IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 25, 2007
______________________________
IN THE INTEREST OF M.D., A CHILD _________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 71,326-D; HONORABLE DON EMERSON, JUDGE
_______________________________
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
ORDEROn this day came on to be considered the Motion to Strike Appellant's Pleadings and for Involuntary Dismissal and Motion to Extend Time of the Appellee, the Texas Department of Family and Protective Services, to file its brief. Having considered each motion, the Court is of the opinion that the motion to strike should be denied and the motion to extend should be granted.
By its motion to strike, Appellee requests this Court to dismiss this appeal, as a matter of law, because Appellant has failed to preserve any error by failing to timely file a statement of points pursuant to § 263.405 of the Texas Family Code. See In the Interest of R.C., No. 07-06-0444-CV 2007 WL 1219046 (Tex.App.-Amarillo April 25, 2007, no pet.); Coey v. Tex. Dep't. of Family and Protective Services, No. 03-05-0679-CV 2006 WL 1358490, at *2 (Tex.App.-Austin May 19, 2006, no pet.) (not designated for publication). An appeal is subject to involuntary dismissal pursuant to Rule 42.3 of the Texas Rules of Appellate Procedure for three specific reasons: (a) want of jurisdiction; (b) want of prosecution; and (c) because the appellant has failed to comply with a requirement of the Texas Rules of Appellate Procedure, a court order, or a notice from the clerk requiring a response or other action within a specified time. Because Appellee's motion to strike Appellant's pleadings and involuntarily dismiss this appeal does not raise a ground upon which this appeal can be summarily dismissed, the motion is denied.
As noted by the motion to extend time to file Appellee's brief, Appellant, Timothy Harrison Dustman, has already filed his brief and Appellant, Natasha Carpenter, has failed to file her brief. Under these circumstances, and in the context of an accelerated appeal, the Court finds that good cause does exists to extend the deadline for the filing of Appellee's brief by 15 days. Therefore, Appellee's brief in response to Appellant, Timothy Harrison Dustman's brief is now due on August 9, 2007.
It is so ordered.
Per Curiam
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NO. 07-10-00206-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JANUARY 28, 2011
RUDY PENA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE 100TH DISTRICT COURT OF CARSON COUNTY;
NO. 3156; HONORABLE DAN MIKE BIRD, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Rudy Pena, appeals from the trial courts order adjudicating him guilty of possessing certain chemicals with the intent to manufacture a controlled substance,[1] a second-degree felony, and imposing a twenty-year sentence. We will affirm.
Factual and Procedural History
In December 2009 and pursuant to a plea bargain, appellant pleaded guilty to the offense of possessing certain chemicals with the intent to manufacture a controlled substance and was placed on deferred adjudication community supervision for ten years, fined $5,000.00, and ordered to pay $280.00 in restitution. As one of the conditions of his community supervision, appellant agreed to commit no offense against the laws of the state, another state, or the United States.
Two months later, the State moved to adjudicate his guilt, alleging that appellant violated the terms of his community supervision by committing an offense against the laws of the state. The State alleged that appellant, while using a vehicle in Hutchinson County, intentionally fled from Aaron K. McWilliams, a person appellant knew was a peace officer who was attempting to lawfully arrest or detain appellant.[2]
After hearing evidence, the trial court found this allegation to be true and adjudicated appellant guilty of the second-degree felony offense of possessing certain chemicals with the intent to manufacture a controlled substance. The trial court then imposed a twenty-year sentence.
Appellant timely appealed. He brings to the Court four points of error challenging the sufficiency of the evidence to support the trial courts findings that appellant knew that McWilliams was a peace officer and that appellant knew McWilliams was attempting to lawfully arrest or detain him. However, because appellant challenges the trial courts order of adjudication, we will read these points of error generally as contending that the trial court abused its discretion by adjudicating appellants guilt. See Cochran v. State, 78 S.W.3d 20, 27 (Tex.App.Tyler 2002, no pet.). We will affirm.
Standard of Review
On violation of a condition of community supervision imposed under an order of deferred adjudication, the defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (West Supp. 2010). This determination is reviewable in the same manner used to determine whether sufficient evidence supported the trial courts decision to revoke community supervision. Id.; Antwine v. State, 268 S.W.3d 634, 636 (Tex.App.Eastland 2008, pet. refd). In an adjudication hearing, the State must prove by a preponderance of the evidence that a defendant violated the terms of his community supervision. Rickels v. State, 202 S.W.3d 759, 76364 (Tex.Crim.App. 2006); Antwine, 268 S.W.3d at 636. A preponderance of the evidence means that greater weight of the credible evidence which would create a reasonable belief that the defendant has violated a condition of his probation. Rickels, 202 S.W.3d at 76364.
Given the unique nature of a revocation hearing and the trial courts broad discretion in the proceedings, the general standards for reviewing sufficiency of the evidence do not apply. Pierce v. State, 113 S.W.3d 431, 436 (Tex.App.Texarkana 2003, pet. refd). Instead, we review the trial courts decision regarding community supervision revocation for an abuse of discretion and examine the evidence in a light most favorable to the trial courts order. Garrett v. State, 619 S.W.2d 172, 174 (Tex.Crim.App. 1981). When the standard of review is abuse of discretion, the record must simply contain some evidence to support the trial courts decision. Herald v. State, 67 S.W.3d 292, 293 (Tex.App.Amarillo 2001, no pet.). The trial judge is the trier of fact and the arbiter of the credibility of the testimony during a hearing on a motion to adjudicate. See Garrett, 619 S.W.2d at 174.
Analysis
Appellants four points of error challenge the sufficiency of the evidence. More specifically, he challenges the sufficiency of the evidence to show that, while he was in Hutchinson County,[3] he knew (1) that McWilliams was a peace officer and (2) that McWilliams was attempting to lawfully arrest or detain him.
For a defendant to be found guilty of evading arrest or detention, it is essential that a defendant know the peace officer is attempting to arrest him. Jackson v. State, 718 S.W.2d 724, 726 (Tex.Crim.App. 1986). See Redwine v. State, 305 S.W.3d 360, 362 (Tex.App.Houston [14th Dist.] 2010, pet refd) (noting that a person commits the offense of evading arrest or detention only if the person knows a police officer is attempting to arrest him but nevertheless refuses to yield to a police show of authority). Appellant contends that he could not have known that McWilliams was a peace officer attempting to arrest or detain him. The record shows the contrary.
Hutchinson County Sheriffs Department Captain McWilliams testified that he was on routine patrol in a residential area of Hutchinson County with Deputy Justin Farmer when, between midnight and 1:00 a.m., they observed appellant driving a vehicle at a high rate of speed and fail to use a turn signal at the required distance from his turn. McWilliams decided to follow appellants vehicle. As the officers followed, appellant continued to commit traffic violations by driving at an excessive speed and failing to properly signal his turns. After McWilliams had followed appellant for some time, appellant made a U-turn and drove back toward and past the police vehicle. Having witnessed a number of traffic violations and having developed the suspicion that appellant was trying to get away from the officers, McWilliams turned around to follow appellant and activated his emergency lights and siren in an attempt to conduct a traffic stop on the vehicle.
After McWilliams turned around, activated his emergency lights and siren, and began to follow appellant, McWilliams witnessed appellant commit several more traffic violations. Appellant failed to yield, failed to stop at a four-way stop sign, drove recklessly, drove at an excessive speed, and failed to properly signal his turns. McWilliams testified that appellant forced another vehicle off the road into the bar ditch when appellant passed the vehicle on an S-curve. After a number of turns, appellant turned onto a caliche road which, according to McWilliams, caused a good deal of dust to be kicked up in the air and reduced visibility during the pursuit. McWilliams followed approximately thirty to fifty yards behind appellant.
As McWilliams and Farmer pursued appellant down the caliche road, the two vehicles passed into Carson County. Appellant drove over the top of a hill. Appellant then placed his car in reverse and drove backward toward the pursuing police vehicle. As McWilliams drove to the top of the hill, appellants car collided with the police vehicle. McWilliams testified that, because of the dust from the road and appellants position over the hill, he was unable to see appellants vehicle coming in his direction and was, therefore, unable to take evasive action. The collision ended the two- to three-minute pursuit, and appellant, the vehicles only occupant, was removed from the vehicle in which he had been pinned. Appellant asked McWilliams what had happened and then made some statement to indicate he believed that he had been chasing the officers. He then asked why the officers were chasing him. The officers arrested him for evading arrest or detention. Farmer testified to a similar account of the incident.
So, with respect to the evidence showing that appellant knew or should have known that McWilliams was a peace officer attempting to lawfully arrest or detain him, our review of the record reveals the following. Though he did so prior to the activation of lights and siren, appellant performed a U-turn to travel back in the direction of the police vehicle, a pickup that was clearly marked with reflective decals as a Hutchinson County Sheriffs Department vehicle. The pursuit began moments thereafter, in Hutchinson County, when McWilliams activated his lights and siren. Further, McWilliams testified that appellant made evasive maneuvers after emergency lights and siren were activated and that he drove recklessly and at an excessive speed. McWilliams testified that the two vehicles traveled about two miles in Hutchinson County, and then some distance further into Carson County, as the police vehicles lights and siren were activated. During the portion of the pursuit on the caliche road, McWilliams followed only thirty to fifty yards behind appellant. The pursuit lasted between two and three minutes before appellant drove his car in reverse to collide with the police vehicle. Farmer confirmed that the lights and siren were activated during the entire pursuit. See Rogers v. State, 832 S.W.2d 442, 444 (Tex.App.Austin 1992, no pet.) (concluding that evidence sufficient, though no direct evidence of knowledge, when appellant sped away from a marked police vehicle with activated lights and siren).
Viewing the evidence in a light most favorable to the trial courts order, we conclude the trial court did not abuse its discretion in finding by a preponderance of the evidence that appellant intentionally fled from McWilliams, a person appellant knew was a peace officer attempting to lawfully arrest or detain him. Such conduct, constituting a criminal offense, violated the terms and conditions of appellants deferred adjudication community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)(1).
Conclusion
We overrule appellants points of error and affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Do not publish.
[1] See Tex. Health & Safety Code Ann. § 481.124 (West 2010).
[2] Evading arrest or detention is an offense against the laws of the state. See Tex. Penal Code Ann. § 38.04 (West Supp. 2010).
[3] To the extent that appellants contentions were designed to raise a venue-like argument, we reject his contentions. Ordinarily, the State bears the burden to prove, by a preponderance of the evidence, that venue is proper in the county in which the case is tried. Tex. Code Crim. Proc. Ann. art. 13.17 (West 2005). An adjudication proceeding does not fall within this general rule. See Chambers v. State, 700 S.W.2d 597, 598-99 (Tex.Crim.App. 1985), overruled sub silentio on other grounds by Ex parte Tarver, 725 S.W.2d 195, 197 (Tex.Crim.App. 1986) (observing that [r]evocation proceedings for deferred adjudication probation and regular probation are essentially administrative proceedings and do not involve the same panoply of rights and considerations applicable to a formal criminal trial). Here, only the court in which appellant was tried on the original charge may revoke the community supervision unless jurisdiction over the case has been transferred to another court. See Tex. Code Crim. Proc. Ann. art. 42.12, § 10(a). Again, the State was required to show that appellant committed an offense against the laws of the state, here, evading arrest or detention. The commission of this offense does not require that the action take place in Hutchinson County. Venue is not a criminative fact and, thus, not an essential element of the offense. Boyle v. State, 820 S.W.2d 122, 140 (Tex.Crim.App. 1989); Thierry v. State, 288 S.W.3d 80, 90 (Tex.App.Houston [1st Dist.] 2009, pet. refd). So, the location of the offense here is not relevant in terms of venue nor in terms of elements of the offense. However, even assuming, arguendo, that the State had to prove that appellant knew or should have known, in Hutchinson County, that McWilliams was a peace officer attempting to lawfully arrest or detain him, our review of the record, as outlined, infra, reveals that it did so prove.