In The Court of Appeals Sixth Appellate District of Texas at Texarkana
_________________________
No. 06-12-00057-CR ______________________________
EUGENE COLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2 Hunt County, Texas Trial Court No. CR1101283
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION
Eugene Cole appeals his conviction for evading detention. After attempting to sell drugs
to a woman in the parking lot of a Greenville grocery store, Cole walked away headed north on
Wesley Street. The woman called the police and described Cole as a heavy set white male with
blonde, buzz-cut hair, wearing a white “wife beater” shirt and red pants. Officer Jason Kilgore, a
police officer with the Greenville Police Department, noticed Cole, who matched the description
of the suspect, walking north on Wesley Street. Kilgore pulled into a parking lot in front of Cole
and, when Cole was approximately ten feet from his car, said to Cole, “I needed to speak with
you just for a minute.” Cole looked at Kilgore, turned, and “jogged across Wesley Street away
from [Kilgore].” Kilgore activated his overhead lights and pursued Cole. Kilgore located Cole a
few minutes later “ducked down behind a truck” in the parking lot of a nearby Pizza Hut. Cole
again fled and Kilgore pursued on foot eventually apprehending Cole with the aid of another
officer. A jury found Cole guilty of evading detention. Cole elected to have the trial court
assess punishment, and the trial court sentenced Cole to 365 days’ confinement. Cole’s issue on
appeal is that the evidence is legally insufficient. We affirm the judgment of the trial court.
Cole argues a reasonable person would not have interpreted Kilgore’s statements as a
command and, therefore, the interaction was an encounter rather than a detention. Because a
person may decline to interact with a police officer during an encounter, Cole argues the
evidence is legally insufficient.
In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
2 elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305
S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal sufficiency
review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18
(Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks
opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at
318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
To convict him of the charged offense, the State had to prove Cole intentionally fled from
a person he knew to be a peace officer attempting lawfully to arrest or detain him. See TEX.
PENAL CODE ANN. § 38.04 (West Supp. 2012). A defendant’s knowledge that a police officer is
trying to arrest or detain him is an essential element of the offense of evading arrest. Rodriguez
v. State, 799 S.W.2d 301, 302 (Tex. Crim. App. 1990); Hobyl v. State, 152 S.W.3d 624, 627
(Tex. App.—Houston [1st Dist.] 2004) (“[T]he accused must know that the person from whom
he flees is a peace officer attempting to arrest or detain him.”), pet. dism’d, improvidently
granted, 193 S.W.3d 903 (Tex. Crim. App. 2006). The gravamen of the offense is the evasion of
a detention—not the evasion of a police officer. Jackson v. State, 718 S.W.2d 724, 726 (Tex.
Crim. App. 1986); Duvall v. State, 367 S.W.3d 509, 512 (Tex. App.—Texarkana 2012, pet.
ref’d).
3 There are three categories of interactions between police officers and citizens:
encounters, investigative detentions, and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim.
App. 2002). The law is well-established that a person may decline to interact with a police
officer during an encounter. Hughes v. State, 337 S.W.3d 297, 300 (Tex. App.—Texarkana
2011, no pet.). An encounter is a purely consensual interaction that a citizen may terminate at
any time. Saldivar v. State, 209 S.W.3d 275, 281 (Tex. App.—Fort Worth 2006, no pet.).
The difference between an encounter and a detention is whether a reasonable person
would feel free to continue walking or otherwise terminate the encounter. Hughes, 337 S.W.3d
at 300; see Florida v. Bostick, 501 U.S. 429, 434 (1991); California v. Hodari D., 499 U.S. 621
(1991). The Texas Court of Criminal Appeals has instructed:
[T]here is no bright-line rule to determine when an encounter becomes a seizure. Instead, courts must take into account the totality of the circumstances surrounding the interaction to determine whether a reasonable person would have felt free to ignore the police officer’s request or terminate the encounter.
State v. Castleberry, 332 S.W.3d 460, 466–67 (Tex. Crim. App. 2011); see Bostick, 501 U.S. at
439. A seizure occurs when there is either physical force or, where physical force is absent,
submission to the assertion of authority. Hodari D., 499 U.S. at 626.
In order to be convicted of evading detention, the State must establish that Cole was
fleeing from the detention—not just the police officer. See Duvall, 367 S.W.3d at 512; Redwine
v. State, 305 S.W.3d 360, 364 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (finding
evidence that defendant wanted to avoid further contact with police officers insufficient). In
order to be fleeing from a detention, Kilgore must have made a sufficient show of authority that a
4 reasonable person would not have felt free to leave. Cole argues that Kilgore did not activate his
overhead lights until after Cole fled and that Kilgore’s statement, “I need to talk to you,” was an
insufficient show of authority.
An officer can demonstrate a showing of authority in various ways. For example, when
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In The Court of Appeals Sixth Appellate District of Texas at Texarkana
_________________________
No. 06-12-00057-CR ______________________________
EUGENE COLE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2 Hunt County, Texas Trial Court No. CR1101283
Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Carter MEMORANDUM OPINION
Eugene Cole appeals his conviction for evading detention. After attempting to sell drugs
to a woman in the parking lot of a Greenville grocery store, Cole walked away headed north on
Wesley Street. The woman called the police and described Cole as a heavy set white male with
blonde, buzz-cut hair, wearing a white “wife beater” shirt and red pants. Officer Jason Kilgore, a
police officer with the Greenville Police Department, noticed Cole, who matched the description
of the suspect, walking north on Wesley Street. Kilgore pulled into a parking lot in front of Cole
and, when Cole was approximately ten feet from his car, said to Cole, “I needed to speak with
you just for a minute.” Cole looked at Kilgore, turned, and “jogged across Wesley Street away
from [Kilgore].” Kilgore activated his overhead lights and pursued Cole. Kilgore located Cole a
few minutes later “ducked down behind a truck” in the parking lot of a nearby Pizza Hut. Cole
again fled and Kilgore pursued on foot eventually apprehending Cole with the aid of another
officer. A jury found Cole guilty of evading detention. Cole elected to have the trial court
assess punishment, and the trial court sentenced Cole to 365 days’ confinement. Cole’s issue on
appeal is that the evidence is legally insufficient. We affirm the judgment of the trial court.
Cole argues a reasonable person would not have interpreted Kilgore’s statements as a
command and, therefore, the interaction was an encounter rather than a detention. Because a
person may decline to interact with a police officer during an encounter, Cole argues the
evidence is legally insufficient.
In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
2 elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305
S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous legal sufficiency
review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18
(Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks
opinion, while giving deference to the responsibility of the jury “to fairly resolve conflicts in
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at
318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
To convict him of the charged offense, the State had to prove Cole intentionally fled from
a person he knew to be a peace officer attempting lawfully to arrest or detain him. See TEX.
PENAL CODE ANN. § 38.04 (West Supp. 2012). A defendant’s knowledge that a police officer is
trying to arrest or detain him is an essential element of the offense of evading arrest. Rodriguez
v. State, 799 S.W.2d 301, 302 (Tex. Crim. App. 1990); Hobyl v. State, 152 S.W.3d 624, 627
(Tex. App.—Houston [1st Dist.] 2004) (“[T]he accused must know that the person from whom
he flees is a peace officer attempting to arrest or detain him.”), pet. dism’d, improvidently
granted, 193 S.W.3d 903 (Tex. Crim. App. 2006). The gravamen of the offense is the evasion of
a detention—not the evasion of a police officer. Jackson v. State, 718 S.W.2d 724, 726 (Tex.
Crim. App. 1986); Duvall v. State, 367 S.W.3d 509, 512 (Tex. App.—Texarkana 2012, pet.
ref’d).
3 There are three categories of interactions between police officers and citizens:
encounters, investigative detentions, and arrests. State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim.
App. 2002). The law is well-established that a person may decline to interact with a police
officer during an encounter. Hughes v. State, 337 S.W.3d 297, 300 (Tex. App.—Texarkana
2011, no pet.). An encounter is a purely consensual interaction that a citizen may terminate at
any time. Saldivar v. State, 209 S.W.3d 275, 281 (Tex. App.—Fort Worth 2006, no pet.).
The difference between an encounter and a detention is whether a reasonable person
would feel free to continue walking or otherwise terminate the encounter. Hughes, 337 S.W.3d
at 300; see Florida v. Bostick, 501 U.S. 429, 434 (1991); California v. Hodari D., 499 U.S. 621
(1991). The Texas Court of Criminal Appeals has instructed:
[T]here is no bright-line rule to determine when an encounter becomes a seizure. Instead, courts must take into account the totality of the circumstances surrounding the interaction to determine whether a reasonable person would have felt free to ignore the police officer’s request or terminate the encounter.
State v. Castleberry, 332 S.W.3d 460, 466–67 (Tex. Crim. App. 2011); see Bostick, 501 U.S. at
439. A seizure occurs when there is either physical force or, where physical force is absent,
submission to the assertion of authority. Hodari D., 499 U.S. at 626.
In order to be convicted of evading detention, the State must establish that Cole was
fleeing from the detention—not just the police officer. See Duvall, 367 S.W.3d at 512; Redwine
v. State, 305 S.W.3d 360, 364 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (finding
evidence that defendant wanted to avoid further contact with police officers insufficient). In
order to be fleeing from a detention, Kilgore must have made a sufficient show of authority that a
4 reasonable person would not have felt free to leave. Cole argues that Kilgore did not activate his
overhead lights until after Cole fled and that Kilgore’s statement, “I need to talk to you,” was an
insufficient show of authority.
An officer can demonstrate a showing of authority in various ways. For example, when
an officer observes a speeding vehicle, the usual method to announce authority and require the
citizen to stop is by the use of sirens and overhead lights. At times, an officer may use hand
signals to show such authority. In Rogers v. State, 832 S.W.2d 442 (Tex. App.—Austin 1992, no
pet.), the officer noticed a speeding motorcycle and began pursuit in his marked vehicle. Upon
approaching the motorcycle, the officer motioned for the driver to pull over, but, instead, the
driver looked at him and sped away. After a two- or three-mile chase, the driver of the
motorcycle was stopped. This was found to be sufficient evidence that the motorcycle driver
knew he was going to be arrested or investigated for criminal activity.
Here, the evidence shows that after receiving information of a criminal action, Kilgore
observed Cole who met the description of the offender. Kilgore, who was in his uniform and
driving a marked police car, told Cole that he needed to talk to him. Kilgore testified that Cole
looked at him, turned, and “jogged across Wesley Street away from [Kilgore].” Kilgore
activated his overhead lights and pursued Cole. Cole was located a few minutes later “ducked
down behind a truck” in the parking lot of a nearby Pizza Hut and fled again. Kilgore then began
to chase Cole on foot at which time another officer interceded and blocked Cole’s path, pulled
his gun, and ordered Cole to the ground.
5 We conclude a rational fact-finder could have found, beyond a reasonable doubt, that
Cole intentionally fled from a person he knew to be a peace officer attempting lawfully to arrest
or detain him. The evidence is legally sufficient.
For the reasons stated, we affirm.
Jack Carter Justice
Date Submitted: November 15, 2012 Date Decided: November 16, 2012
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