Glenn Lloyd Kingham v. State

Affirmed and Memorandum Opinion filed December 23, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-01035-CR
GLENN LLOYD KINGHAM, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1371576
MEMORANDUM OPINION
Appellant Glenn Lloyd Kingham challenges his conviction for evading
arrest and detention, asserting that there was insufficient evidence to support the
conviction and that he was egregiously harmed by jury charge error. We affirm.
BACKGROUND
Officer T. Phan of the City of Webster Police Department noticed a blue
Ford Taurus “traveling at a high rate of speed” on I-45 south in Harris County
while Phan was patrolling in his marked patrol vehicle on the night of December
18, 2012. Phan followed the vehicle to “pace” its speed and discovered the car was
traveling at around 80 miles per hour; the posted speed limit was 65 miles per
hour. Phan activated his lights and siren to stop the vehicle, and the driver of the
vehicle pulled over to the side of the road.
Phan approached the vehicle and asked the driver, later identified as
appellant, if he had a valid driver’s license and to identify himself. Appellant
refused and was uncooperative, repeatedly asserting that Phan was “unlawfully
detaining” him and that he “had the right to remain silent.” Phan informed
appellant that Phan had stopped appellant for speeding. Phan requested backup
because of appellant’s uncooperative behavior. Two additional officers—Officer
Basset and Officer S. Sosa from the Webster Police Department—arrived shortly
at the roadside scene, both in marked patrol vehicles. Basset was able to get the
passenger to exit appellant’s car. Phan requested that Sosa move her marked patrol
vehicle in front of the stopped car. For over ten minutes (both before and after
back-up arrived), Phan stood at the driver’s side window repeatedly telling
appellant that he had been stopped for speeding, requesting his identification, and
instructing him to exit his vehicle.
Phan informed appellant that they were going to have to remove him from
the vehicle “either peacefully or by force.” Nearly fifteen minutes into the traffic
stop, after appellant was repeatedly warned that if he did not exit his car he would
be removed by force, Basset broke the passenger side window to attempt to unlock
the door. Sosa began attempting to break the driver’s side window. None of the
officers had their weapons drawn during any portion of the roadside interaction.
Appellant immediately put his car in reverse, pulled away from the nearby
officers, put his car in drive, and fled the scene. Officers Phan and Sosa got back
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into their patrol vehicles and began pursuing appellant. For over ten minutes,
appellant evaded the pursuing officers, driving at a high rate of speed on four-lane
roads, then through streets and residential neighborhoods. Appellant ran red lights
and did not stop at stop signs. At the conclusion of the high-speed chase, appellant
ran from his car, evaded on foot, and was not arrested that evening. A warrant was
issued for his arrest, and appellant was subsequently arrested.
At his trial, Phan and Sosa testified to the above facts. They both identified
appellant as the driver of the vehicle. Phan testified that the Ford Taurus was
registered to appellant and that Phan had identified appellant from his driver’s
license photograph on the evening of the incident. Sosa stated she had also made
contact with appellant and described him as “argumentative.” Phan testified that
he intended to remove appellant from his vehicle for “public safety” because “he
might be intoxicated.” Phan explained that he observed that appellant had “slurred
speech” and a “dried mouth, which are indicators of possible intoxication.” Phan
anticipated performing standard field sobriety testing on appellant to “continue
further with the investigation.” Phan and Sosa testified that appellant was being
detained before he fled in his vehicle. The dash-cam videos from both Phan’s and
Sosa’s patrol units were played for the jury. Phan’s dash-cam video recorded the
entire incident, from the time that Phan pulled appellant over to the end of the
high-speed chase.
Both sides rested and closed, and the trial court charged the jury. The jury
found appellant guilty as charged, and after a punishment hearing, sentenced him
to eight years’ confinement in the Institutional Division of the Texas Department
of Criminal Justice.1 This appeal timely followed.
1
Appellant had a background of evading, failure to identify, and several other non-
violent misdemeanor offenses.
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SUFFICIENCY
In his first issue, appellant asserts that there is insufficient evidence to
support his conviction. A person commits an offense if he intentionally flees from
a person he knows is a peace officer attempting lawfully to arrest or detain him.
Tex. Penal Code § 38.04(a). When the actor uses a vehicle while in flight, this
offense is a felony of the third degree. See id. § 38.04(b)(2).
When determining whether evidence is legally sufficient to support the
verdict, we view all of the evidence in the light most favorable to the verdict and
determine, based on that evidence and any reasonable inferences therefrom,
whether any rational fact finder could have found the elements of the offense
beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App.
2011) (citing Jackson v. Virginia, 443 U.S. 307, 318–19 (1979)). We do not sit as a
thirteenth juror and may not substitute our judgment for that of the fact finder by
re-evaluating weight and credibility of the evidence. Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the fact
finder to fairly resolve conflicts in testimony, weigh the evidence, and draw
reasonable inferences from basic facts to ultimate facts. Id. 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). Therefore, if
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614
(Tex. Crim. App. 1997).
Here, appellant asserts that there is a material variance between the
indictment and the evidence. He urges that, although the State indicted him for
evading detention, the evidence at trial proved that he was instead evading arrest.
The indictment alleged that appellant
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did then and there unlawfully, intentionally flee from T. PHAN,
hereafter styled the Complainant, a PEACE OFFICER employed by
WEBSTER POLICE DEPARTMENT, lawfully attempting to
DETAIN the defendant, and the Defendant knew the Complainant
was a PEACE OFFICER attempting to DETAIN the Defendant, and
the Defendant used a MOTOR VEHICLE while he was in flight.
When the state alleges a narrower manner and means by which an offense may be
committed in the indictment, that definition is “the law as authorized by the
indictment”; thus the narrower allegation must be proved beyond a reasonable
doubt. Geick v. State, 349 S.W.3d 542, 548 (Tex. Crim. App. 2011). Based on this
indictment, then, the State was required to prove beyond a reasonable doubt that
appellant evaded detention. See id. As this is the only element of the offense for
which appellant challenges the sufficiency of the evidence, we confine our review
to whether there is legally sufficient evidence that appellant evaded detention.
On a routine traffic stop, police officers may request certain information
from a driver, such as a driver’s license and car registration, and may conduct a
computer check on that information. Kothe v. State, 152 S.W.3d 54, 63 (Tex. Crim.
App. 2004). After the computer check is completed and the officer knows that the
driver has a currently valid license, no outstanding warrants, and the car is not
stolen, the traffic-stop investigation is fully resolved. Id. at 63–64. At this point,
the detention must end and the driver must be permitted to leave. Id. at 64.
However, once an officer concludes the investigation of the conduct that initiated
the traffic stop, continued detention is permitted if the officer has reasonable
suspicion to believe another offense has been or is being committed. Vasquez v.
State, 324 S.W.3d 912, 919 (Tex. App.—Houston [14th Dist.] 2010, pet. ref’d). An
officer’s reasonable suspicion must be supported by specific articulable facts that,
taken together with rational inferences from those facts, would warrant a person of
reasonable caution in the belief that a continued detention was justified. Id. at 920.
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As noted above, appellant was pulled over for speeding, which is a
reasonable detention. See id. at 919 (“[A]n officer may initiate a traffic stop if he
has a reasonable basis for suspecting that a person has committed a traffic
violation.”). Appellant was uncooperative during the traffic stop and refused to
provide identification or exit the vehicle. There is no indication that any of the
officers were able to complete the traffic stop so that appellant’s detention should
have ended and he should have been permitted to leave. See Kothe, 152 S.W.3d at
63–64. Further, Phan testified that appellant had slurred speech and a dry mouth,
which Phan stated were both factors indicative of being under the influence of
alcohol. Phan stated that he wanted appellant to exit the vehicle for “public safety”
and so he could further investigate whether appellant was driving while
intoxicated. Thus, Phan articulated specific facts that warranted his continued
detention of appellant. See Vasquez, 324 S.W.3d at 920–21. And appellant fled
before Phan was able to either complete the investigation of the traffic stop or
further investigate whether appellant was driving while intoxicated.
Viewing this evidence in the light most favorable to the verdict, there is
more than sufficient evidence from which any rational juror could have found that
appellant was evading detention as charged in the indictment. Accordingly, we
overrule appellant’s first issue.
ALLEGED CHARGE ERROR
In his second issue, appellant asserts that he was egregiously harmed by the
trial court’s jury charge error. Specifically, he asserts that the trial court erred by
stating in both the abstract and application paragraphs of the guilt-innocence jury
charge that the indictment charged appellant with evading arrest or detention.
We review alleged charge error by considering two questions: (1) whether
error existed in the charge; and (2) whether sufficient harm resulted from the error
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to compel reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005).
The degree of harm necessary for reversal under the second inquiry depends on
whether the appellant preserved the error; when, as here, the appellant failed to
object, we will reverse only if there is “egregious harm.” Id. at 743–44. Egregious
harm is error that affects “the very basis of the case,” deprives the defendant of a
“valuable right,” or “vitally affect[s] a defensive theory.” See Olivas v. State, 202
S.W.3d 137, 144 (Tex. Crim. App. 2006).
Under section 38.04(a) of the Penal Code, a person commits the offense at
issue if he evades arrest or detention. Tex. Penal Code Ann. § 38.04(a). As noted
above, in the indictment, the State alleged that appellant fled from a police officer
attempting to “detain” him. In the application paragraphs of the jury charge, the
trial court used only the term “detain” when referencing the elements of the
offense, but the trial court also referred to the title of the offense as “evading arrest
or detention” in both the abstract and application paragraphs:
The defendant . . . stands charged by indictment with the
offense of evading arrest or detention, alleged to have been committed
on or about the 18th day of December, 2012, in Harris County, Texas.
The defendant has pleaded not guilty.
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. It is a felony offense if the
person uses a vehicle while the person is in flight.
***
Now, if you find from the evidence beyond a reasonable doubt
that on or about the 18th day of December, 2012, in Harris County,
Texas, the [appellant] did then and there unlawfully, intentionally flee
from T. Phan, a peace officer employed by Webster Police
Department, lawfully attempting to detain the defendant, and the
defendant knew that T. Phan was a peace officer attempting to detain
the defendant, and the defendant used a motor vehicle while he was in
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flight, then you will find the defendant guilty of evading arrest or
detention, as charged in the indictment.
(emphasis added).
Importantly, when instructing the jury on the elements it must find for
conviction, the trial court used only the term “detain” and not the term “arrest,”
consistent with the indictment. The trial court included the “arrest” language only
when referencing the title of the offense, as emphasized in the above-quoted
paragraphs. The trial court did not err by referring to the correct title of the offense
because it also limited the jury to determining the elements of the offense as
charged in the indictment, i.e., that the jury could only find appellant guilty if he
fled from an officer attempting to detain him. Furthermore, even if the trial court
erred by including “arrest” when referencing the title of the offense, appellant
cannot show egregious harm because the court correctly instructed the jury on the
elements it must find for conviction consistent with the indictment. See Foster v.
State, No. 14-11-00653-CR, 2013 WL 476817, at *5–6 (Tex. App.—Houston
[14th Dist.] Feb. 7, 2013, no pet.) (mem. op., not designated for publication)
(concluding under nearly identical circumstances that the appellant neither
established charge error or egregious harm by the trial court’s inclusion of the title
of the offense of evading arrest or detention in the jury charge).
Under these circumstances, appellant has not demonstrated that the charge
was erroneous, nor has he suffered egregious harm. We overrule appellant’s
second issue.
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CONCLUSION
We have overruled both of appellant’s issues. The judgment of the trial court
is affirmed.
/s/ Sharon McCally
Justice
Panel consists of Justices McCally, Brown, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).
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