Opinion
No. 05-05-00078-CR
Opinion issued February 16, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 292nd District Court, Dallas County, Texas, Trial Court Cause No. F04-48673-JV. Affirmed.
Before Justices MORRIS, BRIDGES, and FRANCIS.
OPINION
Dale Leroy Verhagen appeals his conviction for evading arrest or detention using a motor vehicle. The jury convicted appellant, and the trial court assessed punishment at one year of confinement. In two points of error, appellant argues the evidence is legally and factually insufficient to show the police had reasonable suspicion to stop him. We affirm the trial court's judgment. On the afternoon of January 28, 2004, Dallas police officer Christian D'Alesandro was working an off-duty job at a Home Depot in Dallas County. D'Alesandro was watching the parking lot because there had been a lot of burglaries of motor vehicles in the parking lot. The head cashier came out of the store and waved her arms and pointed out a man who had concealed some items and "had tossed them down and was in front of her walking out in the parking lot." D'Alesandro saw appellant walking in the parking lot, approached him, and asked him to stop and talk. Instead, appellant ran to his truck and got inside. D'Alesandro came up to the driver's side door and attempted to open it, but appellant backed out of the parking spot and "tore out of the parking lot." D'Alesandro went to his police car, turned on his lights and siren, and followed appellant. D'Alesandro testified appellant was driving out of the parking lot in a manner that would have caused him to pull appellant over. With D'Alesandro following, appellant cut through a car wash, drove over the median, and went across oncoming traffic before getting on the northbound service road of Central Expressway. Appellant drove through a break in a construction barrier and went into the construction zone at the intersection of Central Expressway and 635. D'Alesandro followed appellant through the construction area and back out onto the service road heading the wrong way. Appellant encountered an eighteen-wheeler coming toward him and turned back in to the construction zone. D'Alesandro followed appellant back in and out of the construction zone, onto a highway, and down a rail line. Appellant drove down beside the railroad tracks and high centered his truck on a circular concrete abutment. Appellant got out of his truck and tried to run away, but D'Alesandro chased him down. A jury convicted appellant of evading arrest or detention using a motor vehicle, and this appeal followed. In his first and second points of error, appellant argues the evidence is legally and factually insufficient to show that D'Alesandro had reasonable suspicion to detain appellant. Specifically, appellant challenges the legal and factual sufficiency of the evidence to show D'Alesandro lawfully stopped appellant. In making his argument, appellant cites the following jury instruction, submitted pursuant to article 38.23(a) of the code of criminal procedure:
You are instructed that under our law no evidence obtained or derived by a police officer as a result of an unlawful stop and detention shall be admissible in evidence against an accused. An officer is permitted, however, to make a temporary investigative detention if the officer has a reasonable suspicion, that is a reasonable belief that some activity out of the ordinary is or has occurred, that the person detained is connected with such activity and that there is some indication that the activity is related to crime or a criminal offense, including a traffic offense.
Now, bearing in mind these instructions, if you find from the evidence that on the occasion in question, the police officer did not have a reasonable suspicion to detain the defendant or you have a reasonable doubt thereof, then such stopping of the accused would be illegal. And if you find the facts so to be, or if you have a reasonable doubt thereof, you will disregard the testimony of the officer relative to his stopping the defendant and his conclusions drawn as a result thereof, and you will not consider such evidence for any purpose whatsoever and you should return a verdict of not guilty.An instruction pursuant to article 38.23 (a) should be included in the charge only "if there is a factual dispute as to how the evidence was obtained." Hanks v. State, 137 S.W.3d 668, 671 (Tex.Crim.App. 2004) (quoting Thomas v. State, 723 S.W.2d 696, 707 (Tex.Crim.App. 1986). A factual-sufficiency review is appropriate only as to the sufficiency of the State's proof as to elements of the offense. Hanks, 137 S.W.3d at 672. Such a review is not appropriate as to the admissibility of evidence when such a question is submitted to the jury pursuant to article 38.23(a). Id. Moreover, the jury instruction concerning the legality of appellant's detention should not be used to measure the legal sufficiency of the evidence. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). The legality of appellant's detention is not an element of the offense charged but merely relates to the admissibility of evidence. Id. For these reasons, we conclude we need not review the legal or factual sufficiency of the evidence to support the jury's implied rejection of the issues raised in the trial court's article 38.23(a) instruction. See Hanks, 137 S.W.3d at 671-672; Malik, 953 S.W.2d at 240. We decline to further address appellant's first and second points of error. We affirm the trial court's judgment.
Article 38.23(a) provides that no evidence obtained by an officer in violation of the Constitution or laws of the State of Texas or the United States of America shall be admitted in evidence against the accused on the trial of any criminal case and, in any case where the legal evidence raises an issue under article 38.23, the jury shall be instructed that if it believes, or has reasonable doubt, that the evidence was obtained in violation of article 38.23, the jury shall disregard any such evidence so obtained. Tex. Code Crim. Proc. Ann. art. 38.23(a) (Vernon 2005).