Brian Thomas Green v. State ( 2005 )

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00101-CR

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BRIAN THOMAS GREEN, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 115th Judicial District Court

Marion County, Texas

Trial Court No. 13,168

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            The Marion County deputies' vehicle in Brian Thomas Green's rearview mirror had its emergency lights flashing and its siren sounding, as Green dramatically accelerated the Harley-Davidson motorcycle away from them, reaching a top speed of sixty to eighty miles per hour in a distance of approximately three-tenths of a mile before crashing into the rear of a slower-moving motor home. After the seriously injured Green was discharged from the hospital, he was tried to a jury for felony evading arrest. On appeal, Green contends the evidence is legally and factually insufficient to support his conviction because the evidence does not establish that he knew law enforcement personnel were pursuing him to arrest or detain him or that he made a decision to flee from them. We disagree.

            In reviewing the legal sufficiency of the evidence, we view the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). In reviewing the factual sufficiency of the evidence, we are required to determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

            The evidence came entirely from three witnesses, Marion County Sheriff's Deputies Kathy Wall and Frank Cason, and a private citizen, Douglas Wall. Deputies Wall and Cason were in the sheriff's vehicle that pursued Green on this occasion. Mr. Wall was driving his motor home when it was hit from the rear by the motorcycle. Mr. Wall is not related to Deputy Wall.

            Deputy Wall testified that she and Cason saw a motorcycle, with two passengers, run a stop sign, that the officers began pursuing the motorcycle, and that it increased in speed dramatically and quickly  when  the  officers  began  their  pursuit.  The  motorcycle  very  soon  crashed  into  the rear of Mr. Wall's slower-moving motor home, knocking Green, the motorcycle driver, unconscious. The passenger on the motorcycle was later identified as William Shane Drayer, who gave officers the false name of "Erickson" at the scene. Green was already accelerating the motorcycle, as he "ran" the stop sign, accelerating immediately after making the turn past the stop sign. The deputies activated their vehicle's emergency lights in "just a few seconds." From the turn past the stop sign to the point of impact with the motor home was about three-tenths of a mile. At sixty miles per hour, a vehicle would cover that distance in approximately twenty seconds. The motorcycle was going approximately sixty miles per hour on at least a portion of the road, which has a thirty-mile-per-hour speed limit. The motorcycle was approximately two car lengths in front of the deputies' vehicle when Cason activated its lights and siren. After Cason turned on the emergency lights, the motorcycle's speed increased dramatically.

            Deputy Cason testified that, as Green's motorcycle approached the main roadway, at which there was a stop sign, Green failed to properly signal a turn and ran the stop sign. In response, Cason activated his emergency lights, and Green sped up as a result. Green's motorcycle got up to "at least eighty" miles per hour during the course of the brief chase. It appeared to Cason that the motorcycle was essentially accelerating as fast as it could. As the deputies' vehicle turned the corner and its siren was activated, their vehicle was approximately two to three car lengths behind the motorcycle. In the approximately three-tenths of a mile before the motorcycle crashed into the motor home, Green had widened the gap between the motorcycle and the deputies' vehicle "quite a bit," and the deputies would not likely have caught Green but for the crash. There was no indication Green was trying to evade the deputies before passing the stop sign and emerging onto the main road. In rapid succession, Cason first activated the emergency lights, made a quick call to his dispatcher for a license plate check, and finally activated the vehicle's siren. By that time, the motorcycle was accelerating quickly. Cason acknowledged that the motorcycle, a Harley-Davidson, was "pretty noisy." He believes the siren was probably louder than the engine noise from the motorcycle, though it is possible Green may not have been able to hear the siren. After the accident, Cason learned that Green had outstanding warrants against him and that the motorcycle had been reported stolen.

            Mr. Wall testified that he was driving his motor home when Green's motorcycle crashed into it. Before the motorcycle crashed into the rear of the motor home, Mr. Wall heard the deputies' siren and looked in his rearview mirror, seeing the emergency lights. The motorcycle's impact with the motor home knocked it forward approximately twenty-five to thirty feet, suggesting the motorcycle was traveling fairly fast at impact. After the crash, Wall exited his vehicle and noticed that the deputies' vehicle was still coming toward him with its emergency lights and siren still operating. Mr. Wall noticed that the officers' vehicle was approximately 200 yards back.

            While there is some evidence raising the possibility that Green might not have noticed the emergency lights or heard the siren of the deputies' vehicle, there is ample evidence available to the jury that both the lights and siren were readily discernible and that, in response to the movements of, and lights and sounds coming from, the deputies' vehicle, Green dramatically accelerated the motorcycle he was operating to attempt to evade arrest or detention by the deputies.

            Criminal intent may be inferred from circumstantial evidence. Bustamante v. State, 106 S.W.3d 738, 740–41 (Tex. Crim. App. 2003); Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996).

            The evidence is legally and factually sufficient to allow the jury to conclude the State proved Green evaded arrest as charged. We overrule his contentions of error.

            We affirm the judgment.

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          December 9, 2005

Date Decided:             December 12, 2005

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