PD-0283-15 PD-0283-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 3/16/2015 9:33:55 AM PD No. Accepted 3/18/2015 11:12:20 AM ABEL ACOSTA CLERK IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS
ALLEN MAROYD DeLOACH, § Appellant § § CAUSE NO. O3-13-00049-CR v. § § TRIAL COURT NO. 8931 THE STATE OF TEXAS, § Appellee §
PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS
CHIEF JUSTICE JEFF ROSE, PRESIDING
PETITION OF PETITIONER (APPELLANT)
COPELAND LAW FIRM PO Box 399 Cedar Park, Texas 78613 Tel. 512-897-8196 Fax. 512-215-8144 March 18, 2015 Email: tcopeland14@yahoo.com
TIM COPELAND State Bar No. 04801500 Attorney for Appellant TABLE OF CONTENTS
Page
Table of Contents i
Index of Authorities ii
Identities of Trial Court and Parties 1
Statement Regarding Oral Argument 2
Statement of the Case 3
Statement of the Procedural History of the Case 4
Ground of Review 4 The record in this case contains no evidence, or merely a “modicum” of evidence, probative of elements of the offense or, in the alternative, the evidence conclusively establishes a reasonable doubt that DeLoach was guilty of the offense of evading, and the Court of Appeals erred in holding otherwise. See Jackson, 443 U.S. at 314, 318 n. 11, 320, 99 S. Ct. at 2786, 2789 n. 11, 61 L. Ed. 2d 560 (1979); see also Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2007).
Summary of the Argument 4
Background/Statement of Pertinent Evidence 5
Argument 8
Prayer 11
Certificate of Service and Compliance with Rule 9 11
i INDEX OF AUTHORITIES
Authorities Page
UNITED STATES SUPREME COURT cases
Jackson v. Virginia 8,9,10 443 U.S. 307, 99 S. Ct. 2781, 61 L.Ed.2d 560 (1979)
Texas Court of Criminal Appeals cases
Baines v. State 8 418 S.W.3d 663 (Tex. App. – Texarkana 2010, pet. ref’d)
Brooks v. State 8 323 S.W.3d 893 (Tex. Crim. App. 2010)
Laster v. State 9 275 S.W.3d 512 (Tex. Crim. App. 2007)
Williams v. State 10 235 S.W.3d 742(Tex. Crim. App. 2007)
Statutes
TEX. PENAL CODE §§38.04(a), (b) (1) and 12.425(a) (West 2012) 6,8
ii IDENTITY OF TRIAL COURT AND PARTIES TO
THE HONORABLE COURT OF APPEALS:
NOW COMES Allen Maroyd DeLoach, appellant, who would show the
Court that the trial court and interested parties herein are as follows:
HON. JOE CARROLL (Ret.), Judge Presiding, 27th Judicial District
Court, Lampasas County, Texas.
ALLEN MAROYD DeLOACH, appellant, TDCJ Number 1830886,
Luther Unit, 1800 Luther Dr., Navasota, Texas 77863.
JoANN SAN MIGUEL, trial attorney for appellant, 505 E. Third St., Ste.
102, Lampasas, Texas 76550.
TIM COPELAND, appellate attorney for appellant, PO Box 399, Cedar
Park, Texas 78613.
JOHN GREENWOOD, Lampasas County Assistant District Attorney, trial
and appellate attorney for appellee, the State of Texas, PO Box 1300, Lampasas,
Texas 76550.
Petition for Discretionary Review Allen Maroyd DeLoach v. The State of Texas No. 03-13-00049-CR 1 STATEMENT REGARDING ORAL ARGUMENT
Appellant believes the clarity of the issue in this case is such that oral
argument would add nothing.
Petition for Discretionary Review Allen Maroyd DeLoach v. The State of Texas No. 03-13-00049-CR 2 PD No.
IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS
ALLEN MAROYD DeLOACH, § Appellant § § CAUSE NO. O3-13-00049-CR v. § § TRIAL COURT NO. 8931 THE STATE OF TEXAS, § Appellee §
PETITION FOR DISCRETIONARY REVIEW FROM THE THIRD COURT OF APPEALS AT AUSTIN, TEXAS
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
STATEMENT OF THE CASE
The trial court found Allen Maroyd DeLoach guilty of evading arrest with
two prior convictions for evading arrest and that he had been convicted of two
prior state jail felonies. See TEX. PENAL CODE §§38.04(a), (b) (1) and
12.425(a) (West 2012). The trial court assessed his punishment at 10 years’
imprisonment. Petition for Discretionary Review Allen Maroyd DeLoach v. The State of Texas No. 03-13-00049-CR 3 STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
The Third Court of Appeals at Austin, Texas, by Memorandum Opinion
dated February 19, 2015, affirmed DeLoach’s conviction and sentence. A copy of
that opinion is hereto attached as if fully incorporated herein at length.
GROUND FOR REVIEW
The record in this case contains no evidence, or merely a “modicum” of
evidence, probative of elements of the offense or’ in the alternative, the evidence
conclusively establishes a reasonable doubt that DeLoach was guilty of the offense
of evading, and the Court of Appeals erred in holding otherwise. See Jackson, 443
U.S. at 314, 318 n. 11, 320, 99 S. Ct. at 2786, 2789 n. 11, 61 L. Ed. 2d 560 (1979);
see also Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2007).
SUMMARY OF THE ARGUMENT
No evidence or only a modicum of evidence supports the conclusion that
DeLoach must have intentionally fled from a person whom he knew to be a peace
officer lawfully attempting to arrest or detain him, and the Court of Appeals erred
in reaching the contrary view.
BACKGROUND/STATEMENT OF PERTINENT EVIDENCE
Petition for Discretionary Review Allen Maroyd DeLoach v. The State of Texas No. 03-13-00049-CR 4 Deputies in the Lampasas County Sheriff’s Department believed that
DeLoach evaded arrest in the late night hours of April 1, 2012, and on the
following morning secured a warrant for his arrest. Deputy Chris McMillian
testified that on April 2 he was driving an unmarked Ford Explorer when he visited
with a Mr. Dubose hoping to get a lead on DeLoach’s whereabouts. (R.R. 2, p.
82). As McMillian was driving away from Dubose’s office, he testified that he
saw DeLoach walking up to the office across the parking lot. As they passed each
other, McMillian said DeLoach saw him and then “…turned around and went back
to the vehicle he got out of”. (R.R. 2, p. 82). McMillian said he followed the
vehicle down the street until it turned into the Ford car dealership where “[he]
activated his red and blue lights mounted on the grill of his unmarked Explorer.”
(R.R. 2, p. 83). McMillian said that he could not remember whether he activated
his lights as the vehicle turned into the parking lot or until both his and the other
vehicle were already in the parking lot. (R.R. 2, p. 84). When the vehicles came to
a stop, McMillion said that he stood next to his opened car door trying to call for
back-up on his radio as DeLoach exited the passenger side of the other car.
McMillian said he called out to DeLoach by his first name, “Allen,” that DeLoach
looked at him and then “took off running towards the creek.” (R.R. 2, p. 85).
McMillian said that he yelled at DeLoach to stop, but did not remember whether he
identified himself as a police officer. (R.R. 2, p. 86). McMillian testified that he Petition for Discretionary Review Allen Maroyd DeLoach v. The State of Texas No. 03-13-00049-CR 5 was not wearing a police uniform, but he was wearing his gun and badge. (R.R. 2,
p. 86). DeLoach, he said, never looked back as he ran off. McMillian did not give
immediate chase, he said, because he stopped to detain and ID the driver of the
truck in which DeLoach had been a passenger. (R.R. 2, p. 86).
Ken Cornwall testified that on April 2, while on their way to work, his
passenger DeLoach asked him to stop at Dubose’s office. (R.R. 2, p. 63). After
that stop, Cornwall said that they headed to the Ford house so Cornwall could have
his car inspected. (R.R. 2, p. 63). Once he turned into the Ford dealership,
Cornwall said he noticed a police vehicle behind him, and he believed that he
commented on that fact to DeLoach. (R.R. 2, pp. 64-65). When Cornwall stopped,
he said that DeLoach got out and “went toward the wooded area.” (R.R. 2, p. 64).
Cornwall did not see him running in that direction because his attention was
focused on Officer McMillian who told him to “wait there” or “something of that
nature.” (R.R. 3, p. 64). Then, Cornwall said, McMillian approached him, asked
for ID and then about his passenger. (R.R. 2, p. 64). By that time, Cornwall said,
DeLoach had disappeared into the woods. (R.R. 2, pp. 86-87).
COURT OF APPEALS’ DECISION The Court of Appeals concluded that the evidence was sufficient to support
DeLoach’s conviction for evading arrest because a reasonable trier of fact could
have found that DeLoach intentionally fled from a person whom he knew to be a Petition for Discretionary Review Allen Maroyd DeLoach v. The State of Texas No. 03-13-00049-CR 6 peace officer lawfully attempting to arrest or detain him. It reached that
conclusion because:
● the driver of the car in which DeLoach was a passenger told
DeLoach there was a police vehicle behind them as they turned into a car
dealership. (Slip op. at 5).
● when DeLoach got out of his vehicle and looked back at the
Sheriff’s deputy who had pulled in behind the car in which he was a
passenger, the deputy was wearing a badge and gun (even though the deputy
was otherwise not in uniform)and his red and blue lights were flashing. (Slip
op. at 5).
● the deputy called DeLoach by name and yelled at him to stop.
(Slip op. at 6).
● the deputy had lawful authority to arrest or detain DeLoach
because the deputy testified that he had a warrant. (Slip op. at
6).
ARGUMENT
Petition for Discretionary Review Allen Maroyd DeLoach v. The State of Texas No. 03-13-00049-CR 7 As noted by the Court of Appeals, to prove that DeLoach committed
the offense of evading arrest-prior conviction under section 38.04(b)(1) of the
Texas Penal Code, the state had the burden to show beyond a reasonable doubt
that (1) DeLoach, (2) intentionally fled, (3) from a person whom he knew to be a
peace officer, (4) who was attempting lawfully to arrest or detain him, and (5)
DeLoach had previously been convicted under section 38.04, Tex. Penal Code
§38.04(a), (b)(1); see also Baines v. State, 418 S.W.3d 663, 670 (Tex. App. –
Texarkana 2010, pet. ref’d) (listing elements of offense). In reviewing the
sufficiency of the evidence to prove each of those elements in this case, the Court
of Appeals was required to view all the evidence in the light most favorable to the
verdict to determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L.Ed.2d 560 (1979);
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). The
reviewing court could have held the evidence to be insufficient under the Jackson
standard in two circumstances: (1) the record contained no evidence, or merely a
“modicum” of evidence, probative of an element of the offense, or (2) the evidence
conclusively established a reasonable doubt. See Jackson, 443 U.S. at 314, 318 n.
11, 320, 99 S. Ct. at 2786, 2789 n. 11, 789; see also Laster v. State, 275 S.W.3d
512, 517 (Tex. Crim. App. 2007). Petition for Discretionary Review Allen Maroyd DeLoach v. The State of Texas No. 03-13-00049-CR 8 Here, the appellate court determined that a reasonable trier of fact could
have found each element of DeLoach’s offense beyond a reasonable doubt, but it
did so only by assuming some facts that could not be reasonably inferred from the
evidence that was presented at trial. The Court of Appeals writes in support of its
decision that the driver of the vehicle in which DeLoach was a passenger told
DeLoach that there was a police vehicle behind them as they turned into a
dealership. (Slip op. at 5). However, there is no evidence to indicate that DeLoach
heard that statement…if it was made. The Court of Appeals also writes that when
DeLoach exited the vehicle and looked back at the deputy who was exiting his car,
the deputy was wearing a badge and gun and his red and blue lights were flashing.
(Slip. op. at 5). From that evidence, the Court of Appeals makes a number of
assumptions that may or may not be true. First, the Court concludes that a fact
finder could reasonably infer that DeLoach saw the deputy’s badge or gun though
there is no evidence for that inference. (Slip op. at 4). Then, in its review of the
sufficiency of the evidence, the Court of Appeals follows that assumption with
another—that the fact finder could infer that somehow DeLoach must have known
an officer was attempting to detain him instead of the driver of the vehicle in which
he was a passenger--just because the vehicle’s red and blue lights were flashing.
(Slip op. at 5). Moreover, while the Court writes that there is evidence that the
deputy called to DeLoach by name when DeLoach exited the car, the deputy did Petition for Discretionary Review Allen Maroyd DeLoach v. The State of Texas No. 03-13-00049-CR 9 not testify how far he was from DeLoach when he called his name nor did he say
that he believed DeLoach ever heard him. (Slip op. at 6).
In sum, the duty of a reviewing court is to ensure that the evidence presented
actually supports a conclusion that the defendant committed the crime. See
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Here, that
conclusion is reached by the Court of Appeals only by assuming facts inferred
from a mere modicum of evidence, if any at all. Under Jackson, that is
inappropriate. The evidence relied upon by the appellate court to uphold the trial
court’s finding does not support a conclusion that DeLoach committed the crime of
evading. For that reason, his conviction and sentence should be reversed.
PRAYER
WHEREFORE, DeLoach prays that this Court reverse the judgment of the
appellate court and enter an order of acquittal.
COPELAND LAW FIRM P.O. Box 399 Cedar Park, TX 78613 Mobile/Text: 512.897.8196 Fax: 512.215.8114 Email: tcopeland14@yahoo.com
By: /s/Tim Copeland Tim Copeland State Bar No. 04801500 Attorney for Appellant
Petition for Discretionary Review Allen Maroyd DeLoach v. The State of Texas No. 03-13-00049-CR 10 CERTIFICATE OF SERVICE AND OF COMPLIANCE WITH RULE 9
This is to certify that on March 16, 2015, a true and correct copy of the above and foregoing document was served on the State Prosecuting Attorney, PO Box 12405, Capitol Station, Austin, TX 78711, and on John Greenwood, Assistant District Attorney of Lampasas County, P.O. Box 1300, Lampasas, Texas 76550, in accordance with the Texas Rules of Appellate Procedure, and that this Petition for Discretionary Review is in compliance with Rule 9 of the Texas Rules of Appellate Procedure and that portion which must be included under Rule 9.4(i)(1) contains 1972 words.
/s/ Tim Copeland Tim Copeland
Petition for Discretionary Review Allen Maroyd DeLoach v. The State of Texas No. 03-13-00049-CR 11 TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED FEBRUARY 19, 2015
NO. 03-13-00049-CR
Allen Maroyd Deloach, Appellant
v.
The State of Texas, Appellee
APPEAL FROM 27TH DISTRICT COURT OF LAMPASAS COUNTY BEFORE JUSTICES PURYEAR, PEMBERTON, AND FIELD AFFIRMIED -- OPINION BY JUSTICE FIELD
This is an appeal from the judgment of conviction rendered by the trial court. Having reviewed
the record and the parties' arguments, the Court holds that there was no reversible error in the
trial court's judgment. Therefore, the Court affirms the trial Court's judgment of conviction.
Because appellant is indigent and unable to pay costs, no adjudication of costs is made. TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT NO. 8931, HONORABLE JOE CARROLL, JUDGE PRESIDING
J\'I E M O R A N D U M O P I N I O N
Following a bench trial, the trial court found appellant Allen Maroyd Deloach guilty
of evading arrest with a prior conviction of evading arrest, a state jail felony. See Tex. Penal Code
§ 38.04(b)(l). The trial court also found that Deloach had been convicted of two prior state jail
felonies and that his offense was therefore punishable as a third-degree felony. See id. § 12.425(a).
The trial court assessed punishment at 10 years' imprisonment. In two points of error on appeal,
Deloach contends that the evidence is insufficient to support his conviction. We will affirm the trial
court's judgment.
BACKGROUND
On April 1, 2012, a deputy with the Lampasas County Sheriff s Office attempted
to stop a truck that he had observed speeding. 1 When the truck eventually pulled over, the driver
1 The facts recited herein are taken from the testimony and exhibits admitted at trial. of the truck, whom the officer believed to be Deloach, fled on foot and eluded the officer. On
April 2, Chris McMillian, another Lampasas County sheriff's deputy, began following a vehicle in
which Deloach was the passenger. After the vehicle pulled into a car dealership and stopped,
Deputy McMillian and Deloach both got out of their vehicles. McMillian later testified at trial that
although he ordered Deloach to stop because he had a warrant for Deloach' s arrest, Deloach ran
into a wooded area.
Deloach was indicted for two offenses, one involving the April 1 incident and the
other involving the April 2 incident. Following a bench trial, the trial court found him guilty of the
April 2 offense but not guilty of the April 1 offense.
DISCUSSION
Standard of review
In two points of error, Deloach challenges the factual and legal sufficiency of the
evidence supporting his conviction.' However, the court of criminal appeals has instructed courts
to apply only one standard in reviewing whether the evidence is sufficient to support each
element of a criminal offense that the State is required to prove beyond a reasonable doubt.
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.); see also Matlock v.
State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013) (under Brooks, courts use single standard
when reviewing "the sufficiency of the evidence establishing the elements of a criminal offense
for which the State has the burden of proof '); Tretter v. State, No. 03-12-00034-CR, 2014 WL
3893016, at *l n. l (Tex.
2 The State did not file a brief in this appeal.
2 App.-Austin Aug. 7, 2014, pet. ref d) (mem. op., not designated for publication) (citing Brooks
for the proposition that "appellate courts no longer employ distinct legal and factual sufficiency
standards when reviewing sufficiency of evidence to sustain criminal conviction"). Under this
standard, which the United States Supreme Court articulated in Jackson v. Virginia, 443 U.S. 307
(1979), "an appellate court must view the evidence in the light most favorable to the verdict and
dete1mine whether any rational trier of fact could have found each essential element of the offense
beyond a reasonable doubt." Schneider v. State, 440 S.W.3d 839, 841 (Tex. App.-Austin 2013,
pet. ref d) (mem. op.); see also Jackson , 443 U.S. at 319. We must assume that the trier of fact
resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a
manner supporting the verdict. See Jackson, 443 U.S. at 319. Moreover, in our review, direct and
circumstantial evidence are treated equally. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007). Finally, in a bench trial, the trial court "is the sole judge of the credibility of the witnesses
and may accept or reject any part or all of the testimony given by State or defense witnesses."
Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. 1978); see also Joseph v. State, 897
S.W.2d
374, 376 (Tex. Crim. App. 1995).
To prove that Deloach committed the offense of evading arrest-prior conviction
under section 38.04(b)(l ) of the Texas Penal Code, the State had the burden to show beyond a
reasonable doubt that (1) Deloach, (2) intentionally fled, (3) from a person whom he knew to be a
peace officer, (4) who was attempting lawfully to arrest or detain him, and (5) Deloach had
previously been convicted under section 38.04. Tex. Penal Code § 38.04(a), (b)(l); see also Baines
v. State, 418 S.W.3d 663, 670 (Tex. App.-Texarkana 2010, pet. ref d) (listing elements of offense)
3 We understand Deloach to be challenging on appeal the sufficiency of the evidence supporting
every element except the first (the defendant's identity) and the fifth (the prior evading-arrest
conviction). We must therefore determine whether a reasonable trier of fact could have found each
of the three remaining elements beyond a reasonable doubt.
Analysis
Deputy McMillian testified at trial to the following facts. On April 2, McMillian
visited the office of a Mr. Dubose, who was in the process of selling the truck involved in the April 1
incident to Deloach. While parked in front of Dubose's door, McMillian observed Deloach
approaching the office. Deloach made eye contact with McMillian and then returned to the vehicle
he had arrived in and entered the passenger-side door. The vehicle drove off and McMillian, who
had a warrant for Deloach's arrest, followed it in his unmarked police vehicle. Although McMillian's
vehicle bore no police insignia, it was equipped with red and blue lights mounted on the grille that
flashed when activated.
Deputy McMillian followed the vehicle into a car dealership, and both vehicles
stopped. McMillian testified that he activated his red and blue lights, although he could not
remember whether he did this as the suspect vehicle was entering the dealership or after both
vehicles were already in the parking lot. McMillian then stepped out of his vehicle and saw
Deloach get out of the passenger's side of the vehicle he had followed. McMillian called out to
Deloach using Deloach's first name, and Deloach looked at him and then ran into a wooded area as
McMillian yelled for him to stop. McMillian was wearing a badge and gun but no uniform.
4 As Deloach fled, the driver of the vehicle got out and began to leave, so
McMillian asked him to identify himself. The driver identified himself as Ken Cornwell. At trial,
Cornwell testified that he had driven Deloach to Dubose's office and had then gone to the
dealership to make an appointment to have Cornwell 's vehicle examined. Cornwell testified
that he had noticed a police vehicle behind him as he turned into the dealership and that he had
mentioned it to Deloach. According to Cornwell, Deloach got out of the car and said, "I have to
go," or something similar. Cornwell testified that Deloach went toward the woods, although he
could not recall whether Deloach was walking or running.
Viewing the evidence in the light most favorable to the verdict, we conclude that the
evidence is sufficient to support Deloach' s conviction because a reasonable trier of fact could have
found that Deloach intentionally fled from a person whom he knew to be a peace officer lawfully
attempting to arrest or detain him. Cornwell told Deloach that there was a police vehicle behind
them as they turned into the dealership. When Deloach got out of the vehicle and looked back at
McMillian, McMillian was wearing a badge and gun and his red and blue lights were
flashing. Although McMillian was not in unifo1m and his vehicle was unmarked, based on
the evidence before it, the trial court as finder of fact could have reasonably determined that
Deloach knew that McMillian was a peace officer. See State v. Garcia-Cantu, 253 S.W.3d 236,
245 n.43 (Tex. Crim. App. 2008) (use of police emergency lights constitutes show of authority);
Gilbert v. State, 874 S.W.2d 290, 295 (Tex. App.-Houston [1st Dist.] 1994, pet. ref d) (same);
see also Peavey v. State, 248 S.W.3d 455, 469 (Tex. App.-Austin 2008, pet. ref d) ("[Section]
38.04 did not require the State to prove, for example . . . that the officer was uniformed and
prominently displaying a badge,
5 Or if the officer was operating a vehicle that the vehicle was appropriately marked as an official
police vehicle.").
Moreover, the trial court could have reasonably found that Deloach knew that
McMillian was attempting to arrest or detain him because McMillian called to Deloach by name and
yelled at him to stop. The trial court heard testimony that despite having seen McMillian pull up
behind him, get out of his car, and call to him, Deloach intentionally fled by running away from
McMillian into a wooded area. Finally, the trial court could have reasonably found that McMillian
had lawful authority to arrest or detain Deloach because McMillian testified that he had a warrant.
Because we conclude that the evidence is sufficient to support Deloach' s conviction,
we overrule Deloach's two points of error.
CONCLUSION
Having overruled both of Deloach's points of error, we affirm the judgment of
conviction.
Scott K. Field, Justice
Before Justices Puryear, Pemberton, and Field
Affirmed
Filed: February 19, 2015
Do Not Publish