Kelly Kita Sheffield v. State ( 2015 )

ACCEPTED
03-14-00353-CR
5399510
THIRD COURT OF APPEALS
AUSTIN, TEXAS
5/22/2015 2:04:08 PM
May 28, 2015 JEFFREY D. KYLE
CLERK
IN THE COURT OF APPEALS
FOR THE THIRD SUPREME RECEIVED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
JUDICIAL DISTRICT OF TEXAS
5/22/2015 2:04:08 PM
JEFFREY D. KYLE
AUSTIN, TEXAS Clerk
NO. 03-14-00353-CR
KELLY KITA SHEFFIELD
v.
THE STATE OF TEXAS
Appeal from the 22nd Judicial District Court of Co mal County, Texas
Trial Court Cause No. CR2011-475
BRiEF ON BEHALF OF APPELLANT,
KELLY KITA SHEFFIELD
JOSEPH E. GARCIA III
200 N. Seguin Avenue
New Braunfels, Texas 78130
OR.<\T. ARGUMF.NT W AIVF.D TEl.
- ,-- 627-8868
- OHO) ~-
FAX (830) 627-8683
joeg3@sbcglobal.net
SBN: 07636725
ATTORNEY FOR APPELLANT
Identity of Parties and Counsel
Pursuant to TEX. R. APP. P. 38.1(a)(2011), the parties to this case are
as follows:
( 1) KELLY KITA SHEFFIELD is the Appellant and Defendant in
the trial court.
(2) KELLY KITA SHEFFIELD was represented at trial and on
appeal by Joseph E. Garcia, III, Attorney at Law, 200 N. Seguin Avenue,
New Braunfels, TX 78130.
(3) The State of Texas was represented by the Coma! County
District Attorney's Office through Assistant Criminal District Attorneys,
Clayten H. Heanell and Ryan V. Vickers, Coma! County Courthouse
Annex, 150 N. Seguin Avenue, Suite 307, New Braunfels, Texas 78130.
11
Table of Contents
Identity of Parties and Counsel 11.
Table of Contents 111.
Index of Authorities lV, V.
Nature of the Case. 1-2
Statement of the Case. 3-7
Issues on Appeal. . 8
ISSUE #1: The evidence is legally insufficient to
support the jury's verdict that the Appellant was
guilty of evading arrest or detention with a vehicle
by someone she knew was a law enforcement officer.
Argument and Authorities 8-13
ISSUE #2: The evidence is legally insufficient to
support the jury's verdict that the Appellant's conduct
placed her child in imminent danger of death, bodily
injury, or physical or mental impairment.
Argument and Authorities 14-15
Conclusion and Prayer 15
Certificate of Compliance. 16
111
Index of Authorities
Statutes
Tex. Penal Code, Section 38.04(a) (b)(1)(B) . 8,9
Tex. Penal Code, Section 22.041(c). 14
Tex. Penal Code, Section 1.07(36) 9
Tex Code of Criminal Procedure, Art. 2.12 9
State Cases
Brooks v. State, 323 S.W.3d 893 (fex.Crim.App. 201 0) .8
Devine v. State, 786 S.W.2d 268 (Tex.Crim.App.1989). 16
Duvall v. State, 367 S.W.3d 509 (Tex. App.-Texarkana
2005, pet. ref' d). 11
Garcia v. State, 367 S.W.3d 683 (Tex.Crim.App.2012). .16
Hobyl v. State, 152 S.W.3d 624 (Tex.App.-Houston [1't Dist.] ·
2004), pet. dism'd, improvidently granted, 193
S.W.3d 903 (Tex.Crim.App.2006) . . 9
Jackson v. Virginia, 443 U.S. 307,319,99 S. Ct. 2781,
L:1 T D...l ....,...l t:.C.A 110"70\
U.l L.LU . .:::..U JVV \ 1 7 / 7 )• .
l'vfalik v. State, 953 S.\·V.2d 234 (Tex.Crim.App. 1997). 15
Millslagle v. State, 81 S.W.3d 895 (Tex.App.-Austin
2002, pet. ref d). 16
iv
Redwine v. State, 305 S.W.3d 360 (Tex.App.-Houston [14th
Dist.] 2010, pet. ref d) 10
Rodriguez v. State, 779 S.W.2d 301 (Tex.Crim. App. 1990). 9
v
NATURE OF THE CASE
Appellant was indicted on September 14, 2011 for the felony offenses (1)
tampering with physical evidence; (2) evading arrest with a vehicle; and (3)
endangering a child.
On March 3, 2014, this case was called for trial, all parties announced ready,
and a jury was empaneled and selected. After both parties presented their cases in
chief the case was submitted to the jury on March 5, 2014. After deliberation the
jury returned a verdict finding Appellant not guilty of the offense of tampering
with physical evidence but guilty of evading arrest or detention with a vehicle and
endangering a child.
Thereafter a punishment hearing was held on May 21, 20 14 wherein
Appellant's punishment on the evading charge was assessed at 2 years in years in a
state felony facility, probated for 5 years and a fine of $1,500; 100 hours of
community service restitution; plus other terms and conditions of probation
deemed appropriate and approved by the Court. Punishment on the endangering
charge was assessed at 2 years in a state jail facility, probated for 5 years and a fine
rom .. ~nr. ....... ,.., • r- •, • ,•, ,• 1 ,1_ ,_ . 1
or :t>l,:>vv; 1vv nours or communny serv1ce resmunon; piUs omer terms ana
conditions of probation deemed appropriate and approved by the Court. Both
sentences as well as the terms and conditions of probation were ordered to run
concurrently. (R.R. Vol5, p. 61).
1
Appellant filed her notice of appeal on June 2, 2014.
This appeal challenges the sufficiency of the evidence to support the jury's
guilty verdicts for the offenses of evading arrest or detention with a vehicle and
endangering a child.
2
STATEMENT OF THE CASE
On March 17, 2011, two Child Protective Services (hereinafter referred to
as "CPS") investigators went to the Appellant's home to speak with the Appellant
and to serve her with documents that purported to be court orders authorizing the
removal of Appellant's two minor children from Appellant's home. CPS
Investigator, Gina Bushey, testified that she also requested law enforcement
"stand-by" presence in the event that the removal process deteriorated into threats,
violence, or both. Ms. Bushey testified that the "stand-by" request was a standard
procedure and request when removal of children is involved and CPS and the local
police department and sheriffs office have working agreements relating to this
process.
On this day, New Braunfels Police Department Det. David Cantu was
assigned to accompany the CPS investigators and stand-by in the event his
presence and participation was needed. The testimony of the CPS investigators
and Det. Cantu indicated that the detective was in plain clothes, i.e. a blue polo
shirt with a New Braunfels Police Department insignia on the chest, khaki pants,
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Further, the testimony of the CPS investigators and the detective in<;licated that the
detective was driving an unmarked, white pickup truck with an unmarked, white
3
camper shell covering the bed of the truck. (R.R. Vol. 3, pgs. 50-51; 83-85;
Exhibit 42@ 3:49:30-3:50:35).
After arriving at the Appellant's apartment, Investigator Bushey testified
that she spoke with Appellant on the phone but the Appellant allegedly told the
investigator that she (Appellant) was at work and not at home. Bushey testified
that she believed that Appellant's vehicle was in the apartment parking area and
while standing at Appellant's porch the investigator believed she could hear
someone moving around inside the apartment. (R.R. Vol. 3, pgs. 17-21).
Bushey testified that when the Appellant said she was working m San
Antonio, Bushey called San Antonio Police Department to conduct a "welfare
check" of the business location where Appellant had allegedly indicated she was
working. During this time, Bushey testified that she and Appellant continued to
have phone contact and Bushey testified that she told Appellant the reason for the
visit including that Bushey possessed a court order for removal of the children in
Appellant's possession. Bushey estimated that this process · went on for
approximately one hour. (R.R. Vol. 3, pgs. 21-25). More importantly, during this
visual or verbal contact with Appellant. (R.R. Vol. 3, pgs. 52, 68, 85, 87, 109,
110).
4
At some point Bushey determined that she would contact the management of
the apartments to seek entry into Appellant's apartment. While both investigators
and the detective were speaking with the apartment maintenance man, Bushey
noticed a vehicle that she believed was Appellant's vehicle drive out of the
apartment complex. Unable to see whether any children were in the vehicle, the
investigators gave chase with the detective behind them. (R.R. Vol. 3, pgs. 27-34).
During this pursuit, Bushey described the route that Appellant drove, the estimated
speed of Appellant's vehicle and the alleged evasive action that Appellant took to
make aU-tum to drive back to her apartment. (R.R. Vol. 3, pgs. 29-38).
When Appellant re-entered the apmiment complex more police back-up was
present and after Appellant parked her vehicle, Bushey eventually approached
Appellant, who by now was in custody, and took pictures of Appellant's child who
was properly seat-belted in the back seat and visibly happy and healthy looking.
(R.R. Vol. 3, pgs. 62-65).
Det. Cantu testified that while the vehicle he was driving on this date had no
markings whatsoever to identify it as a law enforcement vehicle, it did have
eniergency lights in the grille and on the back of the camper shell. (R.R. Vol. 3,
pg. 84; Exhibit 42). And w·hiie Cantu testified that he wore his department issued
ID badge around his neck during this incident, he did not appear to have his ID
badge around his neck when he exited his vehicle to approach the Appellant when
5
she parked her vehicle upon return to the apartment complex. (Exhibit 42 @
3:50:40). Det. Cantu testified that as he followed the CPS investigators who were
following the Appellant's vehicle, he only came close enough to see Appellant in
her vehicle for a split second while she made a U-tum. He then he turned his
vehicle's emergency lights on as well as the vehicle siren, and he allegedly had his
ID badge around his neck. (R.R. Vol. 3, pg. 92). From that moment on Appellant
was driving back to the apartment complex with the detective behind her. Det.
Cantu testified that there was no speeding by Appellant going away from the
apartment complex or returning to the complex, nor any real evasive action by
Appellant. Nor could the detective see whether Appellant did or did not stop at a
stop sign after her U-turn and before entering the major roadway on the return to
the apartment complex. (R.R. Vol. 3, pgs. 113-118).
On cross-examination, the detective testified that police department policy in
effect at the time required that unmarked police vehicles should call in marked
units to make stops and arrests and that while he called in for a marked unit or
units to respond to this incident he was intent on making a stop of Appellant. (R.R.
VoL 3, pgs. 124-126). DeL Cantu further testified that upon the retun1 to the
apartment . complex another police department unit was present, although a
"stealth" unit" bearing markings that are not readily apparent or visible on first
glance. (R.R. Vol. 3, pg. 153). Cantu followed the Appellant's unit into the
6
parking lot with the "stealth" unit behind them. The "stealth" unit driver used his
in-car loudspeaker to order Appellant to stop which she did within seconds of that
order and when she was approached on the driver's side by Det. Cantu in plain
clothes, without his ID badge, and on the passenger side by the uniformed officer
she opened her vehicle doors in compliance with the uniformed officer's
commands. (Exhibit 42@ 3:50:50-3:51:14). In response to the first questions by
the officers as they took Appellant out of the vehicle, Appellant told them that she
did not know that the white truck or the person in it was a law enforcement or
peace officer. (R.R. Exhibit 42@ 3:52:47-51).
7
Issue #1: The evidence is legally insufficient to support the jury's
verdict that the Appellant was evading the arrest or
detention by a person she knew was a law enforcement officer
ARGUMENT AND AUTHORITIES
In challenging the legal sufficiency of the evidence to support a verdict of
guilty to an indicted offense, the appellate court will review the evidence in the
light most favorable to the verdict or finding of the jury to determine whether a
rational trier of fact could have found the essential elements of the charged offense
beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893
(Tex.Crim.App.2010); Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61
L. Ed. 2d 560 (1979).
Texas Penal Code Sec. 38.04. EVADING ARREST OR DETENTION
provides:
(a) A person commits an offense if he intentionally flees from a
person he knows is a peace officer or federal special
investigator attempting lawfully to arrest or detain him.
(b) An offense under this section is a Class A misdemeanor, except
that the offense is:
( 1) A state jail felony if:
8
(B) the actor uses a vehicle or watercraft while the actor is in
flight and the actor has not been previously convicted under
this section.
Texas Penal Code Sec. 1.07. DEFINITIONS provides:
In this code:
(36) "Peace officer" means a person elected, employed, or appointed as a
peace officer under Article 2.12, Code of Criminal Procedure, Section
51.212 or 51.214, Education Code, or other law.
Texas Code of Criminal Procedure Art. 2.12. WHO ARE PEACE OFFICERS,
provides in relevant pati as follows:
(3)marshals or police officers of an incorporated city, town, or village, and
those reserve municipal police officers who hold a permanent peace officer license
issued under Chapter 1701, Occupation Code.
A defendant's knowledge that a peace officer is trying to arrest or detain her
is an essential element of the offense of evading arrest. Rodriguez v. State, 779
S.W.2d 301, 302 (Tex.Crim.App. 1990); Hobyl v. State, 152 S.W.3d 624, 627
(Tex.App.-Houston [1st Dist] 2004), pet. disnt"d, irnprovidently granted, 193
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In this case the testimony is clear, direct, and uncontroverted that (1) prior to
the time that Appellant returned, in her vehicle, to her apartment complex and was
9
confronted by a uniformed police officer, she had never come into contact with
Det. Cantu; (2) Det. Cantu was in plain clothes and driving a completely
unmarked, white pickup truck with a completely unmarked, white camper shell;
and (3) despite Det. Cantu's testimony to the contrary, the video evidence indicates
that he was not wearing his police department issued ID badge around his neck
when he exited his truck at the apartment complex.
Furthermore, immediately after Appellant was taken from her vehicle by the
arresting officers her first "res gestae" comment to the officers was that she did not
know that the person in the white truck was a police officer.
Likewise, when a marked, though "stealth" police unit, followed Appellant
and Det. Cantu into the apartment complex parking area and commanded
Appellant to stop or pull over and indicated that it was a New Braunfels police
officer making the command, she did just that.
In Redwine v. State, 305 S.W. 360, (Tex.App.-Houston [141h Dist.] 2010,
pet. ref'd., Redwine was driving on a county road when he met a police car going
in the opposite direction. Because the officers believed that Redwine was driving
"too near the center of the undivided road", the officers tun1ed around to follow
hin1 but they did not activate their lights or siren. tv1r. Redwine ntade a vvritten
statement indicating that he wanted to avoid contact with the officers because he
had a suspended drivers license. The officers found Redwine's unoccupied vehicle
10
and after shouting "Sheriff', Mr. Redwine eventually walked out of a nearby forest
whereupon he was arrested for evading arrest. At trial Redwine was found guilty
of evading arrest or detention with a vehicle and he appealed that verdict on the
basis that the police made no show of authority until after he had already exited his
vehicle and therefore the evidence was legally insufficient to prove that he knew,
while in his vehicle, that police were attempting to arrest or detain him. The State
argued that Redwine's written statement about avoiding contact with the police
attested to his knowledge of the police pursuit.
The Redwine appeals court's analysis was that Redwine's statement that he
was trying to avoid contact with the police was not evidence that he was trying to
evade arrest. "The gravamen of the offense is the evasion of an arrest, not the
evasion of a police officer." Duvall v. State, 367 S.W.3d 509, (Tex.App.-
Texarkana 2012), pet. refd. 2012, citing Jackson v. State, 718 S.W.2d 724, 726
(Tex.Crim.App. 1986). The appeals court reasoned that the testimony regarding
the show of authority was akin to the evidentiary sufficiency standards for
identification testimony. The court wrote that courts have consistently held that an
uncertain in-court identification of an accused as the perpetrator of a crime,
standing alone, is insufficient to support a guilty verdict. In Redwine, one of the
officers' "hesitant and admittedly unsure testimony was the only evidence
suggesting that Redwine, while in his vehicle, failed to yield to a possible show of
II
authority by law enforcement. In the absence of other evidence, the Redwine
appeals court noted, the jury could not translate the police officer's uncertain
testimony into belief beyond a reasonable doubt. Redwine v. State, at 368.
In the instant case, Appellant contends that while the detective made what he
believed to be a show of authority by engaging the lights in the grille of his
unmarked vehicle and a siren, there was no clear, reasonable, or apparent
indication that the person doing these things was a peace officer intent on arresting
or detaining the Appellant. More to the point, the video evidence showing the
events at the precise time that Appellant parked her vehicle at the apartment
complex indicates that Det. Cantu's clothing and vehicle revealed a distinctly un-
police-like show of authority. Unlike Redwine where there was no use of lights
and siren but there was clear evidence that a marked police vehicle with uniformed
officers were part of the incident in question, here there was the use of lights and a
siren but no marked police vehicle nor uniformed peace officer to evidence the
show of authority referred to and relied upon in the Redwine analysis. For those
reasons it is entirely understandable that the Appellant did not recognize the white,
unmarked pickup lruck wilh lhe unmarked, white camper shell driven by a person
in a blue polo shirt with khaki pants as a peace officer and a police vehicle until
well after being taken into custody at the scene. Coupled with the fact that the car
directly behind and following the Appellant's vehicle from the apartment complex
12
was also unmarked and civilian looking and occupied by two females who in tum
are followed by the aforementioned white, unmarked pickup truck with the white,
unmarked camper shell driven by a civilian appearing person argues for the
conclusion that the Appellant did not know that a peace officer was involved in
this incident.
For the above stated reasons, Appellant requests this Court to find that the
evidence in this cause is legally insufficient to support the jury's verdict that the
Appellant was guilty of evading arrest or detention with a motor vehicle.
13
Issue #2: The evidence is legally insufficient to
support the jury's verdict that Appellant
is guilty of endangering a child by using a
vehicle to evade arrest while the child was
inside the vehicle.
ARGUMENT AND AUTHORITIES
Count III of the indictment in this cause alleged in relevant part as follows:
..... on or about the 1th day of March, 2011, KELLY KITA SHEFFIELD, hereinafter
styled Defendant, did then and there, intentionally, knowingly, recklessly, or with
criminal negligence, by act or omission, engage in conduct that placed Lexi Sheffield, a
child younger than 15 years, in imminent danger of death, bodily injury, or physical or
mental impairment, to-wit: using a vehicle to evade arrest while the said Lexi Sheffield
was inside the vehicle.
Texas Penal Code Sec. 22.041. ABANDONING OR ENDANGERING CHILD
provides:
© A person commits an offense if he intentionally, knowingly, recklessly, or with
criminal negligence, by act or omission, engages in conduct that places a child
younger than 15 years in imminent danger of death, bodily injury, or physical or
mental impairment.
To the penal code provision of22.041, the state's indictment added as an
essential elernent of its case that the Appellant con1111ited the alleged offense by evading
arrest with a vehicle while her child was in said vehicle.
In addressing this issue, Appellant relies on the arguments and authorities set out
under Issue No. 1 in this brieffor the proposition that she did not evade an arrest or
14
detention with a vehicle as well as the following arguments and authorities in support
of her position that the evidence is legally insufficient to support the jury's guilty
verdict on the count of the indictment alleging endangering a child.
Evidence is insufficient to uphold a conviction when the record contains no
evidence or merely a "modicum" of evidence, probative of an element of the offense.
Jackson v. Virginia, 443 U.S. at 320, 99 S. Ct. 2781 ("A 'modicum' of evidence
[cannot] by itself rationally support a conviction beyond a reasonable doubt.")
Sufficiency of the evidence should be measured by the elements of the offense as
defined by the hypothetically correct jury charge for the case. Malik v. State, 953
S.W.2d 234, 240 (Tex.Crim.App. 1997).
CPS Investigator Bushey testified that when she saw Appellant's child in the
vehicle after Appellant parked her vehicle in the apartment parking area, the child was
"ok and appropriately fastened in her car seat" and that the investigator had no
concerns for the child and there was no actual injury to the child. (R.R. Vol. 3, p. 42,
lis. 19-25; p. 43, I. 1; p. 62, lis. 5-7; p. 65, lis. 6-25; p. 67, lis. 17-25 and p. 67). In
addition, Det. Cantu testified that the Appellant was not speeding as he followed her on
the vv~ay back to the apartments, (R.R. Vol. 3, p. 113, lls. 4-14), though he did suggest
that Appellant was speeding when she drove away from the apartment's even as he
indicated that he was following the CPS investigators who were following the
Appellant and he could not state the speed of any of their vehicles. (R.R. Vol. 3, p.
15
113, I. 25; p. 114, lis. 1-15). Cantu also testified that Appellant drove according to
traffic conditions and not erratically. (R.R. Vol. 3, p.115). Thus, despite the efforts of
Bushey and Cantu to suggest that the Appellant's child was endangered by being in
Appellant's vehicle on that date, the objective evidence before the jury was that the
Appellant's child was not in imminent danger of death, bodily injury, or physical or
impairment as defined by our courts. Devine v. State, 786 S.W.2d 268, 270
(Tex.Crim.App.1989); Mil/slagle v. State, 81 S.W.3d 895, 898 (Tex.App.-Austin 2002,
pet. refd).
Based on the totality of the record developed at trial, Appellant urges that the
evidence is insufficient to support the jury's verdict that Appellant's actions on March
17, 2011 placed her child in imminent danger of death, bodily, or physical or mental
impairment by using a motor vehicle to evade arrest. Garcia v. State, 367 S.W.3d 683
(Tex.Crim.App. 2012).
For the foregoing reasons, Appellant urges and requests that this Court find that
the evidence in this cause is legally insufficient to support the jury's verdict that the
Appellant was guilty of endangering her child by evading an arrest with a vehicle as
16
Conclusion and Prayer
For all of the above stated reasons, Appellant urges and requests this Court to
find that the evidence is legally insufficient to support the jury's verdict finding the
Appellant guilty of the offenses of evading arrest or detention with a motor vehicle and
endangering a child.
WHEREFORE PREMISES CONSIDERED, Appellant prays that this Honorable
Court grant this appeal and reverse the jury verdict and render a judgment of acquittal
in this cause.
Respectfully submitted,
Jose 11 E. Garcia, III
. Seguin Avenue
New Braunfels, Texas 78130
TEL (830) 627-8868
FAX (830) 627-8683
Bar No. 07636725
joeg3 @sbcglobal.net
ATTORNEY FOR APPELLANT
Certificate of Service
I certify that on the 21st day of May, 2015, a true and cmrect copy of the above
served upon the Coma! County District i\.ttorney's Office by electronic delivery.
17
CERTIFICATE OF COMPLIANCE
I hereby certify that this document was prepared in MS Word and it does not exceed
the allowable length for an appellate brief pursuant to Tex. R. App. Pro. 9.4, as
amended and adopted on November 30,2012, by Order of the Texas Court of Criminal
Appeals.
18