NUMBER 13-11-00619-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
GUADALUPE TOVAR CHAVEZ JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 206th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Chief Justice Valdez
Appellant, Guadalupe Tovar Chavez Jr., raises three issues in his appeal from a
conviction for the state jail felony offense of evading arrest. See TEX. PENAL CODE ANN.
§ 38.04(a), (b)(1)(B) (West Supp. 2011). We affirm.
I. BACKGROUND
The evidence and testimony offered at appellant’s jury trial established that, on
September 23, 2010, Officer Guadalupe Garcia of the City of Pharr Police Department
was in his police vehicle when he observed appellant operating a motor vehicle with an
expired vehicle registration and an expired state inspection sticker. Subsequently,
Officer Garcia activated his police siren and began following closely behind appellant’s
vehicle in an attempt to effectuate a traffic stop. Appellant did not stop for the officer.
Instead, appellant activated his hazard lights, rolled down his window, and reached his
hand outside the car to gesture to the officer to follow him. Appellant did not stop his
vehicle until he reached his residence, approximately three blocks away, where he was
arrested by Officer Garcia for evading arrest.
A jury found appellant guilty of evading arrest. The trial court placed appellant on
probation for two years. This appeal ensued.
II. SUFFICIENCY OF THE EVIDENCE
In appellant’s second issue, which we address first, appellant argues that the
evidence was insufficient to support his conviction.
A. Standard of Review
Under the Jackson standard, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, 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 (1979); Brooks v. State, 323 S.W.3d 893, 899-99 (Tex.
Crim. App. 2010) (plurality op.) (characterizing the Jackson standard as: “Considering
all of the evidence in the light most favorable to the verdict, was a jury rationally justified
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in finding guilt beyond a reasonable doubt”). The fact-finder is the exclusive judge of
the credibility of witnesses and of the weight to be given to their testimony. Anderson v.
State, 322 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (citing
Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)). Reconciliation of
conflicts in the evidence is within the fact-finder’s exclusive province. Id. (citing Wyatt v.
State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000)). We must resolve any inconsistencies
in the testimony in favor of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406
(Tex. Crim. App. 2000)).
In reviewing the sufficiency of the evidence, we look at events occurring before,
during, and after the commission of the offense, and we may rely on actions of the
appellant that show an understanding and common design to do the prohibited act. See
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004). Each fact need not point
directly and independently to the appellant’s guilt, so long as the cumulative effect of all
the incriminating facts is sufficient to support the conviction. Id.
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
307 (Tex. App.—Corpus Christi 2004, pet. ref'd) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). “Such a charge [is] one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State's theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240).
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B. Discussion
Under a hypothetically correct jury charge, the State was required to prove
beyond a reasonable doubt that appellant intentionally used a vehicle to flee from a
person he knew was a peace officer attempting lawfully to arrest or detain him. See
TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(B).
Appellant argues that the State failed to meet this burden because the
undisputed evidence proved that, after Officer Garcia activated his police siren and
attempted to effectuate the traffic stop, appellant: (1) drove slowly; (2) did not
accelerate; (3) did not drive in a reckless manner; (4) acknowledged the officer by
activating his hazard lights; (5) gestured to the officer to follow him; (6) continued driving
for only three blocks; (7) made no effort to elude the officer; (8) eventually stopped at
his home, which he considered to be the first safe place to stop because “he needed a
witness present at the stop to avoid any issues with the police”; and (9) complied with
the officer’s orders after exiting the vehicle at his residence.
At trial, the evidence established that Officer Garcia was attempting to lawfully
detain appellant at the time this incident occurred. The evidence also established that
appellant was aware that Officer Garcia was a peace officer who was attempting to
effectuate a traffic stop. The evidence established that appellant did not stop for Officer
Garcia, but instead intentionally kept driving after he knew Officer Garcia was
attempting to effectuate a traffic stop. Therefore, the question presented is whether the
evidence is sufficient to establish that appellant intentionally fled from the officer.
The Amarillo Court of Appeals has noted that “while speed, distance, and
duration of pursuit may be factors in considering whether a defendant intentionally fled,
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no particular speed, distance, or duration is required to show the requisite intent if other
evidence establishes such intent.” Griego v. State, 345 S.W.3d 742, 751 (Tex. App.—
Amarillo 2011, no pet.). In Griego, the Amarillo Court of Appeals cited an unpublished
opinion by this Court involving factual circumstances that closely parallel those
presented in this case. See id. (citing Robinson v. State, Nos. 13-10-00064-CR, 13-10-
00065-CR, 2011 Tex. App. LEXIS 1844, at *14-15 (Tex. App.—Corpus Christi Mar. 10,
2011, no pet.) (mem. op., not designated for publication) (concluding that, even though
appellant only drove approximately three blocks at a slow speed, her own testimony
established that she had seen police lights but had refused to stop because she was
“afraid”)).
In Robinson, we quoted a decision by the Texarkana Court of Appeals, which
explained that “‘fleeing’ is anything less than prompt compliance with an officer’s
direction to stop.” Robinson, 2011 Tex. App. LEXIS 1844, at *14-15 (citing Horne v.
State, 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no pet.)). In upholding the
sufficiency of the evidence in Robinson, we borrowed language from a second opinion
by the Texarkana Court of Appeals, which explained that “fleeing slowly is still fleeing.”
Id. (citing Mayfield v. State, 219 S.W.3d 538, 541 (Tex. App.—Texarkana 2007, no
pet.)).
Based on the foregoing, we conclude that the evidence was sufficient to prove
that appellant intentionally fled when he intentionally kept driving and did not stop for
Officer Garcia after he knew Officer Garcia was attempting to effectuate a lawful traffic
stop. Accordingly, appellant’s second issue is overruled.
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III. JURY-CHARGE ERROR
In his first issue, appellant complains of error in the jury charge. Specifically,
appellant argues that it was error for the trial court to fail to include in the jury charge an
instruction on the defense of necessity. See TEX. PENAL CODE ANN. § 9.22 (West 2011).
Appellant did not request the instruction. Appellant told the trial court he had “no
objection” to the jury charge.
A claim of jury-charge error is typically reviewed using the procedure set out in
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). However, the Texas
Court of Criminal Appeals has explained that “Almanza does not apply unless the
appellate court first finds ‘error’ in the jury charge.” Posey v. State, 966 S.W.2d 57, 61
(Tex. Crim. App. 1998). In Posey, the Texas Court of Criminal Appeals further
explained:
The “plain” language of Article 36.14 makes clear that a defendant must
object to the charge before he may be heard to complain on appeal about
"errors claimed to have been committed in the charge, as well as errors
claimed to have been committed by omissions therefrom or in failing to
charge upon issues arising from the facts.
Id.
Therefore, “there generally is no ‘error’ in the charge unless the defendant
objects in writing to claimed ‘errors’ of commission and omission in the charge.” Id.
Otherwise, Article 36.14 would be rendered “meaningless by permitting a defendant to
complain for the first time on appeal about the omission of a defensive issue in the
court’s charge.” Id. at 61 n.9.
Based on the foregoing, we conclude that there is no error in the trial court’s
failure to instruct the jury on the defense of necessity because appellant failed to object
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to the charge and because he affirmatively stated that he had “no objection” to the
charge.
Appellant’s first issue is overruled.
IV. MOTION FOR NEW TRIAL
In his third issue, appellant complains that the trial court erred in denying his
motion for new trial.
A. Applicable Law
A trial judge does not have authority to grant a new trial unless the first
proceeding was not in accordance with the law. State v. Herndon, 215 S.W.3d 901, 907
(Tex. Crim. App. 2007). The legal grounds for which a trial judge must grant a new trial
are listed in Rule 21.3 of the Texas Rules of Appellate Procedure, but that list is
illustrative, not exclusive. Id. (citing TEX. R. APP. P. 21.3). A trial judge may grant a
motion for new trial on other legal grounds as well. Id. Even errors that would not
inevitably require reversal on appeal may form the basis for the granting of a new trial if
the trial judge concludes that the proceeding has resulted in “a miscarriage of justice.”
Id. Nonetheless, a trial judge must have a legally valid reason for granting a new trial;
he cannot grant a new trial on mere sympathy, an inarticulate hunch, or simply because
he personally believes that the defendant is innocent or “received a raw deal.” Id.
B. Standard of Review
We review the trial court’s ruling on a motion for new trial for abuse of discretion.
Id. The test for abuse of discretion:
is not whether, in the opinion of the reviewing court, the facts present an
appropriate case for the trial court’s action; rather, it is a question of
whether the trial court acted without reference to any guiding rules or
principles, and the mere fact that a trial court may decide a matter within
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its discretionary authority differently than an appellate court does not
demonstrate such an abuse.
Id. at 907-08.
C. Discussion
In his motion for new trial, appellant asserted that “[t]he verdict in this cause is
contrary to the law and the evidence.” In support of this contention, appellant asserted
that he:
was prevented from the introduction of competent, relevant evidence
regarding [his] state of mind at the time of the alleged police pursuit that
resulted in his arrest, the circumstances in which the arrest was made,
and related evidence regarding [his] prior interactions with the City of
Pharr Police Department, and other elected officials by virtue of his prior
political candidacy in said city.
Based on the foregoing, and in the interests of justice, appellant requested that the trial
court grant a new trial.
Although appellant argues that, in his motion for new trial, he also “raised the
non-inclusion of the justification instruction regarding necessity,” our review of
appellant’s motion for new trial indicates that the grounds raised by appellant were
limited to the foregoing grounds and did not include any alleged jury charge error.
Accordingly, we will not revisit the issue of jury charge error in deciding appellant’s
challenge to the denial of his motion for new trial.
Appellant has also generally asserted that the trial court should have granted his
motion for new trial because the evidence was insufficient. As noted above, appellant
argued in his motion for new trial that he “was prevented from the introduction of
competent, relevant evidence,” which suggests that appellant offered evidence that the
trial court improperly excluded. However, appellant has not briefed any evidentiary
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error in this appeal. There being no further explanation for how the “[t]he verdict in this
cause is contrary to the law and the evidence,” we conclude that appellant has failed to
demonstrate that the trial court abused its discretion in denying his motion new trial.
Appellant’s third issue is overruled.
V. CONCLUSION
The judgment of the trial court is affirmed.
__________________
ROGELIO VALDEZ
Chief Justice
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
9th day of August, 2012.
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Guadalupe Tovar Chavez Jr. v. State
Combined Opinion