Dean v. State

995 S.W.2d 846, 1999 WL 391315
CourtCourt of Appeals of Texas
DecidedSeptember 8, 1999
Docket10-98-224-CR
StatusPublished
Cited by24 cases

This text of 995 S.W.2d 846 (Dean v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dean v. State, 995 S.W.2d 846, 1999 WL 391315 (Tex. Ct. App. 1999).

Opinion

OPINION

BILL VANCE, Justice.

Anna Lynn Dean was convicted of evading detention and assessed a fine of $2,000. She appeals pro se, asserting seven points of error. We will affirm the judgment.

FACTS

On January 27, 1997, while on patrol, Officer Larry Barber of the Midlothian Police Department met a tan Toyota station wagon and noticed that no registration sticker was displayed. He turned around and began to follow the car and noticed that it also had an expired dealer’s license plate. Barber ran a computer check, which revealed that the registration had expired in October of 1996. He then activated his overhead lights and attempted to pull the vehicle over. Dean was driving the car and, according to her own testimony, chose to “resist his show of authority.” Because Dean appeared to be refusing to pull the car off the road, Barber radioed for help. Approximately six police units responded and aided in arresting Dean. After being followed by Barber and other units with emergency lights and sirens activated for 8.2 miles, Dean finally came to a stop. She was arrested for evading detention and, from her conviction, appeals.

Dean complains in her first point of error that the court abused its discretion in not granting her motion to quash the information based on the absence of probable cause. Although we question whether the issue was sufficiently preserved for appeal, we will address the merits of Dean’s complaint out of an abundance of caution.

Law enforcement officers may stop and briefly detain persons suspected of criminal activity on less information than is constitutionally required for probable cause to arrest. State v. Tarvin, 972 S.W.2d 910, 912 (Tex.App.—Waco 1998, pet. ref'd) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); State v. Sailo, 910 S.W.2d 184, 187 (Tex.App.—Fort Worth 1995, pet. ref'd)). To justify the intrusion, the officer must have specific articulable facts which, in light óf his experience and personal knowledge, together with inferences from those facts, would reasonably warrant the intrusion on the freedom of the citizen detained for further investigation. Id. (citing Johnson v. State, 658 S.W.2d 623, 626 (Tex.Crim.App.1983)). The officer must have a reasonable suspicion that some activity out of the ordinary is occurring or has occurred, some suggestion to connect the detained person with the unusual activity, and some indication the activity is related to a crime. Id. Here, the absence of a current registration sticker plus the presence of an outdated license plate justified Barber’s detaining Dean. Dean argues that the absence of a registration sticker and the expired tag did not constitute an of *849 fense. Nevertheless, regardless of whether Dean had an excusable reason for not displaying some valid registration item, the officer was reasonable in believing she might be violating the registration statutes. Thus, Barber’s attempt to stop Dean was lawful. 1 The court did not err in denying the motion to quash the information. Point one is overruled.

Dean’s second point urges that the court erred by referring to and attaching a copy of one section of the Texas Transportation Code to the jury charge. She argues that this was a comment on the weight of the evidence. No objection was made at trial. Dean’s only request was that Section 508.062 of the Transportation Code be provided to the jury in its entirety. 2 See Tex. Tiiansp. Code Ann. § 508.062 (Vernon 1999). Thus, because there was no objection, Dean must show that any error in the submission of the jury charge caused egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g).

Section 503.062 provides for the use of a temporary cardboard tag by a dealer or dealer’s employees. That section of the Transportation Code was copied in its entirety and incorporated into the jury charge as exhibit “A.”

A suggestion in a jury charge that certain evidence is true or untrue is a comment on the weight of the evidence. Russell v. State, 749 S.W.2d 77, 78 (Tex. Crim.App.1988). A court’s charge in a criminal case may not assume that any fact has been proved against the defendant, however strong the evidence may be. See Marlow v. State, 537 S.W.2d 8, 9 (Tex.Crim.App.1976). The attachment of Transportation Code section 503.062 was not an improper comment on the weight of the evidence. 3 Dean was charged with evading detention. The Transportation Code went to the reasonableness of Barber’s suspicion that Dean was engaging in unlawful activity warranting detention and to Dean’s contention that she had a valid dealer’s registration. Because Dean alleged that Barber’s suspicion was not reasonable based on the fact that a dealer does not have to display current registration, the court was correct in instructing the jury about the law regarding dealer tags such as the one Dean had in her car. Point two is overruled.

Point three complains that the court erred in faffing to include requested jury instructions in the charge. Dean complains that the court failed to properly instruct the jury on probable cause, criminal activity, lawful arrest, lack of knowledge, and the State’s burden of proof.

Dean fails to identify the instructions which were wrongfully refused, and likewise failed to provide this court with a record of the discussion regarding the requested instructions or the court’s rulings on various instructions, making it difficult to review this issue. We will review the requested instructions as found in the clerk’s record and determine if the court’s refusal to instruct the jury as requested was error.

Dean was charged with evading detention. A person is guilty of evading detention or evading arrest if he “intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.” Tex. Pen.Code Ann. § 38.04(a) (Vernon 1994). The heading of this section is entitled “Evading Arrest or Detention.” This section of the Penal Code contains two offenses: the first for *850 evading arrest, the second for evading detention. Id.; Wright v. State, 855 S.W.2d 110, 112 (Tex.App.—Houston [14th Dist.] 1993, no pet.). The Legislature’s use of the word “or” in Subsection (a) is evidence of its intention to differentiate between the two offenses. Id.

The information charging Dean contained the following:

ANNA W.

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995 S.W.2d 846, 1999 WL 391315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dean-v-state-texapp-1999.