Opinion
No. 07-15-00397-CR
09-06-2017
SHANE EDWARD PATE, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 424th District Court Burnet County, Texas
Trial Court No. 44155 , Honorable Evan C. Stubbs, Presiding
MEMORANDUM OPINION
Before CAMPBELL and PIRTLE and PARKER, JJ.
Appellant Shane Edward Pate appeals his conviction by jury of the offense of evading arrest or detention with a vehicle and the resulting sentence of twelve years of imprisonment. Appellant challenges his conviction through two issues. We will affirm.
TEX. PENAL CODE ANN. § 38.04(b)(2)(West 2016).
Background
The jury heard the testimony of Burnet County deputy sheriff Derrick Klotz. While on patrol in his patrol vehicle, he received a dispatch at about 7:40 a.m. concerning a reckless driver. He called the complainant and received from him a description of a black Chevrolet Tahoe. Klotz shortly met a black Tahoe his radar said was going 77 miles per hour on the 60-mph farm to market road 1980. He did not immediately notice that the Tahoe matched the description given him but decided to stop the driver for speeding.
Klotz turned around, activated his lights and siren, and began pursuit. He did not catch the Tahoe. When he decided the Tahoe was no longer on the pavement in front of him, he ended his pursuit and turned off his emergency equipment, and returned to a gravel driveway off the pavement where he had noted dust in the air. He drove up the driveway toward a mobile home and outbuildings. As he did so, he saw the black Tahoe back out from behind a shed. He made eye contact with the driver, later identified as appellant. Appellant pulled forward, again behind the shed. Klotz got out of his vehicle and ran around the side of the mobile home. Appellant ran another direction around the structure, but shortly stopped and put his hands up. Klotz arrested appellant. The State introduced evidence that appellant had an outstanding warrant for his arrest. Appellant was aware of the warrant.
There was conflicting evidence regarding the line of sight between Klotz and the Tahoe after the pursuit began. Klotz testified he turned his lights and siren on after he completed his three-point turn on FM 1980. On the recorded video, the Tahoe is out of sight around a curve by the time Klotz completed his turnaround. And the Tahoe is never visible in the video during the pursuit. Klotz, however, testified he watched the Tahoe out his window as he made his turnaround, and he "could see the vehicle was increasing its speed as it made the corner." "In fact," he continued, "it actually kind of got two wheels off the side of the road a little bit." He later agreed that he was able to "see [the Tahoe] visually with [his] eyes," as he proceeded after the vehicle. He said he lost sight of it after he saw its brake lights near the point in the road at which FM 1980 became county road 123.
At the close of the State's case appellant asked for a directed verdict, arguing "you cannot even see a Tahoe" in the video, demonstrating that appellant could have had no knowledge that "anybody was pursuing him." After argument, the court denied the motion, stating that Klotz's testimony regarding his view of the vehicle provided some evidence.
It developed that the mobile home was appellant's residence, and that of Joanne Holbrook and their two children. Klotz and another deputy sheriff who arrived after appellant's arrest both testified that the Tahoe contained fresh food and drinks from McDonald's, and they gave the food to Holbrook. They testified the nearest McDonald's was in Marble Falls, and that the most direct route from the restaurant was the route appellant had driven.
Appellant and Holbrook testified. They said there was no McDonald's food in the Tahoe. Holbrook told the jury she was preparing that morning to take appellant to work. She said appellant went behind the shed to the Tahoe to retrieve a car seat for one of their children. When she came out of the house, she saw appellant standing with his hands up, with an officer pointing a gun at him. She said appellant was not sweating or out of breath. Holbrook said appellant did not go to McDonald's that morning and she was not given any food from the Tahoe.
Appellant also told the jury Holbrook was about to take him to work and he went outside to move the car seats from the Tahoe to Holbrook's car. He said the Tahoe's water pump was failing and he had parked the vehicle next to the shed because his tools were there. When he returned to the Tahoe to get the second seat, he saw Klotz through the shed pointing a gun at him. He testified the deputy immediately ran in the opposite direction. Appellant told the jury he walked between the mobile home and the garage toward the police vehicle. Appellant denied running from Klotz and testified he did not drive the Tahoe that day.
The court's charge permitted the jury to convict appellant of evading arrest or detention with a vehicle, or to convict him of evading based on his actions on foot at his residence after Klotz's arrival. The jury found him guilty of evading arrest or detention with a vehicle and sentenced him as noted. This appeal followed.
The indictment included a count alleging appellant evaded arrest or detention having a previous conviction for that offense. See TEX. PENAL CODE ANN. § 38.04(b)(1). The charge instructed the jury that if it found appellant guilty of evading with a vehicle, it did not need to proceed to a determination whether appellant was guilty of the other offense alleged. During trial, the State presented evidence of appellant's prior conviction for evading arrest or detention with a vehicle.
Analysis
Sufficiency of the Evidence
In his first issue, appellant challenges the sufficiency of the evidence supporting a finding that he knew Klotz was attempting to detain him on FM 1980. Appellant points to particular facts he believes render the evidence insufficient to support his conviction. The State argues that the facts, taken together, constitute sufficient evidence to support the jury's verdict.
When reviewing sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict and determine, based on that evidence and any reasonable inferences therefrom, whether any rational factfinder could have found the elements of the offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). We defer to the responsibility of the factfinder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). This standard applies equally to both circumstantial and direct evidence. Id. Each fact need not point directly and independently to the appellant's guilt, as long as the cumulative effect of all incriminating facts is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
A person commits third degree felony evading arrest or detention if, while using a vehicle, "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(b); Ex parte Carner, 364 S.W.3d 896, 899 n.5 (Tex. Crim. App. 2012). A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. TEX. PENAL CODE ANN. § 6.03(b).
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 him." Jackson v. State, 718 S.W.2d 724, 726 (Tex. Crim. App. 1986). See Redwine v. State, 305 S.W.3d 360, 362 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (noting that 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"). We may infer an actor's mental state from his actions and statements during and after the incident. Griego v. State, 345 S.W.3d 742, 753 (Tex. App.—Amarillo 2011, no pet.); Muhammed v. State, 331 S.W.3d 187, 193 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) (intent may be inferred from conduct). "'[F]leeing' is anything less than prompt compliance with an officer's direction to stop." Horne v. State, 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no pet.). And, "speed, distance, and duration of pursuit may be factors in considering whether a defendant intentionally fled, [but] no particular speed, distance, or duration is required to show that requisite intent if other evidence establishes such intent." Griego, 345 S.W.3d at 751 (citation omitted).
The parties compare the evidence in this case with that discussed in this Court's opinion in Griego. 345 S.W.3d at 751-54. In that case, we listed five aspects of the evidence that led us to conclude it was insufficient to allow the jury to conclude beyond a reasonable doubt that Mr. Griego knew, before they approached him after he pulled into a residential driveway, that the pursuing officers were attempting to arrest or detain him: the lack of affirmative evidence he should or could have seen the officers turn around to pursue him; the route of the "pursuit" that would make it physically unlikely or impossible that he could have seen them turn around; the distance over which the officers followed him and the short time that elapsed; the unremarkable speed and manner of Griego's driving; and his conduct and statements on exiting the car. Id. at 754. We noted in our discussion the important fact that the officers already had their lights and sirens activated when they met Griego, traveling in the opposite direction. Id. at 752.
This record presents evidence unlike that in Griego, where the officers and Griego met on a bend in the road. The officers traveled through the bend and when they turned around, Griego had traveled "well past the bend" in the other direction. Id. at 752. The record, as noted, led us to conclude it was "physically unlikely or impossible" that he could have seen the officers turn around to begin pursuing him. Id. at 754. Here, nothing prevented appellant from seeing Klotz's immediate turnaround after he met appellant on a straight stretch of FM 1980. Klotz did not merely pull off the pavement to the right after he met appellant, but immediately turned left across the pavement and completed his three-point turn.
In Griego, the pursuing officers testified they were not certain whether Griego saw them turn around and not certain whether he saw them heading back in his direction of travel. Id. at 747. And, we said, the record contained no other evidence to support a conclusion Griego knew the officers were attempting to arrest or detain him. Id. at 751. In this case, we agree with the observation of the trial court that Klotz's testimony provided evidence appellant had opportunity to know Klotz was pursuing him. We find that the jury rationally could have viewed Klotz's testimony that appellant sped up even as Klotz was turning around as an indication he was aware Klotz intended to stop him.
Klotz's impression of the events before him at the time he encountered appellant supports the jury's verdict. Klotz testified that as he activated his lights and siren he "notified dispatch that I had a vehicle matching the description of the one that had been called in and that the vehicle was running from me . . . ." The recording confirms Klotz's statement to the dispatcher.
The evidence appellant reached an extreme speed after Klotz turned around also supports the jury's verdict. At a point within the first thirty seconds after the activation of his lights and siren, Klotz is heard on the recording stating to the dispatcher that the Tahoe was "going probably 100 or something already." Klotz said he reached a top speed of 120 mph during the pursuit, but did not overtake the Tahoe. Asked if he would have expected to overtake it if appellant had maintained the speed at which he was traveling when they first met, Klotz answered affirmatively. From the initiation of Klotz's turnaround to his abandonment of the pursuit, some three minutes elapsed. See Griego, 345 S.W.3d at 751 (speed, distance and duration of pursuit may be factors in considering whether defendant intentionally fled).
In addition, as evidence of appellant's knowledge of Klotz's pursuit and intention to detain him, significant to us is appellant's conduct at his residence. It is undisputed the black Tahoe was behind the shed when Klotz approached. The second deputy testified to her observations when she arrived at the residence just before 8:00 that morning. She noticed the Tahoe by the shed appeared to have been operated recently because, "[w]hen you turn a vehicle off after it's been running hot for a while it has that crackling, popping sound in the motor and that's what I heard . . . when I walked up to the vehicle." She also said she could see the tracks the Tahoe made. "[T]here was dew in the grass and I could see tracks that went under the clothesline back behind the shed."
As against appellant's assertion the Tahoe had not been driven that morning, the jury was free to accept the State's evidence that appellant was the driver of the Tahoe on the road that morning, and that he had pulled it behind the shed to hide it. Klotz identified appellant as the man he saw in the Tahoe's driver's seat when he approached the mobile home. In considering appellant's awareness that he was being pursued by an officer attempting lawfully to arrest or detain him, the jury also was free to draw reasonable inferences from appellant's effort to conceal the vehicle. Griego, 345 S.W.3d at 753 (inference of actor's mental state from actions and statements during and after the incident). In addition, the jury could have considered appellant's initial 77-mph speeding and his outstanding warrant as giving him motivation to avoid detention.
As noted, the court's charge permitted a conviction of evading arrest or detention based on Klotz's testimony that appellant left the Tahoe and ran from Klotz's approach at appellant's residence. A rational juror could see Klotz's description of appellant's actions as a further indication of his intention that morning to avoid arrest or detention. That appellant would take such an evasive action can also be seen as an indication he was aware of Klotz's attempt to stop him after their initial encounter a few minutes before.
Klotz's testimony of appellant's reaction as he turned his patrol vehicle around to begin pursuit, appellant's motivation to avoid detention, his driving at extreme speeds during Klotz's pursuit, his effort to conceal the vehicle at his residence and his further evasive conduct there all distinguish this case from Griego. 345 S.W.3d at 754. And, Klotz's clear and immediate activation of his lights and siren also distinguish this case from Redwine, 305 S.W.3d at 364-68, and from Duvall v. State, 367 S.W.3d 509 (Tex. App.—Texarkana 2012, pet. ref'd), also cited by appellant. In Redwine, the evidence of such action by the pursuing deputies was so equivocal and uncertain as to be insufficient to prove the defendant's knowledge of their attempt to arrest or detain him. 305 S.W.3d at 368. And in Duvall, the evidence similarly failed to show activation of lights or siren, or any other display of authority by the officer to indicate an attempt to detain the defendant. 367 S.W.3d at 513.
Viewing all the evidence in the light most favorable to the jury's verdict, and giving effect to reasonable inferences, we find the jury acted rationally by determining beyond a reasonable doubt that appellant knew Klotz was a peace officer attempting lawfully to arrest or detain him. We overrule appellant's first issue. Ineffective Assistance of Counsel
In appellant's second issue, he argues his trial attorney was ineffective. To prevail on his ineffective assistance claims under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), appellant must satisfy both prongs of its test. First, he must prove that his counsel's conduct was objectively deficient. Ex parte Nailor, 149 S.W.3d 125 (Tex. Crim. App. 2004). To assess such a contention, we determine whether counsel was acting as "a reasonably competent attorney" would under the circumstances. Strickland, 466 U.S. at 687. Appellant has the burden of proof and must overcome a "strong presumption that counsel's performance fell within the wide range of reasonable professional assistance." Id. at 689. This highly deferential review is employed to avoid "the distorting effect of hindsight." Id. Thus, applicant must show that his attorney made "errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Id. at 687.
Second, even if appellant can demonstrate his counsel's actions were objectively deficient, he must still prove that the deficient performance prejudiced his defense. Id. He must demonstrate "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. The Supreme Court has defined this "reasonable probability" as a "probability sufficient to undermine confidence in the outcome." Id; Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App. 2001). Absent some effect of the challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated. United States v. Cronic, 466 U.S. 648, 656, 104 S. Ct. 2039, 80 L. Ed. 2d 657.
An accused is entitled to reasonably effective assistance of counsel. King v. State, 649 S.W.2d 42, 44 (Tex. Crim. App. 1983). But reasonably effective assistance of counsel does not mean error-free representation. Ex parte Felton, 815 S.W.2d 733, 735 (Tex. Crim. App. 1991). Isolated instances in the record reflecting errors of omission or commission do not render counsel's performance ineffective. Wert v. State, 383 S.W.3d 747, 753 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Therefore, when evaluating a claim of ineffective assistance, the appellate court looks to the totality of the representation and the particular circumstances of the case without the benefit of hindsight. Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011); Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).
As noted, there is a strong presumption that trial counsel's actions and decisions were reasonably professional and were motivated by sound trial strategy. Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim. App. 2005). Trial counsel should ordinarily be afforded an opportunity to explain her actions before being denounced as ineffective. Menefield v. State, 363 S.W.3d 591, 593 (Tex. Crim. App. 2012). Absent specific explanations for counsel's decisions, a record on direct appeal will rarely contain sufficient information to evaluate an ineffective assistance claim. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
Appellant argues his counsel was ineffective because she failed to object to the prosecutor's references to his prior conviction for evading arrest in a way that suggested he had a propensity to evade police, failed to object to the State's eliciting prejudicial details about his other prior convictions during cross-examination, and failed to object to the prosecutor's jury argument. Further, acknowledging that evidence of his prior conviction for evading arrest was necessary for the State to prove the offense alleged in the second count of the indictment, see Carner, 364 S.W.3d at 900, appellant also criticizes counsel for failing to offer to stipulate to the prior evading conviction. Appellant further argues counsel was ineffective for asking him, during direct examination, about a prior offense that, he contends, would have been inadmissible under Rule of Evidence 609. TEX. R. EVID. 609. In addition, his brief criticizes counsel for failing to request a limiting instruction. Appellant's complaints regarding his trial counsel's performance thus concern only the treatment of the evidence of his prior convictions, a rather narrow scope of complaint.
Addressing the prejudice prong of the Strickland test, appellant contends his credibility before the jury was critical to his defense, and his credibility was destroyed by the prosecution's use of his prior convictions before the jury.
As we have noted, appellant's position at trial was that the black Tahoe shown in the video recording was not his Tahoe, and that he had not driven his Tahoe at all that day. Assertion of that position required him to accuse both deputies of being untruthful in their testimony with regard to the presence of the McDonald's food in the Tahoe. In argument to the jury, his counsel described the McDonald's food as "imaginary." But it is clear the jury rejected appellant's version of the events and accepted the deputies' testimony. Even assuming appellant had established actions that could not have been excused as sound trial strategy, a decision we do not reach, our review of the record convinces us appellant cannot satisfy the prejudice prong of the Strickland test. Strickland, 466 U.S. at 694. In fact, we are of the opinion that, far from showing a reasonable probability the jury's verdict would have been different but for any asserted professional error with regard to appellant's prior convictions, the great likelihood is that the verdict would have been the same had the jury not been made aware at all of his prior convictions. Appellant has not shown that but for counsel's alleged errors, the outcome of his trial would have been different. Id.
We overrule appellant's second issue.
Conclusion
Having overruled both appellant's issues, we affirm the judgment of the trial court.
James T. Campbell
Justice Do not publish.