Davin Edward Fassauer v. State ( 2010 )

NO. 07-08-00319-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
JUNE 7, 2010
DAVIN EDWARD FASSAUER, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE COUNTY COURT AT LAW NO 1 OF POTTER COUNTY;
NO. 120,036; HONORABLE W. F. (CORKY) ROBERTS, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant Davin Edward Fassauer was charged by information with the offense
of evading arrest or detention.1 A jury found him guilty of the offense and the court
sentenced him to 180 days confinement in the county jail. Contending the evidence
was legally and factually insufficient to support his conviction, appellant appeals. We
will affirm.
1
Tex. Penal Code Ann. ' 38.04(a),(b) (Vernon 2003). Appellant was charged
under the former version of the law which made its violation a Class B misdemeanor in
the absence of enhancement factors not present here.
Discussion
Through two issues appellant argues the evidence was legally and factually
insufficient to establish that police officers were attempting to lawfully arrest or detain
him.
The offense of evading arrest or detention consists of the following elements: 1)
a person, 2) intentionally flees, 3) from a peace officer, 4) with knowledge he is a peace
officer, 5) who is attempting to arrest or detain him, and 6) the attempted arrest or
detention is lawful. Tex. Penal Code Ann. ' 38.04(a) (Vernon 2003). See Rodriguez v.
State, 578 S.W.2d 419, 419 (Tex.Crim.App. 1979). Material to the argument of
appellant is the sixth element requiring proof beyond a reasonable doubt that the arrest
or detention evaded was lawful. In general, absent extraordinary circumstances an
arrest supported by probable cause or a warrant is lawful. Haight v. State, 103 S.W.3d
498, 507 (Tex.App.BSan Antonio 2003), rev=d on other grounds, 137 S.W.3d 48
(Tex.Crim.App. 2004).
When conducting a legal sufficiency review, we view the evidence in the light
most favorable to the verdict to determine whether a rational fact-finder could have
found each element of the offense beyond a reasonable doubt. Swearingen v. State,
101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner v. State, 67 S.W.3d 192, 197
(Tex.Crim.App. 2001) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61
L. Ed. 2d 560 (1979)). The trier of fact is the sole judge of the weight and credibility of
the evidence. Margraves v. State, 34 S.W.3d 912, 919 (Tex.Crim.App. 2000).
Accordingly, when performing a legal sufficiency review, we are not free to re-evaluate
2
the weight and credibility of the evidence and substitute our judgment for that of the
fact-finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999). Rather, we
Adetermine whether the necessary inferences are reasonable based upon the combined
and 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). We must
presume that the fact-finder resolved any conflicting inferences in favor of the
prosecution and defer to that resolution. Jackson, 443 U.S. at 326, 99 S.Ct. at 2793;
Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007).
If, based on all the evidence, a reasonably-minded jury must necessarily
entertain a reasonable doubt of the defendant's guilt, due process requires that we
reverse and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95, (citing
Narvaiz v. State, 840 S.W.2d 415, 423 (Tex.Crim.App. 1992)).
A factual sufficiency review of the evidence is Abarely distinguishable@ from the
legal sufficiency review under Jackson v. Virginia. Marshall v. State, 210 S.W.3d 618,
625 (Tex.Crim.App. 2006). A factual sufficiency review considers whether the evidence
supporting guilt, though legally sufficient, is so weak that the jury=s verdict seems clearly
wrong and manifestly unjust, or evidence contrary to the verdict is such that the jury=s
verdict is against the great weight and preponderance of the evidence. Id.; Watson v.
State, 204 S.W.3d 404, 414-15 (Tex.Crim.App. 2006); Johnson v. State, 23 S.W.3d 1,
11 (Tex.Crim.App. 2000). In a factual sufficiency review, we again consider all the
evidence, but now in a neutral light. Marshall, 210 S.W.3d at 625; Watson, 204 S.W.3d
at 414. Although an appellate court=s authority to review factual sufficiency permits the
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court to disagree with the fact-finder=s determinations, even to a limited degree those
concerning the weight and credibility of the evidence, the appellate court must accord
them due deference. Marshall, 210 S.W.3d at 625; Johnson, 23 S.W.3d at 9. When
there is a conflict in the evidence, to find it factually insufficient we must first be able to
say, with some objective basis in the record, that the great weight and preponderance of
all the evidence contradicts the jury=s verdict. Watson, 204 S.W.3d at 417.
We turn now to the evidence. On July 30, 2007, Amarillo police officers Shelton
and Hawley went to a specific city residence to look for a Awanted individual.@ They had
previously received information of appellant=s possible presence at this location.
Shelton identified appellant as the person he sought. According to Hawley, he and
Shelton went to the residence in search of a Awanted person@ named Davin Fassauer.
To establish identification, the officers possessed a photograph of appellant. Hawley
was familiar with serving arrest warrants and that the accused sometimes flee. The
officers had information that appellant might be a flight risk.
Shelton and Hawley wore blue police uniforms with visible badges and the word
Apolice@ in four inch letters imprinted across the back. On arrival in the neighborhood,
they secluded their patrol car and set up surveillance of the residence. In so doing, they
observed a male, whom they believed was appellant, in front of the residence arguing
with a female. She left in a car and it appeared the male might leave in a pickup.
4
Amarillo police officers Martinez and Chappell were also in the area of the
residence in a patrol car driven by Chappell. Martinez was in uniform.2 He was asked to
meet Shelton and Hawley at the residence Aon an arrest warrant they had.@ On cross-
examination, Hawley acknowledged that he did not know if Aa warrant in this case was
sealed or not.@ Shelton called Martinez and Chappell requesting they go to the front
door, identify the male as appellant, and place him under arrest. Martinez had
previously seen a photograph of appellant and knew for whom they were looking.
According to Martinez, as their patrol car entered the driveway he exited the passenger
side before the vehicle stopped and commanded appellant to Acome here.@ Instead,
appellant fled on foot and Martinez gave chase commanding, Astop police.@ Appellant
entered the backyard of a neighborhood residence and emerged in Hawley=s presence
riding a Akid=s bicycle.@ When Hawley commanded appellant to get on the ground he
slammed the bicycle down and continued running. Hawley attempted to stop appellant
with a taser but was not successful. He ordered appellant to stop but appellant
disobeyed and continued his flight. According to a civilian witness, appellant screamed,
A>somebody help me. They=re after me.=@ When appellant entered a street and swerved
to avoid a vehicle, Hawley overtook him and physically subdued him. Martinez
identified appellant as the person he chased. According to Martinez, the evading
incident lasted ten to fifteen minutes. Appellant sustained a cut which required stitches
at a local hospital. Police then transported him to detention.
2
Officer Chappell did not testify and the record contains no evidence of his
attire.
5
Appellant contends the trial court sustained a hearsay objection to the testimonial
statement of Martinez that he was asked to meet Shelton and Hawley “on an arrest
warrant they had.” Appellant appears to contend that without the strength of the
objected-to testimony, the evidence is legally and factually insufficient to support a
finding the arrest or detention he evaded was lawful. For several reasons, we must
disagree. First, in a legal sufficiency review, we consider all of the evidence the jury
was permitted to consider, whether rightly or wrongly. Alexander v. State, 866 S.W.2d
1, 3 (Tex.Crim.App. 1993).
Second, review of the record requires the conclusion Martinez’s statement must
be considered also in our factual sufficiency review. The testimony in question was
elicited through the following exchange:
Q. [prosecutor]: Why did you go to [the residence]?
A. [Martinez]: I was asked to meet Corporal Shelton and Corporal Hawley on an
arrest warrant that they had. They asked that I meet them because
they were concerned that the person that was wanted wouldB
Defense Counsel: I=ll object to their concerns being hearsay.
The Court: Sustained.
A[T]he purpose of lodging a timely and specific objection is to inform the trial court
of the basis of the objection and to give the court an opportunity to rule on the specific
objection as the evidence is introduced.@ Sattiewhite v. State, 786 S.W.2d 271, 283
(Tex.Crim.App. 1989). A specific objection also allows Aopposing counsel an
6
opportunity to remove the objection or supply other testimony.@ Maynard v. State, 685
S.W.2d 60, 65 (Tex.Crim.App. 1985). When evidence contains both admissible and
inadmissible components, a proper objection must point to the inadmissible component.
Celotex Corp. v. Tate, 797 S.W.2d 197, 206 (Tex.App.BCorpus Christi 1990, writ
dismissed). This is precisely what appellant did by specifically focusing his objection on
the concerns conveyed to Martinez by Hawley and Shelton. We cannot construe
appellant’s objection as extending to Martinez=s explanation of why he was at the
residence.
Moreover, even assuming arguendo appellant=s objection included Martinez=s
entire response, once uttered the testimony was before the jury. And appellant made
no motion to strike or request for an instruction to disregard. The testimony was
therefore available for the jury’s consideration. “Where an objection is made and
sustained as to testimony which has been heard by the jury the testimony is before the
jury unless the jury is instructed to disregard it.” Prudential Ins. Co. v. Uribe, 595
S.W.2d 554, 564 (Tex.Civ.App.--San Antonio 1979, writ ref’d n.r.e); Johnson v. State,
925 S.W.2d 745, 750 (Tex.App.--Fort Worth 1996, pet. refused); Rodriquez v. State,
903 S.W.2d 405, 409-10 (Tex.App.--Texarkana 1995, pet. refused) (citing Prudential
Ins. Co.). See also Battles v. Adams, 415 S.W.2d 479, 483 (Tex.Civ.App.BAustin 1967,
writ ref=d n.r.e.) (A[s]ince the objection to this testimony was made after its admission
and no motion to strike having been made, the objection was waived and the testimony
was before the court for all that it is worth@); Poole v. State Highway Department, 256
S.W.2d 168, 172 (Tex.Civ.App.BFort Worth 1953, writ dismissed) (Atestimony before the
jury before objection thereto is made and sustained is still before them until they are
7
instructed not to consider it@). Accordingly, we consider Martinez’s testimony he was
asked to meet Shelton and Hawley “on an arrest warrant they had” in our evaluation of
both the legal and factual sufficiency of the evidence.
Having reviewed the entire record, we find a rational trier of fact could have
reasonably concluded that on July 30 police officers Hawley, Shelton, and Martinez
were in uniform and drove to the residence in marked patrol cars. They possessed a
warrant for the arrest of appellant and were at the residence to take him into custody.
When appellant saw Martinez and the patrol car driven by Chappell he fled on foot and
did not stop until physically subdued despite commands to stop.
When viewed in the light most favorable to the verdict, the evidence is legally
sufficient to support the verdict of the jury. Additionally, a neutral review of all the
evidence demonstrates neither that the proof of guilt is so weak nor that conflicting
evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust.
We overrule appellant=s two issues.
Conclusion
Having overruled appellant=s two issues, we affirm the judgment of the trial court.
James T. Campbell
Justice
Do not publish.
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