Frederick Valentino Amerine v. State ( 2017 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00160-CR
FREDERICK VALENTINO AMERINE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court No. F49849
MEMORANDUM OPINION
In this case, appellant, Frederick Valentino Amerine, was charged by indictment
with one count of evading arrest with a vehicle and one count of unlawful possession of
a firearm. See TEX. PENAL CODE ANN. § 38.04 (West 2016); see also id. § 46.04(a) (West 2011).
On appeal, Amerine argues that the evidence is insufficient to support his convictions. 1
1In his original brief, Amerine only challenged his conviction for evading arrest with a vehicle. In
response to Amerine’s opening brief, we informed Amerine’s counsel that she must address Amerine’s
unlawful-possession-of-a-firearm conviction by filing a brief asserting error or an Anders-type motion to
withdraw and a supporting brief. See Kirven v. State, No. 10-14-00122-CR (Tex. App.—Waco Oct. 22, 2015,
Because we conclude that the evidence is sufficient to support Amerine’s convictions, we
affirm.
I. EVADING ARREST WITH A VEHICLE
In his first issue, Amerine contends that the evidence adduced at trial was not
sufficient to establish that he intentionally fled from law enforcement. We disagree.
In reviewing the sufficiency of the evidence to support a conviction, we view all
of the evidence in the light most favorable to the prosecution to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard enables the fact finder to draw
reasonable inferences from the evidence. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,
235 S.W.3d at 778. In performing our sufficiency review, we may not re-evaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact
finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, we determine
whether the necessary inferences are reasonable based upon the combined and
order); see also Kirven v. State, No. 10-14-00122-CR, 2015 Tex. App. LEXIS 12777 (Tex. App.—Waco Dec. 17,
2015, no pet.) (mem. op., not designated for publication); Kirven v. State, No. 10-15-00359-CR, 2015 Tex.
App. LEXIS 12775 (Tex. App.—Waco Dec. 17, 2015, no pet.) (mem. op., not designated for publication). In
response to our letter, Amerine’s counsel filed a supplemental brief addressing Amerine’s conviction for
unlawful possession of a firearm.
Amerine v. State Page 2
cumulative force of all the evidence when viewed in the light most favorable to the
verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).
A person commits the offense of evading arrest or detention with a vehicle if, using
a vehicle, 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. Texas courts have held that failing to submit to an officer’s show of authority is
sufficient to satisfy the elements of evading arrest. See Lopez v. State, 415 S.W.3d 495, 497
(Tex. App.—San Antonio 2013, no pet.) (“From the officers’ testimony that their lights
and siren were activated for 0.6 miles or approximately one and one-half minutes, the
jury could reasonably infer that Lopez was aware the officers were attempting to detain
him but intended to flee to the driveway of his house. . . . Moreover, although the officers
agreed that Lopez was not accelerating away from them or driving recklessly after he
exited the highway, ‘fleeing’ is ‘anything less than prompt compliance with an officer’s
direction to stop,’ and ‘fleeing slowly is still fleeing.’”); Horne v. State, 228 S.W.3d 442, 446
(Tex. App.—Texarkana 2007, no pet.) (“Thus, such a delayed compliance legitimately can
be found to be an attempt to evade arrest or detention. . . . We conclude that, though the
evidence indicates Horne had no intent to ultimately escape the officer, it does show that
Horne was attempting to evade arrest, even if only for the few minutes it took for him to
park his car in front of his mother’s house.”); Mayfield v. State, 219 S.W.3d 538, 541 (Tex.
App.—Texarkana 2007, no pet.) (“There is evidence that Mayfield was driving, that the
Amerine v. State Page 3
officer had cause to stop him for a traffic violation, that the officer was in a marked squad
car with emergency lights flashing and siren sounding, and that Mayfield did not stop
for an extended period of time. 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.
Thus, under the law, fleeing slowly is still fleeing.”); see also Ford v. State, Nos. 02-14-
00176-CR & 02-14-00177-CR, 2015 Tex. App. LEXIS 5414, at *6 (Tex. App.—Fort Worth
May 28, 2015, pet. ref’d) (mem. op., not designated for publication). Moreover, speed is
not a consideration in determining whether a person is guilty of evading arrest. See Leos
v. State, 880 S.W.2d 180, 184 (Tex. App.—Corpus Christi 1994, no pet.); see also Ford, 2015
Tex. App. LEXIS 5414, at **6-7. Indeed, even crawling away from a police officer has been
seen to constitute evading arrest. See Leos, 880 S.W.2d at 184.
On January 26, 2015, Grandview Police Officer Alberto Sanchez observed a silver
Chevy Impala driving westbound at the 1000 block of East Criner Street with an expired
registration sticker. Because driving with an expired registration sticker constitutes a
traffic violation, Officer Sanchez activated his overhead lights, turned around, got behind
the silver Impala, and attempted to initiate a traffic stop. Officer Sanchez described the
incident as follows:
Initially, I saw the vehicle traveling westbound at the 1000 block of East
Criner Street. I was actually headed eastbound. That’s when I noticed the
expired registration. I had to turn around, actually catch up to the vehicle,
which I did so at approximately the 400 block of East Criner. That’s when
I activated my overhead emergency lights. The vehicle actually took a left
traveling south on South 4th Street, the 100 block. The vehicle actually went
Amerine v. State Page 4
in the middle of the street and almost came to a complete stop and he
motioned with his left hand, stuck his arm out, and pointed to the right. To
me, I was thinking he was about to actually pull over to the side of the street.
Instead, he actually continued south on South 4th Street. He came up to a
stop sign of South 4th Street and East McFarland, actually kept going
straight after he came to a stop. He proceeded south, came up to a stop sign
at the intersection of South 4th Street and Scurlock, put on his blinker,
turned right. At that point I actually got on the—activated my sirens
several times. He came up to the intersection of South 3rd and East
Scurlock. As he proceed[ed] to go over South 3rd I got on my outside mic
and instructed him to stop the vehicle now. At that point he kept on
pointing forward. He kept on going a little bit further down and actually
turned into a driveway which was 102 East Scurlock Street.
Officer Sanchez testified that he was driving a marked police car at the time of the
incident and that he was in full uniform. Officer Sanchez also recounted that Amerine
told him that he did not stop because “he was afraid that his vehicle would get towed
due to the expired registration sticker.”
Applying the appropriate standard of review, we hold that the jury, as trier of fact,
rationally could have found the elements of the crime of evading arrest or detention with
the use of a vehicle beyond a reasonable doubt if they believed that, after Officer Sanchez
activated his overhead lights and sirens, Amerine continued driving instead of pulling
over at the earliest possible moment. See TEX. PENAL CODE ANN. § 38.04; Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 16-17. Moreover,
as noted above, the fact that Amerine was driving slow and was not trying to get away
from Officer Sanchez is of no consequence. See Lopez, 415 S.W.3d at 497; Horne, 228 S.W.3d
at 446; Mayfield, 219 S.W.3d at 541; see also Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim.
Amerine v. State Page 5
Ohio App. 2004) (“Intent may also be inferred from circumstantial evidence such as acts,
words, and the conduct of the appellant.”). Furthermore, we are not persuaded by Officer
Sanchez’s testimony that he did not believe that Amerine was fleeing because of the other
evidence in the record, and because such testimony merely creates a conflict in the
evidence, which is within the province of the jury to resolve. See Lancon v. State, 253
S.W.3d 699, 706 (Tex. Crim. App. 2008); Chambers, 805 S.W.2d at 461; Render v. State, 316
S.W.3d 846, 859 (Tex. App.—Dallas 2010, pet. ref’d) (“An appellate court must give
deference to a jury’s decision regarding what weight to give contradictory testimonial
evidence because the decision is most likely based on an evaluation of credibility and
demeanor, which the jury is in a better position to judge.”). Accordingly, we overrule
Amerine’s first issue.
II. UNLAWFUL POSSESSION OF A FIREARM
In his sole issue in his supplemental brief, which we characterize as his second
appellate issue, Amerine contends that his conviction for unlawful possession of a
firearm is not supported by sufficient evidence because the evidence is insufficient to
support his conviction for evading arrest with a vehicle. More specifically, Amerine
argues that his vehicle could not have been searched or impounded if he is not guilty of
evading arrest with a vehicle. And if his vehicle had not been impounded and searched,
law enforcement would have never located a handgun in Amerine’s glove compartment.
Because Amerine’s complaint in this issue is premised on his complaint regarding his
Amerine v. State Page 6
conviction for evading arrest with a vehicle, and because we have rejected Amerine’s
complaint regarding his conviction for evading arrest with a vehicle, we overrule
Amerine’s second issue.
III. CONCLUSION
Having overruled both of Amerine’s issues on appeal, we affirm the judgments of
the trial court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed March 15, 2017
Do not publish
[CRPM]
Amerine v. State Page 7