Reese v. State

846 S.W.2d 351, 1992 Tex. App. LEXIS 1929, 1992 WL 164762
CourtCourt of Appeals of Texas
DecidedJuly 17, 1992
Docket12-90-00192-CR
StatusPublished
Cited by9 cases

This text of 846 S.W.2d 351 (Reese v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Reese v. State, 846 S.W.2d 351, 1992 Tex. App. LEXIS 1929, 1992 WL 164762 (Tex. Ct. App. 1992).

Opinion

BILL BASS, Justice.

In a trial to the court, Appellant was convicted of the misdemeanor offense of evading arrest and sentenced to 120 days in the Smith County Jail. On appeal, Appellant challenges the sufficiency of the evidence to support the conviction. We will affirm.

Appellant’s first point of error alleges that the evidence was insufficient to prove that Appellant evaded a lawful arrest; his second point alleges that the evidence is insufficient to prove that he evaded a lawful arrest rather than an investigative detention. We will address both points together.

According to the State’s evidence adduced at trial, on or about April 5, 1990, at approximately 12:35 a.m., Richard 0. Ar- *352 buckle, a patrolman for the Tyler Police Department, received information via his police radio that three officers had been dispatched to the scene of a residential burglary on Edinburgh street. Thereafter, Arbuckle received information from these officers that the suspect had fled the scene. The officers radioed that the suspect’s name was Kevin Reese and gave a detailed description of Reese’s appearance. Moments later, the police dispatcher broadcast the Appellant’s address and apartment number at the Embarcadero Apartments in Tyler, Texas.

Arbuckle, who was on patrol in the area of Appellant’s residence, drove to Appellant’s apartment complex and knocked on Appellant’s door. Eventually, Arbuckle was greeted by Appellant’s roommate who informed him that Appellant had left for Houston. However, about this time, Appellant approached the complex. Since Appellant met the description given over the radio, Arbuckle spoke to Appellant and asked him to identify himself. Appellant informed Arbuckle that his name was Mark Morgan; however, Appellant’s roommate told Arbuckle that Appellant’s name was Kevin Reese. Arbuckle then questioned Appellant regarding the burglary on Edinburgh, but Appellant denied taking part in it. At this point, Arbuckle radioed for verification that Appellant was indeed the correct suspect, and upon receiving verification, he informed Appellant that he was under arrest and instructed him to turn around and place his hands behind his back. Appellant disregarded Arbuckle’s instruction, backed up and then began walking away. When Arbuckle pursued him, Appellant broke into a run. After a lengthy chase afoot, Arbuckle apprehended and arrested Appellant.

Appellant related a version of the facts which completely contradicted that presented by the State. According to Appellant, on the night of April 5, 1990, he had an argument with his girlfriend because she had another man with her. Appellant and the man engaged in a minor scuffle, and afterwards, Appellant got his girlfriend's neighbor to drive him home. When Appellant arrived at the Embarcadero Apartments, he noticed that there was either a policeman or security guard talking to his roommate. Appellant said that this did not surprise him because his roommate was on probation for DWI and also because there were always lots of police or security guards at his apartment complex. Appellant stated that he had returned home about 1:00 a.m. to pick up some money and walk over to the grocery store. According to Appellant, he then proceeded to walk down the sidewalk toward the grocery store when Arbuckle ran up from behind him. Appellant denied that he had run from Arbuckle and inferred that he could have gotten away from Arbuckle if he had wanted to since he is a fairly fast 10K runner. Appellant also stated that Ar-buckle neither identified himself as a police officer nor informed Appellant that he was under arrest; instead, Arbuckle just slammed Appellant’s face against the sidewalk, said something about a burglary and called Appellant all sorts of names. Appellant further testified that he had not had any intention of going to Houston because he had to be at wofk at 8:00 a.m. that morning. Appellant stated that shortly thereafter, two more officers arrived, “and a sergeant came running up and he put a gun to my head and he told me that he was going to blow my brains out.”

In reviewing the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in a light most favorable to prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 at 320, 99 S.Ct. 2781 at 2789, 61 L.Ed.2d 560 (1979); Dickey v. State, 693 S.W.2d 386, 387 (Tex.Cr.App.1984). The offense of evading arrest is set forth in Tex.Penal Code Ann. § 38.04 (Vernon 1992):

(a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting to arrest him or detain him for the pur *353 pose of questioning or investigating possible criminal activity. 1
(b) It is an exception to the application of this section that the attempted arrest is unlawful or the detention is without reasonable suspicion to investigate.

The State must have proved the following six elements in order to establish that Appellant evaded a lawful arrest: (1) a person (2) intentionally flees (3) from a peace officer (4) with knowledge he is a police officer (5) the peace officer is attempting to arrest the defendant (6) the attempted arrest is lawful. Johnson v. State, 634 S.W.2d 695 (Tex.Cr.App.1982); Alejos v. State. 555 S.W.2d 444 (Tex.Cr.App.1977).

Since Appellant was not apprehended pursuant to a warrant, the evidence must establish that Arbuckle had probable cause to arrest Appellant and that circumstances existed which made procuring a warrant impracticable. Washington v. State, 518 S.W.2d 240, 242 (Tex.Cr.App.1975). Tex.Code Crim.Proc.Ann. art. 14.04 provides that:

Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant pursue and arrest the accused.
(Emphasis added.)

Where an arrest is made pursuant to a police broadcast, the test for probable cause is the sufficiency of the information known to the officer who made the broadcast request. Crane v. State, 786 S.W.2d 338 (Tex.Cr.App.1990); Williams v. State, 621 S.W.2d 609, 611 (Tex.Cr.App.1981). The officer broadcasting the request need only relate the information necessary for the arresting officer to know who is wanted. Crane, 786 S.W.2d at 346.

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Bluebook (online)
846 S.W.2d 351, 1992 Tex. App. LEXIS 1929, 1992 WL 164762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reese-v-state-texapp-1992.