Arthur Lee Berry v. State ( 2017 )

Affirmed as Modified and Opinion Filed December 7, 2017
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-16-01466-CR
ARTHUR LEE BERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court of Appeals No. 2
Dallas County, Texas
Trial Court Cause No. MA-1658501-M
MEMORANDUM OPINION
Before Justices Bridges, Fillmore, and Stoddart
Opinion by Justice Stoddart
A jury convicted Arthur Lee Berry of failure to identify as a fugitive, a class A
misdemeanor. See TEX. PENAL CODE ANN. § 38.02(b), (d)(2). The trial court assessed
punishment at 60 days in jail. Berry argues on appeal the evidence is legally insufficient to
establish that the peace officer lawfully detained him at the time of the alleged offense and that
the trial court improperly assessed attorney’s fees against him. We modify the trial court’s
judgment to delete the order to pay the expenses of a court appointed attorney and affirm the
judgment as modified.
We review a challenge to the sufficiency of the evidence on a criminal offense for which
the State has the burden of proof under the single sufficiency standard set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Acosta v. State, 429 S.W.3d 621, 624–25 (Tex. Crim. App.
2014). Under this standard, the relevant question is whether, after viewing the evidence in the
light most favorable to the verdict, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2011). This standard accounts for the factfinder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts. Id. Therefore, in analyzing legal sufficiency, we determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict. Id. When the record supports conflicting
inferences, we presume the factfinder resolved the conflicts in favor of the verdict and therefore
defer to that determination. Id. Direct and circumstantial evidence are treated equally:
circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt. Id.
As applicable here, a person commits an offense if he intentionally gives a false or
fictitious name, residence address, or date of birth to a peace officer who has lawfully arrested or
detained the person. TEX. PENAL CODE ANN. § 38.02(b)(1), (2). The offense is a class A
misdemeanor if it is shown the defendant was a fugitive from justice at the time of the offense.
Id. § 38.02(d)(2).
There are three distinct types of police-citizen interactions: (1) consensual encounters, (2)
investigative detentions, and (3) arrests. Wade v. State, 422 S.W.3d 661, 667 (Tex. Crim. App.
2013); Wygal v. State, 526 S.W.3d 729, 735 (Tex. App.—Houston [1st Dist.] 2017, no pet.). For
Fourth Amendment purposes, a detention occurs “[w]hen a police officer detains someone by
restricting his or her movements through either a show of force, the use of physical restraint, or
by communicated commands,” such that the citizen is no longer free to move independent of
police direction. Grissom v. State, 262 S.W.3d 549, 552 (Tex. App.—Texarkana 2008, no pet.).
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No bright line rule governs when a consensual encounter becomes a detention. State v.
Woodard, 341 S.W.3d 404, 411 (Tex. Crim. App. 2011). “Generally, however, when an officer
through force or a showing of authority restrains a citizen’s liberty, the encounter is no longer
consensual.” Id. “If ignoring the request or terminating the encounter is an option, then no
Fourth Amendment seizure has occurred.” Wade, 422 S.W.3d at 668.
A lawful investigative detention must be supported by reasonable suspicion.
Derichsweiler v. State, 348 S.W.3d 906, 914 (Tex. Crim. App. 2011); Ford v. State, 158 S.W.3d
488, 492 (Tex. Crim. App. 2005). Reasonable suspicion exists if the officer has specific,
articulable facts that, when combined with rational inferences from those facts, would lead him
to reasonably conclude that a particular person is, has been, or soon will be engaged in criminal
activity. Brodnex v. State, 485 S.W.3d 432, 437 (Tex. Crim. App. 2016). This standard is
objective and disregards the officer’s subjective intent. Id. It is based on the totality of the
circumstances. Derichsweiler, 348 S.W.3d at 914. The detaining officer need not be personally
aware of every fact that objectively supports reasonable suspicion to detain because the
cumulative information known to the cooperating officers, including police dispatchers, at the
time of the stop is considered in determining whether reasonable suspicion exists. Id.
Information provided to police by a citizen who identifies herself and may be held to account for
the accuracy and veracity of her report is regarded as reliable. Id. at 915.
We begin by reviewing the evidence in the light most favorable to the verdict. Officer
Brian Everitt testified he had been with the Dallas Police Department for three years. Before
that, he was a military police officer in the Air Force for seven years. About 2:00 a.m. on July 7,
2016, he was on duty as a patrol officer when he was assigned to investigate a 911 call
concerning criminal mischief at a nearby apartment complex. Everitt was in full police uniform
and driving a marked patrol vehicle.
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Bernadette Coronado testified she called 911 after she heard breaking glass in the laundry
room next to her apartment. She called again when she heard footsteps, looked outside, and saw
a man wearing a flowered shirt and a white hat pulling on the broken glass in the window of the
laundry room.
The dispatcher reported to Everitt that the caller heard glass break near the laundry room,
looked outside, and saw a man wearing a flowered shirt and a white hat walking away from the
laundry area. Everitt pulled into the apartment complex less than five minutes after receiving the
report. When he turned toward the laundry, Everitt saw Berry about 100 yards away walking
toward him wearing a flowered shirt and a white hat. Everitt stopped his patrol car and asked
Berry to come towards him. Everitt told Berry to stand in front of the patrol car so he would be
on the dashboard video camera the entire time.1 Everitt identified himself as a Dallas Police
Officer and asked if Berry had a driver’s license or identification. Berry said he did not have any
identification with him. Everitt then asked for his name and birthdate. Berry said his name was
Donald Berry with a birthdate of April 30, 1966.
Berry remained standing in front of the patrol car while Everitt performed a computer
search with this information. After performing several computer searches using the name with
and without the birthdate, Everitt obtained a record for an Arthur Berry using an alias of Donald
Berry. The record included a photograph of Berry and a different birthdate. A check using
Berry’s correct name and birthdate returned an outstanding warrant for him from the U.S.
Marshall’s Office.
Everitt testified that at the time Berry gave the false name and birthdate, Berry was
detained for possible vandalism and criminal mischief. Berry was identified as a suspect
1
Everitt testified his dashboard camera recorded the interaction, however, he did not “tag” the recording to
be preserved in connection with this case, therefore the recording was not available for trial.
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wearing a flowered shirt and white hat in connection with that offense. Based on the description
given by the dispatcher and what Everitt observed, Everitt concluded he had reasonable
suspicion to stop Berry and lawfully detain him. At that time, Berry was a fugitive under the
warrant from the U.S. Marshall’s Office.
Berry argues the evidence is insufficient because when Everitt initially described the
encounter, he asked for Berry’s name immediately after directing him to come over to the patrol
car. However, Everitt later described the encounter in more detail and explained he requested
Berry’s name and date of birth after asking for his driver’s license or identification. Everitt’s
testimony indicates this request was made after Everitt directed Berry to come over to the patrol
car and stand in front of the car in view of its camera. We presume the jury resolved any
conflicting inferences about the timing of Everitt’s request in favor of its verdict and defer to that
determination. See Clayton, 235 S.W.3d at 778.
Based on the evidence, a rational jury could have concluded Berry yielded to Everitt’s
show of authority in directing Berry to come over to the patrol car and stand in front of it where
he would be on camera the entire time. See Wade, 422 S.W.3d at 669–70 (holding a Fourth
Amendment seizure requires submission to show of authority). The evidence supports the
conclusion that a reasonable person under the totality of the circumstances would not have felt
free to disregard Everitt’s direction to stand at the front of the patrol car or his request for
identifying information. At that point, Berry gave Everitt a false name and date of birth. A
rational jury could have concluded from the evidence that Berry intentionally gave a false name
and birthdate to Everitt, a peace officer, who lawfully detained him for the criminal mischief
offense and that Berry was a fugitive from justice at the time. See TEX. PENAL CODE ANN.
§ 38.02(b), (d)(2). We conclude the evidence is sufficient to support the jury’s verdict. See
Jackson, 419 U.S. at 319. We overrule Berry’s first issue.
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Berry argues in his second issue that the judgment and bill of costs improperly assess fees
for his court appointed attorney when there is no evidence his financial resources enable him to
pay the fees. The State agrees there is no evidence in the record to rebut the presumption that
Berry’s indigence continued throughout the remainder of the proceedings.
A trial court may require a defendant to reimburse court appointed attorney’s fees if the
court determines the defendant has the financial resources to offset the fees in whole or in part.
See TEX. CODE CRIM. PROC. ANN. art. 26.05(g). The defendant’s financial resources and ability
to pay are critical elements in the trial court’s determination of the propriety of ordering
reimbursement of court-appointed attorney’s fees. Mayer v. State¸ 309 S.W.3d 552, 556 (Tex.
Crim. App. 2010). A defendant may challenge the sufficiency of evidence of his financial
resources and ability to pay for the first time on appeal without objecting to the order for
reimbursement in the trial court. Id.
The trial court found Berry indigent and appointed counsel to represent him at trial and
on appeal. At sentencing, the trial court informed Berry he would be given “back time credit for
the jail time and court costs in the case” and “[u]nless there are some other holds on you, you
will be free to go after you clear through the jail.” The written judgment simply states “Yes”
next to the section titled “Costs.” However, the judgment contains a preprinted form order
stating:
It is further ordered that the Defendant pay . . . court costs, [and] expenses of legal
services provided by the court appointed attorney or public defender in this cause,
if any . . . . The Judge finds that the Defendant has the financial resources to
enable the Defendant to offset said costs in the amount ordered.
The certified bill of costs prepared by the clerk after judgment shows an itemized list of
fees totaling $462.00. This includes $150.00 for court appointed attorney’s fees. However, the
bill of costs shows there is no balance remaining due from Berry. This appears to reflect credit
for time served. The State does not object to modifying the judgment to delete the order to pay
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attorney’s fees.
We agree there is no evidence in the record to rebut the presumption of indigency or
showing that Berry has the financial resources and ability to pay the attorney’s fees shown in the
bill of costs. Accordingly, we modify the trial court’s judgment to delete the order that Berry
pay the expenses of legal services provided by his court appointed attorney and the finding that
Berry has the financial resources to enable him to offset those expenses. See TEX. R. APP. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v. State, 813
S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). We sustain Berry’s second issue to
this extent.
As modified, we affirm the trial court’s judgment.
/Craig Stoddart/
CRAIG STODDART
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
161466F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ARTHUR LEE BERRY, Appellant On Appeal from the County Criminal Court
of Appeals No. 2, Dallas County, Texas
No. 05-16-01466-CR V. Trial Court Cause No. MA-1658501-M.
Opinion delivered by Justice Stoddart.
THE STATE OF TEXAS, Appellee Justices Bridges and Fillmore participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
The order that defendant pay “expenses of legal services provided by the court
appointed attorney or public defender in this cause, if any” and the statement that
“The Judge finds that the Defendant has the financial resources to enable the
Defendant to offset said costs in the amount ordered” are DELETED.
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 7th day of December, 2017.
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