Keith Allen Lewis v. State

• Court: Court of Appeals of Texas
• Decided: May 20, 2008
• Docket: 14-07-00398-CR
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 20, 2008

Affirmed and Memorandum Opinion filed May 20, 2008.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00398-CR

KEITH ALLEN LEWIS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 179^th District Court

Harris County, Texas

Trial Court Cause No. 1060264

M E M O R A N D U M   O P I N I O N

Keith Allen Lewis was convicted of the felony offense of evading arrest and sentenced to 40 years confinement in the Texas Department of Criminal Justice, Institutional Division.  Lewis challenges his conviction, asserting that he suffered egregious harm from the absence of a definition for lawful detention in the jury charge.

On March 5, 2006 at about 6:30 a.m., a man was driving with a female passenger and her two-year-old grandson.  As he turned left, his truck was struck on the passenger side by another truck, causing his truck to flip and land upside down.  All three occupants exited the vehicle through a window before the police arrived.  The driver did not see the other vehicle.  However, the female passenger testified that she saw a Ablack person@ driving a Awhite-looking truck,@ which drove off after the collision and did not return.  

A few minutes after hearing the description of a truck involved in a hit-and-run accident over her police radio, Officer Harlow saw a truck that matched the description and had heavy front-end damage and a flat right front tire, driving approximately three miles from the scene of the accident.  She turned on her lights and sirens, but the driver, Lewis, did not pull over.  Officer Harlow testified that Lewis accelerated, ran a red light, ran through stop signs, and finally jumped out of the truck in a residential neighborhood.  Lewis left the truck running and it rolled forward, hitting another vehicle.  The officer followed Lewis as he jumped a chain link fence, ending up in the backyard of his brother=s house, where he was apprehended.

Lewis testified that he was a passenger in the truck at the time of the collision.  He testified that the truck was driven by a woman he knew only as AFi Fi,@ and that the truck was owned by someone involved with Fi Fi.  After the collision, he jumped out of the truck to check on the occupants of the other vehicle, but then returned to the truck because Fi Fi was screaming at him.  Fi Fi ordered him to get back into the truck, and when he was partially inside, she began to drive, heading to an apartment complex approximately three minutes away.  After Fi Fi reached the apartment complex, exited the truck, and went inside, Lewis decided to return to the scene of the collision.  Lewis testified that on his way back, he saw a police officer and panicked.  He felt he would be safer at his brother=s house, so he continued to drive and exited the vehicle once he reached his brother=s house.  The jury saw video of the Officer Harlow=s pursuit of Lewis.

Lewis was charged by indictment with the felony offense of evading arrest.  Although this would normally be considered a state jail felony, it was elevated to a third-degree felony because Lewis was previously convicted of evading arrest.  Additionally, the indictment contained two enhancement paragraphs, to which Lewis entered pleas of true, thus elevating the punishment range to 25 to 99 years confinement in the Texas Department of Criminal Justice, Institutional Division.

The jury charge read, in relevant part: AA person commits the offense of evading arrest or detention if he intentionally flees from a person he knows is a peace officer attempting to arrest or detain him.  It is a felony offense if the person uses a vehicle while the person is in flight and the person has been previously convicted of evading arrest or detention.@  Thus, it did not state that the peace officer must be lawfully attempting to arrest or detain him.  The application paragraph stated:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 5th day of March, 2006, in Harris County, Texas, the defendant, Keith Allen Lewis, did then and there unlawfully, intentionally flee from H. Harlow, a peace officer employed by the Baytown Police Department, lawfully attempting to detain the defendant, and the defendant knew that H. Harlow was a peace officer attempting to detain the defendant, and the defendant used a motor vehicle while he was in flight, and before the commission of the offense alleged herein, on July 29, 2004, in Cause No. 995562, in the 228th District Court of Harris County, Texas, the defendant was finally convicted of the offense of evading arrest, then you will find the defendant guilty of evading arrest or detention, as charged in the indictment.

The parties made no objection to the jury charge at trial.  Lewis was found guilty and sentenced to 40 years in the Texas Department of Criminal Justice, Institutional Division.  Lewis timely appealed, asserting that the absence of a definition for lawful detention constitutes charge error, and that this error caused him egregious harm.

The review of alleged jury charge error is a two-step process.  Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984), overruled on other grounds, Rodriguez v. State, 758 S.W.2d 787 (Tex. Crim. App. 1988).  First, we examine the jury charge to see if the trial court erred.  Abdnor, 871 S.W.2d at 731-32.  Second, if we find that the trial court erred, we must determine if the harm is sufficient to warrant reversal.  Id.  When a timely objection is made, error in the jury charge requires reversal if the error was Acalculated to injure the rights of defendant,@ meaning that the error was not harmless.  See Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); see also Abdnor, 871 S.W.2d at 731-32.  Because Lewis did not timely object to the jury charge, any error will not require reversal unless the error is so egregious that Lewis was not given a fair and impartial trial.  See Almanza, 686 S.W.2d at 174.  If we do find error in the jury charge, we must review the entire record to determine whether Lewis suffered egregious harm.  Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).  An error in the jury charge is egregious if Ait affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory.@  Id.  We must assess the degree of harm caused by a charge error Ain light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.@  Almanza, 686 S.W.2d at 171.

The Texas Penal Code states that a person commits the offense of evading arrest or detention Aif he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.@  Tex. Penal Code Ann. ' 38.04(a) (Vernon 2001) (emphasis added).  Even if there was error in the jury charge, such error was not egregious.  Officer Harlow testified that she attempted to detain Lewis after noticing that his truck had heavy front-end damage and a flat right front tire, and that it matched the description of a truck involved in a hit-and-run accident.  Although Lewis denies driving the truck at the time of the accident, he admitted to driving the truck when he saw Officer Harlow.  Even if Lewis was not driving the vehicle at the time of the collision, his actions still satisfy the elements of evading arrest.  According to Lewis=s own testimony, he panicked when he saw Officer Harlow=s vehicle and continued to drive towards his brother=s house.  Officer Harlow testified that she turned on her lights and sirens and followed Lewis as he accelerated, ran a red light, and ran stop signs.  The jury saw Officer Harlow=s video of the pursuit, where Lewis continued to proceed despite Officer Harlow=s attempt to stop him.

The absence of a definition for lawful detention does not affect the basis of this case, deprive Lewis of a valuable right, or substantially affect a defensive theory.  See Sanchez, 209 S.W.3d 117 at 121.  Lewis offered no evidence that Officer Harlow=s actions in attempting to detain or arrest him were unlawful.  Lewis=s counsel made no suggestion at trial, and does not contend on appeal, that the evidence was insufficient to prove that Officer Harlow was lawfully attempting to detain Lewis.  Considering the absence of a definition for lawful detention in the jury charge in light of the entire jury charge and all the evidence presented at trial, we conclude that even if there was charge error, such error was not so egregious that Lewis was denied a fair and impartial trial.  See Almanza, 686 S.W.2d at 171-72.  

We affirm the judgment of the trial court.                                    

/s/      Jeff Brown

Justice

Judgment rendered and Memorandum Opinion filed May 20, 2008.

Panel consists of Justices Yates, Guzman, and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).