lewis “drove [his] patrol car up the hill and got out and held him at gunpoint until Trooper Lawrence could get up there and place him in handcuffs.”^[4] 

            Viewing all the evidence in the light most favorable to the verdict, we find that a rational jury could have found, beyond a reasonable doubt, that Holloman intentionally or knowingly fled from police officers who were attempting to lawfully detain or arrest him.  Accordingly, we conclude the evidence was legally sufficient to support the trial court’s judgment.  Holloman’s last point of error is overruled.

III.       Judgment is Reformed to Reflect Holloman’s Plea of Not Guilty

            The Texas Rules of Appellate Procedure give this Court authority to reform judgments and correct typographical errors to make the record speak the truth.  Tex. R. App. P. 43.2; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992); Rhoten v. State, 299 S.W.3d 349, 356 (Tex. App.—Texarkana 2009, no pet.).  “Our authority to reform incorrect judgments is not dependent on the request of any party, nor does it turn on a question of whether a party has or has not objected in trial court; we may act sua sponte and may have a duty to do so.”  Rhoten, 299 S.W.3d at 356 (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, writ ref’d).  The judgment in this case reflects that Holloman pled guilty to the offense.  This was incorrect.  We modify the judgment to reflect Holloman’s plea of “[n]ot guilty.” 

IV.       CONCLUSION

            As modified, we affirm the judgment.

 

 

                                                                        Bailey C. Moseley

                                                                        Justice

 

Date Submitted:          March 17, 2011

Date Decided:             March 18, 2011

 

Do Not Publish

 

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^[1]Holloman also complains the evidence was factually insufficient to support his conviction.  We have previously explained that in Brooks v. State, 323 S.W.3d 893, 894–95, 912–13 (Tex. Crim. App. 2010) (Cochran, J., concurring),

 

a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review established by Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), and its progeny.  The plurality and the concurring judges agreed that the Jackson v. Virginia, 443 U.S. 307 (1979), legal sufficiency standard is the sole standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.  Brooks, 323 S.W.3d at 894–95, 912–13.  Since the Texas Court of Criminal Appeals has abolished factual sufficiency review, we need not address [appellant’s] challenge to the factual sufficiency of the evidence.  

 

Louis v. State, 329 S.W.3d 260, 267 n.5 (Tex. App.––Texarkana 2010, no pet.).

 

^[2]Tex. Transp. Code Ann. § 545.421 (Vernon Supp. 2010). 

 

^[3]Tex. Penal Code Ann. § 38.04 (Vernon Supp. 2010).

^[4]Holloman argues “that a rational jury could not convict Defendant of such offense for the reason that Officers White and Lawrence were unable to identify Appellant as the operator of the Dodge Diplomat.”  This argument is without merit.  Lawrence, White, and Lewis all testified Holloman was the driver of the vehicle, and there was testimony that no other people were in the vehicle or exited the vehicle.