Affirmed and Memorandum Opinion filed February 19, 2008.
In The
Fourteenth Court of Appeals
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NO. 14-06-00544-CR
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STEVEN ALLEN NELSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 41,770
M E M O R A N D U M O P I N I O N
Appellant, Steven Allen Nelson, appeals his conviction for evading arrest in a motor vehicle. Tex. Penal Code Ann. ' 38.04 (Vernon 2003). After pleading not guilty, appellant was found guilty as charged by a jury. The trial court sentenced appellant to confinement for 180 days in the state jail, probated for two years. In three issues, appellant argues the evidence is legally and factually insufficient and that the trial court erred when it denied his motion to quash his indictment. We affirm.
Factual and Procedural Background
On February 16, 2005, Officer Caleb Rule of the Missouri City Police Department was on traffic patrol in his marked police cruiser. According to Officer Rule, the police cruiser was equipped with emergency lights in the front grill and with a video recording unit. This video recorder is designed to come on immediately when the cruiser=s emergency lights are activated, but Officer Rule testified this particular recorder had problems and would frequently take one or more seconds after the lights had been activated to start recording. Officer Rule also testified that the camera is turned slightly to the right so that everything an officer can see during a chase is not necessarily visible on the videotape.[1] On February 16, Officer Rule, who had been with the Missouri City Police only two months, was accompanied by his field training officer, Officer Sal Luera.
Officer Rule was stopped at the traffic light on Cartwright Road preparing to turn onto Murphy Road when he first noticed appellant=s vehicle. As appellant was turning left from Murphy Road onto Cartwright Road, Officer Rule noticed that the vehicle registration and inspection on appellant=s vehicle were both expired. Officer Rule testified that after he made eye contact with appellant, he turned his police cruiser around to initiate a traffic stop of appellant. In order to make his turn safely, Officer Rule was not able to activate his emergency lights until after he had completed the turn and was following appellant on Cartwright Road. Officer Rule testified that despite having made eye contact with him, appellant did not stop but instead accelerated his vehicle.
According to Officer Rule, appellant then ran through a red light when he turned left onto Quail Village.[2] At that point, Officer Rule activated his siren and continued to pursue appellant through the intersection. Appellant then turned right onto Barcelona Court, which was actually a dead-end driveway for a group of town homes, with Officer Rule pulling in behind appellant. Officer Rule testified that he was never directly behind appellant=s vehicle until this point in the pursuit. Once he stopped his vehicle, appellant immediately got out of his car and began to run through the town home complex as Officer Rule yelled for him to stop and pursued him on foot. Officer Rule lost sight of appellant and called for assistance from other officers. Other Missouri City police officers eventually located appellant a few blocks away from his vehicle, hiding behind a dumpster in a restaurant parking lot. Officer Rule identified appellant as the person he had seen driving the vehicle. The police also found the keys to the abandoned vehicle on appellant. The police also learned that the vehicle was registered to appellant and that appellant had multiple outstanding traffic warrants totaling approximately $2,500 in fines at the time he was arrested. Officer Rule testified that the entire chase, from the moment he initiated his pursuit until appellant was captured behind the dumpster, took approximately two minutes.
The video tape from Officer Rule=s police cruiser was entered into evidence. However, the video unit and the tape did not start until Officer Rule was driving through the intersection of Cartwright and Quail Village or slightly after. In addition, the first time any part of appellant=s vehicle is visible on the videotape is after Officer Rule turns onto Barcelona Court moments before appellant stopped his vehicle at the dead-end. The videotape does show appellant exiting his vehicle and running away as Officer Rule is pulling in behind appellant=s vehicle.
Officer Luera also testified at appellant=s trial. Officer Luera confirmed that he was riding with Officer Rule on February 16, 2005. According to Officer Luera, after Officer Rule turned around and was pulling in behind appellant=s vehicle, appellant took off at a high rate of speed. Officer Luera testified that Officer Rule turned on his emergency lights at that point. Officer Luera also testified they activated their siren once appellant had run the red light while turning onto Quail Village. Officer Luera also testified that once appellant had stopped his vehicle at the dead-end, he exited his vehicle and took off running.
Robert Sullivan resided in one of the town homes where appellant abandoned his vehicle and fled from the police on foot. Mr. Sullivan was working in his garage on February 16, 2005 when he observed appellant=s vehicle come roaring up Barcelona Court faster than he had ever before seen anyone drive on Barcelona Court. Mr. Sullivan also testified that he saw a police cruiser right behind appellant=s vehicle. While Mr. Sullivan said he could easily tell it was a Missouri City Police cruiser based on its markings, he could not tell if its emergency lights were on and he did not remember a siren.
The final witness for the prosecution was Officer Oswaldo Flores. Officer Flores testified he responded to a call for assistance from Officer Luera, who reported they were pursuing a fleeing suspect. Officer Flores eventually located appellant hiding behind the restaurant dumpster.
Appellant testified in his own defense. Appellant denied he was aware the police were behind him until he had stopped his vehicle on Barcelona Court. Appellant denied seeing the police cruiser or hearing a siren. Appellant admitted that once he saw the police pulling up behind him, he panicked because of his outstanding warrants and ran from the officers.
Discussion
A. Is the Evidence Legally Sufficient to Support Appellant=s Conviction?
In his first issue, appellant contends the evidence supporting his conviction is legally insufficient to establish that he intentionally fled from the police because the evidence was insufficient to establish that he was aware the police were pursuing him until after he had already stopped his vehicle at the end of the townhouse driveway. We disagree.
1. The Standard of Review
In a legal sufficiency review, we view all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The jury, as the sole judge of the credibility of the witnesses, is free to believe or disbelieve all or part of a witness=s testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses to, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). The jury can infer intent from other facts in the record. See Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999). Intent may be inferred from the words and the conduct of the accused and the surrounding circumstances. Guevara v. State, 152 S.W.3d 45, 49B50 (Tex. Crim. App. 2004). Reconciliation of conflicts in the evidence is within the jury=s discretion, and such conflicts alone will not call for reversal if there is enough credible evidence to support a conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986). An appellate court may not re-evaluate the weight and credibility of the evidence produced at trial and in so doing substitute its judgment for that of the fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000). Through a legal sufficiency review, we ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993); Harris v. State, 164 S.W.3d 775, 784 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).
2. The Evidence is Legally Sufficient
In order to prove appellant evaded detention with a motor vehicle, the State had to prove appellant intentionally fled from Officers Rule and Luera while using a motor vehicle. Tex. Penal Code Ann. ' 38.04(a), (b)(1) (Vernon 2003).[3] In addition, section 38.04(b)(1), which elevates the punishment level for the offense defined in Section 38.04(a) when a motor vehicle is used, requires only that a motor vehicle be used at some time during the commission of the offense. Hobbs v. State, 175 S.W.3d 777, 779 (Tex. Crim. App. 2005). In this case, the jury heard the pursuing officers testify that they observed appellant=s vehicle traveling without a valid registration and inspection. Officer Rule testified that after making eye contact with appellant, appellant accelerated his speed away from the police cruiser. The jury also heard Officer Rule testify that he turned on his emergency lights after completing the turn to pursue appellant and activated his siren after appellant ran through a red light. While the videotape does not show appellant=s vehicle until the very end of the pursuit, the jury heard both officers explain there was a short delay between activation of the cruiser=s emergency lights and the commencement of recording. They also heard Officer Rule=s testimony that the videotape does not show all that he was able to observe while pursuing appellant. The jury also heard Mr. Sullivan testify that he saw appellant drive down the town home driveway faster than he had ever seen anyone travel that way before and that the police cruiser was following close behind appellant. In addition, the jury heard the officers testify that appellant immediately exited his vehicle and fled on foot from the police as they pulled up directly behind his vehicle. The videotape also showed appellant jumping out of his vehicle and running as the police cruiser pulled up. Finally, the jury heard Officer Flores testify that he found appellant hiding behind a restaurant dumpster a short distance from his abandoned vehicle. When viewed in a light most favorable to the verdict, a rational trier of fact could have concluded from this evidence that appellant, using a motor vehicle, intentionally fled from a person he knew was a peace officer attempting lawfully to detain or arrest him. Therefore, the evidence is legally sufficient to support appellant=s conviction. We overrule appellant=s first issue.
B. Is the Evidence Factually Sufficient to Support Appellant=s Conviction?
In his second issue, emphasizing the same points raised under his legal sufficiency challenge, appellant argues the evidence is factually insufficient to support the jury=s guilty verdict.
1. The Standard of Review
The evidence may be factually insufficient in two ways. Prible v. State, 175 S.W.3d 724, 730B31 (Tex. Crim. App. 2005). First, when considered by itself, evidence supporting the verdict may be so weak the verdict is clearly wrong and manifestly unjust. Id. Second, where the evidence both supports and contradicts the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. Appellant contends the evidence is insufficient when measured under either standard.
In a factual sufficiency review, we consider all the evidence in a neutral light. Id. Our evaluation of that evidence should not intrude upon the fact finder=s role as the sole judge of the weight and credibility given to any witness=s testimony. Cain v. State, 958 S.W.2d 404, 408B09 (Tex. Crim. App. 1997). The jury may believe or disbelieve all or part of any witness=s testimony. Jones v. State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). Reconciliation of any conflicts in the evidence falls within the exclusive province of the jury. Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). Finally, our analysis must consider the evidence appellant claims is most important in allegedly undermining the jury=s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
2. The Evidence is Factually Sufficient
In his factual sufficiency challenge, appellant points to the following evidence as undermining the jury=s guilty verdict: (1) the eye contact between Officer Rule and appellant occurred before Officer Rule had activated his emergency lights; (2) Officer Rule did not mention making eye contact with appellant in his offense report; (3) the location of the police cruiser=s emergency lights behind the front grill rather than on the roof, which appellant contends limits their visibility; (4) the lack of evidence as to appellant=s actual speed during the pursuit; (5) the officers= testimony that the videotape recorder starts when the cruiser=s emergency lights are activated; (6) the point in the pursuit when the videotape actually starts; (7) the lack of the sound of a siren on the videotape;[4] (8) the point in the pursuit when Officer Rule activated the siren; (9) the fact that appellant=s vehicle does not appear in the videotape until near the end of the videotape; (10) the fact appellant=s body does not appear on the videotape until he is seen leaping out of his vehicle and running from the police officers; (11) the short distance involved in the pursuit; (12) Mr. Sullivan=s testimony that he could not tell if the police cruiser=s emergency lights were on and he did not remember hearing a siren; and (13) Officer Rule=s testimony that he was never directly behind appellant=s vehicle until the very end of the pursuit. The jury heard all the evidence, including the evidence cited by appellant, and still determined that appellant intentionally fled from officers Rule and Luera using a motor vehicle and rejected appellant=s view of the evidence. The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury=s decision is not manifestly unjust merely because the jury resolved conflicting views of the evidence in favor of the State. Cain, 958 S.W.2d at 410. The jury was free to reject all of the defensive evidence and theories if it so chose. See Davis, 831 S.W.2d at 842. Therefore, the fact that the jury did so here does not render the evidence factually insufficient. We overrule appellant=s second issue.
C. Did the Trial Court Err When It Denied Appellant=s Motion to Quash His Indictment?
In his third issue, appellant contends the trial court erred when it denied his motion to quash his indictment. In appellant=s view, the indictment was inadequate because it did not allege a necessary element of the Evading Arrest statute.
1. The Standard of Review
The adequacy of an indictment is a question of law subject to de novo review. Holley v. State, 167 S.W.3d 546, 547 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).
2. The Trial Court Properly Denied Appellant=s Motion to Quash His Indictment
Section 38.04 of the Penal Code provides, in part:
(a) 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.
(b) An offense under this section is a Class B misdemeanor, except that the offense is:
(1) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section[.]
Tex. Penal Code Ann. ' 38.04 (Vernon 2003). Citing the Court of Criminal Appeals= opinion in Calton v. State, appellant asserts the indictment against him was inadequate because the State did not plead that appellant had not been previously convicted under this section of the Penal Code. Calton v. State, 176 S.W.3d 231 (Tex. Crim. App. 2005).
Initially, we note appellant=s reliance on Calton is misplaced. In Calton, the State alleged third-degree felony evading arrest under section 38.04(b)(2), and the Court of Criminal Appeals held that the State must plead and prove the existence of a prior conviction under the evading arrest statute as an element of the crime of third-degree felony evading arrest. Id. at 234. However, this case involves a charge of evading arrest with a motor vehicle, a state jail felony under section 38.04(b)(1) and does not involve a prior evading arrest conviction. Therefore, Calton is distinguishable and the Court of Criminal Appeals= holding does not control the outcome of this issue.
This court has addressed this issue before. In Holley, we pointed out that an indictment must, by direct and positive averments, allege all of the constituent elements of the criminal offense sought to be charged. Holley, 167 S.W.3d at 548. We then defined what constitutes the elements of an offense: A(A) the forbidden conduct; (B) the required culpability; (C) any required result; and (D) the negation of any exception to the offense.@ Id. quoting Tex. Penal Code ' 1.07(a)(22). We then held that A[t]he nonexistence of prior convictions under section 38.04 does not fall into any of these categories@ and therefore is not an element of the offense that must be alleged in the indictment. Id. Because the nonexistence of a prior evading arrest conviction is not an element of the offense of state jail felony evading arrest, the trial court properly denied appellant=s motion to quash his conviction. We overrule appellant=s third issue.
Conclusion
Having overruled each of appellant=s issues on appeal, we affirm the judgment of the trial court.
/s/ John S. Anderson
Justice
Judgment rendered and Memorandum Opinion filed February 19, 2008.
Panel consists of Chief Justice Hedges, Justice Anderson, and Senior Justice Price.[5]
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] According to Officer Luera, police policy dictates that when making a traffic stop, officers are required to slant their vehicles to the left to block oncoming traffic and to place the engine block between the officer and driver of the stopped vehicle, thus the reason for the rightward slant of the video camera.
[2] There is some confusion in the record as to the name of this street. Officer Rule and Mr. Sullivan testified that the name was Quail Village while appellant testified he was not certain of the name but thought it was Quail Valley.
[3] Tex. Penal Code Ann. ' 38.04 (Vernon 2003) provides in part:
(a) 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.
(b) An offense under this section is a Class B misdemeanor, except that the offense is:
(1) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section[.]
[4] While appellant emphasizes the absence of a siren on the videotape, Officer Rule testified there was no sound at all on the videotape.
[5] Senior Justice Frank C. Price sitting by assignment.