Opinion issued November 19, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00682-CR ——————————— AMBER DIONNE FITCH, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court Galveston County, Texas Trial Court Case No. 17CR0471
MEMORANDUM OPINION
A jury found Amber Dionne Fitch guilty of evading detention with a vehicle,
a third-degree felony. See TEX. PENAL CODE §§ 38.04(a), 38.04(b)(2)(a). The jury
assessed punishment at two years’ imprisonment but recommended deferring the
punishment while Fitch served community supervision. The judge followed the recommendation and placed Fitch under community supervision for two years. On
appeal, she argues that the evidence was insufficient to support her conviction. We
affirm.
Background
Fitch was indicted for evading detention after a brief police encounter in
Galveston County. At trial, the arresting officer testified that he was on routine
patrol in Texas City when he observed a car driving at about 45 miles per hour in a
30 mile per hour zone. He drove behind the car, ran the license plate on the vehicle
through his in-car computer system, and noticed that the owner had a suspended
driver’s license and no automobile insurance. The car turned abruptly, and the
officer lost sight for a moment. When the officer watched it drive through a stop
sign without stopping and then turn quickly, he activated his emergency lights. The
driver turned into an alleyway and accelerated, and the officer turned on his siren.
At the end of the alley, the driver turned onto another block and stopped. The
officer arrested Fitch, who was driving the car. Fitch told him that she was on the
phone with her daughter and did not notice his lights or hear the siren. The officer
explained to the jury that Fitch’s initial violation was running a stop sign. Then,
she failed to signal a turn within 100 feet, and she had a suspended driver’s license
and no proof of insurance. The jury also heard an audio recording of the officer’s
communications with dispatch. In the recording, the jury could hear the officer
2 narrating his location and details about the car he was following and activating his
siren.
Fitch testified that on the night of the arrest, she was driving home with her
daughter. She testified that the officer drove behind her in the alley with no lights
on, including no headlights. When she was about a half block from her house, the
officer turned on his lights but not his siren, and she became aware that there was a
police officer behind her. There was no safe place to pull over, so she drove to her
house and stopped. She testified that she did not run a stop sign, as the officer had
suggested, because there was no stop sign at the intersection.
Fitch’s daughter testified that her mother picked her up from work and drove
home along their typical route. When they were in an alley, a car pulled up behind
them. She realized it was a police car when it turned on its lights at the end of the
alley. Her mother continued driving, making two more turns, until they stopped in
front of their apartment. She could not remember their speed, but testified that they
were not “flying down the street.”
The jury found Fitch guilty and assessed punishment at two years’
imprisonment, recommending that adjudication be deferred. The judge followed
the jury’s recommendation and deferred adjudication, placing Fitch on community
supervision for two years.
3 Sufficiency of the Evidence
Fitch contends that the evidence is legally insufficient to support a
conviction for evading detention. She argues that the evidence shows that she did
not realize that the driver behind her was a police officer attempting to effectuate a
traffic stop, and therefore she did not intentionally evade detention.
A. Standard of Review
When reviewing the sufficiency of the evidence, we consider all of the
evidence in the light most favorable to the verdict to determine whether, based on
that evidence and the reasonable inferences therefrom, a jury was rationally
justified in finding guilt beyond a reasonable doubt. Merritt v. State, 368 S.W.3d
516, 525 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 318–
19) (1979)). “The jury is the sole judge of credibility and weight to be attached to
the testimony of witnesses.” Id. “Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can
be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). A reviewing court determines whether a jury’s inferences are
reasonable “based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict.” Id. at 17. We defer to the
jury’s resolution of conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
4 Section 38.04 of the Texas Penal Code criminalizes the act of intentionally
fleeing from a person the actor knows is a peace officer attempting to lawfully
arrest or detain her. TEX. PENAL CODE § 38.04. A person commits the offense “only
if [she] knows a police officer is attempting to arrest [her] but nevertheless refuses
to yield to a police show of authority.” Redwine v. State, 305 S.W.3d 360, 362
(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d); see also Hobyl v. State, 152
S.W.3d 624, 627 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d) (“[T]he
accused must know that the person from whom [she] flees is a peace officer
attempting to arrest or detain [her].”). “‘Fleeing’ is anything less than prompt
compliance with an officer’s direction to stop.” Horne v. State, 228 S.W.3d 442,
446 (Tex. App.—Texarkana 2007, no pet.).
“A person acts intentionally or with intent, with respect to the nature of [her]
conduct or to a result of [her] conduct when it is [her] conscious objective or desire
to engage in the conduct or cause the result.” TEX. PENAL CODE § 6.03. Criminal
intent may be inferred from the defendant’s conduct and the surrounding
circumstances. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
Courts may consider the speed, distance, and duration of a pursuit in determining
whether a defendant intentionally fled. See Griego v. State, 345 S.W.3d 742, 751
(Tex. App.—Amarillo 2011, no pet.). “[A]nything less than prompt compliance
with an officer’s direction to stop” can constitute “an attempt to evade arrest or
5 detention.” Horne, 228 S.W.3d at 446; see Lopez v. State, 415 S.W.3d 495, 497
(Tex. App.—San Antonio 2013, no pet.). Intent is a question of fact for the jury.
Brown v. State, 122 S.W.3d 794
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Opinion issued November 19, 2019
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00682-CR ——————————— AMBER DIONNE FITCH, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 10th District Court Galveston County, Texas Trial Court Case No. 17CR0471
MEMORANDUM OPINION
A jury found Amber Dionne Fitch guilty of evading detention with a vehicle,
a third-degree felony. See TEX. PENAL CODE §§ 38.04(a), 38.04(b)(2)(a). The jury
assessed punishment at two years’ imprisonment but recommended deferring the
punishment while Fitch served community supervision. The judge followed the recommendation and placed Fitch under community supervision for two years. On
appeal, she argues that the evidence was insufficient to support her conviction. We
affirm.
Background
Fitch was indicted for evading detention after a brief police encounter in
Galveston County. At trial, the arresting officer testified that he was on routine
patrol in Texas City when he observed a car driving at about 45 miles per hour in a
30 mile per hour zone. He drove behind the car, ran the license plate on the vehicle
through his in-car computer system, and noticed that the owner had a suspended
driver’s license and no automobile insurance. The car turned abruptly, and the
officer lost sight for a moment. When the officer watched it drive through a stop
sign without stopping and then turn quickly, he activated his emergency lights. The
driver turned into an alleyway and accelerated, and the officer turned on his siren.
At the end of the alley, the driver turned onto another block and stopped. The
officer arrested Fitch, who was driving the car. Fitch told him that she was on the
phone with her daughter and did not notice his lights or hear the siren. The officer
explained to the jury that Fitch’s initial violation was running a stop sign. Then,
she failed to signal a turn within 100 feet, and she had a suspended driver’s license
and no proof of insurance. The jury also heard an audio recording of the officer’s
communications with dispatch. In the recording, the jury could hear the officer
2 narrating his location and details about the car he was following and activating his
siren.
Fitch testified that on the night of the arrest, she was driving home with her
daughter. She testified that the officer drove behind her in the alley with no lights
on, including no headlights. When she was about a half block from her house, the
officer turned on his lights but not his siren, and she became aware that there was a
police officer behind her. There was no safe place to pull over, so she drove to her
house and stopped. She testified that she did not run a stop sign, as the officer had
suggested, because there was no stop sign at the intersection.
Fitch’s daughter testified that her mother picked her up from work and drove
home along their typical route. When they were in an alley, a car pulled up behind
them. She realized it was a police car when it turned on its lights at the end of the
alley. Her mother continued driving, making two more turns, until they stopped in
front of their apartment. She could not remember their speed, but testified that they
were not “flying down the street.”
The jury found Fitch guilty and assessed punishment at two years’
imprisonment, recommending that adjudication be deferred. The judge followed
the jury’s recommendation and deferred adjudication, placing Fitch on community
supervision for two years.
3 Sufficiency of the Evidence
Fitch contends that the evidence is legally insufficient to support a
conviction for evading detention. She argues that the evidence shows that she did
not realize that the driver behind her was a police officer attempting to effectuate a
traffic stop, and therefore she did not intentionally evade detention.
A. Standard of Review
When reviewing the sufficiency of the evidence, we consider all of the
evidence in the light most favorable to the verdict to determine whether, based on
that evidence and the reasonable inferences therefrom, a jury was rationally
justified in finding guilt beyond a reasonable doubt. Merritt v. State, 368 S.W.3d
516, 525 (Tex. Crim. App. 2012) (citing Jackson v. Virginia, 443 U.S. 307, 318–
19) (1979)). “The jury is the sole judge of credibility and weight to be attached to
the testimony of witnesses.” Id. “Circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can
be sufficient to establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007). A reviewing court determines whether a jury’s inferences are
reasonable “based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict.” Id. at 17. We defer to the
jury’s resolution of conflicts in the evidence. Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
4 Section 38.04 of the Texas Penal Code criminalizes the act of intentionally
fleeing from a person the actor knows is a peace officer attempting to lawfully
arrest or detain her. TEX. PENAL CODE § 38.04. A person commits the offense “only
if [she] knows a police officer is attempting to arrest [her] but nevertheless refuses
to yield to a police show of authority.” Redwine v. State, 305 S.W.3d 360, 362
(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d); see also Hobyl v. State, 152
S.W.3d 624, 627 (Tex. App.—Houston [1st Dist.] 2004, pet. dism’d) (“[T]he
accused must know that the person from whom [she] flees is a peace officer
attempting to arrest or detain [her].”). “‘Fleeing’ is anything less than prompt
compliance with an officer’s direction to stop.” Horne v. State, 228 S.W.3d 442,
446 (Tex. App.—Texarkana 2007, no pet.).
“A person acts intentionally or with intent, with respect to the nature of [her]
conduct or to a result of [her] conduct when it is [her] conscious objective or desire
to engage in the conduct or cause the result.” TEX. PENAL CODE § 6.03. Criminal
intent may be inferred from the defendant’s conduct and the surrounding
circumstances. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
Courts may consider the speed, distance, and duration of a pursuit in determining
whether a defendant intentionally fled. See Griego v. State, 345 S.W.3d 742, 751
(Tex. App.—Amarillo 2011, no pet.). “[A]nything less than prompt compliance
with an officer’s direction to stop” can constitute “an attempt to evade arrest or
5 detention.” Horne, 228 S.W.3d at 446; see Lopez v. State, 415 S.W.3d 495, 497
(Tex. App.—San Antonio 2013, no pet.). Intent is a question of fact for the jury.
Brown v. State, 122 S.W.3d 794, 800 (Tex. Crim. App. 2003).
B. Analysis
Here, the issue is whether the jury heard sufficient evidence from which it
could reasonably infer beyond a reasonable doubt that Fitch knew a police officer
was attempting to detain her and yet continued driving. Fitch argues that the
evidence does not demonstrate that she intended to evade arrest because her
testimony and her daughter’s testimony conflicted with the officer’s testimony
about the timeline of events.
First, the officer testified that Fitch drove through a stop sign without
stopping, but Fitch and her daughter each testified that there was no stop sign at the
intersection. Fitch claimed that the officer was lying to protect the police
department.
Second, the officer testified that he activated his lights after Fitch drove
through a stop sign. He followed her, turning on his siren as they entered an alley.
But Fitch testified that initially when the officer pulled up behind her in the alley,
his car had no lights on at all, including headlights. According to Fitch, the officer
turned on his emergency lights when they were at the end of the alley. Fitch’s
daughter also testified that the officer activated his lights as they were at the end of
6 the alley. She admitted that after the lights came on, her mother continued driving
and made two more turns to arrive at their apartment.
As to the existence of a stop sign and whether the officer had lights on at a
particular point in time, the jury is the sole judge of the weight and credibility to be
attached to witness testimony. See Merritt, 368 S.W.3d at 525. When the record
supports conflicting inferences, we presume that the jury resolved the conflicts in
favor of the verdict and defer to that determination. Id. A reviewing court may not
reevaluate the weight and credibility of the evidence in the record, and thereby
substitute our own judgment for that of the factfinder. Williams v. State, 235
S.W.3d 742, 750 (Tex. Crim. App. 2007). The jury was free to disbelieve Fitch and
her daughter and credit the officer’s testimony about the stop sign. See Merritt, 368
S.W.3d at 525.
Fitch argues that even if the officer activated his lights, that does not prove
that she knew that he wanted to pull her over. Proof that an officer in a vehicle is
attempting to detain a person generally consists of the officer displaying authority
by the use of emergency lights and siren. Duvall v. State, 367 S.W.3d 509, 513
(Tex. App.—Texarkana 2012, pet. ref’d); see also Lopez, 415 S.W.3d at 497 (fact
finder could reasonably infer defendant was aware law enforcement officers were
attempting to detain him, but he intended to flee, where pursuing officers had their
lights and sirens activated while following defendant). Though they disagree about
7 when it happened, Fitch, her daughter, and the officer each testified that at some
point the officer activated his lights and siren, and they each testified that Fitch
continued driving after the siren and lights were activated. See Coggin v. State, No.
03-04-00585-CR, 2006 WL 1292581, at *2 (Tex. App.—Austin May 12, 2006, no
pet.) (mem. op., not designated for publication) (evidence sufficient to find that
defendant intentionally fled where defendant, after passing law enforcement
officer’s patrol car, turned off his car’s lights and drove home at a high rate of
speed); Luna v. State, No. 04-05-00518-CR, 2006 WL 1814308, at *2–3 (Tex.
App.—San Antonio July 5, 2006, no pet.) (mem. op., not designated for
publication ) (evidence sufficient to find defendant intentionally fled where law
enforcement officer testified that, after activating his patrol car’s emergency lights,
defendant did not stop until he arrived at his place of residence).
No particular speed, distance, or duration of pursuit is required to prove the
requisite intent to evade arrest or detention in a motor vehicle. See Griego, 345
S.W.3d at 751; Reyes, 465 S.W.3d at 805–06 (evidence sufficient to find defendant
“intentionally fled in a vehicle” despite “pursuit last[ing] less than a minute”); see
also Khan v. State, No. 01-18-00327-CR, 2019 WL 346861, at *7 (Tex. App.—
Houston [1st Dist.] Jan. 29, 2019, pet. ref’d). A person who continues driving to
her own home, while being pursued by a law enforcement officer, may still possess
the intent to commit the offense of evading arrest, or detention, in a motor vehicle.
8 Horne, 228 S.W.3d at 445–46 (evidence sufficient to find intent to evade arrest or
detention, where defendant did not pull over and stop for “the few minutes it took
to park his car in front of his mother’s house”); Luna, 2006 WL 1814308, at *2
(evidence sufficient to find defendant intentionally fled where law enforcement
officer testified that, after activating his patrol car’s emergency lights, defendant
only stopped when he arrived at his place of residence); Coggin, 2006 WL
1292581, at *2 (rejecting argument “that it cannot be a crime for a person to go to
his own home”).
Here, the jury could reasonably infer that Fitch was aware the officer was
attempting to detain her and that she continued to drive rather than yielding to his
authority, demonstrating the intent to evade detention. See Lopez v. State, 415
S.W.3d 495, 497 (Tex. App.—San Antonio 2013, no pet.). We overrule Fitch’s
sole issue.
Conclusion
We affirm the judgment of the trial court.
Peter Kelly Justice
Panel consists of Justices Kelly, Hightower, and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).