Arthur Lee Berry v. State ( 2017 )


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  • 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.).
    –2–
    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.
    –3–
    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.
    –4–
    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.
    –5–
    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
    –6–
    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
    –7–
    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.
    –8–
    

Document Info

Docket Number: 05-16-01466-CR

Filed Date: 12/7/2017

Precedential Status: Precedential

Modified Date: 12/12/2017