ACCEPTED 07-17-00027-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 6/15/2017 11:47:25 PM Vivian Long, Clerk
Cause No. 07–17–00027–CR In the Court of Appeals, Seventh District FILED IN 7th COURT OF APPEALS Amarillo, Texas AMARILLO, TEXAS 6/15/2017 11:47:25 PM VIVIAN LONG CLERK Marcus Delaney, Appellant
v.
The State of Texas, Appellee
Appeal from the 89th District Court of Wichita County, Texas Trial Cause No. 57,181-C, The Honorable Charles Barnard Presiding
The State’s Brief
Maureen Shelton Wichita County Criminal District Attorney
Jennifer Ponder Judy Price Asst. Criminal District Attorney Asst. Criminal District Attorney Wichita County, Texas Wichita County, Texas State Bar No. 24083676 State Bar No. 24082447 Jennifer.Ponder@co.wichita.tx.us Judy.Price@co.wichita.tx.us 900 7th Street Wichita Falls, Texas 76301 (940) 766-8113 phone (940) 766-8530 fax
Attorneys for the State The State of Texas Oral Argument Not Requested IDENTITY OF THE PARTIES & COUNSEL Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), the State adopts
the Identities of Parties and Counsel set out in the APPELLANT’S BRIEF, with the
following addition:
Judy Price Attorney for the State, Trial Asst. Criminal District Attorney Wichita County, Texas State Bar No. 24082447 Judy.Price@co.wichita.tx.us
2 TABLE OF CONTENTS Identity of The Parties & Counsel.................................................................................................... 2
Table of Contents .................................................................................................................................. 3
Index of Authorities ..............................................................................................................................6
Statement of the Case ...........................................................................................................................8
Statement Regarding Oral Argument ............................................................................................8
Issues Presented ......................................................................................................................................9
I. Whether Appellant preserved error regarding the exclusion of testimony when trial counsel neither objected to the court’s ruling nor made an offer of proof.
II. Assuming error was preserved, whether the trial court abused discretion by excluding a portion of Appellant’s testimony due to his lack of personal knowledge.
III. Assuming error and preservation thereof, whether Appellant was substantially harmed by the exclusion of testimony.
IV. Whether, when viewing the evidence in a light most favorable to the verdict, a rational trier of fact could have determined that Appellant intentionally evaded lawful detention.
Statement of Facts ............................................................................................................................... 10
Argument ................................................................................................................................................ 14
I. Because Appellant did not object to or make an offer of proof regarding the portion of his excluded testimony, he waived this issue on appeal. ......................................................................................................................... 14
II. Even assuming Appellant preserved error, the trial court did not abuse discretion by excluding this portion of Appellant’s testimony because the exclusion was pursuant to the rules of evidence. .................................. 17
3 A. Appellant received the opportunity to present a meaningful defense by testifying about his defensive theory. ................................................... 17
III. Assuming error, Appellant was not harmed by the exclusion of evidence because the excluded evidence would not have influence the jury, or had but slight effect. ........................................................................................ 19
A. Assuming error, this Court should apply a non-constitutional harm analysis because exclusion of evidence does not rise to a constitutional level. .......................................................................................................... 19
B. Appellant was not harmed by the exclusion of evidence because the error did not influence the jury, or had only a slight effect. ......................20
1. When applying the factors found in Vanwinkle v. State, the assumed error did not have influence the jury or had but slight effect. .................................................................................................................. 21
2. When viewing the assumed excluded evidence in connection with admitted evidence, it would be needlessly cumulative. ...................... 22
IV. When viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have determined that Appellant intentionally evaded lawful detention. ....................................................... 23
A. A rational jury could have found that Appellant was detained because a reasonable person in the same position would not have felt free to leave. ...................................................................................................... 23
B. A rational jury could have found that Deputy McGuinn lawfully detained Appellant because McGuinn had reasonable suspicion based upon articulable facts that an offense (driving without two headlights) had occurred. .....................................................................24
C. When viewing the evidence in a light most favorable to the verdict, a rational trier of fact could have found that Appellant intentionally evaded detention. ...................................................................................26
Prayer........................................................................................................................................................ 27
Certificate of Compliance ................................................................................................................ 28 4 Certificate of Service.......................................................................................................................... 28
5 INDEX OF AUTHORITIES Cases
Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014). ............................................ 14
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ............................................................ 23
Crain v. State, 315 S.W.3d 43 (Tex. Crim. App. 2010) ......................................................... 23, 24
Davis v. State, 947 S.W.2d 240 (Tex. Crim. App. 1997) ............................................................. 25
Douds v. State, 472 S.W.3d 670 (Tex. Crim. App. 2015) cert. denied, 136 S.Ct. 1461 (Mar. 21, 2016) .............................................................................................................. 14
Hernandez v. State, 819 S.W.2d 806 (Tex. Crim. App. 1991) ....................................................26
Horne v. State, 228 S.W.3d 442 (Tex. App.—Texarkana 2007, no pet.).................................26
Jackson v. Virginia, 443 U.S. 307 (1979) ............................................................................................ 23
Johnson v. State, No. 14–14–00261–CR, 2015 WL 3985848 (Tex. App.— Houston [14th Dist.] Jun. 30, 2015, pet. ref’d) (not designated for publication)...................................................................................................................................... 18
Laesser v. State, No. 14–09–00469–CR, 2010 WL 2649945 (Tex. App.— Houston [14th Dist.] Jul. 6, 2010, pet. ref’d) (not designated for publication)......................................................................................................................................26
Layton v. State, 280 S.W.3d 235 (Tex. Crim. App. 2009) .......................................................... 14
Manrique v. State, 994 S.w.2d 640 (Tex. Crim. App. 1999) ......................................................26
Mays v. State, 285 S.W.3d 884 (Tex. Crim. App. 2009)............................................................. 15
Miller v. State, 36 S.W.3d 503 (Tex. Crim. App. 2001) .........................................................17, 18
Moff v. State, 131 S.W.3d 485, 489 (Tex. Crim. App. 2004) ...................................................... 14
Montgomery v. State, 810 S.W.3d 372 (Tex. Crim. App. 1990) ................................................. 17
Moore v. State, 371 S.W.3d 221 (Tex. Crim. App. 2012) .............................................................. 14
6 Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ............................................................. 21
Ray v. State, 178 S.W.3d 833 (Tex. Crim. App. 2005) ................................................... 19, 20, 21
Rodriguez v. U.S., 135 S.Ct. 1609 (2015) ............................................................................................24
Taylor v. State, 939 S.W.2d 148 (Tex. Crim. App. 1996) ........................................................... 14
Terry v. Ohio, 392 U.S. 1 (1968) ................................................................................................... 24, 25
Vanwinkle v. State, No. 02–09–00200–CR, 2010 WL 4261603 (Tex. App.— Fort Worth, Oct. 28, 2010, pet. ref’d) (not designated for publication) ................ 21, 22
Weathererred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000) ................................................. 17
Statutes
TEX. TRANS. CODE § 547.321 .............................................................................................................. 25
TEX. TRANS. CODE § 547.333.............................................................................................................. 25
Rules
TEX. R. APP. 42.2 .................................................................................................................................... 21
TEX. R. EVID. 103 .................................................................................................................................... 15
TEX. R. EVID. 602 ................................................................................................................................... 17
7 STATEMENT OF THE CASE A grand jury indicted Appellant for the offense of Evading Arrest or Detention,
enhanced by a previous conviction for Evading Arrest of Detention from August 11,
2008. C.R. 1:5. Appellant pled not guilty, R.R. 5:7, and on November 17, 2016, a jury
found Appellant guilty and sentenced him to twenty-four months in the State Jail
Division of the Texas Department of Criminal Justice. C.R. 1:53. This appeal followed.
STATEMENT REGARDING ORAL ARGUMENT The State waives oral argument as it would not assist the Court’s decision-making.
8 ISSUES PRESENTED I. Whether Appellant preserved error regarding the exclusion of testimony when trial counsel neither objected to the court’s ruling nor made an offer of proof.
II. Assuming error was preserved, whether the trial court abused discretion by excluding a portion of Appellant’s testimony due to his lack of personal knowledge.
III. Assuming error and preservation thereof, whether Appellant was substantially harmed by the exclusion of testimony.
IV. Whether, when viewing the evidence in a light most favorable to the verdict, a rational trier of fact could have determined that Appellant intentionally evaded lawful detention.
9 STATEMENT OF FACTS On the evening of February 4, 2016, Josh McGuinn and Cole McGarry, deputies
with the Wichita County Sherriff’s Office, were partnered and working in separate
vehicles. R.R. 5:21–22, 61. Deputy McGuinn observed Appellant’s vehicle traveling after
dark with a headlight out. R.R. 5:22–23. After catching up to Appellant’s car, Deputy
McGuinn turned on his overhead lights. R.R. 5:23. Although Appellant activated his
hazard lights, he did not stop, even when Deputy McGuinn activated his siren. R.R.
5:23–24.
Upon starting his lights, McGuinn did not intend to issue Appellant a ticket.
R.R. 5:46. However, when Appellant did not stop immediately, Deputy McGuinn felt
something “kind of wasn’t right,” and although he did not intend to arrest Appellant,
McGuinn was concerned with making contact and identifying him. R.R. 5:47–48.
After approximately a minute, Appellant pulled into his father’s driveway. R.R. 5:24,
78. Deputy McGuinn identified Appellant as the driver of the vehicle for the record.
R.R. 5:25.
After Appellant stopped, he exited his vehicle, removed his jacket, and emptied
his pockets. R.R. 5:25. Appellant refused Deputy McGuinn’s instructions to get back
inside his car, and instead, went up to the house and started knocking on the windows.
R.R. 5:26. McGuinn requested that Appellant return to his car more than once, but
10 Appellant ignored McGuinn and walked back and forth, trying to knock on the
window. R.R. 5:27. McGuinn instructed Appellant to return to his vehicle. R.R. 5:27.
Appellant refused to comply with McGuinn’s requests to present his driver’s license,
and moved to the front porch of the house. R.R. 5:27–28.
Deputy McGuinn called for Deputy McGarry to come to the scene more quickly,
and followed Appellant to the porch. R.R. 5:28. Appellant even refused to respond to
McGuinn’s request for his name. R.R. 5:28. After getting to the porch, Deputy
McGuinn informed Appellant he was going to assist Appellant off the porch and
reached for Appellant to detain him, but Appellant took off running. R.R. 5:28–29, 52–
54. McGuinn chased after Appellant, and yelled to McGarry, who had just arrived,
where he thought Appellant ran. R.R. 5:29–30. The two deputies approached the
location from different directions. R.R. 5:30.
When Deputy McGarry arrived, he saw who was later determined to be
Appellant, run across the street and into an alley followed by Deputy McGuinn. R.R.
5:63–65, 67. McGarry drove where McGuinn instructed, and when McGarry got out of
his vehicle, he saw Appellant laying face-down on the ground. R.R. 5:64, 67–68. Deputy
McGarry handcuffed Appellant and placed him in his patrol car. R.R. 5:64. During
trial, the State played McGuinn’s in-car video recording from that night. R.R. 5:30–32,
11 34–38; State’s 3. McGarry did not turn on his vehicle’s overhead lights, so no in-car
video was recorded. R.R. 5:65.
Deputies McGuinn and McGarry briefly addressed the safety concerns involved
that night. McGuinn explained that he asked Appellant to return to and sit inside his
vehicle because McGuinn did not know the intent behind Appellant’s actions, which
could have been life-threatening. R.R. 5:26. Deputy McGarry told the jury that it is
important for individuals to follow peace officer instructions for public and officer
safety because they can be involved in life-threatening situations. R.R. 5:63.
Annette Wang, lead crime scene technician with the Wichita Falls Police
Department and an expert in fingerprint identification, compared Appellant’s known
fingerprints to the print on the certified copy of judgment and sentence for evading
arrest and determined that they matched. R.R. 5:12–15.
Appellant testified in his own defense. He explained that he turned on his
hazard lights so the officer would know he was aware of the officer’s presence, but was
afraid to pull over immediately because he was in a bad part of town. R.R. 5:77–78.
Appellant said he took off his coat because it was dark and he wanted the officer to see
he was unarmed. R.R. 5:79. Appellant stated that emptied his pockets so the officer
could have his identification and know his pockets were empty. R.R. 5:80.
12 Appellant refused to get back in his vehicle because it was dark and the dome
lights did not work. R.R. 5:80. Appellant knocked on his father’s windows because he
wanted a witness in case something went wrong. R.R. 5:81–82. Appellant testified that
he saw the officer reach for him, and ran out of fear because “I didn’t know why he was
reaching up to grab me.” R.R. 5:83–84. Appellant told the jury that he was worried
because of what he hears in the news and that he did not want to be shot by the police.
R.R. 79–80. Appellant admitted that he ran from the police but it was not because he
was avoiding arrest or detention, but because he was afraid. R.R. 5:84.
13 ARGUMENT I. Because Appellant did not object to or make an offer of proof regarding the portion of his excluded testimony, he waived this issue on appeal. In order to preserve error, a party must make a timely objection at trial, stating
the specific basis for the objection, unless it is apparent from the context, and that
party must receive and adverse ruling on that objection from the judge. Moff v. State,
131 S.W.3d 485, 489 (Tex. Crim. App. 2004) (relying on TEX. R. APP. 33.1). “Generally,
error that is not preserved may not be raised for the first time on appeal.” Moore v.
State, 371 S.W.3d 221, 225 (Tex. Crim. App. 2012).
Appellate courts are not hyper-technical when examining whether error was
preserved. Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014). However,
there need be no specific words or technical considerations to guarantee an issue to be
preserved for appeal. Layton v. State, 280 S.W.3d 235, 239 (Tex. Crim. App. 2009).
Reviewing courts resolve questions of preservation of error by examining the context
of the entire record. Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015) cert.
denied, 136 S.Ct. 1461 (Mar. 21, 2016). If the basis for the objection is not apparent from
the context, the objecting must clearly state the nature and legal basis of the objection
to preserve error. Taylor v. State, 939 S.W.2d 148, 155 (Tex. Crim. App. 1996).
14 In order to preserve error regarding a judge’s decision to exclude evidence
requires the complaining party to comply with Texas Rule of Evidence 103 by making
an “offer of proof,” which sets forth the substance of the excluded evidence. Mays v.
State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009); TEX. R. EVID. 103(a)(2). Without an
offer of proof, a party complaining about exclusion of evidence has not preserved error,
and has waived the issue on appeal.
“The primary purpose of an offer of proof is to enable an appellate court to
determine whether the exclusion was erroneous and harmful. A secondary purpose it
to permit the trial just to reconsider his ruling in light of the actual evidence.” Mays,
285 S.W.3d at 889 (quotation omitted). Thus, an offer of proof must, “with some
degree of specificity, the substantive evidence he intended to present.” Id. A summary,
“in the most general and cursory terms, without any of the meat of the actual evidence”
will not preserve error. Id.
During Appellant’s testimony, he attempted to answer questions about a person
who was shot by police approximately eight months before this offense. R.R. 5:89.
However, the State objected on the basis of lack of personal knowledge, or Texas Rule
of Evidence 602. R.R. 5:89-90. The following exchange occurred:
15 State: Objection, Your Honor, lack of personal knowledge.
Defense: Okay.
The Court: Sustained.
Defense: That’s fine. I’m just trying to explore his state of mind.
State: Same objection.
Defense: That’s okay.
State: Same objection, Your Honor.
The Court: Both sustained. The Jury’s not to consider.
Defense: Okay. That’s fine. I pass the witness. R.R. 5:89-90.
The only party who objected during this exchange was the State. Appellant’s trial
counsel made a half-hearted attempt to justify his question, and ultimately, acquiesced
to the trial court’s ruling.
Further, Appellant did not make an offer of proof as to the excluded evidence.
Although Appellant answered the immediate question, we assume that it was only the
beginning of a series of questions. Appellant did not make an offer of proof as to what
he would have testified, had his trial counsel been able to follow through on the line of
questioning. Therefore, Appellant failed to preserve error and has waived this issue on
appeal.
16 II. Even assuming Appellant preserved error, the trial court did not abuse discretion by excluding this portion of Appellant’s testimony because the exclusion was pursuant to the rules of evidence. Courts review the decision to exclude evidence for abuse of discretion. Id. The
reviewing court must uphold the trial court’s ruling if it was within the zone of
reasonable disagreement. Weathererred v. State, 15 S.W.3d 540, 524 (Tex. Crim. App.
2000). This is determined by assessing whether “the court acted without reference to
any guiding rules or principles,” or “whether the act was arbitrary and unreasonable.”
Montgomery v. State, 810 S.W.3d 372, 380 (Tex. Crim. App. 1990).
Texas Rule of Evidence 602 allows a witness to testify about a matter only if that
witness has personal knowledge of the matter. TEX. R. EVID. 602. The State objected
to Appellant’s testimony based on this rule, Appellant’s lack of personal knowledge,
and the trial court excluded that testimony. R.R. 5:89–90. The trial court’s ruling was
based upon Rule 602, and therefore was within the zone of reasonable disagreement.
Thus, the trial court did not abuse its discretion.
A. Appellant received the opportunity to present a meaningful defense by testifying about his defensive theory.
The United States Constitution ensures that criminal defendants will have “a
meaningful opportunity to present a complete defense.” Miller v. State, 36 S.W.3d 503,
506 (Tex. Crim. App. 2001) (internal quotations omitted). “A defendant has a
fundamental right to present evidence of a defense so long as the evidence is relevant 17 and is not excluded by an established evidentiary rule.” Miller, 36 S.W.3d at 507 (citing
Chambers v. Mississippi, 410 U.S. 284, 302 (1973)).
In Johnson v. State, the appellant’s trial “attorney attempted to elicit testimony
from complainant regarding her telephone conversation” and the trial court upheld the
State’s objection based upon lack of personal knowledge and excluded the testimony.
Johnson v. State, No. 14–14–00261–CR, 2015 WL 3985848, at *1, 3 (Tex. App.—Houston
[14th Dist.] Jun. 30, 2015, pet. ref’d) (not designated for publication). On appeal, the
appellant argued the excluded testimony was essential to his defense against the intent
element, and that he was entitled to present his defensive theory. Id., at *2.
First, the Johnson Court held that although it was possible for the complainant
to satisfy the personal knowledge requirement, i.e. Rule 602, the appellant failed to
proffer any of that evidence. Id., at *3. Therefore, the Johnson Court found the trial
court did not abuse its discretion. Id. Second, because the appellant did not proffer
evidence showing why the excluded testimony did not violate Rule 602, he also failed
to establish that the excluded testimony was “‘not excluded by an established
evidentiary rule’ and thus that the trial court deprived him of a meaningful opportunity
to present a complete defense.” Id. (quoting Miller, 36 S.W.3d at 507).
Appellant’s case is much like Johnson. Even assuming that Appellant preserved
error, he failed to proffer any evidence to show that Appellant had personal knowledge
18 of what he attempted to testify about. Therefore, Appellant has not shown how the
excluded testimony was not excluded by an established evidentiary rule. Thus,
Appellant failed to show he was deprived of a meaningful opportunity to present a
complete defense.
III. Assuming error, Appellant was not harmed by the exclusion of evidence because the excluded evidence would not have influence the jury, or had but slight effect. A. Assuming error, this Court should apply a non-constitutional harm analysis because exclusion of evidence does not rise to a constitutional level.
The Court of Criminal Appeals determined two circumstances in which the
improper exclusion of evidence may rise to a constitutional violation, and Texas Rule
of Appellate Procedure 44.2(a) applies:
(1) when a state evidentiary rule categorically and arbitrarily prohibits the defendant from offering relevant evidence that is vital to his defense; or (2) when a trial court erroneously excludes relevant evidence that is a vital portion of the case and the exclusion effectively precludes the defendant from presenting a defense. Ray v. State, 178 S.W.3d 833, 835 (Tex. Crim. App. 2005) (citations omitted).
Although the evidence was excluded due to an evidentiary rule, Appellant failed to
show that Rule 602 categorically and arbitrarily prohibited him from presenting
relevant evidence.
Nor does the second apply. In Ray, the Court of Criminal Appeals examined
whether excluded evidence prevented the appellant from presenting her defense, which
19 would entitle her to a constitutional, 44.2(a), harm analysis. Ray, 178 S.W.3d at 835.
The Ray Court noted that the excluded testimony would only incrementally further
the appellant’s defensive theory, and held that because the appellant was able to testify
about her defensive theory, she was not effectively prevented from presenting her
defense. Id. at 836.
Just as in Ray, Appellant was not precluded from presenting a defense because
through his own testimony, he was able to present his defensive theory.1 In fact,
Appellant explicitly testified he ran from Officer McGuinn because he was afraid, not
because he intended to avoid arrest or detention. R.R. 5:84. The excluded testimony,
presumably that a white police officer shot and killed a black man within eight months
of this offense, R.R. 5:89, would only have incrementally furthered Appellant’s theory.
Therefore, assuming error, this Court should perform a Rule 44.2(b) non-constitutional
harm analysis.
B. Appellant was not harmed by the exclusion of evidence because the error did not influence the jury, or had only a slight effect.
“When evaluating harm from non-constitutional error flowing from the
exclusion of relevant evidence,” reviewing courts examine the record as a whole, and if
1 Appellant testified that he “didn’t want to get shot by an officer.” R.R. 5:80. In addition, Appellant justified almost all of his actions in terms of his safety. See e.g., R.R. 5:78 (explaining that he did not stop immediately after the officer turned on his lights because he was in a bad part of town); R.R. 5:79 (he took off his coat so the officer could see he was not armed); R.R. 5:80–81 (he refused to get back in his car because he wanted to be fully visible). 20 the error did not influence the jury or had but a slight effect, the error shall be
considered harmless. Ray, 178 S.W.3d at 836; TEX. R. APP. 42.2(b). When reviewing the
entire record, appellate courts examine testimony and physical evidence presented to
the jury, the nature of the evidence supporting the verdict, and the character of the
alleged error and how it might be considered in connection with admitted evidence.
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
1. When applying the factors found in Vanwinkle v. State, the assumed error did not have influence the jury or had but slight effect.
In Vanwinkle v. State, the appellant was convicted of obtaining or possessing
hydrocodone through the use of a fraudulent prescription. Vanwinkle v. State, No. 02–
09–00200–CR, 2010 WL 4261603, at *1 (Tex. App.—Fort Worth, Oct. 28, 2010, pet. ref’d)
(not designated for publication). Among other issues, the appellant challenged the trial
court’s decision to exclude evidence that she tested negative for drugs after her arrest.
Id. at *2. After determining the assumed error was non-constitutional, the Vanwinkle
Court determined the error was harmless (Id. at *5) based upon the following reasoning:
When reducing the trial to a credibility determination between the appellant and two eye witnesses, the excluded evidence would not have made the eyewitness testimony less credible;
The excluded evidence would not have added credence to the appellant’s version of events because it did not exculpate her from committing the offense; and
The jury had reasons to discredit the appellant’s testimony. Id. at *3.
21 In addition, the Vanwinkle Court distinguished Ray from that case, noting that the
excluded evidence in that case came from a third-party eyewitness and would not have
inculpated another individual instead of the appellant. Id. at *5.
This case is very similar to Vanwinkle. When reduced to whether the jury
believed Appellant’s justification for his actions; the actions themselves are not
contested. Appellant’s credibility would not be enhanced by his testimony regarding
a police involved shooting in the area. The excluded testimony would not exculpate
Appellant from this offense. The excluded evidence would not have come from a third
party, nor would it have inculpated another individual in Appellant’s place.
2. When viewing the assumed excluded evidence in connection with admitted evidence, it would be needlessly cumulative.
Assuming—since Appellant failed to make an offer of proof—that the excluded
evidence was in reference to a police officer involved shooting that occurred eight
months prior to this offense, common sense and experience leads to the conclusion that
this event would have been covered in the news media. In fact, Appellant was allowed
to testify that he watched the news closely, was aware of recent incidents where (during
traffic stops) white police officers have shot black men, and was afraid because of them.
R.R. 5:79–80, 84, 87–88. Therefore, any testimony regarding a specific incident2 would
2 This presupposes that such an event occurred. 22 not have influenced the jury, or had minimal effect, since, by referring to the news in a
general sense, Appellant was able to invoke multiple officer involved shootings.
IV. When viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have determined that Appellant intentionally evaded lawful detention. According to the Jackson v. Virginia constitutional standard for assessing the legal
sufficiency of the evidence, “the relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Jackson v.
Virginia, 443 U.S. 307, 31819 (1979). The reviewing court defers to the jury’s assessment
of witness credibility and weight to be given the testimony, as the jury is the sole judge
of those issues. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
A. A rational jury could have found that Appellant was detained because a reasonable person in the same position would not have felt free to leave.
The offense of evading arrest requires the State to prove that the defendant
intentionally fled from a person he knew was a peace officer attempting to lawfully
arrest or detain him. Tex. Penal Code § 38.04(a). Appellant courts review the totality
of circumstances when determining whether a defendant is detained. Crain v. State, 315
S.W.3d 43, 48–49 (Tex. Crim. App. 2010). To determine whether an interaction
constitutes a voluntary encounter or a detention, a reviewing courts asks, “[W]hether a
23 reasonable person in the citizen’s position would have felt free to decline the officer’s
requests or otherwise terminate the encounter.” Id. at 49.
It is well recognized and common sense that when an officer activates his
overhead emergency lights behind a vehicle, the driver would not have felt free to leave.
By turning on his lights, the officer is exerting a show of authority, and in turn, by
pulling over, (or activating hazard lights and eventually pulling over) the driver is
recognizing and acceding to that show of authority. This is exactly what occurred in
this case. Deputy McGuinn activated his overhead lights (and even his sirens briefly),
and Appellant activated his hazard lights before driving some distance and pulling
over. Therefore, when viewing these fact in a light most favorable to the verdict, a
rational jury could have found that Appellant was detained.
B. A rational jury could have found that Deputy McGuinn lawfully detained Appellant because McGuinn had reasonable suspicion based upon articulable facts that an offense (driving without two headlights) had occurred.
The United States Supreme Court analogizes traffic stops to Terry stops or
investigative detentions. Rodriguez v. U.S., 135 S.Ct. 1609, 1614 (2015). In Terry v. Ohio,
the Court created a two prong test to determine whether an officer’s investigative
detention violated the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 18–20 (1968). The
first prong requires the officer to have a reasonable suspicion of criminal activity, or
“specific and articulable facts which, taken together with rational inferences from those
24 facts, reasonably warrant the intrusion.” Id. at 21. Courts measure reasonableness using
an objective standard to determine whether “the facts available to the officer at the
moment of the seizure or search warrant a man or reasonable caution in the belief that
the action taken was appropriate.” Davis v. State, 947 S.W.2d 240, 234 (Tex. Crim. App.
1997).
The second Terry prong deals with the extent of the detention. Terry, 392 U.S.
at 25–26. “To be reasonable, a traffic stop must be temporary and last no longer than
necessary to effectuate the purpose of the stop.” Fisher, 481 S.W.3d at 407 (quoting
Evanoff v. State, Nos. 11–09–00317–18–CR, 2011 WL 1431520, at *5 (Tex. App.—Eastland
Apr. 14, 2011, pet. ref’d)). An investigative stop that is initially reasonable may still
violate the Fourth Amendment due to excessive length or scope. Fisher, 481 S.W.3d at
407.
Deputy McGuinn had reasonable suspicion to stop Appellant. According to the
Texas Transportation Code, not only must a vehicle be equipped with two headlights,
TEX. TRANS. CODE § 547.321, its driver must use them to illuminate a safe distance
ahead. TEX. TRANS. CODE § 547.333(c). Deputy McGuinn testified that he decided to
stop Appellant because it was after dark and one of Appellant’s headlights was not
illuminated. R.R. 5:23. Further, at the time Appellant ran, Deputy McGuinn had not
completed the purpose of the stop. In fact, Appellant had even refused to give Deputy
25 McGuinn his name. The scope of the traffic stop did not exceed Constitutional
limitations. Therefore, Deputy McGuinn detained Appellant lawfully.
C. When viewing the evidence in a light most favorable to the verdict, a rational trier of fact could have found that Appellant intentionally evaded detention.
Intent is a fact question for the jury and may be inferred from a defendant’s
actions and conduct, Manrique v. State, 994 S.w.2d 640, 649 (Tex. Crim. App. 1999), and
the surrounding circumstances. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim.
App. 1991). Regardless of whether a defendant ultimately intends to escape an officer,
attempting to evade arrest, even if only for a short time, is legally sufficient intent for
evading arrest. Horne v. State, 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no pet.);
Laesser v. State, No. 14–09–00469–CR, 2010 WL 2649945, at *4 (Tex. App.—Houston
[14th Dist.] Jul. 6, 2010, pet. ref’d) (not designated for publication).
Other than turning on his and (eventually) stopping in his father’s driveway
Appellant refused to comply with virtually everything Deputy McGuinn asked of him.
Even though Deputy McGuinn told Appellant that he was going to be assisted from
the porch, Appellant ran from McGuinn as soon as McGuinn reached for him.
Appellant even admitted to running from Deputy McGuinn. When viewing this
evidence in a light most favorable to the verdict, a rational jury could have found
Appellant intended to evade detention.
26 PRAYER The State prays that the Court of Appeals, Second District, affirm the judgment
of the 89th District Court of Wichita County, Texas.
Respectfully Submitted,
Maureen Shelton Criminal District Attorney Wichita County, Texas
/s/ Jennifer Ponder Jennifer Ponder Assistant Criminal District Attorney Wichita County State Bar No. 24083676 900 7th Street Wichita Falls, Texas 76301 Jennifer.Ponder@co.wichita.tx.us Tel.: (940)766-8113 Fax: (940)766-8177
27 CERTIFICATE OF COMPLIANCE I, the undersigned, certify that this document was produced on a computer
using Microsoft Word and contains 3,953 words, as determined by the computer
software’s word-count function, excluding the sections of the document listed in
Texas Rule of Appellate Procedure 9.4(i)(1).
/s/ Jennifer Ponder Jennifer Ponder
CERTIFICATE OF SERVICE I, the undersigned, certify that on June 15, 2017, I served a copy of the State’s
Brief on the parties listed below by electronic service and that the electronic
transmission was reported as complete. My e-mail address is
Jennifer.Ponder@co.wichita.tx.us.
Todd Greenwood Attorney for Appellant 900 8th Street, Suite 716 Wichita Falls, Texas 76301 (940) 689-0707 toddgreenwood@lawyer.com