No. 10-03-00324-CR
Opinion delivered and filed March 23, 2005. DO NOT PUBLISH.
Appeal from the 54th District Court, McLennan County, Texas, Trial Court # 2003-787-C.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA, Affirmed.
FELIPE REYNA, Justice.
John C. Montgomery was convicted of evading arrest or detention. He was sentenced to 2.5 years' incarceration. We affirm.
Background
John Montgomery was driving in reverse down a four-lane street in McGregor. Observing this, Officer Jeff Freeman engaged his emergency lights and followed Montgomery in his patrol car for approximately two blocks before Montgomery pulled over. Freeman issued three citations to Montgomery: (1) failure to have a driver's license; (2) failure to have proof of insurance; and (3) illegal backing. After Montgomery signed the citations, Freeman told him that he could go, but that he was going to have to find someone to come and pick him up, or else tow his vehicle. Montgomery stated that he was going to his nephew's house, put the vehicle in reverse, and backed away from Freeman. Freeman ordered Montgomery to stop, but to no avail. Freeman got into his patrol car, activated his siren, and thus began a two minute and twenty second pursuit covering eight and a half blocks of the back streets of McGregor, during which Freeman ordered Montgomery to stop several times using his PA system. The "chase" ended with Montgomery neatly backing his vehicle up under a tree at his nephew's house. Montgomery argues on appeal that (1) the evidence is legally insufficient to sustain his conviction for evading arrest/detention because the State failed to prove that Freeman was lawfully attempting to detain Montgomery; (2) the evidence is factually insufficient to sustain his conviction because the State failed to prove that Freeman was lawfully attempting to detain Montgomery; (3) the evidence is legally insufficient to sustain his conviction because the State failed to prove that Freeman was attempting to arrest Montgomery; (4) the trial court fundamentally erred in failing to instruct the jury regarding the requirements of the "backing a vehicle" statute; and (5) the trial court erred by allowing the State to read the enhancement paragraph of the indictment to the jury in the guilt/innocence phase. The Evidence is Legally and Factually Sufficient to prove that Freeman Lawfully Attempted to Detain Montgomery
Montgomery argues in his first and second issues that there is legally and factually insufficient evidence to prove that Freeman was lawfully attempting to detain him. In a legal insufficiency review, we view all of the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Lacour v. State, 8 S.W.3d 670, 671 (Tex.Crim.App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 3d 560 (1979)). We resolve any inconsistencies in the evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App. 2000). In conducting a factual sufficiency review, we "consider all of the evidence in a neutral light" and determine whether the factfinder was "rationally justified in finding guilt beyond a reasonable doubt." Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). [T]here are two ways in which the evidence may be [factually] insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met.
Id. at 484-85. A person commits the felony offense of evading arrest if he intentionally flees, in a vehicle, from a person he knows is a peace officer lawfully attempting to arrest or detain him. TEX. PEN. CODE ANN. § 38.04 (a), (b) (Vernon 2003). Montgomery contends that Freeman's attempt to detain him was unlawful because there is no evidence that he was backing his vehicle in violation of the Texas Transportation Code. In other words, Montgomery claims that the manner in which he was driving his vehicle in reverse was not an illegal act, and thus the detention was unlawful. The relevant section of the Texas Transportation Code states: (a) An operator may not back the vehicle unless the movement can be made safely and without interference with other traffic
(b) An operator may not back the vehicle on a shoulder or roadway of a limited-access or controlled-access highway.
TEX. TRANSP. CODE ANN. § 545.415 (Vernon 1999). Montgomery argues that there is no evidence that the way in which he was backing his vehicle was unsafe, or that he was on a road of limited or controlled access. However, Freeman testified that Montgomery's driving was illegal and dangerous, and he identified the highway as one of limited or controlled access. Viewing the evidence in a light most favorable to the verdict, this is more than a scintilla of evidence that Freeman's attempt to detain Montgomery was lawful. Curry, 30 S.W.3d at 406. After telling Montgomery that he could not continue to operate the vehicle, Montgomery refused and blatantly drove away, again in reverse. Refusing to obey a lawful order of an officer is an offense, again giving Freeman lawful reason to detain Montgomery. See Key v. State, 88 S.W.3d 672, 676 (Tex.App.-Tyler 2002, pet. ref'd). Also, Freeman could have lawfully detained Montgomery in the second instance because Freeman knew Montgomery was operating the vehicle with no license or proof of insurance. See TEX. TRANSP. CODE ANN. § 521.025 (Vernon 1999); TEX. TRANSP. CODE ANN. § 601.051 (Vernon 1999). Looking at all the evidence in a neutral light, we find that there is factually sufficient evidence to prove that Freeman lawfully attempted to detain Montgomery for both reasons. Zuniga, 144 S.W.3d at 484-85. Accordingly, we overrule Montgomery's first and second issues. The Evidence is Legally Sufficient to Prove that Freeman was Attempting to Arrest/Detain Montgomery
Montgomery argues in his third issue that the evidence is legally insufficient to prove that Freeman was attempting to arrest Montgomery, and thereby providing no support for his evading arrest conviction. The indictment charged Montgomery with one offense, fleeing from an officer who was attempting to "arrest or detain" him. However, the application paragraph of the jury charge states only "arrest," and not "arrest or detain." The evidence is measured for sufficiency against the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997); Price v. State, 35 S.W.3d 136, 139 (Tex.App.-Waco 2000, pet. ref'd). A hypothetically correct jury charge is one that "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Malik, 953 S.W.3d at 240. Therefore, a hypothetically correct jury charge would have properly authorized the jury to convict Montgomery if it found that he fled from an officer attempting to "arrest or detain" him. See Schiffert v. State, No. 02-02-278-CR, 2004 WL 2985068, *4 (Tex.App.-Fort Worth Dec. 23, 2004, no pet. h.). Montgomery was driving backwards without a license or proof of insurance. When told to stop, he refused. Therefore, there is legally and factually sufficient evidence that Freeman was attempting to arrest or detain Montgomery. Accordingly, we overrule Montgomery's third issue. The Trial Court did not Err in Failing to Instruct the Jury
Montgomery argues in his fourth issue that the trial court committed fundamental error by failing to give an article 38.23 instruction to the jury concerning the requirements of Texas Transportation Code section 545.415, which would have helped the jury to determine whether Freeman's attempted detention of Montgomery was lawful. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (Vernon Supp. 2004-2005); TEX. TRANSP. CODE § 545.415. Because Montgomery did not object to the lack of an instruction at trial, any error in the charge is reversible only if the alleged error resulted in egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). Fundamental error in the jury charge is error that is so egregious and causes such harm as to deprive the accused of a fair and impartial trial. Id. To determine if Montgomery suffered egregious harm, we consider (1) the entire charge, (2) the state of the evidence, including contested issues, (3) arguments of counsel, and (4) any other relevant information. The trial court is obligated to charge the jury on the "law applicable to the case." Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2004-2005). This obligation requires the court to instruct the jury concerning each and every element of the offense. See id.; 43 George E. Dix Robert O. Dawson, Criminal Practice and Procedure § 36.11, at 561-62 (Texas Practice 2001). Montgomery was challenging the legality of the attempted detention, an element of the offense of evading arrest or detention. See TEX. PEN. CODE § 38.04(a). Therefore, he was entitled to an instruction on that element. However, after reviewing the record in its totality, we cannot conclude that the trial court's failure to give an instruction amounts to egregious harm. See Almanza, 686 S.W.2d at 171. Given the evidence recited above, the absence of the instruction was not so harmful as to conclude that Montgomery was denied a fair and impartial trial. Id.; In re A.A.B., 110 S.W.3d 553, 557 (Tex.App.-Waco 2003, no pet.). Accordingly, we overrule Montgomery's fourth issue. The Trial Court did not Err in Allowing the Enhancement Paragraph Read
Montgomery argues in his fifth issue that the trial court erred by allowing the State to read to the jury during the guilt/innocence phase of the trial the portion of the indictment which stated that he had been previously convicted of evading arrest. Montgomery contends that the portion of the indictment referencing his previous conviction was an enhancement paragraph, and that it was not needed to invoke the felony jurisdiction of the trial court, because evading arrest with a car is a state jail felony. However, the State was attempting to prove a third degree felony under section 38.04 (b)(2)(A) of the Texas Penal Code. See TEX. PEN. CODE § 38.04(b)(2)(A). The State argues that proof of prior convictions is not an enhancement provision, but an element of the offense. We agree. The requirements in Section 38.04(b)(2)(A) that make the offense of evading arrest or detention a third degree felony are presented in the statute as elements of the offense: (1) the actor must have used a vehicle while in flight; and (2) the actor must have been previously convicted of an offense under section 38.04. TEX. PEN. CODE § 38.04 (b)(2)(A); Ford v. State, 112 S.W.3d 788, 791 (Tex.App.-Houston [14th Dist.] 2003, no pet.); State v. Atwood, 16 S.W.3d 192, 195-96 (Tex.App.-Beaumont 2000, pet. ref'd); see also Calton v. State, 132 S.W.3d 29, 33-34 (Tex.App.-Fort Worth 2004, pet. granted) (finding proof of prior conviction an element of the offense under section 38.04(b)(2)(A), but urging the Legislature to revise the Penal Code). Furthermore, section 38.04(b)(2) is consistent with other statutes that treat prior convictions as aggravating elements of an offense rather than sentencing or "enhancement" factors. See TEX. PEN. CODE ANN. § 31.03(e)(2)(B), (4)(D) (Vernon Supp. 2004-2005); TEX. PEN. CODE Ann. § 22.01(b)(2) (Vernon Supp. 2004-2005); Ford, 112 S.W.3d at 791; Atwood, 16 S.W.3d at 196. Therefore, we find that the trial court did not err in allowing the portions of the indictment alleging a prior conviction for evading arrest to be read to the jury because the prior conviction is an element of the offense. See Ford, 112 S.W.3d at 791. Accordingly, we overrule Montgomery's fifth issue. Conclusion
Having overruled all of Montgomery's issues, we affirm the judgment of the trial court.