NO. 12-06-00122-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
LEON BRADFORD, JR., § APPEAL FROM THE 241ST
APPELLANT
V. § JUDICIAL DISTRICT COURT OF
THE STATE OF TEXAS,
APPELLEE § SMITH COUNTY, TEXAS
MEMORANDUM OPINION
Leon Bradford, Jr. appeals his conviction for evading arrest, for which he was sentenced to imprisonment for ten years. Appellant raises four issues on appeal. We affirm.
Background
Appellant was charged by indictment for evading arrest and pleaded “not guilty.” The indictment also contained two enhancement paragraphs relating to prior convictions of forgery and burglary of a building. The matter proceeded to jury trial.
At the commencement of Appellant’s trial, the trial court considered Appellant’s motion in limine, which concerned, among other things, Appellant’s arrest on the day in question for driving while intoxicated and fraudulent use of identifying information. After a brief hearing, the trial court overruled Appellant’s motion.
Officer T.J. Goodpasture testified as the State’s first witness. Goodpasture testified that he was driving in his patrol vehicle in Tyler, Texas on October 30, 2005. Goodpasture further stated that he was wearing his uniform. Goodpasture stated that at approximately 4:45 p.m., he saw a white Ford Ranger pickup truck come over a hill. Goodpasture further stated that as he came into the truck driver’s view, the driver slammed on his brakes bringing the vehicle to a sudden stop and causing smoke to erupt from about the vehicle. The truck then proceeded forward. As the truck passed Goodpasture’s vehicle, Goodpasture observed the driver1 was not wearing his seatbelt.
Goodpasture testified that upon seeing this, he turned his vehicle around and attempted to initiate a traffic stop by activating his overhead lights. However, Appellant did not stop his vehicle. Rather, according to Goodpasture’s testimony, Appellant “sped up, squealed around a corner . . . without stopping,2 [and] accelerated to a stop sign at Moore and Kennedy.” Goodpasture later testified that he had no doubt that Appellant was intentionally fleeing from him in his vehicle. Goodpasture stated that he then activated his siren, and the vehicle, which was attempting to turn at the stop sign, drove up the road a short distance before stopping. Goodpasture testified that he exited his patrol vehicle and made contact with Appellant, who identified himself as Al Shawn Bradford. Goodpasture stated that Appellant continuously gave him the name Al Bradford, but that he later determined that neither the name nor the date of birth Appellant gave him was correct. Goodpasture also stated that based on his interaction with Appellant, which included Appellant’s performance of some field sobriety tests, he believed without any doubt that Appellant was intoxicated. During Goodpasture’s testimony, the State introduced two video tapes containing video shot from the dashboard camera in Goodpasture’s patrol vehicle. This video evidence was published to the jury.
Tyler Police Department Officer Donnie Malmstrom testified next on the State’s behalf. Malmstrom stated that he took Appellant’s fingerprints that morning. The card containing Appellant’s fingerprints was admitted into evidence without objection. Malmstrom further testified concerning two other exhibits indicating that Appellant had been previously convicted twice of driving while intoxicated (“DWI”). Malmstrom testified that the fingerprints he took from Appellant that morning matched the fingerprints on the exhibits indicating prior DWI convictions. Following Malmstrom’s testimony, the State and Appellant rested.
The jury found Appellant guilty of evading arrest, and the matter proceeded to a trial on punishment. Appellant pleaded “not true” to two enhancement paragraphs in the indictment—one alleging a prior felony conviction of forgery and the other alleging a prior felony conviction of burglary of a building. Malmstrom again testified on the State’s behalf. Malmstrom compared the fingerprints he took from Appellant to multiple certified judgments and sentences, two of which corresponded to the enhancement paragraphs in the indictment. Following Malmstrom’s testimony, the State and Appellant rested. Ultimately, the jury assessed Appellant’s punishment at imprisonment for ten years. The trial court sentenced Appellant accordingly, and this appeal followed.
Evidentiary Sufficiency
In his first issue, Appellant argues that the evidence was legally insufficient to support the trial court’s judgment. In his second issue, Appellant argues that the evidence was factually insufficient to support the trial court’s judgment.
Legal Sufficiency
Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury’s verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186. A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.” Id.
To support a conviction for evading arrest in a vehicle, the evidence must support that the accused used a vehicle to intentionally flee from a person he knew was a peace officer attempting to lawfully arrest or detain him. See Tex. Pen. Code Ann. § 38.04 (Vernon 2003). In the case at hand, Appellant argues that the evidence is insufficient to support that he intentionally fled. However, the record indicates that Goodpasture was in uniform and driving a marked patrol car. Goodpasture testified that he attempted to initiate a traffic stop of Appellant’s truck by activating his overhead lights. Yet, Appellant did not stop his vehicle. Rather, according to Goodpasture’s testimony, Appellant “sped up, squealed around a corner . . . without stopping, [and] accelerated to a stop sign at Moore and Kennedy.” Goodpasture later testified that he had no doubt that Appellant was intentionally fleeing from him in his vehicle. The dashboard camera video footage admitted into evidence supports Goodpasture’s testimony.
Examining the aforementioned evidence in the light most favorable to the jury’s verdict, we conclude that the jury could have reasonably determined beyond a reasonable doubt that Appellant used a vehicle to intentionally flee from Goodpasture, a person he knew was a peace officer attempting to lawfully arrest or detain him. See, e.g., Rogers v. State, 832 S.W.2d 442, 444 (Tex. App.–Austin 1992, no writ).3 Therefore, we hold that the evidence was legally sufficient to support the jury’s verdict. Appellant’s first issue is overruled.
Factual Sufficiency
Turning to Appellant’s contention that the evidence is not factually sufficient to support the jury’s verdict, we must first assume that the evidence is legally sufficient under the Jackson standard. See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997). Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the
weight and credibility of witness testimony. Santellan, 939 S.W.2d at 164. Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d). Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (Evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury’s verdict.).
We have reviewed the record in its entirety. As set forth above, the video tape evidence supports Goodpasture’s account of the events on the day in question. While the record indicates that Appellant ultimately stopped his vehicle, such evidence does not contradict the evidence supporting that he did, for a period of time, intentionally flee from Goodpasture. See, e.g., Goodson, 2006 WL 1888722, at *5. We iterate that our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive. See Van Zandt, 932 S.W.2d at 96. Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust. Therefore, we hold that the evidence is factually sufficient to support the trial court’s judgment. Appellant’s second issue is overruled.
Admissibility of 404(b) Evidence
In his third issue, Appellant argues that the trial court erred in admitting evidence that he committed the offense of driving while intoxicated while he was evading arrest. Texas Rule of Appellate Procedure 33 governs the preservation of appellate complaints. To preserve error for appellate review under Rule 33.1(a), the record must show that (1) the complaining party made a timely and specific request, objection, or motion, and (2) the trial judge either ruled on the request, objection, or motion expressly or implicitly, or refused to rule and the complaining party objected to that refusal. See Tex. R. App. P. 33.1(a); Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003).
In the case at hand, Appellant filed a motion in limine relating to extraneous offenses. Before the presentation of evidence, outside the jury’s presence, the trial court considered Appellant’s motion in limine and denied it, stating that the evidence was admissible. Moreover, prior to the court’s ruling, Appellant’s counsel stated,
I just want to make sure that, you know, by – we’re not conceding that he’s guilty to any of those things. I understand that they – that they were part of what happened that day and that the State would present some evidence of that. That’s all that I have to say on that motion.
At trial, the State repeatedly made reference to, either in argument or through its witnesses, the fact that Appellant was driving while intoxicated while he was fleeing from Goodpasture. Appellant failed to object to these statements.
A preliminary ruling on a motion in limine does not preserve error in the admission or exclusion of evidence. See Geuder, 115 S.W.3d at 13. By his failure to object when the evidence was first raised by the State during its opening argument, Appellant waived the error, if any. See Tex. R. App. P. 33.1(a). Appellant’s third issue is overruled.4
Sufficiency of 404(b) Evidence
In his fourth issue, Appellant argues that there was neither legally nor factually sufficient evidence that he committed the offense of fraudulent use of identifying information and, therefore, the trial court erred in permitting the jury to consider such evidence.
Presumably, Appellant relies on cases that describe the standard of review appropriate in determining if the evidence is legally and factually sufficient to support a conviction. See, e.g., Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clewis, 922 S.W.2d at 129. As set forth above, Appellant failed to timely object to the admission of such evidence.5 See Tex. R. App. P. 33.1(a). Furthermore, the court, in its charge, properly instructed the jury as follows:
You are instructed that any statements of counsel, made during the course of the trial or during argument, not supported by the evidence, or statements of law made by counsel not in harmony with the law as stated to you by the Court in these instructions, are to be wholly disregarded.
....
You are instructed that if there is any testimony before you in this case regarding the defendant’s having committed offenses other than the offense alleged against him in the indictment in this case, you cannot consider said testimony for any purpose unless you find and believe beyond a reasonable doubt that the defendant committed such other offenses, if any were committed and even then you may only consider the same in determining the motive, intent, plan, scheme, knowledge, or identity of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case and for no other purposes.
Appellant has not cited, nor are we aware of any authority, supporting that there exists a comparable sufficiency standard by which we may review evidence admitted pursuant to Rule 404(b). The State has no burden to prove the elements of such prior conduct nor is the trial court required to instruct the jury on the elements of such conduct. Cf. Malpica v. State, 108 S.W.3d 374, 378 (Tex. App.–Tyler 2003, no pet.) (The State has no burden to prove particular elements of extraneous offenses at punishment, and the jury need not be instructed on the elements of the extraneous offenses.). Therefore, we hold that the only review possible of the sufficiency of the evidence admitted pursuant to Rule 404(b) is a review of the trial court’s threshold ruling on admissibility. Id. at 379. Appellant’s fourth issue is overruled.
Disposition
Having overruled Appellant’s issues one, two, three, and four, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered March 30, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(DO NOT PUBLISH)
1 The driver of the Ford Ranger pickup truck was later determined to be Appellant.
2 Goodpasture testified that this corner was a “T-intersection.” Goodpasture further testified that although there was no stop sign at this intersection, drivers are still required to stop at a T-intersection to make sure there is no approaching traffic.
3 In Rogers, the evidence indicated that the appellant, in his flight, drove at approximately ninety-four miles per hour. Id. While here, the video tape evidence indicates that Appellant was traveling at a high rate of speed considering the road on which he was traveling, we note that speed is not an essential element of the offense of evading arrest. See Goodson v. State, No. 06-05-00107-CR, 2006 WL 1888722, at *5 (Tex. App.–Texarkana July 11, 2006, no pet.) (mem op., not designated for publication). While we often associate the term “flee’ with speed, Appellant’s actions during the pursuit demonstrate his reluctance to stop or submit to Goodpasture’s authority, and to get away, albeit temporarily. See id.
4 Assuming arguendo that the trial court’s ruling that the evidence was admissible might be considered a preliminary ruling pursuant to Texas Rule of Evidence 103, we note that Appellant conceded to the trial court prior to its ruling that the evidence of Appellant’s intoxication was contextual. See Tex. R. Evid. 404(b); see also Rogers v. State, 853 S.W.2d 29, 33 (Tex. Crim. App. 1993). Further, Appellant did not argue to the trial court nor does he argue on appeal that the evidence was more prejudicial than probative. See Tex. R. Evid. 403.
5 Appellant does not challenge in his fourth issue the trial court’s decision to admit such evidence.