Donald Ray Redmond Jr. v. State ( 2019 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-18-00330-CR
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DONALD RAY REDMOND JR., Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the County Court at Law
Liberty County, Texas
Trial Cause No. 105756
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MEMORANDUM OPINION
A jury convicted appellant Donald Ray Redmond Jr. of evading arrest or
detention as a prior felony offender and assessed punishment at three hundred sixty-
five days of confinement in the county jail and a $4000 fine. In two appellate issues,
Redmond contends that the trial court erred by denying his motion for directed
verdict and argues that trial counsel provided ineffective assistance. We affirm the
trial court’s judgment.
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BACKGROUND
Redmond was charged with intentionally fleeing from “Officer Walter,” a
person Redmond knew was a peace officer who was attempting lawfully to arrest or
detain him. At trial, Randall Walter testified that he is a patrol officer with the
Liberty Police Department. Walter testified that while he was patrolling in a marked
patrol unit on November 6, 2017, he received a call from dispatch regarding a vehicle
that was suspected to contain narcotics. Walter found a vehicle that matched the
description provided by dispatch, and he began to monitor the vehicle. According to
Walter, before the camera in his vehicle clicked on, he saw “the vehicle merge all
the way to the right and cross over the center line[,]” and he testified that failure to
maintain a single lane constitutes a traffic offense. Walter testified that he saw
Redmond’s sedan pass the designated stopping point or intersection, which is also a
traffic offense, and Walter initiated a traffic stop.
Walter testified that when he pulled Redmond over, Redmond was alone in
the vehicle. Walter explained that when Redmond got out of the vehicle, he had a
small dog, and Redmond picked the dog up and held onto it. According to Walter,
Redmond had a metal Yeti cup with a lid in his other hand. During trial, Walter
identified Redmond as the driver of the vehicle. Walter directed Redmond to the
back of the car and noted that Walter’s “body actions were indicating nervousness.”
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Walter explained that Redmond eventually gave him the Yeti cup, and Walter could
see a dark object on top of yellow liquid inside the cup, so he opened the cup and
saw what he believed to be “several different types of narcotics[.]” Walter testified
that Redmond “spiked the dog on the ground and took off running.” Walter and
another officer followed Redmond and eventually arrested him. The video from the
traffic stop was admitted into evidence and published to the jury. Walter explained
that the video shows that Redmond stopped past the designated stop line.
Defense counsel lodged an oral motion to suppress, asserting that there was
no legal basis for the warrantless stop. The State argued that Officer Walter testified
that he saw Redmond commit traffic violations. The trial judge denied the motion to
suppress. Defense counsel did not object to the proposed guilt-innocence charge.
The jury convicted Redmond of evading arrest or detention and assessed punishment
at three hundred sixty-five days of confinement in the county jail and a $4000 fine,
and the trial judge pronounced sentence in accordance with the jury’s verdict.
ISSUE ONE
In issue one, Redmond contends that the trial court erred by denying his
motion for directed verdict. Specifically, Redmond argues that the State “failed to
prove the identity of the law enforcement officer as specifically alleged on the face
of the charging instrument[.]” Redmond argues that the evidence was legally
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insufficient because there was a variance between the allegations in the indictment
and the proof at trial. According to Redmond, “[t]he State does not name Randall
Walter in the charging instrument, and it was never amended,” and “the record does
not clarify or explain . . . that in fact Officer Walter and the witness Randall Walter
are the same person.” According to Redmond, the State must prove the identity of
the specific law enforcement officer who was lawfully discharging his duties when
Redmond fled. Redmond further asserts that “[w]hat is at issue is whether the
deficiently drafted charging instrument would subject appellant to the risk of being
prosecuted later for the same crime.” Redmond maintains that there is “zero
evidence of Officer Walter lawfully attempting to detain the appellant.”
“We treat a point of error complaining about a trial court’s failure to grant a
motion for directed verdict as a challenge to the legal sufficiency of the evidence.”
Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim. App. 1996). Under a legal
sufficiency standard, we assess all the evidence in the light most favorable to the
prosecution to determine whether any rational trier of fact could find the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
319 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give
deference to the jury’s responsibility to fairly resolve conflicting testimony, to weigh
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the evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Hooper, 214 S.W.3d at 13.
A person commits the offense of evading arrest “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). Randall Walker testified that he is a patrol officer
with the Liberty Police Department, and that he was driving a marked patrol unit
when he stopped Redmond’s vehicle. The video of the stop showed that Walker was
in uniform. Walker explained that when Redmond gave him the Yeti cup and Walker
saw that it contained narcotics, Redmond fled and was eventually arrested when
Walker and another officer pursued him.
Viewing the evidence in the light most favorable to the prosecution, we
conclude that a rational jury could have found Redmond guilty of evading arrest
beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Hooper, 214 S.W.3d at
13. In addition, the allegation in the charging instrument that Redmond fled from
“Officer Walker” was not a variance; rather, it merely involves a missing allegation.
See Grant v. State, 970 S.W.2d 22, 22-23 (Tex. Crim. App. 1998). The charging
instrument merely omitted Walker’s first name, and Redmond waived this defect by
failing to object to it at trial. See id. at 23 (holding that “officer” as stated in the
charging instrument was clearly the officer’s title rather than his first name, the
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omission of the officer’s first name from the charging instrument was not a variance,
and appellant waived the defect by failing to object at trial). We conclude that the
evidence was legally sufficient to support the verdict. Therefore, the trial judge did
not err by overruling Redmond’s motion for directed verdict. Accordingly, we
overrule issue one.
ISSUE TWO
In issue two, Redmond argues that trial counsel’s failure to request a jury
instruction pursuant to article 38.23 of the Texas Code of Criminal Procedure, object
to the charge, and call any witnesses constituted ineffective assistance. See Tex.
Code Crim. Proc. Ann. art. 38.23 (providing that evidence obtained in violation of
the U.S. or Texas Constitution is inadmissible).
To establish ineffective assistance, Redmond must satisfy the following test:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the defendant
by the Sixth Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires showing
that counsel’s errors were so serious as to deprive the defendant of a
fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984); see Perez v. State, 310 S.W.3d
890, 892-93 (Tex. Crim. App. 2010). “Any allegation of ineffectiveness must be
firmly founded in the record, and the record must affirmatively demonstrate the
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alleged ineffectiveness.” Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App.
1999). “Appellate review of defense counsel’s representation is highly deferential
and presumes that counsel’s actions fell within the wide range of reasonable and
professional assistance.” Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).
“Under normal circumstances, the record on direct appeal will not be sufficient to
show that counsel’s representation was so deficient and so lacking in tactical or
strategic decisionmaking as to overcome the presumption that counsel’s conduct was
reasonable and professional.” Id.
The record does not indicate that Redmond filed a motion for new trial to
allege ineffective assistance. The record is silent as to trial counsel’s strategies and
tactics. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App. 2010).
Moreover, Redmond cannot demonstrate that, but for counsel’s alleged errors, the
outcome of his trial would have been different. See Graves v. State, 310 S.W.3d 924,
929 (Tex. App.—Beaumont 2010, pet. ref’d). Nor is this a case in which trial
counsel’s ineffectiveness is apparent from the record. See Freeman v. State, 125
S.W.3d 505, 507 (Tex. Crim. App. 2003). Under these circumstances, Redmond
cannot defeat the strong presumption of reasonable professional assistance. See
Thompson, 9 S.W.3d at 814. We overrule issue two. Having overruled both of
Redmond’s issues, we affirm the trial court’s judgment.
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AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on October 2, 2019
Opinion Delivered October 30, 2019
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
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