Homer David Holloman v. State ( 2011 )


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  •                     In The
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    ______________________________
    No. 06-10-00113-CR
    ______________________________
    HOMER DAVID HOLLOMAN, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 5th Judicial District Court
    Cass County, Texas
    Trial Court No. 2009-F-00266
    Before Morriss, C.J., Carter and Moseley, JJ.
    Memorandum Opinion by Justice Moseley
    MEMORANDUM OPINION
    Homer David Holloman was convicted by a jury of evading arrest or detention with a
    vehicle. On appeal, Holloman alleges that the trial court‘s failure to include the offense of fleeing
    or attempting to elude a police officer as a lesser-included offense of evading detention by use of a
    motor vehicle constituted reversible error. He also argues that the trial court‘s judgment was not
    supported by legally sufficient evidence.1 We affirm the trial court‘s judgment as modified.
    I.         Holloman Was Not Entitled to a Lesser-Included Offense Instruction
    In his first point of error, Holloman argues that the trial court erred in overruling his
    objection that fleeing or attempting to elude a police officer 2 (―fleeing‖) should have been
    included in the jury charge as a lesser-included offense of evading detention by use of a motor
    vehicle (―evading‖).3 The Texas Court of Criminal Appeals has spoken on this very claim in
    Farrakhan v. State, where the court held that the crime of fleeing was not a lesser-included offense
    1
    Holloman also complains the evidence was factually insufficient to support his conviction. We have previously
    explained that in Brooks v. State, 
    323 S.W.3d 893
    , 894–95, 912–13 (Tex. Crim. App. 2010) (Cochran, J., concurring),
    a plurality of the Texas Court of Criminal Appeals abolished the factual sufficiency review
    established by Clewis v. State, 
    922 S.W.2d 126
    (Tex. Crim. App. 1996), and its progeny. The
    plurality and the concurring judges agreed that the Jackson v. Virginia, 
    443 U.S. 307
    (1979), legal
    sufficiency standard is the sole standard that a reviewing court should apply in determining whether
    the evidence is sufficient to support each element of a criminal offense that the State is required to
    prove beyond a reasonable doubt. 
    Brooks, 323 S.W.3d at 894
    –95, 912–13. Since the Texas Court
    of Criminal Appeals has abolished factual sufficiency review, we need not address [appellant‘s]
    challenge to the factual sufficiency of the evidence.
    Louis v. State, 
    329 S.W.3d 260
    , 267 n.5 (Tex. App.––Texarkana 2010, no pet.).
    2
    TEX. TRANSP. CODE ANN. § 545.421 (Vernon Supp. 2010).
    3
    TEX. PENAL CODE ANN. § 38.04 (Vernon Supp. 2010).
    2
    of evading. 
    247 S.W.3d 720
    , 724 (Tex. Crim. App. 2008); see McKithan v. State, 
    324 S.W.3d 582
    , 593 (Tex. Crim. App. 2010) (―In Farrakhan, we approved of the court of appeals‘s decision
    that the ‗fleeing‘ offense was not a lesser-included offense of the charged ‗evading‘ offense even
    though proof of the charged ‗evading‘ offense may also have shown the ‗fleeing‘ offense. . . .
    These were not lesser-included offenses of the charged offenses . . . because the State was not
    required to prove these offenses in establishing the charged offenses, even though the State‘s
    evidence may have shown them.‖).
    Utilizing the reasoning employed by our sister court in Farrakhan v. State, which the
    Texas Court of Criminal Appeals has upheld, we likewise conclude that Holloman was not entitled
    to an instruction on fleeing since it is not a lesser-included offense of evading. 
    263 S.W.3d 124
    ,
    143–44 (Tex. App.—Houston [1st Dist.] 2006), aff’d, 
    247 S.W.3d 720
    (Tex. Crim. App. 2008).
    Holloman‘s first point of error is overruled.
    II.    Legally Sufficient Evidence Supported the Trial Court’s Judgment
    A.      Standard of Review
    In evaluating legal sufficiency, we review all the evidence in the light most favorable to the
    verdict to determine whether any rational jury could have found the essential elements of evading
    arrest or detention with a vehicle beyond a reasonable doubt. 
    Brooks, 323 S.W.3d at 912
    (citing
    
    Jackson, 443 U.S. at 319
    ); Hartsfield v. State, 
    305 S.W.3d 859
    , 863 (Tex. App.—Texarkana 2010,
    pet. ref‘d) (citing Clayton v. State, 
    235 S.W.3d 772
    , 778 (Tex. Crim. App. 2007)). Our rigorous
    3
    legal sufficiency review focuses on the quality of the evidence presented. 
    Brooks, 323 S.W.3d at 917
    (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks
    opinion, while giving deference to the responsibility of the jury ―to fairly resolve conflicts in
    testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
    facts.‖ Hooper v. State, 
    214 S.W.3d 9
    , 13 (Tex. Crim. App. 2007) (citing 
    Jackson, 443 U.S. at 318
    –19).
    Legal sufficiency of the evidence is measured by the elements of the offense as defined by
    a hypothetically-correct jury charge. Malik v. State, 
    953 S.W.2d 234
    , 240 (Tex. Crim. App.
    1997); see also Grotti v. State, 
    273 S.W.3d 273
    , 280 (Tex. Crim. App. 2008); Vega v. State, 
    267 S.W.3d 912
    , 916 (Tex. Crim. App. 2008). ―A person commits an offense 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). Evading arrest or detention is a state-jail felony if ―the actor uses a
    vehicle while the actor is in flight.‖ TEX. PENAL CODE ANN. § 38.04(b)(1)(B). Thus, the
    hypothetically-correct jury charge required the State to prove that (1) Holloman; (2) intentionally
    or knowingly; (3) fled from a person he knew was a peace officer; (4) who was attempting to
    lawfully detain or arrest him.
    B.      The Sufficient Evidence
    Uniformed officers Eric White and Shane Lawrence were travelling in a marked patrol car
    when they passed Holloman‘s Dodge Diplomat on the road. White noticed Holloman was not
    4
    wearing his seat belt, and his license plate and registration were expired. Lawrence testified that
    White ―reached down and turned his lights on and as soon as he turned his lights on I told him, I
    said, Corporal, I believe he‘s trying to run. [Holloman] accelerated. You could hear his motor,
    the acceleration in the motor as he took off.‖ White testified the patrol car lights were on and
    sirens were blaring.
    Holloman drove at a ―high rate of speed,‖ leading White, Lawrence, and other officers who
    had joined the pursuit on a lengthy chase. During the attempted flight, Holloman disregarded at
    least seven stop signs. At one point, White testified Holloman ―ran [a] stop sign . . . and went
    across the highway into the ditch and narrowly missed a westbound car.‖ Then, Holloman took
    ―the car off into a pasture.‖ ―[H]e throwed [sic] the tread off of his right front tire.‖ After
    Holloman travelled ―off-road[,] he jump[ed] out of the car and start[ed] running.‖ ―[H]e fled on
    foot up the hill and toward the wood line.‖ Lawrence exited the patrol car driven by White and
    followed Holloman on foot. Joining the pursuit, Officer Richard Lewis ―drove [his] patrol car up
    the hill and got out and held him at gunpoint until Trooper Lawrence could get up there and place
    him in handcuffs.‖4
    Viewing all the evidence in the light most favorable to the verdict, we find that a rational
    jury could have found, beyond a reasonable doubt, that Holloman intentionally or knowingly fled
    4
    Holloman argues ―that a rational jury could not convict Defendant of such offense for the reason that Officers White
    and Lawrence were unable to identify Appellant as the operator of the Dodge Diplomat.‖ This argument is without
    merit. Lawrence, White, and Lewis all testified Holloman was the driver of the vehicle, and there was testimony that
    no other people were in the vehicle or exited the vehicle.
    5
    from police officers who were attempting to lawfully detain or arrest him. Accordingly, we
    conclude the evidence was legally sufficient to support the trial court‘s judgment. Holloman‘s
    last point of error is overruled.
    III.    Judgment is Reformed to Reflect Holloman’s Plea of Not Guilty
    The Texas Rules of Appellate Procedure give this Court authority to reform judgments and
    correct typographical errors to make the record speak the truth. TEX. R. APP. P. 43.2; French v.
    State, 
    830 S.W.2d 607
    , 609 (Tex. Crim. App. 1992); Rhoten v. State, 
    299 S.W.3d 349
    , 356 (Tex.
    App.—Texarkana 2009, no pet.). ―Our authority to reform incorrect judgments is not dependent
    on the request of any party, nor does it turn on a question of whether a party has or has not objected
    in trial court; we may act sua sponte and may have a duty to do so.‖ 
    Rhoten, 299 S.W.3d at 356
    (citing Asberry v. State, 
    813 S.W.2d 526
    , 531 (Tex. App.—Dallas 1991, writ ref‘d). The
    judgment in this case reflects that Holloman pled guilty to the offense. This was incorrect. We
    modify the judgment to reflect Holloman‘s plea of ―[n]ot guilty.‖
    IV.     CONCLUSION
    As modified, we affirm the judgment.
    Bailey C. Moseley
    Justice
    Date Submitted:         March 17, 2011
    Date Decided:           March 18, 2011
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    Do Not Publish
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