Day, Jonathan William

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0955-19
JONATHAN WILLIAM DAY, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIRST COURT OF APPEALS
TARRANT COUNTY
Newell, J., delivered the opinion of the unanimous Court.
Appellant Jonathan Day fled after being told that he was under
arrest and that there was an active arrest warrant out for him. He was
charged with and convicted of evading arrest or detention. That offense
requires intentional flight from an officer “attempting lawfully to arrest or
detain.”1 The court of appeals found the evidence insufficient to prove
1
TEX. PEN. CODE § 38.04.
Day — 2
that the attempted arrest or detention was “lawful.” It held that while
Appellant’s initial detention may have been justified, his continued
detention, during which Appellant fled after police discovered an
outstanding arrest warrant for him, was not. The court of appeals
reversed the conviction and ordered an acquittal.2 We reverse the court
of appeals judgment because a jury could rationally find the officer’s
attempted arrest or detention was lawful in light of the outstanding
warrant.
Offense
Richland Hills City Marshal C.W. Heizer was waiting in his truck
three houses south of a residence where he planned to serve a traffic
warrant on Danny Branton. However, he didn’t know what Danny
Branton looked like. Around 8:45 in the morning, Heizer spotted two
vehicles and two bicycles pull up in the driveway of the residence. Six
people had arrived: Appellant, who had driven up in a white SUV with no
passengers; Mr. Acorn, who had pulled in behind Appellant in a gold truck
with two passengers (Danny Branton in the front, and a female, Ms.
2
Day v. State, 01-18-00289-CR, 2019 WL 2621740, at *4 (Tex. App.—Houston [1st
Dist.] June 27, 2019) (mem. op., not designated for publication).
Day — 3
Curlee, in the back); and the two cyclists, one of whom was later
identified as a Mr. Kuhl.
Appellant got out of the SUV and was talking to Mr. Kuhl, but
nobody got out of the gold truck, which had its windows rolled down.
Heizer, in his uniform and with his body camera on, approached the group
on foot and asked where Danny Branton was. Nobody responded. When
Mr. Acorn started to back his truck out, Heizer stopped him and told
everybody that he needed to see their identifications. Only Appellant and
Mr. Kuhl handed Heizer identification.
Two people left the scene without giving identification: the other
cyclist and Danny Branton, who got out of the truck and went inside the
house before Heizer could stop him. Mr. Acorn and Ms. Curlee stayed in
the truck and wrote down their information for Heizer. Heizer felt at this
point he was investigating the offense of “hindering apprehension,” and
he proceeded to identify everyone and check for warrants.
Appellant told Heizer that he needed to go to work and wanted to
leave, explaining that he was not Danny Branton. Heizer responded to
wait a few minutes so that he could find out who everybody was.
Appellant ultimately admitted to Heizer that he had warrants out of Fort
Worth, but Heizer indicated he was “not interested in Fort Worth.” Heizer
Day — 4
then called in the information for the four remaining individuals to
dispatch; all four had warrants. The license check revealed that Appellant
had a warrant for a jailable offense out of Haltom City in Tarrant County.
When Appellant realized that Heizer was going to arrest him on the
county-level warrant, he turned around and started walking towards the
white SUV. Appellant told Heizer he needed to make a phone call. Heizer
responded that it was okay, but that Appellant should stay there and not
go anywhere else. Appellant then reached into the SUV, rolled up the
driver’s side window, locked the door, shut the door, and then went
around the front of the SUV. Heizer told him, “You can’t leave, you’re
under arrest." Appellant stated, “I’m not leaving.” But, he was. He
continued walking away and soon broke out into a run. He was caught
about three blocks away.
Trial
The State charged Appellant with evading arrest or detention.3 He
filed a motion to suppress all evidence obtained after Heizer found out
that Appellant was not Danny Branton. At the hearing on the motion to
3
Though the court of appeals focuses upon whether the evidence was sufficient to prove
a lawful detention, the information authorized conviction for evading either a detention or an
arrest.
Day — 5
suppress, counsel argued that the trial court should suppress anything
after the point Appellant said “I want to go, I need to be at work”
because from that point on the continued detention was illegal. The trial
court denied the motion, stating that “the objective facts were that
[Heizer] did see the car drive up or see the truck drive up” and that the
short time he held Appellant was not unreasonable. The court told
defense counsel that he could get an Article 38.23 instruction at trial if
the issue were raised again.
At the close of evidence, defense counsel re-urged his motion to
suppress based on the “illegal detention” and the trial court denied it,
explaining that Heizer did have some facts that would allow him to detain
Appellant regardless of Heizer’s subjective state of mind. Counsel moved
for a directed verdict on the ground that the State had failed to prove
Appellant was fleeing a lawful detention or arrest. The trial court denied
the motion because it was up to the jury to decide whether the State had
proven Appellant was being lawfully detained or arrested.
Counsel asked for an Article 38.23 instruction. Under both the
Article 38.23 instruction and the application paragraph in the jury charge,
the jury was instructed to acquit Appellant if it found that Heizer’s
detention or attempt at detention was unlawful. Under the Article 38.23
Day — 6
instruction, the jury was instructed to disregard evidence of the warrant
and the flight if it believed that the prolonged detention was unlawful,
which would necessarily merit a “not guilty” verdict. Under the
application paragraph, the jury could consider the evidence of the warrant
and the flight, but it was instructed to find Appellant not guilty if it
believed that the Appellant’s flight was from an unlawful attempt to
detain him. The jury found Appellant guilty, and the trial court assessed
Appellant’s punishment at 220 days in county jail.
Appeal
On direct appeal, Appellant acknowledged that this Court, in Woods
v. State, held that a pretrial motion to suppress is not a proper way to
challenge the legality of an arrest in a prosecution for evading arrest
because the “lawful detention” portion of the statute is an element of the
offense.4 Rather, when a lawful detention is an element of the crime, a
failure of the State to prove beyond a reasonable doubt that the detention
was lawful must result in an acquittal of the defendant. So, Appellant
argued that he was entitled to an acquittal based upon insufficient
4
Woods v. State, 153 S.W.3d 413, 415 (Tex. Crim. App. 2005); York v. State, 342
S.W.3d 528, 544 (Tex. Crim. App. 2011).
Day — 7
evidence. In so doing, he argued that his detention was “unlawful,
irrespective of the later discovery of the warrant.”5
The court of appeals agreed, holding that the detention should have
ended once Heizer determined that Appellant was not Branton.6 The
court also agreed with Appellant that the later discovery of his warrant
did not change the character of the detention.7 The court held that the
evidence was insufficient to establish that Appellant’s detention was
lawful.8 Implicit in this holding is the conclusion that the unreasonably
prolonged detention tainted the subsequent discovery of the arrest
warrant. And, without the discovery of the warrant, Appellant fled an
illegal detention. The appellate court reversed the trial court’s judgment
of conviction and rendered a judgment of acquittal.9
5
Appellant’s Direct Appeal Br. 14 (“A warrant would have normally given Heizer
authority to arrest Appellant, assuming that the initial detention was lawful. However, Heizer
did not know about this warrant when he chose to detain Appellant—essentially, he refused
Appellant’s request to let him leave after Heizer found out that he was not Branton. This made
Appellant’s detention unlawful, irrespective of the later discovery of the warrant.”) (internal
citations omitted).
6
Day, 2019 WL 2621740, at *3.
7
Id. at *2, 3.
8
Id. at *4.
9
Id.
Day — 8
We granted the State Prosecuting Attorney’s petition to address
three issues.10 First, can the officer’s attempt to detain or arrest a
suspect, which is otherwise lawful, be tainted by an earlier illegality and
thereby negate the lawful-arrest-or-detention element of evading, just as
evidence is tainted under fruit-of-the-poisonous-tree? Second, and
perhaps alternatively, will discovery of a valid arrest warrant necessarily
render an attempted seizure on the warrant “lawful” (despite an earlier
illegality) for purposes of evading arrest? Third, and finally, if an earlier
illegality can taint the officer’s attempted detention, does discovery of a
warrant provide an independent source for the detention or attenuate the
taint?
The answer to the first question is “no.” We are not dealing with a
suppression of evidence issue; we are dealing with a sufficiency of the
evidence issue. Evidentiary exclusionary rules serve a completely
different purpose than the evading arrest or detention statute. The
former deals with the penalty designed to deter future police
misconduct,11 while the latter punishes a person who flees lawful police
10
The SPA does not challenge the court of appeals’ conclusion that the initial detention
was unreasonably prolonged. We therefore proceed on the assumption that it was.
11
State v. Mazuca, 375 S.W.3d 294, 300 (Tex. Crim. App. 2012) (“The Fourth
Amendment exclusionary rule exclusively serves a function of deterrence, to discourage undue
police encroachment upon the privacy and personal integrity of the citizenry.”).
Day — 9
conduct. Doctrines such as “the fruit of the poisonous tree”, “attenuation
of the taint”, and “the independent source doctrine” go to the question of
whether evidence may be introduced at trial; they do not render
otherwise lawful police conduct unlawful.12 In light of the answer to the
SPA’s first issue, there is no need to address the second or third issues,
and we dismiss them as improvidently granted.13
Standard of Review
Legal sufficiency requires that a rational jury could find each
essential element of the offense beyond a reasonable doubt.14 In a
12
Hudson v. Michigan, 547 U.S. 586, 593 (2006) (noting attenuation can occur when
the causal connection is remote or the interest protected by the constitutional guarantee that
has been violated would not be served by suppression of the evidence obtained; “‘[t]he
penalties visited upon the Government, and in turn upon the public, because its officers have
violated the law must bear some relation to the purposes which the law is to serve’”) (quoting
United States v. Ceccolini, 435 U.S. 268, 279 (1978)). See Segura v. United States, 468 U.S.
796, 804 (1984) (“[T]he exclusionary rule reaches not only primary evidence obtained as direct
result of illegal search or seizure, but also evidence later discovered and found to be derivative
of illegality or ‘fruit of the poisonous tree.’”) (internal citation omitted); Utah v. Strieff, 136 S.
Ct. 2056, 2061 (2016) (the attenuation doctrines allows the trial court to admit evidence “when
the connection between unconstitutional police conduct and the evidence is remote or has been
interrupted by some intervening circumstance”; “the independent source doctrine allows trial
courts to admit evidence obtained in an unlawful search if officers independently acquired it
from a separate, independent source”).
13
If we were to assume that the statutory phrase “attempting lawfully to arrest or
detain” incorporates exclusionary rule principles, the SPA observes that both the United States
Supreme Court and this Court have held that discovery of a pre-existing and lawful arrest
warrant can attenuate any taint from an otherwise illegal detention. See Strieff, 136 S. Ct. at
2062–63 (holding that a pre-existing, valid warrant for arrest attenuated the taint from an
unlawful traffic stop); Mazuca, 375 S.W.3d at 310 (same). We need not address how the
“attenuation of the taint” doctrine (or the “independent source doctrine”) applies in this case
because we hold that the statutory phrase “attempting lawfully to arrest or detain” does not
incorporate these exclusionary rule principles.
14
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Day — 10
sufficiency review, the essential elements of the offense are those of a
hypothetically correct jury charge for the case.15 The hypothetically
correct jury charge is one that accurately sets out the law and adequately
describes the offense for which the defendant was tried without increasing
the State’s burden of proof or restricting the State’s theories of liability.16
When reviewing the sufficiency of the evidence, we consider all the
admitted evidence in the light most favorable to the verdict.17 The jury
is the sole judge of the credibility of a witness’s testimony and the weight
to assign to that testimony.18 This means that the jury can believe all,
some, or none of a witness’s testimony.19
In some cases, however, legal sufficiency turns upon the meaning
of the statute under which the defendant is being prosecuted.20 We ask
if certain conduct actually constitutes an offense under the statute.21
15
Id. at 14 (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).
16
Id.17
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Powell v. State, 194 S.W.3d 503,
506 (Tex. Crim. App. 2006); Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
18
Jackson, 443 U.S. at 319.
19
Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020) (citing Esquivel v.
State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974)).
20
Long v. State, 535 S.W.3d 511, 519 (Tex. Crim. App. 2017) (citing Liverman v. State,
470 S.W.3d 831, 836 (Tex. Crim. App. 2015)).
21
Id.Day — 11
When we interpret statutes, we look to the literal text of the statute in
question and attempt to discern the fair, objective meaning of the text at
the time of its enactment.22 If the plain language is clear and
unambiguous, our analysis ends because “the Legislature must be
understood to mean what it has expressed, and it is not for the courts to
add or subtract from such a statute.”23 Statutory interpretation is a
question of law that we review de novo.24
Analysis
There is no dispute regarding the validity or existence of a warrant
authorizing Appellant’s arrest at the time Appellant fled from Heizer’s
attempt to arrest him. Appellant argues instead that Heizer could not
lawfully arrest or detain him because the initial detention was illegally
prolonged and therefore any subsequent arrest was the fruit of the
poisonous tree. Consequently, the question before us is whether the
word “lawfully”, as it appears in the statute, incorporates exclusionary
rule principles. We hold that it does not.
22
Id. at 520; Nguyen v. State, 359 S.W.3d 636, 642 (Tex. Crim. App. 2012) (citing
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)).
23
Long, 535 S.W.3d at 521.
24
Id. at 519; Nguyen, 359 S.W.3d at 641.
Day — 12
A person commits an evading offense “if he intentionally flees from
a person he knows is a peace officer or federal special investigator
attempting lawfully to arrest or detain him.”25 The text of the statute is
plain: it requires proof that an attempted arrest or detention is lawful at
the time the person flees. Though the statute requires that the officer
have lawful authority to attempt an arrest or detention, the statute
contains no exceptions or defenses based upon the officer’s conduct
before or after a person flees the officer’s attempt to arrest or detain.
The statute is directed at the conduct of the person, not the officer. The
statute punishes those who refuse to submit to lawful authority at the
moment an officer attempts an arrest or detention by adding an
additional penalty for that refusal to comply.26
This stands in contrast to the purpose of the federal and state
exclusionary rules. As the Supreme Court has observed of the federal
exclusionary rule, its sole purpose is to deter future Fourth Amendment
25
TEX. PEN. CODE § 38.04.
26
Alejos v. State, 555 S.W.2d 444, 449 (Tex. Crim. App. 1977) (op. on reh’g) (noting
that the evading arrest statute’s “intent is to deter flight from arrest by the threat of an
additional penalty, thus discouraging forceful conflicts between the police and suspects”).
Whether the defendant’s knowledge of that lawfulness of the attempted arrest or detention is
also an element of the offense is an issue currently pending before this Court. See Nicholson
v. State, 594 S.W.3d 480, 482 (Tex. App.—Waco 2019, pet. granted). The court of appeals had
no occasion to weigh in on the sufficiency of the evidence to prove Day’s knowledge of the
legality of the detention in light of its holding that there was no legal detention in the first
place.
Day — 13
violations by law enforcement.27 Though the Texas exclusionary rule is
both statutory and broader in scope, it is still based upon the federal
exclusionary rule and thus shares a similar purpose.28 The text of Article
38.23 addresses the admissibility of evidence at trial when the law has
been violated. Doctrines such as “the fruit of the poisonous tree”,
“attenuation of taint”, and “the independent source doctrine” refine the
situations in which the illegally obtained evidence can be admitted at or
excluded from trial.29 They affect the penalty levied against the officer for
engaging in unlawful police conduct;30 they do not transform an otherwise
lawful arrest into an unlawful one. As the United States Supreme Court
observed in Utah v. Strieff, an arrest pursuant to a valid warrant is a
27
See Davis v. United States, 564 U.S. 229, 236–37 (2011).
28
See Wilson v. State, 311 S.W.3d 452, 458 (Tex. Crim. App. 2010).
29
See Armstrong v. State, 550 S.W.2d 25, 31 (Tex. Crim. App. 1976) (the fruit of the
poisonous tree doctrine “serves to exclude as evidence not only the direct products but also the
indirect products of Fourth Amendment violations”); Johnson v. State, 871 S.W.2d 744, 751
(Tex. Crim. App. 1994) (“[T]he attenuation doctrine is not an exception to Art. 38.23, but
rather is a method of determining whether evidence was ‘obtained’ in violation of the law.”);
Wehrenberg v. State, 416 S.W.3d 458, 467–68 (Tex. Crim. App. 2013) (much like evidence for
which a prior taint has been attenuated, evidence obtained pursuant to an independent source
following a prior instance of unlawful police conduct “is not ‘obtained’ in violation of the law and
is thus not subject to suppression”).
30
Lego v. Twomey, 404 U.S. 477, 489 (1972) (“exclusionary rules are very much aimed
at deterring lawless conduct by police and prosecution”).
Day — 14
“ministerial act” that is “independently compelled” regardless of whether
the initial detention is unlawful.31
Further, in the context of the Texas exclusionary rule, we have
observed that Article 38.23 contemplates that a crime has already been
committed; that evidence of that crime exists; and that officers violate
the law in attempting to obtain evidence of the previously committed
crime.32 Thus, the officers must act illegally in obtaining existing
evidence of an offense.33 Just as evidence that a defendant resisted
arrest does not exist before an arrest because the resisting has not yet
happened, evidence of evading arrest does not exist before the attempted
arrest because the evading has not yet happened.34 As we noted in State
v. Iduarte, the exclusionary rule was designed to protect individuals from
31
Strieff, 136 S. Ct. at 2062–63. Notably, the subsequent discovery of a pre-existing
arrest warrant does not render an initial, or even unreasonably prolonged detention, lawful.
See, e.g., State v. Jackson, 464 S.W.3d 724, 733 (Tex. Crim. App. 2015) (explaining that the
primary illegality in Mazuca—the illegal detention—was still underway and was “still illegal” at
the later point in time at which the detaining officers discovered the valid arrest warrant).
Rather, the subsequent discovery of a pre-existing warrant renders a subsequent arrest lawful.
Id. at 732 n.13 (“It almost goes without saying that when police officers unlawfully detain an
individual and only then discover an outstanding arrest warrant, they may—indeed, they
should—arrest him pursuant to that warrant.”). Consequently, the evading arrest or detention
statute allows prosecution even though the initial detention may have been unlawful or
unreasonably prolonged.
32
Martinez v. State, 91 S.W.3d 331, 340 n.35 (Tex. Crim. App. 2002) (discussing State
v. Mayorga, 901 S.W.2d 943, 946 (Tex. Crim. App. 1995) (plurality opinion)).
33
Id.34
See Mayorga, 901 S.W.2d at 946.
Day — 15
the use at trial of evidence that was obtained in an unlawful manner, but
it does not provide limitless protection to one who chooses to react
illegally to some prior unlawful act by a state agent.35 Here, evidence of
the charged offense—Appellant’s flight—did not exist before Heizer’s
challenged actions—prolonging the detention—because the charged
offense had not yet occurred; the evidence showed a subsequent
independent criminal act that was not causally connected to any evidence
discovered through an unlawful detention by Heizer.36 Therefore, as in
Iduarte, exclusionary rule principles, at least in the context in which they
are being raised in this case, do not apply to the offense of evading
arrest.37
Lastly, holding that the evading arrest statute does not incorporate
exclusionary rule principles is consistent with our previous holdings that
it is inappropriate to consider the lawfulness of an officer’s attempted
arrest or detention as a suppression issue in evading cases. For example,
35
State v. Iduarte, 268 S.W.3d 544, 551 (Tex. Crim. App. 2008). See also Martinez,
91 S.W.3d at 340 (Article 38.23 deals with exclusion of illegally obtained evidence of a prior
crime; it does not provide any protection to commit a new crime—including excluding any
evidence of that new crime because a law enforcement officer violated the law first).
36
See Iduarte, 268 S.W.3d at 551.
37
Id. (concluding that the exclusionary rule did not apply to the case because evidence
of Iduarte pointing a gun at the officer was a subsequent independent criminal act of assault
that was not casually connected to the officer’s prior unlawful entry into Iduarte’s apartment).
Day — 16
in Woods v. State, the defendant, charged with evading detention, sought
to challenge the lawfulness of his detention in a pre-trial motion to
suppress.38 The defendant argued, much as Appellant does here, that he
was initially detained illegally and the subsequent arrest should be
suppressed under the fruit-of-the-poisonous-tree doctrine.39 We rejected
this argument because it was improperly raised in a pre-trial motion to
suppress when it should have been the subject of a directed verdict.40 As
we later said in York v. State, when the validity of an arrest or detention
is an element of the charged offense, litigating the validity of the seizure
as a suppression issue—either pretrial or during trial—is inappropriate.41
Instead, the issue should simply be litigated as part of the State’s case
at trial.42 Implicit in this holding is the recognition that exclusionary rule
principles are focused upon the evidence introduced at trial.
In this case, Appellant admitted to Heizer that he had an
outstanding warrant from one jurisdiction; Heizer discovered a second
38
Woods, 153 S.W.3d at 414.
39
Id. at 414–15.
40
Id. 415–16.
41
York, 342 S.W.3d at 544 (discussing Woods, 153 S.W.3d at 414).
42
Id.Day — 17
warrant from another. And though Heizer said he was only worried about
warrants out of his jurisdiction, Heizer was authorized to execute an
arrest warrant from any county in Texas.43 Appellant argues, however,
that the warrant doesn’t matter because the statute’s requirement that
the arrest or detention must be “lawful” “means, at a minimum, that the
detention must be lawful at its inception . . . if the initial detention was
unlawful, it remained that way.”44 But even Appellant recognizes that the
initial detention, that is, the detention that occurred before Appellant
turned over his identification, was lawful. So, Appellant seems to argue
that if the detention is illegal at any point before the flight, the statute is
not satisfied.45 That’s a fruit-of-the-poisonous-tree argument, an
application of an exclusionary rule principle that is not incorporated into
the phrase “attempting lawfully to arrest or detain.” The question before
the jury was the character of the detention at the moment of flight. The
jury was entitled to find, from the evidence before it, that at the moment
43
TEX. CODE CRIM. PRO. art. 15.06 (A “warrant of arrest . . . shall extend to any part of
the State; and any peace officer to whom said warrant is directed, or into whose hands the
same has been transferred, shall be authorized to execute the same in any county in this
State.”).
44
Appellant’s Br. 9–10.
45
But see Mayorga, 901 S.W.2d at 945 (“[R]esisting arrest is unlawful in Texas, and it
is no defense to prosecution that the arrest or search was unlawful.”).
Day — 18
of flight, the officer was attempting to lawfully detain Appellant on the
existing arrest warrant.46
Conclusion
Looking at the evidence before the jury, it is undisputed that at the
time Appellant fled the scene there was an outstanding warrant for his
arrest. From this evidence, a rational juror could have found that
Appellant fled from an attempted and lawful arrest or detention
regardless of whether the initial detention was unduly prolonged.
Consequently, the evidence is legally sufficient to support the verdict. We
reverse the judgment of the court of appeals and remand the case so it
may address Appellant’s remaining unaddressed claims.
Delivered: December 16, 2020
Publish
46
State’s Br. 11–12.