NO. 12-21-00116-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JUDSON TAYLOR BROWN, § APPEAL FROM THE 294TH
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § VAN ZANDT COUNTY, TEXAS
MEMORANDUM OPINION
Judson Taylor Brown appeals his conviction for evading arrest in a vehicle. He presents
three issues for our consideration. We modify and affirm as modified.
BACKGROUND
During the early morning hours of June 2, 2020, Derek Heitner, an officer with the
Canton Police Department, was on routine patrol in Canton, Texas. Heitner noticed a black Ford
truck parked in front of a closed furniture store. Heitner noted that the vehicle had not been there
on his previous patrol of the area an hour earlier. He found it unusual for a car to be parked in
the store lot at the late hour because no businesses were open and there was no reason for a car to
be parked in the lot. Heitner decided to investigate, pulled into the parking lot, approached the
vehicle, and found it unoccupied. The truck’s hood was warm, indicating that it had been
recently driven. Using his in-car computer, Heitner searched the license plate and registration
through a law enforcement database and found that neither the plates nor the registration returned
to the truck. In fact, the registration and license plate returned to two separate vehicles. Heitner
testified that it is unlawful for an individual to display a registration sticker or license plate that is
not registered to the vehicle displaying the sticker or plate.
Heitner ran the vehicle identification number through the database and the number
returned to an individual, who was not Appellant, but who had active warrants. Heitner and his
partner, Officer Brian Everitt, parked their patrol vehicles in an area where they could see the
vehicle and wait for the driver to return. Heitner was concerned about a possible burglary,
because there is a pharmacy in the area that had been “hit” several times. He further testified
that, in his experience, people who commit burglaries often try to mask their vehicle using
fraudulent plates or tags.
After approximately ten minutes, Appellant came onto the scene, entered the vehicle, and
began to drive away. Heitner activated his lights and sirens and began following Appellant to
detain him, but Appellant did not stop. Appellant proceeded to lead officers on a forty-three
minute, high speed chase from Canton to Mabank, Texas.
Multiple officers joined the chase, and the Kaufman County Sheriff’s Office ultimately
deployed spike strips, causing Appellant’s tire to deflate and fall off, leading him to crash in a
ditch. Appellant was arrested and later indicted for evading arrest in a vehicle.
At trial, Appellant conceded most of the State’s case. He only challenged whether
Heitner’s initial reasons for detaining Appellant were lawful. Appellant argued that Heitner’s
real motivation for attempting to detain him was an unreasonable suspicion that Appellant was
committing a burglary. The State emphasized Heitner’s testimony that the truck Appellant was
driving had fraudulent plates and registration, which provided Heitner with reasonable suspicion
to lawfully detain Appellant. The jury found Appellant guilty, and, after pleading “true” to one
enhancement allegation, the trial court sentenced Appellant to imprisonment for thirteen years
with a $1,500.00 fine. This appeal followed.
JURY CHARGE ERROR
In Appellant’s first issue, he argues that the trial court erred by not providing the legal
definitions of “lawful arrest” and “lawful detention” in its written charge to the jury. 1 The State
concedes that the omission of these definitions constitutes error. However, because Appellant
failed to object to the omission of these definitions at trial, the State argues that Appellant must
1
The definitions quoted by Appellant come from the State Bar Commission on Criminal Pattern Jury
Charges. Comm. on Pattern Jury Charges—Criminal, State Bar of Tex., Texas Criminal Pattern Jury Charges:
Intoxication, Controlled Substances & Public Order Offenses CPJC § 63.4 (2019).
2
show egregious harm. The State argues that Appellant cannot show egregious harm because
even if the charge included the definitions, the jury would still have found Appellant “guilty.”
Analysis
We review jury charge error in two steps—we first determine whether error exists, and, if
so, we then evaluate whether sufficient harm resulted from the error to require reversal. See
Thomas v. State, 454 S.W.3d 660, 664 (Tex. App.—Texarkana 2014, pet. ref’d). “The purpose
of the jury charge is to inform the jury of the applicable law and guide them in its application to
the case.” Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim. App. 2019) (quoting
Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)); see also TEX. CODE CRIM. PROC.
ANN. Art. 36.14 (West 2007) (“the judge shall, before the argument begins, deliver to the jury,
except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth
the law applicable to the case...”). In reviewing a jury charge issue, an appellate court’s first
duty is to determine whether error exists in the jury charge. Hutch, 922 S.W.2d at 170. If error
is found, the appellate court must analyze that error for harm. Middleton v. State, 125 S.W.3d
450, 453–54 (Tex. Crim. App. 2003). If error was properly preserved by objection, reversal will
be necessary if the error is not harmless. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.
App. 1985), overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App.
1988). Conversely, if error was not preserved at trial by a proper objection, as is the case here, a
reversal will be granted only if the error presents egregious harm, meaning the appellant did not
receive a fair and impartial trial. Id. To obtain reversal for jury-charge error, the appellant must
have suffered actual harm and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d
767, 775 (Tex. Crim. App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).
In the egregious harm analysis, we consider (1) the charge itself, (2) the state of the evidence,
including contested issues and the weight of the probative evidence, (3) arguments of counsel,
and (4) any other relevant information revealed by the trial record in its entirety. See Hutch, 922
S.W.2d at 171.
The omitted definition for lawful arrest is:
An arrest by a peace officer is lawful without an arrest warrant if the officer has probable cause to
believe the person to be arrested committed an offense in the officer’s presence or view.
3
“Probable cause” as required for an arrest means facts known to the officer that would lead a
reasonable law enforcement officer to conclude there is a reasonable probability that a specific
person has engaged in criminal activity.
The omitted definition for lawful attempted detention is:
A brief detention of a person by a peace officer is lawful if the officer has “reasonable suspicion.”
“Reasonable suspicion” means facts known to the officer that would lead a reasonable law
enforcement officer to reasonably suspect that a specific person has engaged in criminal activity,
is engaging in criminal activity, or is about to engage in such activity.
As a general rule, terms need not be defined in the charge if they are not statutorily defined.
Middleton, 125 S.W.3d at 454. But terms which have a technical legal meaning may need to be
defined. Id. This is particularly true when there is a risk that the jurors may arbitrarily apply
their own personal definitions of the term or where a definition of the term is required to assure a
fair understanding of the evidence. Id.
Probable cause and reasonable suspicion are not statutorily defined terms. However,
Appellant argues these terms have a technical legal meaning and should have been defined by
the trial court for the jury. Because the State concedes that the definitions should have been in
the charge, we will assume the omission of these definitions constitutes error. 2 Appellant argues
that he suffered egregious harm as a result of the omission of the aforementioned definitions
because the lawfulness of the arrest or detention was the central issue at trial.
In evaluating whether egregious harm occurred, we must look to the jury charge, the
evidence, including contested issues and the weight of the probative evidence, arguments of
counsel, and any other relevant information revealed by the trial record as a whole. See Hutch,
922 S.W.2d at 171. While the charge did not define lawful arrest or detention, the charge
properly instructed the jurors to find Appellant guilty of evading arrest or detention if they found
beyond a reasonable doubt that Appellant “while using a vehicle, intentionally fle[d] from Derek
2
The Texas Court of Criminal Appeals has found no error where an appellate court assumed without
deciding jury charge error and decided the case solely on harm. Vogel v. State, No. PD-0873-13, 2014 WL
5394605, at *2 (Tex. Crim. App. Sept. 17, 2014) (op., not designated for publication). The Court reasoned that,
because Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985), overruled on other grounds, Rodriguez v.
State, 758 S.W.2d 787 (Tex. Crim. App. 1988) requires both a jury charge error and harm, it makes no difference
which prong a court of appeals finds lacking in rejecting a claim of reversible jury-charge error. Id. This approach
promotes the virtues of deciding cases on narrower grounds and enhancing judicial efficiency by addressing those
elements of a claim that are more quickly and easily resolved. Id.
4
Heitner, a person the Defendant knew was a peace officer who was attempting to lawfully arrest
or detain the Defendant[.]” (emphasis added). Nonetheless, Appellant argues that, without the
definitions of lawful arrest or detention in the charge, the jury was put in the position of deciding
“who is telling them the correct law: the State or the Defense.” The State, in turn, argues that the
jury was given the definitions through the course of trial and Appellant’s trial counsel did not
disagree with those definitions.
Our review of the entire record, including the charge, evidence, and arguments of
counsel, demonstrates that Appellant did not suffer egregious harm as a result of the omitted
definitions. As the State points out, there was ample testimony from Officer Heitner regarding
the standard for reasonable suspicion and probable cause, and Appellant’s trial counsel did not
object or disagree with Heitner’s testimony in that regard. Heitner explained reasonable
suspicion as “certain facts [that] lead you to believe that a crime is about to occur or is occurring,
[law enforcement officers] have the ability to investigate that.” Heitner further articulated the
specific facts he believed gave him reasonable suspicion to detain Appellant:
Yes. I had reasonable suspicion that a crime was or is about to occur based on the vehicle, where
it was parked, the license plate, registration. And then taking steps further, checking on the
registered owner, confirming they also had parole warrants out of another county even led to more
suspicion that, hey, something’s not right here, because this isn’t just somebody parking their car
here. It doesn’t trigger.
Thus, there was no dispute about the definition of reasonable suspicion and, consequently, no
risk that the jurors would arbitrarily apply their own personal definition. See Middleton, 125
S.W.3d at 454 (no error in failing to include definition of probable cause where there was no
ambiguity regarding its meaning). While Appellant argues that his “only contention” at trial was
to “contest the lawful arrest or detention of Brown,” the record reveals that Appellant’s trial
counsel only contested whether Heitner had reasonable suspicion to detain Appellant for
burglary. However, as State’s counsel pointed out during final argument, Heitner had reasonable
suspicion to detain Appellant for the fictitious plate and registration sticker. Thus, whether
Heitner had reasonable suspicion to believe that Appellant committed a burglary is superfluous. 3
3
Reasonable suspicion is an objective standard. Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App.
2001). There need only be an objective basis for the detention and the subjective intent of the officer conducting the
stop is irrelevant. Id.
5
For the foregoing reasons, we conclude that Appellant was not egregiously harmed by the trial
court’s failure to define lawful arrest or detention. See Hutch, 922 S.W.2d at 171. We overrule
Appellant’s first issue.
ENHANCEMENT
In Appellant’s second issue, he argues that the trial court erred by not including in its
written judgment that Appellant pleaded “true” to an enhancement paragraph and the trial court
found the enhancement allegation “true.” The State agrees. Appellant and the State ask this
Court to modify the judgment to reflect Appellant’s plea of “true” to the enhancement and the
trial court’s finding that the enhancement allegation is “true.”
A review of the record indicates that the indictment does contain one enhancement
paragraph, to which Appellant pleaded “true” at the sentencing phase of trial. The trial court
accepted Appellant’s plea and found the allegation “true.” However, the trial court’s judgment
does not reflect that Appellant pleaded “true” to an enhancement allegation or that the trial court
found the enhancement allegation to be “true.” Thus, we sustain Appellant’s second issue.
We have the authority to modify a judgment to make the record speak the truth when we
have the necessary data and information to do so. See TEX. R. APP. P. 43.2(b); Patterson v.
State, 525 S.W.3d 896, 898 (Tex. App.—Tyler 2017, no pet.). Therefore, we modify the trial
court’s judgment to reflect that Appellant pleaded “true” to one enhancement allegation, and we
further modify the judgment to reflect that the trial court found one enhancement allegation
“true.”
TIME PAYMENT FEE
In Appellant’s third issue, he argues that the trial court erred in prematurely assessing the
$15.00 time payment fee authorized by Article 102.030 of the code of criminal procedure. See
TEX. CODE CRIM. PROC. ANN. Art. 102.030 (West Supp. 2021). Our review of the judgment, bill
of costs, and withholding order judicates the trial court assessed a $1,500 fine, $290 in court
costs, and $75 in reimbursement fees. The $15 time payment fee is included with the $75 in
reimbursement fees.
The Texas Court of Criminal Appeals has held that a time payment fee like the one
imposed here must indeed be struck for being prematurely assessed because a defendant’s appeal
6
suspends the duty to pay court costs and therefore suspends the running of the clock for purposes
of the time payment fee. Johnson v. State, No. 06-21-00044-CR, 2022 WL 1177608, at *2
(Tex. App.—Texarkana Apr. 21, 2022, no pet. h.) (mem. op., not designated for publication); see
also Dulin v. State, 620 S.W.3d 129, 129 (Tex. Crim. App. 2021). Thus, we sustain Appellant’s
third issue. Accordingly, we modify the judgment and attached withholding order by deleting
the $15.00 time payment fee without prejudice to the fee being assessed later if, more than thirty
days after the issuance of our mandate, Appellant has failed to completely pay any fine, court
costs, or restitution that he owes. See Dulin, 620 S.W.3d at 133.
DISPOSITION
Having overruled Appellant’s first issue and sustained Appellant’s second and third
issues, we modify the trial court’s judgment to reflect that Appellant pleaded “true” to one
enhancement allegation and the trial court found one enhancement allegation to be “true.” We
further modify the trial court’s judgment and attached withholding order by deleting the $15 time
payment fee. We affirm the trial court’s judgment as modified.
GREG NEELEY
Justice
Opinion delivered May 4, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
7
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
MAY 4, 2022
NO. 12-21-00116-CR
JUDSON TAYLOR BROWN,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 294th District Court
of Van Zandt County, Texas (Tr.Ct.No. CR20-00150)
THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that the judgment of the
court below should be modified and as modified, affirmed.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be modified to reflect that Appellant pleaded “true” to one enhancement
allegation and the trial court found one enhancement allegation to be “true.” It is further
ORDERED, ADJUDGED and DECREED that the trial court’s judgment and attached
withholding order be modified by deleting the $15 time payment fee; in all other respects the
judgment of the trial court is affirmed; and that this decision be certified to the court below for
observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.