Opinion issued October 31, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00754-CV
———————————
IN THE MATTER OF G.G., A CHILD
On Appeal from the 313th District Court
Harris County, Texas
Trial Court Case No. 2016-01145J
MEMORANDUM OPINION
The State petitioned the trial court to adjudge G.G., a juvenile, as delinquent
based on charges of (1) assault of a public servant; and (2) escape from the custody
of a peace officer while under arrest. See TEX. PENAL CODE §§ 22.01(b)(1), 38.06.
G.G. pleaded “not true” to both charges. The jury that heard the case found the
allegation of assault was not true, but it found the allegation of escape to be true.
On appeal, G.G. contends that (1) the evidence is insufficient to support the
jury’s finding that he engaged in delinquent conduct constituting the offense of
escape while under arrest, and (2) the trial court reversibly erred by refusing to
submit a definition of arrest in the jury charge. We hold that the evidence is legally
sufficient to support the judgment and any error in refusing the definition was
harmless. We therefore affirm.
Background
One school day in February 2016, a teacher in Cypress Ridge High School
called Assistant Principal Emily Francis to her classroom because one of the
students—G.G.—had fallen asleep and would not awaken. When Francis arrived,
she roused G.G. by speaking to him loudly and asked him to follow her to her office.
Once they were seated in the office, Francis began to ask G.G. questions. During
their conversation, Francis noticed that G.G.’s eyes were extremely red and he
appeared to be very drowsy. His speech was slurred as he answered her questions.
Francis radioed for the school nurse, Cindy McCloud, to come to her office to
determine whether G.G. needed medical treatment. While they waited for McCloud
to arrive, G.G. informed Francis that he did not want to wait and left Francis’s office.
Francis followed G.G. and radioed another assistant principal for assistance.
Francis and the other assistant principal guided G.G. to the nurse’s office. When
they arrived, McCloud took G.G. into a private room to perform an impairment
2
assessment test, which is designed to determine whether a student is under the
influence of alcohol or other substances. McCloud determined that G.G. was under
the influence of drugs.
Francis and G.G. returned to Francis’s office where Francis, with another
administrator present, told G.G. the results of the assessment. G.G. became angry,
stood up, and forced his way out of the office. While Francis radioed for assistance,
the other administrator followed G.G. as he entered the main hall and continued
walking away. Officer T. Brooks of the school district’s police force, who had
answered Francis’s radio call, took charge of the situation and began talking with
G.G.
Officer Brooks and Assistant Principal Richard Dixon attempted to restrain
G.G. to keep him from leaving the building. While they were struggling to restrain
G.G., G.G. head-butted Dixon in the face. When Officer Brooks was finally able to
restrain G.G., he placed G.G.’s hands behind his back, handcuffed him, and escorted
him to the principal’s office. When they arrived, Officer Brooks informed G.G. that
he was being detained until he got the district attorney to accept charges for
assaulting a public servant. Officer Brooks then called the district attorney’s office,
which accepted the charges. Officer Brooks informed G.G. that he was formally
under arrest for assault on a public servant.
3
Once Officer Brooks’s partner arrived at the office, the officers prepared to
escort G.G. to the patrol car. They each stood beside G.G., placed an arm on G.G.’s
arm, and began to walk with him from the office to the patrol car. Within a minute
or so after they left the office, G.G. broke away from the officers and, still in
handcuffs, ran through the busy school cafeteria, out the exit door, and into the
school parking lot. A chase ensued, and the officers eventually captured G.G. and
took him into custody.
Discussion
I. Evidentiary sufficiency
G.G. contends that the evidence was legally and factually insufficient to
support the jury’s verdict that G.G. engaged in delinquent conduct constituting the
offense of escape from police custody while under arrest for the assault of a public
servant.
A. Standard of review and applicable law
Although they are civil proceedings, juvenile cases are “quasi-criminal” in
nature. In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998); In re T.W.C., 258 S.W.2d
218, 222 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Civil and criminal rules
apply at different stages of the same proceeding. In re S.W., No. 01-12-01089-CV,
2013 WL 6097794, at *2 (Tex. App.—Houston [1st Dist.] Nov. 19, 2013, no pet.)
(mem. op.) (citing In re K.H., 169 S.W.3d 459, 462 (Tex. App.—Texarkana 2005,
4
no pet.)); see also TEX. FAM. CODE § 51.17 (outlining rules of procedure and
evidence applying to juvenile proceedings).
A trial court may adjudicate a juvenile as delinquent only if it finds beyond a
reasonable doubt that the juvenile committed the offense charged. TEX. FAM. CODE
§ 54.03(f). Accordingly, we review challenges to the sufficiency of the evidence to
support a finding that a juvenile engaged in delinquent conduct using the standards
applicable to criminal cases. In re S.W., 2013 WL 6097794, at *2; In re C.J., 285
S.W.3d 53, 55–56 (Tex. App.—Houston [1st Dist.] 2009, no pet.). In evaluating
evidentiary sufficiency, we apply the standard adopted by the Texas Court of
Criminal Appeals, as set out in Jackson v. Virginia. In re S.W., 2013 WL 6097794,
at *2 (first citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
and then citing In re M.C.S., 327 S.W.3d 802, 805 (Tex. App.—Fort Worth 2010,
no pet.)).
Using this standard, we view all of the evidence in the light most favorable to
the verdict to determine whether any rational fact finder could have found the
essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App.
2011) (holding that Jackson standard is only standard to use when determining
sufficiency of evidence). Under the Jackson standard, evidence may be insufficient
in either of two circumstances: (1) the record contains no evidence, or merely a
5
“modicum” of evidence, probative of an element of the offense, or (2) the evidence
conclusively establishes a reasonable doubt. See Jackson, 443 U.S. at 314, 318 &
n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; Laster v. State, 275 S.W.3d 512, 518 (Tex.
Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The factfinder is the exclusive judge of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d
147, 150 (Tex. Crim. App. 2008). We presume that the fact finder resolved any
conflicts in the evidence in favor of the verdict and defer to that resolution, provided
that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; see
also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
We consider circumstantial evidence to be as probative as direct evidence in
establishing the guilt of an actor, and circumstantial evidence alone can be sufficient
to establish guilt. Clayton, 235 S.W.3d at 778. “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 v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Johnson v. State, 871 S.W.2d
183, 186 (Tex. Crim. App. 1993).
Pertinent to this case, the Texas Penal Code provides that a person commits
the offense of escape “if the person escapes from custody when the person . . . is
under arrest for, lawfully detained for, charged with, or convicted of an offense.”
6
TEX. PENAL CODE § 38.06(a)(1). G.G. specifically challenges that the evidence was
insufficient to prove that he reasonably believed he was under arrest when he
escaped from Officer Brooks. In his own testimony, G.G. claimed that Officer
Brooks never told him that he was under arrest. G.G. further claimed that he did not
know he was under arrest when he ran through the cafeteria wearing handcuffs.
Whether an officer tells a suspect that he is under arrest, however, is neither
sufficient, standing alone, nor necessary to show that an arrest occurred. See
Medford v. State, 13 S.W.3d 769, 772–73 (Tex. Crim. App. 2000); Castillo v. State,
404 S.W.3d 557 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d). In Medford v.
State, the Court of Criminal Appeals reiterated its observation in Smith v. State, 219
S.W.2d 454 (Tex. Crim. App. 1949), that “t]he mere fact that an officer makes the
statement to an accused that he is under arrest does not complete that arrest. There
must be custody or detention and submission to such arrest.” Smith, 219 S.W.3d at
456, quoted in Medford, 13 S.W.3d at 772–73 (adding emphasis). In devising a
definition of “arrest” for purposes of the escape statute, the Medford Court focused
on whether “a reasonable person in the suspect’s position would have understood
the situation to constitute a restraint on freedom of movement of the degree which
the law associates with formal arrest.’” 13 S.W.3d 769, 773 (Tex. Crim. App. 2000)
(quoting United States v. Corral-Franco, 848 F.2d 536, 540 (5th Cir. 1988)).
7
Following Medford, this Court held in Castillo that legally sufficient evidence
supported a finding that the defendant escaped from custody while under arrest even
though the defendant had not been handcuffed or told that he was under arrest. 404
S.W.3d at 561. The evidence showed that:
officers informed the defendant he was being taken back to the house for
a marijuana investigation;
the defendant had been told that the officers had observed him at the house,
where the defendant had taken a package containing marijuana from a
truck into the house;
the defendant saw the officers discover similar packages of marijuana in
the black truck, which gave them probable cause to arrest him; and
the officers had detained the defendant in the back seat of a patrol car,
thereby restricting his freedom of movement to the degree which the law
associates with formal arrest.
Id. at 563.
In this case, the evidence shows that school officials informed G.G. that they
suspected he was under the influence of drugs. When G.G. tried to leave the
building, he was stopped by a school official and an altercation ensued. Officer
Brooks forcibly restrained G.G., placed him in handcuffs with his hands behind his
back, and escorted him to a school office. G.G. waited there with Officer Brooks
until Brooks completed his telephone call to the district attorney and his partner
arrived. The officers prepared to escort G.G. to the patrol car by standing on either
side of G.G. Each officer placed an arm over one of G.G.’s arms, and they proceeded
8
out of the office and into the hall in this manner. After complying for a minute or
two, G.G., still in handcuffs, broke away from the officers and ran out of the school.
Even without an officer’s declaration, a reasonable person would have understood
that he was under arrest.
Further, the jury was entitled to disbelieve G.G. as to whether Officer Brooks
told him he was under arrest. Contrary to G.G.’s account, Officer Brooks testified
that he informed G.G. that he was under arrest while they were in the principal’s
office. Afterward, while Officer Brooks and his partner were escorting G.G. in
handcuffs to the patrol car, G.G. broke free and ran away from them. Accordingly,
we hold that sufficient evidence supports the jury’s finding that G.G. committed the
offense of escape.
II. Jury charge error
G.G. also contends that the trial court erred in overruling his objection to the
definition of “arrest” submitted in the jury charge and in refusing to further instruct
the jury on his definition of arrest, derived from Medford. G.G.’s proposed
instruction includes the statement that “any arrest is complete only if a reasonable
person in the suspect’s position would have understood the situation to constitute a
restraint on freedom of movement of the degree which the law associates with a
formal arrest.”
9
The trial court’s charge in this case instructed the jury, “A person is arrested
when he has been actually placed under restraint or taken into custody by an officer
or person executing a warrant of arrest, or by an officer or person arresting without
a warrant.” This instruction is a verbatim recitation of article 15.22 of the Texas
Code of Criminal Procedure.
G.G. complains that the trial court erred in overruling his objection and
refusing his tendered instruction, and that this error harmed his substantial rights
because the submitted definition did not accurately inform the jury about the law of
arrest as it applies to his case. The jury sent out a note during deliberations
questioning the definition, asking “Does the respondent have to know and
understand that he is under arrest to intentionally and knowingly escape?” The trial
court responded by telling the jury to “refer to the charge and keep deliberating.”
In Medford, the Court of Criminal Appeals determined that the definition of
“arrest” found in article 15.22 was not useful as applied to the escape statute because
arrest is defined as being taken into custody, and custody is defined as being under
arrest. 13 S.W.3d at 772. This becomes problematic when distinguishing between
evading arrest, resisting arrest, and escape. See Warner v. State, 257 S.W.3d 243,
247 (Tex. Crim. App. 2008). The Court’s jury definition of “arrest,” for purposes of
the escape statute, provides that
an “arrest” is complete when a person’s liberty of movement is
successfully restricted or restrained, whether this is achieved by an
10
officer’s physical force or the suspect’s submission to the officer’s
authority. Furthermore, an arrest is complete only if a reasonable
person in the suspect’s position would have understood the situation to
constitute a restraint on freedom of movement of the degree which the
law associates with formal arrest.
Id. at 773. By incorporating a reasonable-person standard, the definition directs the
jury to consider the nature of the official restraint from an objective standpoint rather
than from the suspect’s own perception or understanding.
In this case, G.G. preserved his complaint by timely objecting to the charge,
but we conclude that any error in refusing to submit the instruction was harmless.
See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
The charge as submitted did not ask the jury to consider pre-arrest evasion or
resistance, where the evidence was in dispute. The escape charge arises out of the
circumstances that occurred after Officer Brooks placed G.G. in handcuffs, when
G.G. already knew he was suspected of having used drugs. The only conflict
pertaining to the arrest issue concerned whether Officer Brooks told G.G. he was
under arrest: G.G. denied that Officer Brooks made any such statement and did not
believe he was under arrest. Even crediting G.G.’s testimony on this issue, it
concerns whether G.G. subjectively understood that he was under arrest, which is
not required under Medford. See 13 S.W.3d at 773.
The jury’s note sent during deliberations, which questioned whether to
consider G.G.’s subjective understanding that he was under arrest, does not
11
demonstrate any harm resulting from the trial court’s refusal to submit G.G.’s
requested instruction. The requested instruction tracked Medford, which instructs
the jury to use a reasonable-person standard to evaluate whether an arrest occurred—
not to consider the suspect’s subjective knowledge. The trial court’s instruction did
not so limit the jury; thus, as instructed, the jury could have applied a subjective
standard, which would have inured to G.G.’s benefit. Accordingly, we hold that the
failure to include the instruction did not result in an improper verdict or cause G.G.
harm. See Almanza, 686 S.W.2d at 171.
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Jennings, Bland, and Brown.
12