Opinion
NO. 14-16-00788-CR
01-30-2018
GUADALUPE MURAIRA JUNIOR, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 412th District Court Brazoria County, Texas
Trial Court Cause No. 77524-CR
MEMORANDUM OPINION
Appellant Guadalupe Muraira Junior was convicted by a jury of evading arrest, enhanced by a prior felony conviction, and sentenced to a term of 18 years' confinement. In two issues on appeal, appellant argues the evidence is legally insufficient to support the conviction and the trial court erred by denying a requested instruction in its charge to the jury for the guilt-innocence phase of trial. We affirm.
I. Background
On October 15, 2015, undercover officer Danny Lares was stationed in his unmarked vehicle in a parking space at an apartment complex to investigate complaints about drug dealing occurring at the complex in Angleton, Texas. Officer Lares observed a white SUV enter the complex driven by appellant with a female passenger. After the SUV pulled into a parking space, a male emerged from an apartment, approached the SUV, and spoke with appellant. Officer Lares saw the two men shake hands, conducting what appeared to be a hand-to-hand narcotics transaction with money being passed from the male standing outside the car and a clear plastic baggie turned over by appellant. Lares followed the SUV as it exited the parking lot, and requested on a handheld radio for any available marked patrol car to stop the white SUV.
Officer Roxanne Raper responded that she was in the area with a marked unit and could see a white SUV. Through radar in her patrol car, Officer Raper measured appellant's vehicle traveling at 38 miles per hour in a 30 miles per hour zone. Officer Raper turned on her emergency lights and "bumped" her siren a couple of times to effectuate the traffic stop. Appellant pulled over. Officer Raper observed the occupants moving items around inside the vehicle.
Officer Raper, dressed in her police uniform, exited her patrol car and approached appellant's side window of the SUV. After she made eye contact with appellant, appellant sped away. Officer Raper returned to her patrol car and pursued appellant, driving in excess of 70 and 80 miles per hour on city streets.
While in pursuit of appellant with emergency lights flashing and sirens sounding, Officer Raper observed items being thrown out of the passenger side window and communicated this information over the police radio. The discarded items from the SUV were later recovered and included a loaded handgun and an orange and black bag containing marijuana and Xanax.
Appellant eventually stopped his vehicle and jumped out, attempting to escape on foot into a wooded lot. Officer Raper followed and apprehended appellant.
A jury found appellant guilty of evading arrest, enhanced by a prior felony conviction, and sentenced appellant to a term of 18 years' confinement on September 2, 2016. Appellant filed a timely notice of appeal.
II. Analysis
A. Sufficiency of the evidence
In his first issue, appellant complains the evidence is insufficient to support his conviction for intentionally evading a peace officer. Appellant attacks the intent element, asserting that there was insufficient evidence from which a jury could infer that appellant knew Officer Raper was attempting to detain him. We disagree.
1. Standard of review
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 (1979)); see also Nava v. State, 379 S.W.3d 396, 403 (Tex. App.—Houston [14th Dist.] 2012), aff'd, 415 S.W.3d 289 (Tex. Crim. App. 2013).
We do not sit as thirteenth juror and may not substitute our judgment for that of the factfinder by reevaluating the weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010); Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010); Nava, 379 S.W.3d at 403. Rather, 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, 330 S.W.3d at 638; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Nava, 379 S.W.3d at 403. The jury is free to accept or reject some, all, or none of the evidence presented by either side. Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). This standard applies equally to both circumstantial and direct evidence. Isassi, 330 S.W.3d at 638; Nava, 379 S.W.3d at 403. 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, 214 S.W.3d at 13; Nava, 379 S.W.3d at 403.
2. Evading arrest
A person commits the offense of evading arrest with a motor vehicle if he intentionally flees from a person he knows to be a police officer attempting lawfully to arrest or detain him, and he uses a vehicle while in flight. See Tex. Code Crim. Proc. Ann. § 38.04; Hazkell v. State, 616 S.W.2d 204, 205 (Tex. Crim. App. 1981); Redwine v. State, 305 S.W.3d 360, 362 (Tex. App.—Houston [14th Dist.] 2010, pet ref'd). " '[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.). Intent may be inferred from conduct. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991), overruled on other grounds by Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992); see also Muhammed v. State, 331 S.W.3d 187, 193 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd).
In the present case, the unrebutted record before us reveals that Officer Raper stopped appellant's vehicle for a traffic violation—speeding. Officer Raper's radar in her patrol car confirmed appellant was driving his car 38 miles per hour in a 30 miles per hour zone in violation of the speeding statute—thus providing reasonable suspicion for the stop. Officer Raper activated her emergency lights and bumped her siren a couple of times on her marked patrol unit, signaling appellant to pull over. Although appellant stopped on the side of the road, after Officer Raper made eye contact with appellant as she approached appellant's car in her uniform, appellant put his car in drive and sped away. Officer Raper pursued appellant in her patrol car with lights and sirens. Appellant violated numerous traffic laws during the pursuit, driving through town at speeds exceeding 80 miles per hour. Appellant abandoned his vehicle and fled on foot into a wooded lot. The pursuit ended when Officer Raper apprehended him.
At trial, the State introduced into evidence a video filmed from Officer Raper's dash camera. The video recorded almost the entire episode. The jury also heard the testimony of Officers Raper and Lares.
In the trial court, appellant filed a motion to suppress and argued that Officer Raper's stop was pretextual. The trial court denied the motion. It is unclear from appellant's brief whether he is challenging that ruling on appeal or simply arguing that an error in that ruling somehow affects our sufficiency review. Cf. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) ("When conducting a sufficiency review, we consider all the evidence admitted, whether proper or improper."). In any event, on this record, a reasonable jury could have found Officer Raper had reasonable suspicion to lawfully stop and detain appellant for a traffic violation she witnessed. See Garcia v. State, 827 S.W.2d 937, 944 (Tex. Crim. App. 1992). Whether the officer had another subjective motive for seizing a driver does not invalidate the objectively reasonable seizure. See State v. Gray, 158 S.W.3d 465, 470 (Tex. Crim. App. 2005).
Additionally, a reasonable factfinder could have found that, in failing to stop his vehicle when he was given the signal to do so, appellant intentionally and knowingly fled from a person he knew to be a peace officer attempting to lawfully arrest or detain him. See, e.g., Duvall v. State, 367 S.W.3d 509, 513 (Tex. App.—Texarkana 2012, pet. ref'd) (evidence that a police officer is asserting authority and attempting to arrest or detain an individual includes use of emergency lights and sirens, pointing to a driver to pull the vehicle over, and issuing verbal commands). Speeding away as Officer Raper approached his vehicle in uniform and ignoring Officer Raper's marked police car with emergency lights flashing and siren sounding as she pursued him at high speeds is sufficient evidence to support the jury's verdict that appellant intended to evade arrest. See Smith v. State, 483 S.W.3d 648, 653-54 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (noting a reasonable factfinder could have concluded that appellant knew the officers were pursuing him and intended to flee where two police cars pulled in behind appellant, and the officers activated their emergency lights and sirens, and appellant cut across four lanes of traffic, drove onto the shoulder, and passenger threw out a meth pipe while appellant kept driving).
Further, the jury could have rationally inferred that appellant intended to flee from Officer Raper based on the evidence that he had contraband in his vehicle. Appellant's female passenger threw marijuana out of the window of appellant's car while Officer Raper was in pursuit. See, e.g., Burgess v. State, 448 S.W.3d 589, 596 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (jury could infer defendant fled from officer because defendant and his passengers had committed a robbery and thought the officer intended to detain them for that offense; fact that occupants of the truck threw out items stolen in the robbery supported such an inference); Baines v. State, 418 S.W.3d 663, 670 (Tex. App.—Texarkana 2010, pet. ref'd) (concluding reasonable person could determine defendant was fleeing while he considered what to do with contraband when he discarded marijuana out of his car before stopping).
Having reviewed the record, we conclude the evidence is sufficient to sustain appellant's conviction for evading arrest with a motor vehicle. Appellant's first issue is overruled.
B. Requested jury instruction
In his second issue, appellant contends that the trial court erred by refusing to submit a jury instruction pursuant to Texas Code of Criminal Procedure article 38.23. Appellant claims that his challenge to the legality of Officer Raper's initial traffic stop of his vehicle entitled him to an instruction in the court's charge to the jury under article 38.23.
1. Applicable law and standard of review
Article 38.23 provides in pertinent part:
(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.Tex. Code Crim. Proc. Ann. art. 38.23(a).
In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.
A defendant's right to submission of a jury instruction under article 38.23 is "limited to disputed issues of fact that are material to his claim of a constitutional or statutory violation that would render evidence inadmissible." Madden v. State, 242 S.W.3d 504, 509-10 (Tex. Crim. App. 2007). Before a defendant is entitled to such an instruction, (1) evidence heard by the jury must raise an issue of fact, (2) the evidence on that fact must be affirmatively contested, and (3) that contested factual issue must be material to the lawfulness of the challenged conduct in obtaining the evidence. Id. at 510. There must be a genuine dispute about a material issue of fact before an article 38.23 instruction is warranted; if there is no disputed fact issue, the legality of the conduct is determined by the court alone, as a matter of law. Id. In order for there to be a conflict in the evidence that raises a disputed fact issue, there must be some affirmative evidence in the record that puts the existence of that fact in question. Id. at 513.
We review a trial court's refusal to submit an instruction in the jury charge for abuse of discretion. See Wesbrook v. State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000).
2. No contested issue of fact as to whether appellant was speeding
In the instant case, there was no contested issue of fact as to whether appellant was traveling in excess of the posted speed limit. Officer Raper's unrebutted testimony established that she stopped appellant for speeding. The radar in her patrol car confirmed that appellant was driving his car 38 miles per hour in a 30-mile-per-hour speed zone in violation of a statute—thus providing reasonable suspicion for the stop. See Garcia, 827 S.W.2d at 944. Appellant does not refer this court to any evidence raising a disputed fact issue that would warrant an instruction under article 38.23. See Jackson v. State, 468 S.W.3d 189, 199-200 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (holding defendant was not entitled to an article 38.23 instruction where there was no disputed fact issue on whether there was a reasonable alternative to impoundment).
Accordingly, we conclude the trial court did not err by denying appellant's request for an article 38.23 instruction. We overrule appellant's second issue.
III. Conclusion
Having overruled appellant's issues on appeal, we affirm the judgment of the trial court.
/s/ John Donovan
Justice Panel consists of Justices Jamison, Busby, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).