Timothy Lovington v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-16-00109-CR

TIMOTHY LOVINGTON, APPELLANT

THE STATE OF TEXAS, APPELLEE

On Appeal from the 137th District Court
Lubbock County, Texas
Trial Court No. 2015-407,978, Honorable John J. “Trey” McClendon III, Presiding

December 13, 2016

MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant, Timothy Lovington, appeals his conviction for evading arrest through

the use of a motor vehicle, the latter being deemed a deadly weapon. Three issues

pend for resolution. Two mention appellant’s motion to suppress that the trial court

denied; but whether he uses the issues to attack the decision to deny the motion or to

question the sufficiency of the evidence underlying an element of the crime for which he

was convicted is unclear. The third issue concerns whether appellant received the

effective assistance of counsel. We affirm.
Background

Appellant was arrested after engaging in a motor vehicle chase with the police.

An officer had been dispatched to a local convenience store around 10:30 p.m. A

customer in the store had phoned the police at the behest of the store’s cashier. The

latter had feared being robbed by three men walking around the store. Included in the

three was appellant. Apparently, they had parked their car by the gas pumps and

entered the store.

The customer who phoned the police had described the three individuals and the

vehicle they had parked outside the store. Among other things mentioned in the

description was reference to the car as having a “dealer tag.” The foregoing information

was provided to the officer dispatched to the scene before arriving thereat. And, as he

arrived, the officer saw the car in question begin to drive away. This resulted in him

activating the unit’s emergency lights in an attempt to halt the car’s departure.

Appellant, who was apparently driving, did not stop, though.1 This led to a car chase

resulting in appellant crashing the car, thereafter exiting it, and attempting to run away.

His attempt was unsuccessful.

Motion to Suppress

As previously indicated, appellant filed a motion to suppress, contending that the

stop was illegal. He believed that the officer had neither probable cause nor reasonable

suspicion to detain him. The trial court held an evidentiary hearing on the motion and

denied it. This led to appellant’s charged offense being tried to a jury, which jury

1
Appellant disputes whether he was driving off before the officer activated the emergency lights.
The officer testified that as “I arrive[d], it [appellant’s car] begins to pull away from the gas pump.” When
asked if that was “when you activate[d] your lights,” he replied “yes.” A rational juror could interpret this
as evidence illustrating the officer activated his emergency lights and thereby attempted to initiate a stop
after appellant began to leave.

2
convicted him of evading arrest. Through his statement of his issues, appellant

criticizes the trial court’s decision to deny his motion to suppress. Yet, in the body of his

brief he argues:

Relying on the evading statute, the prosecution had to prove that
Appellant fled knowing that the other persons were law enforcement and
also knowing that they were attempting to make a lawful detention. The
evidence is clear that it was not proven that Appellant knew that he was
the subject of a lawful attempt to detain him. Appellant did admit in the
motion to suppress that he knew the persons trying to stop him were law
enforcement but denied knowing that they were attempting to make a
lawful stop because he had paid for his gas and for the snacks that he
obtained. Without proof of that knowledge, the evading statute cannot
result in a conviction as imposed upon Appellant.

(Emphasis added).

Our task would be facilitated if appellant’s actual dispute was worded more

clearly. We are left wondering if he attacks the decision to overrule the motion to

suppress or if he questions the sufficiency of the evidence underlying his conviction.

Out of utmost caution, we will address both, and, in doing so, overrule both.

A person commits the offense of evading arrest or detention when he

intentionally flees from a person he knows is a peace officer attempting lawfully to

detain him. Woods v. State, 153 S.W.3d 413, 415 n.8 (Tex. Crim. App. 2005);

Rodriguez v. State, __S.W.3d __, 2016 Tex. App. LEXIS 8494, at *4 (Tex. App.—

Amarillo August 8, 2016, no pet.); TEX. PENAL CODE ANN. § 38.04(a) (West Supp. 2016)

(stating that “[a] person commits an offense if he intentionally flees from a person he

knows is a peace officer or federal special investigator attempting lawfully to arrest or

detain him”). Furthermore, the lawfulness of the detention is an element of the crime.

Rodriguez v. State, 2016 Tex. App. LEXIS 8494, at *5.

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Whether the detention at bar was lawful formed the basis of the complaint

encompassed within appellant’s motion to suppress. Because that subject also

constituted an element of the crime, its resolution was inappropriate via a motion to

suppress. That is, “statutes authorizing pre-trial proceedings do not contemplate a

‘mini-trial’ on the sufficiency of the evidence to support an element of the offense.”

Woods v. State, 153 S.W.3d at 415. “By asking for the trial judge to suppress the

arrest, and the details of his flight and evasion of the detention. . .[a]ppellant [i]s in effect

asking the trial judge to rule on whether the prosecution had proof of an element of the

offense.” Id. Yet, the purpose of pre-trial motions, such as one to suppress evidence, is

to address preliminary matters, not the merits of the case itself. Id. So, under

circumstances like those at bar, whether the detention was lawful is not a proper subject

for resolution through a pre-trial motion to suppress. Id. at 415-16; accord, York v.

State, 342 S.W.3d 528, 544 (Tex. Crim. App. 2011) (acknowledging the holding in

Woods and stating that “when the validity of an arrest or detention is an element of the

charged offense, litigating the validity of the seizure as a suppression issue is

inappropriate [and]. . .the issue should simply be litigated as part of the State’s case at

trial.”). That means the trial court did not err in refusing to grant appellant’s motion to

suppress, at bar.

As for whether the evidence was sufficient to uphold the verdict because the

State failed to prove either 1) the lawfulness of the detention or 2) that appellant knew

the detention was lawful, we consider the last argument first. Appellant cites us to no

authority requiring the State to establish that the accused knew the detention was

lawful; nor do we know of any. Rather, the knowledge aspect of the crime relates to

4
whether the accused knew the person to whom he refused to yield was a peace officer

who was trying to detain him. See Alejos v. State, 555 S.W.2d 444, 449 (Tex. Crim.

App. 1977) (discussing § 38.04 of the Penal Code and stating that “[t]he officer is not

required to be in uniform so long as it is proven that the accused in fleeing has

knowledge that he is a police officer.”). This is borne out by the legislative reason for

enacting the criminal statute. The provision “supports a policy of yielding to a police

officer’s show of authority, whether or not lawful, and challenging the lawfulness of the

seizure in Court.” Florence v. State, No. 14-94-00380-CR, 1996 Tex. App. LEXIS 1861,

at *10-11 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d) (not designated for

publication) (emphasis added). It is nonsensical to suggest that an accused may avoid

conviction simply because he can unilaterally analyze the situation and conclude

(irrespective of any education in the law or 4th Amendment jurisprudence) that the

peace officer had no basis to detain him. And, we opt not to construe § 38.04(a) in such

an absurdist way.

Regarding the lawfulness of the stop, a peace officer may temporarily detain

someone based upon reasonable suspicion that crime is afoot. That is, “the officer

must have a reasonable suspicion that some activity out of the ordinary is occurring or

has occurred, some suggestion to connect the detainee with the unusual activity, and

some indication that the unusual activity is related to a crime.” Lewis v. State, No. 07-

15-00061-CR, 2016 Tex. App. LEXIS 12533, at *10-11 (Tex. App.—Amarillo November

22, 2016, no pet.) (mem. op., not designated for publication); Ramirez-Tamayo v. State,

__ S.W.3d __, 2016 Tex. App. LEXIS 10905, at *6 (Tex. App.—Amarillo October 5,

2016, pet. filed) (stating that reasonable suspicion “. . . depends upon the presence of

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specific, articulable facts that, when combined with rational inferences from those facts,

would lead an ordinary prudent officer to conclude that the person detained is, has

been, or soon will be engaged in criminal activity.”). This test may be satisfied if, given

the totality of the circumstances, articulable facts unfolding before the officer indicate

the occurrence of a traffic stop. Pulver v. State, No. 07-15-00112-CR, 2016 Tex. App.

LEXIS 12412, at *6-7 (Tex. App.—Amarillo November 17, 2016, no pet. h.) (mem. op.,

not designated for publication) (stating that “a police officer may lawfully stop a vehicle

and briefly detain its occupants for investigative purposes if, under the totality of the

circumstances, the officer has reasonable suspicion, supported by articulable facts, that

a traffic offense has occurred.”); accord, State v. Patterson, 291 S.W.3d 121, 123 (Tex.

App.—Amarillo 2009, no pet.) (stating that a traffic violation may constitute reasonable

suspicion for a detention).

More importantly, the subjective intent of the particular officer conducting the stop

is unimportant. State v. Patterson, 291 S.W.3d at 123. Rather, what a reasonably

prudent officer would perceive under the same circumstances controls the outcome.

Ramirez-Tamayo v. State, 2016 Tex. App. LEXIS 10905, at *14-15. Consequently, the

subjective reasons uttered by the officer to justify the stop have no bearing on the

outcome if the totality of the circumstances nonetheless would enable a reasonably

prudent officer to reasonably suspect that crime is afoot. State v. Patterson, 291

S.W.3d at 123.

Also unimportant is whether an actual traffic violation occurred. See Leming v.

State, 493 S.W.3d 552, 561 (Tex. Crim. App. 2016) (stating that proof of the actual

commission of an offense is not a requisite for a peace officer to stop a motorist to

6
investigate a traffic offense). It is enough if the circumstances would lead a prudent

officer to reasonably think one was in progress or had occurred. Herrera v. State, No.

14-02-00620-CR, 2003 Tex. App. LEXIS 6375, at *18 (Tex. App.—Houston [14th Dist.]

July 24, 2003, no pet.) (mem. op., not designated for publication). And, that is what we

have here.

Statute restricts the lawful use of dealer tags, as described in § 503.062 of the

Texas Transportation Code. Heisel v. State, No. 07-98-0027-CR, 1998 Tex. App.

LEXIS 4150, at *5 (Tex. App.—Amarillo July 13, 1998, no pet.) (not designated for

publication).2 Thus, a reasonably prudent officer could conduct a traffic stop of a

vehicle displaying them under circumstances indicating they were being used for

2
Section 503.062(a) of the Transportation Code states that:

(a) A dealer may issue a temporary tag for use on an unregistered vehicle by the
dealer or the dealer’s employees only to:

(1) demonstrate or cause to be demonstrated to a prospective buyer the
vehicle for sale purposes only;

(2) convey or cause to be conveyed the vehicle:

(A) from one of the dealer’s places of business in this state to another of
the dealer’s places of business in this state;

(B) from the dealer’s place of business to a place the vehicle is to be
repaired, reconditioned, or serviced;

(D) from the dealer’s place of business to a place of business of another
dealer;

(E) from the point of purchase by the dealer to the dealer’s place of
business; or

(F) to road test the vehicle; or

(3) use the vehicle for or allow its use by a charitable organization.

TEX. TRANSP. CODE ANN. § 503.062(a) (West 2013)

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purposes other than those listed in § 503.062. See Herrera v. State, 2003 Tex. App.

LEXIS 6375, at *15-19 (upholding the stop of a vehicle carrying old temporary dealer

tags and driving through a residential area at 6 p.m. in a manner that failed to indicate

the driver was on a test drive); Heisel v. State, No. 07-98-0027-CR, 1998 Tex. App.

LEXIS 4150, at *5-7 (Tex. App.—Amarillo July 13, 1998, no pet.) (not designated for

publication) (upholding the stop of a vehicle displaying dealer tags when the vehicle was

being driven on a Sunday afternoon in a neighborhood lacking auto dealerships); Vela

v. State, 871 S.W.2d 815, 817 (Tex. App.—Houston [14th dist.] 1994, no pet.)

(upholding a stop where the car displayed a temporary cardboard dealer tag while

operating after the end of the workday some fifteen miles from the dealer’s location).

Among other things, the officer dispatched to the convenience store at bar was

told (before arriving at the scene) of three males walking around the store after

operating a car with “dealer tags” at 10:30 at night. Those circumstances liken to the

unusual articulable facts present in Heisel, Herrera, and Vela. They reasonably depict a

situation wherein dealer tags may have been used for purposes outside those allowed

in § 503.062. That is, they were sufficient to permit a reasonable officer to infer that the

vehicle was not simply being demonstrated to a prospective driver at 10:30 p.m., or

undergoing a road test at 10:30 p.m., or being conveyed from one dealership to another

at 10:30 p.m., or being driven to some repair shop at 10:30 p.m., or being driven by a

charitable organization at 10:30 p.m., or being operated for any other purpose within the

scope of the statute. So, a reasonably prudent officer had reasonable suspicion to

temporarily detain appellant’s vehicle to investigate a potential traffic violation. That, in

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turn, means the State presented sufficient evidence proving the lawfulness of the stop

as required by § 38.04(a) of the Penal Code.

Ineffective Assistance of Counsel

The final issue we address involves whether appellant received the effective

assistance of counsel. He suggested that he did not. In his urging that upon us,

though, we were not informed of the particular conduct deemed insufficient. Nor did

appellant attempt to describe how he was prejudiced by the unknown conduct. This is

of import because one asserting a claim of ineffective assistance must prove deficient

performance and prejudice caused by that performance. Nava v. State, 415 S.W.3d

289, 307 (Tex. Crim. App. 2013). Failing to label any conduct undertaken by trial

counsel as deficient hardly satisfies the first prong of the test. Furthermore, it is not our

obligation to search the record to fill the void handed us by appellant. Accordingly, we

overrule the issue.3

The judgment is affirmed

Brian Quinn
Chief Justice

Do not publish.

3
We also acknowledge appellant’s concession in his brief that the current record before us would
most likely not support a claim of deficient performance.