the 85th District Court Brazos County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Scoggins.
GRAY Chief Justice.
Latroy Rush was convicted of the state jail felony offense of
evading arrest or detention with a prior evading conviction.
See Tex. Penal Code Ann. § 38.04(a), (b)(1)(A)
(West 2016). He was sentenced to eight months in jail.
Because the evidence is sufficient to support Rush's
conviction and because the trial court did not err in
refusing to submit Rush's proposed jury instruction, the
trial court's judgment is affirmed.
Bill Yoder and Alex Tran of the Bryan Police Department were
on a nighttime foot patrol in a high crime area of Bryan.
They noticed a vehicle turning onto a street with no front
license plate. As the vehicle was coming to a stop on its
own, the officers initiated a traffic stop. Yoder approached
the driver's side of the vehicle, identifying the driver
as Tim Washington. Tran attempted to make contact with the
passenger, later identified as Rush, but as the vehicle came
to a stop, Rush got out and began to walk away. Tran tried to
stop Rush, but he would not stop. Instead, Rush continued to
walk away and talk on his cell phone. After covering 35 to 40
feet, Rush eventually stopped, and Tran convinced Rush to
give Tran his identification. After dispatch informed Tran
that Rush had an outstanding warrant, Tran attempted to
arrest Rush. Rush made some movements to avoid Tran who then
wrapped his arms around Rush. The two were eventually brought
to the ground by Yoder who had run over to assist Tran.
of the Evidence
charged in this indictment, a person is guilty of
state-jail-felony evading arrest if (1) the person, (2)
intentionally flees, (3) from a person he knows is a peace
officer, (4) attempting lawfully to arrest or detain him, and
(5) the person has been previously convicted of evading
arrest or detention. See Tex. Penal Code Ann. §
38.04(a), (b)(1)(A) (West 2016). In his first issue, Rush
contends the evidence is insufficient to support his
conviction because the State failed to prove two of these
elements: that Rush was lawfully detained and that Rush fled.
Court of Criminal Appeals has expressed our standard of
review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to
support a conviction, a reviewing court must consider all of
the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and reasonable
inferences therefrom, a rational fact finder could have found
the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 318-19
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007). This "familiar standard gives full
play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to
ultimate facts." Jackson, 443 U.S. at 319.
"Each fact need not point directly and independently to
the guilt of the appellant, as long as the cumulative force
of all the incriminating circumstances is sufficient to
support the conviction." Hooper, 214 S.W.3d at
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App.
Court of Criminal Appeals has also explained that our review
of "all of the evidence" includes evidence that was
properly and improperly admitted. Conner v. State,
67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record
supports conflicting inferences, we must presume that the
factfinder resolved the conflicts in favor of the prosecution
and therefore defer to that determination. Jackson v.
Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979). Further, direct and circumstantial evidence are
treated equally: "Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an
actor, and circumstantial evidence alone can be sufficient to
establish guilt." Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007). Finally, it is well established
that the factfinder is entitled to judge the credibility of
witnesses and can choose to believe all, some, or none of the
testimony presented by the parties. Chambers v.
State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
first contends that the State did not prove that Rush was
lawfully detained. The State bears the burden to prove the
lawfulness of the attempted detention as an element of the
offense. Guillory v. State, 99 S.W.3d 735, 741 (Tex.
App.-Houston [1st Dist.] 2003, pet. ref'd). Police
officers may stop and detain a person if they have a
reasonable suspicion that a traffic violation is in progress
or has been committed. Garcia v. State, 827 S.W.2d
937, 944 (Tex. Crim. App. 1992). Thus, a lawful roadside
detention begins when a vehicle is pulled over for
investigation of a traffic violation. See Arizona v.
Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 788, 172
L.Ed.2d 694 (2009). Further, a traffic stop of a vehicle
communicates to a reasonable passenger that he or she is not
free to terminate the encounter with the police and move
about at will. Brendlin v. California, 551 U.S. 249,
255, 257, 258, 127 S.Ct. 2400, ...