NO. 07-07-0023-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
APRIL 18, 2008
______________________________
RONNIE L. TOLER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2006-412899; HONORABLE BRADLEY S. UNDERWOOD, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Ronnie L. Toler, appeals his conviction for assault on a peace officer, twice enhanced, and sentence of 40 years incarceration in the Institutional Division of the Texas Department of Criminal Justice, contending that the evidence is legally insufficient. We affirm.
Background
On May 18, 2006, Lubbock police officers Michael Chavez and Jacob Flores were conducting surveillance in a neighborhood where Officer Chavez had previously made narcotic-related arrests . While doing surveillance, Chavez and Flores observed appellant, who had binoculars, approach the driverside window of a vehicle that was stopped in the middle of the street. When appellant saw the officers, he immediately stepped away from the vehicle and begin walking away. Officer Chavez yelled out to appellant to stop but appellant continued to walk away. As Officer Chavez continued to pursue appellant, appellant turned around and stated that he had not done anything. However, Officer Chavez, believing that appellant may have been involved in narcotic trafficking, detained appellant. Because appellant did not have any identification, Officer Chavez decided to take appellant to the police vehicle in order to be able to identify him as well as pat him down for weapons. Once Officer Chavez began the pat down, appellant became agitated and did not allow Officer Chavez to pat him down. Because of appellant’s agitated state, Officer Chavez decided to handcuff appellant, but appellant became uncooperative, pulled away, and ran away from Officer Chavez. During the ensuing chase, both officers used their tasers and batons to subdue appellant and eventually handcuffed appellant. It was during this chase that appellant, in attempting to elude the police, struck Officer Flores in the face with a closed fist. Appellant was arrested and charged with assault on a public servant, enhanced by two prior felonies.
After a jury trial, appellant was found guilty and sentenced to 40 years confinement in the Institutional Division of the Texas Department of Criminal Justice. Appellant appeals his conviction and sentence contending that the evidence is legally insufficient to uphold his conviction because the State failed to demonstrate that Officer Flores was lawfully discharging an official duty.
Standard of Review
In assessing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Ross v. State, 133 S.W.3d 618, 620 (Tex.Crim.App. 2004). In conducting a legal sufficiency review, an appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).
A police officer’s interaction with a citizen can be classified as an encounter, detention, or seizure. See Citizen v. State, 39 S.W.3d 367, 370 (Tex.App.–Houston [1st Dist.] 2001, no pet.). Encounters occur when police officers approach an individual in public to ask questions. Id. Encounters do not require any justification whatsoever on the part of an officer. Id. (citing U.S v. Mendenhall, 446 U.S. 544, 555, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)). An investigative detention is a confrontation of a citizen by law enforcement officers wherein a citizen yields to a display of authority and is temporarily detained for purposes of an investigation. Johnson v. State, 912 S.W.2d 227, 235 (Tex.Crim.App.1995). An investigative detention is permitted if it is supported by reasonable suspicion. Citizen, 39 S.W.3d at 370. See also Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Reasonable suspicion is a particularized and objective basis for suspecting the person is, has been, or soon will be engaged in criminal activity. Citizen, 39 S.W.3d at 370 (citing Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App.1991)). A determination of whether the police interaction is an encounter, detention or seizure is assessed by looking at the totality of the circumstances. See Hunter v. State, 955 S.W.2d 102, 104 (Tex.Crim.App. 1997).
Law and Analysis
Appellant complains that the officer did not have reasonable suspicion to stop him and, thus, was not performing an official duty. Hence, appellant contends that the evidence does not support the conviction because the officer was not lawfully discharging an official duty. See Tex. Penal Code Ann. § 22.01(b)(1) (Vernon Supp. 2007). However, the officers testified to surveillance of the location where appellant was arrested. According to the officers, because of the time of night, the previous narcotic-related arrests, information received by the police department of narcotic trafficking in the area, the amount of traffic at that time of night, the vehicle parked in the middle of the road, and appellant’s possession of binoculars, the officers testified that they sought to detain appellant for questioning related to drug activity. At this point, the officers had reasonable suspicion to detain appellant for investigative purposes. See Citizen, 39 S.W.3d at 370. However, even if the officers did not have reasonable suspicion for lawfully detaining appellant, the officers were still performing their official duty because a police officer is acting within the lawful discharge of his official duties so long as he is acting within his capacity as a peace officer. See Hughes v. State, 897 S.W.2d 285, 298 (Tex.Crim.App. 1994). See also Hall v. State, 158 S.W.3d 470, 475 n.16 (Tex.Crim.App. 2005). In this case, the officers were in uniform, on duty, and in a marked vehicle performing a duty, i.e. surveillance, in their capacity as peace officers. See Hughes, 897 S.W.2d at 298. If appellant felt that he was being unlawfully detained, searched or arrested, the proper forum for raising the issue is in the courtroom, not on the street. See White v. State, 601 S.W.2d 364, 366 (Tex.Crim.App. 1980). Nevertheless, at the point that appellant physically resisted the pat down and broke free of Officer Chavez’s grip, he became culpable for the offense of resisting arrest. See Cook v. State, 1 S.W.3d 718, 721 (Tex.App.–El Paso 1999, pet. ref’d). Therefore, whether or not the officers had reasonable suspicion for the detention, at the point that appellant resisted Officer Chavez’s pat down and instead decided to break free and flee, appellant had committed the criminal offense of resisting arrest. At that point, Officer Flores, in chasing and detaining appellant, was performing his official duty in apprehending a person who had committed a criminal offense in his presence. See Tex. Code Crim. Proc. Ann. art. 14.01(b) (Vernon 2005). Hence, having reviewed the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt, we conclude that the evidence is legally sufficient to uphold appellant’s conviction. We, therefore, overrule appellant’s issue.
Conclusion
For the foregoing reasons, we affirm.
Mackey K. Hancock
Justice
Do not publish.
e United States and the Texas Court of Criminal Appeals. See McDonald v. Massachusetts, 180 U.S. 311, 312, 21 S. Ct. 389, 45 L. Ed. 542 (1901); Shaw v. State, 529 S.W.2d 75, 76 (Tex.Crim.App. 1975). Both courts have held that use of a conviction that occurred before enactment of the enhancement statute does not violate the prohibition against ex post facto laws because the punishment is for the new crime only, but is heavier because the defendant is a habitual criminal. McDonald, 180 U.S. at 312; Shaw, 529 S.W.2d at 76.
Analysis
The use of a person’s prior convictions that could not have been used to elevate the driving while intoxicated charge to a felony at the time they were originally committed has been addressed by a number of the Courts of Appeal in this state. In each instance, the courts have held that the very application appellant complains of is not a violation of the prohibition against ex post facto laws. See Castillo v. State, No. 03-07-00546-CR, 2008 Tex. App. LEXIS 6225, at *2 (Tex.App.–Austin, August 14, 2008, no pet. h.) (not designated for publication); Crocker v. State, No. 12-07-00413-CR, 2008 Tex. App. LEXIS 5259, at *7 (Tex.App.–Tyler, July 16, 2008, no pet. h.); State v Pieper, 231 S.W.3d 9, 14 (Tex.App.–Houston [14th Dist.] 2007, no pet.); Romo v. State, No. 04-05-00602-CR, 2006 Tex. App. LEXIS 10403, at *6 (Tex.App.–San Antonio, December 6, 2006, no pet.). Yet, appellant urges that we should decide his case by applying the Court of Criminal Appeal’s decision in Scott v. State, 55 S.W.3d 593 (Tex.Crim.App. 2001). In Scott, the Court of Criminal Appeals reversed the conviction finding that the use of Scott’s previous successfully completed deferred adjudication to enhance his punishment for the later offense of aggravated sexual assault violated the prohibition against ex post facto laws. We decline to do so. The Scott opinion made it very clear that the prior deferred adjudication statute contained an explicit limitation on the collateral consequences of deferred adjudication. Id. at 597. The statute in question stated, “A dismissal and discharge under this section may not be deemed a conviction for purposes of disqualifications or disabilities imposed by law for conviction of an offense except that . . . .” Id. at 595 n.3. Subsequently, the statute was amended to add a provision that made a completed deferred adjudication count as a conviction for purposes of the aggravated sexual assault punishment regardless of whether the defendant had successfully completed his deferred community supervision. The Court of Criminal Appeals reasoned that because the statute in existence at the time of Scott’s conviction contained this express limitation that he was entitled to rely upon. Id. at 597. It was the removal of the statutory limitation in the former version of the deferred adjudication law that was at issue in Scott. Ultimately, the court ruled that the defendant was entitled to rely on the previous restriction. Id. at 597.
The statutory limitation referred to in Scott is not present in the former article 6701l-1. At the time appellant was previously convicted, the statute simply had a provision that the window for use of prior convictions was 10 years without the type of express limitation found by the Court of Criminal Appeals to be crucial. Accordingly, when we analyze the facts of the case before the Court under the holding in the Scott case, we come to the conclusion that Scott does not control. Rather, we have a factual pattern where the punishment is for the offense that appellant was tried for and punishment has been increased because of the recidivist nature of appellant’s conduct. McDonald, 180 U.S. at 312; Shaw, 529 S.W.2d at 76.
This leads to the conclusion that the trial court was correct in its ruling on the objection to the evidence. Therefore, the trial court could not have abused its discretion because it followed appropriate legal principles. We overrule appellant’s contention to the contrary.
Conclusion
Having overruled appellant’s issues, we affirm the judgment of the trial court.
Mackey K. Hancock
Justice
Publish.