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Nicholson v. State

Court of Appeals of Texas, Tenth District

September 4, 2019

HARRY DONALD NICHOLSON, JR., Appellant
v.
THE STATE OF TEXAS, Appellee

          From the 13th District Court Navarro County, Texas, Trial Court No. D37998-CR & D37996-CR

          Before Chief Justice Gray, Justice Davis, and Justice Neill (Chief Justice Gray dissenting with an opinion)

          OPINION

          JOHN E. NEILL JUSTICE.

         In 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.[1] 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 10-18-00359-CR.

         I. Evading Arrest or Detention With a Vehicle and the Jury Charge

         In his 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.

         II. Sufficiency of the Evidence Supporting Evading Arrest or Detention With a Vehicle

         In his 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.

         A. Standard of Review

         The 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. App. 2018).

         B. Discussion

         In this 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. App. 2011).

         Section 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.").

         In 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).

         Furthermore, 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.").

         Nevertheless, 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.

         Bobby 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 ...


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