Affirmed and Memorandum Opinion filed January 19, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-11-00082-CR
NO. 14-11-00083-CR
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DELTRIC C. CALDWELL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd Judicial District Court
Harris County, Texas
Trial Court Cause Nos. 1266351 & 1266352
MEMORANDUM OPINION
Appellant Deltric C. Caldwell pleaded guilty to two counts of aggravated assault
with a deadly weapon. The trial court deferred adjudication of guilt and placed him on
community supervision for six years. The State subsequently filed a motion to adjudicate,
alleging that appellant had violated four terms of his community supervision. The trial
court found all of those allegations to be true and sentenced appellant to ten years’
imprisonment. In two issues, appellant contends that the evidence is insufficient to support
the trial court’s judgment. We affirm.
Under the conditions of his community supervision, appellant was instructed that he
must (1) not commit any offense against the laws of this state; (2) provide written
verification of employment, or documentation showing his attempts to secure
employment; (3) perform two hundred hours of community service at the rate of ten hours
per month, beginning in October 2010; and (4) submit to an alcohol and drug evaluation by
the end of November 2010. In its motion to adjudicate, the State alleged that appellant
violated section 38.04 of the Texas Penal Code by intentionally evading a police officer
who was lawfully attempting to detain him. The State further alleged three additional
violations of his community supervision, including (1) that appellant failed to obtain
suitable employment or supply written proof of his attempt to obtain employment; (2) that
he failed to perform his community service at the ordered rate; and (3) that he failed to
submit to his alcohol and drug evaluation by the date prescribed. Appellant pleaded not
true to each of the allegations.
At the hearing on the motion to adjudicate, Officer Jose Demeterio of the Houston
Police Department testified that appellant evaded detention following a disturbance at a
local night club. Officer Demeterio testified that he was dispatched to the club in response
to reports of a ―big fight‖ and possible shooting. When he arrived, he and other officers
began to clear the parking lot of all individuals gathered there. Appellant was standing on
one end of the parking lot, conversing with three other men. Officer Demeterio approached
the men and advised them that they needed to leave. Though all four promptly dispersed on
foot, appellant removed himself to a separate area of the parking lot and began another
conversation with a different group of people. When Officer Demeterio instructed
appellant a second time that he needed to leave the area, appellant turned around and
insisted, ―I didn’t do anything.‖ Officer Demeterio responded that appellant should ―come
here‖ for further questioning. Following that remark, Officer Demeterio testified that
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appellant suddenly began ―bouncing around.‖ When Officer Demeterio approached and
told appellant to stop, appellant took off running across the street. Officer Demeterio
followed him to a nearby strip mall, where he ordered appellant to stop, get on the ground,
and put his hands behind his back. Appellant refused to comply. He was eventually
detained with the assistance of another officer. Throughout the entire episode, Officer
Demeterio was wearing his official police uniform.
Emily Pawlowski testified for the State as custodian of appellant’s probation files.
She indicated that appellant was currently unemployed and that he had not yet submitted
any written proof of his attempt to secure employment. Pawlowski testified that appellant
had not performed any community service as of the date of the hearing, even though he
should have completed at least twenty hours by that point. Pawlowski also stated that
appellant had not submitted to his required alcohol and drug evaluation, despite having an
appointment scheduled for November 23, one week before the date prescribed in his order
for community supervision.
Pawlowski’s files indicated that appellant had experienced some delay when he first
tried to arrange a meeting with his probation officer. This delay appears to have resulted
from problems with the State’s computer system, not appellant’s wrongdoing. Pawlowski
testified that, even with the delay, appellant should have been able to complete the
requirements as specified in his order for community supervision.
Testifying in his own defense, appellant said he went to the night club to pick up his
cousin. When law enforcement arrived at the club, appellant testified that an officer told
him that he would need to leave the premises on foot, rather than in his car. According to
appellant, the officer told him to cross the street and wait there. Appellant said that as he
was crossing the street, the officer asked him to move faster, so he decided to jog. Once on
the other side, appellant said a separate officer ordered him to stop and get on the ground.
He was then taken into custody for resisting arrest. Appellant did not have any weapons or
contraband on his person.
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Appellant testified that he was preparing to enter a community college and that he
was currently unemployed. He stated that he and his mother would often go to Work
Source, where he would receive assistance in building a résumé. Appellant also conceded
that he missed his November 23 appointment for an alcohol and drug evaluation; however,
appellant stated that he called his probation officer in advance, and they both agreed to
reschedule the appointment for sometime in December. According to appellant, his
probation officer also agreed to briefly postpone his community service requirements.
In two issues, appellant argues that the evidence is insufficient to prove (1) that he
committed the offense of evading detention; and (2) that he intentionally violated the
conditions of his community supervision, as alleged in the motion to adjudicate.
We review the trial court’s decision to revoke community supervision and enter an
adjudication of guilt for an abuse of discretion. See Tex. Code Crim. Proc. Ann. art. 42.12,
§ 5(b) (West 2012); Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006). In
challenges to the sufficiency of the evidence, the burden of proof is by a preponderance of
the evidence. See Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). This
burden is satisfied when the evidence creates a belief, more probable than not, that a
condition of community supervision has been violated as alleged. See Taylor v. State, 604
S.W.2d 175, 179 (Tex. Crim. App. [Panel Op.] 1980); Joseph v. State, 3 S.W.3d 627, 640
(Tex. App.—Houston [14th Dist.] 1999, no pet.). As the trier of fact, the trial court is the
sole judge of the credibility of witnesses and of the weight given to their testimony, and
any inconsistencies in the evidence are resolved in favor of the judgment. Battle v. State,
571 S.W.2d 20, 21 (Tex. Crim. App. [Panel Op.] 1978). Proof of any one of the alleged
violations is sufficient to support a revocation of community supervision. See Trevino v.
State, 218 S.W.3d 234, 240 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Alexander v.
State, 879 S.W.2d 338, 340 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d).
A person commits the offense of evading detention if he intentionally flees from a
person he knows is a peace officer attempting lawfully to detain him. Tex. Penal Code
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Ann. § 38.04(a) (West 2012). Law enforcement officers may stop and briefly detain
persons suspected of criminal activity on less information than is constitutionally required
for probable cause to arrest. Crockett v. State, 803 S.W.2d 308, 311 (Tex. Crim. App.
1991). A detention is lawful if the officer can point to specific and articulable facts which,
taken together with rational inferences from those facts, reasonably warrant the intrusion.
Terry v. Ohio, 392 U.S. 1, 21 (1968). In other words, the officer must reasonably suspect
that some activity out of the ordinary is occurring or has occurred, the detained person is
connected with the unusual activity, and the activity is related to a crime. Rue v. State, 958
S.W.2d 915, 917 (Tex. App.—Houston [14th Dist.] 1997, no pet.). Circumstances that
raise a suspicion that illegal conduct is occurring or has occurred do not have to be criminal
in and of themselves. Reyes v. State, 899 S.W.2d 319, 324 (Tex. App.—Houston [14th
Dist.] 1995, pet. ref’d). Rather, the circumstances need only include facts that render the
likelihood of criminal conduct greater that it would be otherwise. Id.
Viewed in the light most favorable to the trial court’s ruling, the evidence supports a
finding that appellant intentionally evaded detention. The record shows that appellant
knew Officer Demeterio to be a peace officer. Appellant identified Officer Demeterio as
―the law,‖ and Officer Demeterio stated that he was wearing his police uniform at the time
of the incident.
The record also contains specific and articulable facts that would cause Officer
Demeterio to reasonably suspect that appellant was involved in criminal activity. Officer
Demeterio indicated that he arrived at the night club on reports of a possible shooting. See
Klare v. State, 76 S.W.3d 68, 73–74 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)
(observing that time of day and an area’s history of criminal activity may be factors in
determining whether an officer has reasonable suspicion to detain). When Officer
Demeterio attempted to clear the parking lot of all individuals waiting there, appellant
refused to follow his instructions. Appellant did not leave the parking lot as initially
ordered, and he started ―bouncing around‖ once he was told to leave a second time. See
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Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (―[T]he determination of reasonable
suspicion must be based on commonsense judgments and inferences about human
behavior.‖). Finally, when Officer Demeterio ordered him to stop and ―come here,‖
appellant took off running in the opposite direction. Based on this record, we conclude that
the State carried its burden of proving by a preponderance of the evidence that appellant
evaded detention, in violation of Section 38.04.
Even if we were to assume that appellant did not evade detention, we would still
conclude that the evidence is sufficient to support a finding that appellant violated the other
terms of his community supervision. Pawlowski testified that appellant failed to submit
written proof of his attempts to obtain suitable employment. She also testified that
appellant failed to complete any community service or to submit to an alcohol and drug
evaluation. Although appellant’s failings here may be attributable to some delay in setting
up an initial appointment with his probation officer, Pawlowski testified that appellant
should have been able to satisfy the terms of his community supervision nonetheless.
Appellant may have provided some additional excuses for his noncompliance, but as the
ultimate judge of credibility, the trial court was free to accept Pawlowski’s testimony and
appellant’s probation file over appellant’s own version of the events.
Appellant’s two issues are overruled and the judgment of the trial court is affirmed.
/s/ Adele Hedges
Chief Justice
Panel consists of Chief Justice Hedges and Justices Jamison and McCally.
Do Not Publish — Tex. R. App. P. 47.2(b).
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