Opinion
No. 10-07-00102-CR
Opinion delivered and filed August 6, 2008. DO NOT PUBLISH.
Appealed from the 66th District Court, Hill County, Texas, Trial Court No. 34,611. Reversed and rendered.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice Gray dissenting with a note)
("Chief Justice Gray dissents. A separate opinion will not issue. He notes, however, that Diggs submitted to Officer Couldron's authority to the extent that Couldron thought it was safe to apply the leg restraints. This is what distinguishes this case from Medford and Warner. This must be `some evidence' of an arrest. I would not take this case from the jury. I respectfully dissent.")
MEMORANDUM OPINION
A jury convicted Henry Marsh Diggs of escape from custody and sentenced him to seventeen years in prison. On appeal, Diggs contends that: (1) the evidence is legally insufficient to support his conviction; (2) the trial court gave defense counsel an unreasonable amount of time to review the jury charge and submit objections; (3) the trial court instructed the jury on the wrong definition of "custody"; (4) the trial court authorized the jury to convict him on a theory not supported by the evidence; and (5) the trial court allowed a witness to testify to legal conclusions. We reverse and render.
FACTUAL BACKGROUND
Pam Wardlow, substance abuse caseload assistant for the Hill County Community Supervision and Corrections Department, discovered an active warrant for Diggs' arrest. Wardlow contacted the sheriff's office when Diggs reported for his next urinalysis. Deputy Geoffrey Couldron arrived to arrest Diggs, and Wardlow led him to a room to wait for Diggs. When Diggs entered the room, Wardlow remained in the doorway with her left arm on the door facing. Couldron informed Diggs that he had a warrant for his arrest and that he was under arrest and being taken into custody. In response to Diggs's inquiry, Couldron informed him that the warrant was for unlawful possession of a firearm by a felon. Couldron instructed Diggs to turn around and place his hands on the wall. Diggs placed his hands in his pockets and mentioned giving his money to a friend. Couldron told him that he would have to do that later. Couldron grabbed Diggs's arm and turned him to face the wall. Diggs turned back around and placed his hands in his pockets. Couldron again grabbed Diggs's arm and turned him to face the wall. Diggs began to lower his arms, but according to Couldron, "finally submitted and left his arms on the wall." When Couldron bent down to place Diggs in leg restraints, Diggs pushed away from the wall, knocking Couldron backwards, and ran towards the door. Diggs ran towards Wardlow and shoved her shoulder with his hand. Wardlow tried to push Diggs away with a soft drink mug that she had in her hand. Diggs then shoved Wardlow with both hands, causing her to fall against some file cabinets and knocking the cabinets out of place. Wardlow and Couldron were unable to apprehend Diggs. He was apprehended the next day and subsequently charged with escape. Couldron testified that when he "tell[s] somebody that they're under arrest, I put my hands on them, face them against the wall, they are in custody." He felt that Diggs was in custody at the point where he had told Diggs that he was under arrest and in custody and Diggs placed his hands on the wall. Couldron was unable to use the restraints because he first had to keep Diggs' hands on the wall, but once this was accomplished, Diggs ran. According to Couldron, Diggs's hands were on the wall for a couple of seconds, and Diggs's "submission" to Couldron's authority lasted a couple of minutes. He believed that Diggs had escaped, not evaded arrest, because, at the time Diggs ran, his movement had been restrained and he had submitted to Couldron's authority.LEGAL SUFFICIENCY
In his first point of error, Diggs contends that the evidence is legally insufficient to support his conviction.Standard of Review
Under legal sufficiency review, we determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999); see also Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Inconsistencies in the evidence are resolved in favor of the verdict. Curry, 30 S.W.3d at 406; Matson, 819 S.W.2d at 843.Analysis
A person commits the offense of escape where he "(1) escape[s] (2) from custody (3) after having been arrested for, charged with, or convicted of an offense." Medford v. State, 13 S.W.3d 769, 772 (Tex.Crim.App. 2000). "[M]ere intent [including an officer's expression of intent] to make an arrest is insufficient." Id. Neither does merely telling the "accused that he is under arrest complete that arrest." Id. "[D]etention, custody or control of the accused" is required. Id. In reliance on Medford and Warner v. State, 201 S.W.3d 197 (Tex.App.-Houston [14th] Dist. 2006), aff'd, 2008 Tex. Crim. App. Lexis 822 (Tex.Crim.App. July 2, 2008), Diggs contends that an arrest was never completed because his liberty of movement was not successfully restricted or restrained. In Medford, Officer Beau Price determined that Medford matched the description of the subject of an arrest warrant and approached Medford to conduct an investigatory detention. See Medford, 13 S.W.3d at 771. Price searched Medford's pocket and discovered a matchbox containing cocaine. Id. He told Medford that he was under arrest, instructed him to place his hands behind his back, and grabbed Medford's arm to place him in handcuffs. Id. Medford broke free of Price's grasp and fled. Id. He was later apprehended and convicted of escape. Id. The Court of Criminal Appeals determined that Medford was not under "arrest" for purposes of the escape statute because an arrest is complete when (1) "a person's liberty of movement is successfully restricted or restrained, whether this is achieved by an officer's physical force or the suspect's submission to the officer's authority"; and (2) "`a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.'" Id. at 773. On remand, the Austin Court reversed Medford's conviction because: (1) he submitted to Price's "questioning and frisk," but not an arrest; (2) "a reasonable person familiar with the distinction between an arrest and a temporary investigative detention would not have understood himself to be restrained to the degree the law associates with a formal arrest"; (3) although the "stop-and-frisk" was a detention, "a seizure short of a completed arrest will not support a conviction for escape"; (4) Price's "announcement, after he found the cocaine, that Medford was under arrest did not in itself complete the arrest"; and (5) Price was "unable to complete the arrest by successfully restricting or restraining Medford's liberty of movement before Medford fled." Medford v. State, 21 S.W.3d 668, 670 (Tex.App.-Austin 2000, no pet.). In Warner, Deputy Justin Royall responded to a domestic dispute and was informed that a "blue warrant" had been issued for Warner's arrest. See Warner, 201 S.W.3d at 198. Upon arriving at the scene, Royall encountered a group of people and asked to speak with Warner. Id. Warner accompanied Royall to the patrol car. Id. Royall placed his hands on Warner's arms, informed him that he was under arrest, grasped Warner's wrist with one hand, and reached for his handcuffs with the other hand. Id. Warner then broke free and fled. Id. He was later apprehended and convicted of escape. See id. Relying on Medford, the Fourteenth Court found the evidence legally insufficient to sustain Warner's conviction. See id. at 200. The Court of Criminal Appeals recently affirmed this holding, noting that:. . . escape can occur only after an officer has successfully restrained or restricted a suspect — that is, when the officer's grasp has amounted to an arrest. To hold otherwise would ignore the distinction the legislature has made between the offense of escape and the offenses of evading arrest (which a person commits when "he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him") and resisting arrest (which a person commits when he "intentionally prevents or obstructs a person he knows is a peace officer . . . from effecting an arrest, search, or transportation of the actor or another by using force against the peace officer or another").Warner v. State, No. PD-1644-06, 2008 Tex. Crim. App. Lexis 822, at *11-12 (Tex.Crim.App. July 2, 2008). The State argues that the totality of the circumstances establish a completed arrest via (1) brief physical force that occurred when Couldron grabbed Diggs's arm and turned him to face the wall; and (2) submission, which occurred when Diggs kept his hands on the wall. It further points to the fact that Diggs fled from a private building where he had been "hemmed in," as opposed to a public location. The Austin Court recently addressed a similar situation. In In re B. J. J., No. 03-07-00633-CV, 2008 Tex. App. Lexis 5212 (Tex.App.-Austin July 9, 2008, no pet. h.) (mem. op.), a juvenile probation officer informed Austin Independent School District Police Officer Malcolm Monroe of a warrant for B.J.J.'s arrest. See id. at *1. Monroe removed B.J.J. from his classroom and placed him in the hallway. Id. Monroe "informed [B.J.J.] that . . . his probation officer was there to get him, [and] he had a warrant for his arrest." Id. at *1-2. Monroe "placed one arm on one of [B.J.J.'s] shoulders and put him up against the wall" and reached for his handcuffs. Id. at *2. B.J.J. turned around, punched Monroe, and began running. See id. B.J.J. was adjudicated delinquent on grounds of evading arrest. See id. at *1. On appeal, he argued that the evidence was legally and factually insufficient to support his conviction because the evidence established that he committed the offense of escape. See id. at *3. The Austin Court rejected this contention:
In this case, Monroe detained B.J.J. by taking him from his classroom into the hallway and having him stand against the wall. Although B.J.J. submitted to this detention, the detention was not a completed arrest for the purposes of the escape statute, and a reasonable person in B.J.J.'s position would not have understood himself to be restrained to the degree the law associates with a formal arrest. Further, Monroe's statement that he had a warrant for B.J.J.'s arrest did not complete the arrest. Like the defendants in Medford and Warner, B.J.J. fled before Monroe could complete the arrest by restraining him to the degree required for an escape conviction.Id. at *7-8. Similarly, neither Couldon's act of grabbing Diggs's arm and turning him to face the wall nor Diggs's brief submission to Couldron's authority establishes a completed arrest. See id. at *7. That Diggs fled from a private building does not establish that his liberty of movement was successfully restricted or restrained. Id. at *1-2, 7 (juvenile fled from school hallway). As in Medford and Warner, Diggs was merely in the process of being arrested. Couldron was unable to complete the arrest by successfully restricting or restraining Diggs's liberty of movement; Diggs broke free from Couldron's grasp and fled before this could be accomplished. A reasonable person in Diggs's position would not have understood the situation to constitute a restraint on freedom of movement to such a degree that the law associates with a formal arrest. See Medford, 13 S.W.3d at 773; see also B. J. J., 2008 Tex. App. Lexis 5212, at *7. Accordingly, the evidence is legally insufficient to support Diggs's escape conviction. We sustain Diggs' first point of error and need not consider his remaining points. See TEX. R. APP. P. 47.1. We reverse the judgment and render a judgment of acquittal.