Opinion
No. 05-06-01311-CR
Opinion issued March 12, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 199th District Court, Collin County, Texas, Trial Court Cause No. 199-80640-05.
Before Justices BRIDGES, FITZGERALD, and LANG. Opinion By Justice BRIDGES.
OPINION
Mark Glen Hamrick appeals his evading arrest conviction. A jury convicted appellant and sentenced him to one year of confinement, probated for three years, and a $1500 fine. In two points of error, appellant challenges the factual sufficiency of the evidence to support his conviction and argues the trial court abused its discretion in ordering the parties to trial when appellant had not yet obtained all the discovery material he had requested. We affirm the trial court's judgment. After midnight on December 17, 2004, Dallas police officer Anthony Wayne Foster was assigned to the DWI squad and was patrolling an area in North Dallas. Foster was parked in a stationary position on Fankford Road and was operating his radar. Foster observed a 1965 Chevrolet Corvette "coming at a high rate of speed" and used his radar gun to determine the Corvette was traveling sixty-five miles per hour in an area where the speed limit was forty miles per hour. At the time, Foster's patrol car was equipped with an in-car video camera, but the camera was broken. Foster pursued the Corvette, "got in behind it," and turned on his overhead lights. Foster's vehicle was marked as a "Dallas Police" car. The driver of the Corvette turned off his lights, "increased his speed quite a bit," and ran a red light. During the pursuit that followed, the Corvette reached "speeds around a hundred miles an hour" in a residential area where the speed limit was thirty-five miles per hour. The Corvette was outrunning Foster's patrol car until the Corvette turned into an apartment complex, lost control, skidded up on "a grassy median with a concrete curb around it," and "high-centered" on it. Foster was then able to approach appellant, the driver of the Corvette. Foster asked appellant for his driver's license and why he was running. Appellant said he was not running and that he was "coming to this location to see a girlfriend." Foster asked appellant, "do you always park your vehicle on a grassy median and high-center it?" and appellant said "he was trying to park it, and it just missed the parking lot." Foster did not smell alcohol or notice any sign that appellant was intoxicated. Foster asked where appellant's girlfriend lived and asked for her address and her phone number. Appellant said he could not remember where she lived and did not know her address or phone number. Appellant told Foster, "if you follow me, I'll show you," but Foster declined because he did not want to take the chance of having to chase appellant down on foot. Foster arrested appellant, and the Corvette was towed to the auto pound. In March 2005, appellant was indicted for the offense of evading arrest. In May 2005, appellant filed a twelve-page pro se "Petition for Discovery" seeking the production of records, statements, and evidence related to his case. In July 2005, appellant filed a "Petition for Order Compelling Discovery as required by law" again seeking production of all evidence related to his case. The petition stated that appellant needed the evidence to support his claims against Foster with the Internal Affairs Division. Appellant filed various objections to a visiting judge and filed in August 2005 a notice of appeal complaining that a pretrial hearing was closed without cause. On August 29, 2005, this Court dismissed his appeal for lack of jurisdiction. On September 9, 2005, appellant filed a petition for writ of mandamus in which he alleged the trial judge violated a ministerial duty by not ordering the Collin County District Attorney's Office to turn over exculpatory evidence. On September 12, 2005, this Court denied appellant's petition. Appellant's case was set for trial on March 13, 2006. On March 8, 2006, appellant filed a "Petition for Dismissal Petition for Quashing Indictment" which the trial court set for a hearing on March 29, 2006. The case was reset for trial on August 28, 2006. The trial began on that date, and appellant was convicted on September 1, 2006. At trial, appellant represented himself pro se. He testified he was returning home from a nightclub where he was singing on the night of his arrest. Appellant was driving at the lawfully posted speed when he "noticed a large body car stalking" him. Appellant was concerned about carjacking, and he decided to "take a few unnecessary turns" from his normal route home to see if he "was being stalked by a terrorist." Appellant was "panicked and estimate [sic] only a few minutes remaining to [his] life and thought about some very happy terrorist driving away with [his] car and leaving [him] dead in the street." Appellant was "thrilled and relieved" to see the police emergency lights activated, and he turned in to the first public parking lot he could find. When "the policeman started barking orders" at him, appellant was "shocked." Appellant testified he did not evade arrest and had "never ever exceeded the lawfully posted maximum speed limit." Appellant presented his theory that, between the time his Corvette was impounded and it was returned to him five days later, Foster was driving the Corvette and wrecked it. Appellant testified the Corvette needed $30,000 in repairs when it was released from the impound lot. Appellant's testimony was that Foster arrested him for "no offense at all, and pretty much absconded with [his] car." However, appellant testified he did not see Foster, any other member of the Dallas police department, or any member of the impound lot driving his Corvette. At the conclusion of the trial, the jury convicted appellant of evading arrest. On September 11, 2006, appellant filed his notice of appeal. Because no reporter's record was timely filed, on March 28, 2007, this Court ordered the trial court to make findings of fact regarding the reasons the reporter's record had not been filed and abated the appeal. On May 2, 2007, this Court adopted the trial court's findings that appellant was indigent and had not requested the preparation of the record and ordered the court reporter to file a record within forty-five days. On January 24, 2008, this Court ordered the trial court to conduct a hearing to determine why appellant's brief was not timely filed and whether appellant was indigent and wanted to prosecute this appeal. The appeal was again abated. On February 20, 2008, this Court adopted the trial court's findings that appellant was indigent, had not abandoned his appeal, was proceeding pro se with "legal assistance" and had an attorney appointed for him. On April 1, 2008, appellant filed his brief, and this case was submitted in October 2008. In his first issue, appellant argues the evidence is factually insufficient to support his conviction. Specifically, appellant argues there is no evidence he was speeding because there was no "printout from the radar gun;" "no logs showing the maintenance on, or accuracy of, the radar;" no video from Foster's patrol car because the camera was broken, no speeding ticket or citation, and no statement of appellant's speed on the incident report. In a factual sufficiency review, we view the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). To reverse a case based on factual insufficiency, we look at the evidence objectively and find that the great weight and preponderance of the evidence contradicts the jury's verdict. Id. at 417. As a reviewing court, we may substitute our judgment for the jury's determinations on the weight and credibility of the evidence only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex.Crim.App. 2006) (stating that the factual sufficiency review requires "due deference" to be afforded to jury's determinations). Absent a contradictory showing from the record, we should defer to the jury's determinations regarding the weight and credibility of the evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex.Crim.App. 2000). A person commits the offense of evading arrest if 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(a) (Vernon 2003). Here, Foster testified he used his radar gun to determine the Corvette was traveling sixty-five miles per hour in an area where the speed limit was forty miles per hour. When Foster, in a marked police car, pulled behind the Corvette and turned on his overhead lights, appellant turned off his lights, "increased his speed quite a bit," and ran a red light. Foster testified appellant reached "speeds around a hundred miles an hour" in a residential area where the speed limit was thirty-five miles per hour before he lost control, skidded up on "a grassy median with a concrete curb around it," and "high-centered" on it. Even in the absence of documentation showing the accuracy of the radar gun, a video of the encounter, or a statement of appellant's exact speed on the incident report, this evidence showed appellant intentionally fled from Foster, who was attempting lawfully to detain him for traveling at a "high rate of speed" in a forty mile per hour zone. See Tex. Penal Code Ann. § 38.04(a) (Vernon 2003). The jury was free to believe Foster and disbelieve appellant's testimony that he thought he was fleeing from terrorists. See Johnson, 23 S.W.3d at 8. Under these circumstances, the evidence was factually sufficient to show appellant committed the offense of evading arrest. See Tex. Penal Code Ann. § 38.04(a) (Vernon 2003); Watson, 204 S.W.3d at 415. We overrule appellant's first issue. In his second issue, appellant argues the trial court abused its discretion in proceeding to trial before appellant had obtained all the discovery material he requested. Specifically, appellant complains he was never provided requested information on the radar device Foster used, the video taken during Foster's pursuit, and dispatch records and audio tapes. Appellant filed a "Notice of Not Ready for Trial," which we will construe as a motion for continuance. The granting or denying of a motion for continuance is within the sound discretion of the trial court. Renteria v. State, 206 S.W.3d 689, 699 (Tex.Crim.App. 2006). A defendant must show "specific prejudice to his defense" to establish that the trial court abused its discretion in refusing to grant a continuance. Id. Appellant argued before trial that he could not be ready for trial if the district attorney did not "produce the Brady exculpatory evidence." Under Brady v. Maryland, 373 U.S. 83 (1963), the suppression by the prosecution of evidence favorable to a defendant violates due process if the evidence is material either to guilt or punishment, without regard to the good or bad faith of the prosecution. Brady, 83 U.S. at 87; Harm v. State, 183 S.W.3d 403, 406 (Tex.Crim.App. 2006). Appellant must satisfy three requirements to establish a Brady violation: (1) the State suppressed evidence; (2) the suppressed evidence is favorable to defendant; and (3) the suppressed evidence is material. Harm, 183 S.W.3d at 406. However, Brady and its progeny do not require prosecuting authorities to disclose exculpatory information to defendants that the State does not have in its possession and that is not known to exist. Harm, 183 S.W.3d at 407. Here, appellant filed a final "Demand for Discovery" on the day of trial. The trial court asked what it was that appellant was "demanding discovery of today." Appellant presented a "more defined discovery demand" for the video from Foster's patrol car and Foster's cell phone records that would show Foster was "on the phone, he was driving around in the [Corvette], he was meeting people." The State responded that there was no video tape from Foster's patrol car, and it was not within the State's control to obtain Foster's cell phone records. The trial court advised appellant to subpoena Foster's cell phone records and proceeded with trial. Appellant did not show, either in his written Demand for Discovery or on the record at the hearing on his demand, why the absence of any of the other items listed in his demand i.e., radar maintenance records and dispatch recordings, would specifically prejudice his defense. See Renteria, 206 S.W.3d at 699. Under these circumstances, we conclude the trial court did not abuse its discretion in denying appellant's motion for continuance. See id. We overrule appellant's second issue. We affirm the trial court's judgment.