Chambers v. State

Full title: DAVID LEE CHAMBERS Appellant v. STATE OF TEXAS Appellee

Court: Court of Appeals of Texas, Eleventh District, Eastland

Date published: Mar 4, 2004

No. 11-03-00035-CR (Tex. App. Mar. 4, 2004)

Opinion

No. 11-03-00035-CR.

March 4, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).

Appeal from Brown County.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.

Opinion

TERRY McCALL, Justice.

The jury convicted David Lee Chambers of the state jail felony offense of evading arrest. TEX. PENAL CODE ANN. § 38.04(a) (Vernon 2003). The trial court assessed punishment at 2 years in the State Jail Division of the Texas Department of Criminal Justice. We affirm. Issues Presented Section 38.04(a) of the Penal Code provides that "[a] person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him." The grand jury's indictment alleged that appellant "intentionally fle[d] from Mike Barr, a person the defendant knew was a peace officer who was attempting lawfully to arrest or detain [him]." At the time of the alleged incident, Reserve Deputy Barr was a reserve deputy for the Brown County Sheriff's Department. In three points of error, appellant argues that the evidence was legally insufficient to support findings: (1) that Reserve Deputy Barr was a "peace officer" or (2) that appellant knew that Reserve Deputy Barr was a "peace officer." Therefore, appellant asserts that the trial court erred: (1) in denying his motion for instructed verdict, (2) in denying his motion for new trial, and (3) in rendering a judgment of conviction against him. The Evidence The State presented the following witnesses at trial: (1) Reserve Deputy Barr; (2) Pete Bastardo, a Brown County Deputy; (3) David Mercer, a Brown County Sergeant; (4) Leroy Polnick, a Texas Parks and Wildlife Game Warden; (5) William L. Todson, a Department of Public Safety Criminalist; (6) Delbert T. Amos, a Texas Commission on Law Enforcement Officer Standards and Education Special Agent; and (7) Glenn Smith, Brown County Sheriff. Reserve Deputy Barr testified that the incident occurred during the night of November 25, 2001. At that time, Reserve Deputy Barr was employed as the Postmaster in May and as a reserve deputy for the Brown County Sheriff's Department. He was at home during the night of November 25, 2001. He said that he heard a gunshot outside, about one-fourth mile to the east of his house. He went outside to investigate. He said that he got into his pickup; drove to his gate; and then, as he was opening the gate, saw a red pickup pull over to the side of the road near his neighbor's house. He thought that the two people in the pickup had been involved with the gunshot that he had heard. He believed that the gunshot followed by the two men pulling the pickup over to the side of the road presented suspicious circumstances. Reserve Deputy Barr testified that it was illegal to shoot a firearm from a public road and that it would have been illegal to be hunting at that time of day. He also said that discharging a firearm in close proximity to houses constitutes a dangerous conduct offense. Reserve Deputy Barr informed the Brown County Sheriff's Department by radio that he had made a traffic stop. Reserve Deputy Barr walked up to the pickup. He was shining a flashlight and was carrying a gun. He was concerned that the men in the truck might have a gun. Reserve Deputy Barr testified that he told the driver: "I'm with the sheriff's office. I need to see some identification." Unknown to Reserve Deputy Barr at that time, appellant was the driver of the pickup. Appellant told Reserve Deputy Barr that neither of them had a driver's license. Reserve Deputy Barr said that appellant and the passenger seemed nervous. The passenger said to Reserve Deputy Barr something to the effect of, "Yeah, you know me." Reserve Deputy Barr said that, while he was walking back to his pickup to get a pen, appellant drove off. Reserve Deputy Barr testified that he yelled: "Stop, Police!" and "Hold it!" but that appellant did not stop. Reserve Deputy Barr notified the sheriff's office. Reserve Deputy Barr followed appellant's pickup. Reserve Deputy Barr testified that he had his emergency flashers on in his pickup and that he was close enough to appellant for appellant to see the emergency flashers. For about the next hour, appellant led Reserve Deputy Barr and other law enforcement personnel on a high speed chase, involving speeds up to 100 miles per hour. Reserve Deputy Barr said that he followed appellant's pickup for about 50 miles. Deputy Bastardo, Sergeant Mercer, and Game Warden Polnick were all involved to some extent in the chase. Deputy Bastardo said that he positioned his vehicle at a T-intersection and waited for appellant's pickup to approach. Appellant drove by, and Deputy Bastardo immediately got behind appellant. Deputy Bastardo said that he turned on his emergency lights and siren in an attempt to get appellant to stop. Deputy Bastardo said that his emergency lights would have been readily apparent to appellant. Deputy Bastardo continued to follow appellant for about an hour. Sergeant Mercer parked his vehicle in the road in front of appellant in an attempt to block appellant. Sergeant Mercer had his emergency lights and siren going. Appellant drove around Sergeant Mercer's vehicle by driving in the ditch beside the road. Game Warden Polnick testified that he parked his vehicle in the road in appellant's path. He said that he had his blue and red emergency lights going. He said that appellant swerved into the ditch in an attempt to get by, but high-centered the pickup in the ditch. Game Warden Polnick said that he was able to block appellant in the ditch. Sergeant Mercer testified that he searched appellant's pickup. He found a bag containing a white powdery substance and another bag containing two pills. He believed that the white substance was a controlled substance. Sergeant Mercer said that he submitted the substances to the Department of Public Safety in Abilene for testing. Criminalist Todson testified that he tested the substances submitted by Deputy Mercer. He said that the white powdery substance contained methamphetamine and that the pills were a dangerous drug — Carisoprodol. The remainder of the evidence related to whether Reserve Deputy Barr was a "peace officer." Special Agent Amos testified that Reserve Deputy Barr did not have a permanent peace officer license. He said that Reserve Deputy Barr had a conditional reserve license. Special Agent Amos testified that county sheriffs determine the official duty capacities of their reserve deputies. He said that the sheriffs determine whether to put their reserve deputies on active duty 24 hours a day, 7 days a week. He also said that sheriffs have the authority to establish a policy requiring their reserve deputies to investigate suspicious circumstances. Sheriff Smith testified about his policies. He said that his reserve deputies function as peace officers 24 hours a day. He said that Reserve Deputy Barr was on active duty 24 hours a day, 7 days a week. He also said that his reserve deputies and regular peace officers have the same privileges and authority. Sheriff Smith also said that his reserve deputies are assigned to intervene when they see suspicious circumstances. He testified further that, if his reserve deputies see a crime or a suspicious act in progress, they have the authority to act as any police officer would in that situation. Deputy Bastardo and Sergeant Mercer testified that reserve deputies are on active duty at all times. Reserve Deputy Barr testified that, as a reserve deputy, he was on call 24 hours a day, 7 days a week. He also testified that he was acting within his authority as a reserve deputy at the time of the incident. He said that he had been a reserve deputy since 1979. Sufficiency of the Evidence To determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether 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 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App. 2000). Appellant argues that Reserve Deputy Barr was not a "peace officer" as the term is used in TEX. PENAL CODE ANN. § 38.04 (Vernon 2003). The term "peace officer" is defined in the Penal Code as follows:

"Peace officer" means a person elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure, Section 51.212 or 51.214, Education Code, or other law.

TEX. PENAL CODE ANN. § 1.07(a)(36) (Vernon Supp. 2004). TEX. CODE CRIM. PRO. ANN. art. 2.12 (Vernon Supp. 2004) lists a number of categories of "peace officers." Reserve Deputy Barr did not fall within any of the categories set forth in Article 2.12. Article 2.12(1) provides that: "[T]hose reserve deputies who hold a permanent peace officer license issued under Chapter 1701, Occupations Code" are "peace officers." However, Reserve Deputy Barr did not hold a permanent peace officer license. TEX. EDUC. CODE ANN. § 51.212 51.214 (Vernon 1996 Pamph. Supp. 2004) do not apply in this case. Therefore, the issue is whether Reserve Deputy Barr was "elected, employed, or appointed as a peace officer under . . . other law." The definition of "peace officer" set forth in TEX. OCC. CODE ANN. § 1701.001 (Vernon Pamph. 2004) is similar to the definition set forth in Section 1.07(a)(36) of the Penal Code. Section 1701.001(4) of the Occupations Code defines "peace officer" as "a person elected, employed, or appointed as a peace officer under Article 2.12, Code of Criminal Procedure, or other law." The State argues that Reserve Deputy Barr was a "peace officer" under Section 85.004 of the Local Government Code. See TEX. LOCAL GOV'T CODE ANN. § 85.004 (Vernon Supp. 2004). Section 85.004 provides in relevant part:

(a) The commissioners court of a county may authorize the sheriff to appoint reserve deputy sheriffs.

(b) A reserve deputy serves at the discretion of the sheriff and may be called into service if the sheriff considers it necessary to have additional officers to preserve the peace and enforce the law. . . . A reserve deputy who is not a peace officer as described by Article 2.12, Code of Criminal Procedure, may act as a peace officer only during the actual discharge of official duties.

(d) A reserve deputy on active duty at the call of the sheriff and actively engaged in assigned duties has the same rights, privileges, and duties as any other peace officer of the state.

Thus, when a reserve deputy is (1) on active duty at the call of the sheriff and (2) actively engaged in assigned duties, the reserve deputy has the same rights, privileges, and duties as any other peace officer. The inclusion of the phrase "any other peace officer" requires an interpretation of Section 85.004(d) that a reserve deputy on active duty at the call of the sheriff and actively engaged in assigned duties is a "peace officer." Thus, Reserve Deputy Barr was a "peace officer" if, at the time of the incident, he was (1) on active duty at the call of the sheriff and (2) actively engaged in assigned duties. Agent Amos testified that county sheriffs can authorize their reserve deputies to be active peace officers 24 hours a day, 7 days a week. He also said that sheriffs have the authority to set a policy that requires their reserve deputies to investigate when they see something that they believe is suspicious. Sheriff Smith has such policies. His reserve deputies are on active duty 24 hours a day, 7 days a week, and his reserve deputies are assigned to intervene when they see something that is suspicious. At the time of the incident, Reserve Deputy Barr was investigating something that he thought was suspicious: a gunshot followed by the pickup stopping on the side of the road. He was discharging his official duty of intervening when he saw something that was suspicious. The above evidence supports the conclusion that, at the time of the incident, Reserve Deputy Barr (1) was on active duty under Sheriff Smith's policy that reserve deputies are on active duty 24 hours a day, 7 days a week; and (2) was actively engaged in his assigned duty of investigating suspicious circumstances. Therefore, the evidence was legally sufficient to support a finding that Reserve Deputy Barr was a "peace officer" under Section 85.004 of the Local Government Code. Appellant also argues that the evidence was legally insufficient to support the finding that he knew Reserve Deputy Barr was a peace officer. Reserve Deputy Barr told appellant: "I'm with the sheriff's office. I need to see some identification." Appellant did not ask to see Reserve Deputy Barr's badge or identification. The passenger said: "Yeah, you know me." When appellant drove off, Reserve Deputy Barr yelled: "Stop, Police!" and "Hold it!" Reserve Deputy Barr got behind appellant, turned on the emergency flashers in his pickup, and continued to follow appellant for about 50 miles. Deputy Bastardo and Sergeant Mercer had their emergency lights and sirens on during the chase, but appellant did not stop. Appellant drove around Sergeant Mercer's vehicle as Sergeant Mercer attempted to block the road. Game Warden Polnick also had his emergency lights on. [110] Viewing the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found that appellant knew that Reserve Deputy Barr was a peace officer. Appellant's points of error are overruled. This Court's Ruling The judgment of the trial court is affirmed.