Gary Garcia v. the State of Texas

Opinion

NUMBER 13-22-00125-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

GARY GARCIA, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 24th District Court of DeWitt County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Silva Memorandum Opinion by Justice Hinojosa

Appellant Gary Garcia was convicted of evading arrest or detention with a vehicle

and with a previous conviction for evading arrest or detention, a third-degree felony. See

TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A). He was sentenced to five years’

imprisonment, with the sentence suspended and community supervision imposed for five

years. On appeal, Garcia argues by one issue that the evidence was insufficient to support a finding that he knew, at the time he was operating his vehicle, that police were

attempting to arrest or detain him. We affirm.

I. BACKGROUND

Garcia was charged by indictment with three counts of evading arrest or detention,

all arising out of events which allegedly occurred on the afternoon of July 16, 2019. 1 At

trial, Officer Jason Kuecker of the Cuero Police Department testified that on the date in

question, he and a trainee were doing a “routine patrol” in a marked police unit on Evers

Street in Cuero, when he saw “a vehicle with a male victim [sic] inside that was not

wearing his seat belt.” Kuecker stated that failure to wear a seat belt while operating a

vehicle is an “arrestable offense,” so he instructed his trainee to pursue the vehicle.

Kuecker explained that, because “[t]hat part of Evers is very narrow,” the patrol unit had

“to make a few extra turns to make it around” to where the vehicle had gone. He stated

the officers located the suspect vehicle near the area of Baker Street and St. Charles

Street. Keucker testified that he activated the patrol unit’s emergency lights after the

vehicle turned east from Aransas Pass Street onto West Broadway and crossed railroad

tracks.

According to Kuecker, the suspect vehicle did not stop at that point but turned right

onto Gazzie Street, then left onto West Live Oak Street, then right on to Frederick Williams

Street, and finally left onto West Courthouse Street. Though there were stop signs at

many of the intersections, Kuecker stated that the vehicle did not stop at the stop signs;

1Count I alleged Garcia evaded arrest or detention with a vehicle and had a prior conviction for evading arrest or detention, a third-degree felony; Count II alleged that he evaded arrest or detention and had a prior conviction for evading arrest or detention, a state jail felony; and Count III alleged that he evaded arrest or detention and a person suffered serious bodily injury as a result of the attempt to apprehend him, a third-degree felony. See TEX. PENAL CODE ANN. § 38.04(a), (b)(1)(A), (b)(2)(A), (b)(2)(C). Count III was abandoned prior to trial.

2 further, he stated that the vehicle was going between forty-five and fifty miles per hour,

even though the speed limit in the area was thirty miles per hour. Kuecker agreed that,

even though the police car and the suspect car were not always on the same street, “there

[we]ren’t any cars or any obstructions between you seeing him and him seeing lights and

hearing sirens.” He said the suspect’s window was half-way down and he did not hear

any radio coming from the vehicle.

Kuecker testified that he activated the unit’s siren “[s]omewhere in the area of West

Live Oak,” though he could not recall the exact location. He testified as follows:

Q. [Prosecutor] So when you put the siren on does that cause that vehicle to react? I mean, did anything happen with that vehicle?

A. [Kuecker] No.

Q. Okay. And then the vehicle stops where?

A. In the housing authority projects on West Courthouse.

Q. What happens when the vehicle stops?

A. The driver takes off running, exits the vehicle and takes off running.

Eventually, the suspect was tackled, arrested, and identified as Garcia.

Kuecker explained that the unit’s dashcam and his bodycam automatically began

recording thirty seconds prior to when he first activated the emergency lights. Video

recordings from both cameras, as well as the trainee’s bodycam, were entered into

evidence and played for the jury. The dashcam video shows that Garcia’s vehicle was

visible to the officers as soon as they turned onto West Broadway. Each time the officers

turned and had Garcia in their sights ahead of them, Garcia promptly turned onto another

street. Beginning shortly before Garcia turned from West Live Oak Street onto Frederick

3 Williams Street, the patrol unit’s siren can be heard on the video recording. When the

officers turned onto Frederick Williams Street, Garcia’s vehicle can be seen turning on to

West Courthouse Street, where Garcia then legally parked the vehicle in a driveway and

fled on foot. At that point, the siren stopped and the officers pursued Garcia. The videos

do not definitively indicate whether or when the patrol unit’s emergency lights were

activated.

Officer Paul Leal of the Cuero Police Department, Kuecker’s trainee that day,

testified that he was driving the patrol unit and that the emergency lights were activated

“[w]hen the vehicle turned eastbound on Broadway Street.”2 Leal acknowledged on cross-

examination that Garcia was in the process of turning when the emergency lights came

on, so he agreed that Garcia would not have been able to see the lights through his rear-

view mirror at that specific time. Leal also agreed that Garcia would not have seen the

patrol unit in his rear-view mirror at the specific time the siren was activated, again

because he was already in the process of turning onto the next street.

In accordance with the court’s instructions, after finding Garcia guilty on Count I,

the jury did not consider Count II. Garcia was sentenced as set forth above, and this

appeal followed.

II. DISCUSSION

A. Standard of Review and Applicable Law

To satisfy constitutional due process requirements, a criminal conviction must be

supported by sufficient evidence. See Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.

2 Leal testified that there was a “flash” visible at the thirty-second mark of the dashcam video, indicating that the emergency lights came on at that point. However, we perceive no such “flash” in our review of the recording.

4 App. 2009). In reviewing evidentiary sufficiency, we consider “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.” Griffin v. State,

491 S.W.3d 771, 774 (Tex. Crim. App. 2016); see Brooks v. State, 323 S.W.3d 893, 895

(Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)). The jury is the exclusive judge of the facts, the credibility of the witnesses, and

the weight to give their testimony. Brooks, 323 S.W.3d at 899; see TEX. CODE CRIM. PROC.

ANN. art. 38.04. Thus, we defer to the jury’s resolution of any conflicts in the evidence.

See Brooks, 323 S.W.3d at 899. 3

Sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App.

2011); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “Such a charge is

one that ‘accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the

defendant was tried.’” Byrd, 336 S.W.3d at 246 (quoting Malik, 953 S.W.2d at 240).

Here, a hypothetically correct jury charge would instruct the jury to find Garcia

guilty on Count I if it found beyond a reasonable doubt that: (1) Garcia intentionally fled

from a person he knew was a peace officer attempting lawfully to arrest or detain him; (2)

Garcia used a vehicle while he was in flight; and (3) Garcia was previously convicted for

evading arrest or detention. See TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A). A person

3 In its brief, the State cites case law concerning factual sufficiency of the evidence only. But factual sufficiency review in criminal cases was abolished by the Texas Court of Criminal Appeals in 2010. See Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.).

5 acts intentionally with respect to the nature of his conduct when it is his conscious

objective or desire to engage in the conduct. Id. § 6.03(a). “A person acts knowingly, or

with knowledge, with respect to the nature of his conduct or to circumstances surrounding

his conduct when he is aware of the nature of his conduct or that the circumstances exist.”

Id. § 6.03(b).

B. Analysis

Garcia does not dispute that he committed an offense under § 38.04 by running

from officers on July 16, 2019, nor does he dispute that he has previously been convicted

of evading arrest or detention. 4 Moreover, Garcia does not challenge the lawfulness of

the attempted arrest or detention. Instead, he argues that he did not know the officers

were attempting to arrest or detain him at the time he was operating his vehicle. In other

words, he claims the evidence did not show beyond a reasonable doubt that he was

aware of the police presence before he stopped and exited his vehicle on foot. Therefore,

he contends the offense is not a third-degree felony, and he asks us to reverse and

remand for new sentencing proceedings. See id. § 38.04(b)(1)(A) (providing that evading

arrest or detention is a state jail felony if the actor did not use a vehicle while in flight but

was previously convicted of evading arrest or detention).

For an evading arrest or detention conviction, “it is essential that a defendant know

the peace officer is attempting to arrest him.” Jackson v. State, 718 S.W.2d 724, 726

(Tex. Crim. App. 1986); see Redwine v. State, 305 S.W.3d 360, 362 (Tex. App.—Houston

[14th Dist.] 2010, pet ref’d) (noting that a person commits the offense of evading arrest or

4 Trial testimony established that Garcia had previously been convicted of a misdemeanor under

penal code § 38.04 in April of 2011.

6 detention only if the person “knows a police officer is attempting to arrest him but

nevertheless refuses to yield to a police show of authority”). A person’s knowledge is a

fact question for the jury and may be proven through circumstantial evidence. See Robles

v. State, 664 S.W.2d 91, 94 (Tex. Crim. App. 1984); Clay v. State, 389 S.W.3d 874, 878

(Tex. App.—Texarkana 2012, pet. ref’d). The jury may “use common sense and apply

common knowledge, observation, and experience gained in ordinary affairs when drawing

inferences from the evidence.” Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App.

2014). Evidence demonstrating that an officer in a vehicle is attempting to arrest or detain

a person “generally consists of the officer displaying authority by the use of

overhead/emergency lights and siren.” Duvall v. State, 367 S.W.3d 509, 513 (Tex. App.—

Texarkana 2012, pet. ref’d).

Garcia cites Redwine, 305 S.W.3d at 360, and Griego v. State, 345 S.W.3d 742

(Tex. App.—Amarillo 2011, no pet.), both cases where courts found insufficient evidence

to support an evading arrest conviction. In Redwine, the State conceded that officers “did

not activate their vehicle’s overhead lights or otherwise demand appellant’s surrender

until after he had exited his truck”; instead, the State argued that the jury could have

inferred appellant’s knowledge of police pursuit “from a written statement in which

appellant acknowledged he turned off the main road ‘to avoid contact’ with the officers.”

305 S.W.3d at 363. The court found that this was insufficient to show that appellant

evaded arrest with a vehicle. See id. at 368. In Griego, “neither officer testified that

appellant saw or should have been able to see them in pursuit of him until the point at

which they turned in behind appellant”; instead, “each testified that he was uncertain

whether appellant saw him.” 345 S.W.3d at 751. As in Redwine, the court concluded that

7 the evidence was insufficient “to show that appellant knew, before getting out of his car,

that the officers were attempting to arrest or detain him.” Id. at 754–55.

In arguing that his case is similar to Redwine and Griego, Garcia points to Leal’s

testimony that Garcia was turning when the patrol unit’s emergency lights came on, and

therefore, Garcia would not have been able to see those lights in his rear-view mirror at

that point. Leal also testified that Garcia was turning at the time the siren was activated;

therefore, he would not have been able to see the police car in his rear-view mirror at that

exact moment either. However, though it is undisputed that Garcia would not have been

able to see the police car in his rear-view mirror at the exact moments when the

emergency lights and siren were first activated, that does not mean that Garcia never saw

the police car following him with its emergency lights on.

Kuecker testified that he turned the emergency lights on after Garcia turned onto

West Broadway and crossed the railroad tracks. As noted, the dashcam video did not

confirm or dispel this testimony, and the jury was entitled to believe it. See Brooks, 323

S.W.3d at 899; cf. Miller v. State, 393 S.W.3d 255, 263 (Tex. Crim. App. 2012) (“[W]hen

evidence is conclusive, such as a written and signed agreed stipulation of evidence or

‘indisputable visual evidence,’ then any trial-court findings inconsistent with that

conclusive evidence may be disregarded as unsupported by the record, even when that

record is viewed in a light most favorable to the trial court’s ruling.” (quoting Tucker v.

State, 369 S.W.3d 179, 187 (Tex. Crim. App. 2012) (Alcala, J., concurring))). 5 The

dashcam video shows that, after the point at which Kuecker stated the emergency lights

5 We note that Garcia’s vehicle can be seen turning from West Broadway to Gazzie Street at the thirty-second mark of the dashcam recording, which is consistent with Kuecker’s testimony that: (1) he turned the emergency lights after Garcia crossed the railroad tracks on West Broadway, and (2) the dashcam automatically records thirty seconds before the emergency lights are activated.

8 were activated, Garcia made four consecutive turns, and the officers followed almost

exactly one block behind. Two of those turns were made after the siren was activated.

Kuecker testified that “there [we]ren’t any cars or any obstructions” between the police

unit and Garcia’s car, and the video corroborates that testimony. Indeed, Garcia’s car is

briefly but clearly visible on the dashcam recording as he made each of the four turns.

And, just prior to the siren being activated, both vehicles were driving in the same direction

on West Live Oak Street for several seconds before Garcia turned again. A rational juror

could have concluded that Garcia was aware that officers were behind him and were

attempting to arrest or detain him at that point.

Garcia notes that, according to one of the bodycam videos, he can be heard

complaining after his arrest that the officers did not display their emergency lights.

However, the jury was entitled to disbelieve this evidence and instead to believe the

officers’ testimony at trial to the contrary. See Brooks, 323 S.W.3d at 899.

Finally, unlike in Redwine and Griego, there was additional circumstantial evidence

tending to establish that Garcia knew he was being pursued by police while he was

operating his vehicle. In particular, Kuecker testified that Garcia ran several stop signs

and was speeding during the ostensible pursuit. Moreover, it is undisputed that Garcia

fled on foot after he parked his car. Cf. Griego, 345 S.W.3d at 753 (noting that “[e]vidence

that appellant got out of his car and, instead of running or hiding, began walking toward

the residence while carrying a beer also indicates that he did not know officers were

attempting to arrest or detain him”).

For the foregoing reasons, we conclude a rational juror could have found beyond

a reasonable doubt that Garcia knew officers were lawfully attempting to arrest or detain

9 him and intentionally fled from them using a vehicle. See TEX. PENAL CODE ANN.

§ 38.04(a), (b)(2)(A). The evidence was therefore sufficient to support conviction on

Count I. We overrule Garcia’s issue on appeal.

III. CONCLUSION

The trial court’s judgment is affirmed.

LETICIA HINOJOSA Justice

Do not publish. TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 11th day of August, 2022.