Affirmed and Memorandum Opinion filed July 6, 2010.
In The
Fourteenth Court of Appeals
NO. 14-09-00469-CR
Dwight D. Laesser, Appellant
V.
The State of Texas, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Cause No. 1187034
MEMORANDUM OPINION
A jury convicted appellant Dwight D. Laesser of the felony of evading arrest with a motor vehicle. The jury assessed punishment at 21 months’ confinement. Appellant appeals contending the evidence is legally and factually insufficient to support the jury’s verdict. We affirm.
Background
On October 10, 2008, Deputy Constable Roland Reyes of the Harris County Precinct 4 Constable’s office was on patrol and received a dispatch call that appellant had a felony warrant outstanding. At the time, appellant was being followed by a Montgomery County deputy in an unmarked vehicle who had called 911 to report appellant. Deputy Reyes located appellant and followed him for approximately a mile, and did not observe appellant violate any traffic laws. Based on the felony warrant, Deputy Reyes activated his lights and siren. Appellant put his flashers on but did not stop the vehicle.
Between 10 and 15 police units participated in the pursuit of appellant’s car. Appellant violated numerous traffic laws, including running three red lights, and Deputy Reyes testified that appellant’s driving was “[v]ery erratic, switching from lane to lane, no signaling, cutting off other vehicles, almost hitting other deputies’ vehicles and people in the roadway.” Appellant drove through a Kroger parking lot where he hit a shopping cart and almost hit several pedestrians. Appellant avoided several spike strips the police had placed in the roadway, and drove on the wrong side of the road into oncoming traffic.
Appellant testified that he “noticed several police cars pull up behind [him] as [he] was going west on 1960,” and that when he saw the police cars behind him he “just lost it.” Appellant called 911, and stated that he was driving to see his insurance agent and that “if they just back off, I am driving nicely now. I will keep on driving nicely.” Appellant contends he attempted to commit suicide during the chase by taking 120 Lorcet and Hydrocodone pills. When asked why he did not pull over when he saw the police, appellant responded that he “would rather end [his] life than to go back to Montgomery County.”
After approximately 40 minutes of pursuit, appellant came to a stop near a school. The police tried to make contact with him through a cell phone and by using a loud speaker. When officers approached appellant’s car, he drove over a brick barricade towards the school, where he again came to a stop and was pulled from his vehicle. The jury found appellant guilty as charged in the indictment and assessed punishment at 21 months’ confinement. Appellant appeals from this judgment.
Analysis
Appellant contends that the evidence presented at trial is (1) legally insufficient and (2) factually insufficient to support his conviction for evading arrest because there is no evidence that appellant intentionally fled from the police.
I. Legal and Factual Sufficiency
In reviewing legal sufficiency of the evidence, an appellate court examines all of the evidence in the light most favorable to the verdict to determine whether any rational factfinder could have found proof of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). The court does not sit as a thirteenth juror and may not re-evaluate the weight and credibility of the record evidence or substitute its judgment for that of the factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999).
Reconciliation of conflicts in the evidence is within the exclusive province of the factfinder. See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). The appellate court’s duty is not to reweigh the evidence, but to serve as a final due process safeguard ensuring only the rationality of the factfinder. See Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996). An appellate court faced with a record that supports conflicting inferences must presume — even if not obvious from the record — that the factfinder resolved any such conflicts in favor of the verdict and must defer to that resolution. Jackson, 443 U.S. at 326.
In reviewing factual sufficiency of the evidence, an appellate court must determine whether (1) the evidence introduced to support the verdict is “so weak” that the factfinder’s verdict seems “clearly wrong and manifestly unjust,” or (2) the factfinder’s verdict is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414-415 (Tex. Crim. App. 2006). In a factual sufficiency review, the court views all of the evidence in a neutral light. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex. Crim. App. 2000) (en banc). If the court finds the evidence factually insufficient, the court must remand the case for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).
To declare that an evidentiary conflict justifies a new trial, an appellate court must rely on some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury’s verdict. See Lancon v. State, 253 S.W.3d 699, 706-07 (Tex. Crim. App. 2008). An appellate court should not intrude upon the factfinder’s role as the sole judge of the weight and credibility of witness testimony. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). The factfinder may choose to believe or disbelieve any portion of the testimony presented at trial. Bargas v. State, 252 S.W.3d 876, 887 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (en banc)). Due deference must be given to the factfinder’s determinations concerning the weight and credibility of the evidence, and reversal of those determinations is appropriate only to prevent the occurrence of a manifest injustice. Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004).
A person commits the offense of evading arrest with a motor vehicle if he intentionally flees from a person he knows to be a police officer attempting lawfully to arrest or detain him, and he uses a vehicle while in flight. See Tex. Code Crim. Proc. Ann. § 38.04 (Vernon 2003);[1] Hazkell v. State, 616 S.W.2d 204, 205 (Tex. Crim. App. 1981).
The indictment charged that appellant “intentionally fled from R. REYES, hereafter styled the Complainant, a peace officer employed by HARRIS COUNTY CONSTABLE’S OFFICE, PRECINCT NO. 4, lawfully attempting to DETAIN the Defendant; and the Defendant knew that the Complainant was a peace officer attempting to DETAIN the Defendant, and the Defendant used a motor vehicle while he was in flight.” Appellant argues that there was no evidence presented to the jury that appellant intentionally fled from Deputy Reyes. Appellant contends instead that his intention was to get to his insurance agent’s office before he stopped his vehicle.
The circumstances here parallel Horne v. State, 228 S.W.3d 442, 444 (Tex. App.—Texarkana 2007, no pet.), in which the defendant was speeding when a state trooper turned on his vehicle’s overhead lights and pursued Horne’s vehicle. Horne did not stop, and continued to drive even after the trooper activated his siren. Id. Instead, Horne stuck his arm out his window and motioned for the trooper to follow him. Id. The trooper pulled up beside Horne and used his vehicle’s public address system to direct Horne to pull over, but Horne shook his head and kept driving. Id. The trooper finally attempted to block Horne’s path with his vehicle, but Horne drove onto the curb to get around the trooper. Id. at 444-45. Horne only came to a stop when he got to his mother’s house, claiming that he wanted to get his vehicle there for safekeeping so that it would not get towed to an impound lot. Id. at 445.
Although the evidence indicated that Horne had no intent to ultimately escape the officer, the court held that Horne was attempting to evade arrest, even if only for the few minutes it took him to park his car in front of his mother’s house. Id. at 446. The court disagreed with Horne’s assertion that flight requires an element of speed or an element of intent to ultimately be free of an officer’s control. Id. at 445. The court noted that “‘fleeing’ is anything less than prompt compliance with an officer’s direction to stop. Thus, such a delayed compliance legitimately can be found to be an attempt to evade arrest or detention.” Id. at 446.
In the present case, Deputy Reyes activated his lights and siren, after which the appellant turned on his flashers but did not stop. Appellant violated numerous traffic laws, including running three red lights, and Deputy Reyes testified that appellant’s driving was “[v]ery erratic, switching from lane to lane, no signaling, cutting off other vehicles, almost hitting other deputies’ vehicles and people in the roadway.” Appellant drove through a Kroger parking lot, hitting a shopping cart and narrowly avoiding several pedestrians. Appellant avoided several spike strips the police had laid out on the roadway, drove into oncoming traffic, and led between 10 and 15 police vehicles on a 40 minute pursuit. The pursuit finally ended when appellant drove over a brick barricade next to a school, and officers removed him from his vehicle.
Appellant conceded in his testimony that he was aware that there were officers behind him. Appellant testified that he “noticed several police cars pull up behind [him] as [he] was going west on 1960,” and that when he saw the police cars behind him he “just lost it.” Appellant also indicated that he knew the officers were trying to arrest him when he called 911 and said, “if they just back off, I am driving nicely now. I will keep on driving nicely.” Appellant demonstrated his intent not to stop when he testified that the reason he did not pull over when he saw the police was that he “would rather end [his] life than to go back to Montgomery County.”
At trial, the State introduced two videos of the chase, filmed from two different officers’ dash cameras. The first video depicted approximately 50% of the chase. The second video began recording after appellant had already stopped. The jury also heard the testimony of Deputies Reyes, Atkins, and Harris, who were all involved in the pursuit.
Viewing the evidence in the light most favorable to the verdict, the jury could have found beyond a reasonable doubt that appellant committed the offense of evading arrest with a motor vehicle. See Jackson, 443 U.S. at 326; Walker v. State, 95 S.W.3d 516, 519 (Tex. App.—Fort Worth 2002, pet. ref’d) (a rational juror could have found that, in failing to stop his vehicle when he was given the signal to do so, appellant intentionally and knowingly fled from a person he knew to be a peace officer attempting to lawfully arrest or detain him). Further, viewing all of the evidence in a neutral light, the jury could have found beyond a reasonable doubt that the appellant intentionally fled from Deputy Reyes. See Johnson, 23 S.W.3d at 11; Hobyl v. State, 152 S.W.3d 624, 628 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d) (evidence found to be legally and factually sufficient despite defendant’s testimony that at 110 mph and with motorcycle helmet on, he could not hear police officer behind him and therefore was not intentionally evading arrest). The evidence supporting the verdict was not so weak that the verdict was clearly wrong and manifestly unjust, nor was the verdict against the great weight and preponderance of the evidence. See Watson, 204 S.W.3d at 414-15. Thus, we find the evidence to be legally and factually sufficient to sustain appellant’s conviction for evading arrest with a motor vehicle, and overrule appellant’s two issues.
Conclusion
Accordingly, the trial court’s judgment is affirmed.
/s/ William J. Boyce
Justice
Panel consists of Chief Justice Hedges and Justices Yates and Boyce.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] The Eighty-First Texas Legislature amended section 38.04 effective as of September 1, 2009. See Act of May 27, 2009, 81st Leg., R.S., ch. 1400, § 4, 2009 Tex. Gen. Laws 4385, 4386 (current version at Tex. Code Crim. Proc. Ann. § 38.04(a), (b)(1)(B) (Vernon Supp. 2009)). Because this case was tried on May 13, 2009, all citations to the statute in this opinion are to the version in effect prior to the 2009 amendments.