Fahad Mohammad Khan v. State ( 2019 )

Opinion issued January 29, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00327-CR
———————————
FAHAD MOHAMMAD KHAN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Case No. 1467228
MEMORANDUM OPINION
After appellant, Fahad Mohammad Khan, with an agreed punishment
recommendation from the State, pleaded guilty to the felony offense of evading
arrest, or detention, in a motor vehicle,1 the trial court deferred adjudication of his
1
See TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A).
guilt, placed him on community supervision for seven years, and assessed a fine of
$500. The State, alleging a violation of a condition of his community supervision,
subsequently moved to adjudicate appellant’s guilt. After a hearing, the trial court
found the allegation true, found appellant guilty, and assessed his punishment at
confinement for four years and a fine of $500. In his sole issue, appellant contends
that the evidence is insufficient to support a finding that he violated a condition of
his community supervision.
We modify the trial court’s judgment and affirm as modified.
Background
On February 6, 2017, the trial court placed appellant on community
supervision, subject to certain conditions, including:
(1) Commit no offense against the laws of this or any other State or
the United States. If you are arrested for any law violation with
the exception of a Class C misdemeanor, a Violation Report and
a Motion to Adjudicate or Motion to Revoke Community
Supervision will be submitted to the Court.
On November 30, 2017, the State filed a motion to adjudicate appellant’s
guilt, alleging that he had violated the above listed condition of his community
supervision by:
Committing an offense against the State of Texas, to-wit; on or about
November 18, 2017, in Harris County, Texas, [appellant] . . . , did then
and there unlawfully, intentionally and knowingly flee from [Harris
County Sheriff’s Office Officer] J. Trevino . . . , a Peace Officer . . . ,
lawfully attempting to detain [appellant], and [appellant] [k]new that
2
[Trevino] was a Peace Officer attempting to detain [him], and
[appellant] used a motor vehicle while he was in flight.
At the hearing on the State’s motion to adjudicate appellant’s guilt, appellant
pleaded “[n]ot true” to the above listed allegation. Officer Trevino then testified
that, while on patrol in the early morning hours on November 18, 2017, he observed
appellant’s car driving “at a high rate of speed,” approximately 102 miles per hour,
according to his Doppler radar. Upon seeing appellant’s car, Trevino made a U-turn
in his patrol car to follow appellant, although he did not initially activate his patrol
car’s emergency lights. As he followed appellant’s car, Trevino saw it brake
“heav[ily]” and reverse southbound while in a northbound lane because appellant
had driven past the street on which he wanted to turn. Trevino noted that appellant’s
actions in reversing his car in this manner constituted a traffic violation.
Subsequently, appellant turned his car onto Newbrook Drive and then turned
onto Beckford Drive. Officer Trevino activated his patrol car’s emergency lights
when he turned his patrol car onto Beckford Drive behind appellant’s car. Trevino
noted that appellant, while driving in front of him, failed to stop at two stop signs
that he encountered, indicating to Trevino that appellant was evading him.
Officer Trevino further testified that appellant’s car continued north on
Beckford Drive, driving at “a high rate of speed,” and then made a right turn onto “a
little side street” to go east. From there, appellant’s car turned south and then turned
east again onto Cloverwalk Lane. As Trevino followed appellant’s car, appellant
3
continued to drive “very fast,” although Trevino could still see appellant’s car in his
vision. Trevino saw the brake lights on appellant’s car as appellant pulled into the
driveway of his home on Cloverwalk Lane. Appellant then turned off all of the lights
on his car after he stopped it in his driveway.
When Officer Trevino arrived at appellant’s home, he parked his patrol car by
the driveway, blocking appellant’s car, and he left the patrol car’s emergency lights
activated. Appellant, at the time, remained in his car, and according to Trevino, the
garage door to the home remained closed. When Trevino approached appellant’s
car, he could not initially see appellant because appellant had reclined the driver’s
side front seat “as far back as th[e] seat could go into the back seat.” Trevino opined
that it would be difficult to drive a car over 100 miles per hour with the driver’s side
front seat in that reclined position.
When Officer Trevino finally did see appellant inside of his car, he opened
the driver’s side door, got appellant out of the car, and placed him in handcuffs.
Appellant did not say anything. As Trevino walked appellant to his patrol car, he
asked him, “What are you doing, man? Why are you running from us?” and
appellant responded, “Man, I [was] just trying to get home.” (Internal quotations
omitted). Appellant also, while seated in the back seat of Trevino’s patrol car,
apologized and stated, “Man, I never saw you. I never saw you.” (Internal
quotations omitted). Trevino opined that appellant, by reclining his driver’s side
4
front seat, was trying to hide from him, and appellant “laid the seat down so [that
Trevino] couldn’t see inside of the car.”
In regard to his patrol car’s emergency lights, Officer Trevino testified that
the lights are “LED lights” and are “pretty bright,” and if someone was braking in
front of his patrol car, that person would have the opportunity to see his patrol car’s
lights. Trevino added that it was easy to see his patrol car’s emergency lights as he
followed behind appellant’s car because it was dark outside and the lights would
have reflected off the street signs and the other cars in the area. According to
Trevino, he drove approximately one-fourth of a mile behind appellant’s car before
activating his patrol car’s emergency lights. Once Trevino turned on his patrol car’s
emergency lights, appellant continued to drive his car for “a half of a mile to just
under a mile.” Trevino testified that he had “no doubt” that appellant, as he drove,
could see the emergency lights on Trevino’s patrol car. Further, if he could see the
taillights on appellant’s car as he drove, then appellant could see the activated
emergency lights on Trevino’s patrol car as he followed appellant. And Trevino
noted that as he followed appellant’s car with his patrol car’s emergency lights
activated, there were places for appellant to safely stop his car. Trevino did not
activate his patrol car’s siren at any point.
During Officer Trevino’s testimony, the trial court admitted into evidence
State’s Exhibit 1, the videotaped recording from Trevino’s patrol car. In the
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videotaped recording, Trevino’s patrol car can be seen driving behind appellant’s
car without his patrol car’s emergency lights initially activated. The videotaped
recording shows Trevino following appellant’s car in his patrol car without the
emergency lights activated for approximately thirty-one seconds. After both
appellant and Trevino turn their cars onto Beckford Drive, Trevino activates his
patrol car’s emergency lights. Appellant’s car is visible on the videotaped recording
when Trevino activates his patrol car’s emergency lights. Upon activating the
emergency lights, Trevino continues to follow appellant’s car for approximately
thirty seconds. The videotaped recording shows that, at times, Trevino had to drive
his patrol car more than sixty miles per hour to keep up with appellant’s car.
After appellant turns his car into the driveway of his home, Officer Trevino
arrives within approximately two seconds with his patrol car’s emergency lights still
activated. Trevino noted, while watching the videotaped recording, that appellant’s
car and its brake lights can be seen at the same time that his patrol car’s emergency
lights are activated.
Asiya Khan (“Asiya”), appellant’s mother, testified that appellant lives with
her in her house on Cloverwalk Lane, and on November 18, 2017, she was asleep
downstairs when she heard the garage door to the house open. Because appellant
did not come inside, after five or ten minutes, she went outside. Asiya testified that
she did not open the home’s garage door that night. Instead, she believed that
6
appellant had opened it with his garage-door opener when he arrived home that
night. When asked whether appellant “could [have just] open[ed] the garage and
drive[n] [his car] inside” because he “want[ed] to just get home,” Asiya responded,
“Yes.”
Following the hearing, the trial court found true the allegation that appellant
had “[c]ommitt[ed] an offense against the State of Texas,” found appellant guilty,
and assessed his punishment at confinement for four years and a fine of $500.
Standard of Review
Appellate review of an order adjudicating guilt is limited to determining
whether the trial court abused its discretion. TEX. CODE CRIM. PROC. ANN. art.
42A.108(b) (“The determination [to adjudicate guilt] . . . is reviewable in the same
manner as a [community-service] revocation hearing . . . in which the adjudication
of guilt was not deferred.”); Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App.
2006). The trial court’s decision must be supported by a preponderance of the
evidence. Rickels, 202 S.W.3d at 763–64. The evidence meets this standard when
the greater weight of the credible evidence creates a reasonable belief that a
defendant has violated a condition of his community supervision. Id.
We examine the evidence in the light most favorable to the trial court’s order.
Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Jones v. State, 787
S.W.2d 96, 97 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). As the sole trier
7
of fact, a trial court determines the credibility of witnesses and the weight to be given
to their testimony. See Garrett, 619 S.W.2d at 174; Jones, 787 S.W.2d at 97.
Adjudication of Guilt
In his sole issue, appellant argues that the trial court erred in adjudicating his
guilt because the evidence is insufficient to support a finding that he violated a
condition of his community supervision by committing the offense of evading arrest,
or detention, in a motor vehicle.
A person commits the offense of evading arrest, or detention, “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). If the person “uses a
vehicle” while “in flight,” the offense is a third-degree felony. Id. § 38.04(b)(2)(A).
A person commits the offense “only if he knows a [law enforcement] officer is
attempting to arrest [or detain] him but nevertheless refuses to yield to a police show
of authority.” Redwine v. State, 305 S.W.3d 360, 362 (Tex. App.—Houston [14th
Dist.] 2010, pet. ref’d); see also Hobyl v. State, 152 S.W.3d 624, 627 (Tex. App.—
Houston [1st Dist.] 2004), pet. dism’d, improvidently granted, 193 S.W.3d 903 (Tex.
Crim. App. 2006).
Intent may be determined from a defendant’s words, acts, and conduct. See
Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998). Courts may consider
the speed, distance, and duration of a pursuit in determining whether a defendant
8
intentionally fled. See Griego v. State, 345 S.W.3d 742, 751 (Tex. App.—Amarillo
2011, no pet.); see also Thorn v. State, No. 01-13-00906-CR, 2014 WL 3512811, at
*4 (Tex. App.—Houston [1st Dist.] July 15, 2014, pet. ref’d.) (mem. op., not
designated for publication). “[A]nything less than prompt compliance with a[] [law
enforcement] officer’s direction to stop” can constitute “an attempt to evade arrest
or detention.” Horne v. State, 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007,
no pet.); see also Lopez v. State, 415 S.W.3d 495, 497 (Tex. App.—San Antonio
2013, no pet.).
Circumstantial evidence is as probative as direct evidence and can suffice to
establish the guilt of an actor. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007); Hooper v. State, 214 S.W.3d 9, 14–15 (Tex. Crim. App. 2007).
Knowledge that a law enforcement officer is attempting to arrest or detain a subject
can be established through circumstantial evidence. Wright v. State, 855 S.W.2d
110, 112 (Tex. App.—Houston [14th Dist.] 1993, no pet.); see also Rico v. State,
No. 07-11-00146-CR, 2012 WL 952113, at *2 (Tex. App.—Amarillo Mar. 21, 2012,
pet. ref’d) (mem. op., not designated for publication).
Officer Trevino testified that, while on patrol in the early morning hours on
November 18, 2017, he observed appellant’s car driving “at a high rate of speed,”
approximately 102 miles per hour, according to his Doppler radar. Upon seeing
appellant’s car, Trevino made a U-turn in his patrol car to follow appellant, although
9
he did not initially activate his patrol car’s emergency lights. As he followed
appellant’s car, Trevino saw it brake “heav[ily]” and reverse southbound while in a
northbound lane because appellant had driven past the street on which he wanted to
turn.
Subsequently, appellant turned his car onto Newbrook Drive and then turned
onto Beckford Drive. And Trevino activated his patrol car’s emergency lights when
he turned onto Beckford Drive behind appellant’s car. See Duvall v. State, 367
S.W.3d 509, 513 (Tex. App.—Texarkana 2012, pet. ref’d) (law enforcement officer
asserts his authority and attempts to arrest or detain defendant where he uses his
emergency lights); see also Lopez, 415 S.W.3d at 497 (fact finder could reasonably
infer defendant was aware law enforcement officers were attempting to detain him,
but he intended to flee, where pursuing officers had their lights and sirens activated
while following defendant). Trevino testified that appellant, while driving in front
of him, failed to stop at two stop signs that he encountered, indicating to Trevino
that appellant was evading him. See, e.g., Diaz v. State, No. 01-13-00489-CR, 2013
WL 5827810, at *3–4 (Tex. App.—Houston [1st Dist.] Oct. 29, 2013, pet. ref’d)
(mem. op., not designated for publication) (evidence sufficient to find defendant
committed offense of evading arrest or detention in motor vehicle where he “drove
through a stop sign without stopping” while being followed by two patrol cars with
their emergency lights activated); Delgado v. State, No. 08-04-00071-CR, 2005 WL
10
1314986, at *3 (Tex. App.—El Paso June 2, 2005, pet. ref’d) (mem. op., not
designated for publication) (evidence sufficient to find defendant committed offense
of evading arrest or detention in motor vehicle where after law enforcement officer
activated her patrol car’s emergency lights and siren, defendant “ran a stop sign” and
traveled several blocks before stopping).
Officer Trevino also testified that as he followed appellant’s car, appellant
continued driving north on Beckford Drive, at “a high rate of speed,” and then made
a right turn onto “a little side street” to go east. From there, appellant’s car turned
south and then turned east again onto Cloverwalk Lane. As Trevino followed
appellant’s car, appellant continued driving “very fast,” although Trevino could still
see appellant’s car in his vision. Trevino then saw the brake lights on appellant’s
car as appellant pulled his car into the driveway of his home on Cloverwalk Lane.
See, e.g., Lopez, 415 S.W.3d at 497 (evidence sufficient to find defendant committed
offense of evading arrest or detention in motor vehicle where law enforcement
officers, while driving behind defendant’s car, activated their patrol car’s lights and
defendant continued traveling through residential area, “for one and one-half
minutes or approximately 0.6 miles,” making several turns before pulling into his
driveway). Trevino noted that appellant turned off all of the lights on his car after
he stopped it in his driveway. See, e.g., Hamrick v. State, No. 05-06-01311-CR,
2009 WL 620964, at *3 (Tex. App.—Dallas Mar. 12, 2009, pet. dism’d, untimely
11
filed) (not designated for publication) (evidence sufficient to support finding
defendant committed offense of evading arrest or detention in motor vehicle where
after law enforcement officer activated his patrol car’s emergency lights, defendant
continued driving and turned off his car’s lights); Coggin v. State, No.
03-04-00585-CR, 2006 WL 1292581, at *2 (Tex. App.—Austin May 12, 2006, no
pet.) (mem. op., not designated for publication) (evidence sufficient to find that
defendant intentionally fled where defendant, after passing law enforcement
officer’s patrol car, turned off his car’s lights and drove home at high rate of speed).
When Officer Trevino arrived at appellant’s home, he parked his patrol car by
the driveway, blocking appellant’s car, and he left the patrol car’s emergency lights
activated. Appellant, at the time, remained in his car, and according to Trevino, the
garage door to the home remained closed. When Trevino approached appellant’s
car, he could not initially see appellant because appellant had reclined the driver’s
side front seat “as far back as th[e] seat could go into the back seat.” Trevino
believed that appellant, by reclining his driver’s side front seat, was trying to hide
from him, and appellant “laid the seat down so [that Trevino] couldn’t see inside of
the car.” See, e.g., Jackson v. State, 530 S.W.3d 738, 742–43, 742 n.1 (Tex. App.—
Houston [14th Dist.] 2017, no pet.) (fact finder could infer defendant’s guilt where
law enforcement officers found him hiding after evading arrest or detention in motor
vehicle); Washington v. State, Nos. 14-15-00558-CR, 14-15-00559-CR, 2016 WL
12
4483953, at *4 (Tex. App.—Houston [14th Dist.] Aug. 25, 2016, no pet.) (mem. op.,
not designated for publication) (fact finder “could have concluded . . . that
[defendant] intentionally fled from a person he knew was a peace officer lawfully
attempting to detain [him] when he immediately ran from the vehicle . . . and hid”);
cf. Griego, 345 S.W.3d at 753 (“Evidence that [defendant] got out of his car and,
instead of running or hiding, began walking toward the residence while carrying a
beer . . . indicate[d] that he did not know officers were attempting to arrest or detain
him.” (emphasis added)).
When Officer Trevino finally did see appellant inside of the car, he opened
the driver’s side door, got appellant out of the car, and placed him in handcuffs.
Appellant did not initially say anything; however, while sitting in the back seat of
Trevino’s patrol car, appellant apologized. See Reyes v. State, 465 S.W.3d 801, 806
(Tex. App.—Eastland 2015, pet. ref’d) (considering defendant’s conduct upon
exiting his car in holding that his “actions and the surrounding circumstances
sufficiently proved that [he] intentionally fled in a vehicle from [a law enforcement
officer], who [he] knew was attempting to lawfully arrest or detain him”); Schmitt v.
State, No. 13-13-00132-CR, 2013 WL 6924171, at *3 (Tex. App.—Corpus Christi
Dec. 30, 2013, pet. ref’d) (mem. op., not designated for publication) (evidence that
defendant apologized to law enforcement officer “for not stopping” indicated “he
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knew that [the] [o]fficer . . . had been attempting to detain him as he continued to
travel in his vehicle” (internal quotations omitted)).
In regard to his patrol car’s emergency lights, Officer Trevino testified that
the lights are “LED lights” and are “pretty bright,” and if someone was braking in
front of his patrol car, that person would have the opportunity to see his patrol car’s
lights. Trevino said that it was easy to see his patrol car’s emergency lights as he
followed appellant’s car because it was dark outside and the lights would have
reflected off the street signs and the other cars in the area. See, e.g., Schmitt, 2013
WL 6924171, at *4 (“[A] rational trier of fact could infer [that the patrol car’s
emergency lights] were visible and known to [defendant] given that it was a ‘dark’
road . . . .”). According to Trevino, he drove approximately one-fourth of a mile
behind appellant’s car before activating his patrol car’s emergency lights. However,
once Trevino turned on his patrol car’s emergency lights, appellant continued to
drive his car for “a half of a mile to just under a mile.” See, e.g., Lopez, 415 S.W.3d
at 497 (“From the officers’ testimony that their lights . . . were activated for 0.6 miles
or approximately one and one-half minutes, the [fact finder] could [have] reasonably
infer[red] that [defendant] was aware the officers were attempting to detain him but
[he] intended to flee to the driveway of his house.”); O’Quinn v. State, No.
10-11-00114-CR, 2012 WL 3055280, at *4 (Tex. App.—Waco July 26, 2012, no
14
pet.) (mem. op., not designated for publication) (sufficient evidence of intent to
evade arrest, or detention, where defendant did not stop his car for thirty seconds).
Officer Trevino testified that he had “no doubt” that appellant, as he drove,
could see the emergency lights on Trevino’s patrol car. And according to Trevino,
if he could see the taillights on appellant’s car as he drove, then appellant could see
the activated emergency lights on Trevino’s patrol car as he followed appellant. See,
e.g., Britt v. State, No. 14-06-00131-CR, 2007 WL 1215490, at *3 (Tex. App.—
Houston [14th Dist.] Apr. 26, 2007, pet. ref’d) (mem. op., not designated for
publication) (evidence sufficient to find defendant intentionally fled where law
enforcement officer testified that his patrol car’s emergency lights would have been
noticeable to defendant). Trevino noted that as he followed appellant’s car with his
emergency lights activated, there were places for appellant to safely stop his car.
See, e.g., Schmitt, 2013 WL 6924171, at *1, *5 (evidence sufficient to find defendant
knew officer trying to detain him where law enforcement officer testified defendant
“had a safe place to stop,” while being followed by officer in patrol car with activated
emergency lights); Luna v. State, No. 04-05-00518-CR, 2006 WL 1814308, at *2–3
(Tex. App.—San Antonio July 5, 2006, no pet.) (mem. op., not designated for
publication) (evidence sufficient to find defendant intentionally fled where law
enforcement officer testified that, after activating his patrol car’s emergency lights,
defendant did not stop until he arrived at his place of residence).
15
The videotaped recording from Trevino’s patrol car, admitted into evidence
at trial, shows Trevino’s patrol car driving behind appellant’s car for approximately
thirty-one seconds without his patrol car’s emergency lights activated. After both
appellant and Trevino turn their cars onto Beckford Drive, Trevino activates his
patrol car’s emergency lights. Appellant’s car is visible on the videotaped recording
when Trevino activates his patrol car’s emergency lights. Upon activating his patrol
car’s emergency lights, Trevino continues to follow appellant’s car for
approximately thirty seconds. At times, Trevino had to drive his patrol car more
than sixty miles per hour to keep up with appellant’s car.
After appellant turns his car into the driveway of his home, Officer Trevino
arrives at the home within approximately two seconds with his patrol car’s
emergency lights still activated. Trevino noted, while watching the videotaped
recording, that appellant’s car and its brake lights can be seen on the recording, at
the same time that Trevino’s patrol car’s emergency lights are activated. See, e.g.,
Rico, 2012 WL 952113, at *3 (noting in regard to videotaped recording that
defendant’s “tail lights can be seen in front of [law enforcement officer’s] vehicle”);
Coggin, 2006 WL 1292581, at *2 (evidence sufficient to find defendant intentionally
fled where law enforcement officer testified that defendant “would have been able
to see his emergency lights . . . during the chase”).
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Appellant argues that he could not have known that “[the] police were present
and that they were pursuing” him because Officer Trevino “did not make a show of
authority until [appellant] was almost home”; Trevino only had his “emergency
lights activated to alert” appellant for “seven to eight seconds,” “over five different
streets inside of a neighborhood full of obstacles including trees, houses, and
vehicles”; appellant “never made any changes in his driving pattern to indicate [that]
he [had] ever s[een] Trevino”; and appellant told Trevino “[M]an, I’m just trying to
get home” and “[M]an, I never saw you. I never saw you.”2 (Internal quotations
omitted).
No particular speed, distance, or duration of pursuit is required to show the
requisite intent for the offense of evading arrest, or detention, in a motor vehicle.
See Griego, 345 S.W.3d at 751; see also Reyes, 465 S.W.3d at 805–06 (evidence
sufficient to find defendant “intentionally fled in a vehicle” despite “pursuit last[ing]
less than a minute”); Baines v. State, 418 S.W.3d 663, 666, 670 (Tex. App.—
2
Although appellant cites Griego v. State and Redwine v. State, in support of his
assertion that he did not know that Officer Trevino was pursuing him, we find the
facts of those cases to be distinguishable from the facts of the instant case. See 345
S.W.3d 742, 752 (Tex. App.—Amarillo 2011, no pet.) (law enforcement officers
traveling in opposite direction with their patrol car’s emergency lights and siren
already activated and would have appeared to have been responding to another
matter in that opposite direction); 305 S.W.3d 360, 361, 363 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref’d) (law enforcement officers did not activate their patrol
cars’ emergency lights and sirens and officers did not make a show of authority until
after defendant had exited his vehicle and ran into a forest).
17
Texarkana 2010, pet. ref’d) (noting “length and speed of chase are not determinative
factors” and holding evidence sufficient to support finding defendant intentionally
fled despite “chase [occurring] . . . around a single city block” at low speed); Horne,
228 S.W.3d at 446 (evidence sufficient to find defendant “attempting to evade arrest,
even if only for [a] few minutes”); Mayfield v. State, 219 S.W.3d 538, 541 (Tex.
App.—Amarillo 2007, no pet.) (law “requires only an attempt to get away from a
known officer of the law”). And a person who continues driving to his own home,
while being pursued by a law enforcement officer, may still possess the intent to
commit the offense of evading arrest, or detention, in a motor vehicle. See Horne,
228 S.W.3d at 445–46 (evidence sufficient to find intent to evade arrest, or detention,
where, although defendant eventually pulled into his own driveway, he did not pull
over and stop for “the few minutes it took to park his car in front of his mother’s
house”); see also Carter v. State, No. 01-16-00075-CR, 2016 WL 7368103, at *3
(Tex. App.—Houston [1st Dist.] Dec. 15, 2016, no pet.) (mem. op., not designated
for publication) (evidence sufficient to find intent to evade arrest, or detention,
although defendant argued law enforcement officer’s car was block or more behind
him, speed of pursuit was unremarkable, its duration was short, lasting no more than
two minutes, and at the end, he pulled into his own driveway); Luna, 2006 WL
1814308, at *2 (evidence sufficient to find defendant intentionally fled where law
enforcement officer testified that, after activating his patrol car’s emergency lights,
18
defendant only stopped when he arrived at his place of residence); Coggin, 2006 WL
1292581, at *2 (rejecting argument “that it cannot be a crime for a person to go to
his own home”).
The trial court’s role, as the fact finder in this case, is to reconcile any conflicts
in the evidence and judge the witnesses’ credibility. See Garrett, 619 S.W.2d at 174;
Shah v. State, 403 S.W.3d 29, 34 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d);
Lee v. State, 952 S.W.2d 894, 897 (Tex. App.—Dallas 1997, no pet.).
Here, the record supports, by a preponderance of evidence, the trial court’s
finding that appellant violated a condition of his community supervision by
committing the offense of evading arrest, or detention, in a motor vehicle. See TEX.
PENAL CODE ANN. § 38.04(a). Accordingly, we hold that the trial court did not err
in finding true the allegation that appellant had “[c]ommitt[ed] an offense against
the State of Texas” and adjudicating his guilt.
We overrule appellant’s sole issue.
Modification of Judgment
We note that the trial court’s written judgment does not accurately comport
with the record in this case in that it, under the heading of “special finding[] or
order[],” states: “APPEAL WAIVED. NO PERMISSION TO APPEAL
GRANTED.” Here, however, the record reflects that the trial court certified
appellant’s right to appeal. See TEX. R. APP. P. 25.2(d) (requiring trial court to
19
certify defendant’s right of appeal). When there is a conflict between a trial court’s
“Certification of [the] Defendant’s Right of Appeal” and a written judgment
concerning a defendant’s right to appeal, the certification controls, especially when
the remainder of the record supports the statement in the certification. See Grice v.
State, 162 S.W.3d 641, 645 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
“[A]ppellate court[s] ha[ve] the power to correct and reform a trial court
judgment ‘to make the record speak the truth when [they] ha[ve] the necessary data
and information to do so, or make any appropriate order as the law and nature of the
case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st
Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—
Dallas 1991, pet ref’d)). Although neither party addresses the inconsistency between
the trial court’s written judgment and the record in this case, we, based on our
review, conclude that the portion of the judgment regarding appellant’s right to
appeal does not accurately comport with the record in this case. See Asberry, 813
S.W.2d at 529–30 (authority to correct incorrect judgment not dependent upon
request of any party).
Accordingly, we modify the trial court’s judgment to strike the “special
finding[] or order[]” of “APPEAL WAIVED. NO PERMISSION TO APPEAL
GRANTED.” See TEX. R. APP. P. 43.2(b); see, e.g., Jones v. State, No.
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01-14-00385-CR, 2015 WL 4591745, at *9 (Tex. App.—Houston [1st Dist.] July
30, 2015, no pet.) (mem. op., not designated for publication).
Conclusion
We affirm the judgment of the trial court as modified.
Julie Countiss
Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
Do not publish. TEX. R. APP. P. 47.2(b).
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