Opinion
NUMBER 13-17-00545-CR
08-08-2019
RALPH SEAN JOHNSON, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 36th District Court of San Patricio County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Perkes
Memorandum Opinion by Justice Perkes
A jury convicted appellant Ralph Sean Johnson of evading arrest or detention with a vehicle, a third-degree felony, and after finding the enhancement paragraph true in punishment, assessed a sentence of twenty-five years' imprisonment in the Texas Department of Criminal Justice, Institutional Division. See TEX. PENAL CODE ANN. §§ 12.42(d), 38.04(b)(2)(A). By one issue, Johnson argues the evidence was legally insufficient to support a conviction. We affirm.
Johnson was indicted as a habitual felony offender. Johnson did not contest his habitual felony offender status, stipulating to two prior felony convictions, and thus enhancing the punishment range from two to ten years to twenty-five to ninety-nine years' imprisonment. See TEX. PENAL CODE ANN. § 12.42(d).
Johnson also complains that the evidence is factually insufficient to support his conviction. However, criminal verdicts can no longer be challenged on grounds of "factual" insufficiency of the evidence. See Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 99 (1979)).
I. BACKGROUND
At approximately 7 p.m. on November 6, 2016, Sergeant Baudencio Cardenas with the San Patricio County Sheriff's Office was patrolling in a marked police vehicle on U.S. Route 181, near the San Patricio county line. At trial, Sgt. Cardenas testified that he witnessed a gray, four-door Mercury driven by Johnson speed past him going 97 miles per hour in a 65-mile-per-hour zone. Sgt. Cardenas testified he immediately activated his patrol vehicle's overhead emergency lights and positioned his vehicle behind Johnson's. After following Johnson's vehicle for approximately thirty seconds, Johnson slowed down and the vehicle situated directly in front of Johnson's pulled over to the shoulder. Sgt. Cardenas remained behind Johnson, who continued driving. Johnson then drove into the shoulder lane, slowing down once more before speeding up and proceeding to drift in and out of the shoulder lane. Johnson came to a stop several seconds later.
The traffic stop was recorded by a camera mounted on the dashboard of Sgt. Cardenas's patrol vehicle. During the State's direct examination of Sgt. Cardenas, his recorded encounter with Johnson was published to the jury.
Sgt. Cardenas approached Johnson's vehicle on the passenger side and notified Johnson that he had been pulled over for speeding. Johnson denied driving over the speed limit and told Sgt. Cardenas that he had been driving in neutral to save gas. When asked why he did not stop his vehicle sooner, Johnson replied that he was "just trying to get [his] stuff together." Sgt. Cardenas opined that Johnson's response and actions were indicative of an individual who was intentionally evading initial detention to conceal illicit activity. He explained that "when a vehicle doesn't stop immediately[,] and they continue on slowly, they're trying to either conceal items or they're trying to buy some time [to get rid of them]."
Sgt. Cardenas then asked Johnson for his driver's license and registration, which Johnson provided. Sgt. Cardenas testified that during this exchange, he observed Johnson attempting to mask a "plastic zip lock baggy" in his pocket. At that point, Sgt. Cardenas walked around the vehicle to the driver's side window and asked Johnson to put the vehicle in park and step out. Instead of complying with Sgt. Cardenas's requests, Johnson started "moving [his hands] back into his pocket." Sgt. Cardenas testified he then told Johnson to put his hands down, and Johnson reached for the gear shift. Sgt. Cardenas testified, "I asked him not to do it. I said don't move . . . ." With Sgt. Cardenas inches away from Johnson's vehicle, Johnson put his vehicle in drive and sped southbound on U.S. Route 181 towards Corpus Christi.
Sgt. Cardenas ran back to his patrol unit and proceeded to chase Johnson, driving "over 100 miles an hour" toward the Harbor Bridge and into the Corpus Christi downtown area, where he ultimately lost sight of Johnson. Sgt. Cardenas still had Johnson's license and registration in his possession. Sgt. Cardenas was the sole witness for the State's case-in-chief.
At trial, Johnson also testified. Johnson denied speeding or initially seeing the officer. Johnson, however, did not dispute that the officer had his vehicle's overhead lights and siren activated. Johnson stated he had been driving "with the flow of traffic" and attributed any delay in pulling over to his attempts to find a safe place to stop. Johnson testified he eventually stopped his vehicle in a "semi-safe" area where "there was still traffic and it was still on a very, very narrow causeway." According to Johnson, he also did not intend to flee from Sgt. Cardenas after making contact; he drove away because he ultimately did not "feel safe" during the encounter.
[Defense counsel:] Was it your intention to flee from the officer?
[Johnson:] No, ma'am, it was my intention to find a safe place to be as my right.
On cross-examination, Johnson conceded that the officer never explicitly threatened him. Johnson maintained the threats were implied when the officer placed his hand on his uniform weapon, located on his hip holster. Johnson was unable to point to where this implied threat occurred in the dashcam recording.
The jury found Johnson guilty of the third-degree felony of evading arrest or detention with a vehicle. Johnson pleaded true to two prior felony convictions, and punishment was assessed at twenty-five years' confinement—the minimum allotted for under the enhancement statute. This appeal followed.
II. LEGAL INSUFFICIENCY
By one issue, Johnson argues the evidence was legally insufficient to support a conviction of evading arrest because there was insufficient evidence that: (1) the arresting officer was "lawfully" attempting to arrest or detain Johnson; and (2) that Johnson was intentionally fleeing the officer.
A. Standard of Review and Applicable Law
When reviewing claims of legal insufficiency "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." Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). "[A] reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt." Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014) (quoting Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011)). The fact finders are the exclusive judges of: the facts, the credibility of the witnesses, and the weight to be given to the testimony; they are presumed to have resolved any conflicts in the evidence in favor of the verdict. See Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008).
Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc)). A hypothetically correct charge here would instruct the jury to find a defendant accused of evading arrest or detention with a vehicle guilty if it is shown that the person: (1) intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him, and (2) that person uses a vehicle while in flight. See TEX. PENAL CODE ANN. § 38.04(b)(2)(A); Ex parte Carner, 364 S.W.3d 896, 899 n. 5 (Tex. Crim. App. 2012).
For a defendant to be found guilty of evading arrest or detention, "it is essential that a defendant know the peace officer is attempting to arrest [or detain] him." Jackson v. State, 718 S.W.2d 724, 727 n.4 (Tex. Crim. App. 1986); see TEX. PENAL CODE ANN. § 6.03 ("A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result."); see also Redwine v. State, 305 S.W.3d 360, 362 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (holding that a person commits the offense of evading arrest or detention only if the person is aware of the officer's attempt to arrest or detain him "but nevertheless refuses to yield to a police show of authority").
A party's knowledge is a fact question for the jury and may be proven through circumstantial evidence. See Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014) (The jury may "use common sense and apply common knowledge, observation, and experience gained in ordinary affairs when drawing inferences from the evidence."); see, e.g., Horne v. State, 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no pet.) ("'[F]leeing' is anything less than prompt compliance with an officer's direction to stop."). An officer displaying authority by the use of emergency lights and siren is generally proof that an officer is attempting to arrest or detain a person. See Duvall v. State, 367 S.W.3d 509, 513 (Tex. App.—Texarkana 2012, pet. ref'd); see also Bettes v. State, No. 13-18-00459-CR, 2019 WL 2622343, at *3 (Tex. App.—Corpus Christi-Edinburg June 27, 2019, no pet. h.) (mem. op., not designated for publication) (holding that where an officer's vehicle lights and siren were both activated, the pursuit lasted several minutes on the highway, and "at no point during the pursuit did [the Defendant] turn or distance himself so far from the patrol car that his ability to become aware of the patrol car would have been interrupted," a rational juror "applying common knowledge and experience," could have found the defendant had knowledge the officer was attempting to perform a traffic stop).
B. Detention Analysis
Johnson's argument focuses first on whether there was evidence that "the officer was attempting lawfully to arrest or detain" him.
Where a violation of a traffic law has occurred, a law enforcement officer may detain that person to address the violation. See Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609, 1614 (2015) ("A seizure for a traffic violation justifies a police investigation of that violation."); Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018); see also Jenkins v. State, 454 S.W.3d 712, 714 (Tex. App.—Corpus Christi-Edinburg 2015, no pet.) (providing that a stop that ultimately resulted in an arrest for evading arrest or detention with a vehicle was lawful when officer pulled over the defendant for speeding). We also note that although Johnson argues the contrary on appeal, it is irrelevant to our detention analysis whether Sgt. Cardenas intended to issue Johnson a speeding ticket or whether Sgt. Cardenas effectuated the stop because he also suspected Johnson was in possession of drugs. See Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005) ("[Reasonable suspicion] is an objective standard that disregards any subjective intent of the officer making the stop and looks solely to whether an objective basis for the stop exists.").
Sgt. Cardenas testified he witnessed Johnson commit a traffic infraction. Sgt. Cardenas testified, and his statements were corroborated by the dashcam recording, that he notified Johnson upon first contact that he was pulled over for driving 97 miles per hour where the posted speed limit was 65 miles per hour. On cross-examination, Sgt. Cardenas further stated he used his patrol unit's mounted radar, which he had calibrated and tested earlier that evening, to ascertain Johnson's speed. Thus, Sgt. Cardenas lawfully detained Johnson when he stopped Johnson to investigate a traffic violation. See Rodriguez, 135 S. Ct. at 1614; Lerma, 543 S.W.3d at 190; Jenkins, 454 S.W.3d at 714.
Although Sgt. Cardenas's testimony as to Johnson's speed contrasted Johnson's assertions that he was not speeding, the jury determines the credibility of the witnesses and chooses which witness's recitation of the facts it believes. See Bartlett v. State, 270 S.W.3d at 150; see also Madden v. State, 242 S.W.3d 504, 509 n.7 (Tex. Crim. App. 2007) ("Even police officers may be mistaken about an historical fact such as 'speeding,' as long as that mistake was not unreasonable."). Accordingly, viewing the evidence under the appropriate standards and applicable law, the evidence was sufficient to prove Johnson was lawfully detained. Lerma, 543 S.W.3d at 190; Jenkins, 454 S.W.3d at 714.
C. Fleeing Analysis
Johnson additionally argues that the State was unable to prove he intended to evade because he denied his intention was to flee.
Here it is undisputed that Sgt. Cardenas turned on his emergency lights and siren. See Duvall, 367 S.W.3d at 513. It is also undisputed that Johnson eventually saw Sgt. Cardenas. Jackson, 718 S.W.2d at 726; Redwine, 305 S.W.3d at 362. Johnson acknowledged he knew Sgt. Cardenas was attempting to pull him over when he told Sgt. Cardenas he delayed stopping because he was trying to "get [his] stuff together." At trial, Johnson provided yet another justification for his delay: he declined to yield to Sgt. Cardenas until he found a "safe place" to do so. Moreover, it is undisputed that Johnson, having already been pulled over for speeding, put his vehicle in drive and sped away at a very high rate of speed during the course of the detention.
We note that Johnson's actions did not encompass two separate crimes of evading detention, but instead constitute one continuous criminal act of evading. See Hobbs v. State, 175 S.W.3d 777, 778-81 (Tex. Crim. App. 2005) (providing that evading arrest can be continuous crime); see also Lara v. State, No. 13-04-282-CR, 2007 WL 431241, at *3 (Tex. App.—Corpus Christi Feb. 8, 2007, no pet.) (mem. op., not designated for publication) ("[T]he state is precluded from seeking multiple convictions of evading arrest when the criminal act is one continuous course of conduct.").
Johnson's reasoning, although providing a jury with an explanation for his actions, does not negate or supersede an intent to evade police authority, which requires only that an actor (1) acknowledge an officer is attempting to lawfully detain him, and (2) declines to yield despite that knowledge. See Riggs v. State, 482 S.W.3d 270, 275 (Tex. App.—Waco 2015, pet. ref'd) ("The act of fleeing becomes criminal only because of the actor's knowledge that a peace officer is attempting lawfully to arrest or detain the actor."); Redwine, 305 S.W.3d at 362 (a person commits the offense of evading arrest or 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"); Mayfield v. State, 219 S.W.3d 538, 540-41 (Tex. App.—Texarkana 2007, no pet.) (sufficient evidence supported jury's verdict when officers followed defendant in marked police car with emergency lights flashing and siren sounding for an extended period of time, noting that, "fleeing slowly is still fleeing"); cf. Griego v. State, 345 S.W.3d 742, 751 (Tex. App.—Amarillo 2011, no pet.) (where the defendant testified he could not see the officers and the officers testified that they were uncertain whether the defendant could see them in pursuit, there was insufficient evidence to prove the defendant intentionally fled from the officers). As a result, the evidence provided was sufficient to prove Johnson intentionally fled.
Considering the cumulative force of all of the evidence, viewed in the light most favorable to the verdict, drawing reasonable inferences based on that evidence, presuming the factfinder resolved any conflicting inferences in favor of the prosecution, and deferring to that resolution, we conclude that a rational fact finder could have found each element of evading arrest or detention with a vehicle was proven beyond a reasonable doubt. See TEX. PENAL CODE § 38.04(b)(2)(A); see also Whatley, 445 S.W.3d at 166; Clayton, 235 S.W.3d at 778; Vernon, 841 S.W.2d at 409. We hold the evidence was legally sufficient to support Johnson's conviction. Johnson's sole issue is overruled.
III. CONCLUSION
The trial court's judgment is affirmed.
GREGORY T. PERKES
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 8th day of August, 2019.