Edward Houston v. State ( 2016 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00513-CR
Edward HOUSTON,
Appellant
v.
The STATE of Texas,
Appellee
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR7827
Honorable Kevin M. O’Connell, Judge Presiding
Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Marialyn Barnard, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: June 15, 2016
AFFIRMED
Edward Houston was convicted by a jury of evading arrest or detention in a motor vehicle.
On appeal, Houston contends: (1) the evidence is insufficient to support the jury’s finding that he
intentionally fled from a person he knew was a peace officer who was attempting to detain him;
and (2) the trial court erred in overruling his objection to the inclusion of a voluntary intoxication
instruction in the jury charge. We affirm the trial court’s judgment.
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BACKGROUND
The only witness who testified at trial was the arresting officer, Sergeant Frank Bellino.
Sergeant Bellino testified he was in uniform in a marked patrol car when dispatch received several
calls regarding a reckless, erratic driver of an 18-wheel tractor trailer. One caller stated the driver
went off the roadway.
Sergeant Bellino parked his car on the shoulder of the highway ahead of the location
reported by the callers. While he was parked, several drivers flashed their lights at him to get his
attention. One tractor trailer pulled in front of Sergeant Bellino, and the driver exited the vehicle
to point out the tractor trailer being driven erratically.
Sergeant Bellino observed the tractor trailer being driven in the fast lane of the two-lane
divided highway. The tractor trailer was traveling 30 to 45 miles per hour, and the speed limit was
65 or 70 miles per hour. As soon as Sergeant Bellino saw the vehicle, he activated his emergency
lights and merged into traffic. Sergeant Bellino observed the tractor trailer weaving to the left
across the rumble stripe, into the grass, and then back across to the slow lane of traffic. Although
the other drivers on the highway were staying behind Sergeant Bellino or moving out of his path,
the tractor trailer continued down the highway weaving between the shoulder of the highway and
the slow lane. Because the tractor trailer showed no signs of stopping, Sergeant Bellino also
activated his siren a few minutes after he activated his emergency lights and maneuvered his patrol
car to a location where he could see the outside mirror of the tractor trailer. Sergeant Bellino stated
the driver of the tractor trailer would have to see his lights in the mirror. Once Sergeant Bellino
activated his siren, all the other vehicles moved off the highway.
Upon reaching an exit, the tractor trailer exited and slowed considerably. Another driver
that was exiting pulled his car into the grass to avoid being struck. The access road was a two-
way road, and the tractor trailer was driving in the wrong lane into oncoming traffic. The tractor
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trailer stopped before a four-way stop sign at the intersection of the access road and the cross street,
and Sergeant Bellino exited his patrol car to make contact with the driver. After Sergeant Bellino
exited his patrol car, the tractor trailer driver drove off through the four-way stop without braking
and reentered the highway.
After the tractor trailer reentered the highway, the tractor trailer continued traveling
between 40 to 45 miles per hour and continued weaving from the shoulder to the slow lane of
traffic. Sergeant Bellino continued to maneuver his patrol car with its lights and siren activated to
ensure the driver of the tractor trailer saw him while the other vehicles on the highway pulled over
in response to the lights and siren. At the next exit, the tractor trailer veered right at the last possible
second and exited, hitting a concrete median. The tractor trailer appeared to be preparing to stop,
so Sergeant Bellino put his patrol car in park and waited. After a brief time, the tractor trailer
again accelerated, went through the intersection of the access road and the cross street, and
reentered the highway.
After reentering the highway for the third time, the tractor trailer was again traveling at the
same speed while weaving in and out of the lane. At the next exit, the tractor trailer again exited
and came to a stop by a truck stop. As Sergeant Bellino approached the cab of the tractor trailer,
the driver threw open the door. Sergeant Bellino drew his weapon because the driver was bug-
eyed, sweating, and looked agitated. The driver’s pants were unbuttoned, he did not have on any
shoes, and had on only one sock. Sergeant Bellino believed the driver was on some type of drugs
and ordered him to the ground.
Once Sergeant Bellino had the driver prone on the ground, the driver started hysterically
laughing. Another officer arrived on the scene and arrested the driver, later identified to be
Houston, for DWI. Sergeant Bellino estimated he followed Houston for four to five miles and for
approximately 15 to 20 minutes. Sergeant Bellino stated his emergency lights and siren remained
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activated until Houston finally stopped the third time, and every other driver on the highway was
reacting to the emergency lights and siren by pulling off the roadway. Sergeant Bellino further
testified he never previously had a problem pulling over a tractor trailer.
On cross-examination, although Sergeant Bellino could not positively state Houston saw
his emergency lights, Sergeant Bellino believed Houston saw the lights. When asked whether
Houston’s tractor trailer might have been so noisy Houston did not hear the siren or whether
Houston may have believed Sergeant Bellino was attempting to stop another vehicle, Sergeant
Bellino responded “[a]nything is possible.”
After hearing the evidence, the jury convicted Houston of evading arrest or detention in a
motor vehicle. Houston elected for the trial court to assess his sentence, and the trial court
sentenced Houston to four years’ imprisonment and a $1,500 fine. Houston appeals.
SUFFICIENCY OF THE EVIDENCE
In his first issue, Houston asserts the evidence is legally insufficient to support the jury’s
finding that Houston knew Sergeant Bellino was a peace officer who was attempting to arrest or
detain him. Houston contends he did not know he was being pursued until he exited the highway
the third time. Houston also contends a tractor trailer would never attempt to evade detention or
arrest on a congested highway because “a large truck at that location could hardly get lost in the
crowd.” Houston further notes he never drove faster than 45 miles per hour which is not consistent
with evasion. Houston concludes the logical inference from the evidence was that he did not see
or hear Sergeant Bellino’s patrol car until he exited the highway the third time.
In evaluating the legal sufficiency of the evidence, we consider the evidence in the light
most favorable to the verdict and determine whether, based on the 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);
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Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). Under this standard, we defer to
the jury’s weighing of the evidence and its assessment of credibility. Winfrey v. State, 393 S.W.3d
763, 768 (Tex. Crim. App. 2013). We also defer to the jury’s ability to “‘draw reasonable
inferences from basic facts to ultimate facts.’” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.
App. 2007) (quoting Jackson, 443 U.S. at 318-19). In drawing inferences from the evidence, the
jury “may use common sense and apply common knowledge, observation, and experience.”
Alexander v. State, 229 S.W.3d 731, 740 (Tex. App.—San Antonio 2007, pet. ref’d) (citing Duren
v. State, 87 S.W.3d 719, 724 (Tex. App.—Texarkana 2002, pet. stricken)).
A person commits the offense of evading arrest or detention if he intentionally flees from
a person he knows is a peace officer attempting lawfully to arrest or detain him. TEX. PENAL CODE
ANN. § 38.04(a) (West Supp. 2015). Fleeing is “‘anything less than prompt compliance with an
officer’s direction to stop.’” Lopez v. State, 415 S.W.3d 495, 497 (Tex. App.—San Antonio 2013,
no pet.) (quoting Horne v. State, 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no pet.)).
Although speed, distance, and duration of pursuit are factors in determining whether a defendant
intentionally fled, “no particular speed, distance, or duration is required to show the requisite intent
if other evidence establishes such intent.” Griego v. State, 345 S.W.3d 742, 751 (Tex. App.—
Amarillo 2011, no pet.); see also Mayfield v. State, 219 S.W.3d 538, 541 (Tex. App.—Texarkana
2007, no pet.). “The statute does not require high-speed fleeing, or even effectual fleeing. It
requires only an attempt to get away from a known officer of the law.” Mayfield, 219 S.W.3d at
541. “‘[F]leeing slowly is still fleeing.’” Lopez, 415 S.W.3d at 497 (quoting Horne, 228 S.W.3d
at 446).
In this case, the evidence established Sergeant Bellino followed Houston for four to five
miles with his patrol car’s lights and siren activated. All of the other vehicles on the highway
responded to the lights and siren except Houston, and Sergeant Bellino had never previously
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encountered a driver of a tractor trailer being unable to see his patrol car’s lights or hear its siren.
At the first exit, Houston exited the highway and slowed to a stop but then accelerated and
reentered the highway after Sergeant Bellino exited his patrol car. Although Houston suggests he
would not attempt to evade detention or arrest in a tractor trailer because he “could hardly get lost
in the crowd,” the statute does not require effectual fleeing. Mayfield, 219 S.W.3d at 541.
Furthermore, although Houston asserts his speed was not consistent with evasion, “‘fleeing slowly
is still fleeing.’” Lopez, 415 S.W.3d at 497 (quoting Horne, 228 S.W.3d at 446). Accordingly,
we hold a jury could rationally infer from the evidence presented that Houston was intentionally
fleeing from Sergeant Bellino because Houston knew Sergeant Bellino was a peace officer who
was attempting to lawfully arrest or detain him. Therefore, the evidence is legally sufficient to
support Houston’s conviction, and Houston’s first issue is overruled.
VOLUNTARY INTOXICATION INSTRUCTION
In his second issue, Houston contends the trial court erred in overruling his objection to the
inclusion of a voluntary intoxication instruction in the jury charge. Houston contends the only
evidence that he was intoxicated is mere speculation, and no evidence would have led the jury to
find “the speculated intoxication in any way excused [his] actions.” Houston argues his defense
was that he did not know he was being pursued, “not that he was intoxicated and the intoxication
excused him from the law.”
“Appellate review of claims of jury-charge error first involves a determination of whether
the charge was erroneous and, if it was, then second, an appellate court conducts a harm analysis,
with the standard of review for harm being dependent on whether error was preserved for appeal.”
Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). A trial court is required to deliver
to the jury “a written charge distinctly setting forth the law applicable to the case.” TEX. CODE
CRIM. PROC. ANN. art. 36.14 (West 2007). “The function of a jury charge is not merely to avoid
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misleading or confusing the jury, but to lead and to prevent confusion.” Sakil v. State, 287 S.W.3d
23, 26 (Tex. Crim. App. 2009) (internal citations omitted).
Section 8.04(a) of the Texas Penal Code provides “[v]oluntary intoxication does not
constitute a defense to the commission of a crime.” TEX. PENAL CODE ANN. § 8.04(a) (West 2011).
Consistent with section 8.04(a), the jury in this case was instructed as follows:
You are instructed that under our law, voluntary intoxication does not
constitute a defense to the commission of a crime. For the purpose of this law,
intoxication means a disturbance of mental or physical capacity resulting from the
voluntary introduction of any substance into the body.
A defendant need not rely upon intoxication as a defense before the trial court may instruct
the jury regarding voluntary intoxication. Taylor v. State, 885 S.W.2d 154, 158 (Tex. Crim. App.
1994); Huerta v. State, 933 S.W.2d 648, 650 (Tex. App.—San Antonio 1996, no pet.). Instead, an
instruction on voluntary intoxication “is appropriate if there is evidence from any source that might
lead a jury to conclude that the defendant’s intoxication somehow excused his actions.” Sakil, 287
S.W.3d at 26. Furthermore, the evidence need not unequivocally establish the defendant was
intoxicated before such an instruction is proper. Id. at 27. An instruction is proper when there is
“sufficient evidence from which a juror could conclude that intoxication somehow excused [the
defendant’s] actions.” Id.
In the instant case, Sergeant Bellino testified he believed Houston was on some type of
drug based on his appearance and behavior upon exiting the tractor trailer. Furthermore, Sergeant
Bellino stated Houston was arrested for DWI after another officer conducted field sobriety tests.
This evidence could have led a jury to conclude Houston’s drug use or intoxication somehow
excused his actions. See id. Therefore, the trial court did not err in overruling Houston’s objection
and including the voluntary intoxication instruction in the charge. See Taylor, 885 S.W.2d at 158;
Huerta, 933 S.W.2d at 650. Houston’s second issue is overruled.
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CONCLUSION
The judgment of the trial court is affirmed.
Sandee Bryan Marion, Chief Justice
DO NOT PUBLISH
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