Opinion
NO. 03-15-00106-CR
03-31-2016
Brittany Nicole White, Appellant v. The State of Texas, Appellee
FROM THE COUNTY COURT AT LAW OF BURNET COUNTY
NO. M30224, HONORABLE W. R. SAVAGE, JUDGE PRESIDINGMEMORANDUM OPINION
Appellant Brittany Nicole White was convicted of the offense of hindering apprehension of another, a class A misdemeanor. See Tex. Penal Code § 38.05(a)(1). In two issues, White challenges the judgment of conviction. Because we conclude that the evidence is legally insufficient to support the conviction, we reverse and render a judgment of acquittal.
BACKGROUND
In October 2013, White was pulled over in Burnet County by Officer James Cole with the Marble Falls Police Department for having an expired inspection sticker. During the course of the stop, Officer Cole learned that White's passenger had a warrant for his arrest. Officer Cole arrested both White and her passenger. White was subsequently charged with the offense of harboring or concealing with the intent of hindering another's arrest. See id. White received appointed counsel and pleaded not guilty to the charged offense.
At the bench trial that followed, the State presented the testimony of a sole witness, Officer Cole, who testified to the events leading to the stop and to White's arrest. According to Officer Cole, upon stopping the vehicle, he approached White and began to explain why he had pulled her over. Believing that White appeared extremely nervous, Officer Cole asked White to step out of the vehicle, and she complied. Officer Cole then questioned White about the identity of her male passenger, and she informed him that the passenger's name was "Timothy Sanders." Officer Cole then separately questioned the passenger, who told the officer that his name was "Dallas Harper."
Officer Cole testified that, at this point in the stop, he suspected that White had not been truthful with him about the identity of her passenger. Officer Cole asked White for permission to search her vehicle, and she consented. In conducting the search, Officer Cole found an "offender card" with the name "Cody Harper" and a picture of a person resembling the passenger. Officer Cole called dispatch to verify that Cody Harper's description matched that of the passenger, which it did. The dispatcher also informed Officer Cole that Harper had an outstanding warrant for his arrest. Officer Cole testified that the passenger then admitted that he was in fact Cody Harper. The State presented no other evidence, and White did not present any evidence in her defense.
Upon conclusion of the trial, the court found White guilty of the charged offense and sentenced her to five days' imprisonment in the county jail and assessed a $250 fine, $247 in court costs, and $250 in attorneys fees. This appeal followed.
Because the State has not filed a brief, we consider this appeal on appellant's brief alone. See Tex. R. App. P. 38.6.
DISCUSSION
In her first issue on appeal, White contends that the State failed to present legally sufficient evidence to support the conviction. When assessing whether the evidence is legally sufficient to support a criminal conviction, an appellate court must consider all of the evidence in the light most favorable to the verdict to determine whether, based on that evidence and reasonable inferences therefrom, any rational trier of fact could have found the defendant guilty of all of the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); Jessop v. State, 368 S.W.3d 653, 662 (Tex. App.—Austin 2012, no pet.).
White actually frames her first issue on appeal as a challenge to the trial court's ruling on her motion for directed verdict. We treat this issue as a challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996) (explaining that courts treat alleged errors regarding denials of motions for directed verdicts as challenges to legal sufficiency of evidence); Grayson v. State, 82 S.W.3d 357, 358 (Tex. App.—Austin 2001, no pet.) (same).
The elements of the offense of hindering apprehension or prosecution are found in section 38.05 of the Texas Penal Code. Section 38.05 specifies alternative methods by which the offense may be committed. See Tex. Penal Code § 38.05(a). In part, a person commits an offense under section 38.05 if he harbors or conceals "with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense." Id. (emphasis added). Substantially tracking the language of section 38.05, the charging instrument in this case alleged that White, "with the intent to hinder the arrest, prosecution, conviction, or punishment of Cody Harper for the offense of [failure to appear for DWI], intentionally or knowingly harbor[ed] or conceal[ed] Cody Harper." On appeal, White contends that the State failed to present any evidence that Harper's arrest was for "an offense," as required by that portion of section 38.05 of the Penal Code for which she was charged.
"An offense" is an essential element of hindering apprehension or prosecution as charged in this case. King v. State, 76 S.W.3d 659, 662 (Tex. App.—Houston [14th Dist.] 2002, no pet.) ("An essential element of hindering apprehension is the actor's intent 'to hinder the arrest, prosecution, conviction, or punishment of another for an offense.'"); Key v. State, 800 S.W.2d 229, 231 (Tex. App.—Tyler 1990, pet. ref'd) (concluding that State must "allege and prove that the arrest hindered was 'for an offense'"); see also LeClear v. State, No. 07-06-0185-CR, 2007 WL 3004589, at *3 (Tex. App.—Amarillo Oct. 16 2007, no pet.) (mem. op., not designated for publication) (concluding that evidence was sufficient to show that apprehension was sought for "an offense" and thus that essential elements were established beyond a reasonable doubt). That is, the State must "allege and prove that the arrest hindered was 'for an offense' committed by the person whose arrest was hindered." Key, 800 S.W.2d at 231.
At trial, Officer Cole testified that he learned from dispatch that "Cody Harper had a warrant out of Burnet County" and that he informed White and Harper that "Cody Harper had a warrant." The State did not introduce the warrant or any other evidence that would demonstrate the underlying reason for which the warrant for Harper had issued. As a result, the State failed to produce any evidence that Harper was sought for "an offense."
We note that a person also commits an offense under section 38.05 when he or she harbors or conceals "with intent to hinder the arrest of another under the authority of a warrant or capias." Tex. Penal Code § 38.05(a). While the undisputed evidence presented at trial established that Harper's arrest was sought under the authority of a warrant, the charging instrument alleges only that White acted "with the intent to hinder the arrest, prosecution, conviction, or punishment of Cody Harper for the offense of [failure to appear for DWI]." This type of variance in pleading and proof—where the charging instrument pleads one of several alternative methods by which the offense could be committed under the statute and the State at trial proves, instead, an unpleaded method—is always considered to be a material variance and renders the evidence legally insufficient to support the conviction. Johnson v. State, 364 S.W.3d 292, 294 (Tex. Crim. App. 2012). As a result, the fact that we likely could have affirmed the judgment had the State charged White under this alternative method is of no consequence to this appeal.
Because the evidence is insufficient to support the judgment of conviction, we sustain appellant's first issue on appeal.
In her second issue on appeal, White complains that the trial court erred in assessing attorneys fees against her because the trial court initially determined she was indigent and no subsequent finding that her financial circumstances had materially changed was made. Because we reverse White's conviction, we do not decide this issue. See Tex. R. App. P. 47.1. --------
CONCLUSION
We reverse the trial court's judgment of conviction and render a judgment of acquittal.
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Goodwin and Field Reversed and Acquittal Rendered Filed: March 31, 2016 Do Not Publish