Jimmie D. Green, Jr. v. State

IN THE
TENTH COURT OF APPEALS

No. 10-12-00308-CR

JIMMIE D. GREEN, JR.,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 249th District Court
Johnson County, Texas
Trial Court No. F46227

MEMORANDUM OPINION

In two issues, appellant, Jimmie D. Green Jr., challenges his convictions for one

count of burglary of a habitation, one count of aggravated robbery, one count of

evading arrest, and two counts of aggravated assault with a deadly weapon. See TEX.

PENAL CODE ANN. §§ 22.02(a)(2), 29.03, 30.02(c)(2), 38.04(b)(2)(A) (West 2011 & Supp.

2013). We affirm.

I. BACKGROUND

A. Facts

This incident began with the burglary of a residence located at 2152 S.W.
Wilshire Boulevard in Burleson, Johnson County, Texas. This address encompasses two

residences, some barns, and livestock. Access to the residences and barns is from a

single driveway that is approximately 300 yards in length. Located approximately 200

yards down the driveway is the residence of Shaun and Anna Berry and their two

children. The residence that was burglarized is located approximately 100 feet from the

Berry’s home and is occupied by Chris Cantu, his fiancée Jessica Leveret, and the

couple’s two children.

On February 16, 2012, at approximately 5:30 p.m., Shaun came home from work

and noticed a white, Honda Civic backed up to Cantu’s front porch. The trunk of the

Civic was opened. Because he was suspicious of the Civic, Shaun, who was speaking to

Anna on his cellphone, asked Anna to call 911.1 Thereafter, Shaun observed two

African-American males, one thin and one larger, exit the front door of Cantu’s home.

At trial, the thin African-American male was identified as appellant, while the larger

African-American male was identified as Terry Speed. As appellant and Speed got into

the Civic, Shaun put his truck into reverse and began backing down the driveway. At

this point, Cantu arrived and pulled his Jeep Grand Cherokee next to Shaun’s truck,

which blocked the driveway. Cantu asked Shaun what was going on; the two decided

to exit their vehicles and walk towards the Civic.

As Shaun and Cantu approached, appellant drove the Civic toward the back gate

of the property. Realizing that the back gate was locked, appellant made a U-turn and

drove the Civic towards Shaun and Cantu. As he tried to pass Shaun and Cantu’s

1 In his testimony, Shaun noted that Anna “wasn’t far behind [him]” and that he “told her don’t
pull in the driveway and call the police, there’s somebody here that shouldn’t be here.”
Green v. State Page 2
vehicles, appellant contacted Shaun’s Dodge truck and a nearby barbed-wire fence. The

contact removed the passenger-side mirror on the Civic and caused a scraping of the

paint on the right side of the Civic. After seeing this, Shaun called 911 and ran towards

his house to retrieve his 20-gauge shotgun.

As he exited his house with the shotgun, Shaun observed appellant open the

driver’s-side door and fire a shot from a .40-caliber pistol in the direction where he and

Cantu were. Shaun responded by firing two shots at the Civic while Cantu ran inside to

get his 12-gauge shotgun. After retrieving his shotgun, Cantu joined Shaun in firing

upon the Civic. During this commotion, Speed was able to exit the Civic, get into

Shaun’s truck, and move Shaun’s truck so that the Civic could escape. Appellant drove

the Civic past Shaun’s truck, picked up Speed, and exited the property by heading

south on SH 174 toward Joshua, Texas.

Shortly after appellant turned onto the highway, Officer Jonathan Gomez of the

Burleson Police Department arrived and spoke with Anna, who gave a description of

the Civic and the direction it was travelling. However, Anna inaccurately described

appellant and Speed as Hispanic males. A minute or two after Anna provided her

description of the suspects, Shaun called 911 and identified the suspects as two African-

American males.

Sergeant Curran Massey and Officer Patrick Jones of the Joshua Police

Department heard the dispatch regarding the burglary. Approximately four minutes

after hearing the dispatch, Sergeant Massey and Officer Jones spotted the Civic

approaching. The Civic matched the descriptions provided by Anna and Shaun.

Green v. State Page 3
Sergeant Massey positioned the patrol car behind the Civic and activated the patrol

car’s overhead lights. Appellant apparently saw the patrol car and initially pulled onto

the shoulder of the highway. However, shortly thereafter, appellant abruptly

accelerated and attempted to re-enter the highway. Sergeant Massey utilized the PIT

maneuver to cause the Civic to spin out and come to a stop.2 Officers extracted

appellant and Speed from the vehicle and placed them both under arrest.

B. Procedural Background

On March 22, 2012, appellant was charged by indictment with one count of

burglary of a habitation, one count of aggravated robbery with a deadly weapon, one

count of evading arrest, one count of aggravated assault of a public servant, and two

counts of aggravated assault with a deadly weapon. The indictment also contained two

felony-enhancement paragraphs. Thereafter, the State dismissed the one count of

aggravated assault of a public servant and proceeded on the remaining counts.

Later, appellant filed a motion to suppress, which was denied after a hearing.

The case proceeded to trial before a jury. At the conclusion of the evidence, the jury

found appellant guilty on all counts and answered the deadly-weapon special issue in

the affirmative. The jury also found the enhancement paragraphs contained in the

indictment to be true and subsequently assessed punishment as follows: (1)

confinement in the Institutional Division of the Texas Department of Criminal Justice

for life for the burglary-of-a-habitation and aggravated-robbery-with-a-deadly-weapon

counts; (2) twenty-five years’ confinement for the evading-arrest count; and (3) ninety-

2 Sergeant Massey described the PIT maneuver as “using the forward momentum of a police car
to strike the rear quarter panel or rear bumper area of a suspect vehicle[,] causing it to lose traction and
spin out.”
Green v. State Page 4
nine years’ confinement for the aggravated-assault-with-a-deadly-weapon counts. The

trial court ordered the sentences to run concurrently and certified appellant’s right of

appeal. This appeal followed.

II. APPELLANT’S MOTION TO SUPPRESS

In his first issue, appellant complains that the trial court abused its discretion in

denying his motion to suppress because police officers did not have probable cause to

execute a warrantless search.

A. Standard of Review

We review the trial court’s ruling on a motion to suppress evidence for an abuse

of discretion, using a bifurcated standard. See Crain v. State, 315 S.W.3d 43, 48 (Tex.

Crim. App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We

give “almost total deference” to the trial court’s findings of historical fact that are

supported by the record and to mixed questions of law and fact that turn on an

evaluation of credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo

the trial court’s determination of the law and its application of law to facts that do not

turn upon an evaluation of credibility and demeanor. Id. When the trial court has not

made a finding on a relevant fact, we imply the finding that supports the trial court’s

ruling, so long as it finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-

19 (Tex. Crim. App. 2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007).

We will uphold the trial court’s ruling if it is reasonably supported by the record and is

correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006).

Green v. State Page 5
 When ruling on a motion to suppress, the trial judge is the sole trier of fact and

judge of the credibility of the witnesses and the weight to be given their testimony.

Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). When reviewing a trial

court’s ruling on a motion to suppress, we view all of the evidence in the light most

favorable to the ruling. Garcia-Cantu v. State, 253 S.W.3d 236, 241 (Tex. Crim. App.

2008).

When a trial judge makes explicit fact findings regarding a motion to suppress,

an “appellate court [must first] determine whether the evidence (viewed in the light

most favorable to the trial court’s ruling) supports these fact findings.” Kelly, 204

S.W.3d at 818. “The appellate court then reviews the trial court’s legal ruling[s] de novo

unless the trial court’s supported-by-the-record explicit fact findings are also dispositive

of the legal ruling.” Id.

B. Tips from Citizen-Informants

The crux of appellant’s complaint in this issue centers on Anna’s initial

description of the perpetrators as Hispanic. Specifically, appellant argues that “the

patrol officer did not have probable cause to stop as it was represented that the suspects

were Hispanic[,] and Appellant and his co-defendant were clearly black.”

When a police officer stops a defendant without a warrant, as was the case here,

the State has the burden of proving the reasonableness of the stop. Ford v. State, 158

S.W.3d 488, 492 (Tex. Crim. App. 2005). An officer is justified in detaining a person for

investigative purposes if the officer has a reasonable suspicion of criminal activity, even

if the officer lacks probable cause. Woods v. State, 956 S.W.2d 33, 35 (Tex. Crim. App.

Green v. State Page 6
1997). Reasonable suspicion exists if the officer has specific, articulable facts that, when

combined with rational inferences from those facts, would lead him to reasonably

conclude that a particular person actually is, has been, or soon will be engaged in

criminal activity. Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007); Brother v.

State, 166 S.W.3d 255, 257 (Tex. Crim. App. 2005); Woods, 956 S.W.2d at 38. In

determining what constitutes reasonable suspicion, “[w]e look only at those facts

known to the officer at the inception of the stop—a stop or search unlawful at its

inception may not be validated by what it turns up.” State v. Griffey, 241 S.W.3d 700,

704 (Tex. App.—Austin 2007, pet. ref’d). Because reasonable suspicion is an objective

standard, we disregard any subjective intent of the officer and we consider the totality

of the circumstances. Ford, 158 S.W.3d at 492-93.

The factual basis for an investigative stop need not arise from the officer’s

personal observation, but may be supplied by information from another person. See

Brother, 166 S.W.3d at 257. “A citizen’s tip may justify the initiation of a stop if the tip

contains ‘sufficient indicia of reliability’ and the officer corroborates those facts supplied

by the citizen-informant. Nacu v. State, 373 S.W.3d 691, 694 (Tex. App.—San Antonio

2012, no pet.) (quoting Arizpe v. State, 308 S.W.3d 89, 92 (Tex. App.—San Antonio 2010,

no pet.)).

A tip is entitled to greater weight when the informant gives a detailed

description of the wrongdoing, along with a statement that the informant observed the

event firsthand. Pipkin v. State, 114 S.W.3d 649, 655 (Tex. App.—Fort Worth 2003, no

pet.). “Furthermore, a person who is not connected with the police or who is not a paid

Green v. State Page 7
informant is considered inherently trustworthy when he advises the police that he

suspects criminal activity has occurred or is occurring.” Id.; see State v. Stolte, 991

S.W.2d 336, 341 (Tex. App.—Fort Worth 1999, no. pet.). “[W]hen the informant

provides self-identifying information that makes himself accountable for the

intervention, the degree of reliability significantly improves.” Martinez v. State, 348

S.W.3d 919, 923 (Tex. Crim. App. 2011) (citing Brother, 166 S.W.3d at 257).

The most reliable form of a citizen tip is information given to the officer by a

“face-to-face informant who has no other contact with the police beyond witnessing a

criminal act.” Griffey, 241 S.W.3d at 704-05 (citing Cornejo v. State, 917 S.W.2d 480, 483

(Tex. App.—Houston [14th Dist.] 1996, pet. ref’d)). Because of the inherent reliability of

such an informant, the information provided by that informant may be sufficient to

establish reasonable suspicion without additional corroboration. See id. at 705.

“[C]orroboration refers to whether the police officer, in light of the

circumstances, confirms enough facts to reasonably conclude that the information given

to him is reliable and a temporary detention is thus justified.” Brother, 166 S.W.3d at 259

n.5. There is an inverse relationship between the reliability of the informant and the

amount of corroboration needed to justify the stop—the less reliable the tip, the more

corroborating information is needed. Martinez, 348 S.W.3d at 923 (citing Alabama v.

White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301 (1990).

C. The Traffic Stop

Here, both Anna and Shaun Berry notified dispatch at the Burleson Police

Department that: (1) two male suspects were seen burglarizing their neighbor’s house;

Green v. State Page 8
(2) the suspects fired shots at Berry and Cantu during the immediate flight from the

scene of the crime; (3) the suspects fled the crime scene while driving an older model,

white, Honda Civic that had a new seven-character license plate; (4) the Civic had

sustained damage to the drive-side door panel from Shaun’s shotgun blasts; and (5) the

suspects fled southbound on SH 174 toward Joshua. The record reflects that Anna

initially told police that the suspects were Hispanic; however, shortly thereafter, Shaun

corrected Anna’s report to reflect that the suspects were both African-American males.

Dispatchers broadcasted the information provided by Anna and Shaun.

Sergeant Jody Trumble of the Burleson Police Department admitted initially relaying

that the suspects were Hispanic based on Anna’s tip; however, Sergeant Trumble issued

a second broadcast reflecting that the suspects were African-American.

A few minutes after hearing Sergeant Trumble’s broadcast, Sergeant Curran

Massey of the Burleson Police Department spotted an older model, white, Honda Civic

with new-style license plates and damage to the driver-side door travelling southbound

on SH 174. Though the windows were heavily tinted, Sergeant Massey observed two

males inside the Civic. The heavy tinting of the windows prevented Sergeant Massey

from identifying the ethnicity of the occupants of the Civic.

Believing that the vehicle matched the descriptions provided by Anna and

Shaun, Sergeant Massey activated his overhead lights and sirens and eventually forced

the Civic off of the road after appellant failed to voluntarily stop his vehicle.

We conclude that the evidence adduced at the hearing on appellant’s motion to

suppress provides sufficient indicia of reliability of Anna and Shaun’s reports. Anna

Green v. State Page 9
and Shaun provided a detailed description of the robbery; the suspects; the suspects’

vehicle, including the newer license plates and the shotgun damage to the driver’s-side

door panel; and the direction in which the vehicle was travelling. This information was

corroborated by police at the scene of the traffic stop. See Pipkin, 114 S.W.3d at 654

(“’Corroboration’ in this sense does not mean that the officer must personally observe

the conduct that causes him to reasonably suspect that a crime is being, has been, or is

about to be committed. Rather, corroboration refers to whether the police officer, in

light of the circumstances, confirms enough facts to reasonably conclude that the

information given to him is reliable and a temporary detention is justified.”). Moreover,

the record reflects that Shaun observed the incident first-hand and that neither Shaun

nor Anna had a connection with the police, other than reporting this incident. See

Navarette v. California, No. 12-9490, 134 S. Ct. 1683, 188 L. Ed. 2d 680, 2014 U.S. LEXIS

2930, at *10 (Apr. 22, 2014) (“’[An informant’s] explicit and detailed description of

alleged wrongdoing, along with a statement that the event was observed firsthand,

entitles his tip to greater weight than might otherwise be the case.’” (quoting Illinois v.

Gates, 462 U.S. 213, 234, 103 S. Ct. 2317, 2330, 76 L. Ed. 2d 527 (1983))). Furthermore,

Anna and Shaun both provided identifying information such that they placed

themselves in a position to be identified and held accountable for the report. See Griffey,

241 S.W.3d at 704-05.

In light of the heightened indicia of reliability arising from the circumstances of

Anna and Shaun’s reports, police observations under the totality of the circumstances

were sufficient to corroborate the reports and provide reasonable suspicion to stop and

Green v. State Page 10
detain appellant and Speed for further investigation.3 See Martinez, 348 S.W.3d at 923;

Brother, 166 S.W.3d at 257; see also Nacu, 373 S.W.3d at 694; Arizpe, 308 S.W.3d at 92.

D. The Search and Arrest

The Fourth Amendment to the United States Constitution protects individuals

against unreasonable searches and seizures. U.S. CONST. amend. IV; see Gutierrez v.

State, 221 S.W.3d 680, 684-85 (Tex. Crim. App. 2007). Warrantless searches are per se

unreasonable unless the State can prove that the search was conducted pursuant to a

recognized exception to the warrant requirement. Arizona v. Gant, 556 U.S. 332, 338, 129

S. Ct. 1710, 1716, 173 L. Ed. 2d 485 (2009) (citing Katz v. United States, 389 U.S. 347, 357,

88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967)). For example, incident to a lawful arrest, a law

enforcement officer may conduct a full but reasonable search of a person. United States

v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477, 38 L. Ed. 2d 427 (1973); see McGee v.

State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003); see also Busby v. State, 990 S.W.2d 263,

270 (Tex. Crim. App. 1999).

A police officer may make a warrantless arrest if: (1) there is probable cause to

believe that an offense has been committed or is being committed; and (2) the arrest

falls within one of the statutory exceptions to the warrant requirement specified in

articles 14.01 and 14.04 of the Texas Code of Criminal Procedure. Stull v. State, 772

S.W.2d 449, 451 (Tex. Crim. App. 1989). Probable cause for a warrantless arrest exists

when a police officer has reasonably trustworthy information, considered as a whole,

3 The fact that Anna first identified the suspects as Hispanic is of no consequence because Shaun

called shortly thereafter to amend Anna’s report to reflect that the suspects were African-American.
Moreover, as mentioned above, ample evidence of corroboration was adduced at the hearing on
appellant’s motion to suppress so as to provide reasonable suspicion for the stop.
Green v. State Page 11
that is sufficient to cause a reasonable, prudent officer to believe that a particular person

has committed or is committing an offense. See Hughes v. State, 24 S.W.3d 833, 838 (Tex.

Crim. App. 2000). A reviewing court is to consider the totality of the circumstances

when determining whether the facts were sufficient to give the officer probable cause to

arrest the defendant. Chilman v. State, 22 S.W.3d 50, 56 (Tex. App.—Houston [1st Dist.]

2000, pet. ref’d).

Importantly, article 14.04 of the Texas Code of Criminal Procedure provides that:

Where it is shown by satisfactory proof to a peace officer, upon the
representation of a credible person, that a felony has been committed, and
that the offender is about to escape, so that there is no time to procure a
warrant, such peace officer may, without warrant, pursue and arrest the
accused.

TEX. CODE CRIM. PROC. ANN. art. 14.04 (West 2005).

In the instant case, police received tips from Anna and Shaun about an incident

that Shaun witnessed. Additionally, Anna and Shaun indicated that the suspects had

fired shots as they escaped in the white Honda Civic. As we concluded earlier, the

evidence produced during the hearing on appellant’s motion to suppress, which also

mirrored the information known to police at the time, provided sufficient indicia of

reliability to Anna and Shaun’s reports. See Hughes, 24 S.W.3d at 838. Accordingly,

police had reasonably trustworthy information that provided probable cause that an

offense had been committed. See Stull, 772 S.W.2d at 451; see also Baldwin v. State, 278

S.W.3d 367, 371 (Tex. Crim. App. 2009) (stating that probable cause is a “fluid concept

that cannot be readily, or even usefully reduced to a neat set of legal rules”; however,

noting that probable cause “involves a reasonable ground for belief of guilt that is

Green v. State Page 12
particularized with respect to the person to be searched or seized” (internal citations &

quotations omitted)); Chilman, 22 S.W.3d at 56. Furthermore, the evidence adduced at

the hearing on appellant’s motion to suppress supported the trial court’s finding of fact

that appellant “fled the scene and was in [the] process of escaping.” See TEX. CODE

CRIM. PROC. ANN. art. 14.04. Therefore, there was no time to procure a warrant. Thus,

because the police had probable cause that appellant had committed an offense, and

because article 14.04 of the Texas Code of Criminal Procedure applies, we conclude that

the warrantless arrest of appellant was authorized. See id.; see also Stull, 772 S.W.2d at

451. And because appellant was subject to a valid arrest, we conclude that the

complained-of search was authorized as a search incident to a lawful arrest. 4 See

Robinson, 414 U.S. at 235, 94 S. Ct. at 477; McGee, 105 S.W.3d at 615; Busby, 990 S.W.2d at

270. Accordingly, we overrule appellant’s first issue.

III. SUFFICIENCY OF THE EVIDENCE

In his second issue, appellant contends that the record does not contain sufficient

evidence to support his convictions for burglary of a habitation, aggravated robbery,

evading arrest with a vehicle, and aggravated assault with a deadly weapon.

A. Standard of Review

In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

In determining whether the evidence is legally sufficient to support a
conviction, a reviewing court must consider all of the evidence in the light

4 In his first issue, appellant appears to complain about the validity of the stop; however, he cites

authority addressing warrantless searches. Therefore, out of an abundance of caution, we address both
the validity of the stop and the subsequent search. Nevertheless, it is noteworthy that appellant did not
complain about a particular area that was searched by police.
Green v. State Page 13
 most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This
“familiar standard gives full play to the responsibility of the trier of fact
fairly to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443
U.S. at 319. “Each fact need not point directly and independently to the
guilt of the appellant, as long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction.”
Hooper, 214 S.W.3d at 13.

Id.

Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination.

Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial

evidence are treated equally: “Circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that

the factfinder is entitled to judge the credibility of the witnesses and can choose to

believe all, some, or none of the testimony presented by the parties. Chambers v. State,

805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not
Green v. State Page 14
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

B. Burglary of a Habitation

On appeal, appellant argues that the evidence adduced at trial does not

demonstrate that he entered a habitation with intent to commit theft. Specifically,

appellant contends that “[t]he testimony was inconsistent as to whether Appellant ever

exited the home or not. No fingerprint analysis was ever conducted on the stolen items

and no witness could clearly state that Appellant committed a burglary.” We disagree.

A person commits the offense of burglary of a habitation if, without the consent

of the owner, the person enters a habitation and commits or attempts to commit a

felony, theft, or an assault. TEX. PENAL CODE ANN. § 30.02(a)(3); see Reyes v. State, 422

S.W.3d 18, 23-24 (Tex. App.—Waco 2013, pet. ref’d). A person commits a theft if “he

unlawfully appropriates property with intent to deprive the owner of property.” TEX.

PENAL CODE ANN. § 31.03(a) (West Supp. 2013). Appropriation of property is unlawful

if it is without the owner’s effective consent. Id. § 31.03(b)(1).

Direct evidence of entry is not required; that element may be established by

inference, just as inferences may be used to prove the elements of any other offense.

Poncio v. State, 185 S.W.3d 904, 905 (Tex. Crim. App. 2006). A defendant’s unexplained

possession of property recently stolen in a burglary permits an inference that the

defendant is the one that committed the burglary. Id.

The record reflects that someone broke into Cantu’s home by forced entry

Green v. State Page 15
through the front door. The record also indicates that Samsung and Direct TV remote-

control devices and a Samsung subwoofer were taken from Cantu’s home without

Cantu’s consent and that these items were later found in the Civic that appellant was

driving. Additionally, witnesses testified seeing appellant and Speed exit Cantu’s front

door, which was already opened; get into the Civic; and attempt to escape from the

scene of the incident. Furthermore, police found a pry bar, a tool that is consistently

used in committing burglaries, inside the Civic.

Based on the foregoing evidence, it was not unreasonable for the jury to infer

that appellant participated in the burglary of Cantu’s home. See id.; see also TEX. PENAL

CODE ANN. § 30.02(a)(3); Reyes, 422 S.W.3d at 23-24. As such, we conclude that the

record contains sufficient evidence to support appellant’s conviction for burglary of a

habitation. See TEX. PENAL CODE ANN. § 30.02(a)(3); see also Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789; Lucio, 351 S.W.3d at 894.

C. Aggravated Robbery

With regard to his conviction for aggravated robbery, appellant asserts that the

State failed to prove that he committed a theft. Once again, appellant argues that no

witness saw him with the purported stolen items, and “no fingerprint analysis was

performed on any of the items taken.”

The elements of aggravated robbery are: (1) a person; (2) in the course of

committing theft; (3) with intent to obtain or maintain control of property; (4)

intentionally or knowingly; (5) threatens another with, or places another in fear of; (6)

imminent bodily injury or death; and (7) uses or exhibits; (8) a deadly weapon. See TEX.

Green v. State Page 16
PENAL CODE ANN. §§ 29.02-.03 (West 2011); see also Ramos v. State, No. 01-12-00957-CR,

2014 Tex. App. LEXIS 113, at *36 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014, no pet.)

(mem. op., not designated for publication). A firearm is a deadly weapon. See TEX.

PENAL CODE ANN. § 1.07(a)(17)(A) (West Supp. 2013). “In the course of committing

theft” means conduct that occurs in an attempt to commit, during the commission, or in

immediate flight after the attempt or commission of theft. TEX. PENAL CODE ANN. §

29.01 (West 2011); see Oggletree v. State, 851 S.W.2d 367, 368-69 (Tex. App.—Houston [1st

Dist.] 1993, pet. ref’d); see also Ramos, 2014 Tex. App. LEXIS 113, at *36. Furthermore,

“use” includes utilizing a gun during flight from a felony. Coleman v. State, 145 S.W.3d

649, 652 (Tex. Crim. App. 2004) (“[W]hile the word ‘use’ typically means that a deadly

weapon must be ‘utilized, employed, or applied in order to achieve its intended result

the commission of a felony offense or during immediate flight therefrom, that use could

mean any employment of a deadly weapon, even simple possession, if such possession

facilitates the associated felony.’” (quoting Patterson v. State, 769 S.W.2d 938, 941 (Tex.

Crim. App. 1989))).

As mentioned above, the record reflects that appellant participated in the

burglary of Cantu’s residence, which involved the theft of several electronic devices.

Furthermore, witnesses testified that, during the escape from the scene of the incident,

appellant fired shots from a pistol toward Shaun and Cantu.

Based on the foregoing evidence, a reasonable factfinder could have inferred that

the items found inside the Civic had been taken by appellant and that appellant used a

firearm, a deadly weapon, during the immediate flight in furtherance of the theft. See

Green v. State Page 17
TEX. PENAL CODE ANN. §§ 29.02-.03; see also Coleman, 145 S.W.3d at 652; Smith v. State,

895 S.W.2d 449, 452 (Tex. App.—Dallas 1995, pet. ref’d) (noting that a factfinder may

draw reasonable inferences and make reasonable deductions from the evidence).

Accordingly, we conclude that the record contains sufficient evidence to support

appellant’s conviction for aggravated robbery with a deadly weapon. See TEX. PENAL

CODE ANN. §§ 29.02-.03; see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio, 351

S.W.3d at 894.

D. Evading Arrest

Appellant also argues that the evidence is insufficient to support his conviction

for evading arrest because he could not safely pull over and instead pulled back into the

lane. Specifically, appellant asserts that he “pulled over when the police car activated

the lights and sirens. However, there was an intersection where Appellant tried to

safely pull over and couldn’t so he pulled back into the lane.”

A person commits the offense of evading arrest or detention if he intentionally

flees from a person he knows is a peace officer or federal special investigator attempting

lawfully to arrest or detain him. TEX. PENAL CODE ANN. § 38.04(a). Any delayed

compliance can be considered an attempt to evade arrest or detention. Horne v. State,

228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no pet.). “[F]leeing is anything less

than prompt compliance with an officer’s direction to stop.” Id. Even if there is no

intent to ultimately evade, intent to evade arrest or detention even for a short time is

sufficient to support a conviction for evading arrest with a motor vehicle. Id.; see

Mayfield v. State, 219 S.W.3d 538, 541 (Tex. App.—Texarkana 2007, no pet.) (observing

Green v. State Page 18
that the law does not require high-speed fleeing or even effectual fleeing; it requires an

attempt to get away from a known officer of the law); see also O’Quinn v. State, No. 10-

11-00114-CR, 2012 Tex. App. LEXIS 6168, at **10-11 (Tex. App.—Waco July 26, 2012, no

pet.) (mem. op., not designated for publication).

At trial, Sergeant Massey testified that he signaled for appellant to pull over and

come to a stop by turning on his overhead lights and sirens prior to the intersection of

McMillan and SH 174. Both Sergeant Massey and Officer Jones stated that appellant

had plenty of room to comply before reaching the intersection of McMillan and SH 174.

In addition, the officers noted that, although appellant initially slowed down and pulled

onto the right shoulder of SH 174, he then pulled back onto the highway and began to

accelerate.

The jury, as factfinders, could reasonably have determined that appellant

acknowledged the presence of law enforcement by slowing down and pulling onto the

shoulder of SH 174 and that he attempted to evade arrest or detention by pulling back

onto the highway and accelerating the vehicle. See TEX. PENAL CODE ANN. § 38.04(a);

Horne, 228 S.W.3d at 446; Mayfield, 219 S.W.3d at 541; see also O’Quinn, 2012 Tex. App.

LEXIS 6168, at **10-11. As such, we conclude that the record contains sufficient

evidence to support appellant’s conviction for evading arrest. See TEX. PENAL CODE

ANN. § 38.04(a); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Lucio, 351 S.W.3d at 894.

E. Aggravated Assault With a Deadly Weapon

Finally, with respect to appellant’s conviction for aggravated assault with a

deadly weapon, appellant contends that “no one could ascertain who had possession of

Green v. State Page 19
the firearm[;] it could have been co-defendant Speed just as easy as it could have been

Appellant. Additionally, all DNA evidence ruled out Appellant’s DNA as that being on

the grip of the firearm.”

A person is guilty of aggravated assault if he commits an assault which causes

bodily injury to another or uses or exhibits a deadly weapon during the commission of

the assault. See TEX. PENAL CODE ANN. § 22.02(a)(2); see also id. § 22.01(a)(2) (West Supp.

2013) (“A person commits [assault] if the person . . . intentionally or knowingly

threatens another with imminent bodily injury . . . .”).

At trial, both Shaun and Cantu testified that appellant opened the driver-side

door and fired two rounds in their general direction. Shaun noted that he was within

fifty feet of the Civic and had a clear view of the driver-side door. Cantu stated that

appellant shot at him and that he saw the barrel of the gun used by appellant.

Moreover, two spent .40-caliber shell casings were found in the front, driver-side

floorboard of the Civic. In addition, police found a live .40-caliber round in the driver’s

seat, and when police extracted appellant from the vehicle, the loaded Hi Point .40-

caliber, semi-automatic pistol fell from the driver’s seat. Appellant is correct in stating

that analysts concluded that “there was not enough DNA on the trigger to compare”;

however, forensic analyst Amy Smuts opined that the absence of appellant’s DNA does

not necessarily mean that he did not handle the weapon. Furthermore, police found

black gloves or socks beneath where appellant sat in the Civic and near a spent shell

casing.

To the extent that the evidence conflicts, we note that it is within the province of

Green v. State Page 20
the factfinder—the jury, here—to resolve any conflicts in the testimony, and we are to

defer to the factfinder’s resolution of such conflicts. See Jackson, 443 U.S. at 326, 99 S. Ct.

at 2792-93; see also Chambers, 805 S.W.2d at 461. Clearly, by convicting appellant of

aggravated assault with a deadly weapon, the jury resolved any conflicts in the

evidence against appellant. Accordingly, viewing the evidence in the light most

favorable to the verdict, we conclude that a rational factfinder could have found beyond

a reasonable doubt that appellant used or exhibited a deadly weapon while

intentionally or knowingly threatening Shaun and Cantu with imminent bodily injury.

See TEX. PENAL CODE ANN. §§ 22.01(a)(2), 22.02(a)(2); see also Jackson, 443 U.S. at 319, 99 S.

Ct. at 2789; Lucio, 351 S.W.3d at 894. We overrule appellant’s second issue on appeal.

IV. CONCLUSION

Having overruled both of appellant’s issues on appeal, we affirm the judgments

of the trial court.

AL SCOGGINS
Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 26, 2014
Do not publish
[CRPM]

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