Gonzalez, Alex ( 2015 )

PD-0741-15
PD-0741-15 COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 6/17/2015 3:06:42 PM
Accepted 6/19/2015 11:17:08 AM
ABEL ACOSTA
NO._____________________________________ CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
AUSTIN, TEXAS
NO. 01-14-00434-CR
IN THE COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS
AT HOUSTON
TRIAL COURT NO. 1368857
IN THE 339TH DISTRICT COURT
OF HARRIS COUNTY, TEXAS
ALEX GONZALEZ,
Appellant
VS.
THE STATE OF TEXAS,
Appellee
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
Nicole DeBorde
Texas Bar No. 00787344
JPMorgan Chase Bank Building
712 Main Street, Suite 2400
Houston, Texas 77002
(713) 228-8500
June 19, 2015 (713) 228-0034 fax
Email: Nicole@BSDLawFirm.com
Attorney for Appellant
Alex Gonzalez
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. PROC. 68.4(c), appellant requests oral argument.
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................................................................... 1
STATEMENT REGARDING ORAL ARGUMENT ............................................... 1
1INDEX OF AUTHORITIES.................................................................................... 2
IDENTITY OF PARTIES AND COUNSEL............................................................3
STATEMENT OF THE CASE .................................................................................. 5
STATEMENT OF PROCEDURAL HISTORY........................................................ 6
GROUND FOR REVIEW NUMBER ONE .............................................................. 7
Did the First Court of Appeals err by not construing the reach of the evading
arrest statute in order to decide whether the evidence presented in this case
actually establishes a violation of law?
ARGUMENT ............................................................................................................. 7
PRAYER FOR RELIEF ............................................................................................ 9
CERTIFICATE OF COMPLIANCE ....................................................................... 10
CERTIFICATE OF SERVICE ................................................................................ 11
APPENDIX ........................................................................................................... A-1
1
INDEX OF AUTHORITIES
CASES PAGE
Cary v. State, 05-13-01010-CR, -- S.W.3d --, 2015 WL 1346126, at *2 (Tex.
App.—Dallas Mar. 25, 2015, pet. filed)....................................................................8
Delay v. State, 443 S.W.3d 909, 912 (Tex. Crim. App. 2014)..............................7, 8
Gonzalez v. State, 01-14-00434-CR, 2015 WL 1825650, at *1 (Tex. App.—
Houston [1st Dist.] Apr. 21, 2015, no. pet. h.)......................................................6, 7
Shipp v. State, 331 S.W.3d 433 (Tex. Crim. App. 2011)..........................................7
Wright v. State, 201 S.W.3d 765 (Tex. Crim. App. 2006)....................................7, 8
STATUTES AND RULES
Tex. R. App. P. 66.3..............................................................................................7, 9
Tex. R. App. P. 68.4..................................................................................................3
2
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex. R. App. P. 68.4(a), a complete list of the names and all
interested parties is provided below.
Appellant: Alex Gonzalez
Garza West Unit
TDCJ No. 01932074
4250 Highway 202
Beeville, TX 78102
Presiding Judge: Hon. Leslie Brock Yates
Visiting Judge
339th District Court
1201 Franklin, 14th Floor
Houston, TX 77002
Trial Prosecutor: Adetayo Adeyiga
John Lewis
Assistant District Attorneys
Harris County District Attorney’s Office
1201 Franklin, 6th Floor
Houston, Texas 77002
Defense Counsel: Gary Polland
Attorney at Law
2211 Norfolk, Suite 920
Houston, Texas 77098
State’s Appellate Counsel: Hon. Devon Anderson
Harris County District Attorney
1201 Franklin
Houston, Texas 77002
Appellant’s Counsel: Nicole DeBorde
Bires, Schaffer & DeBorde
Attorney at Law
3
JPMorgan Chase Bank Building
712 Main Street, Suite 2400
Houston, Texas 77002
4
TO THE COURT OF CRIMINAL APPEALS:
STATEMENT OF THE CASE
On November 23, 2012, Deputy Laird, a Harris County patrol deputy, was
dispatched to investigate an assault at the Christus St. Catherine Hospital in Katy,
Texas. (3 R.R. 12). He was given suspect information and a vehicle description
that matched Appellant and notified two other deputies in the area that he would be
in route to the hospital. (3 R.R. 13). Deputy Luce made the scene and pulled
behind Appellant’s vehicle but did not immediately activate his vehicle’s sirens. (3
R.R. 26). At that point Deputy Laird pulled his gun out and pointed it directly at
Appellant’s vehicle while standing in the emergency room exit area of the hospital
parking lot. (3 R.R. 14). Appellant’s vehicle continued through the parking lot, in
what was characterized at trial as a low speed chase. After “a little over two
minutes” Appellant’s vehicle comes to a stop. (3 R.R. 28, State’s Exhibit 1). A
total of three Harris County Sheriff’s deputies were dispatched to the location
where the alleged crime was committed but only two testified at trial. The entire
incident was caught on video, which was admitted into evidence as State’s Exhibit
1.
5
STATEMENT OF PROCEDURAL HISTORY
Appellant was charged with evading arrest with a motor vehicle alleged to
have occurred on or about November 23, 2012. (C.R. 6). On December 10, 2012,
Appellant was indicted for the third degree offense of evading arrest with a motor
vehicle. (C.R. 13). The State alleged in the indictment that Appellant had been
twice before convicted of a felony offense for enhancement purposes. (C.R. 13).
Appellant was brought to trial before a jury on May 21, 2014, and entered a plea of
not guilty. (3 R.R. 4). The jury found Appellant guilty that same day. (3 R.R. at
51). The trial court found each enhancement paragraph true, as stipulated to by
Appellant, and assessed punishment at the minimum of twenty-five (25) years
confinement in the Texas Department of Criminal Justice – Correctional
Institutions Division. (4 R.R. 5; 7).
The First Court of Appeals affirmed the trial court’s judgment. Gonzalez v.
State, 01-14-00434-CR, 2015 WL 1825650, at *1 (Tex. App.—Houston [1st Dist.]
Apr. 21, 2015, no. pet. h.). No motion for rehearing was filed. Appellant now
petitions this Honorable Court for discretionary review. Appellant presents one (1)
ground for review before this Honorable Court.
6
APPELLANT’S FIRST GROUND FOR REVIEW
Did the First Court of Appeals err by not construing the reach of the evading
arrest statute in order to decide whether the evidence presented in this case
actually establishes a violation of law?
ARGUMENT
The First Court of Appeals erred by not construing the reach of the evading
arrest statute in order to decide whether the evidence presented in this case actually
establishes a violation of law such that review is warranted pursuant to Tex. R.
App. P. 66.3(b). Appellant complained on appeal the evidence was legally
insufficient to support his evading arrest conviction because, even when viewing
the evidence in the light most favorable to the conviction, it failed to actually
establish a violation of the law. Gonzalez v. State, 01-14-00434-CR, 2015 WL
1825650, at *1 (Tex. App.—Houston [1st Dist.] Apr. 21, 2015, no. pet. h.).
In Delay v. State, this Court explained, “ . . . sometimes appellate review of
legal sufficiency involves simply construing the reach of the applicable penal
provision in order to decide whether the evidence, even when viewed in the light
most favorable to conviction, actually establishes a violation of the law.” See
Delay, 443 S.W.3d 909, 912 (Tex. Crim. App. 2014)(citing Shipp v. State, 331
S.W.3d 433 (Tex. Crim. App. 2011) (plurality opinion); Wright v. State, 201
S.W.3d 765 (Tex. Crim. App. 2006)(emphasis added).
7
In Wright v. State, supra, this Court conducted an analysis to determine
whether it should go beyond the plain language of the statute at issue to determine
if the language, when applied to the facts of the case, produced an absurd result.
Wright, 201 S.W.3d at 769 (conducting an analysis, “because the court of appeals
failed to”, to determine whether including unusable, toxic liquids in the weight of a
controlled substance would lead to an absurd result). Appellant asserts it was
error for the First Court of Appeals to not conduct a similar analysis. In Cary v.
State, the Fifth Court of Appeals cited Delay, and explained “[b]ut sometimes, as in
this case, ‘appellate review of legal sufficiency involves simply construing the
reach of the applicable penal provision in order to decide whether the evidence
when viewed in the light most favorable to conviction, actually establishes a
violation of the law.’ ” Cary, 05-13-01010-CR, -- S.W.3d --, 2015 WL 1346126,
at *2 (Tex. App.—Dallas Mar. 25, 2015, pet. filed).
In this case, the crime Appellant was sentenced to 25 years in prison for was
an alleged low-speed chase, which lasted less than two-and-a-half minutes, and
covered a very short distance in a parking lot. Appellant asserts this is an absurd
result and one of those “sometimes” cases that should involve construing the reach
of the applicable penal provision in order to decide whether the evidence when
viewed in the light most favorable to conviction, actually establishes a violation of
the law. See Wright, 201 S.W.3d 769. However, there is no guidance as to what
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exactly “sometimes” means in any applicable decision of this Court or any
intermediate appellate court.
By not construing the reach of the evading arrest statute in order to decide
whether the evidence presented in this case actually establishes a violation of law,
the First Court of Appeals has decided an important question of state or federal law
that has not been, but should be, settled by this Court. Accordingly, review is
warranted pursuant to Tex. R. App. P. 66.3(b).
PRAYER FOR RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this
Honorable Court grant this Petition for Discretionary Review. Following the grant
of review, Appellant prays that the judgment of the Court of Appeals be reversed
and rendered, or reversed and a new trial ordered, or the case remanded for further
review.
Respectfully submitted,
/s/ Nicole DeBorde
Nicole DeBorde
BIRES SCHAFFER AND DEBORDE
Texar Bar No. 00787344
712 Main Street, Suite 2400
Houston, Texas 77002
(713) 228-8500 – Telephone
(713) 228-0034 – Facsimile
Email: Nicole@BSDLawFirm.com
Attorney for Appellant,
Alex Gonzalez
9
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 9 of the Texas Rules Appellate Procedure, the undersigned
counsel of record certifies that the Petition for Discretionary Review contains 1,580
words.
/s/ Nicole DeBorde
Nicole DeBorde
10
CERTIFICATE OF SERVICE
I hereby certify that a true copy of Appellant’s petition for discretionary
review has been either personally served upon or mailed by U.S. Postal Service
certified mail, return receipt requested, on June 17, 2015, to the following persons:
Devon Anderson
District Attorney
1201 Franklin, Suite 600
Houston, Texas 77002
State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711
Respectfully submitted,
/s/ Nicole DeBorde
Nicole DeBorde
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APPENDIX
A-1
Opinion issued April 21, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00434-CR
———————————
ALEX GONZALEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 339th District Court
Harris County, Texas
Trial Court Case No. 1368857
MEMORANDUM OPINION
A jury convicted appellant, Alex Gonzalez, of the third-degree felony
offense of evading arrest. 1 After appellant pleaded true to the allegations in two
1
See TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A) (Vernon Supp. 2014).
enhancement paragraphs, the trial court assessed punishment at twenty-five years’
confinement. In his sole issue, appellant contends that the State failed to present
sufficient evidence that he intentionally fled from a peace officer.
We affirm.
Background
On November 23, 2012, Harris County Sheriff’s Department Deputy J. Laird
received a dispatch reporting an assault and requesting that he meet with the
complainant at the Christus St. Catherine Hospital in Katy. After Deputy Laird
spoke with the complainant, appellant became a suspect in the assault. Deputy
Laird informed two other deputies working in the area that appellant would be
returning to the hospital, and he gave the deputies a description of appellant and his
vehicle.
Appellant returned to the hospital and began driving around the parking lot.
Deputy Laird testified that he stood by the entrance to the emergency room and
saw two other deputies in separate cars pull behind appellant in the parking lot.
Laird saw emergency lights flashing on both patrol cars. Appellant drove by
where Deputy Laird was standing; and Laird, who was in full uniform, drew his
firearm, in case appellant became violent, and shouted at appellant to stop.
Appellant then “accelerated and took off through the parking lot.” Deputy Laird
testified that the hospital’s parking lot was not busy at the time and that “[t]here
2
were plenty of places to stop.” After a brief chase lasting “less than five minutes,”
appellant eventually stopped in the parking lot, and the deputies arrested him.
Deputy B. Luce, one of the deputies involved in the chase, testified that
Deputy Laird gave him a description of appellant and appellant’s vehicle. Deputy
Luce stated that his patrol car contains a video recorder that begins recording when
he activates his car’s emergency lights. The trial court admitted a DVD recording
of Deputy Luce’s encounter with appellant. Deputy Luce activated his flashing
lights in an attempt to have appellant pull over so the officers could investigate the
assault allegations against him. Deputy Luce did not immediately activate his siren
because he wanted “to give [appellant] the benefit of the doubt,” but he eventually
did so when appellant failed to stop. Throughout the chase, which Deputy Luce
testified lasted a little over two minutes, appellant drove through “a few stop signs
and then the red light at the intersection.” Deputy Luce opined that appellant’s
failure to stop immediately was not an accident because he “had plenty of places to
stop” in the parking lot. Deputy Luce testified that appellant accelerated when
Deputy Laird drew his weapon and shouted at him to stop. Appellant finally
stopped his car when one of the three patrol units blocked the exit to the parking
lot and there was nowhere else for appellant to go.
On the DVD recording of the chase, the flashing lights from Deputy Luce’s
patrol car are visibly reflected on appellant’s rear license plate throughout the
3
incident. Deputy Luce turns on his siren approximately one minute into the chase,
which then lasts for approximately one more minute. The DVD recording shows
that appellant drove past Deputy Laird, who was in uniform and who had his
weapon drawn and was shouting at appellant to stop, drove over speed bumps and
through several stop signs within the parking lot, ran a red light to make a U-turn
back into the parking lot, and finally stopped his car when one of the deputies
blocked the exit to the parking lot. The recording corroborates Deputy Laird’s and
Deputy Luce’s testimony that the hospital’s parking lot was not crowded at the
time of the incident and that there were numerous empty parking spaces in which
appellant could have pulled over. The timestamp on the recording indicates that
the chase occurred at approximately 4:30 in the afternoon, and the recording also
reflects that it was still light outside and that, although it was cloudy, it was not
raining and visibility was good.
The jury convicted appellant of the offense of evading arrest. After
appellant pleaded true to the allegations in two enhancement paragraphs, the trial
court assessed his punishment at twenty-five years’ confinement. This appeal
followed.
Sufficiency of the Evidence
In his sole issue, appellant contends that the State failed to present sufficient
evidence that he intentionally fled from a peace officer.
4
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). The jurors are the exclusive judges of the facts and the weight to be
given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App.
2008). A jury, as the sole judge of credibility, may accept one version of the facts
and reject another, and it may reject any part of a witness’s testimony. See Sharp
v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson v.
State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)
(stating jury can choose to disbelieve witness even when witness’s testimony is
uncontradicted).
We may not re-evaluate the weight and credibility of the evidence or
substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the
jury’s credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.
Crim. App. 2008). We resolve any inconsistences in the evidence in favor of the
5
verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record
supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and therefore defer to that determination.”).
Circumstantial evidence is as probative as direct evidence in establishing guilt, and
circumstantial evidence alone can be sufficient to establish guilt. Sorrells v. State,
343 S.W.3d 152, 155 (Tex. Crim. App. 2011) (quoting Clayton, 235 S.W.3d at
778). “Each fact need not point directly and independently to the guilt of the
appellant, as long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007).
B. Evading Arrest
To establish that appellant committed the offense of evading arrest, as
charged in the indictment, the State had to prove that appellant intentionally fled
from Deputy Luce, whom appellant knew to be a peace officer, while Luce was
lawfully attempting to detain appellant and that appellant used a motor vehicle
while in flight. See TEX. PENAL CODE ANN. § 38.04(a) (Vernon Supp. 2014) (“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
6
him.”); Mims v. State, 434 S.W.3d 265, 269 (Tex. App.—Houston [1st Dist.] 2014,
no pet.).
“A person commits a crime under section 38.04 only if he knows that a
police officer is attempting to arrest him but nevertheless refuses to yield to a
police show of authority.” Thompson v. State, 426 S.W.3d 206, 209 (Tex. App.—
Houston [1st Dist.] 2012, pet. ref’d); Hobyl v. State, 152 S.W.3d 624, 627 (Tex.
App.—Houston [1st Dist.] 2004, pet. dism’d) (“An element of the offense of
evading arrest or detention is that the accused must know that the person from
whom he flees is a peace officer attempting to arrest or detain him.”) (emphasis in
original). Evidence that a police officer is asserting authority and attempting to
arrest or detain an individual includes use of emergency lights and sirens, pointing
to a driver to pull the vehicle over, and issuing verbal commands. Duvall v. State,
367 S.W.3d 509, 513 (Tex. App.—Texarkana 2012, pet. ref’d). “‘[F]leeing’ is
‘anything less than prompt compliance with an officer’s direction to stop,’ and
‘fleeing slowly is still fleeing.’” 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.), and Mayfield v. State, 219 S.W.3d 538, 541
(Tex. App.—Texarkana 2007, no pet.)); see also Baines v. State, 418 S.W.3d 663,
670 (Tex. App.—Texarkana 2010, pet. ref’d) (“The relevant inquiry is whether
there was an attempt to flee or delay the detention.”). Courts may consider speed,
7
distance, and duration of pursuit in determining whether a defendant intentionally
fled, but “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.); Mayfield, 219 S.W.3d at 541 (“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.”).
Here, Deputy Laird testified that he stood in front of the emergency entrance
to the hospital in full uniform, with his gun drawn, and yelled commands for
appellant to stop his vehicle. Appellant, however, drove past him and accelerated
away from him. The DVD recording from Deputy Luce’s vehicle depicts a low-
speed chase lasting over two minutes throughout the hospital parking lot. Deputy
Luce drove behind appellant for the entire chase, and his emergency lights—on
during the entire chase—were visibly reflected in appellant’s rear license plate.
Deputy Luce turned on his siren approximately one minute into the chase, and
appellant continued driving for another minute before finally coming to a stop after
another deputy blocked the exit to the parking lot. During the chase, appellant
drove over speed bumps, ignored stop signs, and drove through a red light to U-
turn back into the parking lot. The parking lot was not busy at the time of the
chase, and appellant passed numerous empty parking spaces into which he could
have turned and parked.
8
In arguing that the State failed to present sufficient evidence that he
intentionally fled from the officers, appellant points out that “the speed [of the
chase] was low, the distance was short, and the duration was less than two-and-a-
half minutes” and that appellant voluntarily stopped his vehicle once he saw the
third deputy block the exit to the parking lot, arguing that it was at that point in
time that he first became aware that the officers were attempting to detain him.
Although speed, distance, and duration are factors to consider, no particular speed,
distance, or duration is required to establish intent to flee. See Griego, 345 S.W.3d
at 751; Mayfield, 219 S.W.3d at 541 (stating that section 38.04 “does not require
high-speed fleeing, or even effectual fleeing”; instead, it only requires “an attempt
to get away from a known officer of the law”).
Although the chase here occurred at relatively low speeds throughout a
hospital parking lot and lasted for approximately two minutes, Deputy Luce
followed appellant in his patrol car with his emergency lights flashing—and with
his siren on for at least a minute—throughout the parking lot; and Deputy Laird, in
full uniform and with his weapon drawn, yelled at appellant to stop his vehicle.
Appellant disregarded these commands and proceeded to drive through the parking
lot, past stop signs, and through a red light without stopping for over two minutes,
even though the parking lot was not crowded and there were numerous empty
parking spaces into which appellant could have pulled. Appellant did not stop
9
until a third officer blocked the exit to the parking lot with his patrol car. 2 See
Lopez, 415 S.W.3d at 497 (“‘[F]leeing’ is ‘anything less than prompt compliance
with an officer’s direction to stop,’ and ‘fleeing slowly is still fleeing.’”). The
chase occurred in the afternoon, during daylight hours, and with good visibility
conditions.
Viewing the evidence in the light most favorable to the verdict, as we must,
we conclude that a reasonable jury could have found that appellant knew the
officers were attempting to detain him and that he intentionally fled from the
officers. We hold that the State presented sufficient evidence to support
appellant’s conviction for evading arrest.
We overrule appellant’s sole issue.
2
As further evidence that he did not intend to flee, appellant points to the fact that
he “shows his hands, by sticking them out of the vehicle, immediately before
turning and coming to a stop in the hospital parking lot, which shows that he was
now aware that the police were attempting to detain him.” Appellant’s complicity
with the officers’ commands once he finally stopped does not, however, negate his
conduct during the preceding two-minute chase, in which he ignored the officers’
attempts to stop his vehicle.
10
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).
11