11th Court of Appeals
Eastland, Texas
Opinion
Marcus Germane Malbro
Appellant
Vs. No. 11-00-00204-CR -- Appeal from Harris County
State of Texas
Appellee
A jury convicted Marcus Germane Malbro of the Class B misdemeanor offense of Aevading detention.@[1] The trial court assessed punishment at confinement in the county jail for 120 days with credit for 2 days served.[2] The judgment in the clerk=s record shows that appellant was convicted of Aevading arrest.@ We modify the trial court=s judgment to show that appellant was convicted of Aevading detention.@ See TEX.R.APP.P. 43.2(b). As modified, the judgment of the trial court is affirmed.
Issues Presented
Appellant presents two issues for appellate review under TEX.R.APP.P. 38.1(e). Those issues read in full as shown:
(1) The evidence is legally insufficient to support appellant=s conviction for the offense of evading arrest.
(2) The evidence is factually insufficient to support appellant=s conviction for the offense of evading arrest.
As noted above, the conviction was for Aevading detention,@ and we will consider whether the evidence is legally and factually sufficient to support that conviction.
Background Facts
There were only three witnesses who testified in the trial of this case. All three were police officers who participated in executing a search warrant on December 30, 1999. When the State rested, the evidence was closed. After appellant=s motion for instructed verdict was overruled, the case was submitted to the jury.
The first witness was Officer M. R. Burdick of the Houston Police Department. At the time of trial, he had been working for the department for 14 years and had been assigned to the narcotics division for 6 years. Officer Burdick identified appellant as one of two men who were arrested for attempting to evade detention on the night of the Araid@ (when the search warrant was executed). Officer Burdick testified that he had eight plainclothes officers and six uniformed officers to execute the warrant, that there were six people in front of the garage at the house which was to be searched, and that two of those people took off running. Officer Burdick said that the van used by the plainclothes officers was not marked but that the uniformed patrol officers were in clearly marked Houston Police vehicles. The plainclothes officers were wearing police helmets and bulletproof vests. The vests had Awhite bold letters Police in the front and Police on the back.@ Officer Burdick testified that, when appellant and the other man ran, he yelled: AStop, police.@ Officer Burdick testified that appellant Alooked back at [him] and continued to run.@
The second witness was Officer Oscar M. Gamez of the Houston Police Department. At the time of trial, he had been employed by the department for seven years, and he was a member of the North Command Gang Task Force. Officer Gamez was one of the uniformed officers who participated in the raid, and he was the one who arrested appellant and the other man who ran. Officer Gamez identified appellant as one of the two men who ran, and he also testified that he heard someone yell Apolice@ from a block and a half away from where he was watching the perimeter. Officer Gamez testified that he took appellant back to Officer Burdick and that Officer Burdick identified appellant as one of the men who ran.
The last witness was Officer Barton W. Nabors. Officer Nabors was also in uniform, and he was working with Officer Gamez on the perimeter of the raid. Officer Nabors testified that he could see the raid unit drive up and that he could hear a A[b]unch of commotion.@ He heard: APolice, police, police. Down, down, down.@ Officer Nabors also testified that he was told on the police radio that Athey had some suspects running.@ Officer Nabors said that his partner had appellant on the ground and that Officer Nabors handcuffed him. Officer Nabors said that appellant was Asweating@ and that he Aappeared to be out of breath.@
Sufficiency of the Evidence
Appellant contends in his first issue that the evidence is Alegally insufficient@ to support his conviction. In deciding that issue, we have considered the evidence set forth above Ain the light most favorable to the verdict@ and determined that a rational fact finder could have found all of the elements of the offense Abeyond a reasonable doubt.@ Jackson v. Virginia, 443 U.S. 307, 319 (1979); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Cr.App.1999). The first issue is overruled.
Appellant argues in his other issue that the evidence is Afactually insufficient@ to support his conviction. In deciding that issue, we have considered all of the evidence and determined that the conviction is not Aso contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.@ Wilson v. State, supra at 141; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Cr.App.1996). The second issue is overruled.
This Court=s Ruling
The judgment of the trial court is modified to show that Marcus Germane Malbro was convicted of Aevading detention@; and, as modified, the judgment of conviction is affirmed.
BOB DICKENSON
SENIOR JUSTICE
November 8, 2001
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Wright, J., and
McCall, J., and Dickenson, S.J.[3]
[1]TEX. PENAL CODE ANN. ' 38.04 (Vernon Supp. 2001) provides that a person commits the offense if he Aintentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.@ (Emphasis added) Since none of the exceptions were applicable, the offense was a Class B misdemeanor.
[2]TEX. PENAL CODE ANN. ' 12.22 (Vernon 1994) authorizes a fine of not more than $2,000, confinement for not more than 180 days, or both a fine and confinement, if it is shown that the person was convicted of a Class B misdemeanor.
[3]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.