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Rush v. State

Court of Appeals of Texas, Tenth District

December 13, 2017

DEON LATROY RUSH, Appellant
v.
THE STATE OF TEXAS, Appellee

         From the 85th District Court Brazos County, Texas Trial Court No. 16-01482-CRF-85

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins.

          OPINION

          TOM GRAY Chief Justice.

         Deon 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.

         Background

         Officers 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.

         Sufficiency of the Evidence

         As 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.

         The 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 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

         The 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).

         Detention

         Rush 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, ...


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