Appellant=s Motion for Rehearing Overruled; Affirmed, Memorandum Opinion of January 20, 2009, Withdrawn, and Substitute Memorandum Opinion on Rehearing filed April 2, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-07-00664-CR
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ANTHONY PAUL BLOZINSKI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 122nd District Court
Galveston County, Texas
Trial Court Cause No. 05CR0658
M E M O R A N D U M O P I N I O N ON R E H E A R I N G
We overrule appellant=s motion for rehearing, withdraw our opinion of January 20, 2009, and issue this substitute memorandum opinion on rehearing. Appellant, Anthony Paul Blozinski, appeals his conviction for felony evading arrest or detention. After a jury found appellant guilty, the trial court sentenced him to six months= incarceration, which was probated for nine months. In a single issue, appellant challenges the legal and factual sufficiency of the evidence to support the conviction. We affirm.
Background
Police Officer Sean Arena testified that on January 31, 2005, he was working for the Galveston Police Department. Around 7 p.m., he was driving in a marked patrol car, heading eastbound on Stewart Road in Galveston. At that time, he observed a vehicle, which he later identified as being driven by appellant, traveling westbound in the eastbound lane. Arena slowed and activated his overhead emergency lights. Appellant continued directly toward Arena, causing Arena to come to a complete stop. At the last moment, appellant veered into the correct lane. After passing Arena=s vehicle, appellant accelerated. Arena then made a u-turn and activated his siren momentarily to indicate that he was pursuing appellant=s vehicle. As he did so, appellant continued to accelerate and then turned south onto Princeton Drive.
Once on Princeton, which is a dead end street, appellant began to alternately brake and accelerate erratically, Alike he didn=t know what to do.@ Appellant then drove off the roadway into a wet grassy area, and his tires began to spin. Arena pulled behind appellant, leaving a safe distance between the vehicles. Assuming appellant was going to get stuck, Arena put his car in park and began to get out. When the reverse lights on appellant=s vehicle came on, Arena sat back down and shifted into neutral. Appellant=s tires began to spin in reverse, and his car headed backwards towards Arena=s vehicle, causing Arena to back away to avoid a collision. After appellant pulled into the roadway, his car then accelerated forward, toward the end of Princeton Drive, where appellant stopped with his vehicle half on gravel and half on grass. He then again placed the vehicle in reverse and backed up a few feet before stopping and apparently placing his vehicle in park.
Arena exited his patrol car and ordered appellant to exit his own vehicle. After a few seconds, appellant complied. Arena then ordered appellant to go to the rear of appellant=s vehicle. Appellant stated AI didn=t do anything wrong. I just want to go home.@ He then turned and walked back towards the driver=s side of the vehicle. Arena shouted more commands, and appellant finally moved to where he had been ordered to move; at which point, Arena Atook him into custody.@ As Arena was placing handcuffs on appellant, appellant stated: AI=m sorry. I=m sorry. The police make me nervous. I just wanted to get away from you. I wasn=t trying to hit you. I just wanted you to get out of my way.@
Arena testified that he had no doubt that appellant was trying to flee from him from the beginning of the encounter and particularly when appellant almost backed into Arena=s vehicle and then tried to drive off again. Arena believed that appellant was intentionally attempting to flee to avoid lawful arrest.
Appellant testified that A[t]echnically, no . . . I was not trying to evade arrest.@ He said that the week before the incident, his wife told him that she had cancer.[1] On the day in question, he had gone to see a psychiatrist to help him cope with his wife=s illness. Afterwards, he went to a bar for awhile. Later, he was driving down Stewart Road when he drifted over the yellow line. He saw a police officer driving the opposite direction, and when the officer passed appellant, the officer Aturned his lights on.@ Appellant said that he told himself Awell, he=s not stopping me. He=s probably after somebody else but I don=t want to be here anyway.@ Appellant then Atook off.@ He turned onto Princeton Drive and when he got to the end, his car went onto the grass. He could see the officer in his rearview mirror. Appellant backed his car up to get it back onto the road and then exited the vehicle. Appellant said that he may have told the officer that he just wanted to go home but said no more than that.
Appellant further explained that his intention in turning onto Princeton was to pull over, calm down, and Await until it=s all over.@ He denied attempting to speed away from the officer or attempting to ram the officer=s vehicle. Appellant said that his thinking Awas not 100 percent@ and that he may have engaged in some self-deception in concluding the officer was not after him. He said that when the officer first activated his lights, he (appellant) may have been in denial about the situation, but once on Princeton, he Acame to [his] senses.@ He said that when he turned onto Princeton and saw the officer=s lights behind him, he figured he=d drive to the end of the street but then got Aa little excited and . . . wound up in the grass.@ He then backed into the roadway but denied that his wheels spun at any point. He said that he did not realize Officer Arena was behind him when he was backing up. As stated, a jury found appellant guilty, and the trial court sentenced him to six months incarceration, probated for nine months.
Discussion
In his sole issue, appellant contends that the evidence is legally and factually insufficient to uphold his conviction for felony evading arrest or detention. Because appellant does not differentiate in his arguments between the differing standards for legal and factual sufficiency analysis, we will address the arguments altogether while keeping in mind the distinct standards of review. Among other possibilities, a person commits the offense of felony evading arrest or detention if he Auses a vehicle@ while Aintentionally [fleeing] from a person he knows is a peace officer attempting lawfully to arrest or detain him.@ Tex. Penal Code Ann. ' 38.04. This is the form of felony evading arrest or detention for which appellant was convicted.
In a legal sufficiency review, we view all of the evidence in the light most favorable to the verdict and determine whether a trier of fact could have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given to their testimony; it is within the exclusive province of the jury to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). Thus, when performing a legal sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). We must resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In a factual sufficiency review, we consider all of the evidence in a neutral light, favoring neither party. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether (1) the evidence supporting the conviction, although legally sufficient, is nevertheless so weak that the jury=s verdict seems clearly wrong and manifestly unjust, or (2) considering conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15, 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Additionally, we must give due deference to the jury=s determinations, particularly those concerning the weight of the evidence and the credibility of witness testimony. See Johnson, 23 S.W.3d at 8-9.
Appellant specifically contends that the evidence is insufficient to establish that he intended to flee from Officer Arena. As appellant recognizes, a person=s intent can be inferred from his or her conduct. See, e.g., Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). Appellant insists, however, that his conduct during the incident in question occurred at too slow of a speed and over too short a distance and too short a period of time to support an inference that he intended to flee from Officer Arena. We disagree.
In support of his arguments, appellant cites cases wherein the evidence supported an inference that a particular defendant was aware of an officer=s desire for the defendant to stop because the officer had followed the defendant=s vehicle for a period of time or the defendant increased his speed when the officer activated his lights or siren. See, e.g., Hobyl v. State, 152 S.W.3d 624, 628 (Tex. App.CHouston [1st Dist.] 2004) (holding evidence was sufficient to sustain conviction where deputy testified defendant had increased speed and was followed for three miles at 110 miles per hour), pet. dism=d, 193 S.W.3d 903 (Tex. Crim. App. 2006); Britt v. State, No. 14-06-00141-CR, 2007 WL 1215490, at *3 (Tex. App.CHouston [14th Dist.] April 26, 2007, pet. ref=d) (not designated for publication) (holding evidence was sufficient where testimony showed defendant Adrove his vehicle a significant distance@ with a patrol car in pursuit); Luna v. State, No. 04-05-00518-CR, 2006 WL 1814308, at *2 (Tex. App.CSan Antonio July 5, 2006, no pet.) (not designated for publication) (holding evidence was sufficient where officer pursued defendant for four miles). None of the cited cases, however, stands for the proposition that in order to prove intent to flee, the State must show that the defendant was pursued over a certain distance, at a particular speed, or for a particular length of time. Indeed, while speed, distance, and time of pursuit may be factors in considering whether a defendant intentionally fled, no particular speed, distance, or time is required to show the requisite intent if other evidence establishes such intent. Cf. Horne v. State, 228 S.W.3d 442, 445-46 (Tex. App.CTexarkana 2007, no pet.) (holding slow driving over a short period of time could constitute evading detention or arrest under the right circumstances).
Here, Officer Arena testified that after he turned on his overhead lights, made a u-turn to follow appellant, and activated his siren momentarily to indicate that he was pursuing appellant, appellant continued to accelerate away and then turned onto Princeton Drive. On Princeton, appellant began to alternately brake and accelerate erratically, Alike he didn=t know what to do,@ ultimately driving off the end of the road into a wet grassy area and spinning his tires. When Arena pulled behind appellant, appellant reversed towards Arena=s vehicle, causing Arena to back away to avoid a collision. Appellant then accelerated forward again toward the end of the road, running partially off the road before finally stopping halfway on gravel and halfway on grass.
Additionally, appellant himself testified that he saw Officer Arena=s lights come on before he ever turned onto Princeton. Appellant said that when he saw the officer=s lights come on, he (appellant) Atook off@ and turned onto Princeton. Appellant admitted that once he turned, he could see Officer Arena=s vehicle and overhead lights in his rearview mirror. Thus, by appellant=s own admission, he knew at this point that Arena wanted him to stop. Appellant further testified that he just wanted to pull over, calm down, and Await until it=s all over,@ and that he did not attempt to evade detention or arrest. However, as sole judge of the weight and credibility to be assigned the testimony, the jury was free to believe Arena=s version of events on Princeton rather than appellant=s version. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). As discussed, Arena detailed what reasonably could be interpreted as attempts by appellant to evade arrest or detention by driving away from Arena after appellant acknowledged that he had seen Arena follow him with overhead lights activated. Contrary to appellant=s suggestion in his brief, the fact that Princeton is a dead end road does not somehow convert his actions to necessarily innocent ones. The jury reasonably could have interpreted appellant=s actions on Princeton Drive as intentional fleeing, regardless of the lack of speed or ultimate ineffectiveness of the actions. See Mayfield v. State, 219 S.W.3d 538, 540-41 (Tex. App.CTexarkana 2007, no pet.) (holding that an offense under section 38.04 does not require proof of high-speed or effectual fleeing, just intentional fleeing).
Lastly, Arena=s testimony that after appellant exited his vehicle, appellant stated AI=m sorry. I=m sorry. . . . I just wanted to get away from you. . . . I just wanted you to get out of my way,@ further supports the conclusion that appellant had been intentionally fleeing from the officer. See, e.g., Alexander v. State, 229 S.W.3d 731, 740 (Tex. App.CSan Antonio 2007, pet. ref=d) (holding intent may be inferred from statements made during and after the incident in question).
The evidence is legally and factually sufficient to sustain the verdict. Accordingly, we overrule appellant=s sole issue.
We affirm the trial court=s judgment.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Guzman and Brown.
Do Not Publish C Tex. R. App. P. 47.2(b).
[1] At one point during his testimony, appellant referred to his Aformer wife.@ It is unclear from the record whether appellant was referring to a divorce prior to the day on which he was arrested or to the fact that she was deceased by the time of trial.