Fred Loualex Rodgers v. State ( 2021 )

Affirmed and Majority and Dissenting Opinions filed March 30, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00216-CR
FRED LOUALEX RODGERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 2
Fort Bend County, Texas
Trial Court Cause No. 18-CCR-206134
MAJORITY OPINION
In this single-issue appeal, appellant Fred Rodgers, complains that his
misdemeanor failure-to-identify conviction was not supported by legally sufficient
evidence at trial. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was apprehended at a Wal-Mart in Stafford, Texas on suspicion of
theft of items that he failed to scan and pay for at the self-check-out register. He
was detained in the Wal-Mart’s loss prevention office along with his brother and
mother by the store’s loss prevention officer pending the arrival of Stafford police.
He was later charged for that offense and his case was tried to jury. Based on a
series of events that took place once Stafford police arrived, the State also charged
appellant by information with a failure-to-identify offense. The two offenses were
tried together.
The most significant evidence in the trial of appellant’s failure-to-identify
case consisted of Officer Ryan Graves’s testimony and the video recording from
his body-camera showing his interaction with appellant and others in Wal-Mart’s
loss prevention office.
Officer Graves’s Testimony
Officer Graves testified that appellant identified himself as “Terrence
Rogers,” which yielded no record in the police database. He later testified that
appellant refused to provide his name. Officer Graves originally characterized his
handling of appellant as a detention; explaining that he had not arrested appellant
until after the value of the stolen property had been confirmed to exceed the
minimum dollar-value consistent with the Stafford Police Department’s arrest
policy. While testifying, Officer Graves revealed that he was under the
impression that appellant was being tried for an offense under different subsection
of the failure-to-identify statute, for providing him with a false name (rather than
refusing to provide a name) following Graves’s lawful detention of appellant
(rather than following Graves’s lawful arrest of appellant). But during his redirect
examination, Officer Graves testified in support of the charged offense:
Q. In this case, did Mr. Rodgers refuse to give you his name?
A. Yes, sir.
Q. Did he do it more than once?
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A. He did.
Q. And for clarification, was he in handcuffs the entire time that he
refused to give you his name?
A. Yes, sir.
Q. And at one point you read him what’s commonly referred to as his
Miranda Rights, right?
A. Yes, sir.
Q. And he refused to give you his name again; is that right?
A. Yes, sir.
Q. And at no point during the entirety of his time in that loss
prevention room did you let him out before y’all walked into it, right?
A. No, sir --
Q. You testified he was trying to get out at the beginning, right?
A. At the beginning, he was trying to walk out the front door.
Q. Yes, sir. And did you guys let him walk out?
A. No, sir, we didn’t.
State’s Exhibit 3, the Body-Cam Video
States Exhibit 3, provided the jury with an objective look at the entire
exchange at the store that forms the basis of the failure-to-identify charge. The
video showed that upon entering the loss prevention office, Officer Graves
immediately encountered appellant, requested that appellant remove his backpack,
and recovered a knife from appellant. After appellant refused Officer Graves’s
request to search his pockets, he was handcuffed, and told that he was being
detained for theft. Appellant stated that he had not stolen anything. Appellant
again asked why he was being detained. Officer Graves then stated:
Because you were acting aggressive when I came to talk to you. . . .
So I detained you for officer safety. That doesn’t mean you’re
arrested. That means you can come out of the handcuffs as soon as I
figure out what’s going on.
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Then Officer Graves requested appellant to provide his last name, first name,
and date of birth. Appellant, whose correct name is Fred Rodgers, provided a false
first name and misspelled last name, “Tearrance Rogers,” but provided his correct
date of birth.
Officer Graves then spoke with the store’s loss prevention officer who
reported details of witnessing appellant steal store items. As Officer Graves
shuttled between suspects and the store employees he was told on his radio that the
name appellant provided him was “not returning.” Officer Graves had a brief
discussion with appellant and asked him again for some type of identifying
information. Officer Graves then approached appellant’s half-brother and
questions him about the theft, then reads his half-brother his Miranda rights.
Officer Graves then shuttled back to appellant, read appellant his Miranda rights,
then interrogated appellant about the theft. He suggests to appellant that store
cameras would have captured any offense. Officer Graves was then alerted by a
store employee about missing gloves in appellant’s backpack that the employee
would like to re-shelve, and then searches the backpack. After discovering
unpurchased gloves in appellant’s backpack, Officer Graves confronted appellant,
accused appellant of lying to him and ordered appellant to sit down. Appellant
resisted initially, but ultimately complied. Officer Graves then shuttled across the
room to appellant’s half-brother, hand cuffed him, and asked that he sit down while
stating that appellant was being “temporarily detained.”
Officer Graves returned to appellant and asked him if he had ever been
arrested before. Appellant did not respond and appeared to act as if asleep.
Officer Graves then stated, “You are not arrested right now, you are detained.”
After a pause, Officer Graves then asked appellant to spell his name again, and
appellant nodded his head in silence. Then Officer Graves stated, “So you are just
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not going to talk to me now?” Appellant responded by reminding Officer Graves
that he had been read his Miranda rights and his right to remain silent. Officer
Graves responded, “Right now I’m just trying to identify you. I’m not asking you
anything about what’s going on. I’m trying to identify who you are. . . Because
this name’s not coming back and I feel like you’re not being truthful with me.”
Officer Graves then had a discussion with the loss prevention officer, who
explained to Officer Graves his challenge identifying who, between appellant and
his half-brother, stole which of the items identified as stolen. They agreed the loss
prevention officer would add all up and then split the total in half.
Officer Anzalone arrived an hour after Officer Graves arrived to assist
Officer Graves. By this point appellant’s mother had been excused from the loss
prevention office. In the doorway of the loss prevention room, Officer Graves
related to Officer Anzalone the problem identifying appellant. Officer Graves
gave Anzalone the note pad on which he had written the name that appellant had
provided earlier, and Anzalone approached appellant asked appellant if the name
on the pad was correct. Appellant indicated that it was correct. Graves repeated
the spelling of the first name appellant provided, “T-E-A-R-R-E-N-C-E, correct?”,
to which appellant nodded affirmatively again. Later, Anzalone turned to
appellant, stating, “You are aware it’s another charge, right?” Appellant nodded in
response. Anzalone continued and told appellant that if he had any warrants that it
would be easier to handle if he was not “caught up . . . in a Failure to ID.”
Anzalone then asked appellant again while pointing to Officer Graves’s note pad,
“That’s your name?” Appellant then said “No,” stated his correct name, “Fred”
which he ridiculed Graves for not seeing printed on his knife, and spelled out his
last name “R-O-D-G-E-R-S.”
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“The greatest gift you ever give is your honest self.”1
The jury found appellant guilty on the failure-to-identify offense. The State
and appellant reached an agreement as to appellant’s punishment, for fifty-nine
days’ jail time. The trial court sentenced appellant accordingly, crediting appellant
for fifty-nine days’ jail time served, the full duration of that sentence. This appeal
challenges only the guilt portion of the case.
II. SUFFICIENCY OF THE EVIDENCE
Appellant’s sole complaint is that the evidence at trial was legally
insufficient to support the elements of his failure-to-identify conviction.
A. Standard of Review
In evaluating this complaint, we view the evidence in the light most
favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App.
2000). The issue on appeal is not whether we, as a court, believe the State’s
evidence or believe that appellant’s evidence outweighs the State’s evidence.
Wicker v. State, 667 S.W.2d 137, 143 (Tex. Crim. App. 1984). The verdict may
not be overturned unless it is irrational or unsupported by proof beyond a
reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
The jury “is the sole judge of the credibility of the witnesses and of the strength of
the evidence.” Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).
The jury may choose to believe or disbelieve any portion of the witnesses’s
testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When
faced with conflicting evidence, we presume the jury resolved conflicts in favor of
the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993).
Therefore, if any rational trier of fact could have found the essential elements of
1
Fred Rogers (1995). “You Are Special: Words of Wisdom for All Ages from a Beloved
Neighbor”, p.92, Penguin.
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the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939
S.W.2d 607, 614 (Tex. Crim. App. 1997).
B. Legal Standards Applicable to Failure-to-Identify Offense
The information alleges that appellant “on or about November 13th 2018 did
then and there intentionally refuse to give his name and date of birth to Ryan
Graves, a peace officer who had lawfully arrested the said defendant and requested
the information, and the said defendant knew that Ryan Graves was a peace
officer.” It further alleges that appellant was at the time “a fugitive from justice.”
Section 38.02 of the Penal Code outlines different conduct that constitutes a
failure to identify. The offense which carries the lightest penalty is outlined under
subsection (a):
(a) A person commits an offense if he intentionally refuses to give his
name, residence address, or date of birth to a peace officer who has
lawfully arrested the person and requested the information.
Penal Code Ann. § 38.02(a). When as in this case, such conduct
accompanied by an allegation that the person “was a fugitive from justice at the
time of the offense”, the offense under subsection (a) is enhanced to a Class B
misdemeanor. Tex. Pen. Code Ann. §§ 38.02, 12.21, 12.22.
Appellant frames his appellate complaint as a sufficiency-of-evidence
challenge to two different offenses, subsections (a) and (b) of section 38.02 of the
Texas Penal Code.2 Because appellant was only charged and convicted for an
offense described under subsection (a) of 38.02 of the Texas Penal Code, we only
consider whether the evidence at trial was legally sufficient to support a conviction
2
The two subsections differ 38.02(a) addresses the intentional refusal to give name,
residence address, or date of birth to a peace officer who has lawfully arrested the person and
requested the information.” Section 38.02(b) addresses the intentional giving of “a false or
fictitious name, residence address or date of birth to a peace officer who has . . . lawfully arrested
the person [or] lawfully detained the person . . . .” Tex. Pen. Code Ann. § 38.02(a), (b).
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for that offense.
The State was required to prove that appellant intentionally refused to give
his name or date of birth, to a peace officer, Officer Graves, after Officer Graves
had lawfully arrested him and requested the information, and that defendant was a
fugitive from justice at the time of the offense. Tex. Pen. Code Ann. § 38.02(a).
“Fugitive from justice” means a person for whom a valid arrest warrant has been
issued. Tex. Pen. Code Ann. § 38.01(5). The State put forth uncontroversial
evidence such that a rational jury could have concluded that Officer Graves was a
peace officer, that appellant was a fugitive from justice at the time of the offense
and that Officer Graves requested appellants name and date of birth. We focus our
attention to whether Officer Graves “lawfully arrested” appellant and if so, after
that point in time whether appellant intentionally refused to provide his name.
C. Analysis
Lawful Arrest
We first consider whether a rational jury could have concluded that appellant
was “lawfully arrested.” The State asserts that the jury was free to arrive at their
own conclusion about the definition of arrest because the term “lawfully arrested”
is not defined in the Penal Code. Though the jury was not provided any legal
definition of the term, the term is not meaningless. Medford v. State, 13 S.W.3d
769, 772 (Tex. Crim. App. 2000)(“The fact that the Legislature did not incorporate
a specific definition of ‘arrest’ into the Penal Code does not authorize jurors ‘to
employ any [acceptable] meaning of the term.’”).
For purposes of distinguishing between a full custodial arrest and a
temporary detention, an arrest occurs when (1) a person’s liberty of movement is
successfully restricted or restrained, whether this is achieved by an officer’s
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physical force or the suspect’s submission to the officer’s authority; and (2) a
reasonable person in the suspect’s position would have understood the situation to
constitute a restraint on freedom of movement of the degree which the law
associates with a formal arrest. Sample v. State, 292 S.W.3d 135, 137 (Tex. App.—
Houston [14th Dist.] 2008, pet. ref’d). Because the occurrence of an arrest cannot
be determined by any bright-line test, whether an arrest has occurred must be
determined on a case-by-case basis by examining the totality of the circumstances.
Id. To effectuate a full custodial arrest, an officer must have probable cause to
believe the person arrested has committed or is committing an offense. See Amores
v. State, 816 S.W.2d 407, 411 (Tex. Crim. App. 1991).
Factors we consider in determining whether a particular encounter amounted
to an arrest or detention include the amount of force displayed, the duration of
detention, the efficiency of the investigative process, whether it was conducted at
the original location or the person is transported to another location, and whether
the officer told the detained person that he or she was under arrest or was
being detained only for a temporary investigation. State v. Sheppard, 271 S.W.3d
281, 291 (Tex. Crim. App. 2008); see 40 George E. Dix & John M. Schmolesky,
Texas Practice: Criminal Practice and Procedure § 10.20 (3d ed. 2011 & Supp.
2020). If the degree of incapacitation appears more than necessary to safeguard the
officers and assure the suspect’s presence during a period of investigation, these
facts suggest the detention is an arrest. Id. at 291; Ortiz v. State, 421 S.W.3d 887,
891 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d) (quoting Dix & Dawson §
7.34).
Viewing the evidence in a light most favorable to the verdict, we conclude
that a rational jury could have concluded from Officer Graves’s testimony and the
body-cam video that appellant was lawfully arrested shortly after Officer Graves
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discovered stolen gloves in appellant’s backpack, when Officer Graves verbally
instructed (and physically guided) appellant to sit down against appellant’s
expressed wishes and told appellant that he had lied to him. Officer Graves’s
discussion with the loss prevention employee and his discovery of stolen property
in appellant’s backpack aided Officer Graves in having probable cause to arrest
appellant for theft. Castillo v. State, 404 S.W.3d 557, 563 (Tex. App.—Houston
[1st Dist.] 2010, pet. ref’d) (temporary detention pending transformed into
custodial arrest upon appellant witnessing police’s discovery of contraband
connected to appellant). A reasonable person would have understood the situation
to constitute a restraint on his freedom of movement to the degree that the law
associated with a formal arrest.
Importantly, although Officer Graves reiterated that appellant was detained
not arrested, he never stated that appellant was free to leave, and when he first
arrived prevented appellant from leaving. Id. at 564; but see Howes v. Fields, 565
U.S. 499, 514–17 (2012) (finding inmate who was called to room for interview
was found not “in custody” under Miranda, during five-to-seven hour interview
when he was offered food and drink, not physically restrained, and told that he was
free to leave and return to his cell whenever he wanted). After Officer Graves
commanded that appellant sit, it became clear that a reasonable person in
appellant’s position would not have felt free to leave. See Sample v. State, 292
S.W.3d at 137; see also Castillo, 404 S.W.3d at 563. The jury may have observed
that from the video that shortly after he sat down this prompted a change in
appellant’s demeanor.
We note that the jury heard evidence favorable to finding that appellant was
not formally arrested. The exchange took place at Wal-Mart, rather than at the
station or in a police vehicle; appellant was not transported to a different location.
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And the video showed various instances where Officer Graves told appellant he
was being detained and not arrested. While the officer’s expressions are relevant
to our analysis concerning if and when a jury could rationally conclude Officer
Graves had lawfully arrested appellant, we are not aware of any case which
instructs us that any particular criteria is dispositive, or would require the jury to
disregard other contrary evidence that lends to the conclusion that appellant was
lawfully arrested.
We accept that in all but the last instance that Officer Graves told appellant
he was being detained and not arrested, that it remained true that he was not yet
arrested. However, a rational jury could conclude that when Officer Graves
personally found stolen gloves in appellant’s backpack, accused him of lying, and
commanded him to sit down, that his theft investigation had taken a turn. See
Castillo, 404 S.W.3d at 563. A rational jury could conclude that Officer Graves
had probable cause to arrest appellant for the theft of the stolen property and that
he objectively manifested an intent to arrest appellant in such a way that appellant
understood that he was arrested. See id. Moreover, a rational jury could
reasonably conclude that shortly after the arrest, when Officer Graves stated that
appellant was not under arrest but only detained, based on appellant’s conduct in
the body cam video, that appellant disregarded Officer Graves’s statement.
Specifically, a rational jury could reasonably conclude that appellant’s assertion of
his right to remain silent suggested that appellant believed he was under arrest, and
in turn, Officer Graves’s reply indicated that he was in fact operating under the
same belief, stating to appellant he was only requesting appellant’s identity and not
investigating about the theft any further. See id.
Intentional Refusal
We next consider whether appellant intentionally refused to provide Officer
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Graves with his name. The term “refuse” is not defined in the Penal Code, but is
not ambiguous, so we consider its plain ordinary meaning. In determining plain
meaning, words and phrases must be read in context and construed according to
the rules of grammar and usage. Sanchez v. State, 995 S.W.2d at 683 (citing Tex.
Gov’t Code Ann. § 311.011(a)). Common ordinary meanings of the term “refuse”
as expressed in the dictionary are “1. to express oneself as unwilling to accept, 2a.
to show or express unwillingness to do or comply with refused to answer the
question, 2b. to not allow someone to have or do (something).” Webster’s Online
Dictionary, “refuse”.
The State urges us to find that appellant’s conduct “pretend[ing] to be asleep
for some moments” constituted an intentional refusal to provide his name. We are
reluctant to equate appellant’s silence alone with an act of “intentional refusal”
when a true answer would have incriminated him for a violation under subsection
(b)(1) based on previous statements made during the exchange. But a reasonable
jury could have concluded that appellant exhibited conduct manifesting an intent to
refuse to identify himself shortly after Officer Graves asked appellant to spell his
name again because the name he had first provided did not yield an existing person
registered in the system. At that point in time, the body cam video revealed that
appellant nodded his head, and then reminded Officer Graves that he had been read
his Miranda rights. Officer Graves responded by explaining that he was simply
trying to identify appellant and appellant insisted that the name he had already
provided was his true name. Considering this conduct exhibited in the video, the
jury was also free to accept as true Officer Graves’s testimony that appellant
refused to provide a correct name.
After watching the entire exchange and learning that the name appellant had
first provided was false, a jury could have reasonably believed that when appellant
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nodded, and verbally insisted that Officer Graves already had the identifying
information that he needed, that appellant was intentionally refusing to provide his
true name.
Resolving conflicts in witness testimony in favor of the conviction, the
evidence shows that Officer Graves recovered appellant’s knife, handcuffed
appellant, gathered inculpatory evidence concerning appellant’s theft charge,
informed appellant of his Miranda rights, and when sufficiently restrained,
requested his name. Appellant’s subsequent insistence that the incorrect name he
had already provided the officer was correct operated as a refusal to provide his
true name. Because the officers had an objectively reasonable basis for
questioning appellant, appellant was lawfully detained shortly after Officer Graves
arrived, and later lawfully arrested after appellant watched Officer Graves
investigate and develop probable cause that appellant committed a theft crime. A
jury could reasonably conclude that when Officer Graves commanded appellant to
sit, after informing of his Miranda rights, this additional act of limiting appellant’s
mobility, constituted a restraint that was more than merely necessary to safeguard
his safety, and more than necessary to merely assure appellant’s presence during a
period of investigation. Appellant refused to assist in clarifying his identity after he
was under arrest. We hold that the evidence was sufficient for the trial court to
conclude beyond a reasonable doubt that appellant was lawfully arrested when he
refused to provide his correct name to Officer Graves.
Accordingly, we overrule appellant’s sole issue.
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III. CONCLUSION
Having overruled appellant’s sole issue, we affirm.
/s/ Randy Wilson
Justice
Panel consists of Justices Jewell, Spain and Wilson (Spain, J., dissenting).
Publish — TEX. R. APP. P. 47.2(b).
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