Harry Donald Nicholson, Jr. v. State ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00360-CR
HARRY DONALD NICHOLSON, JR.,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 13th District Court
Navarro County, Texas
Trial Court No. D37996-CR
DISSENTING OPINION1
In this appeal, we are squarely confronted with the impact of a change in the
wording of a statute that has not yet been directly addressed by the Court of Criminal
Appeals. It is an issue that has been percolating in the Courts of Appeals and is now ripe
for review and decision by the Court of Criminal Appeals. The question is whether we
are going to apply existing precedent or rewrite the statute for the legislature. The Court
1
This dissenting opinion applies only to docket number 10-18-00360-CR and not to the companion case in
10-18-00359-CR.
does not purport to do either because it holds that the evidence is sufficient to support a
fact finder’s conclusion under either interpretation of the statute. I disagree.
The first issue in this case is fundamentally the same as the third issue; that is,
whether the elements of the offense, evading arrest, include that the State must prove the
defendant knew the attempted arrest or detention was lawful. The difference in the first
and third issues is that, in the third issue, even if there is sufficient evidence to show the
defendant knew the attempted arrest was lawful, there is egregious charge error because
the charge did not require the jury to make that determination and, thus, entirely omitted
an element of the offense. Under both issues, we must decide whether the State had to
prove that the defendant knew the attempted arrest or detention was lawful. If it is an
element of the offense and there is insufficient evidence, the result is an acquittal. That is
issue one. If it is an element of the offense and there is sufficient evidence to support it,
the result is a reversal and remand for a new trial with a proper charge. That is issue
three. I believe there is no evidence of an element of the offense under a proper
interpretation of the statute; thus, I would render a judgment of acquittal. Because the
Court does not, I respectfully dissent.
The Court has discussed most of the law that I would recite in interpreting the
current version of Texas Penal Code § 38.04(a). There is no need to repeat it in this
dissenting opinion. Moreover, the Court acknowledges that we review the evidence in
the context of a hypothetically correct jury charge which, even the State concedes, the
charge given in this proceeding was not correct. But the State concedes only that the
charge omitted the element that the defendant had to know that the peace officer was
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trying to arrest or detain him, Nicholson’s fourth issue, not that the charge omitted the
element that the defendant knew that the attempted arrest or detention was lawful,
Nicholson’s third issue.
So it seems obvious that we first must know the elements of the offense. The
offense is evading arrest or detention with a vehicle. The relevant provision of the Penal
Code provides:
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.
TEX. PENAL CODE ANN. § 38.04(a). The level of the offense is enhanced if the flight
involves the use of a motor vehicle. See id. (b).
The statute has been amended several times. But it is the most recent amendment
that is particularly relevant to our analysis and the one discussed by the Court in its
opinion. In particular, the Legislature moved what had been an exception to the offense
to be an element of the offense. Specifically, the Legislature moved the word “lawfully,”
in reference to the attempted arrest or detention, from an exception to the offense to an
element of the offense. But they did not just move it. The Legislature inserted it as an
element right between two other elements that had previously been held to require
knowledge by the defendant. See Jackson v. State 718 S.W.2d 724 (Tex. Crim. App. 1986).
The amendment inserted the word “lawfully” between the defendant’s required
knowledge that (1) the person was a peace officer and (2) the peace officer was attempting
to arrest or detain him.
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The question for interpretation is whether, under the current text of the statute,
the State must also prove that the defendant knows the reason for the attempted arrest or
detention was lawful. If we apply the analysis and holding from Jackson, we must hold
that after the amendment, the State now has to prove the defendant knew three things
while fleeing: 1) the pursuer is a peace officer; 2) the peace officer is attempting to arrest
or detain the defendant; and 3) the reason the peace officer is attempting to arrest or
detain is a lawful one. There is no other grammatically correct or logically consistent
interpretation so long as the statute has been and still is interpreted to mean that the
defendant must know: 1) that the pursuer is a peace officer and 2) that the peace officer
is trying to arrest or detain, as the Court of Criminal Appeals held in Jackson. The
Legislature simply added a third thing the State must prove the defendant knew.
For that reason, I am required to dissent to the Court’s holding and, based on the
binding precedent of Jackson, would hold that Nicholson is entitled to an acquittal
because there is insufficient evidence that he knew the reason the peace officer was trying
to arrest or detain him was lawful.
But I cannot stop there. If I am correct in the forgoing, we should look back to how
we got here. We should carefully examine Jackson. When doing so, I would submit that
the Court of Appeals in Lovington v. State, No. 07-16-00109-CR, 2016 Tex. App. LEXIS
18215, at **5-6 (Tex. App.—Amarillo, Dec. 3, 2016, no pet.) (mem. op.) (not designated for
publication), and those that have followed it and determined that the defendant’s
knowledge of the lawfulness of his arrest is an absurd result, had to ignore the holding
of Jackson. They did not dig deeply enough into the holding of Jackson. We may not agree
Nicholson v. Texas Page 4
with the Legislature, but requiring the defendant know the peace officer was attempting
a lawful arrest is certainly not absurd. It may be ill advised, and it may pose interesting
challenges in proof, but it is certainly not absurd or illogical.
But I must press on with examining the analysis of Jackson. Judge McCormick, in
his dissenting opinion in Jackson, explained the history of the statute and why the Court’s
holding was wrongly decided. It now appears to me that pushing the interpretation of
the statute out to where the Jackson majority would now take us, shows the correctness of
the arguments in Judge McCormick’s dissenting opinion.
As applied to the current argument, Judge McCormick would say that it is not that
the word “lawfully” was dropped in between two things that are otherwise a listing of
what the defendant must have knowledge: 1) peace officer, and 2) arrest or detain.
Rather, Judge McCormick would argue that the proper way to read the statute is that the
only thing the defendant must know, the knowledge requirement in the statute, is that
the person from whom flight is taken is a peace officer, notwithstanding that the State
must still prove as elements of the offense that the peace officer was attempting to arrest
or detain the defendant and that the reason for the attempted arrest or detention was
lawful. As Judge McCormick suggested, the inference should be, and, based on the
wording of the statute, it is, that to presume the peace officer was in pursuit for anything
other than a lawful arrest or detention would be absurd. Jackson v. State 718 S.W.2d 724,
728-730 (Tex. Crim. App. 1986) (McCormick, P.J., dissenting).
But as a mere justice on an intermediate appellate court, I am duty bound by the
holding and precedential stare decisis of Jackson. Thus, because I am only a ship and not
Nicholson v. Texas Page 5
a lighthouse, I cannot force the lighthouse to change its course. So I must yield to the
Court of Criminal Appeals’ holding in Jackson and would have to hold that the State must
prove Nicholson knew that the attempted arrest or detention by a peace officer was
lawful.2
Moreover, because there is insufficient evidence to prove beyond a reasonable
doubt that Nicholson knew the attempted arrest or detention was lawful, I would render
a judgment of acquittal. Because the Court reverses and remands for a new trial, I
respectfully dissent.
TOM GRAY
Chief Justice
Dissenting opinion issued and filed September 4, 2019
2
See https://en.wikipedia.org/wiki/Lighthouse_and_naval_vessel_urban_legend for a general
discussion of the concept of ship v. lighthouse and the recognition of why I must yield the right of way.
Nicholson v. Texas Page 6