IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0840-14
KEIONA DASHELLE NOWLIN, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE TENTH COURT OF APPEALS
MCLENNAN COUNTY
M EYERS, J., delivered the opinion for a unanimous Court.
OPINION
Appellant was convicted of hindering apprehension after encouraging her boyfriend,
Demarcus Degrate, to run from United States Marshals who were arresting him. Because the
State alleged that Appellant knew that Degrate was charged with a felony, her offense was
elevated to a third-degree felony, and she was sentenced to four years in prison. Appellant
appealed, arguing that the evidence was insufficient to support her conviction. Nowlin v.
State, No. 10-12-00239-CR, 2014 Tex. App. LEXIS 5309 (Tex. App.–Waco May 15, 2014)
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(mem. op.). The court of appeals found the evidence to be sufficient and affirmed
Appellant’s conviction. Id. at *12. We granted Appellant’s petition of discretionary review
to determine whether the evidence was legally sufficient to prove that she knew Degrate was
charged with a felony offense.
FACTS
Degrate was charged in federal court with the offense of felon in possession of a
firearm. His indictment was sealed. At the time of the incident, he was also on bond for state
charges, but no evidence was presented as to what those charges were. Deputy United States
Marshal Kevin Scott went to Degrate’s address to execute the sealed federal warrant. When
he saw Degrate and Appellant exit the home, Scott followed in his car, activated his lights
and siren, and yelled at them to stop. At that point, Degrate fled and Scott immediately began
chasing him. Scott testified that he did not hear Appellant say anything to Degrate and that
he did not inform Appellant and Degrate why he was stopping them before Degrate began
to flee.
United States Marshal Clayton Brown testified that he responded to the scene after
Degrate began fleeing and that he came across Appellant and heard her shouting “Run baby
run! Get away.” Brown also explained that all of the officers were wearing clothing that
labeled them as such, and therefore, it would have been easy to identify them.
Deputy United States Marshal Anton Slavich was a backup officer who arrived on the
scene shortly after. He testified that he saw Appellant running while he was pursuing
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Degrate, and decided to go after her. He was able to stop her and detained her in his car in
order to find out why she was running. She then attempted to flee from the car, but Slavich
caught up with her and placed her under arrest for escape. He testified that she stated to him
that when she saw the officers, she told Degrate, “Those are the marshals.” or “That’s the
laws. Run.” Slavich testified that Appellant explained to him that she knew the cars that the
Marshals drove because people in the neighborhood had pictures of them. Appellant also
told Slavich that she did not want Degrate to get arrested and knew that he was out on bond
for the state charges and that he was supposed to turn himself in on Wednesday of that week
for failing to make payments. Slavich also testified that Appellant had “Demarcus Degrate”
tattooed across her chest, near her collarbone.
At the conclusion of the presentation of evidence, the trial court found Appellant
guilty of the third-degree felony of hindering apprehension and sentenced her to four years
in prison.
COURT OF APPEALS
Appellant appealed her conviction, arguing that the evidence was insufficient to show
that she “warned” Demarcus Degrate of impending apprehension or that she had knowledge
that Degrate was charged with a felony offense. Nowlin, 2014 Tex. App. LEXIS 5309 at *1.
Appellant asserted that she could not “warn” Degrate of impending apprehension
because he was already aware of the officers’ presence when she said something to him.
However, the court of appeals held that Slavich’s testimony about what Appellant had said
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to Degrate provided sufficient evidence to establish that Appellant had “warned” Degrate of
discovery or apprehension. Id. at *9-10. This issue is not being considering in the present
case.
Appellant also challenged the sufficiency of the evidence enhancing her conviction
for hindering apprehension from a misdemeanor to a third-degree felony under Texas Penal
Code section 38.05(d). Id. at *10-11. She argued that, because the federal warrant was sealed
and no one testified about the offense for which Degrate was on bond, the evidence did not
show that she knew Degrate was charged with a felony. Id.
The court of appeals, however, disagreed. It pointed out that Appellant admitted that
she knew Degrate had a problem with his bond and that she did not “want her man to get
arrested.” Id. at *11. She also recognized the Marshals’ vehicles and warned Degrate that
they were there to arrest him. Id. The court of appeals also asserted that having Degrate’s
name tattooed on her indicated that Appellant and Degrate had a close relationship. Id.
Finally, it considered the fact that Appellant made attempts to escape apprehension herself.
Id. Relying on these pieces of evidence, the court of appeals held that it was not unreasonable
for the trial court to infer that she had knowledge that Degrate was charged with a felony and
affirmed the judgment of the trial court. Id. at *11-12. Justice Gray dissented without an
opinion.
ARGUMENTS OF THE PARTIES
Appellant argues that, because the federal indictment was sealed, it was kept secret,
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and she could not have had knowledge of its existence. Further, there was no evidence
presented as to what state offense Degrate was on bond for or that Appellant knew what
offense he was on bond for. Appellant never stated that she knew what Degrate was charged
with, and none of the officers testified that they told either Appellant or Degrate what offense
they were arresting Degrate for. Appellant asserts that having a close relationship with
Degrate cannot go to show that she had knowledge of the charges against Degrate when that
indictment was sealed, and neither of them could have known about the felony arrest warrant.
Appellant concludes that, while the evidence may have shown that she “did not want her man
to get arrested,” none of the evidence tended to prove that she knew Degrate was charged
with a felony and, therefore, the State failed to prove an element of the crime for which
Appellant was convicted. Appellant asks us to reverse the judgment of the court of appeals
and remand the case to the trial court with instructions to enter a judgment of acquittal.
The State argues that the evidence was, in fact, sufficient, and that we should uphold
the judgment of the court of appeals. It says that the intimate relationship between Appellant
and Degrate is evidence that she knew about important details of his life, including what
crimes he had committed and what he was wanted for. The State asserts that Appellant knew
about Degrate’s criminal charges and that he was going to be arrested, which is sufficient to
prove that she knew he was wanted on a felony charge. The State also argues that Appellant’s
warning to Degrate to run and her own attempt to flee custody are additional evidence that
she had knowledge of the serious nature of Degrate’s criminal conduct. It posits that she took
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the risk of fleeing because she had knowledge of the seriousness of the charges against
Degrate. Finally, the State reasons that, because Appellant knew the marshals’ vehicles on
sight and stated that she “didn’t want her man to get arrested,” she knew they were there to
arrest Degrate and, because of their close relationship, she knew why. The State maintains
that whether the indictment was sealed is irrelevant because Appellant’s actions, admissions,
relationship with Degrate, and knowledge of his criminal activity are sufficient to prove her
knowledge of Degrate’s charges and uphold her conviction.
In the alternative, the State explains, if we find the evidence of Appellant’s knowledge
of Degrate’s charges to be insufficient, then we should reform the judgment to the lesser-
included offense of misdemeanor hindering apprehension rather than enter an acquittal.
Canida v. State, 434 S.W.3d 163, 166 (Tex. Crim. App. 2014) (citing Thornton v. State, 425
S.W.3d 289 (Tex. Crim. App. 2014)). The State asserts that, because knowledge of Degrate’s
felony charge is an aggravating factor, all of the essential elements of misdemeanor hindering
apprehension have necessarily been found by the factfinder.
SUFFICIENCY OF THE EVIDENCE
It is our responsibility to ensure that the verdict is supported by the evidence the State
presented and that the evidence is legally sufficent to prove each element of the offense
charged. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). In evaluating
whether the evidence presented in a case was sufficient to support a conviction, we examine
the evidence in the light most favorable to the verdict and determine whether any rational
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trier of fact could have found each essential element of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); Williams v. State, 270 S.W.3d 140, 142 (Tex.
Crim. App. 2008). If a rational trier of fact would necessarily have a reasonable doubt as to
the defendant’s guilt, due process requires the conviction to be reversed. Swearingen v. State,
101 S.W.3d 89, 95 (Tex. Crim. App. 2003) (citing Narvaiz v. State, 840 S.W.2d 415, 423
(Tex. Crim. App. 1992)). We defer to the factfinder’s determinations on witnesses’
credibility and the weight to be given to their testimony and do not substitute our judgment
on these matters. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). If there are
conflicting inferences that could be supported by the evidence in the record, we assume that
the factfinder resolved the conflict in favor of the prosecution, even if that resolution is not
explicitly within the record. Id. at 899 n. 13 (quoting Jackson, 443 U.S. at 326).
Because factfinders are permitted to make reasonable inferences, both direct and
circumstantial evidence are probative to a case and it is possible for circumstantial evidence
alone to be enough to establish guilt. Hooper v. State, 214 S.W.3d 9, 14-15 (Tex. Crim. App.
2007); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citing Miles v. State,
73 Tex. Crim. 493, 165 S.W. 567, 570 (Tex. Crim. App. 1914)). The standard of review for
sufficiency of the evidence is the same whether the evidence is direct or circumstantial. Wise
v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Not every fact presented must directly
indicate the defendant is guilty, but the cumulative force of the evidence can be sufficient to
support a finding of guilt. Beardsley v. State, 738 S.W.2d 681, 685 (Tex. Crim. App. 1987).
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A strong suspicion or mere probability of guilt are insufficient. Id. In examining the
evidence, factfinders are not permitted to make conclusions based on unsupported inferences
or to guess at the possible meaning of a piece of evidence. Hooper, 214 S.W.3d at 15-16.
While such a guess may be a reasonable one, it is not sufficient to support a finding of an
element beyond a reasonable doubt because it is not based on facts. Id. However, where the
inferences made by the factfinder are reasonable in light of “the cumulative force of all the
evidence when considered in the light most favorable to the verdict,” the conviction will be
upheld. Wise, 364, S.W.3d at 903.
In order to show that the evidence presented was legally sufficient to support a
conviction of felony hindering apprehension, the State must prove that: (1) the defendant
warned another person of impending discovery or apprehension, (2) the defendant had the
intent to hinder that individual’s arrest, and (3) the defendant had knowledge that the
individual was under arrest for, charged with, or convicted of a felony. See T EX. P ENAL C ODE
§ 38.05(a), (d). Only the last element, knowledge of the individual’s being charged with a
felony, is being challenged in this case. With respect to this offense, an individual acts with
knowledge when he is aware that the circumstances exist. T EX. P ENAL C ODE § 6.03(b).
Therefore, the State had to prove that Appellant was aware that Degrate was under arrest for,
charged with, or convicted of a felony.
ANALYSIS
The court of appeals affirmed Appellant’s conviction based on the evidence of her
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knowledge about Degrate’s state bond, the fact she recognized the Marshals’ vehicles, her
close relationship with Degrate (evidenced by the tattoo), and her own escape attempt. While
the court of appeals held that this was sufficient evidence of Appellant’s knowledge of
Degrate’s federal felony charge, we do not agree.
First, the state offense that Degrate was on bond for cannot serve as the basis for
Appellant’s conviction. While the evidence submitted indicated that Appellant knew Degrate
was out on bond for some offense, nothing was presented that showed what that offense was.
Thus, the court had no way of determining whether the state offense that Degrate was
charged with was a felony. Further, there was no testimony that Appellant knew what the
state offense was or whether it was a felony. Therefore, there was insufficient evidence
regarding the state crime that Degrate was charged with in order for it to serve as the felony
needed for Appellant’s conviction.
Next, we turn to the federal offense for which the marshals were arresting Degrate on
the day in question. Degrate was charged with felon in possession of a firearm, which is a
felony, and therefore, if the State proved that Appellant knew of the charge, her felony
conviction is valid. However, Degrate’s federal indictment was sealed. Federal Rule of
Criminal Procedure 6(e)(4) states:
The magistrate judge to whom an indictment is returned may direct that the
indictment be kept secret until the defendant is in custody or has been released
pending trial. The clerk must then seal the indictment, and no person may
disclose the indictment’s existence except as necessary to issue or execute a
warrant or summons.
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There are various purposes for sealing an indictment, including, but not limited to,
protection of potential witnesses or facilitation of an arrest. United States v. Wright, 343
F.3d 849, 858 (6th Cir. 2003); United States v. Srulowitz, 819 F.2d 37, 40 (2nd Cir. 1987);
see also United States v. DiSalvo, 34 F.3d 1204, 1218 (3rd Cir. 1994) (“An indictment may
be sealed for any legitimate law enforcement reason or where the public interest requires
it.”); United States v. Ellis, 622 F.3d 784, 793 (7th Cir. 2010) (holding that sealing an
indictment for the security of witnesses and to protect against witness tampering was
proper); United States v. Edwards, 777 F.2d 644, 647-48 (11th Cir. 1985) (holding that
locating and gaining custody over a defendant is not the only valid reason for sealing an
indictment).
As the rule states, the existence of the indictment may be kept secret except as
necessary to execute the warrant. There was no evidence presented that either Degrate or
Appellant had found out about the indictment prior to the arrest, nor did any of the officers
testify that they ever stated what they were arresting Degrate for on that day. With this
mandated secrecy and the lack of evidence that he was told about the indictment during the
attempt to arrest him, Degrate could not have known that he was under indictment for felon
in possession of a firearm. Thus, it is impossible for him to have told Appellant about the
indictment or what offense it charged him with.
The court of appeals pointed to a variety of factors that it believed indicated that
Appellant knew about the felony charges against Degrate, such as her close relationship with
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him and her own attempt to escape. However, with zero evidence of Degrate having
knowledge of the indictment, all of the factors discussed by the court of appeals are just
unsupported inferences. It does not matter how close the relationship between Degrate and
Appellant was if he did not have knowledge of the felony charges himself. Nor do we see
how a reasonable factfinder could infer that attempting to escape arrest herself means that
Appellant knew of the charges against Degrate. While the inferences that the court of
appeals makes would likely be reasonable ones had there been any evidence of Degrate
himself having knowledge of the indictment, no such evidence was ever presented. In fact,
the evidence that the indictment was sealed and that no Marshals explained the charge
against Degrate when making the arrest indicates that Degrate could not have had
knowledge of the charge.
Because the indictment was ordered to be sealed and there was no evidence that
either Degrate or Appellant was told or knew about its existence, the evidence presented was
insufficient for a reasonable factfinder to have found beyond a reasonable doubt that
Appellant knew Degrate was charged with a felony. Therefore, her felony conviction of
hindering apprehension cannot be upheld.
However, as the State asserts, the trial court necessarily found each element of the
lesser-included offense of misdemeanor hindering apprehension and the evidence is
sufficient to support a conviction on that offense. Therefore, under Thornton, 425 S.W.3d
at 299-300, rather than acquitting Appellant, we must reform her conviction to misdemeanor
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hindering apprehension and remand the case to the trial court for a new punishment hearing.
CONCLUSION
The evidence in this case was insufficient to support Appellant’s felony conviction.
However, the State is correct in asserting that the element of knowledge that Degrate was
being arrested for a felony offense is an aggravating factor and, therefore, the trial court
necessarily found the essential elements of misdemeanor hindering apprehension. Therefore,
we reform the judgment to reflect a conviction of misdemeanor hindering apprehension and
remand the case to the trial court to conduct a new punishment hearing.
Delivered: October 28, 2015
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