Joshua Dale Bitter v. the State of Texas ( 2023 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JOSHUA DALE BITTER, § No. 08-22-00176-CR
Appellant, § Appeal from the
v. § 109th Judicial District Court
THE STATE OF TEXAS, § of Crane County, Texas
Appellee. § (TC# 1929)
MEMORANDUM OPINION
A jury convicted Appellant Joshua Dale Bitter of evading arrest or detention in a motor
vehicle, enhanced for a prior conviction to which he pleaded “true,” and assessed punishment of
7.5 years confinement, which the trial court imposed. See TEX. PENAL CODE ANN.
§ 38.04(a)(b)(2)(A). On appeal, Bitter brings a single issue asserting the evidence was legally
insufficient to prove he fled intentionally. We affirm.
I. BACKGROUND
A grand jury charged Joshua Dale Bitter by indictment alleging that, on or about June 2,
2020, Bitter, while using a vehicle, intentionally fled from a person the defendant knew was a
peace officer who was attempting lawfully to arrest or detain him. At trial, the State presented
testimony from Gerardo Rodriguez, a Highway Patrol Trooper with the Texas Department of
Public Safety. Also, the State presented, and the trial court admitted, a dash-cam video recording
from Rodriguez’s patrol vehicle depicting the incident in question. Bitter also testified in his own
defense. The evidence at trial established the following.
On June 2, 2020, Rodriguez was assigned to traffic enforcement, working stationary radar
on highway FM 1053 in Crane County. Rodriguez described the area as a two-lane highway, more
of a back road, with little traffic. Rodriguez remained stopped on the side of the road checking
motorist’s speeds and anything else that caught his attention. Rodriguez noticed a red Chevy
Camaro approaching his position with an improperly placed license plate. Rodriguez then turned
around and turned on his emergency lights to initiate a traffic stop. He explained that he typically
turned on his lights early so the other driver could see them and find a safe spot to pull over.
As Rodriguez followed the red Camaro, it turned into a dirt road to the right. Because
Rodriguez believed the vehicle was stopping, he began slowing down. Soon, however, the vehicle
U-turned then drove southbound on the highway in the opposite direction. Rodriguez moved over
to the opposite lane, to prevent the vehicle from leaving. But it then drove on the shoulder of the
road and continued at a high rate of speed. Rodriguez immediately turned around, turned on his
siren, and pursued the vehicle. Rodriguez noticed there was only one occupant in the vehicle, a
man with long hair in dreadlocks.
Rodriguez testified the driver drove at a high rate of speed. Even after Rodriguez reached
a speed of about 110 miles per hour, he could not catch up to the other vehicle. He decided to slow
down and ask for backup. It came to his mind that he remembered a subject that lived in the area.
He then noticed dust still lingering in the air from a dirt road to a residence. Noting the dust,
Rodriguez assumed the vehicle had turned onto the road. Rodriguez made a U-turn and pulled into
the road which had a residence a short distance away. He then observed the male subject walking
around. He instructed him to come towards him and show his hands. Rodriguez recognized Bitter
from previous law enforcement encounters. From the dash cam recording, he can be heard calling
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Bitter by name. Rodriguez also observed the red Camaro parked at the end of the driveway by the
house.
Rodriguez yelled at Bitter to walk towards him with his hands up. Rodriguez testified he
wanted Bitter to come towards him because he did not have backup yet. Bitter can be seen walking
towards Rodriguez but repeatedly walks back towards the house. Rodriguez continues to yell at
him to come towards him. Bitter can also be heard yelling back at Rodriguez but it is unclear what
is said. Bitter finally arrives at a concrete culver close to Rodriguez and Rodriguez tells him to lay
down on the concrete so he can detain him. Bitter tells him no and tells Rodriguez to come towards
him. Bitter finally lays down on the concrete for about 30 seconds but then gets back up and walks
towards the house. Once Rodriguez’s backup arrived, he detained him in handcuffs. Because the
pursuit had flowed into Pecos County, Rodriguez received backup from Constable King of
Imperial.
Rodriguez further testified that Bitter stated he did not stop because he did not have “a
good license.” Bitter commented, “I almost got you, though.” Rodriguez understood his comment
as referencing his attempt to evade the stop. Rodriguez soon discovered that Bitter had a suspended
license.
In the defense case in chief, Bitter testified he did not stop when he was supposed to
because he was driving a vehicle not registered in his name. He described that he believed it would
be easier to get out of jail than to get the car out of impound. Bitter testified he was not trying to
get away from Rodriguez. Rather, he wanted to get the vehicle on private property to avoid having
it towed. On cross examination, Bitter confirmed he understood the law and he knew he was
supposed to stop when Rodriguez attempted to pull him over. Bitter confirmed he did not stop
when he knew he was required to stop but made the conscious decision to keep going.
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After deliberations, the jury found Bitter guilty of the charged offense. At the punishment
phase, Bitter pleaded true to the enhancement paragraph, admitting he had been convicted in 2011
of a felony charge of burglary of a habitation with intent to commit assault. The jury assessed
punishment at imprisonment in the Texas Department of Criminal Justice for a term of 7.5 years
and a fine of $5,000. The trial court entered judgment in accordance with the jury’s verdict. This
appeal followed.
II. DISCUSSION
In his sole issue, Bitter contends the evidence is legally insufficient to establish that Bitter
was guilty of evading arrest as alleged in the indictment. Specifically, Bitter contends he denied
having the intent to intentionally flee from Trooper Rodriguez. Rather, he merely intended to get
his vehicle to his residence so it would not be impounded. After arriving at his residence, Bitter
argues he walked to Rodriguez with his hands in the air. Thus, he argues the evidence is legally
insufficient to establish his guilt as charged by the indictment.
A. Standard of review and applicable law
In assessing the sufficiency of the evidence to support a criminal conviction, we consider
all the evidence in the light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S.
307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). This standard
gives full play to the responsibility of the trier of fact to 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).
We may not substitute our judgment for that of the factfinder by reevaluating the weight
and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
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Rather, we defer to the responsibility of the factfinder to fairly resolve conflicts in testimony,
weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. This
standard applies equally to both circumstantial and direct evidence. Id. Each fact need not point
directly and independently to the appellant’s guilt, as long as the cumulative effect of all
incriminating facts is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007).
The elements of evading arrest or detention while using a motor vehicle are (1)
intentionally fleeing; (2) from a person whom the defendant knows is a peace officer; (3) trying to
lawfully arrest or detain him; and (4) using a motor vehicle while in flight. See TEX. PENAL CODE
ANN. § 38.04(a). “A person acts intentionally, or with intent, with respect to the nature of his
conduct or to a result of his conduct when it is his conscious objective or desire to engage in the
conduct or cause the result.” TEX. PENAL CODE ANN. § 6.03.
A person commits a crime under § 38.04 if he knows a police officer is attempting to arrest
or detain him but nevertheless refuses to yield to a show of police authority. Redwine v. State, 305
S.W.3d 360, 362 (Tex. App.—Houston [14th Dist.] 2010, pet ref’d). “[F]leeing is anything less
than prompt compliance with an officer’s direction to stop.” Horne v. State, 228 S.W.3d 442, 446
(Tex. App.—Texarkana 2007, no pet.). “Intent may be inferred from conduct.” Smith v. State, 483
S.W.3d 648, 653 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Factors such as speed, distance,
and duration of pursuit may be factors in considering whether a defendant intentionally fled, but
no particular speed, distance, or duration is required to show the requisite intent if other evidence
establishes such intent. Griego v. State, 345 S.W.3d 742, 751 (Tex. App.—Amarillo 2011, no pet.).
B. Analysis
Bitter argues the evidence was insufficient because he testified that he did not initially stop
when he should have because he believed it would be easier to get out of jail than to get the vehicle
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out of impound, as it was not in his name. In essence, Bitter complains the evidence is legally
insufficient to prove he intentionally fled from Rodriguez. Rather, he argues it established he
merely wanted to get the vehicle home before he then surrendered.
A similar argument was presented and rejected by the Sixth Court of Appeals. See Horne
v. State, 228 S.W.3d 442, 446 (Tex. App.—Texarkana 2007, no pet.). There, an officer pursued
Brandon Horne after clocking him driving 45 miles per hour in a 35 mile-per-hour zone. Id. at 444.
Horne did not stop when the officer turned on his overhead lights or his siren but stuck his arm out
the window and motioned for the officer to follow him. Id. When the officer pulled up beside
Horne and ordered him to pull over, appellant shook his head and continued to drive. Id. Even after
the officer pulled his vehicle in front of Horne’s vehicle to block his path, he circumvented the
officer’s car until he reached his destination of his mother’s house. Id. at 445. Horne had not
stopped because he had outstanding city warrants and wanted to get his vehicle to his mother’s
house so it would not be impounded. Id. Though the evidence indicated Horne had no intent to
ultimately escape the officer, the reviewing court in Horne concluded it showed he was attempting
to evade arrest, even if only for a few minutes. Id. at 446. Thus, Horne held the evidence was
legally sufficient to support the jury’s verdict convicting him of evading detention. Id.Here, the evidence established that once Rodriguez initially activated the lights on his
patrol vehicle, Bitter turned around and traveled in the opposite direction at a high rate of speed.
Rodriguez attested he was going about 110 miles per hour and still could not catch up to Bitter’s
red Camaro. The evidence also showed Rodriguez pursued Bitter for approximately four minutes
down the highway. Moreover, Bitter admitted he did not stop when he knew he was lawfully
required to do so and consciously decided to keep driving to his residence. From this evidence, a
reasonable fact finder could have concluded that Bitter knew Rodriguez was pursuing him and he
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intended to flee. See Horne, 228 S.W.3d at 446 (describing that “fleeing” is anything less than
prompt compliance).
Additionally, as the sole judge of the weight and credibility of witnesses, the jury was free
to believe or disbelieve all or any part of Bitter’s testimony. See TEX. CODE CRIM. PROC. ANN.
§ 38.04(a); Isassi, 330 S.W.3d at 638. Although the jury heard Bitter’s testimony that he only
intended to drop the vehicle off at his residence, the jury also viewed the video from the patrol
vehicle’s dashcam. The jury could have viewed Bitter’s conduct of making a U-turn and driving
at a high rate of speed, to the point he lost contact with Rodriguez, as evidence of intent to evade
arrest or detention. Also, once Rodriguez located Bitter at his residence, the jury could have viewed
his conduct of not complying with Rodriguez’s requests to walk towards him and lay down on the
culvert as evidence he intended to evade an arrest or detention. Lastly, the jury heard testimony
from Rodriguez that once Bitter was detained in handcuffs, he commented, “I almost got you,
though.” From all of this evidence, the jury could have disbelieved Bitter’s testimony and found
beyond a reasonable doubt that he intentionally evaded detention with a vehicle as alleged by the
indictment. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 912.
Finding the evidence legally sufficient, we overrule Bitter’s sole issue.
III. CONCLUSION
We affirm.
GINA M. PALAFOX, Justice
May 25, 2023
Before Rodriguez, C.J., Palafox, and Soto, JJ.
(Do Not Publish)
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