Opinion
No. 05-04-01687-CR
Opinion issued November 10, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-56937-NV. Affirmed.
Before Justices WHITTINGTON, FRANCIS, and LANG.
OPINION
Royal Centra Anderson appeals his conviction for evading arrest. See Tex. Pen. Code Ann. § 38.04(b)(2)(A) (Vernon 2003). After finding appellant guilty as charged, the jury assessed punishment at two years and six months' confinement. In two issues, appellant contends the evidence is factually insufficient to support his conviction and that the trial judge erred in admitting certain evidence. We affirm the trial court's judgment. In his first issue, appellant claims the evidence is factually insufficient to support his conviction. In a factual sufficiency review, we view all of the evidence in a neutral light and will set the verdict aside only if the evidence is so weak that the verdict is clearly wrong and manifestly unjust or the contrary evidence is so strong that the standard of proof beyond a reasonable doubt could not have been met. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004), cert. denied, 125 S. Ct. 1697 (2005) (citing Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex.Crim.App. 2004)). The question under this standard is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. Evidence can be factually insufficient if (i) the evidence is too weak to support the finding of guilt beyond a reasonable doubt or (ii) contrary evidence exists that is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Zuniga, 144 S.W.3d at 484-85. In examining a factual sufficiency challenge, we defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003). "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." Tex. Pen. Code Ann. § 38.04(a) (Vernon 2003). The purpose of the prohibition against evading detention "is to deter flight from [detention] by the threat of an additional penalty, thus discouraging forceful conflicts between the police and suspects." Johnson v. State, 864 S.W.2d 708, 722-23 (Tex.App.-Dallas 1993) (citing Alejos v. State, 555 S.W.2d 444, 449 (Tex.Crim.App. 1977) (op. on reh'g)), aff'd, 912 S.W.2d 227 (1995). Although appellant claims the evidence is factually insufficient to support his conviction, we disagree. Officer Bill Rios testified he saw appellant driving in downtown Dallas around midnight on the evening of October 27, 2003. Appellant's car had a video screen within view of the driver, a violation of state law. Officer Rios, who was in uniform and drove a marked police car, attempted to stop appellant by activating the overhead lights of his police car. Appellant "pulled over immediately." Officer Rios pulled up to the driver side of appellant's car, left his overhead lights on, and exited the car. Officer Brower, who was also in uniform and driving a separate marked police car, pulled up behind the two cars shortly after appellant stopped. Officer Brower activated his lights before exiting his car. Officer Rios approached the driver's side of the car while Officer Brower approached the passenger's side. Appellant then put his car in gear and drove off. The officers got in their cars and, after activating their sirens, chased appellant several blocks until he again pulled over. Officer Brower testified to similar facts regarding the initial stop. He also testified that, during the chase, he saw the passenger in appellant's car open the passenger side car door and drop something on the street. Officer Brower did not return immediately to the site where he believed the dropped item to be. When he did return to the site, a street sweeper had cleaned the street, and he found nothing. Appellant did not testify nor did he present any evidence or witnesses. The above evidence shows a uniformed police officer in a marked car attempted to pull appellant over by activating his overhead lights. When appellant stopped, a second marked police car driven by a uniformed police officer pulled up, and the second officer activated his overhead lights. Appellant then drove off. Giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude, after reviewing the evidence in this case, that the State's evidence taken alone is too weak to support the finding or that the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence. See Zuniga, 144 S.W.3d at 484-85. We therefore conclude the evidence is factually sufficient to support appellant's conviction for evading detention. We overrule appellant's first issue. In his second issue, appellant contends the trial judge erred in admitting certain irrelevant evidence. Appellant claims the irrelevant evidence was not harmless and we must therefore reverse this case for a new trial. We disagree. During trial, Officer Brower testified he saw Officer Rios conducting a traffic stop. Officer Brower stopped his car and turned on his overhead lights to join Officer Rios. When appellant suddenly drove off, the two officers got in their cars and pursued appellant. From his car, Officer Brower could see the passenger side of appellant's car. He testified he saw the passenger open the door and drop an item on the pavement. Officer Brower testified, without objection, "I figured he was getting rid of something he didn't want us to find," and that the item was "nothing that appeared to be a weapon . . . [i]t was just some object, small object [that] was dropped." After testifying that, based on his training and experience, the same thing had happened "many times," Officer Brower was asked what "kind of things" had been dropped from other fleeing vehicles. Appellant objected "to the relevance and speculation." The trial judge overruled the objections, and Officer Brower testified,
Typically it's some type of drug or paraphernalia. It could be a blunt, it could [be] cocaine, crack, weed. I mean, anything. It could be a pipe that was used to smoke. It could be anything. But most of the time it's something they don't want found in the car or be touching [sic].Officer Brower then stated he had "no clue what was thrown" from appellant's car and that he just knew "it was dropped on the side of the road." After carefully reviewing the record, we need not conclude whether the admission of Officer Brower's testimony about what types of items had been thrown or dropped from other cars in other instances was error, because in any event, its admission was harmless. The erroneous admission of evidence is nonconstitutional error. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). Any nonconstitutional error that "does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b). A substantial right is affected when "the error had a substantial and injurious effect or influence in determining the jury's verdict." King, 953 S.W.2d at 271 (citing Kotteakos v. United States, 328 U.S. 750, 776 (1946)). A criminal conviction should not be overturned for nonconstitutional error if, after examining the record as a whole, we have fair assurance that the error did not influence the jury or had but a slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002); Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). After reviewing the entire record, we cannot conclude the error, if any, influenced the jury and harmed appellant. Appellant argues the objected-to testimony suggested to jurors that drugs or drug paraphernalia had been thrown from appellant's car. However, Officer Brower testified he "had no clue" what had been thrown from the car. He testified without objection that he figured the passenger "was getting rid of something he didn't want [the officers] to find." When he returned to where he thought the item was dropped, the street had just been swept by a street sweeper truck. Thus, the officer did not know nor did he attempt to speculate as to what appellant's passenger had thrown from the car. Furthermore, during closing argument, the State did not use the testimony about "drugs" or "drug paraphernalia" being thrown from cars in other instances. Appellant, however, used this testimony in an attempt to discredit Officer Brower's testimony. Finally, we note that the range of punishment for evading arrest or detention is two- to ten-years' confinement. Defense counsel argued for the minimum punishment, and the jury assessed punishment at two years and six months. Considering the entire record, the circumstances of this case, and the punishment assessed, we conclude the error, if any, in admitting the objected-to testimony was harmless in that it "did not influence the jury or had but a slight effect." See Motilla, 78 S.W.3d at 355. We overrule appellant's second issue. We affirm the trial court's judgment.