the 13th District Court Navarro County, Texas, Trial Court
No. D37998-CR & D37996-CR
Chief Justice Gray, Justice Davis, and Justice Neill (Chief
Justice Gray dissenting with an opinion)
E. NEILL JUSTICE.
appellate cause numbers 10-18-00360-CR and 10-18-00359-CR,
appellant, Harry Nicholson Jr., challenges his convictions
for evading arrest or detention with a vehicle and aggravated
assault on a public servant. See Tex. Penal Code
Ann. § 22.02(a), (b)(2)(A) (West 2019); see also
id. § 38.04(a), (b)(2)(A) (West 2016).
Specifically, Nicholson contends that: (1) the evidence is
legally insufficient to show that he knew his attempted
detention was lawful; (2) the evidence is legally
insufficient to show that he was aware of, but consciously
disregarded, a substantial and unjustifiable risk that a
police officer would be injured; (3) he was egregiously
harmed by the failure to charge the jury that it needed to
find that he knew he was being lawfully detained with respect
to the evading-arrest-or-detention-with-a-vehicle allegation;
and (4) he was egregiously harmed by the failure to charge
the jury that it needed to find that he knew the officer was
attempting to arrest or detain him. Because we conclude that
Nicholson was egregiously harmed by the failure of the jury
charge to instruct the jury that it needed to find that
Nicholson knew the officer was attempting to arrest or detain
him, but find the evidence is sufficient to support a
conviction for evading arrest or detention with a vehicle, we
reverse Nicholson's conviction for evading arrest or
detention with a vehicle and remand for a new trial in
appellate cause number 10-18-00360-CR. And because we hold
that the evidence is sufficient to support Nicholson's
conviction for aggravated assault on a public servant, we
affirm Nicholson's conviction in appellate cause number
Evading Arrest or Detention With a Vehicle and the Jury
third and fourth issues, Nicholson contends that he was
egregiously harmed by the failure to charge the jury that it
needed to find that he knew he was lawfully detained by a
peace officer. The State concedes that Nicholson was
egregiously harmed by the charge, but only to the extent that
the charge failed to include the element that Nicholson knew
that the officer was attempting to arrest or detain him. We
agree with the State that Nicholson was egregiously harmed by
the failure of the charge to include the element that
Nicholson knew the officer was attempting to arrest or detain
him. See Tex. Penal Code Ann. § 38.04(a);
see also Celis v. State, 416 S.W.3d 419, 423 (Tex.
Crim. App. 2013) ("A charge that does not set out all of
the essential elements of the offense is fundamentally
defective."); Jackson v. State, 718 S.W.2d 724,
726 (Tex. Crim. App. 1986) ("We conclude that the
defendant's knowledge that a police officer is trying to
arrest him is an essential element of the offense of evading
arrest under the statute."). Accordingly, we sustain
Nicholson's fourth issue. Because we sustain
Nicholson's fourth issue and grant him the relief to
which he sought, a reversal and remand of this conviction for
a new trial, we need not address Nicholson's third issue
pertaining to his knowledge of the lawfulness of the arrest
or detention. See Tex. R. App. P. 47.1, 47.4.
Sufficiency of the Evidence Supporting Evading Arrest or
Detention With a Vehicle
first issue, Nicholson argues that his conviction for evading
arrest or detention with a vehicle is not supported by
sufficient evidence because the State failed to show that he
knew that his attempted detention was lawful. Specifically,
Nicholson asserts that the evading-arrest statute requires
the State to prove that a defendant knows three things at the
time he intentionally flees: (1) that the person from whom he
is fleeing is a peace officer; (2) that the peace officer was
attempting to arrest or detain the defendant; and (3) that
the attempted arrest or detention was lawful.
Standard of Review
Court of Criminal Appeals has expressed our standard of
review of a sufficiency issue as follows:
When addressing a challenge to the sufficiency of the
evidence, we consider whether, after viewing all of the
evidence in the light most favorable to the verdict, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson
v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); Villa v. State, 514 S.W.3d 227,
232 (Tex. Crim. App. 2017). This standard requires the
appellate court to defer "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. We may not re-weigh the evidence or substitute
our judgment for that of the factfinder. Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). The
court conducting a sufficiency review must not engage in a
"divide and conquer" strategy but must consider the
cumulative force of all the evidence. Villa, 514
S.W.3d at 232. Although juries may not speculate about the
meaning of facts or evidence, juries are permitted to draw
any reasonable inferences from the facts so long as each
inference is supported by the evidence presented at trial.
Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App.
2016) (citing Jackson, 443 U.S. at 319); see
also Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim.
App. 2007). We presume that the factfinder resolved any
conflicting inferences from the evidence in favor of the
verdict, and we defer to that resolution. Merritt v.
State, 368 S.W.3d 516, 525 (Tex. Crim. App. 2012). This
is because the jurors are the exclusive judges of the facts,
the credibility of the witnesses, and the weight to be given
to the testimony. Brooks v. State, 323 S.W.3d 893,
899 (Tex. Crim. App. 2010). Direct evidence and
circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a
conviction so long as the cumulative force of all the
incriminating circumstances is sufficient to support the
conviction. Ramsey v. State, 473 S.W.3d 805, 809
(Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was
sufficient to support a conviction by comparing it to
"the elements of the offense as defined by the
hypothetically correct jury charge for the case."
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). The hypothetically correct jury charge is one that
"accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State's
burden of proof or unnecessarily restrict the State's
theories of liability, and adequately describes the
particular offense for which the defendant was tried."
Id.; see also Daugherty v. State, 387
S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law as
authorized by the indictment" includes the statutory
elements of the offense and those elements as modified by the
indictment. Daugherty, 387 S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim.
issue, Nicholson requests that we interpret section 38.04(a)
of the Penal Code in such a way that requires the State to
prove that Nicholson knew that the attempted arrest or
detention was lawful.
Statutory construction is a question of law, and we review
the record de novo. Ramos v. State, 303 S.W.3d 302,
306 (Tex. Crim. App. 2009). In construing a statute, we must
"seek to effectuate the 'collective' intent or
purpose of the legislators who enacted the legislation."
Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.
App. 1991). We look first to the statute's literal text,
and "we read words and phrases in context and construe
them according to the rules of grammar and usage."
Lopez v. State, 253 S.W.3d 680, 685 (Tex. Crim. App.
2008). We must "presume that every word in a statute has
been used for a purpose and that each word, phrase, clause,
and sentence should be given effect if reasonably
possible." State v. Hardy, 963 S.W.2d 516, 520
(Tex. Crim. App. 1997). Only if the statutory language is
ambiguous, or leads to absurd results that the Legislature
could not have possibly intended, may we consult
extra-textual sources. Boykin, 818 S.W.2d at 785.
Harris v. State, 359 S.W.3d 625, 629 (Tex. Crim.
38.04(a) provides that: "A person commits an 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." See Tex. Penal Code
Ann. § 38.04(a). Contrary to Nicholson's assertion,
many Texas cases have come to the conclusion that it is not
necessary for the State to prove that the defendant knew that
the detention was lawful. See, e.g., Lovington v.
State, No. 07-16-00109-CR, 2016 Tex.App. LEXIS 13215, at
**5-6 (Tex. App.-Amarillo Dec. 13, 2016, no pet.) (mem. op.,
not designated for publication) ("Rather, the knowledge
aspect of the crime relates to whether the accused knew the
person to whom he refused to yield was a peace officer who
was trying to detain him. . . . It is nonsensical to suggest
that an accused may avoid conviction simply because he can
unilaterally analyze the situation and conclude (irrespective
of any education in the law or 4th Amendment jurisprudence)
that the peace officer had no basis to detain him. And, we
opt not to construe § 38.04(a) in such an absurdist
way."); Mitchell v. State, Nos. 05-12-00876-CR,
05-12-00877-CR, & 05-12-00878-CR, 2013 Tex.App. LEXIS
9317, at **12-13 (Tex. App.-Dallas July 26, 2013, no pet.)
(not designated for publication) ("Otherwise, courts
have generally construed the inclusion of the word
'lawfully' in § 38.04(a) to mean that the
attempted arrest or detention must be lawful-not that the
defendant must know that the attempted arrest or detention is
lawful. . . . The State did not have to prove that appellant
knew the attempted arrest or detention was lawful.");
Loewe v. State, No. 03-10-00418-CR, 2011 Tex.App.
LEXIS 865, at *9 n.3 (Tex. App.-Austin Feb. 2, 2011, pet.
dism'd) (mem. op., not designated for publication)
("It was not necessary for the State to prove that
appellant knew that the detention was lawful.");
Johnson v. State, No. 13-05-00648-CR, 2007
Tex.App. LEXIS 2706, at *8 (Tex. App.-Corpus Christi Apr. 5,
2007, no pet.) (mem. op., not designated) ("It is not
required that the State prove that the defendant had
knowledge of the legal basis for the attempted detention or
arrest. . . . Thus, appellant's interpretation of section
38.04 as requiring the State to prove that appellant was
aware of the felony warrant is clearly incorrect.");
Etheridge v. State, No. 08-12-00337-CR, 2014
Tex.App. LEXIS 10880, at *8 (Tex. App.-El Paso Oct. 1, 2014,
no pet.) (mem. op., not designated for publication)
("Section 38.04(a) requires proof that the defendant
knows the police officer is attempting to arrest or detain
him, and it requires proof that the attempted arrest or
detention was lawful, but it does not require proof that the
defendant knew his arrest or detention was lawful.").
support of the contention that the State need not prove that
the defendant knew his arrest or detention was lawful, each
of these cases cite, either directly or indirectly, decisions
from the Court of Criminal Appeals in Hazkell v.
State, 616 S.W.2d 204, 205 (Tex. Crim. App. 1981) and
Jackson v. State, 718 S.W.2d 724, 729 (Tex. Crim.
App. 1986) or a decision from the Dallas Court of Appeals in
Johnson v. State, 864 S.W.2d 708, 723 (Tex.
App.-Dallas 1993), aff'd, 912 S.W.2d 227 (Tex.
Crim. App. 1995). However, each of these cases were decided
prior to September 1, 1994, when the evading-arrest statute
contained an exception for unlawful arrests or detentions.
See Act of June 19, 1993, 73rd Leg., R.S., ch. 900,
§ 1.01, sec. 38.04(a), 1993 Tex. Sess. Law Serv. 3586,
3667 (current version at Tex. Penal Code Ann. §
38.04(a)) (adding the word "lawfully" as an element
of the offense of evading arrest or detention) (effective
date Sept. 1, 1994); see also Hazkell, 616 S.W.2d at
205 (noting that the prior version of section 38.04 contained
an exception for unlawful arrests or detentions);
Johnson, 864 S.W.2d at 722 (stating that the prior
version of section 38.04 "makes it an offense to flee
from an officer attempting to arrest or detain him" and
noting that whether or not an arrest or detention is lawful
or unlawful is an exception).
it would appear that the more-recent interpretations of
section 38.04(a) ignore the Legislature's inclusion of
the word "lawfully" in the phrase describing the
peace officer or federal special investigator that the
defendant must know is attempting to arrest or detain him.
See Tex. Penal Code Ann. § 38.04(a); Tex.
Gov't Code Ann. §§ 311.011(a) ("Words and
phrases shall be read in context and construed according to
the rules of grammar and common usage."), 311.021(2)
(West 2013) ("In enacting a statute, it is presumed that
. . . the entire statute is intended to be effective.");
see also State v. Webb, 12 S.W.3d 808, 811 (Tex.
Crim. App. 2000) ("Under our approach to statutory
interpretation, we look to the literal text of the statute
for its meaning, and we ordinarily give effect to that plain
meaning, unless application of the statute's plain
language would lead to absurd consequences that the
Legislature could not possibly have intended, or if the plain
language is ambiguous."); Ex parte Levinson,
160 Tex. Crim. 606, 608, 274 S.W.2d 76, 78 (1955) ("It
must be kept in mind, also, that in construing a statute or
in seeking to ascertain the legislative intent in enacting a
statute, the courts must not enter the field of legislation
and write, rewrite, change, or add to a law.").
none of this matters under the facts in this case. As noted
above, we analyze the sufficiency of the evidence under a
hypothetically-correct jury charge. See Malik, 953
S.W.2d at 240. Under either the State's or
Nicholson's interpretation of the hypothetically-correct
jury charge, Nicholson's conviction for evading arrest or
detention with a vehicle can be affirmed.
Frazier testified that he is a cashier at a Shell gas station
located at 1950 Martin Luther King Boulevard in Corsicana,
Texas. On the evening in question, Frazier observed Nicholson
sitting in his pickup truck while parked at the gas station.
Frazier believed it to be odd that Nicholson "had been
out there for quite some time and he was throwing Kleenexes
out of the driver side window. I mean a lot of
Kleenexes." Frazier later clarified that Nicholson had
been inside ...